Hughes v. Fulton County, GeorgiaMOTION TO DISMISS FOR FAILURE TO STATE A CLAIMN.D. Ga.August 9, 2016IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JUANTISA HUGHES Plaintiff, v. FULTON COUNTY, GEORGIA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO.: 1:16-CV-01912 DEFENDANT’S PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT COMES NOW, by special appearance, purported Defendant Fulton County, Georgia, without submitting to the jurisdiction of this Court, and moves this Court to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. 12(b)(1) and 12(b)(6) for failure to state a claim upon which relief can be granted. In support of this Motion, purported Defendant Fulton County, Georgia relies upon the Memorandum of Law in Support of its Motion to Dismiss filed contemporaneously herewith. Respectfully submitted this 9th day of August, 2016. /s/ Laura S. Lewis Laura S. Lewis Georgia Bar No. 870394 laura.lewis@fultoncountyga.gov Case 1:16-cv-01912-CAP-JFK Document 7 Filed 08/09/16 Page 1 of 3 2 OFFICE OF THE FULTON COUNTY ATTORNEY 141 Pryor Street, Suite 4038 Atlanta, Georgia 30303 (404) 612-0246 (office) (404) 730-6324 (fax) Case 1:16-cv-01912-CAP-JFK Document 7 Filed 08/09/16 Page 2 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JUANTISA HUGHES Plaintiff, v. FULTON COUNTY, GEORGIA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO.: 1:16-CV-01912 CERTIFICATE OF SERVICE The undersigned hereby certifies that the DEFENDANT’S PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT was prepared using Times New Roman 14-point type in accordance with Local Rule 5.1 B and was electronically filed with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all attorneys of record. This 9th day of August, 2016. /s/ Laura S. Lewis Laura S. Lewis Georgia Bar No. 870394 laura.lewis@fultoncountyga.gov Case 1:16-cv-01912-CAP-JFK Document 7 Filed 08/09/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JUANTISA HUGHES, ) ) Plaintiff, ) Civil Action File No. ) 1:16-CV-01912 vs. ) ) FULTON COUNTY, GEORGIA ) ) Defendant. ) ___________________________________ ) DEFENDANT FULTON COUNTY, GEORGIA’S BRIEF IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS COMES NOW Defendant Fulton County, Georgia, (“Fulton County”) by and through its undersigned counsel, and hereby files this Memorandum of Law in Support of its Partial Motion to Dismiss Plaintiff’s Complaint showing this Honorable Court as follow: INTRODUCTION Plaintiff, Juantisa Hughes, filed her Complaint in the instant action on June 9, 2016. In her Complaint, Plaintiff asserts various claims against Fulton County arising under federal and state law, including claims for sexual harassment/hostile work environment and retaliatory hostile work environment pursuant to Title VII of the Civil Rights Act of 1964 and 1991, 42 U.S.C. § 2000e et seq. (Counts I and Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 1 of 23 2 II); Family and Medical Leave Act (“FMLA”) interference pursuant to 29 U.S.C. § 2601 et seq. (Count III); and breach of contract (Count IV). Plaintiff’s Complaint is subject to dismissal for the following reasons: (1) Plaintiff’s sexual harassment/hostile work environment claim is time barred; (2) Plaintiff’s retaliatory hostile work environment claim is also time barred, and Plaintiff failed to allege facts sufficient to state a viable cause of action; and (3) Plaintiff’s substantive state law claim fails as a matter of law because the personnel regulations alleged to have been violated by Fulton County do not create an employment contract. Accordingly, Counts I, II and IV must be dismissed as a matter of law. STATEMENT OF FACTS AS ALLEGED IN COMPLAINT According to the Complaint, Plaintiff worked as a Staff Investigator in the Office of the Public Defender from August 2005 until her termination on March 14, 2014. (Complaint, ¶¶ 6, 178, 198). Plaintiff alleges that throughout her employment with the Office of the Public Defender, she was subjected to continued hostility, retaliation and harassment by her immediate supervisor, Charles Reddick. (Complaint, ¶¶ 20, 25-35, 45-63, 81-96, 106-108, 117-122, 126, 131-141, 145, 157-160, 178-205). Plaintiff further alleges that Fulton County willfully interfered with her FMLA rights by neglecting to inform her of her Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 2 of 23 3 eligibility for FMLA leave. (Complaint, ¶¶ 162-165, 179-192). In addition, Plaintiff asserts that Fulton County failed to adhere to its own personnel regulations, thus breaching Plaintiff’s purported employment contract. (Complaint, ¶¶ 163-204). Specifically, Plaintiff’s alleges that she endured harassment by Reddick including conduct such as failing to provide Plaintiff with a private space to express milk upon her return from maternity leave; writing Plaintiff up for tardiness; insinuating that Plaintiff and another co-worker were romantically involved; turning co-workers against Plaintiff; and reassigning additional work to Plaintiff. (Complaint, ¶¶ 21, 26, 37, 52-63, 82, 108). Plaintiff asserts that she complained of the alleged harassment to Reddick’s supervisors, and on February 16, 2007, Plaintiff filed a grievance against Reddick challenging the write-up she had received for tardiness. (Complaint, ¶¶ 34, 41). Plaintiff alleges that Reddick’s harassment began again almost four months after Plaintiff’s grievance was filed. (Complaint, ¶¶ 45, 46-47, 49, 65-66). On November 6, 2009, Plaintiff filed an internal complaint of discrimination. 1 (Complaint, ¶ 111). The complaint was investigated and no cause 1 The Complaint does not expressly set forth the basis for Plaintiff’s internal complaint of discrimination filed on November 6, 2009. Thus, taking the facts as alleged by Plaintiff in sequential order, Defendant can only speculate that Plaintiff filed her complaint of discrimination Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 3 of 23 4 was found. (Complaint, ¶ 124). Nonetheless, Plaintiff alleges that Reddick’s harassment continued. (Complaint, ¶ 126-138). From mid-2012 through late 2013, Plaintiff alleges that Reddick began giving Plaintiff daily hugs and leaving personal gifts on her desk. (Id.). According to the Complaint, each incident of purported harassment took place between June 2006 and the date of Plaintiff’s termination on March 14, 2014. In late 2013, Plaintiff alleges that she experienced personal hardships, including her son’s medical diagnosis, which caused her to either be late or miss days at work. (Complaint, ¶¶ 142-143, 146-147). Ultimately, as a result of continued tardiness and absenteeism, Plaintiff was terminated on March 14, 2014. (Complaint ¶¶ 155, 163-165, 178-182, 198-199). Plaintiff now alleges that the discipline imposed (i.e. termination) violated the Fulton County Personnel Regulations, specifically Section 1800-2 regarding employee discipline, and thus constituted a breach of contract. (Complaint, ¶¶ 168-174, 177, 194, 200-202, 204). STANDARD OF REVIEW A complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) if it fails to allege facts that establish subject matter jurisdiction. See McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244 (11th Cir. 2007). [A] as a result of her return to Reddick’s immediate supervision on or around October 2009. (Complaint, ¶¶ 108-111). Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 4 of 23 5 motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint. If the challenge is facial, “the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised.” Accordingly, “the court must consider the allegations in the plaintiff's complaint as true.” Id. at 1251(quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981))(internal citations omitted). Likewise, for purposes of a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6), this Court must accept as true all factual allegations in the Complaint and construe them in the light most favorable to Plaintiff. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009). While such factual allegations need not be detailed, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, it is appropriate to “infer from the factual allegations in the complaint obvious alternative explanations, which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (2010). To survive a motion to Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 5 of 23 6 dismiss, the Complaint must show more than the mere possibility of entitlement to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). ARGUMENT AND CITATION OF AUTHORITY I. Plaintiff’s Sexual Harassment/Hostile Work Environment Claim is Time Barred and Must Be Dismissed. Plaintiff’s sexual harassment/hostile work environment claim is time barred and must be dismissed as a matter of law. Under Title VII, a plaintiff is required to exhaust his administrative remedies by first filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). Such charge “shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred …” 42 U.S.C. § 2000e-5(e)(1). All claims not filed within the statutory time limit are time barred. See Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1178 (11th Cir. 2005) (“[O]nly those practices that occurred within 180 days of the operative EEOC charge can form the basis for Title VII liability.”) (aff’d 550 U.S. 618 (2007)); Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1332 (11th Cir. 2000) (rev’d on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003)). Plaintiff bears the burden of showing that a timely charge was filed with the EEOC. See Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 6 of 23 7 With respect to a sexual harassment/hostile work environment claim, which unlike a discrete act involves recurring conduct, the unlawful employment practice occurs over time and a single act of harassment may not be actionable. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Therefore, it is irrelevant that “some of the component acts of the hostile work environment fall outside of the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered … for purposes of determining liability.” Id. at 117. However, the acts of harassment complained of must be part of the same actionable hostile work environment and at least one of such acts must have occurred within 180 days of Plaintiff’s EEOC charge. Id. at 120. In addition, in order to constitute part of the actionable sexual harassment/hostile work environment claim, the conduct must be of a sexual or gender-related nature. See Byrd v. Postmaster General, 582 Fed. Appx. 787, 790 (11th Cir. 2014) (“[O]nly conduct that is based on a protected category, such as religion or gender, may be considered in a hostile work environment analysis. … [C]onduct … unrelated to a protected ground [is] not counted.”) (quoting Gupta v. Fla Bd. of Regents, 212 F.3d 571, 583-84 (11th Cir. 2000) (rev’d on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006))). Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 7 of 23 8 In the instant action, Plaintiff alleges various incidents of workplace adversity and crude conduct 2 , only one of which transpired within the required statutory time period. Plaintiff was terminated from employment with Fulton County on March 14, 2014, almost exactly 180 days prior to her EEOC charge which was filed on September 10, 2014. (Complaint, ¶¶ 178, 198; see also Exhibit A 3 ). Each fact alleged in the Complaint occurring before March 14, 2014 is time barred unless Plaintiff’s termination is considered to be part of the actionable hostile work environment claim. However, the Complaint is devoid of any allegation that Plaintiff’s termination was at all related to sex or to her gender. 2 Plaintiff has also failed to plead facts which would establish a prima facie case of hostile work environment sexual harassment. Specifically, Plaintiff must demonstrate that: (1) she belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based upon her sex; (4) the harassment complained of was sufficiently severe or pervasive to alter the terms and conditions of employment; and (5) that there exists a basis for holding the employer liable. See Husley v. Pride Restaurants, LLC, 367 F.3d 1238, 1244 (11th Cir. 2004). Plaintiff’s allegations that Reddick did not provide her with a private space to express milk upon her return from maternity leave, wrote her up for tardiness, insinuated that Plaintiff and another co-worker were romantically involved, turned co-workers against her, and reassigned her additional work does not meet the fourth prong of a prima facie case of hostile work environment sexual harassment. Even Plaintiff’s allegations that Reddick gave her unsolicited hugs and gifts do not constitute conduct which could “alter the terms and conditions of employment.” 3 A true and correct copy Plaintiff’s EEOC Charge is attached hereto as Exhibit “A.” The Eleventh Circuit has held that “[b]ecause exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense… is not ordinarily the proper subject for a summary judgment; instead it should be raised in a motion to dismiss.” Bryant v. Rich, 530 F.3d 1368, 1375-76 (11th Cir. 2008). Id. at 1375-76. Accordingly, the Court may properly consider Plaintiff’s EEOC charges without converting Defendants' Motion into one for summary judgment. See, e.g., Lambert v. Ala. Dept. of Youth Servs., 150 F. App'x 990, 991–92 (11th Cir. 2005) (considering an EEOC charge of discrimination attached to a motion to dismiss in affirming the dismissal of plaintiff's Title VII claims). Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 8 of 23 9 Rather, Plaintiff alleges that she was purportedly terminated for chronic and unexcused absenteeism and tardiness. (Complaint, ¶¶ 178-182). Moreover, Plaintiff further alleges that Reddick, whom she identifies as the perpetrator of the alleged sexual harassment/hostile work environment, approved all of her leave requests at issue during the termination meeting on March 14, 2014. (Complaint, ¶ 192). Simply put, there is no indication that Plaintiff’s termination by Pitts was a continuance of the alleged sexual harassment by Reddick. Because the only timely act complained of (i.e. Plaintiff’s termination) is not gender-related or of a sexual nature, it cannot form part of Plaintiff’s actionable hostile work environment claim. See Gupta, 212 F.3d at 583 (“[S]tatements and conduct must be of a sexual or gender-related nature – sexual advances, requests for sexual favors, or conduct of a sexual nature, before they are considered…”). With no timely allegations of sexual harassment/hostile work environment for this Court to consider, Count I of Plaintiff’s Complaint must be dismissed as a matter of law. II. Plaintiff Has Failed to State a Claim for Retaliatory Hostile Work Environment Claim and Her Claim is Also Time Barred. In support of Count 2, retaliatory hostile work environment, Plaintiff relies on allegations contained in Paragraphs 1 – 10, 17 -30, 36 – 50, 57 – 60, 64 – 126, 155 – 163, 178 – 205 and 229 – 246. (Id. ¶ 229). Plaintiff concludes that she Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 9 of 23 10 engaged in three acts of protected activity: (1) filing a grievance; (2) filing an internal complaint of discrimination; and (3) exercising her freedom of speech rights. (Id. ¶ 230). Most of the factual allegations relied on by Plaintiff, however, do not make out such a claim or indicate Plaintiff exhausted her administrative remedies with respect to this claim. A. Plaintiff failed to allege facts sufficient to infer a retaliatory hostile work environment claim, and thus, the claim should be dismissed. To survive a motion to dismiss on a retaliatory hostile work environment claim, Plaintiff must allege sufficient facts that show: “(1) she engaged in protected activity, (2) after doing so, she was subjected to unwelcome harassment, (3) her protected activity was a ‘but for’ cause of the harassment, and (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment.” Baroudi v. Secretary, U.S. Dept. of Veterans Affairs, 616 Fed. App’x 899, 904 (11th Cir. 2015) (citing Gowski v. Peake, 682 F.3d 1299, 1311–12 (11th Cir. 2012)). Whether harassment is severe or pervasive is an objective and subjective inquiry. Id. “That is, the employee must subjectively perceive the harassment as severe or pervasive enough to change the terms of her employment, and the harassment must result in an environment that a reasonable person would find hostile or abusive.” Id. In evaluating the objective component, the Court must consider “the frequency and severity of the retaliatory conduct, as well as whether Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 10 of 23 11 it (1) is physically threatening or humiliating, and (2) unreasonably interferes with the employee's job performance.” Id. With respect to the first prong – engaging in protected activity – Plaintiff alleges that she engaged in the following protected activity pursuant to Title VII: (1) filing a grievance; (2) filing an internal complaint of discrimination; and (3) exercising her freedom of speech rights. 4 (Complaint, ¶ 230). February 16, 2007 Grievance The supposed acts of retaliation forming a hostile work environment following Plaintiff’s grievance are too far removed from the alleged protected activity to make out a retaliation claim. “[I]n the absence of other evidence tending to show causation, if there is a substantial delay between the protected expression and the adverse action, the complaint of retaliation fails as a matter of law.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Plaintiff has met her burden of pleading causation only if she has offered facts showing a “very close” proximity between the protected activity and the adverse employment action. Id. (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). 4 Exercising freedom of speech is not a protected activity for purposes of Title VII and Plaintiff’s Complaint does not contain any actions connected to retaliation for exercising freedom of speech. Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 11 of 23 12 In Williams v. Waste Mgmt., Inc., 411 F. App’x 226, 227 (11th Cir. 2011), an employee claimed that he had been retaliated against in violation of Title VII and § 1981. The court began by noting that the same substantive analysis applies to each claim. Id. at 229 n.3. Looking to the “causal link” prong, the court commented that “[c]ausation may be inferred by close temporal proximity between the protected activity and the adverse employment action.” Id. at 229. If temporal proximity alone is relied upon to show causation, a substantial delay between the protected expression and adverse action causes a retaliation claim to fail as a matter of law. Id. The plaintiff had filed a complaint in January 2006 and claimed that in retaliation his employer failed to promote him in March 2006. Id. The court determined that a two-month gap in time was not “very close” and, accordingly, that the plaintiff had failed to establish a prima facie case. Id. at 230. Plaintiff filed her grievance on February 16, 2007. (Complaint, ¶ 41). The first alleged act following Plaintiff’s grievance did not occur until more than three months after the grievance was filed. According to Plaintiff in June or July 2007, in retaliation for filing a grievance regarding the write up for tardiness, Reddick tried to “destroy” Plaintiff’s relationship with co-workers and “sabotage[e] her ability to get her work done.” (Complaint, 2-1 ¶ 45). Plaintiff further alleges additional actions by Reddick thereafter. (Complaint, 2-1 ¶¶ 46-47, 49, 65-66). Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 12 of 23 13 Plaintiff alleges more retaliatory actions by Reddick that supposedly occurred during the time Reddick did not supervise Plaintiff, from February 2008 to October 2009. (Complaint, ¶ 18). Even assuming all the actions by Reddick collectively form an adverse employment action, the alleged adverse employment action did not commence until four months after the protected activity that occurred on February 16, 2007. This time frame is well beyond the two-month time gap that was deemed insufficient in Williams. As a result, Plaintiff’s retaliatory hostile work environment claim is due to be dismissed. See Edmonds v. Southwire Co., 58 F.Supp. 3d 1347, 1354 (N.D. Ga. 2014) (dismissing a complaint that failed to allege a causal connection between the protected activity and the adverse employment action). November 6, 2009 Internal Complaint of Discrimination As stated above, to allege a retaliation claim, Plaintiff must first allege facts sufficient for this Court to infer that she engaged in protected activity. Protected activity does include every complaint about one’s employment. “An employee engages in protected activity if he opposes an employment practice based on a good faith, reasonable belief that the practice violates Title VII.” Williams v. Ga. Dept. of Corrections, 2014 WL 3956039 at *4 (N.D. Ga. Aug. 13, 2014) (citing Bryant v. United States Steel Corp., 428 F. App'x 895, 898 (11th Cir.2011); Little Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 13 of 23 14 v. United Techs., 103 F.3d 956, 960 (11th Cir.1997)). “An internal complaint about unfair treatment or general harassment, without an allegation of discrimination based on race, sex, or national origin, is not protected activity.” Id. Even at the motion to dismiss stage, a plaintiff must still outline facts that indicate a relationship between protected activity and an adverse retaliatory action. Id. Although a plaintiff may engage in protected activity by filing an internal complaint of discrimination, “the plaintiff must demonstrate that she subjectively believed her employer was engaged in unlawful employment practices and that this subjective belief was objectively reasonable in light of the facts and record presented.” Enadeghe v. Ryla Teleservices, Inc., No. 1:08–CV–3551–TWT, 2010 WL 481210, *8 (N.D. Ga. Feb. 3, 2010) (citing Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir. 1998)). According to her Complaint, Plaintiff’s internal complaint of discrimination was filed on November 6, 2009. [Complaint, ¶111]. From the facts alleged in the Complaint, however, there is no way to determine if the internal complaint of discrimination opposed unlawful employment practices prohibited by Title VII. Thus, there are no facts that would allow this Court to infer that Plaintiff engaged in protected activity when she filed her internal complaint of discrimination on Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 14 of 23 15 November 6, 2009. Consequently, Plaintiff’s retaliation claim based on her internal complaint of discrimination should be dismissed. B. Plaintiff’s Title VII retaliatory hostile work environment claim must be dismissed because Plaintiff has not pled sufficient facts to show she met all the statutory conditions precedent to filing this suit in this court. Although Plaintiff concludes that she met all the conditions precedent for this actions, none of the facts alleged in the Complaint infer that she filed a timely Charge of Discrimination alleging a hostile work environment. Before bringing a hostile work environment claim under Title VII, a plaintiff must first file an EEOC Charge outlining conduct “that reasonably points to the kind of pervasive and oppressive conditions that would allow this Court to conclude that Plaintiff intended to have the EEOC investigate the workplace for a hostile work environment.” See Houston v. City of Atlanta, No. 1:15-CV-03112-TWT-WEJ, 2015 WL 9701039, *4 (N.D. Ga. Dec. 7, 2015) (quoting Ramon v. AT & T Broadband, 195 F. App’x 860, 866 (11th Cir.2006)). The process intended by Congress was to allow the EEOC to first obtain compliance with Title VII and, only if those efforts fail, to allow a party to seek judicial remedies for the claims raised in the EEOC charge and claims which are “reasonably related” thereto. See Butler v. Matsushita Communication Industrial Corp. of U.S., 203 F.R.D. 575, 580 (N.D. Ga. 2001). There is no indication in Plaintiff’s Complaint that she filed a Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 15 of 23 16 Charge of Discrimination with the EEOC sufficient to meet the exhaustion requirement with respect to her retaliatory hostile work environment claim. In addition to not alleging any facts sufficient for this Court to infer that an EEOC Charge based on hostile work environment was filed, there are no facts in the Complaint indicating when, if ever, such an EEOC Charge was filed. According to the Supreme Court, in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002), a timely EEOC Charge for purposes of a hostile work environment claim is one that is filed “within 180 or 300 [whichever is applicable] days of any act that is part of the hostile work environment.” Id. at 118. Based on the facts alleged in the Complaint, there is no way for this Court to infer that Plaintiff filed an EEOC Charge within 180 days of any of the acts supporting her hostile work environment claim. Indeed, Plaintiff has not only omitted the date of her EEOC Charge, but she has omitted many dates tied to the alleged acts of severe or pervasive conduct. Thus, her Complaint fails to allege facts sufficient to show Plaintiff’s hostile work environment claim was timely exhausted. In Paragraph 229 of her Complaint, Plaintiff identifies specific allegations connected to her hostile work environment claim; however, most of the incidents alleged do not contain dates. Even using the latest two dates of retaliatory acts Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 16 of 23 17 identified by Plaintiff, Plaintiff’s retaliatory hostile work environment claim would still be due for dismissal. According to Plaintiff, Reddick subjected Plaintiff to “various forms of hostility, retaliation and harassment.” [Complaint, ¶¶ 20, 81]. Of the examples outlined in the paragraphs supporting the retaliatory hostile work environment claim, the latest act by Reddick occurred sometime in 2009, five years before she filed her EEOC Charge of Discrimination. [Compare Complaint ¶ 108 with Exhibit “A” attached hereto]. Obviously, Reddick’s last alleged actions in 2009 are not within 180 days of Plaintiff’s EEOC Charge, and thus, cannot prevent the dismissal of her claim for being untimely. Plaintiff further alleges that her termination by Pitts in 2014 was also part of the retaliatory hostile work environment. [Id. ¶ 239]. Typically, a discrete employment act, like termination, cannot alone form the basis of a hostile work environment claim. See Gowski, 682 F.3d at 1312. However, a discrete act may be considered if it is connected to other acts making up a hostile work environment claim. Id. Here, Plaintiff’s termination was a discrete act and there are no allegations in the Complaint connecting her termination in 2014 to any of the dated acts by Reddick in 2009 or before. There are no allegations in the Complaint indicating Pitts decided to terminate Plaintiff because of her protected activities in 2007 or 2009 nor is there any indication that Plaintiff’s termination by Pitts was a Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 17 of 23 18 continuance of the alleged harassing acts by Reddick nearly five years prior. Thus, Plaintiff termination cannot form part of her retaliatory hostile work environment claim. Accordingly, Plaintiff’s retaliatory hostile work environment claim should be dismissed for failure to aver facts that show Plaintiff met all conditions precedent, including timely filing a charge of discrimination for hostile work environment. III. Plaintiff Has Failed to State a Claim For Breach of Contract. Plaintiff’s breach of contract claim must also fail as Fulton County’s Personnel Regulations do not form a contract between the County and its employees under the circumstances alleged. Georgia case law has held that Personnel Regulations may constitute a contract with respect to the compensation provisions. See e.g., Fulton County v. Andrews, Ga.App. 473, 477 (2015) (“[W]e see no reason why a statute establishing a merit-based compensation structure and regulations promulgated thereunder should be treated any differently than a statute establishing a retirement plan.”); DeKalb County Sch. Dist. v. Gold, 318 Ga.App. 633, 642, 734 S.E.2d 466 (2012) (the statute becomes part of the employment contract and is compensation for services rendered, and an amendment to the Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 18 of 23 19 statute to reduce or eliminate employee benefits would violate our state Constitution’s impairment clause). In this case, Plaintiff does not allege that the Personnel Regulations were breached with respect to her compensation, but instead, alleges that there was a breach because she was terminated in a manner inconsistent with the Personnel Regulations. However, cases analyzing an employer’s policies and procedures surrounding termination have held that a failure to follow said policies cannot constitute a breach of contract claim for at-will employees. In the case of Jones v. Chatham County, this Court held: A policy that public employees can be terminated only for cause does give the employee an interest in continued employment for purposes of procedural due process analysis. But that does not mean that a manual stating the policy and setting forth procedures for its implementation is a contract. For purposes of the breach of contract claim, we look only to Georgia law and make no distinction between public and private employees. And under Georgia law, personnel manuals stating that employees can be terminated only for cause and setting forth termination procedures are not contracts of employment; failure to follow the termination procedures contained in them is not actionable. Jones, 223 Ga.App. 455, 458 (1996). The Jones court acknowledged that other cases have held that provisions of an employee handbook can be legally binding with respect to benefits, but the same does not hold true for provisions regarding termination of employment. Id. at 458 n.3. Even in cases where the personnel Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 19 of 23 20 regulations are promulgated pursuant to statutes or local laws, the courts have still held that the provisions of the regulations with respect to termination do not constitute a contract. See Doss v. City of Savannah, 290 Ga.App. 670, 677 (2008) (“Even if Doss were able to establish that the City failed to follow its own procedures in connection with her termination, this Court has held that such evidence does not give rise to a breach of contract claim.”); Tackett v. Ga. Dept. of Corrections, 304 Ga.App. 310, 312 (2010) (While under Georgia law, employment policies relating to additional compensation plans, such as retirement benefits or insurance plans, may amount to a binding contract, this Court has previously found that “personnel manuals stating that employees can be terminated only for cause and setting forth termination procedures are not contracts of employment; failure to follow the termination procedures contained in them is not actionable.”). Accordingly, the controlling case law precludes Plaintiff from asserting a breach of contract action based upon her termination from Fulton County. Plaintiff clearly states that she was unclassified (Complaint, ¶6), and thus had no interest in continued employment with Fulton County. Indeed, unclassified employees are employees at will and are not entitled to any prior notice of a termination action. See Section 34-74(a) of the Fulton County Civil Service Act (“All unclassified employees shall be employees at will. An appointing authority. . . may dismiss. . . Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 20 of 23 21 any Fulton County employee for any reason. . . or for no stated reason whatsoever. No employee shall be entitled to prior notice of, explanation of, or appeal from any such action.”). Accordingly, Plaintiff’s breach of contract claim must be dismissed. CONCLUSION For the reasons stated above, Defendant Fulton County respectfully requests that the Court grant its partial motion to dismiss. Respectfully submitted this 9th day of August, 2016. OFFICE OF THE COUNTY ATTORNEY Kaye Burwell Georgia Bar No. 775060 kaye.burwell@fultoncountyga.gov Dominique Martinez Georgia Bar No. 430323 dominique.martinez@fultoncountyga.gov Kristen Williams Georgia Bar No. 515324 kristen.williams@fultoncountyga.gov /s/ Laura S. Lewis Laura S. Lewis Georgia Bar No. 870394 laura.lewis@fultoncountyga.gov Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 21 of 23 22 OFFICE OF THE COUNTY ATTORNEY 141 Pryor Street, S.W., Suite 4038 Atlanta, GA 30303 (404) 612-0246 (404) 730-6324 (facsimile) Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 22 of 23 23 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JUANTISA HUGHES, ) ) Plaintiff, ) Civil Action File No. ) 1:16-CV-01912 vs. ) ) FULTON COUNTY, GEORGIA ) ) Defendant. ) ___________________________________ ) CERTIFICATE OF SERVICE The undersigned hereby certifies that the DEFENDANT FULTON COUNTY, GEORGIA’S BRIEF IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS was prepared using Times New Roman 14-point type in accordance with Local Rule 5.1 B and was electronically filed with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all attorneys of record. This 9th day of August, 2016. /s/ Laura S. Lewis Laura S. Lewis Georgia Bar No. 870394 laura.lewis@fultoncountyga.gov Case 1:16-cv-01912-CAP-JFK Document 7-1 Filed 08/09/16 Page 23 of 23