Akins v. Atlanta Independent School System et al

MOTION for Summary Judgment with Brief In Support

N.D. Ga.August 15, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FRANCHESA AKINS and ATLANTA ASSOCIATION OF CLASSIFIED EMPLOYEES, Plaintiffs, v. ATLANTA INDEPENDENT SCHOOL SYSTEM, MERIA JOEL CARSTARPHEN, COURTNEY D. ENGLISH, NANCY M. MEISTER, BYRON D. AMOS, CYNTHIA BRISCOE BROWN, ESHÉ P. COLLINS, JASON G. ESTEVES, LESLIE GRANT, STEVEN D. LEE, and MATT WESTMORELAND, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action File No.: 1:15-CV-00364-ELR-LTW DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendant Atlanta Independent School System (“AISS”) and Meria Joel Castarphen, Courtney D. English, Nancy M. Meister, Byron D. Amos, Cynthia Briscoe Brown, Eshé P. Collins, Jason G. Esteves, Leslie Grant, Steven D. Lee, Matt Westmoreland (the “Individual Defendants”) (referred to collectively herein as “Defendants”) hereby respectfully submit the following Motion for Summary Case 1:15-cv-00364-ELR-LTW Document 89 Filed 08/15/16 Page 1 of 4 2 Judgment, pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, on the Second Amended Complaint [Dkt. 23] filed by Plaintiff Franchesa Akins (“Akins” or “Plaintiff”) and Atlanta Association of Classified Employees (“AACE”) (referred to collectively herein as “Plaintiffs”). Plaintiffs’ Second Amended Complaint seeks an order of mandamus for a disciplinary conference for Plaintiff Akins before the AISS Board and purports to impose liability for alleged violations of the Georgia Open Records Act (“GORA”), O.C.G.A. § 50- 18-71 et seq., the Georgia Open Meetings Act (“GOMA”), O.C.G.A. § 50-14-1 et seq., and alleged discriminatory and retaliatory acts pursuant to the Family and Medical Leave Act (“FMLA”), and the Georgia Whistleblowers Act, O.C.G.A. § 45-1-4. However, all of Plaintiffs’ claims fail as a matter of law because: (1) Plaintiff Akins cannot demonstrate a clear right to a disciplinary conference for an alleged termination when she voluntarily abandoned her job; (2) Plaintiffs lack standing to bring GORA claims against Defendants; (3) Plaintiffs’ GOMA claims are time-barred; (4) Defendants complied with the statutory requirements of both GORA and GOMA; (5) Plaintiff Akins cannot prove, by the preponderance of the evidence, that she was denied an FMLA benefit to which she was entitled; (6) a number of the actions about which Plaintiff Akins complains are not materially adverse pursuant to the FMLA or the Georgia Whistleblowers Act; (7) Plaintiff Akins failed to disclose a violation of or noncompliance with a law, rule, or regulation as required by the Case 1:15-cv-00364-ELR-LTW Document 89 Filed 08/15/16 Page 2 of 4 3 Georgia Whistleblowers Act; (8) Plaintiff Akins cannot demonstrate causation on her claims of retaliation under both the FMLA and the Georgia Whistleblowers Act; and (9) the Individual Defendants are entitled to qualified immunity on Plaintiffs’ claims. For the foregoing reasons, as more fully set forth in Defendants’ Brief in Support of Defendants’ Motion for Summary Judgment and Defendants’ Statement of Material Undisputed Facts, filed contemporaneously herewith, Defendants respectfully request that the Court grant this Motion and award Defendants such other and further relief as the Court deems just and proper. Respectfully submitted this 15th day of August, 2016. /s/ Natasha L. Wilson Ernest L. Greer Georgia Bar No. 309180 greere@gtlaw.com Natasha L. Wilson Georgia Bar No. 371233 wilsonn@gtlaw.com Joshua B. Portnoy Georgia Bar No. 940597 portnoyj@gtlaw.com Mellori E. Lumpkin Georgia Bar No. 358937 lumpkinm@gtlaw.com GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road, NE, Suite 2500 Atlanta, Georgia 30305 Tel.: 678.553.2100 Attorney for Defendants Case 1:15-cv-00364-ELR-LTW Document 89 Filed 08/15/16 Page 3 of 4 4 CERTIFICATE OF COMPLIANCE WITH L.R. 5.1 C I HEREBY CERTIFY that the foregoing DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT was prepared in Times New Roman, 14-point font, as approved by Local Rule 5.1 C. /s/ Natasha L. Wilson Attorney for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will automatically send electronic notification of such filing to the following counsel of record: Rakesh N. Parekh, Esq. PAREKH LAW LLC P.O. Box 250654 Atlanta, Georgia 30327 This 15th day of August, 2016. s/ Natasha L. Wilson Case 1:15-cv-00364-ELR-LTW Document 89 Filed 08/15/16 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FRANCHESA AKINS and ATLANTA ASSOCIATION OF CLASSIFIED EMPLOYEES, Plaintiffs, v. ATLANTA INDEPENDENT SCHOOL SYSTEM, MERIA JOEL CARSTARPHEN, COURTNEY D. ENGLISH, NANCY M. MEISTER, BYRON D. AMOS, CYNTHIA BRISCOE BROWN, ESHÉ P. COLLINS, JASON G. ESTEVES, LESLIE GRANT, STEVEN D. LEE, and MATT WESTMORELAND, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action File No.: 1:15-CV-00364-ELR-LTW DEFENDANTS’ BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 1 of 47 ii TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................... v ARGUMENT AND CITATION OF AUTHORITY ................................................. 1 I. SUMMARY JUDGMENT STANDARD. ............................................ 1 II. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S PETITION FOR MANDAMUS ................................... 2 III. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ GORA CLAIM. ............................................................ 4 A. AACE’S GORA CLAIM IS BARRED BY THE DOCTRINE OF RES JUDICATA…………………………….....……….....5 B. AKINS LACKS STANDING TO BRING CLAIM UNDER GORA…………………………………………………….........6 C. AISS TIMELY RESPONDED TO PLAINTIFFS’ GORA REQUESTS AND PRODUCED ALL RESPONSIVE RECORDS IN ITS POSSESSION………………………….....7 IV. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ GOMA CLAIM ........................................................... .9 A. PLAINTIFF’S GOMA CLAIM IS TIME- BARRED…………………………………………...………...10 B. AISS COMPLIED WITH GOMA’S PUBLICATION REQUIREMENTS…………………………………………...11 C. PLAINTIFFS ARE NOT ENTITLED TO AN AWARD OF CIVIL PENALTIES AGAINST AISS……………………….12 D. PLAINTIFFS ARE NOT ENTITLED TO AN AWARD OF ATTORNEY’S FEES UNDER GOMA……………………...13 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 2 of 47 iii V. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S FAMILY AND MEDICAL LEAVE ACT INTERFERENCE CLAIM BECAUSE PLAINTIFF WAS AFFORDED AND EXERCISED EVERY PROTECTION AUTHORIZED UNDER THE FAMILY AND MEDICAL LEAVE ACT ....................................................................................... 13 VI. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S FAMILY AND MEDICAL LEAVE ACT RETALIATION CLAIM .................................................................... 16 A. PLAINTIFF CANNOT ESTABLISH THAT SHE SUFFERED AN ADVERSE EMPLOYMENT ACTION……….………...16 B. PLAINTIFF CANNOT DEMONSTRATE ANY CAUSAL CONNECTION BETWEEN HER PURPORTED STATUTORILY PROTECTED ACTIVITY AND ANY ADVERSE EMPLOYMENT ACTION……………………...19 VII. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S WHISTLEBLOWER CLAIM .................................... 21 A. PLAINTIFF DID NOT DISCLOSE A VIOLATION OF OR NONCOMPLIANCE WITH A LAW, RULE, OR REGULATION....………………………….……….………...22 B. PLAINTIFF DID NOT SUFFER AN ADVERSE EMPLOYMENT ACTION....………………………………..24 C. PLAINTIFF CANNOT PROVE A CASUAL CONNECTION BETWEEN HER DISCLOSURES AND ANY ADVERSE EMPLOYMENT ACTION....……………………………......25 1. JANUARY 2014 COMPLAINT………………………….26 2. APRIL 2014 COMPLAINT………………………………27 3. MAY 2014 COMPLAINT...………………………………28 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 3 of 47 iv 4. JULY 28, 2014 COMPLAINT……………………………28 VIII. AKINS’ FMLA RETALIATION AND WHISTLEBLOWER CLAIMS ARE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL .............................................................. 29 IX. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY .................................................................. 32 X. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIM FOR ATTORNEY’S FEES UNDER O.C.G.A. § 13-6-11 ............................................................................. 34 CONCLUSION ........................................................................................................ 35 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 4 of 47 v TABLE OF AUTHORITIES Page(s) Cases Anderson v. Liberty Lobby, 477 U.S. 242 (1986) .......................................................................................... 1, 2 Atlanta Association of Classified Employees v. Atlanta Independent School System, Civil Action File No. 2014CV250955 .................................................................. 5 Bender v. City Clearwater, No. 8:04-CV-1929-T23EAJ, 2006 U.S. Dist. LEXIS 101436 (M.D. Fla. April 19, 2006) ....................................................................................... 14, 17 Bozeman v. Per-Se Techs., Inc., 456 F.Supp.2d 1282 (N.D. Ga. 2006) ................................................................. 18 Brungart v. BellSouth Telecommc’ns, Inc., 231 F.3d 791 (11th Cir. 2000) ............................................................................ 19 Cargile v. Horton Homes, 851 F. Supp. 1575 (M.D. Ga. 1994) ................................................................... 18 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................. 1 Chambers v. Fulford, 268 Ga. 892, 495 S.E.2d 6 (1998) ........................................................................ 2 Claxton Enters. v. Evans County Bd. of Comm’rs, 249 Ga. App. 870, 549 S.E.2d 830 (2001) ......................................................... 13 Clover v. Totally Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999) .......................................................................... 19 Cobb v. City of Roswell, 533 F. App’x 888 (11th Cir. 2013) ..................................................................... 24 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 5 of 47 vi Corey Airport Servs. v. Decosta, 587 F.3d 1280 (11th Cir. 2009) .......................................................................... 33 Dowell v. Krystal Co., 291 Ga. App. 469, 662 S.E.2d 150 (2008) ......................................................... 35 Drago v. Jenne, 453 F.3d 1301 (11th Cir. 2006) .......................................................................... 19 Edmonds v. Bd. of Regents, 302 Ga. App. 1, 689 S.E.2d 352 (2009) ............................................................. 23 Edwards v. Nat’l Vision, Inc., 568 Fed. App’x. 854 (11th Cir. 2014) ................................................................ 14 Forrester v. Ga. Dep’t of Human Servs., 308 Ga. App. 716, 708 S.E.2d 660 (2011) .................................22, 23, 25, 26, 29 Freeman v. Smith, 324 Ga. App. 426, 750 S.E.2d 739 (2013) ..................................24, 25, 26, 27,28 Garrett v. Women’s Health Care of Gwinnett, P.C., 243 Ga. App. 53, 532 S.E.2d 164 (2000) ........................................................... 34 Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274 (11th Cir. 1999) .......................................................................... 19 Gravitt v. Olens, 333 Ga. App. 484, 774 S.E.2d 263 (2015) ......................................................... 12 Hale v. Mingledorff, No. 2:13-CV-00228-RWS-JCF, 2014 U.S. Dist. LEXIS 171593 (N.D. Ga. Nov. 7, 2014) ............................................................................... 30, 32 Hawkins v. BBVA Compass Bancshares, Inc., 613 F. App’x 831 (11th Cir. 2015) ..................................................................... 16 Krutzig v. Pulte Home Corp., 602 F.3d 1231 (11th Cir. 2010) .......................................................................... 20 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 6 of 47 vii Langton v. Dep’t of Corr., 220 Ga. App. 445, 469 S.E.2d 509 (1996) ......................................................... 31 Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066 at n. 9 (11th Cir. 2013) ................................................................. 6 Lue v. Eady, 297 Ga. 321, 773 S.E.2d 679 (2015) .................................................................. 12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .............................................................................................. 2 McKinzie v. Sprint/United Mgmt. Co., No. 03-2348-GTV, 2004 U.S. Dist. LEXIS 23417 (D. Kan. Nov. 16, 2004) ............................................................................................................. 15 McMillian v. Monroe Cnty., 520 U.S. 781 (1997) ............................................................................................ 34 O’Rourke v. Hayes, 378 F.3d 1201 (11th Cir. 2004) .......................................................................... 33 Petty v. United Plating, Inc., No. CV-09-S-1465-NE, 2012 U.S. Dist. LEXIS 75355 (N.D. Ala. May 31, 2012) ..................................................................................................... 32 Pier v. Advance/Newhouse P’ship, No. 8:13-CV-1052-T-33TGW, 2014 U.S. Dist. LEXIS 39535 (M.D. Fla. Mar. 5, 2014)............................................................................... 19, 20 Redding v. Tuggle, No. 1:05-CV-2899-WSD-LTW, 2007 U.S. Dist. LEXIS 67853 (N.D. Ga. July 11, 2007) ..................................................................................... 18 Rich v. Dollar, 841 F.2d 1558 (11th Cir. 1988) .......................................................................... 33 Rossi v. Fulton Cnty., No. 1:10-CV-4254-RWS-AJB, 2013 U.S. Dist. LEXIS 44780 (N.D. Ga. Feb. 11, 2013) .................................................................................... 15 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 7 of 47 viii Sadler v. Franklin Cnty. Sch. Dist., No. 3:10-CV-26(CDL), 2011 U.S. Dist. LEXIS 85482 (M.D. Ga. Aug. 3, 2011) ...................................................................................................... 31 Sampson v. Ga. Dep’t of Juvenile Justice, 328 Ga. App. 733, 760 S.E.2d 203 (2014) ........................................................... 7 Santillana v. Fla. State Ct. Sys., No. 6:09-cv-2095-Orl-19KRS, 2011 WL 722765 (M.D. Fla. Feb. 23, 2011) ............................................................................................................. 34 Saucier v. Katz, 533 U.S. 194 (2001) ............................................................................................ 33 Schulten, Ward & Turner, LLP v. Fulton-DeKalb Hosp. Auth., 272 Ga. 725, 535 S.E.2d 243 (2000) .................................................................... 8 Seguin v. Marion Cnty. Health Dept., No. 5:13-96-0c-10prl, 2014 WL 3955162 (M.D. Fla. Aug. 13, 2014) ................................................................................................................... 15 Shields v. BellSouth Adver. & Publ’g Co., 228 F.3d 1284 (11th Cir. 2000) .......................................................................... 38 Shields v. BellSouth Adver. & Publ’g Corp., 273 Ga. 774, 545 S.E.2d 898 (2001) ............................................................ 31, 32 Shurick v. Boeing Co., 623 F.3d 1114 (11th Cir. 2010) ............................................................................ 5 St. Joseph Hosp., Augusta, Ga., Inc. v. Health Mgmt. Assocs., Inc., No. CV 107-104, 2011 WL 1225577 (S.D. Ga. Mar. 30, 2011) ........................ 35 Tisdale v. City of Cumming, 326 Ga. App. 19, 755 S.E.2d 833 (2014) ........................................................... 10 Vrana v. Augusta-Richmond Cnty., 295 Ga. App. 685, 673 S.E.2d 3 (2009) ....................................................... 2, 3, 4 Wascura v. City of S. Miami, 257 F.3d 1238 (11th Cir. 2001) .......................................................................... 20 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 8 of 47 ix Whitehead v. Norfolk Southern Ry. Co., 53 F. Supp. 2d 1380 (M.D. Ga. 1999) ................................................................ 18 Worst v. Glynn Cnty. School Dist., No. civ-210-137, 2012 WL 1068135 (S.D. Ga. Mar. 29, 2012) ........................ 16 Statutes 28 U.S.C. § 1738 ...................................................................................................... 30 29 U.S.C. §§ 2612, 2614 .......................................................................................... 14 Fair Dismissal Act .................................................................................................... 31 FMLA ................................................................................................................passim Georgia Open Meetings Act, O.C.G.A. § 50-14-1et ................................................. 9 Georgia Open Records Act, O.C.G.A. § 50-18-71 et seq. ......................................... 4 GOMA...............................................................................................................passim GORA ...............................................................................................................passim O.C.G.A. § 1-3-1(d)(3) .............................................................................................. 7 O.C.G.A. § 9-11-41(b) ............................................................................................... 6 O.C.G.A. § 9-12-40 .................................................................................................. 31 O.C.G.A. § 13-6-11 ............................................................................................ 34, 35 O.C.G.A. § 34-8-194(2)(A) ..................................................................................... 36 O.C.G.A. § 45-1-4(d)(2) ........................................................................ 29, 23, 24, 28 O.C.G.A. § 50-14-1(b)(2) ........................................................................................ 10 O.C.G.A. § 50-14-1(e)(1) .................................................................................. 11, 12 O.C.G.A. § 50-14-1(e)(2) ........................................................................................ 11 O.C.G.A. § 50-14-5(b) ............................................................................................. 13 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 9 of 47 x O.C.G.A. § 50-14-6 ...................................................................................... 10, 12, 13 O.C.G.A. § 50-18-71(b)(1)(A) ................................................................................... 7 Open Records Act ...................................................................................................... 7 Other Authorities Fed. R. Civ. P. 41(b) .................................................................................................. 6 Fed. R. Civ. P. 56 ....................................................................................................... 1 Final Order, No. 2014CV250955 ............................................................................... 6 L.R. 5.1 C ................................................................................................................. 37 Local Rule 56.1 .......................................................................................................... 1 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 10 of 47 - 1 - Defendant Atlanta Independent School System (“AISS”) and Meria Joel Castarphen, Courtney D. English, Nancy M. Meister, Byron D. Amos, Cynthia Briscoe Brown, Eshé P. Collins, Jason G. Esteves, Leslie Grant, Steven D. Lee, Matt Westmoreland (the “Individual Defendants”) (referred to collectively herein as “Defendants”) hereby respectfully submit the following brief, pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, in Support of Their Motion for Summary Judgment on the Second Amended Complaint [Dkt. 23] filed by Plaintiff Franchesa Akins (“Akins” or “Plaintiff”) and Atlanta Association of Classified Employees (“AACE”) (referred to collectively herein as “Plaintiffs”). ARGUMENT AND CITATION OF AUTHORITY I. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when the “pleadings, depositions, affidavits, declarations, and discovery materials on file demonstrate 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. When the evidence supporting the non-moving party is merely colorable and is not significantly probative, summary judgment is warranted. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). Initially, the movant bears the burden of presenting the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 11 of 47 - 2 - (1986). The burden then shifts to the non-movant to come “forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-movant’s bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Anderson, 477 U.S. at 247-48. II. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S PETITION FOR MANDAMUS. AISS is entitled to judgment as a matter of law on Plaintiff’s mandamus claim because Plaintiff has not and cannot demonstrate that she has a clear right to the requested disciplinary conference before the AISS Board. Because Plaintiff voluntarily abandoned her job and did not experience the requisite “adverse action” necessary to initiate a disciplinary conference under AISS Board Policy, Plaintiff has no clear right to the requested relief and her mandamus claim fails as a matter of law. Mandamus is an extraordinary remedy that, in appropriate circumstances, may be used to compel a public official to perform a required duty. Vrana v. Augusta-Richmond Cnty., 295 Ga. App. 685, 687, 673 S.E.2d 3, 4 (2009). Mandamus relief may only be granted, however, when the petitioner has a clear legal right to the relief sought or the public official has committed a gross abuse of discretion and there is no other legal remedy available. Id. See also Chambers v. Fulford, 268 Ga. 892, 892-93, 495 S.E.2d 6 (1998). Here, despite her assertion that AISS that has a “clear statutory, ministerial, non-discretionary Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 12 of 47 - 3 - duty to implement the specific disciplinary action procedures provided by Board Policy GCB, § 6.2,” [Dkt. 23 ¶ 39] Plaintiff cannot demonstrate a clear legal right to the relief sought. The undisputed facts demonstrate that Plaintiff’s failure to follow AISS and Sutton Middle School (“SMS”) reporting policies for four consecutive days constituted abandonment of her job and a voluntary resignation pursuant to SMS and AISS Board Policy. See Ex. 4, Favors000211; Ex. 5, Favors000342-353. Significantly, the disciplinary conference which Plaintiff seeks to compel pursuant to GCB-R(1) 6.2 only applies to “adverse actions” which are defined as “(1) dismissal; (2) suspension without pay; and (3) demotion.” See id.; See Ex. 51, Hall Dep. Exhibit 52. Voluntary resignation is not included in the definition of “adverse actions.” Accordingly, under the plain language of the policy, Plaintiff has no clear right to a disciplinary conference. Under somewhat analogous circumstances, Georgia courts have held that mandamus may not be used to compel compliance with disciplinary procedures. In Vrana, the plaintiff filed a petition for mandamus, arguing that the County was required to follow its disciplinary procedures, including providing her with due notice and a hearing, before demoting her. Vrana, 295 Ga. App. at 687, 673 S.E.2d at 4. The court determined, however, that because Vrana voluntarily accepted the alleged demotion as a reassignment rather than face the disciplinary action of termination, the County was not required to follow its disciplinary Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 13 of 47 - 4 - procedures for terminating an employee. Id. Furthermore, the human resources director provided testimony that the plaintiff’s voluntary reassignment did not involve a disciplinary action and was not grievable. Id. Thus, in the absence of any personnel provision that would bring a voluntary demotion or reassignment within the disciplinary hearing framework employed by the County, the plaintiff was not entitled to a writ of mandamus compelling the County’s compliance with its disciplinary procedures. See id. Although the plaintiff’s demotion in Vrana was deemed voluntary as a result of the plaintiff’s own affirmative acquiescence, rather than pursuant to a County policy or rule, the court’s reasoning is instructive in this case. Specifically, whether Plaintiff desired to voluntarily resign her position is of no consequence to the Court’s determination. The undisputed fact remains that Plaintiff’s voluntary abandonment of her job is not an adverse action contemplated, either expressly or implicitly, by GCB-R(1) 6.2. Accordingly, Plaintiff has no clear right to a disciplinary conference under the applicable rules, and her mandamus claim must be dismissed as a matter of law. III. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ GORA CLAIM. AISS is entitled to summary judgment on Plaintiffs’ claims under the Georgia Open Records Act (“GORA”), O.C.G.A. § 50-18-71 et seq., because AACE’s GORA claim is barred by the doctrine of res judicata. Furthermore, to the extent Akins intends to bring a GORA claim based upon requests made by AACE, her claim must be dismissed for lack of Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 14 of 47 - 5 - standing. Finally, pretermitting whether Plaintiffs have standing to assert a valid GORA claim, AISS is entitled to judgment as a matter of law because it timely complied with its statutory obligations and has produced all responsive records within its possession. A. AACE’S GORA CLAIM IS BARRED BY THE DOCTRINE OF RES JUDICATA. Count III of Plaintiffs’ Complaint is barred by the doctrine of res judicata because AACE raised the same claim in the Superior Court of Fulton County, and the court dismissed the claim on the merits. In the Eleventh Circuit, res judicata bars a claim whenever (1) a court of competent jurisdiction has (2) rendered a final judgment on the merits in another case involving (3) the same parties and (4) the same cause of action. Shurick v. Boeing Co., 623 F.3d 1114, 1116 (11th Cir. 2010). Prior to the filing of this action, Charles Carey filed a lawsuit on behalf of AACE against AISS in the Superior Court of Fulton County.1 See Ex. 69, Fulton County Superior Court Complaint, No. 2014CV250955. In that suit, AACE alleged GORA violations identical to those asserted in this case. Id. The court ultimately dismissed the suit on the ground that the “Complaint was defective because Mr. Carey is not licensed to practice law in the State of Georgia and thus 1 Atlanta Association of Classified Employees v. Atlanta Independent School System, Civil Action File No. 2014CV250955. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 15 of 47 - 6 - may not file a lawsuit on behalf of a corporation.” See Ex. 70, Final Order, No. 2014CV250955. The court further ordered the Clerk of Court to “mark [the] case as CLOSED.”2 Id. AACE now seeks a second bite at the apple by claiming that the doctrine of res judicata does not bar its GOMA claim because the court’s dismissal of the state court suit did not amount to a dismissal on the merits. [See Dkt. 23 at ¶ 59, fn. 3] However, O.C.G.A. § 9-11-41(b) expressly provides that any dismissal except for failure of the plaintiff to prosecute, lack of jurisdiction, improper venue, or lack of an indispensible party operates “as an adjudication on the merits unless the court in its order for dismissal specifies otherwise.”3 As the Superior Court’s order on AACE’s GOMA claim did not specify otherwise, the dismissal operates as an adjudication on the merits barring the re-litigation of Plaintiffs’ GOMA claim here. B. AKINS LACKS STANDING TO BRING A CLAIM UNDER GORA. Furthermore, to the extent Akins intends to bring a GORA claim based upon requests made by AACE, her claim must be dismissed for lack of standing. At no point in the GORA requests at issue did AACE represent that the GORA requests were made on Akins’ behalf. 2 This Court may take judicial notice of pleadings and other documents filed in the State Court action filed by AACE against AISS. Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1076 at n. 9 (11th Cir. 2013). 3 Fed. R. Civ. P. 41(b) likewise provides that any involuntary dismissal except for “lack of jurisdiction, improper venue, or failure to join a party … operates as an adjudication on the merits” unless the dismissal order states otherwise. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 16 of 47 - 7 - Accordingly, Akins has no standing to bring claims under GORA as any other result would permit her to “enforce requests interposed by other persons.” Sampson v. Ga. Dep’t of Juvenile Justice, 328 Ga. App. 733, 735, 760 S.E.2d 203, 205-06 (2014) (noting that “no existing law permitted a ‘derivative’ prosecution of an Open Records Act Request”). C. AISS TIMELY RESPONDED TO PLAINTIFFS’ GORA REQUESTS AND PRODUCED ALL REPONSIVE RECORDS IN ITS POSSESSION. AISS is also entitled to summary judgment on Plaintiffs’ claims under GORA because it timely complied with its statutory obligations and has produced all responsive records within its possession to Plaintiffs. Plaintiffs claim that AISS is in violation of the GORA because it failed to produce a July 23, 2014 voicemail from Plaintiff to Jacqueline Middlebrooks and a July 24, 2014 voicemail from Plaintiff to SMS within three business days of AACE’s August 26, 2014 GORA request and September 10, 2014 GORA request, respectively. [Dkt. 23, ¶¶56, 61-62, 65] However, Plaintiffs’ claims are without merit because AISS responded to each of Plaintiffs’ GORA requests within three business days and has produced the responsive records in its possession.4 4 Notably, this Court has already determined that AISS timely responded to Plaintiffs’ GORA requests. [See Dkt. 14 at 25] The GORA provides that a response is required “three business days after receipt of a request.” O.C.G.A. § 50-18-71(b)(1)(A) (emphasis added). Thus, the three business day period begins the first business day after the business day on which the request is received, excluding intervening weekends and/or legal holidays. See O.C.G.A. § 1-3-1(d)(3) (“. . . when a period of time is measured in days . . . the first day shall not be counted . . . .”). Under this method of calculation, both of AISS’s responses to Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 17 of 47 - 8 - Plaintiffs appear to base their GORA claim upon the erroneous contention that AISS violated the Act by failing to produce requested voicemails that are not in AISS’s possession. However, the GORA “places no duty on an officer or agency to create a record, but ‘concerns itself only with the records which a public body actually creates.’” Schulten, Ward & Turner, LLP v. Fulton-DeKalb Hosp. Auth., 272 Ga. 725, 726, 535 S.E.2d 243, 245 (2000) (quoting Hoffman v. Bay City Sch. Dist., 357 N.W.2d 686. 689 (1984)). As a result, “the failure to furnish non-existent records does not constitute a denial of a request for access to public records.” Schulten, 272 Ga. at 727, 535 S.E.2d at 246. Thus, in the absence of any evidence that AISS is in possession of, but failed to produce, requested records, Plaintiffs’ GORA claim must be dismissed. In the instant case, AISS has already informed Plaintiffs that it has been unable to locate any records responsive to AACE’s request for a July 23, 2014 voicemail Plaintiff purportedly left for Jacqueline Middlebrooks. Ex. 43, Open Records Email Exchange (AISS0001565; 0001593-1595). AISS produced the July 24, 2014 voicemail in its supplemental responses to Plaintiffs’ discovery requests. See Ex. 44, Akins 8:01 a.m. July 24, 2014 voicemail (AISS0002133); Ex. 64, Akins’ July 24, 2014 voicemail transcript Plaintiffs’ Tuesday, August 26, 2014 and Thursday, September 11, 2014 GORA requests on Friday August 29, 2014 and Tuesday, September, 16, 2014, respectively, were timely. [See Dkt. 23, ¶¶ 53, 57, 62-63] Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 18 of 47 - 9 - (AISS_0002135)5 Therefore, AISS has satisfied its obligations, and Plaintiffs have no basis for a GORA claim against AISS for failure to produce responsive documents within its possession. IV. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ GOMA CLAIM. This Court should grant summary judgment in favor of AISS on Plaintiffs’ claim for violation of the Georgia Open Meetings Act (“GOMA”), O.C.G.A. § 50-14-1et seq. because Plaintiffs’ claim is statutorily time-barred to the extent it is based upon violations which occurred more than ninety (90) days prior to the filing of this action on May 20, 2015. AISS is also entitled to summary judgment on Plaintiffs’ GOMA claim because it has satisfied all of its statutory publication and meeting obligations. Additionally, to the extent Plaintiffs 5 Significantly, AISS only produced the July 24, 2016 voicemail during the discovery period because Plaintiff’s initial GORA request was flawed in that it requested a voicemail at a time different from when Plaintiff’s actual voicemail was made. Specifically, on September 10, 2014, Plaintiffs made a request for a copy of Akins’ alleged voice message recording that was made to Sutton Middle School at 4:59 a.m. on July 24, 2014. See Ex. 63, Email from Charles Carey to Kent Johnson, dated September 10, 2014 (AISS 0001568-1573). On September 16, 2014, AISS issued a response indicating, “All efforts have been taken to locate records responsive to your request…however no records currently exist within the district.” See Id. AISS encouraged Plaintiffs to amend the request in order to broaden the search for any voicemails left by Akins on July 24, 2014. Id. Carey never amended his request at Johnson’s suggestion. Id. Despite Carey’s failure to amend his open records’ request, APS produced to Carey and Akins a copy of Akins’ July 24, 2014 voicemail that was left at 8:01 a.m. Accordingly, the erroneous specificity of Plaintiff’s GORA request inhibited AISS’s ability to locate the requested voicemail. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 19 of 47 - 10 - seek civil penalties against AISS for alleged violations of GOMA, Plaintiffs’ claim is without merit as O.C.G.A. § 50-14-6 does not permit such an award against a governmental entity. Likewise, to the extent Plaintiffs claim entitlement to attorney’s fees based upon Defendants’ nonexistent violations of the GOMA, their claim fails as a matter of law. A. PLAINTIFF’S GOMA CLAIM IS TIME-BARRED. Plaintiffs’ GOMA claim is time-barred to the extent it alleges violations which occurred outside the 90-day statute of limitation. The GOMA requires an individual who alleges a violation of the statute to contest the alleged unlawful action within 90 days from the date that she knew or should have known about the alleged violation. See O.C.G.A. § 50-14-1(b)(2). Failure to contest an alleged violation within this 90-day statutory period is fatal to a claim under GOMA. Tisdale v. City of Cumming, 326 Ga. App. 19, 22, 755 S.E.2d 833, 835 (2014). Here, Plaintiffs did not contest any of the alleged unlawful action under GOMA until they sought leave to file their First Amended Complaint on May 20, 2015.6 [Dkt. 11] Accordingly, any claim based on alleged violations between September 24, 2014 and February 18, 2015 is statutorily time-barred.7 6 Plaintiffs Original Petition for Writ of Mandamus and Civil Complaint did not include claims under GOMA. [See generally Dkt. 1-1] 7 Based on a comparison of Plaintiffs’ First Amended Complaint and Second Amended Complaint, it appears that Plaintiffs improperly amended and attempted to expand the scope of their GOMA claims without obtaining leave to do so. In Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 20 of 47 - 11 - B. AISS COMPLIED WITH GOMA’S PUBLICATION REQUIREMENTS. AISS is also entitled to judgment as a matter of law on Plaintiffs’ GOMA claim because it complied with the publication requirements of O.C.G.A. § 50-14-1(e)(2). AISS published on its website a summary of the actions taken at each of its legislative meetings held between September 2014 and June 2015 within two business days of adjournment. See Ex. 11, Kaye Dep. 31:21-22, 86:15-16, 132:15-16, 153:25-154:1. AISS also published on its website an agenda in advance of each of the aforementioned legislative meetings. See Ex. 11, Kaye Dep. 119:17-120:3. Thus, AISS complied with the publication requirements of the GOMA.8 Finally, with respect to Plaintiffs’ claim that AISS violated O.C.G.A. § 50-14-1(e)(1) when it discussed or acted upon items not included on the agenda for its legislative sessions, their First Amended Complaint, Plaintiffs allege that the “Board held thirteen (13) public meetings where action was taken” since “September 24, 2014.” [Dkt. 11-3 at ¶71] Yet in their Second Amended Complaint, Plaintiffs claim Defendants violated GOMA “fourteen (14) times.” [Dkt. 23 at ¶75]. Although the Court permitted Plaintiffs to file a Second Amended Complaint, it did not grant Plaintiffs leave to amend their GOMA claim. [Dkt. 21 at p. 12] Accordingly, to the extent Plaintiffs allege facts or additional claims under GOMA that were not included in their First Amended Complaint, those claims are procedurally defective and should be dismissed. 8 Also, to the extent Plaintiffs claim a violation of the GOMA’s publication requirements against the Individual Defendants, Plaintiffs’ claim fails as a matter of law because the undisputed evidence shows that the Individual Defendants have no role in the publication of agendas or meeting summaries. See Ex. 11, Kaye Dep. pp., 154:17-155:2. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 21 of 47 - 12 - the statute provides the AISS Board with discretion to consider necessary business which may extend beyond the bounds of the proposed agenda: “[f]ailure to include on the agenda an items which becomes necessary to address during the course of a meeting shall not preclude considering and acting upon such item.” O.C.G.A. § 50-14-1(e)(1). Thus, to the extent Plaintiffs claim that AISS violated GOMA by discussing items not included on the agenda for its legislative meetings, this contention is baseless.9 C. PLAINTIFFS ARE NOT ENTITLED TO AN AWARD OF CIVIL PENALTIES AGAINST AISS. Even assuming arguendo that Defendants violated GOMA, which Defendants explicitly deny, there is no legal basis for Plaintiffs to seek civil penalties against AISS because O.C.G.A. § 50-14-6 does not permit a court to award civil penalties against a governmental entity. O.C.G.A. § 50-14-6 provides, in pertinent part, as follows: “[A] civil penalty may be imposed by the court in any civil action brought pursuant to this chapter against any person who negligently violates the terms of this chapter. . .” (emphasis added). In interpreting this provision, Georgia courts have held that a governmental entity is not a “‘person subject to imposition of civil penalties pursuant to O.C.G.A. § 50-14-6.” Gravitt v. Olens, 333 Ga. App. 484, 493, 774 S.E.2d 263, 272 (2015). See also Lue v. Eady, 9 Significantly, there is no competent evidence that the Board discussed or deliberated upon any matters that were not included on the agendas. See Ex. 13, Declaration of Rebecca Kaye ¶¶ 7, 9. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 22 of 47 - 13 - 297 Ga. 321, 333, 773 S.E.2d 679, 688-89 (2015). Accordingly, Plaintiffs’ claim for civil penalties against AISS is unavailable under § 50-14-6. D. PLAINTIFFS ARE NOT ENTITLED TO AN AWARD OF ATTORNEY’S FEES UNDER GOMA. Likewise, to the extent Plaintiffs claim entitlement to attorney’s fees based upon Defendants’ nonexistent violations of the GOMA, their claim fails as a matter of law. Attorney’s fees are warranted only where an agency acted “without substantial justification” in not complying with the GOMA. O.C.G.A. § 50-14- 5(b). Acting without substantial justification under GOMA has been defined as “substantially frivolous, substantially groundless, or substantially vexatious.’” Claxton Enters. v. Evans County Bd. of Comm’rs, 249 Ga. App. 870, 877, 549 S.E.2d 830, 837 (2001). Here, in the absence of any evidence that Defendants acted without substantial justification in their purported noncompliance with the GOMA, Plaintiffs are not entitled to an award of attorney’s fees. V. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S FAMILY AND MEDICAL LEAVE ACT INTERFERENCE CLAIM BECAUSE PLAINTIFF WAS AFFORDED AND EXERCISED EVERY PROTECTION AUTHORIZED UNDER THE FAMILY AND MEDICAL LEAVE ACT. AISS is entitled to summary judgment on Plaintiff’s Family and Medical Leave Act (“FMLA”) interference claim because Plaintiff cannot prove that she was denied a benefit to which she was entitled. The FMLA provides eligible employees the right to take up to 12 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 23 of 47 - 14 - weeks of unpaid leave per year for various medical-related reasons and to be reinstated to their same or equivalent positions after taking that leave. See 29 U.S.C. §§ 2612, 2614. To establish a prima facie case for an FMLA interference claim, an employee must demonstrate by the preponderance of the evidence that she was entitled to a benefit and was subsequently denied. Edwards v. Nat’l Vision, Inc., 568 Fed. App’x. 854, 860 (11th Cir. 2014). In the absence of evidence that AISS did not afford Plaintiff the benefits of FMLA leave, her interference claim fails as a matter of law. Here, Plaintiff alleges that AISS interfered with her FMLA leave “when Sofianos improperly considered her exercise of FMLA leave in the hiring and/or promotion process to fill the vacant School Secretary position and when she negatively commented on Ms. Akins FMLA leave.” [Dkt. 23, ¶91]. However, Plaintiff does not allege she was prevented from taking her requested leave. In fact, Plaintiff concedes in her complaint that she utilized FMLA leave from a period beginning in January 2014 through April 21, 2014. [Id. at ¶¶ 88, 90] Moreover, Plaintiff does not allege or set forth any evidence that her job title, job classification, salary, or benefits were altered upon her return from FMLA leave. Because she cannot establish that she was denied any benefit under the FMLA, Plaintiff instead seeks damages for alleged statements made regarding her medical leave. But purported negative remarks regarding Plaintiff’s FMLA leave are insufficient as a matter of law to support a claim for FMLA interference. See, e.g., Bender v. City Clearwater, No. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 24 of 47 - 15 - 8:04-CV-1929-T23EAJ, 2006 U.S. Dist. LEXIS 101436, at *32-33 (M.D. Fla. April 19, 2006) (granting summary judgment for the defendant and reasoning that seizing an employee’s computer, denying her access to email, ordering other employees not to contact her, discussing her leave with other employees, questioning the sincerity of her absence, and delaying the process of her disability claim forms did not interfere with the employee’s rights to take FMLA leave nor her ability to return to work after her approved leave). See also McKinzie v. Sprint/United Mgmt. Co., No. 03-2348-GTV, 2004 U.S. Dist. LEXIS 23417, at *19 (D. Kan. Nov. 16, 2004) (sarcastic and derogatory remarks by employer about plaintiff taking time off for FMLA leave did not establish interference claim). Moreover, the Eleventh Circuit and other courts have held that an employee cannot sustain an interference claim when she did not suffer any actual prejudice. Seguin v. Marion Cnty. Health Dept., No. 5:13-96-0c-10prl, 2014 WL 3955162, *10 (M.D. Fla. Aug. 13, 2014) (citing Demers v. Adams Homes of Nw. Fla., Inc., 321 Fed. App’x. 847 (11th Cir. Mar. 20, 2009)) (affirming summary judgment for employer where employee failed to articulate any harm or prejudice by the purported FMLA violation). Here, Plaintiff has not articulated an actual harm suffered consequent to AISS’s alleged interference. Therefore, Plaintiff’s failure to demonstrate that she was denied a benefit to which she was entitled is fatal to her claim. See Rossi v. Fulton Cnty., No. 1:10-CV-4254-RWS-AJB, 2013 U.S. Dist. LEXIS 44780, at *50 (N.D. Ga. Feb. 11, 2013) (recommending summary judgment in favor Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 25 of 47 - 16 - of defendant on plaintiff’s FMLA interference claim when it was undisputed that the plaintiff received all leave requested and plaintiff could not show that she suffered any prejudice as a result of defendant’s purported interference with her FMLA rights); Worst v. Glynn Cnty. School Dist., No. civ-210-137, 2012 WL 1068135, *5-6 (S.D. Ga. Mar. 29, 2012) (same). VI. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S FAMILY AND MEDICAL LEAVE ACT RETALIATION CLAIM. This Court should grant summary judgment in favor of AISS on Plaintiff’s FMLA retaliation claim because she did not suffer any adverse employment action and cannot establish causation. To establish a prima facie case of FMLA retaliation, an employee must show that: “(1) she engaged in activity protected by the FMLA; (2) she suffered an adverse employment decision; and (3) the decision was causally related to the protected activity.” Hawkins v. BBVA Compass Bancshares, Inc., 613 F. App’x 831, 840 (11th Cir. 2015). A. PLAINTIFF CANNOT ESTABLISH THAT SHE SUFFERED AN ADVERSE EMPLOYMENT ACTION. Plaintiff’s retaliation claim fails as a matter of law because she cannot establish that she suffered any adverse employment action. Plaintiff claims that she was retaliated against when she was allegedly (1) moved from an office area and placed in a hallway [Dkt. 23, ¶94], and (2) purportedly terminated at the beginning of the 2014-15 school year. [Dkt. 23, ¶96] However, the undisputed Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 26 of 47 - 17 - facts demonstrate that Plaintiff was never terminated, but in fact abandoned her job by failing to report to work for four consecutive days. Thus, Plaintiff’s alleged “termination” cannot support a claim for FMLA retaliation.10 Furthermore in the absence of any evidence that AISS’s alleged relocation of Plaintiff from one part of the building to another affected the terms and conditions of her job, Plaintiff has not suffered any adverse employment action sufficient to sustain a claim of FMLA retaliation. Although an employer’s conduct short of termination may constitute an adverse employment action, it must reach a “threshold level of substantiality.” Bender, 2006 U.S. Dist. LEXIS 101436, at *36. The Eleventh Circuit has emphasized that to demonstrate an adverse employment action, an employee must show a “serious and material change[ ]” in the terms, conditions or privileges of employment in a real and demonstrable way.” Id. (quoting Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001)). Consequently, a transfer from one location in a building to another location does not constitute an adverse 10 Additionally, any contention that Plaintiff was terminated is belied by the fact that AISS Chief Human Resources Officer Pamela Hall offered to assist Plaintiff with finding other employment with AISS if she was willing to go through the formal interview process. See Ex. 52, Hall Dep. Exhibit 56; see also Ex. 38, Pamela Hall Dep. pp. 238:3-240:13. However, Akins’ AACE representative, Charles Carey, demanded that Akins be reinstated to a school with a black principal without going through the formal interview process. See id. Being unable to acquiesce to Carey’s demands, Pamela Hall had no further communication with Carey or Akins regarding Akins’ reinstatement after Carey made his demands. See Ex. 38, Hall Dep. pp. 239:2-20. Thus, Plaintiff did not experience any “termination” as a result of her FMLA leave. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 27 of 47 - 18 - employment action if it is not accompanied by a material change in the terms and conditions of employment such as a reduction in pay or loss of benefits. See Redding v. Tuggle, No. 1:05-CV-2899-WSD-LTW, 2007 U.S. Dist. LEXIS 67853, at *81 (N.D. Ga. July 11, 2007). See also Whitehead v. Norfolk Southern Ry. Co., 53 F. Supp. 2d 1380, 1382-83 (M.D. Ga. 1999) (holding that plaintiff’s transfer from the north end to the south end of the yard did not constitute adverse employment action); Cargile v. Horton Homes, 851 F. Supp. 1575, 1578 (M.D. Ga. 1994) (same). Because there is no evidence that Plaintiff’s alleged relocation from an office to a desk in the lobby to assist with registration activities affected the terms and conditions of her employment, Plaintiff has not suffered an adverse employment action sufficient to support her claim for FMLA retaliation. Plaintiff also claims that her relocation constituted retaliation because it was a specific measure to “target, humiliate, ridicule, and isolate her.” [Dkt. 23, ¶94] However, courts have generally held that “shunning or ostracism by co-workers and supervisors is insufficient to sustain a retaliation claim.” Bozeman v. Per-Se Techs., Inc., 456 F.Supp.2d 1282, 1345 (N.D. Ga. 2006). Purported humiliation unaccompanied by a loss of pay or benefits does not amount to an adverse employment action. Id. at 1343. “A bruised ego is not enough.” Id. Accordingly, Plaintiff’s hurt feelings and subjective belief that she was retaliated against are inadequate as Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 28 of 47 - 19 - a matter of law to sustain her FMLA retaliation claim. See, e.g., Pier v. Advance/Newhouse P’ship, No. 8:13-CV-1052-T-33TGW, 2014 U.S. Dist. LEXIS 39535, at *29 (M.D. Fla. Mar. 5, 2014) (plaintiff’s speculation that “Defendant grew weary of Plaintiff’s need for and actual use of FMLA leave” did not create genuine issue of material fact on retaliation claim in absence of factual basis for contention); Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999) (A “plaintiff’s subjective feelings about [an employer’s] actions . . . are not determinative.”). B. PLAINTIFF CANNOT DEMONSTRATE ANY CAUSAL CONNECTION BETWEEN HER PURPORTED STATUTORILY PROTECTED ACTIVITY AND ANY ADVERSE EMPLOYMENT ACTION. The causal connection element is satisfied if a plaintiff shows that the protected activity and adverse action were “not wholly unrelated.” Brungart v. BellSouth Telecommc’ns, Inc., 231 F.3d 791, 799 (11th Cir. 2000). Generally, a plaintiff can show the two events are not wholly unrelated if there is a close temporal proximity between the protected conduct and the termination, and the decision maker was aware of the protected conduct at the time of the adverse employment action. Clover v. Totally Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999). Generally speaking, the temporal proximity between the protected conduct and adverse action must be very close; a three-month proximity is insufficient to establish causation on an FMLA retaliation claim. Drago v. Jenne, Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 29 of 47 - 20 - 453 F.3d 1301, 1308 (11th Cir. 2006). See also Wascura v. City of S. Miami, 257 F.3d 1238, 1248 (11th Cir. 2001). “The requirement that the decision maker must be aware of the protected conduct at the time of the adverse employment action rests upon common sense.” Pier, 2014 U.S. Dist. LEXIS 39535, at *27. Therefore, ‘“[a] decision maker cannot have been motivated to retaliate by something unknown to him.’” Id. (internal quotation omitted) (notwithstanding close temporal proximity between the protected conduct and the termination, summary judgment was warranted on a retaliatory discharge claim because the plaintiff “failed to present sufficient evidence . . . that [the decision maker] was aware of her protected conduct.”)). Furthermore, knowledge of protected activity by employees of the defendant other than a decision maker cannot be imputed to the decision maker for purposes of an FMLA retaliation claim. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010). In this case, nearly seven months elapsed between when Plaintiff first took her FMLA leave and when she was separated from AISS for job abandonment. Nearly four months elapsed between Plaintiff’s alleged April 24, 2014 complaint11 11 Interestingly, Plaintiff only presented her alleged April 24, 2014 “complaint” to AISS after she voluntarily abandoned her job in August 2014. See Ex. 38, Hall Dep. 137:7-25; Ex. 54, Declaration of Pamela Hall ¶ 7. Plaintiff has not and cannot set forth any evidence demonstrating that an AISS representative received her April 24, 2014 complaint prior to Plaintiff abandoning her job. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 30 of 47 - 21 - regarding FMLA leave and her separation from AISS in August 2014. Accordingly, the temporal proximity between Plaintiff’s protected activity and the alleged adverse employment actions is insufficient to establish causation on her FMLA retaliation claim. Plaintiff’s prima facie case is also fatally flawed because, even assuming arguendo that AISS terminated Plaintiff and she did not voluntarily abandon her job, there is no evidence that the ultimate decisionmaker, Chief Human Resources Officer Pamela Hall, was aware of Plaintiff’s statutorily protected conduct at the time of her separation from AISS in August 2014. See Ex. 54, Declaration of Pamela Hall ¶¶ 6-9. Consequently, AISS is entitled to summary judgment on Plaintiff’s FMLA retaliation claim. VII. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S WHISTLEBLOWER CLAIMS. This Court should grant summary judgment in favor of AISS on Plaintiff’s whistleblower claims because she cannot establish a prima facie case of retaliation. To establish a claim of retaliation under O.C.G.A. § 45-1-4(d)(2), the employee must present evidence that (1) the employer falls under the statute’s definition of “public employer”; (2) the employee disclosed “a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency”; (3) the employee was then discharged, suspended, demoted, or suffered some other adverse employment decision by the public employer; and (4) there is some causal Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 31 of 47 - 22 - relation between the disclosure and the adverse employment actions. Forrester v. Ga. Dep’t of Human Servs., 308 Ga. App. 716, 721, 708 S.E.2d 660, 665 (2011) (physical precedent only). For the purposes of Plaintiff’s whistleblower claim, AISS does not dispute that it is a public employer. However, Plaintiff did not disclose a violation of or noncompliance with a law, has not suffered any adverse employment action, and cannot demonstrate a causal connection between her alleged disclosures and any purported adverse employment action. A. PLAINTIFF DID NOT DISCLOSE A VIOLATION OF OR NONCOMPLIANCE WITH A LAW, RULE, OR REGULATION. In the instant case, Plaintiff cannot establish a prima facie case of retaliation because she did not disclose a violation of or noncompliance with a law, rule, or regulation. Plaintiff alleges that as a result of complaints made in January 2014, April 2014 and July 2014 AISS retaliated against her when it “allegedly degraded, humiliated, ridiculed, harassed, discriminated, unfairly targeted, and verbally abused her . . . moved her in the hallway with just a desk and chair, and when it ultimately terminated her on or about August 13, 2014.” [Dkt. 23, ¶¶106-07]. However, AISS’s Chief Human Resources Officer only received copies of Plaintiff’s alleged January 2014 and April 2014 “complaints” after Plaintiff was separated from AISS for voluntarily abandoning her job in August 2014. See Ex. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 32 of 47 - 23 - 38, Hall Dep. 137:7-25. And Plaintiff has not presented any evidence that these complaints were transmitted to anyone at AISS prior to the voluntary abandonment of her job in August 2014.12 Moreover, Plaintiff’s January 2014 “complaint” merely details Plaintiff’s personal concerns and disappointment over not being selected for a secretary position at Sutton Middle School. Such statements do not constitute disclosure of a violation or noncompliance with a law, rule, or regulation sufficient to sustain a claim under O.C.G.A. § 45-1-4(d)(2). See, e.g., Forrester, 308 Ga. App. at 724, 708 S.E.2d at 667 (granting defendant’s motion for summary judgment on whistleblower claim as disclosure of personal concerns did not constitute disclosure of a violation of or noncompliance with a law, rule, or regulation under whistleblower statute); Edmonds v. Bd. of Regents, 302 Ga. App. 1, 13, 689 S.E.2d 352, 357 (2009) (plaintiff’s “safety concerns” did not constitute disclosure of a violation of laws, rules, or regulations). As Plaintiff has failed to present any evidence that she disclosed a violation of or noncompliance with a law, rule, or 12 Perplexingly, even after submitting her January 2014 and April 2014 “complaints” to AISS in August 2014, Plaintiff refused to respond to invitations from AISS to discuss her claims as a part of its internal investigation. See Ex. 38, Hall Dep. 38:1-7; 252:12-25; see also Ex. 57, Hall Dep. Ex. 44. As a result, the AISS Internal Compliance Investigation Division closed Plaintiff’s case. See id. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 33 of 47 - 24 - regulation in January 2014 or April 2014, her whistleblower claim fails as a matter of law. B. PLAINTIFF DID NOT SUFFER AN ADVERSE EMPLOYMENT ACTION. Plaintiff also cannot establish a prima facie case of retaliation because she has not suffered an adverse employment action. As explained supra, AISS did not terminate Plaintiff. Plaintiff voluntarily abandoned her job. Moreover, Plaintiff’s relocation from a private office to a desk in the lobby does not constitute an adverse employment action, no matter how embarrassed or inconvenienced Plaintiff may have been. “Employees are not immunized from the ‘petty slights’ or ‘minor annoyances’ that all workers experience.” Cobb v. City of Roswell, 533 F. App’x 888, 896 (11th Cir. 2013) (plaintiff’s claim that having to return his gun upon retirement unlike his predecessors was “humiliating” and “degrading” did not constitute adverse employment action under O.C.G.A. § 45-1-4(d)(2)). To establish an adverse employment action, “[a] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, meaning that it might well have dissuaded a reasonable employee from making [the statutorily- protected disclosure].” Freeman v. Smith, 324 Ga. App. 426, 433, 750 S.E.2d 739, 744 (2013) (quoting Cobb, 533 Fed. Appx. at 888)). “The actionable employer conduct must be ‘significant,’ rather than ‘trivial.’” Id. As Plaintiff has failed to Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 34 of 47 - 25 - demonstrate that her relocation was anything more than subjectively embarrassing, she has not suffered an adverse employment action, and her whistleblower claim fails as a matter of law. C. PLAINTIFF CANNOT PROVE A CAUSAL CONNECTION BETWEEN HER DISCLOSURES AND ANY ADVERSE EMPLOYMENT ACTION. In order to survive summary judgment, the plaintiff must establish that there was a causal connection between her protected disclosures and the adverse employment action. Forrester, 308 Ga. App. at 725, 708 S.E.2d at 668. “A plaintiff can establish such a causal connection by showing that the decision-maker was aware of the protected disclosure and that the disclosure and action were not wholly unrelated.” Id. In this respect, some cases accept temporal proximity between an employer’s knowledge of protected activity and adverse employment action as sufficient evidence of causality to establish a prima facie case. Id. at 726, 708 S.E.2d at 669. However, “mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case . . . must be very close.” Freeman v. Smith, 324 Ga. App. 426, 431, 750 S.E.2d 739, 743 (2013). If there is a three to four month disparity between the statutorily protected expression and the adverse employment action, the plaintiff must offer additional evidence to establish Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 35 of 47 - 26 - causation. Id. Here, even if Plaintiff suffered an adverse employment action, she cannot establish causation between her disclosures and the alleged adverse employment action. 1. JANUARY 2014 COMPLAINT With respect to Plaintiff’s alleged January 2014 complaint, the purported adverse employment action involving Plaintiff’s relocation from a private office to a desk in the lobby occurred nearly four months later in May 2014. Additionally, Plaintiff’s separation from AISS occurred nearly seven months after the January 2014 complaint in August 2014. Thus, Plaintiff has not demonstrated the requisite temporal proximity to establish any causation between her January 2014 complaint and her alleged adverse employment actions. Additionally, there is no evidence that AISS Chief Human Resources Officer Pamela Hall, who provided Plaintiff with a letter of determination that she had abandoned her job duties, was aware of Plaintiff’s alleged January 2014 complaint. In the absence of any evidence that the decisionmaker regarding Plaintiff’s purported termination knew about her complaint, Plaintiff cannot establish the causation element of her retaliation claim. See, e.g., Forrester, 308 Ga. App. at 729, 708 S.E.2d at 670 (granting defendants summary judgment on whistleblower claim when plaintiffs presented no evidence other than “mere guesses and Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 36 of 47 - 27 - speculation” that the actual decisionmaker regarding their termination knew about their disclosures); Freeman, 324 Ga. App. at 433, 750 S.E.2d at 744 (same). 2. APRIL 2014 COMPLAINT Plaintiff also cannot establish causation between her purported April 2014 complaint and any adverse employment actions. As discussed above, Plaintiff’s separation from AISS occurred nearly four months after her alleged April 2014 complaint. Therefore, Plaintiff cannot rely upon temporal proximity to demonstrate causation between the supposed April 2014 complaint and her alleged “termination.” Additionally, there is no evidence that Pamela Hall, the decisionmaker regarding Plaintiff’s job abandonment in August 2014, was aware of Plaintiff’s April 2014 complaint. With regard to Plaintiff’s relocation from a private office to a desk in the lobby, Plaintiff has not alleged or set forth any evidence demonstrating that Principal Sofianos was aware of Plaintiff’s April 2014 complaint when she made the decision to relocate Plaintiff on May 19, 2014. See Ex. 19, Declaration of Audrey Sofianos ¶ 12. Thus, in the absence of evidence that the person who took the purported adverse employment action knew of Plaintiff’s disclosure, Plaintiff’s whistleblower claim fails as a matter of law. See Freeman, 324 Ga. App. at 433, 750 S.E.2d at 744. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 37 of 47 - 28 - 3. MAY 2014 COMPLAINT Although not alleged in her complaint, on May 21, 2014, Plaintiff emailed AISS Director of Schools Dr. Sidney Baker regarding alleged retaliation as a result of previous complaints. See Ex. 37, Akins Dep. Exhibit 10. However, to the extent Plaintiff intends to rely upon her May 2014 complaint to support a claim under O.C.G.A. § 45-1-4(d)(2), Plaintiff cannot demonstrate the requisite causation. As discussed above, Plaintiff’s separation from AISS occurred nearly three months after her May 2014 complaint. This three-month delay between her alleged disclosure and any adverse employment action is insufficient to establish the causation element of her whistleblower claim. See Freeman, 324 Ga. App. at 431, 750 S.E.2d at 743. Moreover, there is no evidence that decisionmaker Pamela Hall was aware of Plaintiff’s May 2014 complaint at the time of Plaintiff’s separation in August 2014. 4. JULY 28, 2014 COMPLAINT Plaintiff also cannot demonstrate any causation between her purported July 28, 2014 complaint and her claimed termination. Plaintiff claims that on July 28, 2014, she submitted a complaint to AISS Human Resources employee Rick Beaulieu regarding Principal Greene’s allegedly “unprofessional, intimidating, and Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 38 of 47 - 29 - rude behavior.”13 [Dkt. 24-1, 27¶] However, there is no evidence that Pamela Hall was aware of Plaintiff’s July 28, 2014 complaint at the time Hall determined that Plaintiff had voluntarily abandoned her job on August 13, 2014. In the absence of any evidence that the decisionmaker regarding Plaintiff’s separation knew about her complaint, Plaintiff cannot establish causation on her whistleblower claim. See, e.g., Forrester, 308 Ga. App. at 729, 708 S.E.2d at 670. VIII. AKINS’ FMLA RETALIATION AND WHISTLEBLOWER CLAIMS ARE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL. This court should also grant summary judgment in favor of Defendants on Plaintiffs’ FMLA retaliation and whistleblower claims because the reason for Akins’ separation from AISS has already been litigated. Upon her separation from AISS, Akins filed a claim for unemployment benefits with the Georgia Department of Labor (GDOL). The GDOL Administrative Hearing Officer denied Akins’ unemployment benefits on the basis that she was separated for failure to obey employer rules for reporting absences and was therefore disqualified from receiving unemployment benefits pursuant to O.C.G.A. § 34-8-194(2)(A). See Ex. 13 As discussed previously, to the extent Plaintiff complained about Principal Greene’s allegedly, “unprofessional, intimidating, and rude behavior,” such statements regarding her personal concerns do not constitute the disclosure of a “violation of or noncompliance with a law, rule, or regulation” sufficient to sustain a claim of retaliation under the whistleblower statute. See, e.g., Forrester, 308 Ga. App. at 724, 708 S.E.2d at 667. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 39 of 47 - 30 - 59, DOL Administrative Hearing Officer Decision (AISS-0002216-2220). The Administrative Hearing Officer’s decision was affirmed by the GDOL Board of Review and the Fulton County Superior Court. See Ex. 60, DOL Board of Review Decision (AISS-0002221-2222); Ex. 61, Final Order of Fulton County Superior Court, Civil Action No. 2015CV267059. Accordingly, that Akins was separated from APS for failure to follow absence reporting procedures has been well litigated, and Akins’ claim that she was purportedly terminated for unlawful, retaliatory reasons is barred by collateral estoppel. “Under 28 U.S.C. § 1738, federal courts must give preclusive effect to the judgment of a state court whenever the courts of the state from which the judgment emerged would do so, providing that the litigant has a ‘full and fair opportunity’ to litigate their claims and the prior state proceedings satisfied the applicable requirements of due process.’” Hale v. Mingledorff, No. 2:13-CV-00228-RWS- JCF, 2014 U.S. Dist. LEXIS 171593, at *19 (N.D. Ga. Nov. 7, 2014). In considering whether to give preclusive effect to a state court judgment under collateral estoppel, “the federal court must apply the rendering state’s law of preclusion.” Id. In Georgia, the collateral estoppel doctrine precludes the re-adjudication of an issue that has been previously litigated and adjudicated on the merits in another Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 40 of 47 - 31 - action between the same parties or their privies. See O.C.G.A. § 9-12-40. Georgia courts have held that “[a] judicial decision based on administrative benefit hearing that determines the reasons for an employee’s termination precludes re-litigation of the causality issue in subsequent proceedings.” Shields v. BellSouth Adver. & Publ’g Corp., 273 Ga. 774, 778, 545 S.E.2d 898, 901 (2001). See also Sadler v. Franklin Cnty. Sch. Dist., No. 3:10-CV-26(CDL), 2011 U.S. Dist. LEXIS 85482, at *21-22 (M.D. Ga. Aug. 3, 2011) (discrimination claim was barred by superior court’s judgment affirming termination for cause under Fair Dismissal Act). Furthermore, the prior state court proceedings provided Akins with a full and fair opportunity to litigate her claims and satisfied the applicable due process requirements. See Shields v. BellSouth Adver. & Publ’g Co., 228 F.3d 1284, 1288-89 (11th Cir. 2000) (finding that Georgia’s unemployment benefits compensation scheme provided the plaintiff “a ‘full and fair opportunity’ to pursue his wrongful termination claims”). Thus, under Georgia law, the Superior Court’s denial of Akins’ unemployment benefits for failure to follow absence reporting procedures precludes her recovery on claims alleging she was discharged as a result of unlawful retaliation. See, e.g., Langton v. Dep’t of Corr., 220 Ga. App. 445, 445, 469 S.E.2d 509, 510 (1996) (superior court decision affirming the denial of unemployment benefits prevented plaintiff from bringing wrongful termination Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 41 of 47 - 32 - claims); Shields v. BellSouth Adver. & Publ’g Co., 273 Ga. 774, 774, 545 S.E.2d 898, 899 (2001) (collateral estoppel barred a discriminatory discharge claim where, following an administrative hearing, a Georgia superior court determined that an employee was terminated for violating company rules). See also Petty v. United Plating, Inc., No. CV-09-S-1465-NE, 2012 U.S. Dist. LEXIS 75355, at *54 (N.D. Ala. May 31, 2012) (collateral estoppel barred plaintiff’s failure-to-reinstate FMLA interference claim when state administrative agency determined that plaintiff was separated for work misconduct).14 IX. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY. To the extent Plaintiffs assert their claims against the Individual Defendants in their official capacity, such claims are barred by the doctrine of qualified immunity. To avail the protections afforded by the qualified immunity doctrine, a 14 Even if this Court declines to apply collateral estoppel to bar Akins’ FMLA retaliation and whistleblower claims in entirety on the basis that Akins did not raise the issue of purported retaliation during GDOL’s administrative hearing, Akins remains estopped from claiming that her failure to report to work for four consecutive days was not a legitimate, nonretaliatory reason for her separation. See, e.g., Hale, 2014 U.S. Dist. LEXIS 171593, at *30-31 (GDOL’s denial of unemployment benefits because of separation for misconduct estopped the plaintiff from challenging the factual predicate for his separation, from arguing that the defendants did not have legitimate reasons for separating him, and from arguing that the defendants’ reason for separation was pretextual). Thus, in the absence of evidence to challenge the factual underpinning for her separation, Akins’ retaliation claims fail as a matter of law. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 42 of 47 - 33 - government actor must demonstrate that he was acting within the scope of his discretionary authority when he committed the allegedly unlawful acts. Corey Airport Servs. v. Decosta, 587 F.3d 1280, 1285 (11th Cir. 2009). The burden then shifts to the plaintiff to demonstrate that qualified immunity is not appropriate. O’Rourke v. Hayes, 378 F.3d 1201, 1206 (11th Cir. 2004). In order to show that the government actor is not entitled to qualified immunity, the plaintiff must prove: (1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194 (2001). Here, Plaintiffs have not and cannot set forth any evidence demonstrating that the Individual Defendants were in any way involved in (1) the decisions regarding Akins’ separation from AISS because of the voluntary abandonment of her job or her relocation from one part of SMS to another; (2) AISS’s response to AACE’s GORA requests; or (3) AISS’s compliance with the publication and meeting requirements of the GOMA. Even assuming arguendo that the Individual Defendants were involved in the aforementioned actions, making recommendations regarding personnel decisions and holding legislative meetings would undoubtedly be in the scope of their duties as members of the AISS Board. See Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir. 1988) (“[A] government official can prove he acted within the scope of his discretionary authority by Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 43 of 47 - 34 - showing ‘objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.”). However, Plaintiffs have not and cannot set forth any evidence that the above-mentioned actions violated Plaintiffs’ clearly established constitutional rights — particularly when such actions were taken for lawful, non- retaliatory reasons as articulated herein. Accordingly, the Individual Defendants are entitled to qualified immunity, and Plaintiffs’ claims against them fail as a matter of law. See Santillana v. Fla. State Ct. Sys., No. 6:09-cv-2095-Orl-19KRS, 2011 WL 722765, *29 (M.D. Fla. Feb. 23, 2011) (granting the defendants summary judgment under the doctrine of qualified immunity because the plaintiff failed to establish that the defendants violated a constitutional right).15 X. AISS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIM FOR ATTORNEY’S FEES UNDER O.C.G.A. § 13-6-11. This Court should grant summary judgment in favor of Defendants on Plaintiffs’ claim for attorney’s fees because there is no evidence of bad faith or stubborn litigiousness as required by O.C.G.A. § 13-6-11. See Garrett v. Women’s Health Care of Gwinnett, P.C., 15 Moreover, the Individual Defendants cannot be sued in their official capacities because such claims are duplicative of the claims asserted against AISS. See McMillian v. Monroe Cnty., 520 U.S. 781, 785 n.2 (1997) (citations omitted) (A suit against a “governmental officer in his official capacity is the same as a suit against the entity of which the officer is an agent.”). Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 44 of 47 - 35 - 243 Ga. App. 53, 55, 532 S.E.2d 164, 167 (2000) (granting defendant’s motion for summary judgment on claim for attorney’s fees in absence of evidence that defendant acted in bad faith or was stubbornly litigious). As explained herein, Plaintiffs cannot establish a genuine issue of material fact on any of their claims, and therefore, are not entitled to any award of damages. Accordingly, Plaintiffs’ inability to succeed on the merits of their claims precludes any award of attorney’s fees pursuant to O.C.G.A. § 13-6-11. See St. Joseph Hosp., Augusta, Ga., Inc. v. Health Mgmt. Assocs., Inc., No. CV 107-104, 2011 WL 1225577, at *16 (S.D. Ga. Mar. 30, 2011) (granting summary judgment in favor of defendant on attorney’s fee claim when plaintiffs failed to demonstrate that genuine issues of material fact existed on other claims in complaint); Dowell v. Krystal Co., 291 Ga. App. 469, 473, 662 S.E.2d 150, 155 (2008) (“ A claim for attorney fees under O.C.G.A. § 13-6-11 will not lie when general damages are not awarded.”). CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant it summary judgment on each of Plaintiffs’ claims and dismiss Plaintiffs’ complaint in its entirety. Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 45 of 47 - 36 - Respectfully submitted this 15th day of August, 2016. /s/ Natasha L. Wilson Ernest L. Greer Georgia Bar No. 309180 greere@gtlaw.com Natasha L. Wilson Georgia Bar No. 371233 wilsonn@gtlaw.com Joshua B. Portnoy Georgia Bar No. 940597 portnoyj@gtlaw.com Mellori E. Lumpkin Georgia Bar No. 358937 lumpkinm@gtlaw.com GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road, NE, Suite 2500 Atlanta, Georgia 30305 Tel.: 678.553.2100 Attorney for Defendants Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 46 of 47 - 37 - CERTIFICATE OF COMPLIANCE WITH L.R. 5.1 C I HEREBY CERTIFY that the foregoing document was prepared in Times New Roman, 14-point font, as approved by Local Rule 5.1 C. /s/ Natasha L. Wilson Attorney for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system which will automatically send electronic notification of such filing to the following counsel of record: Rakesh N. Parekh, Esq. PAREKH LAW LLC P.O. Box 250654 Atlanta, Georgia 30327 This 15th day of August, 2016. s/ Natasha L. Wilson ATL 21318403v16 Case 1:15-cv-00364-ELR-LTW Document 89-1 Filed 08/15/16 Page 47 of 47 - 1 - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FRANCHESA AKINS and ATLANTA ASSOCIATION OF CLASSIFIED EMPLOYEES, Plaintiffs, v. ATLANTA INDEPENDENT SCHOOL SYSTEM, MERIA JOEL CARSTARPHEN, COURTNEY D. ENGLISH, NANCY M. MEISTER, BYRON D. AMOS, CYNTHIA BRISCOEBROWN, ESHÉ P. COLLINS, JASON G. ESTEVES, LESLIE GRANT, STEVEN D. LEE, and MATT WESTMORELAND, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action File No.: 1:15-CV-00364-ELR-LTW DEFENDANTS’ STATEMENT OF UNDISPUTED MATERIAL FACTS Defendants Atlanta Independent School System (“AISS”), Meria Joel Carstarphen, Courtney D. English, Nancy M. Meister, Byron D. Amos, Cynthia Briscoe-Brown, Eshé P. Collins, Jason G. Esteves, Leslie Grant, Steven D. Lee, and Matt Westmoreland (collectively, with “AISS,” “Defendants”) submit the following Statement of Undisputed Material Facts: Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 1 of 36 - 2 - I. DEFENDANTS’ BACKGROUND, POLICIES, AND PROCEDURES 1. The Atlanta Independent School System (“AISS” or “APS”) is a public school district under the management of the Atlanta Board of Education (the “Board”). See Ex. 1, APS Employee Handbook (Akins Dep. Exhibit 28). 2. AISS operates in accordance with the provisions of the District’s Charter, the Constitution, and the general laws of the state. See Ex. 1, APS Employee Handbook (Akins Dep. Exhibit 28); Ex. 2, Memorandum of Understanding between AISS, the Board, and the Office of the Attorney General (AISS- AKINS_ 0001192). 3. Collectively, Courtney English, Nancy Meister, Byron Amos, Cynthia Briscoe-Brown, Eshé Collins, Jason Esteves, Leslie Grant, Steven Lee, and Matt Westmoreland, make up the nine elected members of the Atlanta Board. See Ex. 1, APS Employee Handbook (Akins Dep. Exhibit 28). 4. The Board’s powers include, but are not limited to, approving the budget, adopting policy, and hiring and evaluating the performance of the Superintendent. See Ex. 1, APS Employee Handbook (Akins Dep. Exhibit 28). 5. The Board’s functions also include hearing appeals of APS employees who have been subjected to “adverse actions,” which are specifically defined as (1) Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 2 of 36 - 3 - dismissal; (2) suspension without pay; and (3) demotion. See Ex. 3, Board Policy Manual Administrative Regulation GCB-R(1) (Hall Dep. Exhibit 52). 6. The Board will not grant a request for an appeal when an employee voluntarily resigns from his or her employment. See Ex. 4, Civil Service Hearing Panel letter to Akins, dated September 4, 2014 (Favors000211). 7. According to Board Policy GARH-R2, “job abandonment” is classified as a voluntary resignation from employment with Atlanta Public Schools. See Ex. 4, Civil Service Hearing Panel letter to Akins, dated September 4, 2014 (Favors000211). A. APS is an Equal Opportunity Employer 8. APS is an equal employment opportunity provider in every aspect of employment decisions and expressly prohibits discrimination and harassment based on race, sex, color, religion, citizenship, ethnic or national origin, age, disability, medical status, military status, veteran status, marital status, sexual orientation, gender identity or expression, genetic information, ancestry, or any legally protected status. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). 9. In that regard, APS’ anti-discrimination and retaliation policies provide, in part, that any APS employee who violates these policies will be subject to Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 3 of 36 - 4 - disciplinary action up to and including termination. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). 10. These policies further provide a reporting procedure where employees can safely and anonymously report ethical or policy violations to APS’ independent hotline. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). 11. Employees may also report policy violations to his or her direct supervisor, the Office of Internal Compliance, or the ethics officer in APS’ legal department. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). 12. APS encourages employees to report all complaints or grievances within ten days of the alleged incident. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). 13. APS policy ensures that no individual shall be retaliated against who has reported in good faith or cooperated with an investigation of discrimination or harassment. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). 14. APS’ online ethics and harassment training is mandatory and conducted annually for all employees. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 4 of 36 - 5 - 15. Failure to complete the annual training by the deadline will result in disciplinary action up to and including termination. See Ex. 1, APS Employee Handbook (Favor Dep. Ex. 28). 16. All APS employees are provided access to APS and school site handbooks. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28); see also Ex. 5, Sutton Middle School Staff Handbook (Favors000342-000353); Ex. 6, Greene Dep. p.189:23-25; Ex. 7, Akins Dep. pp. 123:10-13, 19-23; 342:20-22. 17. APS employees are trained throughout the academic school year about the policies and procedures they must follow while employed with APS. See Ex. 8, Akins’ training module transcript (AISS-AKINS 0002213-0002215); see also Ex. 9, APS ethics training module (AISS-AKINS 0002225-2268). B. Atlanta Board of Education and AISS are Subject to the Requirements of Georgia’s Open Meeting Act 18. According to the Georgia’s Open Meeting Act, the Board must conduct all of its meetings in open session, except as permitted by Georgia law; provide and properly issue adequate notices and agendas for such meetings; and properly and timely make available proper summaries and final minutes for such meetings. See Ex. 2, Memorandum of Understanding (AISS-AKINS 0001192); see also Ex. 10, Resolution Adopting Memorandum of Understanding (AISS- AKINS 0001209). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 5 of 36 - 6 - 19. All AISS Board policies, meeting agendas, minutes, and summaries are made available to the public via BoardDocs and Atlanta Board of Education’s website. See Ex. 11, Kaye Dep. p. 31:12-23. 20. All agendas are made available to the public the Friday before the Board meeting and can be found on BoardDocs and Atlanta Board of Education’s website. See Ex. 12, English Dep. p. 45:13-19; See Ex. 11, Kaye Dep. p. 31:12- 23; 119:17-120:3. 21. At no time during the AISS Board meetings held between September 2014 and June 2015 did the Board discuss or take action on any items not properly noticed on the agenda. See Ex. 13, Declaration of Rebecca Kaye ¶¶ 7, 9, 11. 22. Subsequent to any Board meeting, within two days, APS will publicly post a summary of the meeting minutes. See Ex. 11, Kaye Dep. pp. 86:13-16; 132:15-16; 153:23-154:2. 23. Board members are not responsible for making agendas available to the public, preparing the meeting minute summaries, or posting the summaries to the Board’s website. See Ex. 11, Kaye Dep. pp. 154:17-155:2. II. Plaintiff’s Employment with APS 1 1 At the time Favors initiated this lawsuit in or around September 2014, she was married and went by the last name Akins. During the pendency of this litigation, Favors divorced her husband and now goes by her maiden name. Therefore, there Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 6 of 36 - 7 - 24. Franchesa Akins (“Akins”) was hired with APS on November 8, 1995, and remained employed with APS for nineteen years until she voluntarily abandoned her job in July 2014. See Ex. 7, Akins Dep. p. 33:7-10; see also, Ex. 4, Civil Service Hearing Panel letter to Akins, dated September 4, 2014 (Favors000211). 25. While at APS, Akins held several job titles, which included Clerical Paraprofessional, Classroom Paraprofessional, and School Clerk, respectively. See Ex. 7, Akins Dep. pp. 34:17; 36:20-21; 38:10-17. 26. The last position Akins held at APS was School Clerk. See Ex. 14, Official Administrative Transfer Notice, dated August 20, 2009 (AISS-AKINS 0001853). 27. APS School Clerks are responsible for tracking students’ attendance and disciplinary offenses; greeting school visitors; answering telephones; drafting letters, contracts, reports, memoranda, and other documents; receiving, sorting, and distributing mail; preparing and issuing bid documents; administering and/or supporting the state and local standardized testing process and policies; and conducting other duties as requested by the Principal and Assistant Principals. See Ex. 7, Akins Dep. pp. 34:18-23; 148:21-149:13; see also Ex. 15, AISS’s may be documents and/or testimony that references Ms. Akins as either Franchesa Akins or Franchesa Favors. See Ex. 7, Akins Dep. p 7:9-20. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 7 of 36 - 8 - Responses to Plaintiff’s First Set of Interrogatories; see also Ex. 16, School Clerk job description (Favors000367-369). 28. In or around September 2006, Akins was transferred from her position as a Clerical Paraprofessional at Towns Elementary School to School Clerk at Kennedy Middle School. See Ex. 17, Administrative Transfer Notice, dated September 22, 2006 (Favors000291). 29. Akins’ transfer to the School Clerk position resulted in an increase in the number of days she was required to work for the academic year and an increase in salary. See Ex. 17, Official Administrative Transfer Notice, dated September 22, 2006 (Favors 000291); see also Ex. 7, Akins Dep. p. 39:19-21. 30. As a Clerical Paraprofessional, Akins was required to work 190 days, and as a School Clerk, Akins was required to work 200 days. See Ex. 17, Official Administrative Transfer Notice, dated September 22, 2006 (Favors000291). 31. When Akins transferred to Sutton Middle School in 2009, she remained a 200-day employee. See Ex. 14, Akins’ official notice of administrative transfer (AISS-AKINS 0001853); see also Ex. 18, Emails to Akins regarding employment status and flexible schedule for 200-day employees (Favors000488- 490). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 8 of 36 - 9 - 32. From 2009 to 2014, Audrey Sofianos was the Principal of Sutton Middle School and supervised Akins. See Ex. 7, Akins Dep. p. 57:1-5; Ex. 19, Declaration of Audrey Sofianos ¶ 2. 33. Likewise, Assistant Principals Michelle Bouldin, Timothy Robinson, Barbara Bieniemy, and the Secretary, Jacqueline Middlebrooks, also supervised Akins. See Ex. 7, Akins Dep. p. 58:1-24. 34. While employed with APS, Akins had annual performance reviews that were conducted by the Principal, Assistant Principals, and/or Secretary. See Ex. 20, Akins’ performance evaluations (Akins Dep. Exs. 3, 5, 6, 7). 35. While under the leadership of Principal Sofianos, Akins’ performance ratings were generally favorable, often times ranking satisfactory, superior, or distinguished. See Ex. 20, Akins’ performance evaluations (Akins Dep. Exs. 3, 5, 6, 7). A. Principal Sofianos Interviews for the School Secretary Position 36. During the 2013-2014 school year, Sutton Middle School’s Secretary, Claudia Landers, became ill and had to take several leave of absences. See Ex. 7, Akins Dep. pp. 93:19 -94:1; see also Ex. 21, Middlebrooks Dep., June 1, 2016, p. 42:19-23. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 9 of 36 - 10 - 37. In or around December 2013, Landers resigned from her position as the Sutton Middle School Secretary. See Ex. 7, Akins Dep. pp. 93:19 -94:1. 38. In or around December 2013, Sutton Middle School posted via the APS website that it had an immediate opening for a new Secretary. See Ex. 21, Middlebrooks Dep. p. 42:1-3; see also Ex. 19, Sofianos Decl. ¶ 3. 39. Principal Sofianos emailed all Sutton faculty and staff in January 2014, inviting them to apply for the position. See Ex. 22, Email dated, January 14, 2014, from Principal Sofianos to Sutton Faculty/Staff (Favors000378). 40. Over 800 applicants applied for the position, which was the highest number of applicants that had applied for any position at Sutton Middle School. See Ex. 22, Email dated, January 14, 2014, from Principal Sofianos to Sutton Faculty/Staff (Favors000378); Ex. 19, Sofianos Decl. ¶ 3. 41. Jacqueline Middlebrooks, another School Clerk at Sutton Middle School, applied for the position of School Secretary. See Ex. 21, Middlebrooks Dep. p. 42:1-3. 42. Allegedly, Akins also applied for the Secretary position; however, her application was not found in the online application database. See Ex. 7, Akins Dep. p. 94:3-9; see also Ex. 23, Email from Principal Sofianos to Akins, dated January 6, 2014 (Favors000384). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 10 of 36 - 11 - 43. Principal Sofianos instructed Akins to formally apply for the Secretary position, if she wished to be considered. See Ex. 23, Email from Principal Sofianos to Akins, dated January 6, 2014 (Favors000384). 44. Interviews for the secretary position were conducted at Sutton Middle School, by a panel of Sutton Middle School’s Faculty and Staff, on or around January 21, 2014. See Ex. 21, Middlebrooks Dep. p. 41:11-21; see also Ex. 22, Email from Principal Sofianos to Sutton Faculty and Staff, dated January 15, 2014 (Favors000378). 45. After Human Resources screened and narrowed the 800 applicants to 600, Principal Sofianos further screened those candidates and narrowed the applicant pool to 30 candidates. See Ex. 24, Email from Principal Sofianos to Sutton Faculty/Staff, dated January 23, 2014 (Favors000375). 46. Subsequently, the interview pool was further narrowed to eight candidates, with three candidates advancing to the final interview. See Ex. 24, Email from Principal Sofianos to Sutton Faculty/Staff, dated January 23, 2014 (Favors000375). 47. Jacqueline Middlebrooks was ultimately recommended and selected for the Secretary position. See Ex. 24, Email from Principal Sofianos to Sutton Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 11 of 36 - 12 - Faculty/Staff, dated January 23, 2014 (Favors000375); see also Ex. 21, Middlebrooks Dep. p. 41:5-10. 48. Jacqueline Middlebrooks was more than qualified for the position, as she had been employed with APS since 1999, and had a Master’s degree in public administration and a Bachelor’s degree in social work. See Ex. 24, Email from Principal Sofianos to Sutton Faculty/Staff, dated January 23, 2014 (Favors000375). 49. Jacqueline Middlebrooks transitioned into the role as Sutton Middle School’s Secretary in or around April 2014. See Ex. 21, Middlebrooks Dep. p. 41:5-10. B. In 2014, Akins Takes FMLA Leave 50. On or about January 13, 2014, during the workday at Sutton Middle School, Akins emailed Principal Sofianos that she was feeling faint and believed that she was having a nervous breakdown. See Ex. 25, Email from Akins to Principal Sofianos, dated January 13, 2014 (AISS-AKINS 0000464). 51. On or about January 17, 2014, Akins applied and was approved for Family Medical Leave (FMLA). See Ex. 26, Akins’ FMLA Claims Processing Form (AISS-AKINS 0000452); see also Ex. 27, Akins’ FMLA Request Form (AISS Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 12 of 36 - 13 - 0000449); see also Ex. 28, Akins’ Medical Impression from treating doctor (AISS-AKINS 000453-459; AISS-AKINS 0000474-477). 52. Akins was expected to return from FMLA leave on February 17, 2014 See Ex. 27, Akins FMLA Request From (AISS-AKINS 0000449); see also Ex. 29, Email from Comenthia Williams, Absence Management Specialist, to Akins dated February 17, 2014 (AISS-AKINS 0000460). 53. On February 17, 2014, Akins failed to return to work by the scheduled date indicated on her FMLA documents, and failed to seek approval for her additional absences; thus, violating APS’ absence policy. See Ex. 30, Email from Comenthia Williams, Absence Management Specialist, to Akins and Principal Sofianos, dated February 17, 2014 (AISS-AKINS 0000466). 54. The APS Absence Management Specialist informed Akins that as of February 17, 2014, she was on an unauthorized leave of absence. See Ex. 30, Email from Comenthia Williams, Absence Management Specialist, to Akins and Principal Sofianos, dated February 17, 2014 (AISS-AKINS 0000466). 55. Shortly thereafter, Akins’ husband, Harlen Akins, sent a doctor’s note to APS’ Absence Management Specialist, Comenthia Williams, explaining that Akins was unfit to return to work as scheduled on February 17, 2014. See Ex. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 13 of 36 - 14 - 31, Facsimile from Harlen Akins to Comenthia Williams (AISS-AKINS 0000468-469). 56. Consequently, APS extended Akins’ FMLA leave of absence through March 24, 2014. See Ex. 32, Letter from Comenthia Williams, Absence Management Specialist, to Akins, dated March 24, 2014 (AISS-AKINS 0000473). 57. Shortly before Akins was expected to return to work from her extended FMLA leave of absence, she requested and was granted another extension through April 15, 2014. See Ex. 33, Email from Comenthia Williams to Akins, dated March 25, 2014 (AISS-AKINS 0000478). 58. On April 16, 2014, Akins failed to return to work from her scheduled leave and did not notify Principal Sofianos of her absence. See Ex. 34, Email from Audrey Sofianos to Comenthia Williams, dated April 16, 2014. (AISS- AKINS 0000484-486). 59. Instead, on April 16, 2014, Akins faxed a doctor’s note to Comenthia Williams, which excused her from work that day. See Ex. 34, Email from Audrey Sofianos to Comenthia Williams, dated April 16, 2014. (AISS-AKINS 0000484-486). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 14 of 36 - 15 - 60. Akins officially returned to work from her FMLA leave of absence on April 21, 2014. See Ex. 35, Email correspondence between Comenthia Williams and Akins, dated April 21, 2014 (AISS-AKINS 0000500-502). C. Akins Temporarily Moved to the Front of the School Building to Assist With the End-Of-Year Activities 61. While Akins was employed as a School Clerk at Sutton Middle School, she was the only clerk that had her own office space on the eighth grade hallway, which was located on the bottom level of Sutton Middle School. See Ex. 7, Akins Dep. p. 139:1-11; see also Ex. 21, Middlebrooks’ Dep. p. 139:7-21. 62. After Akins returned to school from her FMLA leave of absence on April 23, 2014, there was roughly a month of school left in the academic year for the students. See Ex. 36, APS 2013-2014 Academic Calendar (Favors000206). 63. On May 19, 2014, four days before the end of the academic year, Principal Sofianos requested that Akins temporarily move out of her office to the front of the building, in order to assist with preparation for the next academic year and registration. See Ex. 7, Akins’ Dep. p. 140:5-17; see also Ex. 37, Email from Sofianos to Akins, dated May 19, 2014 (Akins Dep. Ex. 10). 64. Principal Sofianos was not aware of any complaints Akins may have made prior to May 2014 at the time she requested that Akins relocate to the front of the building. See Ex. 19, Sofianos Decl. ¶ 12. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 15 of 36 - 16 - 65. While in the front of the building, Akins shared a space with Jennifer Miller and J. Lenoir, who were also School Clerks at Sutton Middle School. See Ex. 37, Email from Sofianos to Akins, dated May 19, 2014 (Akins Dep. Ex. 10). 66. Each School Clerk was given individual tasks and expected to assist in all end of the year activities. See Ex. 37, Email from Sofianos to Akins, dated May 19, 2014 (Akins Dep. Ex. 10). III. APS ABSENCE REPORTING POLICY 67. APS Employee Handbook provides that when an unplanned emergency occurs that results in a leave of absence from the work day, the employee must inform his or her supervisor as soon as possible. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). 68. In addition, the policy provides that a supervisor may request documentation of an emergency upon the employee’s return. See Ex. 1, APS Employee Handbook (Akins Dep. Ex. 28). 69. Sutton Middle School’s absence reporting policy provides, in part, that any employee who expects to be absent from work report the expected absence by 9:00 PM the night before and that the employee receive a confirmation or reply from the principal. See Ex. 5, Sutton Middle School Employee Handbook (Favors000342-353). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 16 of 36 - 17 - 70. Sutton Middle School faculty and staff must follow both APS’ and the school’s absence policies. See Ex. 5, Sutton Middle School Employee Handbook (Favors-000342-353); see also Ex. 38, Hall Dep. pp. 170:22-171:19. IV. AT THE BEGINNING OF THE 2014-2015 ACADEMIC SCHOOL YEAR, AKINS FAILED TO RETURN TO WORK FOR FOUR CONSECUTIVE DAYS, THUS RESULTING IN VOLUNTARY ABANDONMENT OF HER JOB 71. In 2014, Buck Greene replaced Audrey Sofianos as the Principal of Sutton Middle School. See Ex. 39, Buck Greene’s Administrative Transfer document (AISS-AKINS_0001956-1957); see also Ex. 7, Akins Dep. p. 57:17-21. 72. On July 18, 2014, Principal Greene sent a welcome letter to the faculty and staff of Sutton Middle School, detailing his expectations for the pre-planning week and explaining that he would communicate with them via email. See Ex. 40, Principal Greene’s Welcome Letter to Sutton Middle School faculty and staff (Akins Dep. Ex. 18). 73. Sutton Middle School’s pre-planning week was scheduled to begin July 28, 2014. See Ex. 40, Principal Greene’s Welcome Letter to Sutton Middle School faculty and staff (Akins Dep. Ex. 18). 74. Because Akins was a 200-day employee, she was required to report to work on July 22, 2014. See Ex. 41, APS 2014-2015 Academic Calendar (Akins Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 17 of 36 - 18 - Dep. Ex. 16); see also Ex. 14, Akins’ Official Administrative Transfer Notice (AISS-AKINS 0001853). 75. The AISS academic calendar, which can be accessed online, informs APS faculty and staff about the days they are scheduled to work for the academic year. See Ex. 41, APS 2014-2015 Academic Calendar (Akins Dep. Ex. 16). 76. Typically, the calendar includes the first day for faculty and staff to report to work for the academic year, school holidays, student instructional days, planning periods, teacher professional learning days, and the last day of school. See Ex. 41, APS 2014-2015 Academic Calendar (Akins Dep. Ex. 16). 77. Akins was aware that APS’ academic calendars were posted online, because she often times checked the website to determine when she was required to report to work for the upcoming school year. See Ex. 7, Akins’ Dep. p. 125:18-126:9. 78. During the 2014-2015 academic year, APS had a flexible schedule for 200 and 220–day employees, which allowed these employees to switch standard working days for flexible days if the school principal approved. See Ex. 41, APS 2014-2015 Academic Calendar (Akins Dep. Ex. 16). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 18 of 36 - 19 - 79. Principal Greene never approved Sutton Middle School to operate on a flexible schedule for the 2014-2015 school year. See Ex. 6, Greene Dep. p. 69:2-5. 80. On July 22, 2014, Akins failed to report to Sutton Middle School for the academic school year. See Ex. 42, Letter from Principal Greene to Akins (Akins Dep. Ex. 19); see also Ex. 5, Sutton Middle School Employee Handbook (Favors000342-353). 81. Akins did not contact Principal Greene to request approval for her absence nor did she provide proper notification explaining the reason(s) why she failed to report to work. See Ex. 42, Letter from Principal Greene to Akins (Akins Dep. Ex. 19); see also Ex. 5, Sutton Middle School Employee Handbook (Favors000342-353). 82. Akins also failed to report to work on July 23-25, 2014, and likewise failed to request permission from her Principal to be excused from work those days. See Ex. 42, Letter from Principal Greene to Akins (Akins Dep. Exhibit 19); see also Ex. 5, Sutton Middle School Employee Handbook (Favors000342- 353). 83. Akins claimed that on July 23, 2014 at 10:19 p.m., she notified the Secretary, Jacqueline Middlebrooks, about her absence, by calling Middlebrooks’ Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 19 of 36 - 20 - telephone extension at Sutton Middle School and leaving a voice message. See Ex. 7, Akins Dep. pp. 326:17-328:7. 84. However, there is no record of a voice message left by Akins on July 23, 2014. See Ex. 43, Email correspondence regarding Carey’s August 26, 2014 request (AISS-AKINS_0001565; 0001593-1595). 85. Akins also claimed that on July 24, 2014, she called and left a voice message for Jennifer Miller, the front office School Clerk, to inform her of her absence for that day. See Ex. 7, Akins Dep. pp. 328:16-329:14. 86. Akins’ voice message did not request to speak to Principal Greene nor request approval for her leave of absence. See Ex. 7, Akins Dep. pp. 326:17- 329:20; see also Ex. 44, Akins’ 8:01 a.m. voice message to Jennifer Miller (AISS-AKINS 00002133); Ex. 45, Transcription of Akins’ 8:01 a.m. voice message (AISS-AKINS 00002134). 87. Furthermore, Akins claimed that on July 25, 2014, she attempted to email Principal Greene to notify him that she would be absent from work that day. See Ex. 46, DOL Hearing Transcript, dated August 18, 2015 (Favors001109- 001248). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 20 of 36 - 21 - 88. However, Akins admitted that she emailed Principal Greene at an incorrect email address. See Ex. 46, DOL Hearing Transcript, dated August 18, 2015 (Favors001109-001248). 89. At no time on July 22, July 23, or July 24 did Akins actually speak with anyone, in a supervisory position or otherwise, to obtain approval for her absence from work or to inform anyone at Sutton Middle School of her absence. See Ex. 7, Akins Dep. pp. 291:21-292:3; 326:17-329:20. 90. On July 24, 2014, three consecutive days after Akins failed to report to work, Principal Greene contacted APS’ Human Resources Department to discuss Akins’ unauthorized absences. See Ex. 6, Greene Dep. p. 39:1-12. 91. Devetrice Hinton, APS’ Employee Relations Manager, told Principal Greene to send a letter to Akins informing her that she was in violation of APS’ and Sutton Middle School’s absence policies. See Ex. 6, Greene Dep. p. 39:1-12. 92. On July 24, 2014, Principal Greene sent Akins a letter, explaining that she was in violation of APS’ absence policy and was subject to disciplinary action for job abandonment, unless she supplied written justification for her unauthorized absences. See Ex. 42, Buck Greene’s certified letter to Akins, dated July 24, 2014 (Akins Dep. Ex. 19); see also Ex. 6, Greene Dep. p. 39:13-16. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 21 of 36 - 22 - 93. At the end of the workday, at approximately 5:40 p.m., on Friday, July 25, 2014, Trisha Slaughter, the eighth grade counselor, informed Principal Greene that she had spoken with Akins, and Akins informed her that she had just returned to town from vacation and would report to work on July 28, 2014. See Ex. 47, Email from Trisha Slaughter to Buck Greene, dated July 25, 2014 (AISS- AKINS 0002136). 94. On Monday, July 28, 2014, Akins finally returned to work for the 2014- 2015 academic school year. See Ex. 6, Greene Dep. p. 94:18-23. 95. That morning, Principal Greene spoke with Akins about her absences and her failure to follow APS’ and Sutton Middle School’s policies. See Ex.6, Greene Dep. pp. 94:24-96:5. 96. After Principal Greene’s meeting with Akins, he immediately called Devetrice Hinton to report his discussion with Akins and his conclusion that Akins had voluntarily abandoned her job. See Ex. 6, Greene Dep. pp. 97:21-24; 134:12-23. 97. Devetrice Hinton contacted Akins and informed her that on July 30, 2014, she would have a meeting with her to discuss her absences. See Ex. 6, Greene Dep. p. 98:4-10. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 22 of 36 - 23 - 98. Hinton informed Akins that she was required to provide all documentation that explained the circumstances that prevented her from reporting to work for four consecutive days and contacting Principal Greene to inform him of her absences. See Ex. 6, Greene Dep. p. 98:4-10. 99. On July 30, 2014, Devetrice Hinton and Rick Bealieu, Executive Director of Human Resources, came to Sutton Middle School to meet with Akins and discuss her absences. See Ex. 6, Greene Dep. pp. 113:16-114:6; see also Ex. 38, Hall Dep. pp. 54:15-56:2. 100. At the conclusion of the investigation into Akins’ unapproved absences on or around August 13, 2014, Devetrice Hinton visited Sutton Middle School to hand-deliver to Akins the follow-up letter to their July 30, 2014 meeting. See Ex. 48, Letter to Akins from Pamela Hall, Chief Human Resource Officer, dated August 13, 2014 (Hall Dep. Ex. 46). 101. The letter explained that Akins had voluntarily resigned from her employment with APS, because (1) she failed to follow protocol for seeking approval for absences; (2) she failed to offer any credible evidence providing extenuating circumstances for her failure to report to work; and (3) her explanation for her failure to report to work changed throughout the course of the Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 23 of 36 - 24 - investigation. See Ex. 48, Letter to Akins from Pamela Hall, Chief Human Resource Officer, dated August 13, 2014 (Hall Dep. Ex. 46). 102. The next day, on August 14, 2014, Akins returned to Sutton Middle School, attempting to resume her duties as School Clerk. See Ex. 7, Akins Dep. p. 360:3-4. 103. Principal Greene questioned Akins about her unauthorized return. See Ex. 7, Akins Dep. pp. 360:10-361:6. 104. Akins did not request permission nor did anyone inform her that she was authorized to return to Sutton Middle School after her meeting with Devetrice Hinton on August 13, 2014. See Ex. 7, Akins Dep. p. 381:2-5. 105. Devetrice Hinton came to Sutton Middle School to once again speak with Akins about her voluntary resignation and to explain to her that she was no longer employed with APS. See Ex. 7, Akins Dep. pp. 361:9-362:4. 106. On or around August 28, 2014, Charles Carey, Atlanta Associate of Classified Employees (“AACE”) Representative, requested an appeal hearing concerning Akins’ voluntary job abandonment charge. See Ex. 49, Charles Carey’s Letter to the Civil Service Hearing Panel, dated August 28, 2014 (Hall Dep. Ex. 53). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 24 of 36 - 25 - 107. Jessica Smith, an Administrative Officer on the Civil Service Hearing Panel, issued Akins a letter indicating that her request was denied because she had voluntary resigned from APS and was not affected by an adverse employment decision. See Ex. 50, Civil Service Hearing Panel letter to Akins, dated September 4, 2014 (Hall Dep. Ex. 54). 108. According to APS Board Policy, only employees affected by an “adverse action decision” may appeal an employment decision. See Ex. 51, APS Board Policy No. GCB-R(1) (Hall Dep. Ex. 52). 109. An adverse employment decision consists of (1) dismissal; (2) suspension without pay; or (3) demotion. See Ex. 51, APS Board Policy No. GCB-R(1) (Hall Dep. Ex. 52). 110. Despite the fact that Akins abandoned her job, Pamela Hall, APS’ Chief Human Resource Officer, offered to assist Akins in finding another position within the system, if she was willing to go through the formal interview process. See Ex. 52, Email from Pamela Hall to Charles Carey, dated August 25, 2014 (Hall Dep. Ex. 56); see also Ex. 38, Hall Dep. pp. 238:3-240:13. 111. However, Charles Carey demanded that Akins be reinstated to a school with a black principal and without going through the formal interview process. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 25 of 36 - 26 - See Ex. 52, Email from Charles Carey to Pamela Hall, dated August 25, 2014 (Hall Dep. Ex. 56). 112. Pamela Hall had no further communications with Carey or Akins regarding Akins reinstatement after Carey made his demands. See Ex. 38, Hall Dep. pp. 239:2-20. V. AKINS’ INTERNAL COMPLAINTS TO APS A. Akins’ January 2014 Internal Complaint 113. In January 2014, Akins allegedly filed an internal complaint to APS’ Human Resource Department, complaining about her relationship with Principal Sofianos during her FMLA leave of absence. See Ex. 7, Akins Dep. pp. 97:23- 98:12; see also Ex. 53, Akins email to APS Human Resources Department, dated January 23, 2014 (Favors000358-362). 114. APS investigated Akins’ complaint and provided Akins’ husband the findings of the investigation, because Akins was unable to communicate with the school. See Ex. 7, Akins Dep. pp. 106:1-108:13. 115. Pamela Hall, AISS Chief Human Resource Officer, did not have knowledge of Akins’ alleged January 2014 internal complaint at the time she determined Akins voluntarily abandoned her job. See Ex. 38, Hall Dep. pp. 122:9-16, 21-24; 137:7-24; see also Ex. 54, Declaration of Pamela Hall ¶ 6. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 26 of 36 - 27 - B. Akins’ April 2014 Internal Complaint 116. On or around April 24, 2014, Akins allegedly made an internal complaint to APS, complaining that she was subjected to a hostile work environment and was discriminated against by Principal Sofianos. See Ex. 55, Akins’ April 2014 Internal Complaint, [Dkt. 24-1 at 21]. 117. Specifically, Akins’ alleged that (1) she was required to perform more work than the other school clerks; (2) Principal Sofianos targeted her by providing her with a vague duties and responsibilities list; (3) Principal Sofianos hired an hourly employee while she was on FMLA leave of absence; and (4) Sofianos failed to schedule a meeting with her to discuss her job classification. See Ex. 55, Akins’ April 2014 Internal Complaint, [Dkt. 24-1 at 21]. 118. Notably, Akins’ alleged complaint dated April 24, 2014 references events that occurred on April 25, 2015. See Ex. 55, [Dkt. 24-1 at 21]. 119. Akins’ April 2014 internal complaint was investigated by Devetrice Hinton, during the first week of August 2014, when APS first received notice of Akins’ January, April, and May 2014 complaints. See Ex. 38, Hall Dep. pp. 137:7-138:14. 120. Pamela Hall did not have personal knowledge regarding Akins’ alleged January, April, or May 2014 internal complaints when she determined Akins Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 27 of 36 - 28 - voluntarily abandoned her job. See Ex. 38, Hall Dep. pp. 122:9-25; 124:1-4; 137:7-24; Ex. 54, Hall Decl. ¶ 7. C. Akins’ May 2014 Internal Complaint 121. In May 2014, Akins emailed Dr. Sidney Baker, expressing her frustrations with being temporarily moved to the front of the building to assist with the end of the year activities. See Ex. 37, Email from Akins to Dr. Sidney Baker, dated May 21 and 29, 2014 (Akins Dep. Ex.10). 122. Dr. Baker promptly investigated Akins’ alleged claim, by speaking with Principal Sofianos. See Ex. 37, Email from Akins to Dr. Sidney Baker, dated May 21 and 29, 2014 (Akins Dep. Ex. 10). 123. Pamela Hall did not have knowledge of Akins’ alleged May 2014 internal complaint at the time she determined that Akins voluntarily abandoned her job. See Ex. 38, Hall Dep. pp. 137:7-24; 141:24-142:6; Ex. 54, Hall Decl. ¶ 8. D. Akins’ July 2014 Internal Complaints 124. On or around July 28 and 30, 2014, for the first time, Akins complained to Hinton that she had been allegedly retaliated against, subjected to a hostile work environment and her civil liberties had been violated, while she was employed at Sutton and Kennedy Middle Schools. See Ex. 56, Email from Devetrice Hinton Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 28 of 36 - 29 - to the Office of Internal Compliance, dated August 5, 2014 (Favors 000357); see also Ex. 38, Hall Dep. pp. 106:22-107:4; 108:17-25. 125. On or around August 5, 2014, Devetrice Hinton submitted an investigation referral to the Office of Internal Compliance Division concerning Akins’ complaints. See Ex. 56, Email from Devetrice Hinton to the Office of Internal Compliance, dated August 5, 2014 (Favors 000357). 126. George Williams, APS’ Director of Employee Relations, attempted to investigate Akins’ allegations. See Ex. 38, Hall Dep. p. 38:1-7; 252:12-25; see also Ex. 57, Office of Internal Compliance Investigation Report (Hall Dep. Ex. 44). 127. However, Akins failed to cooperate in the investigation, and AISS eventually closed the case. See Ex. 38, Hall Dep. pp. 38:1-7; 252:12-25; see also Ex. 57, Office of Internal Compliance Investigation Report (Hall’s Dep. Ex. 44); see also Ex. 58, Appointment invite from George Williams to Akins, dated September 8, 2014 (AISS-AKINS 0001466). VI. AKINS DENIED UNEMPLOYMENT BENEFITS 128. After Akins voluntarily resigned from APS, she sought unemployment benefits through the Georgia Department of Labor (“DOL”). See Ex. 59, DOL Administrative Hearing Officer Decision (AISS-AKINS 0002216-2220). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 29 of 36 - 30 - 129. Under oath during the DOL hearing, Akins admitted that she did not speak with anyone at Sutton Middle School to inform them of or obtain approval for her absences from work. See Ex. 46, DOL Hearing Transcript, p. 87:1-5. 130. The Georgia DOL denied Akins unemployment benefits request because Akins failed to follow AISS procedures and policies regarding reporting a leave of absence. See Ex. 59, DOL Administrative Hearing Officer Decision (AISS- AKINS 0002216-2220); see also Ex. 60, DOL Board of Review Decision (AISS-AKINS 0002221-2222); Ex. 61, Fulton County Superior Court Final Order, No. 2015CV267059. 131. The Georgia DOL Board of Review and Fulton County Superior Court affirmed the decision. See id. VII. AISS AND ATLANTA BOARD OF EDUCATION COMPLIES WITH CHARLES CAREY’S OPEN RECORDS REQUEST MADE ON BEHALF OF AKINS 132. Charles Carey, AACE Employee Representative, made two Open Records requests to Kent Johnson, Constituent Services and Open Records Request Specialist. See Ex. 62, Email correspondence regarding Carey’s August 26, 2014 request (AISS-AKINS 0001565; 0001593-1595). 133. Carey’s first request was made on August 26, 2014, wherein he requested the “2 minute audio recording of the telephone call made from Ms. Franchesca Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 30 of 36 - 31 - Akins to: Ms. Jacqueline Middle Brooks at 10:19 p.m. @ 404-802-5614 (The APS Sutton Middle School) on July 23, 2014.” See Ex. 62, Email correspondence regarding Carey’s August 26, 2014 request (AISS-AKINS 0001565; 0001593-1595). 134. The same day, on August 26, 2014, Kent Johnson forwarded Carey’s request to Jacqueline Middlebrooks, the Secretary at Sutton Middle School. See Ex. 62, Email correspondence regarding Carey’s August 26, 2014 request (AISS- AKINS 0001565; 0001593-1595). 135. Johnson asked Middlebrooks to search for the requested recoding and informed her that the response was due by the close of business on August 29, 2014. See Ex. 62, Email correspondence regarding Carey’s August 26, 2014 request (AISS-AKINS 0001565; 0001593-1595). 136. On August 29, 2014, within the three days of Carey’s request, Johnson sent Carey an email indicating, “All efforts have been taken to locate the records responsive to your request…however the district has not been able to locate any records responsive to your request.” See Ex. 62, Email correspondence regarding Carey’s August 26, 2014 request (AISS-AKINS 0001565; 0001593-1595). 137. On September 10, 2014 at 8:42 P.M., Carey made a second request for a copy of Akins’ alleged voice message recording that was made to Sutton Middle Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 31 of 36 - 32 - School at 4:59 a.m. on July 24, 2014. See Ex. 63, Email from Charles Carey to Kent Johnson, dated September 10, 2014 (AISS-AKINS 0001568-1573). 138. On September 16, 2014, Johnson issued Carey a response indicating, “All efforts have been taken to locate records responsive to your request…however no records currently exist within the district.” See Ex. 63, Email from Kent Johnson to Charles Carey, dated September 10, 2014 (AISS- AKINS 0001568-1573). 139. Johnson encouraged Carey to amend his request in order to broaden his search for any voicemails left by Akins on July 24, 2014. See Ex. 63, Email from Kent Johnson to Charles Carey, dated September 10, 2014 (AISS-AKINS 0001568-1573). 140. Carey never amended his request at Johnson’s suggestion. See Ex. 63, Email from Charles Carey to Kent Johnson, dated September 10, 2014 (AISS- AKINS 0001568-1573). 141. Despite Carey’s failure to amend his open records’ request, APS produced to Carey and Akins a copy of Akins’ July 24, 2014 voicemail that was left at 8:01 a.m. on Middlebrooks’ extension. See Ex. 44, Akins’ 8:01 a.m. July 24, 2014 voicemail (AISS-AKINS 0002133); see also Ex. 64, Akins’ July 24, 2014 voicemail transcript (AISS-AKINS 0002135). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 32 of 36 - 33 - VIII. AKINS FILES EEOC CHARGES AGAINST APS 142. On or around May 9, 2014, Akins filed a charge with the EEOC alleging race discrimination and retaliation against APS. See Ex. 65, U.S. Equal Employment Opportunity Commission Charge of Discrimination, dated May 9, 2014 (Favors001047-1048). 143. On or around June 5, 2014, Akins filed a subsequent charge of race discrimination and retaliation with the EEOC against APS. See Ex. 66, U.S. Equal Employment Opportunity Commission Charge of Discrimination, dated June 5, 2014 (Hall Dep. Ex. 42). 144. In addition, on or around August 25, 2014, Akins filed a charge with the EEOC alleging retaliation. See Ex. 67, U.S. Equal Employment Opportunity Commission Charge of Discrimination, dated August 25, 2014 (Hall Dep. Ex.43). 145. On August 27, 2015, the U.S. Equal Employment Opportunity Commission finalized its investigation and dismissed Akins’ race and retaliation claims, concluding that the information and evidence presented did not substantiate that APS violated any statute. See Ex. 68, U.S. Equal Employment Opportunity Commission Right to Sue Letter, dated August 27, 2015 (AISS- AKINS 0001559-1560; AISS-AKINS 0001562-1563). Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 33 of 36 - 34 - 146. The EEOC issued Akins a right to sue letter. See Ex. 68, U.S. Equal Employment Opportunity Commission Right to Sue Letter, dated August 27, 2015 (AISS-AKINS 0001559-1560; AISS-AKINS 0001562-1563). 147. Subsequently, Akins filed her Complaint in the Superior Court of Fulton County on or around September 3, 2014. See [Dkt. 1]. 148. On or around February 5, 2015, Defendants removed the Complaint to the Northern District of Georgia. See [Dkt. 1]. 149. Prior to the filing of this action, Charles Carey filed a lawsuit on behalf of AACE against AISS in the Superior Court of Fulton County, on or around September 3, 2014, alleging identical violations of the Georgia Open Records Act as is alleged in the instant litigation. See Ex. 69, Fulton County Superior Court Complaint, Civil Action No. 2014-cv-250955. 150. On October 24, 2014, Rakesh Parekh entered an appearance on behalf of AACE, “yet, despite the fact that [AACE] retained an attorney, [AACE did] not amend[ ] the original Complaint to cure the defect caused by Mr. Carey’s inappropriate representation of a corporation.” See Ex. 70, Fulton County Superior Court Final Order, No. 2014CV250955. Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 34 of 36 - 35 - 151. On or around December 5, 2016, the Court entered a final order granting AISS’ Motion to Dismiss and dismissing Carey’s lawsuit in its entirety. See Ex. 70, Fulton County Superior Court Final Order, No. 2014CV250955. 152. The Court noted that “This is a Final Order and the Clerk is to please mark the case as CLOSED.” See Ex. 70, Fulton County Superior Court Final Order, No. 2014CV250955. Respectfully submitted this 15th day of August, 2016. /s/ Natasha L. Wilson Ernest L. Greer Georgia Bar No. 309180 greere@gtlaw.com Natasha L. Wilson Georgia Bar No. 371233 wilsonn@gtlaw.com Joshua B. Portnoy Georgia Bar No. 940597 portnoyj@gtlaw.com Mellori E. Lumpkin Georgia Bar No. 358937 lumpkinm@gtlaw.com GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road, NE, Suite 2500 Atlanta, Georgia 30305 Tel.: 678.553.2100 Attorney for Defendants Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 35 of 36 - 36 - CERTIFICATE OF COMPLIANCE WITH L.R. 5.1 C I HEREBY CERTIFY that the foregoing DEFENDANTS’ STATEMENT OF UNDISPUTED MATERIAL FACTS Response to was prepared in Times New Roman, 14-point font, as approved by Local Rule 5.1 C. /s/ Natasha L. Wilson Attorney for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing DEFENDANTS’ STATEMENT OF UNDISPUTED MATERIAL FACTS with the Clerk of Court using the CM/ECF system which will automatically send electronic notification of such filing to the following counsel of record: Rakesh N. Parekh, Esq. PAREKH LAW LLC P.O. Box 250654 Atlanta, Georgia 30327 This 15th day of August, 2016. s/ Natasha L. Wilson ATL 21298560v18 Case 1:15-cv-00364-ELR-LTW Document 89-2 Filed 08/15/16 Page 36 of 36 - 1 - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FRANCHESA AKINS and ATLANTA ASSOCIATION OF CLASSIFIED EMPLOYEES, Plaintiffs, v. ATLANTA INDEPENDENT SCHOOL SYSTEM, MERIA JOEL CARSTARPHEN, COURTNEY D. ENGLISH, NANCY M. MEISTER, BYRON D. AMOS, CYNTHIA BRISCOE BROWN, ESHÉ P. COLLINS, JASON G. ESTEVES, LESLIE GRANT, STEVEN D. LEE, and MATT WESTMORELAND, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action File No.: 1:15-CV-00364-ELR-LTW APPENDIX OF EXHIBITS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56, Defendant Atlanta Independent School System (“AISS”) and Meria Joel Castarphen, Courtney D. English, Nancy M. Meister, Byron D. Amos, Cynthia Briscoe Brown, Eshé P. Collins, Jason G. Esteves, Leslie Grant, Steven D. Lee, Case 1:15-cv-00364-ELR-LTW Document 89-3 Filed 08/15/16 Page 1 of 7 - 2 - Matt Westmoreland (the “Individual Defendants”) (referred to collectively herein as “Defendants”) hereby respectfully submit this Appendix in Support of Defendants’ Motion for Summary Judgment. Exhibit No. Description 1 APS Employee Handbook (Akins Dep. Exhibit 28) 2 Memorandum of Understanding between AISS, the Board, and the Office of the Attorney General (AISS-AKINS 0001192) 3 Board Policy Manual Administrative Regulation GCB-R(1) (Hall Dep. Exhibit 52) 4 Civil Service Hearing Panel letter to Akins, dated September 4, 2014 (Favors000211) 5 Sutton Middle School Staff Handbook (Favors000342-000353) 6 Deposition of Woodbridge "Buck" Greene, May 31, 2016 7 Deposition of Franchesa Lawshawn (Akins) Favors, May 17, 2016 8 Akins’ training module transcript. (AISS-AKINS 0002213-0002215) 9 APS ethics training module (AISS-AKINS 0002225-2268) 10 Resolution Adopting Memorandum of Understanding (AISS-AKINS 0001209) 11 Deposition of Rebecca Kaye, June 17, 2016 12 Deposition of Courtney D. English, June 28, 2016 13 Declaration of Rebecca Kaye 14 Akins’ Official Administrative Transfer Notice, dated August 20, 2009 (AISS-AKINS 0001853) 15 AISS Responses to Plaintiff’s First Set of Interrogatories 16 School Clerk job description (Favors000367-369) 17 Administrative Transfer Notice, dated September 22, 2006 (Favors000291) Case 1:15-cv-00364-ELR-LTW Document 89-3 Filed 08/15/16 Page 2 of 7 - 3 - Exhibit No. Description 18 Emails to Akins regarding employment status and flexible schedule for 200-day employees (Favors000488-490) 19 Declaration of Audrey Sofianos 20 Akins’ performance evaluations (Akins Dep. Exs. 3, 5, 6, 7) 21 Deposition of Jacqueline Middlebrooks, June 1, 2016 22 Email dated, January 14, 2014, from Principal Sofianos to Sutton Faculty/Staff (Favors000378) 23 Email from Principal Sofianos to Akins, dated January 6, 2014 (Favors000384) 24 Email from Principal Sofianos to Sutton Faculty/Staff, dated January 23, 2014 (Favors000375) 25 Email from Akins to Principal Sofianos, dated January 13, 2014 (AISS-AKINS_0000464) 26 Akins’ FMLA Claims Processing Form (AISS-AKINS 0000452) 27 Akins’ FMLA Request Form (AISS 0000449) 28 Akins’ Medical Impression from treating doctor (AISS- AKINS_000453-459; AISS-AKINS 0000474-477) 29 Email from Comenthia Williams, Absence Management Specialist, to Akins, , dated February 17, 2014 (AISS-AKINS 0000460) 30 Email from Comenthia Williams, Absence Management Specialist, to Akins and Principal Sofianos, dated February 17, 2014 (AISS- AKINS 0000466) 31 Facsimile from Harlen Akins to Comenthia Williams (AISS-AKINS 0000468-469) 32 Letter from Comenthia Williams, Absence Management Specialist, to Akins, dated March 24, 2014 (AISS-AKINS 0000473) 33 Email from Comenthia Williams to Akins, dated March 25, 2014 (AISS-AKINS 0000478) 34 Email from Audrey Sofianos to Comenthia Williams, dated April 16, Case 1:15-cv-00364-ELR-LTW Document 89-3 Filed 08/15/16 Page 3 of 7 - 4 - Exhibit No. Description 2014. (AISS-AKINS 0000484-486) 35 Email correspondence between Comenthia Williams and Akins, dated April 21, 2014 (AISS-AKINS 0000500-502) 36 APS 2013-2014 Academic Calendar (Favors000206) 37 Email from Sofianos to Akins, dated May 19, 2014 (Akins Dep. Ex. 10) 38 Deposition of Pamela Hall, June 9, 2016 39 Buck Greene’s Administrative Transfer document (AISS-AKINS 0001956-1957) 40 Principal Greene’s Welcome Letter to Sutton Middle School faculty and staff (Akins Dep. Ex. 18) 41 APS 2014-2015 Academic Calendar (Akins Dep. Ex. 16) 42 Letter from Principal Greene to Akins (Akins Dep. Ex. 19) 43 Email correspondence regarding Carey’s August 26, 2014 request (AISS-AKINS 0001565; 0001593-1595) 44 Akins’ 8:01 a.m. voice message to Jennifer Miller (AISS-AKINS 00002133) 45 Transcription of Akins’ 8:01 a.m. voice message (AISS-AKINS 00002134) 46 Georgia Department of Labor Hearing Transcript, dated August 18, 2015 (Favors001109-001248) 47 Email from Trisha Slaughter to Buck Greene, dated July 25, 2014 (AISS-AKINS 0002136) 48 Letter to Akins from Pamela Hall, Chief Human Resource Officer, dated August 13, 2014 (Hall Dep. Ex. 46) 49 Charles Carey’s Letter to the Civil Service Hearing Panel, dated August 28, 2014 (Hall Dep. Ex. 53) 50 Civil Service Hearing Panel letter to Akins, dated September 4, 2014 (Hall Dep. Ex. 54) Case 1:15-cv-00364-ELR-LTW Document 89-3 Filed 08/15/16 Page 4 of 7 - 5 - Exhibit No. Description 51 APS Board Policy No. GCB-R(1) (Hall Dep. Ex. 52) 52 Email from Pamela Hall to Charles Carey, dated August 25, 2014 (Hall Dep. Ex. 56) 53 Akins email to APS Human Resources Department, dated January 23, 2014 (Favors000358-362) 54 Declaration of Pamela Hall 55 Akins’ April 2014 Internal Complaint 56 Email from Devetrice Hinton to the Office of Internal Compliance, dated August 5, 2014 (Favors 000357) 57 Office of Internal Compliance Investigation Report (Hall Dep. Ex. 44) 58 Appointment invite from George Williams to Akins, dated September 8, 2014 (AISS-AKINS 0001466) 59 Georgia Department of Labor Administrative Hearing Officer Decision (AISS-AKINS 0002216-2220) 60 Georgia Department of Labor Board of Review Decision (AISS- AKINS 0002221-2222) 61 Fulton County Superior Court Final Order, No. 2015CV267059 62 Email correspondence regarding Carey’s August 26, 2014 request (AISS-AKINS 0001565; 0001593-1595) 63 Email from Charles Carey to Kent Johnson, dated September 10, 2014 (AISS-AKINS 0001568-1573) 64 Akins’ July 24, 2014 voicemail transcript (AISS-AKINS 0002135) 65 U.S. Equal Employment Opportunity Commission Charge of Discrimination, dated May 9, 2014 (Favors001047-1048) 66 U.S. Equal Employment Opportunity Commission Charge of Discrimination, dated June 5, 2014 (Hall Dep. Ex. 42) 67 U.S. Equal Employment Opportunity Commission Charge of Discrimination, dated August 25, 2014 (Hall Dep. Ex.43) Case 1:15-cv-00364-ELR-LTW Document 89-3 Filed 08/15/16 Page 5 of 7 - 6 - Exhibit No. Description 68 U.S. Equal Employment Opportunity Commission Right to Sue Letter, dated August 27, 2015 (AISS-AKINS 0001562-1563) 69 Fulton County Superior Court Complaint, Civil Action No. 2014-cv- 250955 70 Fulton County Superior Court Final Order, No. 2014CV250955 Respectfully submitted this 15th day of August, 2016. /s/ Natasha L. Wilson Ernest L. Greer Georgia Bar No. 309180 greere@gtlaw.com Natasha L. Wilson Georgia Bar No. 371233 wilsonn@gtlaw.com Joshua B. Portnoy Georgia Bar No. 940597 portnoyj@gtlaw.com Mellori E. Lumpkin Georgia Bar No. 358937 lumpkinm@gtlaw.com GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road, NE, Suite 2500 Atlanta, Georgia 30305 Tel.: 678.553.2100 Attorney for Defendants Case 1:15-cv-00364-ELR-LTW Document 89-3 Filed 08/15/16 Page 6 of 7 - 7 - CERTIFICATE OF COMPLIANCE WITH L.R. 5.1 C I HEREBY CERTIFY that the foregoing APPENDIX OF EXHIBITS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Response to was prepared in Times New Roman, 14-point font, as approved by Local Rule 5.1C. /s/ Natasha L. Wilson Attorney for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing APPENDIX OF EXHIBITS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will automatically send electronic notification of such filing to the following counsel of record: Rakesh N. Parekh, Esq. PAREKH LAW LLC P.O. Box 250654 Atlanta, Georgia 30327 This 15th day of August, 2016. s/ Natasha L. Wilson ATL 21406215v3 Case 1:15-cv-00364-ELR-LTW Document 89-3 Filed 08/15/16 Page 7 of 7 EXHIBIT 1 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 1 of 30 4 DEFENDANT'S EXHIBIT 2-6 rb il16f \ ,r+°''?', » 4 ; A Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 2 of 30 Atlanta Public Schools Employee Handbook ; .u,, i à Welcome Welcome to the 2014 -2015 school year with Atlanta Public Schools! Thank you in advance for your service and dedication to Atlanta's children and the Atlanta Public Schools as we open a new chapter in our journey toward becoming a system that is one of the nation's top performing urban school districts in which all students will become lifelong learners equipped with the appropriate skills and competencies to be contributing members of society. Whether your contribution is in the classroom, in transporting or feeding students so they are ready to learn, in ensuring clean and safe learning environments, or in managing district resources, your efforts are critical to achieving our shared goal. So while our job descriptions may vary, our focus is the same: student success. With your continued dedication and support, we will move closer to the goal of excellence in all that we do for students every day in every classroom throughout the district. UPDATES FOR 2©14-1 g for A(( Employees By December 12, 2014, all employees will again be required to complete the annual online training on ethics and professional standards at APS. Training must be completed by Friday, December 12, 2014 as a condition of employment. Check your APS e -mail and the training link, myPLC, for more details. Completion of the annual training is mandatory for all employees. Failure to complete the training by the deadline will result in disciplinary action up to and including termination. Ne; EMpl oyee.AssCsta.nceProénleat Effective July 1, 2014 Fei Behavioral Health will be the new EAP provider for APS. Completely confidential, the Employee Assistance Program (EAP) provides resources to help resolve personal concerns that may be affecting your health, well- being, family life or job performance. It provides confidential assistance to you and your family members 24/7. See page 20 for more information. Flexible Scheduling Days for 200 and '' 3 e3,ty st;at The calendars for 2014 -15 include a standard schedule for all 200 and 220 -day staff members. At the discretion of the supervisor, some contract days for 200 and 220 -day employees may be switched for days needed to support effective school operations. All staff members must be on duty each day of the student year unless they have approved leave for the absence. Work year Examples of staff groups Number of flexible days 200 -day Counselors, instructional coaches 10 220 -day Assistant principals, social workers 30 See your manager to receive more information about the flexible dates you will work. Lost revised December 2014 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 3 of 30 Atlanta Public Schools Employee Handbook q ' Pay increases for' 2014 -ßf_5 Atlanta Public Schools' FY2015 budget has NO scheduled furlough days. Recommendations for employee pay increases were finalized and will take effect on July 1, 2014. Fulltime APS employees hired: FY2014 will receive a one -time bonus of: 1% up to $500 FY2013 will receive a raise of: 1% FY2012 will receive a raise of: 2% FY2011 will receive a raise of: 3% FY2010 will receive a raise of: 4% FY2009 or earlier will receive a raise of: 5% Strategic Flan 20'15-2 020 In December 2014, the Atlanta Board of Education approved a five -year strategic plan for APS. The guiding principles of the strategic plan are the Four E's: Excellence ... in everything we do Equity... in the distribution of district resources Ethics... to protect our integrity Engagement... with our community The strategic plan also includes our updated district mission, vision and strategic goals. Mission With a caring culture of trust and collaboration, every student will graduate ready for college and career. Vision A high -performing school district where students love to learn, educators inspire, families engage and the community trusts the system. Strategic Goals Academic Program - Our students will be well- rounded individuals who possess the necessary academic skills and knowledge and are excited about learning. Talent Management - We will retain an energized and inspired team of employees who are capable of advancing ever -increasing levels of achievement for students of all backgrounds. Systems and Resources - We will improve efficiency (productivity, cost, etc.) while also making decisions (including resource allocations) that are grounded in a strategic academic direction and data. Di Culture - We will build trust with the community, and we will have engaged stakeholders (employees, students, parents, community members, partners, etc.) who are invested in the mission and vision and who support the creation of student -centered learning communities. Last revised December 2014 2 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 4 of 30 Atlanta Public Schools Employee Handbook ',ti' z F The following are selected policy updates that are new for the 2014 -15 school year. The APS Policy Manual has moved! Go to: http: / /www.atlanta.k12.ga.us /policy to access the new manual in the BoardDocs management system. Click on this link to access online training on policy in APS and the new manual. Adobe FlashPlayer 9+ is required. Policy GAMA Possessions of Weapons by Employees, Visitors and Other Persons - All Atlanta Public Schools facilities and property including administrative offices are considered to be within school safety zones. The board prohibits the possession of weapons on APS property, in the school safety zone, and at school- sponsored activities, as defined in O.C.G.A. §16 -11- 127.1. Pursuant to state law, firearms may be stored in any privately owned vehicle of any district employee while parked at any school district facility so long as the employee has a valid firearms license or permit, and the firearm is locked out of sight within the trunk, glove box, or other enclosed compartment or area within the vehicle. Policy GAEB Discrimination, Harassment, and Retaliation - Atlanta Public Schools prohibits discrimination, including harassment, based on a person's race, color, religion, sex, citizenship, ethnic or national origin, age, disability, medical status, military status, veteran status, marital status, sexual orientation, gender identity or expression, genetic information, ancestry, or any legally protected status. Acts of discrimination or harassment committed by any APS employee are violations of this policy and will result in disciplinary action up to and including termination. Atlanta Public Schools prohibits retaliation against any person who has reported in good faith and /or cooperated with an investigation of discrimination or harassment. Acts of retaliation in violation of this policy will result in disciplinary action being taken against an offending employee up to and including termination. See pages 10 -11 for more information. Last revised December 2014 3 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 5 of 30 Atlanta Public Schools Employee Handbook i'( Table of Contents Welcome 1 UPDATES FOR 2014 -15 1 Required Online Ethics Training for All Employees 1 New Employee Assistance Program 1 Flexible Scheduling Days for 200 and 220 -day staff 1 Pay Increases for 2014 -15 2 Strategic Plan 2015 -2020 2 Policy News 3 Introduction 7 About This Handbook 7 Mission 7 About APS 7 Administration 8 Atlanta Board of Education 8 Equal Employment Opportunity 9 Our Shared Values 9 Ethics 9 Reporting Violations and Whistleblower Protection 9 Corporal Punishment 9 Drug -free Workplace 10 Smoking 10 Falsification of Records 10 Discrimination, Harassment, and Retaliation 10 Sexual Misconduct & Harassment 11 Sexual Misconduct 11 Sexual Harassment 11 Child Abuse and Neglect 12 Employee Organizations 12 Complaints & Due Process 12 Complaint Policy Purpose 12 Last revised December 2014 4 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 6 of 30 Atlanta Public Schools Employee Handbook What is a Complaint /Grievance? 12 Before Filing a Formal Complaint /Grievance 12 Policy Exclusions 13 Beginning Employment at APS 13 Required Documents 13 E -mail 13 Working at APS 13 Work Year 13 Workday Schedules & Punctuality 14 Emergency Closings 14 Dress Code 14 Records Management /Retention 14 Retention Schedule 15 Open Records 15 Subpoenas 16 Legal Holds 16 Electronic Media Usage 16 Unauthorized Tape Recordings 17 Infectious Diseases 17 Weapons 17 Care of Your APS Work Environment 17 Pay & Benefits 18 Pay Dates 18 Paid Holidays 18 Direct Deposit 18 Payroll Deductions 18 Salary Level 18 Summer Salary 19 Enrollment of Your Children in APS 19 Credit Unions 19 Supplemental Retirement Savings 19 Annual Open Enrollment 19 Last revised December 2014 5 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 7 of 30 Atlanta Public Schools Employee Handbook Employee Assistance Program (EAP) 20 Flex Plan 20 Insurance Choices 20 Workers' Compensation 20 Retirement 21 Leaves of Absence 21 Sick Leave/ Family and Medical Leave Act (FMLA) 21 Maternity, Paternity & Child Adoption Leave 22 Personal Leave 22 Annual Leave /Vacation 22 Bereavement Leave 22 Educational Leave 23 Military, Government Service & Political Campaign Leave 23 Jury Duty 24 Leave for Employee Representatives 24 Disputes Regarding Leave Balances 24 Your Personnel Records 24 Annual Evaluation 24 Change in Job Status 25 Change in Personal Status 25 Reduction in Force 25 Separation Process 25 Records to Retain after Separation 26 Confidentiality and Access to Personnel Records 26 Employment Verification 26 Ending Employment with APS 26 Retirement 26 Resignation 27 Last revised December 2014 6 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 8 of 30 Atlanta Public Schools Employee Handbook; Introduction About :This 'handbook The Atlanta Public Schools Employee Handbook is designed to communicate the Atlanta Public Schools' (APS) major policies and procedures. The most current version of the Atlanta Public Schools Employee Handbook can be found in PDF format in the myAPS Employee Resource Center. This document is current as of the date noted in the lower left hand corner of each page. APS uses several resources to create this handbook. Resources include federal and state laws, Georgia Board of Education rules, Atlanta Board of Education policies and the administrative regulations of the APS superintendent. Throughout this document, you will find blue, underlined hyperlinks to the online policy manual and other useful information sources. Follow the links to learn more. If you have questions- ` Ask your immediate supervisor. Follow the hyperlinks to the online policy manual throughout this handbook. Visit http: / /www.atlanta.k12.ga.us /site /Default.aspx ?PagelD =211 for the online policy manual. Contact the Office of Employee Relations at (404) 802 -2345 or Rebecca Kaye, Policy Office at rkaye @atlantapublicschools.us or (404) 802 -2897. No handbook can include or anticipate every issue, question or concern that may arise. Each employee is required to be knowledgeable about the policies and regulations of APS and implement them in a spirit of good faith. When in doubt, please ask before you make a decision that could violate a law or policy and endanger your employment with the district. The contents of this handbook are intended to provide a brief overview of the most commonly referenced policies -it may not include every piece of information you need to know. APS reserves the right to revise, expand or discontinue this information at any time. Only the superintendent and the board may approve changes to Atlanta Public Schools policies and administrative regulations. If there is a conflict between the information in this handbook and any law, rule, policy or regulation of the United States, state of Georgia, Georgia Board of Education, Atlanta Board of Education or Atlanta Public Schools, the law, rule, policy or regulation is the controlling authority. Mission With a caring culture of trust and collaboration, every student will graduate ready for college and career. About APS Established by ordinance of the Atlanta City Council, the Atlanta Public Schools (APS) opened three grammar schools and two high schools in 1872 to educate the youth of the city. These openings brought the total number of schools offering free education to the city's children to seven, as the Freedman's Bureau had established two schools for "Negro" children in 1866. Lost revised December 2014 7 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 9 of 30 Atlanta Public Schools Employee Handbook The primary objective of the district has not changed from those early days. In the 21st century, APS has a renewed focus on student success and strives to prepare every child for the future through effective and innovative teaching. Families, teachers, students and the community are encouraged to fully participate in the educational process that offers rigorous academics and relevance to everyday life, and builds strong relationships among students, peers and adults. Total enrollment in the 2013 -14 school year was just under 50,000 students in grades kindergarten through 12 in traditional and charter schools. APS will operate 105 schools in 2014 -15:53 elementary, 15 middle schools, 21 high schools and 18 charter schools. The district employs roughly 3,500 teachers and some 3,000 support staff in administrative, civil service, transportation, food service, leadership and other roles. Administration The superintendent is the APS chief executive officer and implements the policies and vision set by the Atlanta Board of Education. The senior leadership team of the district provides strategic direction for each division of the district. The senior leadership team is as follows: Deputy Superintendent ° General Counsel Chief Accountability and Information Chief Financial Officer Officer ° Chief Human Resources Officer a Chief Academic Officer Chief Operations Officer The superintendent and senior leadership team are located in the Center for Learning and Leadership (CLL) at 130 Trinity Ave SW, Atlanta, GA 30303. r \tlanta Board of I dutatioff The Atlanta Board of Education is an elected, nine -member body charged with overseeing the management of the Atlanta Public Schools. The board has many responsibilities; however, its main functions are to approve the budget, to adopt policy, and to hire and evaluate the performance of the superintendent. Six members are elected to represent the six educational districts of the city of Atlanta. Three additional at -large members are elected citywide. Board members are: District 1: District 2: District 3: District 4: District 5: Leslie Grant Byron Amos Matt Westmoreland Nancy Meister Steven Lee District 6: Eshé Collins At -large Seat 7: Courtney English At -large Seat 8: Cynthia Briscoe Brown At -large Seat 9: Jason Esteves The board meets on a regular basis throughout the year on a schedule available on the Web site. Board meetings and the board office are located in the Center for Learning and Leadership at 130 Trinity Ave SW, Atlanta, GA 30303. The monthly legislative meetings of the board are televised on PBA 30, a broadcast service of the Atlanta Public Schools. Lost revised December 2014 8 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 10 of 30 Atlanta Public Schools Employee Handbook ; , Fä¢)as E zir l: ßc8 fe APS generally follows the rules designated by the Georgia Secretary of State for the retention and destruction of records. In a few instances, APS retains records for longer than the state required period. For example, APS retains leave status records of separated employees through retirement to ensure that former employees receive full benefits from the Teachers' Retirement System. See the table below for some common records in APS. Type of Record Retention Period E -mail Retention period is determined based on the content, not the format of records. Many emails need only be maintained for the useful life of the information contained, but if the email documents a decision or other type of record that must be retained, it must be kept according to the schedule. General correspondence 5 years Visitors logs and sign -in sheets 2 years Accident reports (student or visitor) 5 years Class rolls 3 years Teacher lesson plans 2 years Employee work schedules, time records and leave records 3 years Daily /monthly activity reports 2 years Publications (newsletters, handbooks, brochures, etc) Permanent Travel authorizations and reimbursements 3 years Records documenting the destruction of records 7 years See the APS Retention Schedule for full details about what must be retained and for how long. Open Reeords The Georgia Open Records Act requires that most public records be subject to inspection by the public upon request. In general, we must produce all available records within a three -day time frame. If you receive a request from a member of the public, contact Open Records at (404) 802- 2811 or openrecords @atlantapublicschools.us immediately. If you receive a request for records from the Open Records office, follow all instructions and produce all records by the deadline. The Open Records office will determine if portions of the records should not be released and Last revised December 2014 15 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 17 of 30 Atlanta Public Schools Employee Handbook ! communicate with the requester on behalf of the district. Srabl:t . eua ti A subpoena is an enforceable court order requiring a person to appear at a certain time and place to provide testimony in court or by deposition. Some subpoenas require the production of records and other tangible things. If you fail to comply with a proper subpoena, you could be held in contempt of court; so if you receive a subpoena, you should make it a top priority. If you receive a subpoena related to APS business (e.g., students, personnel, etc.) you should immediately inform your building or worksite administrator and work with the administrator to determine (1) what information is being sought by the subpoena, (2) whether any student /family or employee privacy rights are at issue, and (3) the type and duration of leave that may be required in order to comply with the subpoena. Contact the Legal Department at (404) 802 -2801 with questions. t eg'1 . Htiicìs When APS receives a notice from certain governmental agencies (e.g. Equal Employment Opportunity Commission, Office for Civil Rights) and when it is involved in litigation, we are required to preserve records associated with the matter until final disposition. If this applies to you, you will receive a notice from. the Office of the General Counsel detailing the records that must be preserved. If you receive this notice it is important that you not destroy any records, even if those records would not be required to be maintained under the district's records retention schedule. "Records" means all paper and electronic files including Microsoft Word documents, Excel spreadsheets, Power Point presentations, memoranda, letters, emails, charts, handwritten notes, notebooks, meeting notes, logs and agendas, appointment books, telephone note pads and logs, notes of conversations, existing drafts, files inherited from other employees, archives, calendars, file folders and jackets in which documents are contained, information contained in a mobile phone, personal digital assistant (PDA), smart phone or any other external hard drive, USB drive, thumb drive, flash drive, memory stick, DVD, CD or floppy disc. When in doubt preserve and direct all questions to the Legal Department at (404) 802 -2801. Electronic Meth. (.sag: Any electronic activity conducted via the APS network or using APS computers- including the APS e- mail account -is subject to inspection and monitoring. There should not be any expectation of privacy. Electronic systems should primarily be used for instructional and administrative support. Limited personal use is permitted. Use of APS Internet and technology resources is a privilege that may be revoked at any time. If you violate the national, state, local and system provisions about the use of electronic resources, you will lose access to the electronic network and /or face disciplinary actions. Examples of inappropriate use include accessing or sending offensive materials or messages, including sexually explicit, defamatory, abusive, obscene or profane images /messages; racial or ethnic slurs; or threats. Other examples include messages or images promoting illegal activities such as controlled substances, partisan political activities or sectarian religion. Lost revised December2014 16 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 18 of 30 Atlanta Public Schools Employee Handbook For details, please refer to policy IFBG Internet Acceptable Use. Unauthorized Tape ßáa ̂ con.Hng^ Conversations and communications generally should be free and open among employees. So you and /or anyone acting on your behalf may only use audio or video to record or reproduce any conversation among employees while on APS premises and /or while conducting APS business if you get the expressed, written consent of everyone engaged in the conversation or communication. APS may record public presentations, board meetings, hearings, grievances, procurement activities and official investigations. If you violate this policy, it can lead to employee discipline, up to and including losing your job. For details, please refer to policy GAGC Employee Ethics. j£"4jt'ofS If you have a medical condition that poses a substantial health or safety threat to your school or workplace, you must leave the premises until your attendance on duty no longer poses such a threat. APS relies upon public health and medical experts' advice to determine when to require your removal and permit your return to work. For details, please refer to policy GARA Employee Health Examinations. Weapons The board shall act forcefully to control anyone who brings weapons of any kind to school or school - sponsored activities. Anyone who unlawfully brings weapons to school or school functions shall be subject to prosecution under the provisions of the law. APS employees who violate this policy are also subject to disciplinary action. For details, please refer to policy GAMA Safe and Drug -Free Workplace. Care of Your A.I'S Work. Ei.v f femmetit Please follow these guidelines from the Facilities Services department to help maintain the cleanliness and safety of your work space. Refrain from dragging furniture and file cabinets across floors. Please request assistance or use dollies. Please use only wall mounting tape and tabs to affix materials to the walls. Avoid using masking, packing or duct tape, staples, and glue in direct contact with all wall surfaces. Windows in classrooms should only be opened in emergency situations. if Exterior doors should never be propped or left open. Breakfast in the classroom: ensure that all debris is placed in the appropriate container and placed in the hallway after breakfast. Custodians will not enter the classroom once the school day has begun to discard breakfast trash. Refrain from storing food items and /or food containers in desks and closets. This reduces the need for pest services in the building. Refrain from disposing of any food items in the classroom sinks. Recycling: separate all debris from paper and cardboard and place in the appropriate containers. Break down all empty boxes and place them in the designated recycle areas. last revised December2014 17 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 19 of 30 Atlanta Public Schools Employee Handbook;, If you have questions, please contact your supervisor or Alvah Hardy, executive director of facilities at ahardy ®atlantapublicschools.us or (404) 802 -3730. Pay & Benefits Pay Dates All APS employees are paid on the 15th and the last day of each month. If the 15th or the last day of the month falls on a weekend, employees are paid on the Friday prior to the weekend. Paid lioiidat,%s As a benefit of employment, all employees of APS receive holiday pay. 190 -day, 191 -day, 200 -day and 220 -day employees receive 11 paid holidays each year. Annual duty (242 -day) employees receive 12 paid holidays per year. The paid holidays are as follows: Independence Day (annual duty only) Labor Day Thanksgiving (2) Winter holidays (3) New Year's Day Martin Luther King Jr. Birthday Spring holidays (2) Memorial Day I)d & opt )Deposit All payroll checks are directly deposited into employees' bank accounts. APS does not issue paper checks or pay stubs. Payment information is delivered electronically through the e -APS employee portal under "Employee Self Service." Log in using your Lawson ID number and your APS password. Payroll i)ecduciaorts The Payroll Department must deduct the following items from your paycheck: Federal and state income taxes; Medicare tax of 1.45 percent of your age if APS hired you after March 31, 1986, or if you work part time (daily or hourly); and Pension contributions, depending upon your employment status. Other deductions that have been approved by the board may be taken directly from your paycheck, such as a parking fee for employees with assigned spaces in the Center for Learning and Leadership deck and any voluntary contribution you choose to make to the APS Employee Consolidated Giving Campaign. t'y Level All positions are assigned a level on board -approved pay scales. There are varying steps for each position, and your initial level is assigned based on your prior salary and experience. For budgetary reasons, employees will not receive step increases or cost -of- living increases for the 2013 -14 school year. Lost revised December 2014 18 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 20 of 30 Atlanta Public Schools Employee Handbook , ' Summer SAary The pay for full -time employees on 190, 191, 200 and 220 day schedules who are present for the full contract year is prorated in 24 installments throughout the year including the summer months. Summer pay will also be prorated for 190, 191, 200 and 220 day employees who are present for at least one -quarter of the school year if they are Employed after the beginning of the regular school year, Separated from the school system after the regular school year ends, or Absent from duty without pay during any part of the required period of employment. For details, please refer to policy GARD Employee Hiring and Compensation. Eni n>( xxxt rnt rn A``ertan t )x))dat ° + °xx äáa APS All regular, full -time employees may enroll their children in APS tuition -free as a benefit of your employment. All enrollments of APS employees' children in APS schools must be processed through the Office of Student Relations unless you are a bona fide resident of the city of Atlanta and you are enrolling your child in your zoned school. School -based employees with children in grades and programs available at their schools may apply for a work site transfer, regardless of available transfer spaces at your school. For a transfer to any other school besides your work site and for all transfers for employees who are not based at a single school, you must apply for a transfer to a school with space available through the School Choice Transfer process. Contact the Office of Student Relations at placements @atlantapublicschools.us or (404) 802 -2204 or (404) 802 -2233 for details. Credit, Unions Credit unions are members -only, not -for -profit financial institutions that use their earnings to pay dividends to their members and to offer them lower loan rates, higher savings rates and fewer service fees than for -profit banks. As an APS employee, you are eligible to join these credit unions: Atlanta Teachers Federal Credit Union - 261 Joseph E. Lowery Blvd., NW Atlanta, GA 30314 (404) 525 -3218, http : / /www.atlantateachersfcu.com / Pinnacle Credit Union -536 North Ave., NE Atlanta, GA 30308 (404) 888 -1648, http://www.pinnaclecu.ora Supplemental Retirement Savings APS encourages employees to save for retirement. We provide a variety of options for 403(b) savings accounts and IRAs through the Lincoln Financial Group. For details, please contact the Employee Benefits department via the Web site or by calling (404) 802 -2393 or (404) 802 -2344. Anna Enrollment Each employee must re- enroll in the flexible benefits program annually. You will lose your benefits for the following calendar year if you fail to complete open enrollment. Watch your APS e -mail in October for instructions on how to enroll and for dates and times when the Employee Benefits department will be able to provide you with assistance with open enrollment. Lost revised December 2014 19 Case 1:15-cv-00364-ELR-LTW Document 89-4 Filed 08/15/16 Page 21 of 30 Atlanta Public Schools Employee Handbook y . Ern n)o ca,.3.ssistance Prngrain (f EA P) EAP's confidential assessment and referral services address personal and workplace challenges, such as substance abuse, financial concerns, family or childcare issues, and workplace conflict. If you are having personal problems that affect your job performance, well -being or overall productivity, EAP can help. Please note that APS does not receive information regarding individual employee use of EAP -your privacy is protected! EAP counselors are available to you 24 hours a day, seven days a week, 365 days a year for assessment and referral. Website access at www.feieap.com; username: aps Toll -free number: 1- 800 -638 -3327 Legal services: one telephonic consultation /or 30- minute in person legal consultation per legal matter Financial services: one telephonic consultation per financial matter For details, please see the EAP section of the Web site or refer to policy GARA Employee Health Examinations. Hex Pi.