Akins v. Atlanta Independent School System et al

REPLY BRIEF re MOTION for Summary Judgment

N.D. Ga.November 21, 2016

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’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 1 of 28 1 Defendant APS and the Individual Defendants respectfully submit this reply in support of their Motion for Summary Judgment. I. Defendants Are Entitled To Summary Judgment on Plaintiffs’ GORA Claims. Plaintiffs’ GORA claims fail as a matter of law because: (1) Akins has no standing; (2) res judicata bars AACE’s GOMA claims; and (3) APS complied with GORA by responding in a timely manner and informing Plaintiffs that it has no responsive records. A. Akins Lacks Standing To Bring Claims Under GORA. Plaintiffs contend Akins has standing to assert claims under the GORA based on the request submitted by Carey because Carey has submitted requests on behalf of Akins and other members of AACE in the past.1 However, Plaintiffs provide no factual or legal support for their argument which directly contravenes the well-established rule that GORA does not allow a party 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). Accordingly, Akins’ GORA claim fails. B. AACE’S Claims Are Barred By Res Judicata. Plaintiffs contend that the doctrine of res judicata is inapplicable to their GORA claims as the dismissal of the prior state court suit did not amount to a dismissal on the merits because the suit was dismissed as a result of Carey not having authority to bring such a suit since he is not an attorney. 1 Plaintiffs do not dispute that AACE representative Charles Carey never indicated in his open records requests that he represented Akins or that he was making the requests on her behalf. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 2 of 28 2 However, none of the cases cited by Plaintiffs stand for that proposition.2 No cases state that a dismissal of a lawsuit on the basis that it was filed by a non-attorney is not a dismissal on the merits. Accordingly, the doctrine of res judicata bars AACE’s GORA claim which has already been adjudicated on the merits. C. APS Complied With GORA. Plaintiffs’ GORA claims relate to two open records requests in which Carey specifically sought (1) a July 23, 2014 voicemail allegedly left by Akins for secretary Jacqueline Middlebrooks at 10:19 P.M. and (2) a July 24, 2014 voicemail allegedly left by Akins at left at 4:59 A.M. APS responded to each of these requests, informing Carey that APS was not in possession of the specific voicemails sought. [D.E. 118-4, pp. 10, 17.] See also Pls. Ex. Z, Middlebrooks Dep. p. 66:5-7. Notwithstanding the undisputed evidence, Plaintiffs baselessly claim that a genuine issue of material fact exists as to whether APS was in possession of these voicemails at the time Carey requested them. Perplexingly, however, Plaintiffs have provided no evidence to substantiate their claims. Instead, Plaintiffs contend a genuine issue of material fact exists as to whether APS was in possession of voicemails requested by Carey on July 23, 2014 and July 24, 2014 simply because APS later produced a voicemail left by Akins at 8:01 A.M. on July 24, 2014. However, this argument disregards the fact that the erroneous specificity of Carey’s GORA request precluded APS from producing the July 24, 2014 voicemail at the time requested. In fact, when APS suggested that Carey amend his 2 See, e.g., S.E.C. v. Merch. Capital, LLC, 486 F. App’x 93, 94 at n. 1 (11th Cir. 2012) (court had no jurisdiction over appeal because proper notice of appeal was never filed). Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 3 of 28 3 request for the July 24, 2014 voicemail to include a time frame broader than 4:59 A.M., Carey refused to do so. See Defs. Ex. 63; Carey Dep. pp. 130:20-131:14, Ex. 3. Plaintiffs cannot now save their GORA claim by attempting to expand the scope of the GORA requests. II. Defendants Are Entitled To Summary Judgment on Plaintiffs’ GOMA Claims. In response to Defendants’ Motion for Summary Judgment on Plaintiffs’ GOMA claims, Plaintiffs contend that their claims are not time barred and that issues of fact exist as to whether Defendants violated GOMA. Plaintiffs’ arguments are without foundation in law or fact.3 A. Plaintiffs’ Claims Are Time Barred. Plaintiffs’ contend that their GOMA claims “are not time barred because they relate back to the date of the original complaint (12/23/14)” under Fed. R. Civ. P. 15. [D.E. 118-1, p. 13] This argument directly contravenes the plain language of O.C.G.A. § 50-14-1(b)(2), which expressly limits a person’s ability to contest an action to “not more than six months after the date the contested action was taken.” Nowhere does the statute permit a claim to relate back to the date of the original pleading. Accordingly, Rule 15(c)(1)(A) is inapplicable. Moreover, the relation-back provision of Fed. R. Civ. P. 15(c)(1)(B) applies only to a “claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out-in the original pleading.” (Emphasis added). Plaintiffs’ December 23, 2014 Complaint only alleged claims under GORA, the FMLA, and for 3Plaintiffs (through their counsel) have repeatedly represented throughout discovery that the “Open Meetings Act claims are not AACE claims.” [Carey Dep. at p. 8:13-14]. To the extent AACE is now seeking damages under GOMA, it should be precluded from doing so. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 4 of 28 4 mandamus - not GOMA. [D.E. 1-1] Therefore, any GOMA claims based on alleged violations occurring on or before February 18, 2015 are statutorily time-barred. B. APS Fully Complied with GOMA 1. APS Timely Posted Summaries. Contrary to Plaintiffs’ contention, the record evidence shows APS indisputably posted the summaries of the actions taken at the monthly meetings from February 2014 through June 2015 on its website within two days after adjournment of the meetings. Defs. Ex. 11, Kaye Dep. pp. 31:21-22, 86:15-16, 132:15-16, 153:25-154:1. In a desperate effort to overcome APS’s evidence, Plaintiffs rely on the September 29, 2016 self-serving and uncorroborated declaration of Carey concluding that “the meeting summaries for the Board’s meetings from September 2014 to June 2015 were not posted on the website within 2-3 business days following meeting.” [D.E. 118-7, p. 6, ¶ 19.] Plaintiffs’ reliance on Carey’s declaration is misplaced for at least two reasons. First, Carey’s declaration fails to address summaries for meetings from February 2014 through August 2014 and, therefore, does not establish a genuine issue of material fact as to whether APS timely posted summaries for those meetings. Second, paragraph 19 of Carey’s declaration is inadmissible because it is directly contradicted by his prior sworn testimony that he was not personally aware of any evidence to support Plaintiffs’ claim that APS failed to make summaries available in a timely manner. See Carey Dep., pp. 54:7-55:5. Under the sham affidavit rule, Plaintiffs cannot use Carey’s declaration to create a genuine issue of material fact on their GORA claims. See Rodriguez v. Jones Boat Yard, Inc., Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 5 of 28 5 435 F. App’x 885, 887 (11th Cir. 2011). 2. APS Timely Posted Meeting Agendas. Plaintiffs likewise fail to rely on admissible, probative evidence to support their claim that APS failed to make agendas publicly available in advance of its meetings held between from February 2014 through June 2015. In support of their claim, Plaintiffs cite to an outdated version of Board Policy BC. Plaintiffs also rely on an affidavit executed by a former APS employee on February 4, 2014 submitted in a separate, unrelated lawsuit. This affidavit is inadmissible, irrelevant, and fails to controvert the evidence presented by Defendants because it was executed prior to the meetings forming the basis of Plaintiffs’ GOMA Claims.4 Moreover, the undisputed evidence as it relates to the meetings between September 2014 and June 2015 shows that APS made the agendas for these meetings available through BoardDocs several days prior to the meetings. See Defs. Ex. 11, Kaye Dep. at pp. 31:16-18, 119:17-120:3, 120:7-19, 121:23-122:2; Defs. Ex. 13, Kaye Decl. ¶ 8.] The undisputed evidence further shows that the agendas for the September 2014 through June 2015 Legislative Meetings were the same as the agendas for the Committee of the Whole Meetings unless the board used its standard parliamentary procedures to modify the agenda during the Committee of the Whole Meeting before posting to BoardDocs prior to the start of the legislative meeting. Defs. Ex. 13, Kaye Decl. ¶ 8. APS also provided the agendas in 4APS has objected to the admissibility of this affidavit in its Objection to Plaintiffs’ Use of Evidence Not Disclosed During the Discovery Period In Support Of Their Response to Defendants’ Motion for Summary Judgment filed contemporaneously herewith. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 6 of 28 6 hard copy prior to (and during) each meeting. Id. at ¶ 10. 3. The Board Did Not Improperly Discuss Matters Not Listed On Agendas. Although Plaintiffs generally claim that the “Board discussed and/or voted on items at its meetings that we not listed on its agendas,” [D.E. 118-1, p. 12], Plaintiffs point to no evidence to support this conclusion. Rather, Plaintiffs generally cite to Section 7.0 of several pages of meeting agendas without explanation. To the extent Plaintiffs cite to Section 7.0 of the agendas to contend that the Board is required to include items discussed during executive session on its agendas, that claim fails as a matter of law because GOMA does not require a governmental agency to publish agendas for executive sessions. This is because an executive session is, by definition, not a meeting under GOMA; rather an executive session is simply “a portion of a meeting lawfully closed to the public.” O.C.G.A. § 504-14-1(a)(2) (emphasis added). Meanwhile, the requirement that an agency make available an agenda applies only to a “meeting.” See O.C.G.A. § 50-14-1(e)(1) (“Prior to any meeting, the agency or committee holding such meeting shall make available an agenda of all matters expected to come before the agency or committee at such meeting.”) (emphasis added). Accordingly, the proffered basis for Plaintiffs’ GOMA claim is without merit. III. No Genuine Issue Of Material Fact Exists As To Whether Akins Abandoned Her Job. The crux of many of Akins’ claims is that she was involuntarily terminated from APS. However, Akins has failed to set forth any evidence beyond her own conclusory, self-serving Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 7 of 28 7 speculation to rebut the fact that Akins abandoned her job, and therefore, voluntarily resigned under APS Board Policy. Akins does not dispute that as an employee of SMS she was required to follow both APS’s and SMS’s absence policies. See Defs. Ex. 5 (Favors_000342-353); Defs. Ex. 38, Hall Dep. pp. 170:22-171:19. See also Defs. Ex. 1, p. 21. SMS policy specifically required that any absence from work be reported to an assigned administrator by 9:00 PM the night before the absence, and that the employee receive “a confirmation reply in some manner.” See Defs. Ex. 5, p. 11. Consequently, Akins’ unexcused and unreported absences for four consecutive days - from July 22, 2014 through July 25, 2014 - resulted in a determination that Akins abandoned her job pursuant to APS Board Policy GARH-R(2). See Defs. Ex. 4; Pls. Ex. P, p. 3. Notwithstanding the APS and SMS absence reporting policies, and despite being scheduled to begin work with APS on July 22, 2014, Akins has set forth no competent evidence to rebut the fact that she failed to report to any SMS administrator by 9:00 P.M. on July 21-24, 2014 that she would be absent on July 22-25, 2014, or that she received any confirmation reply from the principal. See Defs. Ex. 42. Unsurprisingly, the only evidence Akins provides in support of her claim that she did not abandon and voluntarily resign her job is her own affidavit testimony which only confirms that Plaintiff failed to notify any SMS administrator of her absence prior to 9:00 P.M. on July 21, 22, or 23, 2014. See Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 8 of 28 8 Pls. Ex. A ¶¶ 20-21.5 However, Akins cannot meet her burden of proof by relying upon her own uncorroborated and unsubstantiated testimony. See Discovery Sun P’ship, Ltd. v. Kapsomenakis, No. 95-1068-CIV, 2000 WL 1881203, at *4 (S.D. Fla. June 21, 2000) (“The Court finds no other evidence that refutes Castro’s testimony, as Defendant’s own self-serving affidavit is insufficient to defeat the Motion for Summary Judgment.”); Brown v. Winn-Dixie Stores, Inc., No. CV 214-052, 2015 U.S. Dist. LEXIS 66021, at *35 (S.D. Ga. May 20, 2015) (“self-serving affidavits are not sufficient to create an issue of fact for trial”); Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). Accordingly, Akins cannot rely upon her after-the-fact affidavit to oppose Defendants’ Motion for Summary Judgment. IV. Judicial Estoppel Is Inapplicable And Does Not Rebut The Undisputed Fact That Akins Voluntarily Abandoned Her Job. Plaintiffs claim that Defendants should be judicially estopped from arguing that Akins abandoned her job “because APS successfully argued, in its opposition to Akins’ application for unemployment benefits in superior court, that she was terminated/dismissed as a result of violating APS’ attendance policy.” [D.E. 118-1, p. 17] However, Plaintiffs attempt to mislead this Court by cherry- picking a portion of the superior court hearing transcript out of context. The entirety of Plaintiffs’ cited 5Akins claims that she called SMS and left a voicemail at 10:19 PM on July 23, 2014 and 4:59 AM on July 24, 2014. See Pls. Ex. A ¶¶ 20-21 Akins’s affidavit does not contend that she received any confirmation reply from an SMS administrator upon receipt of her untimely voicemails. See id. To the extent Akins also relies upon the after-the-fact declaration and phone records of her sister Fabrenia Favors, who was never identified in Akins’ deposition testimony as witnessing Akins’ call, Fabrenia Favors’ phone records are inadmissible as they are hearsay and have not been authenticated by Verizon. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 9 of 28 9 exchange reveals that APS’s argument today is consistent with the argument set forth before the Fulton County Superior Court on April 18, 2016. See, e.g., Pls. Ex. N, 23:5-16 (“The way the policy reads is that three or more consecutive absences will constitute job abandonment. So it’s - it’s a de facto thing. . . . It’s just a basic violation of the district’s attendance policy, your Honor. She missed four days of work without permission. That was enough to terminate her.”). During Akins’ unemployment appeal hearing, counsel for APS made the same arguments set forth in Defendants’ Motion for Summary Judgment - that Akins’ unauthorized absences for four consecutive days resulted in de facto job abandonment and voluntary resignation pursuant to Board Rules. APS counsel’s off-the-cuff characterization of Akins’ separation and fleeting references to “termination” does not change the fact that APS investigated and determined that Akins abandoned her job. Nevertheless, statements of APS’ prior counsel are not evidence admissible on a motion for summary judgment or at trial. See United States v. Jacoby, 955 F.2d 1527, 1541(11th Cir. 1992) (“statements of counsel are not evidence”); McCulley v. Allstates Tech. Servs., No. 04-0115-WS-B, 2005 U.S. Dist. LEXIS 41550, at *42 (S.D. Ala. June 21, 2005) (“unsupported representations of counsel are not evidence . . . considered on a motion for summary judgment.”). Contrary to Plaintiffs’ position, judicial estoppel is only applicable when (1) “inconsistent positions were made under oath in a prior proceeding,” and (2) “such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.” Burnes v. Pemco Aeroplex, 291 F.3d 1282, 1285 (11th Cir. 2002). As explained above, APS did not, in a prior proceeding, take a position Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 10 of 28 10 inconsistent with that asserted in its Motion for Summary Judgment. Further, Plaintiffs have not and cannot set forth any evidence demonstrating that the remarks of APS’s prior counsel were calculated to intentionally mislead the Court. See id. at 1287 (“judicial estoppel applies in situations involving intentional contradictions, not simple error or inadvertence.”). Therefore, the doctrine of judicial estoppel is inapplicable to this case. V. The APS Board Rules Unambiguously Demonstrate That Akins Did Not Suffer An Adverse Employment Action. In a last-ditch attempt to persuade this Court that Akins did not voluntarily abandon her job, and therefore, is entitled to a disciplinary hearing reserved for those employees who suffered an “adverse action,” Plaintiffs argue that APS has adopted an “unreasonable interpretation of ‘dismissal’ and ‘adverse action.’” [D.E. 118-1, p. 18] Plaintiffs argue that Akins was subjected to “dismissal” from APS and should have been provided with a disciplinary hearing. A disciplinary conference is only available to employees who suffer an adverse action. See Defs. Ex. 3, p. 7. “Adverse actions” are specifically defined as (1) dismissal; (2) suspension without pay; and (3) demotion. See id., p. 1. APS Board Rules also define the term “dismissal” as “separation from the employ of the district for cause or based upon position abolition or reduction-in-force.” Id. Akins sets forth no evidence that APS terminated her “for cause” or that she suffered a position abolition or reduction-in-force. Tellingly, the term “dismissal” does not include job abandonment or voluntary resignation which are addressed separately under GARH-R(2). Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 11 of 28 11 Moreover, notwithstanding Plaintiffs’ argument regarding the interpretation of Board Rule GCB-R(1), APS should be afforded deference in its determination that Plaintiff failed to satisfy the requirements for a disciplinary conference under its own legislatively-enacted rules. In somewhat analogous scenarios, Georgia courts have held that “in construing administrative rules, ‘the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the [rule].” Atlanta Journal v. Babush, 257 Ga. 790, 792, 364 S.E.2d 560, 562 (1988). See also Upper Chattahoochee Riverkeeper, Inc. v. Forsyth Cnty., 318 Ga. App. 499, 502, 734 S.E.2d 242, 245 (2012) (“we must defer to an agency’s interpretation and enforcement of its own rules.”); Pruitt Corp. v. Ga. Dep’t of Cmty. Health, 284 Ga. 158, 158, 664 S.E.2d 223, 225 (2008) (same).6 VI. Akins Cannot Raise a Section 1983 Claim For The First Time At Summary Judgment To Salvage Her Baseless Mandamus Claim. In a desperate attempt to overcome Defendants’ argument that Akins’ mandamus claim fails as a matter of law because Akins has no clearly established right to a disciplinary conference, Akins asserts for the first time in this litigation that she is entitled to a disciplinary conference pursuant to 42 U.S.C. § 1983 6Also, to the extent Plaintiffs claim that this Court should overrule APS’s interpretation of its rules and determination that Akins abandoned her job [D.E. 11-1, p. 19], APS should be afforded discretion in the management of its personnel in accordance with Board Rules. It is well-established that “state and local authorities have a compelling, legitimate interest [cit.] and broad discretion in the management of school affairs.” Terry v. Houston Cnty. Bd. of Educ., 178 Ga. App. 296, 297, 342 S.E.2d 774, 775 (1986). Consequently, the ability to separate personnel when deemed necessary to the proper functioning of the schools, in accordance with its rules, “is essential to the exercise of authority over a school system.” Id. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 12 of 28 12 because she has not been afforded pre-deprivation and post-deprivation due process. [D.E. 118-1, pp. 20-26] However, it is well-established in this Circuit that “[a] plaintiff may not amend her complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004). “At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a).” Id. Heretofore, Defendants have not been apprised of any Section 1983 claim,7 and “[l]iberal pleading does not require that, at the summary judgment stage, defendants must infer all possible claims that could arise out of facts set forth in the complaint.” Id. at 1315. For that reason, this Court should dismiss Akins’ Section 1983 due process claim. See, e.g., Smith v. Mobile Shipbuilding & Repair, Inc., No. 16-10321, 2016 U.S. App. LEXIS 17947, at *16 (11th Cir. Oct. 4, 2016); Brisk v. Shoreline Found., Inc., No. 15-13028, 2016 U.S. App. LEXIS 9537, at *10 (11th Cir. May 25, 2016).8 VII. Defendants Are Entitled To Summary Judgment on Akins’ FMLA Interference Claim. Akins argues that APS violated her rights under the FMLA; however, the only evidence Akins relies upon to support her claim is her own self-serving affidavit testimony that former SMS Principal 7 Plaintiffs validate Defendants’ argument that Akins has not previously asserted a Section 1983 claim by virtue of the fact that Plaintiffs now seek leave to amend their Complaint for a third time to assert a Section 1983 claim on Akins’ behalf for the first time - a request made exactly three months (or 90 days) after Defendants filed their motion for summary judgment. [D.E. 123] 8 Furthermore, because Akins abandoned her job, she did not have any property right in her employment on which to base a due process claim. See, e.g., Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995) (employee’s voluntary resignation does not deprive employee of any protected interest in employment, and therefore, cannot sustain due process claim); Soloski v. Adams, 600 F.Supp.2d 1276 1313 (N.D. Ga. 2009) (same). Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 13 of 28 13 “Sofianos told Akins that the reason she was not interviewed was because she took FMLA leave.” [D.E. 118-1, p.27] But this testimony, even if accepted as true, cannot sustain a claim for FMLA interference. To establish a prima facie case of FMLA interference, 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. Appx. 854, 860 (11th Cir. 2014). Here, the undisputed fact that Akins was granted FMLA leave and permitted to return from FMLA leave to the same job belies any allegation that APS interfered with her FMLA leave. See Defs. Exs. 26, 27, 28, 35. Thus, APS is entitled to summary judgment on her interference 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). VIII. Defendants Are Entitled To Summary Judgment on Akins’ FMLA Retaliation Claim. As demonstrated in Defendants’ Motion for Summary Judgment, Akins’ FMLA retaliation claim fails as a matter of law because she cannot point to a scintilla of evidence establishing the adverse employment action and causation elements of her claim. A. Akins Did Not Suffer An Adverse Employment Action. Akins contends that she suffered an adverse employment action because she was “discharged” from APS. But as explained supra in Section III, Akins voluntarily resigned her job. Akins also contends that she suffered an adverse employment action because former SMS Principal Sofianos temporarily relocated her desk from a private office to a hallway with other school clerks to assist with Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 14 of 28 14 end-of-year activities. Perplexingly, however, Akins does not address the consistent authority within this Circuit that a lateral move that does not result in a tangible change to the terms and conditions of her employment is not an adverse employment action. See Whitehead v. Norfolk S. Ry. Co., 53 F.Supp.2d 1380, 1382-83 (M.D. Ga. 1999).9 Thus, Akins has not established the adverse employment action prong of her retaliation claim. B. Akins Cannot Establish Causation. Defendants’ Motion for Summary Judgment posits that Akins cannot establish causation on her FMLA retaliation claim because the temporal proximity between her FMLA leave and her alleged termination are too attenuated and encompass several months. [D.E. 89-1, pp. 29-21] In her Response Brief, Akins contends that she has established temporal proximity because only 16 days elapsed between when she returned to APS from summer break on July 28, 2014 and when she was purportedly terminated on August 13, 2014. [D.E. 118-1, p. 29] Akins posits that this Court should exclude the 54 days that she was away on summer break from its temporal proximity calculation 9In her Response Brief, Akins also contends for the first time that she was retaliated against under the FMLA when she was denied a promotion. [See D.E. 118-1, p. 28] Notably, the only bases for FMLA retaliation asserted in Akins’ Second Amended Complaint were (1) termination and (2) relocation of her desk. [D.E. 23 ¶¶ 94-98] Akins only alleged that former Principal Sofianos’ alleged failure to promote her constituted FMLA interference. [See D.E. 23 ¶ 91] As articulated supra in Section VII, however, Akins has not established a prima facie case of FMLA interference. Nonetheless, Akins cannot now save her FMLA retaliation claim by asserting a never-before-pled adverse employment action. “A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.” Waithe v. Arrowhead Clinic, No. CV 409-21, 2012 U.S. Dist. LEXIS 30595, at *12 (S.D. Ga. Mar. 7, 2012). For these reasons, Akins’ purported FMLA retaliation based upon a denied promotion is without merit. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 15 of 28 15 because the earliest that APS could retaliate against her was when she returned to APS on July 28, 2014. [See D.E. 118-1, p. 29] However, Akins ignores that she returned to APS from FMLA leave on April 21, 2014, and therefore, worked for approximately 44 days before summer break began on June 4, 2014. [See D.E. 11-1, p. 29] Thus, even excluding Akins’ summer break, 60 days or two months elapsed between Akins’ return from FMLA leave and her purported termination. Notably, a two-month gap between two events has been found to be enough of a delay to preclude an inference of causation. See Williams v. Waste Mgmt., Inc., 411 Fed. Appx. 226, 229-30 (11th Cir. Jan. 25, 2011).10 Moreover, Akins’ intervening misconduct - specifically failing to report her absences - breaks any causal connection between her protected activity and alleged termination. “[T]here is no causal connection between a protected act and an adverse action, where the adverse action was caused by intervening act of misconduct.” Brisk, 2016 U.S. App. LEXIS 9437, at *4. See also Henderson v. Fedex Express, 442 Fed. Appx. 502, 507 (11th Cir. 2011); Murrell v. Kohler, No. CV-10-S-2056-NE, 2012 U.S. Dist. LEXIS 83425, at *41-42 (N.D. Ala. June 15, 2012) (plaintiff’s failure to comply with a “no-call” policy that stated an employee voluntarily abandoned his job when he failed to telephone his 10Notwithstanding Akins’ argument, the cases that she cites in support of her position that her summer break should be excluded from the temporal proximity calculation are distinguishable from the instant case because the adverse employment action occurred on the first day the plaintiff returned from medical leave. See, e.g., Bosco v. Lincare, Inc., No. 1:12-cv-059 (WLS), 2014 U.S. Dist. LEXIS 40698, at *17 (M.D. Ga. Mar. 27, 2014); Dixon v. Ware, No. 1:12-CV-3922-TWT-JFK, 2013 U.S. Dist. LEXIS 85508, at *11 (N.D. Ga. May 20, 2013). Here, Akins worked for nearly two months before she abandoned her job. Therefore, Akins’ cases are inapposite. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 16 of 28 16 absence for three consecutive days prior to the beginning of shift constituted an intervening act breaking any inference of causation on retaliation claim). Additionally, Akins has failed to set forth any evidence contradicting the testimony of APS Chief Human Resources Officer (CHRO) Pamela Hall that she was unaware of Akins’ FMLA leave at the time she determined Akins abandoned her job. See Defs. Ex. 54, ¶¶ 4-9. Mere temporal proximity is insufficient evidence of FMLA retaliation when there is “unrebutted evidence that the decision maker did not have knowledge that the employee engaged in protected conduct.” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1266, 1298 (11th Cir. 2006). See also Billingsley v. Mercedes-Benz, U.S., Int’l, Inc., No. 7:150cv-00840-RDP, 2016 U.S. Dist. LEXIS 130125, at *19 (N.D. Ala. Sept. 23, 2016). Plaintiff’s citation to Hall’s deposition testimony demonstrates only that Hall became aware of Akins’ purported complaints regarding various personnel at APS - at some point in time. [See D.E. 118-1, p. 30 n. 81] It does not contradict or rebut Hall’s sworn declaration that she was not aware of such complaints at the time she determined that Akins voluntarily abandoned her job. Akins’ speculation that Hall’s testimony is dubious invites this Court to make an improper credibility assessment when there is simply no counter evidence at all to weigh against Hall’s declaration. Such arguments regarding credibility issues do not create an issue of material fact on summary judgment. See Billingsley, 2016 U.S. Dist. LEXIS 130125, at *22. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 17 of 28 17 In addition, under the McDonnell-Douglas burden-shifting framework, even if Akins established a prima facie case of FMLA retaliation, Akins’ de facto abandonment of her job as a result of failing to report absences constitutes a legitimate, nonretaliatory reason for separation. See, e.g., Murrell, 2012 U.S. Dist. LEXIS 83425, at *43 (plaintiff’s violation of “No-Call” policy was legitimate reason for separation). IX. Defendants Are Entitled to Summary Judgment on Akins’ Georgia Whistleblowers Act (GWA) Claim. Akins’ GWA claim fails as a matter of law because (1) Akins did not disclose a violation of or noncompliance with a law, (2) has not suffered any adverse employment action, and (3) cannot demonstrate a causal connection between her alleged disclosures and any purported adverse employment actions. A. Akins Did Not Make Protected Disclosures. After failing to address the arguments articulated in Defendants’ Motion for Summary Judgment, Akins argues that her May 2014 and August 201511 EEOC Charges also constitute protected disclosures under the GWA in a last-ditch attempt to save her GWA claim for failure to disclose a violation of a law, rule, or regulation. [See D.E. 118-1, p. 31] But in her Second Amended Complaint, Akins only contends that she “engaged in conducted [sic] protected under the GWA by submitting her 1/24/, 4/24, and 7/28/14 complaints to Defendants APS’ Human Resources Department.” [D.E. 23, ¶ 105] Thus, Akins 11 Notably, Akins’ August 2015 Charge was not received by the EEOC until August 25, 2016 after Akins abandoned her job. Defs. Ex. 67. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 18 of 28 18 cannot be permitted at this late juncture to use her May and August EEOC charges as the foundation of her GWA claim. “The law of this Circuit forbids a plaintiff from amending its pleadings via arguments made in summary judgment briefs.” Fla. Found. Seed Producers, Inc. v. Ga. Farms Servs., LLC, No. 1:10-cv-125 (WLS), 2012 U.S. Dist. LEXIS 148140, at *57 (M.D. Ga. Sept. 28, 2012). B. Akins Did Not Suffer An Adverse Employment Action. Notwithstanding Akins’ belated “protected disclosures,” Akins’ GWA claim also fails as a matter of law because she has not suffered an adverse employment action for the reasons articulated supra herein. Defendants’ argument on this issue in its Motion for Summary Judgment, even unaltered, remains sufficient to defeat Akins’ claim of an adverse employment action as she has failed to set forth any authority or other legal justification for finding that a relocation from a private office to a desk in the lobby constitutes actionable retaliation under the GWA. See Cobb v. City of Roswell, 533 Fed. Appx. 888, 896 (11th Cir. 2013). C. Akins Cannot Demonstrate Causation Finally, Akins cannot demonstrate causation on her GWA claim because (1) there is no temporal proximity between her purported disclosures and the adverse employment action, and (2) there is no evidence that APS CHRO Hall, was aware of these protected disclosures on August 13, 2014. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 19 of 28 19 1. January 2014 and April 2014 Complaints To overcome the temporal proximity arguments set forth in Defendants’ Motion for Summary Judgment, Akins makes the same contentions used in support of her FMLA retaliation claim - that her time on FMLA leave and summer break must be excluded from the calculation of temporal proximity. However, even if there was close temporal proximity between Akins’ January /April 2014 complaints and her relocation to an office desk, there is no evidence to rebut testimony that the decisionmaker regarding her relocation, Principal Sofianos, was unaware of Plaintiff’s “complaints” at the time she made the decision to temporarily move Akins’ desk. See Ex. 19, Sofianos Decl. ¶ 12. In the absence of any evidence that Sofianos knew of Akins’ purported disclosure, Akins cannot establish the causation element of her retaliation claim. See, e.g., Forrester, 308 Ga. App. at 729, 708 S.E.2d at 670. With respect to Akins’ separation from APS, even if Akins’ summer break was excluded from the temporal proximity calculation for her January/April 2014 complaints, Akins worked for approximately 60 days before she was separated from APS. [See D.E. 118-1, p. 29] Importantly, a two-month gap between two events is sufficient to preclude an inference of causation. See, e.g., Campbell v. Advance Core Consulting, Inc., No. 5:14-cv-105 (CAR), 2016 U.S. Dist. LEXIS 40487, at *12 (M.D. Ga. Mar. 28, 2016); Gomez v. Valley Hospitality Servs., LLC, No. 4:11-cv-183 (CDL), 2013 U.S. Dist. LEXIS 107103, at *11 (M.D. Ga. July 31, 2013). Additionally, Akins has presented no evidence to contradict Hall’s testimony that Hall was unaware of Akins’ January/April 2014 complaints at the time of her determination that Akins abandoned her job. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 20 of 28 20 2. May 2014 and July 2014 Complaints Akins has also failed to present any factual evidence demonstrating causation between her purported May/July 2014 complaints and her August 2014 separation. [See D.E. 89-1, pp. 28-29] Akins offers no evidence that she submitted these complaints to Hall and offers no evidence to contradict Hall’s testimony that she was unaware of Akins’ prior complaints, including the circumstances and substance thereof, at the time she determined Akins voluntarily abandoned her job on August 13, 2014. And even assuming a short temporal proximity between Akins’ May/July 2014 complaints and her separation in August 2014, Akins’ intervening misconduct - specifically failing to report her absences - breaks any causal connection between her protected activity and alleged termination. See Brisk, 2016 U.S. App. LEXIS 9437, at *4. X. Akins Has Not Established Pretext On Her FMLA and GWA Retaliation Claims. APS is also entitled to summary judgment on Akins’ FMLA and GWA retaliation claims because Akins cannot establish that APS’s proffered reason for her separation was pretextual and that retaliation was the real reason behind her separation. An employee may show pretext by demonstrating “such weaknesses, implausibilities, inconsistences, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find [those reasons] unworthy of credence.” Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001). Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 21 of 28 21 In an attempt to prove that APS’s reasons for failing to interview Akins for the position of SMS secretary were pretextual, Akins sets forth nothing other than her own self-serving, unsupported, and conclusory testimony that the successful candidate, Jacqueline Middlebrooks, was interviewed before Akins had gone out on FMLA leave. [D.E. 11-1, p. 33] However, the unrebutted evidence demonstrates that SMS did not conduct its panel interviews for the secretary position until January 21, 2014. See Defs. Ex. 21, Middlebrooks Dep. p. 41:11-21; Defs. Ex. 22. Interestingly, Akins admits that she was on FMLA leave on January 21, 2014. See Pls. Ex. A, ¶11. Thus, Akins’ own evidence inherently contradicts the pretextual argument in her Response Brief. Next, Akins argues that “any apparent urgency in filling the position is debunked by the fact that Middlebrooks did not become Secretary until sometime in April even when interviews were conducted and the decision was made in January.” [D.E. 118-1, p. 33] However, that the bureaucratic approval process did not resolve itself for a few weeks and Middlebrooks did not receive official approval to hold the title of school secretary until April does not demonstrate that there was no need to fill the position immediately. In fact, Middlebrooks testified that she assumed 100% of the school secretary duties from the time Akins went on FMLA leave until she was officially named secretary in April 2014. See Defs. Ex. 24, Middlebrooks Dep. p. 83-84:9. Finally, Akins argues that the reasons for her separation were pretextual because she was permitted to work pending the investigation into her unauthorized absences, and Hall and former SMS Principal Greene’s testimony conflicted because “Greene was emphatic in asserting that he never Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 22 of 28 22 recommended that Akins be terminated.” [D.E. 118-1, p. 34 n.95] First, Akins’ unsubstantiated conjecture that her presence at SMS pending APS’s investigation into her unauthorized absences show her absences were not the real reason for her separation is insufficient to defeat a motion for summary judgment. See Cordoba, Inc., 419 F.3d at 1181 (“Speculation does not create a genuine issue of fact.”) (emphasis in original). Second, a closer look at the deposition excerpts cited in Akins’ Response Brief demonstrates that Hall’s and Greene’s deposition testimony are consistent in evincing a reasonable belief that Akins had voluntarily abandoned her job. See Defs. Ex. 54, Ex. A (Hall letter noting Akins’ principal suggested that she had abandoned her job); Defs. Ex. 6, Greene Dep. p. 100:5-9 (“I informed HR that I have an employee that, as far as I was concerned, was no call/no show for four days, which is a day beyond where we would refer someone for job abandonment per the policy.”) As Akins’ tendered evidence does not demonstrate any inconsistencies sufficient to rebut APS’s proffered reason for Akins’ separation, APS is entitled to summary judgment on Akins’ FMLA retaliation and GWA claims. See Brisk, 2016 U.S. App. LEXIS 9437, at *5; Murrell, 2012 U.S. Dist. LEXIS 83425, at *42 (defendant’s reason for plaintiff’s separation was not pretextual when plaintiff violated “no-call” policy).12 12 Further, a finding that Akins did not voluntarily abandon her job does not compel an inference of retaliation, because the burden of proving retaliatory intent remains at all times with the plaintiff. See Thomas v. Dolgencorp, LLC, 645 Fed. Appx. 948, 951 (11th Cir. 2016). “An employer is entitled to rely on a good faith belief that an employee has committed professional misconduct and does not need to prove that belief was correct.” Id. (finding no pretext when defendant conducted an investigation that yielded evidence upon which employer had a reasonable good-faith basis to believe that plaintiff Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 23 of 28 23 XI. Defendants Did Not Waive Their Res Judicata and Collateral Estoppel Defenses. Plaintiffs contend that Defendants have waived their res judicata and collateral estoppel defenses by failing to assert them in their Answer. [D.E. 118-1, p. 35] However, a party’s failure to plead an affirmative defense does not result in waiver. The purpose of Fed. R. Civ. P. 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it. Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989). “Thus, if a plaintiff receives notice of an affirmative defense by some means other than the pleadings, ‘the defendant’s failure to comply with Rule 8(c) does not cause the plaintiff any prejudice.’” Id. See also Lett v. Reliable Ruskin, No. 1:05cv479-WHA (WO), 2006 U.S. Dist. LEXIS 50541, at *12 (M.D. Ala. July 24, 2006). Here, Plaintiffs have not been prejudiced as they have had more than two months to respond to Defendants’ Motion for Summary Judgment. See id. (affirmative defense asserted in motion for summary judgment did not prejudice plaintiff when he had 20 days to respond).13 XII. The Individual Defendants Are Entitled to Qualified Immunity Under Both Federal and Georgia Law. violated work rules). Thus, APS’s good-faith belief that Akins abandoned her job based upon the evidence set forth herein precludes any finding of pretext. 13 Plaintiffs cite Flournoy v. Akridge, 198 Ga. App. 86, 400 S.E.2d 649 (1990) for the proposition that this Court cannot give preclusive effect to the findings of the Georgia Department of Labor. However, Flournoy is distinguishable from the instant case. There, the Georgia Court of Appeals refused to give preclusive effect to state administrative findings because the state courts did not have the opportunity to review the hearing officer’s findings on direct appeal. 198 Ga. App. at 88, 400 S.E.2d at 651. Here, Akins was afforded and pursued the opportunity to directly appeal the GDOL’s findings to the Fulton County Superior Court where they were affirmed. Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 24 of 28 24 The Individual Defendants are entitled to qualified immunity on all of Plaintiffs’ claims for the unchallenged reasons set forth in the Motion for Summary Judgment. See [D.E. 89-1, pp. 32-34] With respect to Plaintiffs’ federal claims, there is no evidence that the Individual Defendants were involved in any decisions relating to Akins’ FMLA leave. Therefore, the Individual Defendants cannot be responsible for violating any constitutional rights with respect to Akins’ FMLA leave and are entitled to qualified immunity. See, e.g., Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999); Sprinkle v. City of Douglas, 621 F.Supp.2d 1327, 1343 (S.D. Ga. 2008) (public officials were entitled to qualified immunity on FMLA claims). The Individual Defendants are also entitled to qualified immunity on Plaintiffs’ GOMA and GORA claims. Plaintiffs argue that the Individual Defendants are not entitled to qualified immunity and cite a Georgia Code provision that only applies to officers of a “municipal corporation,” which is defined as a “city,” “town,” “municipality,” or “village.” See O.C.G.A. § 36-30-1. APS is none of those. Thus, the cited Georgia Constitution provision which purportedly waives immunity for a municipal officer’s negligent failure to perform a ministerial act is inapplicable to the Individual Defendants. Under the correct Georgia law, qualified immunity protects individual public agents, including school board members, from personal liability for (1) discretionary acts taken within the scope of their official authority, done without willfulness and malice and (2) ministerial acts negligently performed or acts performed with malice or an intent to injure. Peach Cnty. Sch. Dist. v. Austin, 322 Ga. App. 368, Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 25 of 28 25 369, 745 S.E.2d 293 (2013). Plaintiffs do not dispute that compliance with GOMA and GORA requirements are mere ministerial duties. See [D.E. 118-1, pp. 37-38] Therefore, even if the Individual Defendants were negligent in their performance of the GOMA and GORA requirements, they remain entitled to qualified immunity. See Peach Cnty. Sch. Dist., 322 Ga. App. at 369, 745 S.E.2d at 293. Finally, the Individual Defendants are entitled to qualified immunity on Akins’ GWA claim because APS has articulated a legitimate, nonretaliatory reason for her separation - specifically her failure to report her absences and receive approval for such absences for four consecutive days. Notably, Georgia courts have held that decisions regarding the employment of school personnel are discretionary acts for which one can only recover if there is evidence that the public actor made the decision with actual malice or an actual intent to cause injury. Liberty Cnty. Sch. Dist. v. Halliburton, 328 Ga. App. 422, 429, 762 S.E.2d 138, 144 (2014). In the absence of any evidence that the Individual Defendants acted with malice or an intent to injure Akins by separating her from APS or purportedly denying her a disciplinary hearing, the Individual Defendants are entitled to qualified immunity on Akins’ GWA claim. See Reece v. Turner, 284 Ga. App. 282, 287-88, 643 S.E.2d 814 (2007). CONCLUSION In light of the foregoing, Defendants respectfully request that this Court grant Defendants’ Motion for Summary Judgment. Respectfully submitted this 21st day of November, 2016. /s/ Natasha L. Wilson Ernest L. Greer Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 26 of 28 26 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 Attorneys for Defendants 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 Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 27 of 28 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 21st day of November, 2016. /s/Natasha L. Wilson ATL 21672936v9 Case 1:15-cv-00364-ELR-LTW Document 124 Filed 11/21/16 Page 28 of 28