Richey v. City of Lilburn

Decision Date07 September 1999
Docket NumberNo. 1:98-CV-0176-RWS.,1:98-CV-0176-RWS.
Citation127 F.Supp.2d 1250
PartiesKay S. RICHEY, Plaintiff, v. CITY OF LILBURN, et al., Defendants.
CourtU.S. District Court — Northern District of Georgia

Steven Eugene Conner, Office of Steven E. Conner, Snellville, GA, Edwin Marger, Office of Edwin Marger, Jasper, GA, Michael J. Puglise, Office of Michael J. Puglise, Snellville, GA, for plaintiff.

John Lewis Sapp, Richard Read Gignilliat, Victor J. Maya, Scott Edward Atwood, Elarbee Thompson & Trapnell, Atlanta, GA, Richard Hyde Jack, Jack & Jack, Athens, GA, for defendants.


STORY, District Judge.

This case is before the Court for consideration of the Report and Recommendation [68-1] of Magistrate Judge E. Clayton Scofield, III recommending that Defendants' Motion for Summary Judgment. After carefully considering the Report and Recommendation, the Court receives it with approval and adopts it as the Opinion and Order of this Court.

Accordingly, Defendants' Motion for Summary Judgment [38-1] is hereby GRANTED.

So Ordered.


SCOFIELD, United States Magistrate Judge.

Attached is the Report and Recommendation of the United States Magistrate Judge in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Civil Local Rule 72. The Clerk shall serve this Report and Recommendation on the parties.

Pursuant to 28 U.S.C. § 636(b)(1), within ten (10) days after being served with a copy, each party may file written objections, if any, to the Report and Recommendation. 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), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

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.

Should the undersigned's recommendation in this matter be adopted in whole or in part by the District Court, leaving issues to be tried before the undersigned, IT IS HEREBY ORDERED that, within thirty (30) days of such disposition by the District Court, the parties shall file their Consolidated Pretrial Order as to all remaining claims.


Plaintiff commenced this civil action on January 20, 1998, charging that defendants discriminated against her on the basis of (1) sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.; (2) disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 ("ADA"); and (3) age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 81 Stat. 602, as amended, 29 U.S.C. §§ 621-634.1 This matter is presently `before the Court on defendants' motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure on all claims advanced by plaintiff. [Doc. No. 38].2

I. Factual Background

When evaluating the merits of a motion for summary judgment, the Court must view the evidence and factual inferences in a light most favorable to the non-moving party. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 920 (11th Cir.1993); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.1987). Applying this legal standard, the Court derives the following facts from the parties' statements of fact ("SMF") and the record as a whole:

The City of Lilburn ("City" or "Lilburn") is a municipal corporation duly chartered under Georgia law and located in Gwinnett County. The individually named defendants, Diana Preston, Jack Bolton, H. Michael Donald, and William Barry were all members of the Lilburn City Council at the time of plaintiff's application and initial employment. Defendant Ronald Houck is the City's Director of Public Safety and also serves as the Chief of Police. Defendant Robert Sluder is a sergeant with the Lilburn Police Department ("LPD") and served as plaintiff's immediate supervisor while she worked there. Defendant S. Scott Batterton is Lilburn's duly elected Mayor.

Chapter IV of the City's personnel policies and procedures requires that any vacancy for a full-time position in the City be publicized. The department head in which the vacancy exists is responsible for reviewing all applications received for the vacant position and selects up to five of the applicants for further consideration by the City's Merit System Board. The Merit System Board selects up to three applicants as finalists and the department head chooses one of the finalists for the position. The department head then presents his selection for approval by the Mayor and City Council, who have the final authority on the hiring of permanent employees. (Defs.' SMF ¶ 10).3

Plaintiff, a female, was born in 1951. Plaintiff and Sluder had worked together years before at the DeKalb County Police Department. In late May 1997, Sluder approached plaintiff at her place of employment and informed her that there was an opening for a Communications Officer/Jailer (also referred to as "dispatcher") with the City and encouraged her to fill out an application and direct it to his attention. Plaintiff completed an application for a permanent position with the Lilburn PD on June 1, 1997. She was interviewed by Chief Houck on June 4, 1997. During this meeting plaintiff disclosed to Houck that she suffered from multiple sclerosis ("MS") and also that she had been convicted of driving under the influence ("DUI") in April of 1996. (Houck Dec. ¶¶ 9-10; Pl.'s SMF ¶ 17).

Chief Houck viewed plaintiff's prior work experience favorably and initialed her application to be sent on to the Merit Board for consideration. Houck informed plaintiff that he did not believe her DUI conviction or MS would keep her from getting the job. (Defs.' SMF ¶ 17; Houck Dec. ¶¶ 9-10). Prior to the Merit Board review, plaintiff began employment with the City as a dispatcher on June 28, 1997. The parties dispute whether plaintiff was working in a temporary or permanent capacity at that time. (Defs.' SMF ¶ 1; Pl.'s Resp. ¶ 1; Pl.'s Dec. ¶¶ 3-6; Houck Dec. ¶ 3).

When the Merit Board convened on July 17, there were two Communications Officer/Jailer vacancies. The Board ranked plaintiff as one of the top three applicants. Houck selected plaintiff along with another female, Cinderella Castro, to recommend to the Mayor and City Council for the positions.4 Plaintiff learned of her selection that very same day.

At the meeting to discuss the agenda for the City Council meeting scheduled for August 11, 1997, Mayor Batterton informed Houck that he had learned of plaintiff's DUI conviction and that he would not support her application for employment. (Defs.' SMF ¶ 25; Batterton Dec. ¶ 6; Houck Dec. ¶ 18). The Mayor and City Council agreed during the August 11 work session that approving plaintiff would be against City public policy. See (Defs.' Exs. 3-8: Cole Dec. ¶ 7; Preston Dec. ¶ 5; Barry Dec. ¶ 5; Donald Dec. ¶ 5; Batterton Dec. ¶ 6-8; Bolton Dec. ¶ 5). On August 14 Houck was informed by the Mayor and City Council that they had decided not to approve plaintiff for employment. Houck spoke with plaintiff via telephone on August 15 and informed her that the Mayor and City Council would not approve her for employment due to her DUI conviction. (Houck Dec. ¶¶ 20-21; Defs.' SMF ¶ 28). Plaintiff's last day of employment with the City was August 14, 1997.

Plaintiff filed a charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC") on August 28, 1997. At plaintiff's request, the EEOC issued plaintiff a right to sue notice on October 21, 1997. (Pl.'s Am.Compl., Ex. C). On December 27, 1997, the City filled the position left vacant by plaintiff's rejection with Carmen Ivan, a female. (Defs.' SMF ¶ 30).

II. The Standard of Review on Summary Judgment

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed. R.Civ.P.; Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998). A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The substantive law applicable to the case determines which facts are material. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the court "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." Four Parcels, 941 F.2d at 1437 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the moving party fails to discharge this initial burden, then the motion must be denied. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.1993) (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991)).

When the non-moving party has the burden of proof at trial, the moving party may discharge its initial burden by "showing ... the district court ... that there is an absence of evidence to support the non-moving party's case." Celotex, ...

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