Mosby v. City of Byron
| Decision Date | 28 January 2021 |
| Docket Number | CIVIL ACTION NO. 5:20-cv-00163-TES |
| Parties | RACHEL MOSBY, Plaintiff, v. CITY OF BYRON, GEORGIA, Defendant. |
| Court | U.S. District Court — Middle District of Georgia |
ORDER OF DISMISSAL
This case asserts, among others, claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, 2000e-1, 2000e-2(a), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111, 12112(a), 12112(b)(5)(A).
Because many of the substantive facts aren't important to the particular issues before the Court, a lengthy factual narrative is unnecessary. However, what is important, is that Plaintiff Rachel Mosby served as the City of Byron's Fire Chief for 11 years until she was terminated. Now, she makes the following claims against the City: Counts I and II include her sex-based discrimination claims for harassment, hostile work environment, and wrongful termination under Title VII; Counts III and IV are claims for wrongful termination and failure to provide a reasonable accommodation under the ADA; Counts V and VI each contain a deprivation of due process claim—one alleging a violation of the Fifth and Fourteenth Amendments to the United States Constitution and the other alleging a violation of the Georgia Constitution; and Count VII is a defamation claim under Georgia law pursuant to O.C.G.A. §§ 51-5-1 and 51-5-4.
In response to Mosby's Complaint, the City filed a motion to dismiss asserting, inter alia, that her Title VII and ADA claims are time-barred because "neither [she] nor her [attorney] filed a verified charge with the [Commission]." [Doc. 5-1, p. 5]. After an initial review of the parties' briefs, it became clear to the Court that resolution of the verification issue would likely "require the Court to consider matters outside" Mosby's pleading. See generally [Doc. 12]. So, with respect to the verification requirement, the Court converted the City's motion to dismiss into one for summary judgment and permitted a short period within which the parties could procure supporting evidence and file supplemental briefs. With both parties having filed one additional brief in support of their positions, the City's motion is now ripe for consideration.
A court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is not genuine unless, based on the evidence presented, "'a reasonable jury could return a verdict for the nonmoving party.'" Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002)(quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Importantly, the movant "has the burden of demonstrating that there are no genuine issues of material fact, [and] once that burden is met[,] the burden shifts to the nonmoving party to bring the court's attention to evidence demonstrating a genuine issue for trial." Perry v. Pediatrix Med. Grp. of Ga., 2021 WL 194145, --- F. App'x ----, at *3 (11th Cir. 2021) ).
In executing its burden, the movant may cite to particular parts of materials in the record, including, "'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." Four Parcels, 941 F.2d at 1437 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); Fed. R. Civ. P. 56(c)(1)(A). "When the nonmoving party has the burden of proof at trial, the moving party is not required to 'support its motion with affidavits or other similar material negating the opponent's claim[]' in order to discharge this 'initial [burden].'" Four Parcels, 941 F.2d at 1437-38 (quoting Celotex, 477 U.S. at 323). Rather, "the moving party simply may show—that is, point out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. (quoting Celotex, 477 U.S. at 324) (cleaned up). Alternatively, the movant may provide "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." Id.
If this initial burden is satisfied, the burden then shifts to the nonmoving party, who must rebut the movant's showing "by producing . . . relevant and admissible evidence beyond the pleadings." Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (citing Celotex Corp., 477 U.S. at 324) (emphasis added). The nonmoving party does not satisfy her burden "if the rebuttal evidence 'is merely colorable or[] is not significantly probative' of a disputed fact." Josendis, 662 F.3d at 1315 (quoting Anderson, 477 U.S. at 249-50). "A mere scintilla of evidence supporting the [nonmoving] party's position will not suffice." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
Before filing a lawsuit that concerns violations of Title VII or the ADA, Congress explicitly and unmistakably mandated that a plaintiff submit a Charge of Discrimination to the Equal Employment Opportunity Commission which "shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." 42 U.S.C. § 2000e-5(b). In addition to Congress' charge-filing requirement, the Commission's regulations mandate that "[a] charge . . . shall be verified." 29 C.F.R. § 1601.9 (emphasis added). That is, a charge must be "sworn to or affirmed before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgements, or supported by an unsworn declaration in writing under penalty of perjury." Id. at §1601.3(a). Defendant's summary judgment motion case calls upon the Court to answer one main question: just how mandatory is the Commission's verification requirement?
On June 28, 2019, Mosby submitted her charge which consisted of a detailed, five-page letter drafted and signed by her attorney laying out her grievances, a notice signed by Mosby identifying that an attorney was submitting the charge on her behalf, and 11 pages of exhibits.1 See generally [Doc. 1-4]. What she didn't file was any sort of verification to her charge. Thus, despite submission of her charge, the City argues that Mosby's (and/or her attorney's) failure to verify it bars her Title VII and ADA claims as a matter of law. [Doc. 5-1, pp. 3, 5]; 42 U.S.C. § 2000e-5(e)(1).
The City makes a simple argument: "[T]here is no evidence that . . . Mosby or her [attorney] ever submitted a verified charge to the [Commission] and [without a verified charge], [Mosby's] Title VII and ADA claims must be dismissed." [Doc. 5-1, p. 6]. While the United States Supreme Court allows a later-verified charge to "relate back" to an original charge, the window of opportunity to do so shuts when the Commission closes its file. See generally Edelman v. Lynchburg Coll., 535 U.S. 106 (2002); see also Butler v. Grief, Inc., 325 F. App'x 748 (11th Cir. 2008). "Where a right to sue letter has issued, the plaintiff has brought suit, and the [Commission] has closed its file, there is no longer acharge pending before the [Commission] that is capable of being verified." Butler, 325 F. App'x at 749. In other words, a charging party can amend her charge and—in that amendment—include a verification "only so long as the [original] charge is a viable one in the [Commission's] files[.]" Id. (citing Balazs v. Liebenthal, 32 F.3d 151, 156-58 (4th Cir. 1994)).
After realizing that neither he nor his client ever verified the charge, Mosby's attorney tried to amend the charge to add the requisite verification. In a letter to the Commission dated July 17, 2020 (well after she filed suit on April 28, 2020), Mosby's attorney wrote: "Based upon our review of the [Commission's] investigative file that we received on May 11, 2020, the [Commission] has not issued a Dismissal and Notice of Rights or taken any other action to close this matter." [Doc. 10-9, p. 1]; see also [Doc. 1, p. 31]. To that letter, Mosby attached an amendment to her original charge to include a verification. [Doc. 10-9, p. 2]. Thus, the Court must first decide whether Mosby could have amended her original charge in the first place. The short answer is that she could not.
On December 19, 2019, following an exchange of several emails between Mosby's attorney and various representatives from the Atlanta District Office of the Commission regarding the status of Mosby's charge, Mosby's attorney requested the Commission "to issue a Notice of Right to Sue and close this file." See generally [Doc. 10-6]; see also [Doc. 10-2]; [Doc. 10-3]; [Doc. 10-4]; [Doc. 10-5]. That same day, the Commissioninformed Mosby, that her request for a Notice of Right to Sue had "been forwarded to the U.S. Department of Justice (DOJ) for action[]" and that the Department of Justice ("DOJ") would "act on [her] request and issue the Notice directly to [her.]" [Doc. 10-7, p. 2].
On January 3, 2020, even though Mosby's attorney "underst[ood] that the request" for a Notice of Right to Sue "had to be forwarded to the DOJ[,]" he still (ostensibly because of the time that had passed since Mosby filed her original charge) asked whether the Commission was "able to issue a Right to Sue Letter[.]" [Doc. 10-8, p. 1]; see also Fort Bend Cnty. v. Davis, 139 S.Ct. 1843, 1847 (2019) (). In response, the Commission stated that it was not and that "[t]he DOJ is solely responsible for issuing Notices upon request by the parties against...
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