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Carter v. Howard

2023 WL 5668021 (N.D. Ga. 2023)

June 6, 2023

Anand, Justin S., United States Magistrate Judge

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Summary

The court considered ESI, such as the County's sexual harassment policy, the DA's Office Handbook, and Plaintiff's deposition, to determine if there were genuine issues of material fact to be tried. Text messages revealed that Plaintiff was making sexual overtures to Howard, and the court found that Plaintiff had presented evidence sufficient to create a genuine dispute of fact as to whether Howard's sexual comments and sexual advances were unwelcome.

CATHY CARTER, Plaintiff,
v.
PAUL HOWARD, in his individual capacity, Defendant

CIVIL ACTION NO. 1:20-CV-1674-TWT-JSA

United States District Court, N.D. Georgia, Atlanta Division

Filed June 06, 2023

Counsel

David Edward Betts, Betts & Associates, Atlanta, GA, Mario Bernard Williams, HDR LLC, Sandy Springs, GA, for Plaintiff.
Paul Anthony Henefeld, Noah Green, Henefeld & Green, P.C., Atlanta, GA, for Defendant.

Anand, Justin S., United States Magistrate Judge

FINAL REPORT AND RECOMMENDATION ON A MOTION FOR SUMMARY JUDGMENT

*1 Plaintiff Cathy Carter filed the above-captioned action on April 20, 2020. Plaintiff alleges that Defendant Paul Howard, who was the District Attorney for Fulton County, subjected her to sexual harassment and a hostile work environment based on sex while she worked for the District Attorney's Office. She asserts claims against Defendant in his individual capacity under 42 U.S.C. § 1983 (“§ 1983”) for a violation of her right to equal protection under the law.[1]

The action is before the Court on the Defendant's Amended Motion for Summary Judgment [108]. For the reasons discussed below, the undersigned RECOMMENDS that Defendant's Amended Motion for Summary Judgment [108] be GRANTED IN PART, DENIED IN PART.

I. FACTS

Unless otherwise indicated, the Court draws the following facts from the Defendant's “Statement of Facts in Support of the Motion for Summary Judgment” [108-2] (“Def. SMF”), Plaintiff's “Amended Statement of Additional Facts Which the Respondent Contends are Material and Present a Genuine Issue for Trial” [127] (“Pl. SMF”),[2] and exhibits. Some facts may also be taken from Plaintiff's “Response to Defendants’ Statement of Undisputed Material Facts” [116] (“Pl. Resp. SMF”) and Defendant's “Response to Plaintiff's Amended Statement of Facts” [131] (“Def. Resp. SMF”). The Court may also draw some facts directly from other material in the record. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”).

For those facts submitted by Defendant that are supported by citations to record evidence, and for which Plaintiff has not expressly disputed with her own citations to record evidence, the Court must deem those facts admitted, pursuant to Local Rule 56.1(B). See LR 56.1(B)(2)(a)(2), NDGa (“This Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's fact with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's citation does not support the movant's fact or that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1(B)(1).”). Accordingly, for those facts submitted by Defendant that Plaintiff has failed to dispute with citations to record evidence, the Court must accept the facts as true, so long as the facts are supported by citations to record evidence, do not make credibility determinations, and do not involve legal conclusions. See E.E.O.C. v. Atlanta Gastroenterology Assocs., LLC, No. CIV. A. 1:05-CV-2504-TWT, 2007 WL 602212, at *3 (N.D. Ga. Feb. 16, 2007).

*2 The Court has also excluded assertions of fact by either party that are clearly immaterial, or presented as arguments or legal conclusions, and has excluded assertions of fact unsupported by a citation to admissible evidence in the record or asserted only in a party's brief and not in its statement of facts. See LR 56.1(B)(1), NDGa (“The court will not consider any fact: (a) not supported by a citation to evidence ... or (d) set out only in the brief and not in the movant's [or respondent's] statement of undisputed facts.”); see also LR 56.1(B)(2)(b) (respondent's statement of facts must also comply with LR 56.1(B)(1)). The Court nevertheless views all evidence and factual inferences most favorably to Plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir. 1993).

Plaintiff Cathy Carter began working for Fulton County (the “County”) in or around 1990 at the Tax Assessors Office. Def. SMF at ¶ 1; Pl. Resp. SMF at ¶ 1; Pl. Dep. [109] at 20.[3] Plaintiff participated in orientation regarding the County's sexual harassment policy, which was also used by the District Attorney's (“DA's”) Office. Def. SMF at ¶ 2; Pl. Resp. SMF at ¶ 2. Plaintiff met Defendant Howard in the mid-1990s. Def. SMF at ¶ 3; Pl. Resp. SMF at ¶ 3. Plaintiff volunteered on Howard's first campaign for DA. Def. SMF at ¶ 5; Pl. Resp. SMF at ¶ 5; Pl. Dep. at 23.

In 2000, Plaintiff transferred to the DA's Office as a legal assistant, and was trained on the relevant sexual harassment policy. Def. SMF at ¶¶ 6-7; Pl. Resp. SMF at ¶ 6-7. When Plaintiff began her employment, the DA's Office Handbook directed the employees how to make a complaint outside the DA's Office if there was a need:

In the event the employee is uncomfortable presenting a complaint of harassment to any of the individuals identified above, the employee who believes he/she is or has experienced harassment should take his/her complaint to the Equal Employment Opportunity Officer in the Fulton County Personnel Department. Employees must take action to report if they believe they have been subject to harassment. This report is the best, and often the only notice to the employer that corrective action may be necessary.

Def. SMF at ¶ 7; Def. Ex. 15 [108-18], DA's Office Sexual Harassment Policy (1998). Plaintiff admits she knew the policy. Def. SMF at ¶ 8; Pl. Resp. SMF at ¶ 8.

Plaintiff testified that, since after she began working at the DA's Office in 2000, if she did not give in and have sex with Howard, then “her job was gone.”[4] Def. SMF at ¶ 9; Pl. Dep. at 34-35. Plaintiff does not dispute that she testified as such, and contends that what she meant was that Howard would “pressure her” to have sex, and “if she did not react to said pressure, he would punish her.” Pl. Resp. SMF at ¶ 9; Pl. Dep. at 34-36. Plaintiff also testified that, between 2000 and 2011, if she told Howard “no” to sex then she would be “punished.” Def. SMF at ¶ 10; Pl. Dep. at 34-36. Although Plaintiff does not dispute that she testified as such, she contends she “testified throughout her deposition to a systematic scheme of pressure and punishment.” Pl. Resp. SMF at ¶ 10 (citing Pl. Dep. at 29, 35, 53, 63, 94, 112, 115, 119, 122, 124, 133-34, 139, 141, 194, 195, 198).

*3 In 2004, Plaintiff was promoted to the Major Case Division. Def. SMF at ¶ 12; Pl. Resp. SMF at ¶ 12. Plaintiff's promotion came with a pay raise. Def. SMF at ¶ 13; Pl. Resp. SMF at ¶ 13. Plaintiff believed that she earned the position on merit and that she “was more than qualified.” Def. SMF at ¶ 14; Pl. Resp. SMF at ¶ 14; Pl. Dep. at 43 (Plaintiff testified that she was “[m]ore than qualified for that position).

Plaintiff testified that she first had sex with Howard in 2005 or 2006 because he helped her son. Def. SMF at ¶ 16; Pl. Resp. SMF at ¶ 16. Plaintiff testified that after Howard helped her son when he faced a criminal charge in Clayton County, she had sex with Howard, and that “[she] knew [she] was going to have to give in because he constantly doing me favors for my son and stuff.” Def. SMF at ¶ 16; Pl. Resp. SMF at ¶ 16; Pl. Dep. at 34-35, 42.

According to Defendant, Plaintiff testified that she had consensual sex with Howard, but later contradicted herself and testified that the sex was not consensual. Def. SMF at ¶ 42; Pl. Dep. at 44, 94. Plaintiff disputes that she ever testified that she had “consensual” sex with Howard. Pl. SMF at ¶ 42. During her deposition, Plaintiff testified that she and Howard had sex in his office at some time in 2005 or 2006:

A. He called me to his office.

Q. Okay.

A. And he tried—and then I tried to tell him no and stop. But he kept on doing it. For long, my clothes one of—either my skirt or either my dress was off, took off my panties, and we had sex in his office on that couch.

Q. Okay. Are you contending that it wasn't consensual?

A. I'm not saying it wasn't consensual. But I'm also saying that if I didn't, there was consequences. And I knew that because that's what—that's the way he operate. [sic]

Q. Okay. So consequences with your son?

A. No. With me and my job.

Pl. Dep. at 43-44.

Later, when asked if she was contending that Howard raped her, Plaintiff testified “I don't say rape. It wasn't consensual.” Id. at 194. Plaintiff testified:

When I say consensual, it had—if anything that Mr. Howard did for me or for my family or anything, if I did not give in to his demands of having sex, I felt like I would be punished.... And I was punished. On—there's been numerous of time that he did that and I stopped and then next thing you know, somebody calling me in the office or telling me I'm not doing my job.

Id. at 194-95; Def. SMF at ¶ 43; Pl. SMF at ¶ 43.

Plaintiff contends that, after Howard “aided” in getting her son Gabriel out of jail, Howard “then pressured her for sex,” including asking her for some “p---sy,” and she ultimately gave in to Howard's demands. Pl. SMF at ¶ 45; Pl. Dep. at 30, 41, 98-100, 108. Howard assisted Plaintiff's son by obtaining the service of an attorney named Demone Lee to represent her son. Pl. SMF at ¶ 46; Howard Dep. [119] at 105-07; Lee Dep. [117-5] at 9-11. According to Plaintiff, when Lee 7 did not want to continue helping Plaintiff's son on an additional criminal matter because Gabriel had failed to pay him, Howard called Lee and convinced him to represent Plaintiff's son “for free.” Pl. SMF at ¶¶ 46-47; Howard Dep. at 105-07; Lee Dep. at 9-13. Defendant disputes that Lee testified that he agreed to represent Gabriel “for free,” and notes that Lee also testified that Plaintiff promised to pay him for representing Gabriel, but Plaintiff failed to pay him. Def. Resp. SMF at ¶¶ 46-47; Lee Dep. at 13 (Lee testified that “Cathy Carter said that she would pay me when I went to the jail to visit with her son .... And I never received a dime from her or him.”). According to Lee, he did not want to represent Gabriel on another criminal matter, but after Lee refused to take Plaintiff's calls, Howard called him and asked him to “help out,” and he agreed. Pl. SMF at ¶ 47; Lee Dep. at 10-13.

*4 In 2011, Plaintiff was suspended for ten days after she tried to physically attack an assistant District Attorney, Linda Dunikoski. Def. SMF at ¶ 18; Pl. Resp. SMF at ¶ 18; Pl. Dep. at 46-50. When asked if she threatened Dunikoski with violence, Plaintiff testified, “Oh yeah. I told her I was going to whoop her ass” and she intended to “[l]iterally hit her, yeah.” Def. SMF at ¶ 19; Pl. Resp. SMF at ¶ 19; Pl. Dep. at 49. Plaintiff testified that she was restrained by an investigator “maybe an inch before I hit her.” Def. SMF at ¶ 20; Pl. Resp. SMF at ¶ 20; Pl. Dep. at 49. While Plaintiff does not dispute this, she contends that Dunikoski had first called her a racial slur: “[S]he called me the N-word and pointed her finger at my face. And that's what started the confrontation with me and her.” Pl. Resp. SMF at ¶¶ 18-20; Pl. Dep. at 47-48, 52-53, 63-64. Plaintiff testified that it is her belief that she was not suspended for using violence or for being restrained to stop the attack; rather, “the only reason why Mr. Howard suspended [her]” was that she refused to have sex with him. Def. SMF at ¶ 21; Pl. Resp. SMF at ¶ 21; Pl. Dep. at 52.

Plaintiff retired from the DA's Office in December of 2011 or January 2012. Def. SMF at ¶ 22; Pl. Resp. SMF at ¶ 22; Def. Ex. 3 [108-6], Report of Personnel Action (indicating that Plaintiff retired from the DA's Office with an effective date of December 31, 2011, but the date of the “request” was listed as January 24, 2012).

Between 2012 and late 2014, while Plaintiff was not working for the DA's Office, she continued to talk to Howard on the phone “all the time” and had “phone sex” with him. Def. SMF at ¶ 23; Pl. Resp. SMF at ¶ 23; Pl. Dep. at 57-58. While Plaintiff does not dispute that, she contends that it was Howard who initiated these calls, and he called her “all the time.” Pl. Resp. SMF at ¶ 23; Pl. Dep. at 57-58 (“Mr. Howard did not stop calling me.... It was so frequent, sir. I really couldn't tell you how many times.”). Plaintiff also testified that she had “phone sex” with Howard on occasion during these calls. Pl. Dep. at 58 (“Q: And did you have phone sex?” A: “I think I did.”).

Plaintiff also testified that Howard continued to be a friend while she was retired, and when asked if she and Howard would engage in flirtation, she replied, “Oh. Yeah, I did.” Def. SMF at ¶ 24; Pl. Resp. SMF at ¶ 24; Pl. Dep. at 62. Plaintiff testified that, when Howard would make comments that he wanted to have sexual relations with her, she “would laugh, kind of jokey, jokey and laugh it off.” Def. SMF at ¶ 25; Pl. Resp. SMF at ¶ 25; Pl. Dep. at 62-63 (Plaintiff testified that Howard would say things to her like “You better save my p---y until you—till I get some and don't give it to nobody else,” and she “would laugh, kind of jokey, jokey and laugh it off”).

On March 12, 2014, Plaintiff was re-hired by the DA's Office as a Mobile Outreach Coordinator (“MOC”), which was a position funded by Fulton County. Def. SMF at ¶ 26; Pl. Resp. SMF at ¶ 26. The MOC would visit crime victims and help get them services and provide support. Def. SMF at ¶ 26; Pl. Resp. SMF at ¶ 26.

In November of 2015, Plaintiff took another job with the DA's Office as Supervisor of Records, a position that was funded by the State of Georgia. Def. SMF at ¶ 32; Pl. Resp. SMF at ¶ 32. When she left the MOC position to go to the Supervisor of Records position, Plaintiff wrote a retirement letter to Mr. Howard that stated:

I had a wonderful experience working for Fulton County Government and will always cherish moments spent with you and other staff members, I had a peaceful and exciting work relationship in the past and I am sure I can put all the experiences I gained in my new position.

I thank you for your help and support during my tenure....

Def. SMF at ¶ 33; Pl. Resp. SMF at ¶ 33; Def. Ex. 13 [108-16] (letter from Plaintiff to Defendant dated November 17, 2015).

When Plaintiff returned to the DA's Office after her retirement, she was trained again on the sexual harassment policy for Fulton County and the State of Georgia. Def. SMF at ¶ 34; Def. Ex. 14 [108-17], “Orientation Topic Checklist.” The Fulton County policy states:

*5 Employees do not have to report discrimination to their immediate supervisor or go through their supervisory chain of command before notifying the DCRC. In fact, employees are specifically authorized to bypass their supervisors (and chain of command) and report the incident directly to the DCRC.

Def. SMF at ¶ 35; Def. Ex. 2 [108-5] at 5, Fulton County Sexual Harassment Policy, at ¶ IV(A)(1). DCRC is an acronym for the Office of Diversity and Civil Rights Compliance. Def. SMF at ¶ 35 n.1.

Both Fulton County and the State's Sexual Harassment Policies permit an employee to bypass her supervisors and report directly to the State's Office of the Inspector General. Def. SMF at ¶ 37; Def. Ex. 16 [108-19] at 5, Georgia's State Government Sexual Harassment Policy, at ¶ VIII(a) and (c) (“To the extent that any of the above officials are the alleged harasser or retaliator, or if a Covered Employee has a reasonable fear of retaliation by one of the above officials, a Covered Employee may submit a complaint or report of sexual harassment or retaliation directly to the OIG.”).

Defendant contends that, from 2014 through 2019, Plaintiff and Howard texted each other “often” with “flirtatious” messages, which Plaintiff disputes. Def. SMF at ¶ 45; Pl. Resp. SMF at ¶ 45. In July of 2014, Plaintiff invited Howard to her home, stating “I have family coming in tomorrow but you are welcome to come over after I get off.” Def. SMF at ¶ 46; Def. Ex. 9 [108-12] at 3 (including numerous text messages purportedly between Plaintiff and Howard). On March 20, 2015, Plaintiff texted Howard, “How are you? I didn't hear back from you last night to tell me how things went.” Def. SMF at ¶ 47; Def. Ex. 9 at 4. On April 2, 2015, Plaintiff texted Howard, “So will I see you today.” Def. SMF at ¶ 48; Def. Ex. 9 at 5.

On June 22, 2015, Plaintiff texted Howard, “You not talking to me.” Def. SMF at ¶ 51; Def. Ex. 9 at 10. On July 27, 2015, Plaintiff texted Howard at 10:11 p.m., “No, I need to talk to you now, before I use [my] toy I got.” Def. SMF at ¶ 53; Def. Ex. 9 at 13. On September 24, 2015, the parties shared the following exchange:

Plaintiff: “Just like you said, you are always busy and it hurt my feelings when you tell me when I call you can't talk. That's why I am trying my best to get in to you.”

Howard: “You are already into me.”

Plaintiff: “You know sitting watching Scandal make me think of you and I.”

Howard: “You are better looking than Olivia.”

Plaintiff: “And you know he has nothing on you.”

Def. SMF at ¶ 54; Pl. Resp. SMF at ¶ 54; Def. Ex. 9 at 16-17.

On November 2, 2015, at 9:04 p.m., Plaintiff texted Howard, “Hi. Just checking to see if you are okay. I didn't hear back from you last night. I hope all is well with you.” Def. SMF at ¶ 55; Pl. Resp. SMF at ¶ 55; Def. Ex. 9 at 19. On May 27, 2016, Plaintiff texted Howard, “Why didn't I hear from you to let me know when your flight got in.” Def. SMF at ¶ 49; Def. Ex. 7 [108-10] at 3. On June 6, 2016, Plaintiff texted Howard, “Good morning. I know you aren't feeling well now for you to be out of the office this long. Do you need anything? What can I do to make you feel better? I miss you!” Def. SMF at ¶ 50; Def. Ex. 7 at 3. On June 19, 2016, Plaintiff and Howard had the following text conversation:

Plaintiff: “How have your father's day been?”

*6 Howard: “Still thinking about your call from yesterday ...”

Plaintiff: “Really, so do that mean I will see you tomorrow?”

Howard: “Yes.”

Plaintiff: “Is that a promise?”

Howard: “Yes.”

Def. SMF at ¶ 56; Pl. Resp. SMF at ¶ 56; Def. Ex. 10 [108-13] at 1-2.

On July 18, 2016, Plaintiff texted Howard:

I was sitting here in the office thinking about you. For you to always asking me to go somewhere you NEVER, say I'm going to make arrangements for me to get there. When you know financially I'm not able to do things like I once was and even if I was I think if I have a friend and wants me to be with him he would make sure that I get there. This really let me know how much you want to be with me and care for me. I haven't heard from you since you gotten there so I guess you made other arrangements for someone else.

Def. SMF at ¶ 51; Def. Ex. 8 [108-11] at 1.

Plaintiff filed for Chapter 7 bankruptcy on September 3, 2015, which was discharged on December 24, 2015. Def. SMF at ¶¶ 39-40; Def. Ex. 5 [108-8] (Bankruptcy Petition for Bankruptcy Case No. 15-67109-wlh, N.D. Ga.); Def. Ex. 6 [108-9] (Order discharging bankruptcy). Plaintiff never disclosed to the bankruptcy trustee or the bankruptcy court that she had a legal cause of action that existed against the DA for sexual harassment. Def. SMF at ¶ 41; Pl. Dep. at 142-43. While Plaintiff does not dispute this, she contends that, “at the time she filled out her Bankruptcy Paperwork she did not have the cause of action that forms the basis of this lawsuit which is the termination of her employment in 2019.” Pl. SMF at ¶ 41.

Plaintiff's mother passed away in 2017. Def. SMF at ¶ 57; Pl. Resp. SMF at ¶ 57. According to Defendant, Plaintiff testified that if Howard had given her as much time off from work as she wanted to grieve her mother's death, she would not have sued, stating: “That's why we're here today. Mr. Howard never gave me any time to grieve.” Def. SMF at ¶ 58; Pl. Dep. at 125. When asked, “So when you say that we—that's the reason we're here today is because of,” Plaintiff answered, “Grievance. I never had a chance to grieve.” Def. SMF at ¶ 59; Pl. Dep. at 126.

Plaintiff disputes that, and contends that her response about “grievance” was merely part of her answer about why she had filed this lawsuit. Pl. Resp. SMF at ¶¶ 58-59. Plaintiff notes that she further testified as follows:

Q. Okay. So when you say it's the reason we're here today, if he had given you time off—

A. No. If I had played into his hand and continued conversating [sic] with him and having sex with him, we wouldn't be here.

Pl. Resp. SMF at ¶ 58; Pl. Dep. at 126-27.

After Plaintiff's mother passed away, between January 2017 and March 2018, she took 536 hours (67 workdays) of paid leave and at least another 20 days of unpaid leave. Def. SMF at ¶ 60; Pl. Resp. SMF at ¶ 60. Plaintiff exhausted her available paid leave, and her medical provider certified that she needed 20 days of medical leave. Def. SMF at ¶ 61; Pl. Resp. SMF at ¶ 61. While Plaintiff does not dispute that, she contends that Defendant refused to give her the medical leave that was recommended by her doctor. Pl. Resp. SMF at ¶ 61; Pl. Dep. at 130-31 (Plaintiff testified, “He [Howard] specifically told me to go get some help. Then when I go get the help and send him the letter that she gave me, he told me to return back to work the next day.”).

*7 According to Defendant, Plaintiff was “chronically” absent and tardy during late 2018 and 2019. Def. SMF at ¶ 63; Pl. Dep. at 143 (when asked “were you just late in 2018 or were you absent as well,” Plaintiff testified, “It was a combination of both because I wasn't sleeping.”), 153 (Plaintiff testified that Howard put her on probation in 2019 for tardiness and absenteeism). Defendant contends that Plaintiff was moved to a new work area “because of her absences,” but Plaintiff disputes that her move to a new area was related to her absences. Def. SMF at ¶ 64; Pl. Resp. SMF at ¶ 64; Pl. Dep. at 82-83. It is undisputed, however, that, although Plaintiff moved to a new work area, she still had the same position as Supervisor of Records from November of 2015 until she was fired in 2019, she was never told that she was no longer a supervisor, and she never received anything from Howard or the Chief of Staff Lynne Nelson informing her that her job changed, nor did her compensation change. Def. SMF at ¶ 64; Pl. Resp. SMF at ¶ 64; Pl. Dep. at 82-83. Although Plaintiff does not dispute that, and cites to no evidence that her title or responsibilities changed, she contends that “she believed that she must have kept her supervisory status in title only.” Pl. Resp. SMF at ¶ 64.

Defendant contends that, during a telephone call between Plaintiff and Howard that Plaintiff claims occurred on August 24, 2018, the parties had a “graphic sexual discussion,” and Plaintiff recorded the call. Def. SMF at ¶ 65; Def. Ex. 11 [110] (audio recording).[5] According to Defendant, Plaintiff made “sexually explicit remarks” to Howard on that call, including the following comments:

She laughs and says that she told Howard that “he needed some p---y,”
She laughs loudly as her and Howard discuss “putting things in her mouth,”
She states that “I truly believe that you need some [p---y], I don't know if you getting it but you need some,”
Plaintiff and Howard continue to converse about “Howard getting some p---y,” to which Plaintiff asks repeatedly, “when do you want some? When do you want some?”
Howard asks, “when can you give it to me?” To which Plaintiff replies, “whenever you want some.”
Plaintiff says, “I don't have a boyfriend now. I broke up with the dude I was seeing.”
Howard asks, “why did you break up?” Plaintiff replies, “I was thinking about you too much. And I kept talking about Mr. Howard this, Mr. Howard that.”
Plaintiff tells Howard that “she thought her ex-boyfriend was jealous of you anyway.”
Plaintiff then says to Howard, “I guess I'm all yours now. I'm all yours now.”
Howard asks, “if I call you tomorrow can I come over and get some?” To which Plaintiff replies that her son goes to work around 6 pm. Howard suggests that they could go somewhere else, to which Plaintiff says, “you want to be over here in my bed don't ya?”
Plaintiff says, since her son works during the evenings, that “we'll just have to meet during the week, when we get off, I'll just meet you and have you a glass of wine.”
Plaintiff then asks Howard, “so what are you doing Sunday evening?” Howard replies that he “thinks he'll be available.” Plaintiff then comments, “I think – I think I need some too.”
Plaintiff then ends the call by asking Howard to “call me tomorrow,” to which Howard says, “he will.”

Def. SMF at ¶¶ 65-66; Def. Ex. 11 [110] (audio recording).

While Plaintiff does not dispute that she made those comments, she contends that she made additional comments to Howard on the recorded telephone call, including the following:

“You act like you dislike me around that office. Nah, I just do that to keep people off of you.”
“I know you're an attorney, don't be trying to put words in my mouth.”
“What did you say I was trying to put in your mouth? ... You trying to put things in my mouth.”
“I might have been trying to put something else in your mouth, but not words.”
“When are you gonna give me some? Some what? Some p---y.”
“When you want some? When you want some? When can you give me some? Whenever you want some. Every time you say that I can't never get you.”
“You should have told him [the boyfriend] ‘I should be f-----g him ...”
“You should have told him [the boyfriend] ‘he [Paul Howard] loves to f---k me, he really does’ ...”

Pl. Resp. SMF at ¶ 66; Pl. SMF at ¶ 34; Def. Ex. 11.

Plaintiff claims that she had sex with Howard between 2016 and 2018 at least 30 times. Def. SMF at ¶ 44; Pl. Resp. SMF at ¶ 44; Pl. Dep. at 123-24 (“It was numerous of times. I can't tell you how many. It could be 20, 30. I don't know. It was numerous....” Q. “Would you say it was at least 30?” A. “Yeah.”). According to Plaintiff, “[i]f I stopped [having sex with Howard], I knew there was going to be some kind of punishment coming from him.” Pl. Resp. SMF at ¶ 44; Pl. Dep. at 124.

According to Defendant, Plaintiff testified that, in 2018 and 2019, she knew Howard would not take any adverse employment action against her if she refused to have sex with him, and told others that “Mr. Howard ain't going to do nothing to me. I said that because I knew what I was doing.” Def. SMF at ¶ 67; Pl. Dep. at 121-22. Plaintiff, however, notes that the portion cited by Defendant was only part of her testimony:

Q. Ma'am, you've testified several times today that you were refusing to have sex with Mr. Howard and you were never terminated, were you?

A. No. Because I had sex with him. And then when I didn't have sex, there was punishment. Either a supervisor would come and tell me that something I was doing wrong or either I would be called into his office, and he'd say that I'm not doing what I'm supposed to do. I looked Mr. Howard straight in his eyes the whole time that he said that, knowing what he was doing. And I used to tell them and people in that Complaint Room would tell you this right thing. I told them Mr. Howard ain't going to do nothing to me. I said that because I knew what I was doing. But I never told nobody that I was sleeping with him because I was ashamed of it as a woman and had two sons, so that's the reason why I didn't.

Q. So you never—you knew he wasn't going to do anything to you?

A. That's what I told them when things come up. I say, “I ain't worried about Mr. Howard.” Anybody in that—anybody that work for him, could have them—could have told you that.”

Pl. Resp. SMF at ¶ 67; Def. SMF at ¶¶ 67-68; Pl. Dep. at 121-22.

During the 15-16 years Plaintiff worked at the DA's Office, she never complained about Howard's conduct to anyone. Def. SMF at ¶ 69; Pl. Dep. at 194 (When asked if she ever made “any complaints about Mr. Howard to anybody” after 2011, Plaintiff responded “No, sir.”). Plaintiff testified that she flirted with Howard because it was “[j]ust humorous and just playing along with Mr. Howard and his little games.” Def. SMF at ¶ 71; Pl. Dep. at 204.

Plaintiff contends that, sometime in late 2018, she refused to have sex with Howard “due to being exhausted from him and the death of her mother.” Pl. SMF at ¶ 37; Pl. Dep. at 136-37 (Plaintiff testified that “when I cut off Mr. Howard I think 2018 ... he put me in another division. Had my stuff packed up in a box and brought to another position.... I got tired off—I couldn't do it. I was grieving. He act like he didn't understand that.”), 147 (Plaintiff testified “I had sex with him up until November of 2018.”). Plaintiff contends that Howard “did not care at all how much leave she took when she was entertaining his sexual advances and having sex with him,” and she took “a full 228 hours over her allotted sick leave without any discipline by anyone, nor terminated by Howard.” Pl. SMF at ¶ 38; Pl. Dep. at 133-34, 136-37; Howard Dep. at 62-64. Howard contends that he was responsible for over 200 employees, and did not monitor any employee's sick time; thus, it was possible that an employee could take more sick time than allotted without his knowledge. Def. Resp. SMF at ¶ 38; Howard Dep. at 63.

*9 On January 3, 2019, Plaintiff was arrested when she entered the Fulton County Courthouse with a firearm. Def. SMF at ¶ 72; Pl. Resp. SMF at ¶ 72. No action was taken against Plaintiff by Howard or the DA's Office for this arrest. Def. SMF at ¶ 73; Pl. Resp. SMF at ¶ 73. Plaintiff contends that, shortly after Howard “aided” her during the January 3, 2019, courthouse arrest, Howard requested sex from her and she rejected him. Pl. Resp. SMF at ¶ 80; Pl. Decl. [116-4] at ¶ 4 (“Howard began asking me for sex within days of helping me resolve that gun situation on January 3, 2019, quickly. I rejected his advances ...”). She also contends that, “at the end of 2018 into the beginning of 2019,” she had “stopped completely” taking Howard's calls, despite his “continual attempts” to have sex with her. Pl. Resp. SMF at ¶ 80; Pl. Dep. at 147-48.

In April of 2019, Plaintiff was given a warning based on her chronic absenteeism and tardiness. Def. SMF at ¶ 74; Pl. Dep. at 143-44, 153-55 (Plaintiff testified that Howard put her on probation for tardiness and absenteeism in 2019). Defendant contends that Plaintiff was provided with a corrective action plan to complete over a six-week period, and was only required to come to work on time.[6] Def. SMF at ¶ 74; Pl. Resp. SMF at ¶ 74; Pl. Dep. at 154-55.

On June 7, 2019, Howard learned from his Chief Investigator, Cynthia Nwokocha, that Plaintiff had been arrested. Def. SMF at ¶ 75; Pl. Resp. SMF at ¶ 75; Howard Decl., Def. Ex. 19 [108-22] at ¶ 6. Defendant contends that Howard learned that Plaintiff had been arrested for aggravated assault with a firearm. Def. SMF at ¶ 75; Howard Decl. at ¶ 6. Plaintiff disputes that, and contends that she was charged with “simple assault.” Pl. Resp. SMF at ¶ 75; Def. Ex. 17 [108-20] at 3 (Incident Report from Riverdale Police Department dated June 7, 2019, stating that “Miss Carter was arrested and charged for Simple Assault”).

Howard asked Ms. Nwokocha to obtain the Incident Report for the arrest and forward it to him for review. Def. SMF at ¶ 76; Pl. Resp. SMF at ¶ 76. The Incident Report states that Plaintiff admitted to the Officer that, at a gas station, she approached a man that she believed owed her $400 “with her weapon in hand not pointing it at him asking him for the cash he owed and promised to return.” Def. SMF at ¶ 77; Pl. Resp. SMF at ¶ 77; Def. Ex. 17. The Incident Report indicated that the victim stated that “he was fearful of his life and he raised both hands up to the sky as she pointed the weapon at his chest,” and that he eventually ran as other “customers who observed the incident all panicked and hurrily [sic] left the location when the incident occurred.”[7] Def. SMF at ¶ 78; Def. Ex. 17.

*10 After reviewing the Incident Report, Howard made the decision to immediately terminate Plaintiff's employment, and he sent her a letter on June 7, 2019, informing her that she was terminated. Def. SMF at ¶ 81; Def. Ex. 18 [108-21] (letter from Howard to Plaintiff dated June 7, 2019, stating, “I am terminating your employment with the District Attorney's Office based on your violations of the Standards of Conduct required by this office.”). According to Defendant, he made the decision to terminate Plaintiff's employment based on her conduct as reported in the Incident Report, and he also feared that the Office could face liability based on his knowledge of Plaintiff's arrests involving firearms. Def. SMF at ¶ 79; Howard Decl. at ¶¶ 9-12. Defendant contends that he also considered that this was Plaintiff's second arrest for a crime with a handgun in six months and that Plaintiff was already on a corrective action plan for chronic absenteeism and tardiness. Def. SMF at ¶ 80; Howard Decl. at ¶¶ 9-12.

Plaintiff disputes that she had “chronic” absenteeism or tardiness, and disputes Howard's purported reasons for terminating her employment. Pl. Resp. SMF at ¶¶ 79-80. Plaintiff also notes that, regarding her previous arrest on January 3, 2019, for entering the Fulton County Courthouse with a firearm, she did not even receive any discipline for that arrest. Pl. Resp. SMF at ¶ 80; Def. SMF at ¶ 73. Plaintiff admits, however, that in the 15 to 16 years that she has worked at the DA's Office, she does not know of any employees that were not terminated after being accused of using a firearm in an assault. Def. SMF at ¶ 82; Pl. Dep. at 167.

While acting as the District Attorney, Defendant Howard never made a sexual advance towards a man, and he has never been interested in men sexually. Pl. SMF at ¶¶ 1-2; Def. Resp. SMF at ¶¶ 1-2; Howard Dep. at 108-09. Howard knows that it is inappropriate to touch a subordinate employee's buttocks even if the employee consented to the touching. Pl. SMF at ¶ 3; Howard Dep. at 33-34. Howard also admitted that it would be inappropriate for him as District Attorney to make a sexual advance on a subordinate female employee while he was the District Attorney. Pl. SMF at ¶ 5; Howard Dep. at 52-53. Howard also testified that he was “mystified” that women believed that they could lose their job if they filed a complaint against him for sexual harassment. Pl. SMF at ¶¶ 4, 7; Howard Dep. at 52.

According to Howard, he did not have sex with Plaintiff while he was District Attorney, although he admits that he had sex with her when he was not District Attorney. Pl. SMF at ¶¶ 28, 30; Def. Resp. SMF at ¶ 28; Howard Dep. at 59, 61 (Howard testified that he had been to Plaintiff's house, but he did not have sex with her at her house, and did not have sex with her while he was District Attorney, although he had sex with her around 1990 to 1992). Howard admits, however, that he and Plaintiff had conversations with “sexual overtones.” Pl. SMF at ¶¶ 41-43; Def. Resp. SMF at ¶¶ 41-43. According to Howard, when he told Plaintiff to tell her boyfriend that he [Howard] likes “f---ing her p---y,” that was a joke. Pl. SMF at ¶ 44; Howard Dep. at 81.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is authorized when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 175, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984). The movant carries this burden by showing the court that there is “an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In making its determination, the court must view the evidence and all factual inferences in the light most favorable to the nonmoving party. See Jurich v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir. 2014).

*11 Once the movant has adequately supported its motion by citing to materials in the record, the party opposing summary judgment must come forward with specific facts that demonstrate the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party is required “to go beyond the pleadings” and to present competent evidence designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Generally, “[t]he mere existence of a scintilla of evidence” supporting the nonmoving party's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If a fact is found to be material, the court must also consider the genuineness of the alleged factual dispute. Id. An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is “merely colorable” or is “not significantly probative.” Id. at 250, 106 S.Ct. 2505. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 242, 106 S.Ct. 2505. Moreover, for factual issues to be genuine, they must have a real basis in the record. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586, 106 S.Ct. 1348. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). Thus, the standard for summary judgment mirrors that for a directed verdict: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 259, 106 S.Ct. 2505.

When considering motions for summary judgment, the court does not make decisions as to the merits of disputed factual issues. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Ryder Int'l Corp. v. First Am. Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir. 1991). Rather, the court only determines whether there are genuine issues of material fact to be tried. Applicable substantive law identifies those facts that are material and those that are irrelevant. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputed facts that do not resolve or affect the outcome of a suit will not properly preclude the entry of summary judgment. Id.

B. Defendant's Objections to Declarations

In connection with Plaintiff's response to Defendant's Amended Motion for Summary Judgment [108], Plaintiff filed the declarations of Marlene Allen and Gloria Robinson (the “Declarants”). See Allen Decl. [117-1]; Robinson Decl. [117-3].[8] In Defendant's Response to Plaintiff's Amended Statement of Facts [131], Defendant has objected to Plaintiff's purported facts that are supported by a citation to either of these Declarations, and in Defendant's reply brief [130] filed on February 3, 2023, Defendant has objected to the Court's consideration of either the Allen Declaration or the Robinson Declaration in resolving Defendant's Amended Motion for Summary Judgment [108] on the ground that neither Allen nor Robinson was identified by Plaintiff as a witness in her Initial Disclosures or otherwise during discovery. See Def. Reply Br. [130] at 2-5; Def. Ex. 20 [131-1], Ex. 21 [131-2]. Plaintiff has failed to file any response to Defendant's Objections.[9]

*12 Rule 26 of the Federal Rules of Civil Procedure governs a party's duty to disclose certain information in its initial disclosures. See Fed. R. Civ. P. 26. Rule 26 provides, in relevant part:

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; ....

Fed. R. Civ. P. 26(a)(1)(A)(i)-(ii).

Further, Rule 26 also requires parties to supplement their disclosures made under Rule 26(a) in a “timely manner” if the party learns that they are incomplete. Fed. R. Civ. P. 26(e)(1).

(e) Supplementing Disclosures and Responses.

(1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:

(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing ....

Fed. R. Civ. P. 26(e)(1)(A).

Under Rule 37, parties who fail to make the required disclosures or to identify a specific witness during discovery are prohibited from using that information or witness to supply evidence on a motion or at trial. Fed. R. Civ. P. 37(c). Rule 37 provides in relevant part:

(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

Fed. R. Civ. P. 37(c)(1).

“In determining whether the failure to disclose was justified or harmless, [courts] consider the non-disclosing party's explanation for its failure to disclose, the importance of the information, and any prejudice to the opposing party if the information had been admitted.” Lips v. City of Hollywood, 350 F. App'x 328, 340 (11th Cir. 2009). “Courts also consider the conduct of the parties, ... the surprise to the opposing party, and the ability to cure any surprise and its effects.” Johnson v. Fulton Cty. Bd. of Tax Assessors, No. 1:18-CV-5292-TWT-JKL, 2021 WL 2582304, at *7 (N.D. Ga. Jan. 28, 2021), report and rec. adopted sub nom. Johnson v. Fulton Cty., Ga., No. 1:18-CV-5292-TWT, 2021 WL 2581431 (N.D. Ga. Feb. 17, 2021).

*13 “Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Gratton v. Great Am. Commc'n, 178 F.3d 1373, 1374 (11th Cir. 1999) (per curiam). Furthermore, a district court has substantial discretion in deciding whether to impose sanctions under Rule 37. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997); Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993). A court may consider various factors in considering what sanctions to impose upon a litigant who has failed to comply with the discovery obligations under the Federal Rules, including the unsuitability of another remedy, the intransigence of the party, and the absence of a reasonable excuse for the failure to comply. See Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).

In this case, Defendant contends that Plaintiff failed to disclose either of the Declarants in her Initial Disclosures, nor did she disclose the Declarants in her responses to Defendant's Interrogatories No. 2, which read:

Please identify all persons whom you believe may have knowledge, direct or indirect, of any of the facts and/or circumstances surrounding the allegations set forth in your Complaint and claim for damages, including but not limited to, each person you believe may have witnessed any of the events and/or incidents made the basis of this lawsuit or are capable of giving testimony that supports any of the allegations or claim for damages made by you or on your behalf in this cause of action; and describe in complete detail the substance of such knowledge for each person identified and provide their full name and last known residence address, phone numbers, and email addresses.

Def. Ex. 21 [131-2], Excerpt from Pl.’s Resp. to Def.’s Interr., at ¶ 2; see also Def. Ex. 20 [131-1] at 7, Pl. Initial Disclosures, Att. A.

Defendant argues that the Declarations are prejudicial to him under Rule 403 of the Federal Rules of Evidence, and further, Plaintiff's failure to disclose the identity of the Declarants, or to produce the Declarations during discovery, was also prejudicial because Defendant was unable to depose and cross-examine them before Defendant filed his motion for summary judgment.[10] See Def. Reply Br. [130] at 4. Defendant thus argues that, because Plaintiff has failed to explain her failure to identify the Declarants or produce the Declarations during discovery, she should be precluded from relying on the Declarations in her response to Defendant's Amended Motion for Summary Judgment. See id. at 4-5 (citing Cooley v. Great S. Wood Preserving, 138 F. App'x 149, 161 (11th Cir. 2005) (“[W]e conclude that the district court ... did not abuse its discretion in granting [defendant's] motions to strike discovery that either was from witnesses that were undisclosed previously, or was produced after the discovery deadline.”)).

As discussed, Rule 26 requires that the parties disclose in a timely manner, during the discovery period, all documents and witnesses whose testimony will be used to support their claims and defenses, so that the opposing party may obtain discovery related to those documents and witnesses. In this case, Defendant has shown that Plaintiff failed to identify the Declarants or produce the Declarations to the Defendant in a timely manner during the discovery period, so that Defendant could depose the Declarants. Further, Plaintiff has not explained her failure to disclose this information during discovery, nor has she shown—or even argued—that her failure to disclose the Declarants “substantially justified” or “harmless” so that sanctions are not warranted under Rule 37(c). Plaintiff also has not demonstrated that she has submitted the Declarations only for the purpose of impeachment.

*14 In sum, it appears to be undisputed that Plaintiff failed to identify the Declarants or produce the Declarations during discovery, and the Court finds that the Plaintiff has failed to demonstrate that the failure was either “substantially justified” or “harmless.” See Fed. R. Civ. P. 37(c)(1). Thus, under Rule 37(c), the Plaintiff is precluded from relying on the Allen Declaration or the Robinson Declaration as evidence in support of her response to Defendant's Amended Motion for Summary Judgment, and the Court must exclude the Declarations from consideration. See id. Accordingly, to the extent that Plaintiff has relied on those Declarations in her Amended Statement of Facts [127] or her Response to Defendants’ Statement of Facts [116], the Court has excluded Plaintiff's facts that rely on those Declarations for evidentiary support.[11]

C. Plaintiff's Claims under 42 U.S.C. § 1983

In Counts I and II of the Complaint, Plaintiff asserts claims against Defendant, “in both his individual capacity and official capacity as Ms. Carter's employer,” under 42 U.S.C. § 1983 for a violation of her Fourteenth Amendment right to equal protection under the law.[12] Compl. at ¶¶ 140-47. In Count I, Plaintiff alleges that the § 1983 claim is based on “sexual harassment.” Id. at ¶ 140. She alleges that Defendant sexually harassed her “in a pervasive, unlawful, and continuous manner that his prohibited by the Constitution,” and that he did not treat male employees the way he treated Plaintiff. Id. at ¶¶ 141, 144. In Count II, Plaintiff alleges that the § 1983 claim is based on “hostile work environment.” Id. at ¶¶ 146-47. She alleges that Defendant “created, condoned, and ratified a serious hostile work environment, a hostile work environment that the Constitution prohibits.” Id. at ¶ 147.

1. Standards under § 1983 for Equal Protection Claims

Plaintiff has asserted her claims under 42 U.S.C. § 1983 (“§ 1983”), which provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

42 U.S.C. § 1983.

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); see also Arrington v. Cobb Cty., 139 F.3d 865, 872 (11th Cir. 1998); Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir. 1995); Willis v. Univ. Health Servs., 993 F.2d 837, 840 (11th Cir. 1993). There is no dispute in this case that Howard, as the District Attorney of Fulton County, was acting under color of state law.

Because vicarious liability is inapplicable to § 1983 suits, to establish liability under § 1983 against a defendant in his individual capacity, a plaintiff must show that the defendant, through the official's own individual actions, has violated the Constitution. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Parrish v. Ball, 594 F.3d 993, 1000 (8th Cir. 2010). As the Supreme Court has explained:

*15 In a § 1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.

Iqbal, 556 U.S. at 677, 129 S.Ct. 1937.

In this case, Plaintiff alleges that Defendant Howard violated her right to Equal Protection under the Fourteenth Amendment. The Equal Protection Clause provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. To establish a violation of the Equal Protection Clause, a “plaintiff must prove that he was discriminated against by establishing that other similarly-situated individuals outside of his protected class were treated more favorably.” Amnesty Int'l, USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009). Specifically, a plaintiff must allege that “he was discriminated against on account of his membership in an identifiable or protected class, such as race, religion, sex, or national origin.” Alford v. Consol. Gov't of Columbus, Ga., 438 F. App'x 837, 839 (11th Cir. 2011) (citing Sweet v. Sec'y Dep't of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006)).

The Eleventh Circuit has long recognized “an equal protection right to be free from employment discrimination” based on sex. See Williams v. Consol. City of Jacksonville, 341 F.3d 1261, 1268 (11th Cir. 2003). Thus, when a public employee claims that an employment decision was an act of discrimination against her on the basis of her sex, such discrimination may violate the constitutional right of equal protection. See Thigpen v. Bibb County, Ga., 223 F.3d 1231, 1237 (11th Cir. 2000); see also Cross v. Alabama, 49 F.3d 1490, 1507 (11th Cir. 1995) (there is a constitutional right to be free from unlawful sex discrimination and sexual harassment in public employment) (citing Davis v. Passman, 442 U.S. 228, 235, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)).

In order to establish a violation of the Equal Protection Clause in the employment context, a plaintiff must prove discriminatory motive or purpose. Whiting v. Jackson State Univ., 616 F.2d 116, 122 (5th Cir. 1980);[13] see also Cross, 49 F.3d at 1507-1508. The court in Whiting held that “such intent should be inferred in the same manner as [the Supreme Court] said it is inferred under [Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.].” Whiting, 616 F.2d at 121; see also Cross, 49 F.3d at 1507-1508.

Thus, in cases in which a plaintiff asserts an equal protection claim under § 1983 based on a claim of employment discrimination, the elements required to establish the equal protection claim under § 1983 generally mirror those required for a claim brought under Title VII. See Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008); Abel v. Dubberly, 210 F.3d 1334, 1338 (11th Cir. 2000); Cross, 49 F.3d at 1508; Busby v. City of Orlando, 931 F.2d 764, 777 (11th Cir. 1991); Whiting, 616 F.2d at 121; see also Lee v. Conecuh County Bd. of Educ., 634 F.2d 959, 962 (5th Cir. 1981) (“Section 1983 actions challenging ... discrimination under the equal protection clause and Title VII disparate treatment cases both require a showing of discriminatory motive, and the nature of a prima facie showing is the same in either case ....”). Accordingly, in addressing a claim of sexual harassment or a hostile work environment brought under § 1983 and the Equal Protection clause, the Court may apply the relevant standards set forth in cases discussing claims of a hostile work environment under Title VII.[14]

*16 When a plaintiff claims that a co-worker or supervisor discriminated against her on the basis of sex because of harassment or a sexually hostile work environment, the plaintiff must establish, for claims brought under Title VII or § 1983, that she was harassed on the basis of her sex, and that the harassing conduct “unreasonably interferes with an employee's job performance by creating a hostile, intimidating, or offensive work environment.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). As the United States Supreme Court has stated:

[T]he language of Title VII is not limited to “economic” or “tangible” discrimination. The phrase “terms, conditions, or privileges of employment” evinces a congressional intent to “ ‘strike at the entire spectrum of disparate treatment of men and women’ ” in employment.

Meritor Sav. Bank, 477 U.S. at 64, 106 S.Ct. 2399 (citations omitted).

Sexual harassment in the workplace can alter the terms and conditions of employment in either of two ways. See Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245 (11th Cir. 2004). One way, sometimes called quid pro quo sexual harassment, or tangible employment action harassment, is when the employee's refusal to submit to a supervisor's sexual demands results in a tangible employment action being taken against her. See id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)); see also Miles v. City of Birmingham, 398 F. Supp. 3d 1163, 1177–78 (N.D. Ala. 2019) (quid pro quo harassment occurs when “submission to sexual conduct is either explicitly or implicitly a term or condition of an individual's employment, or when submission to or rejection of such conduct by an 39 individual is used as the basis for employment decisions affecting such individual”) (quoting Sparks v. Reg'l Med. Ctr. Bd., 792 F. Supp. 735, 742 (N.D. Ala. 1992)).

The second way that sexual harassment may violate Title VII (or the Equal Protection Clause, for public employees) is when the harassment is sufficiently severe or pervasive to create a hostile work environment based on sex that alters the terms and conditions of employment, although the employee is not subjected to a tangible employment action, such as being fired, demoted, or reassigned. See Hulsey, 367 F.3d at 1245; see also Ellerth, 524 U.S. at 754, 118 S.Ct. 2257 (“Because Ellerth's claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct.”).

In this case, Plaintiff contends that she suffered both types of sexual harassment from Howard. Although she does not mention or use the term “quid pro quo sexual harassment” in connection with either of her two counts, Plaintiff alleges in the facts of the Complaint that “[q]uid pro quo was Howard's continual expectation,” and Howard “continually pressured” her with his “quid pro quo, uninvited sexual interactions.” Compl. [1] at ¶¶ 87, 102. She further alleges that “Upon Ms. Carter's firm denial of Howard's sexual advances, without any other changes or alterations in her job performance, Ms. Carter lost her job.” Id. at ¶ 132. Thus, the Court assumes that, in Count I of the Complaint, when Plaintiff asserts a claim based on “sexual harassment,” she intended to assert a claim of sexual harassment based on a tangible employment action, or “quid pro quo sexual harassment.”[15] See id. at ¶¶ 140-45. In Count II, Plaintiff asserts a claim that she was subjected to a hostile work environment on the basis of her sex. Id. at 41, ¶¶ 146-47.

2. Timeliness of Plaintiff's Claims

*17 Any action involving a constitutional claim brought under § 1983 is a tort action that is subject to the statute of limitations governing personal injury actions in the state in which the action has been brought. McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). Thus, actions brought in a federal district court in Georgia pursuant to § 1983 are governed by the two-year statute of limitations period for personal injuries provided in O.C.G.A. § 9-3-33. See Crowe v. Donald, 528 F.3d 1290, 1292-93 (11th Cir. 2008); Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986). Federal law, however, governs the date that the claim accrues, and provides that “the statute of limitations begins to run when ‘the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.’ ” Betts v. Hall, 679 F. App'x 810, 812 (11th Cir. 2017) (quoting Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)).

When a plaintiff alleges that she was subjected to unlawful discrimination as a result of a hostile work environment, she may state a viable claim based on acts outside of the applicable statute of limitations, so long as “an act contributing to the claim occurs within the filing period.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Supreme Court explained in Morgan that “[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. at 117, 122 S.Ct. 2061. The principle expounded in Morgan “applies the same to Title VII hostile work environment claims as it does to such claims brought under section 1983.” Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 739 (5th Cir. 2017); see also Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (noting that the standards for employment discrimination claims under Title VII are generally the same to those brought under § 1983).

Under the Eleventh Circuit's framing of Morgan, a court may consider untimely acts if they are “sufficiently related” to a timely hostile work environment claim that they “may be fairly considered part of the same claim.” See Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 1350 (11th Cir. 2007). In Chambless, the plaintiff sued her employer for sexual harassment, but her allegations of sexually harassing conduct such as sexual touching, jokes, propositioning, ridicule for pregnancy, and social isolation were all found to be untimely. See id. at 1347. The plaintiff nevertheless had timely claims for sex discrimination based on the defendant's failure to promote her, and for retaliatory discharge. See id. The Eleventh Circuit held that the discrete acts of failure to promote and discharge were not sufficiently related to the earlier incidents of sexual harassment—that is, they were not the “same type of ‘discriminatory intimidation, ridicule, and insult’ that characterized the untimely allegations,” and could not save her untimely acts from the statute of limitations. See id. at 1350 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

The following year, the Eleventh Circuit clarified that under Morgan, “discrete acts” of discrimination and retaliation cannot be combined with allegations of harassment as part of the same harassment claim and cannot save untimely allegations of harassing conduct. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 970–72 (11th Cir. 2008); McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir. 2008). Thus, to combine untimely acts with timely acts under Morgan, the untimely acts must be “sufficiently related” to the timely acts so as to form part of the same hostile work environment claim, and both the timely and untimely acts must be acts of harassment contributing to a hostile work environment, not discrete employment actions such as termination.

*18 Plaintiff filed the complaint initiating this action on April 20, 2020. Thus, for her § 1983 claims to be timely, she must show that at least some acts contributing to the alleged hostile work environment occurred within the previous two-year period, or after April 19, 2018. Defendant argues that, although Plaintiff contends that the Defendant's sexual harassment of her began in or around 2000, Plaintiff may not recover for acts that allegedly contributed to the hostile work environment before March of 2014, because it is undisputed that Plaintiff retired from the DA's Office in early 2012, and did not return until March of 2014. See Def. Br. [108-1] at 9-10. According to Defendant, when the chain of “causation” has been broken by an intervening act, any purported act of harassment that occurred before the intervening act is no longer part of the same hostile work environment claim. Id. at 9 (citing Morgan, 536 at 118, 122 S.Ct. 2061; In re 3M Combat Arms Earplug Prods. Liab. Litig., 2022 WL 684397 at *––––, 2022 U.S. Dist. LEXIS 41080 at *22 (N.D. Fla. Mar. 8, 2022)). Further, Defendant argues, intervening acts of misconduct will also “break any causal link” between alleged harassment and an adverse employment action. Id. (citing Henderson v. Fed. Express, 442 F. App'x 502, 506 (11th Cir. 2011)).

In response, Plaintiff argues that “Defendant is wrong again about his statement that acts before 2014 should not be considered because, according to Defendant, the causation chain is broke.” Pl. Br. [122] at 21. According to Plaintiff, she is permitted to use prior “untimely discriminatory acts” to bridge the gap between the alleged unlawful discrimination and the retaliatory conduct that occurred years later. Id. (citing Morgan, 536 U.S. at 102, 122 S.Ct. 2061). Morgan stated:

[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180– or 300– day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.

Morgan, 536 U.S. at 113, 122 S.Ct. 2061 (emphasis added).

Plaintiff contends that, “in similar fashion,” she “simply uses past conduct to demonstrate that nothing changed when she came back to work in 2014 and contrary [to] stating that the acts committed caused what happened in 2019—Ms. Carter is using these acts to support the allegation of a continuous hostile work environment and quid pro quo system that was always present so long as she was a subordinate employee of Howard.” Pl. Br. at 23.

In this case, it is undisputed that Plaintiff began working at the DA's Office as a legal assistant in 2000 and voluntarily retired from the DA's Office in December of 2011 or January of 2012. Def. SMF at ¶¶ 6-7, 22; Pl. Resp. SMF at ¶ 22. On March 12, 2014, Plaintiff was re-hired by the DA's Office as a Mobile Outreach Coordinator (“MOC”), which was a position funded by Fulton County, and in November of 2015, Plaintiff took another job with the DA's Office as Supervisor of Records, the position she held until her employment was terminated in 2019. Def. SMF at ¶¶ 26, 32, 64.

Under the circumstances, because Plaintiff left the DA's Office for over a year, and returned in a different position in March of 2014, the Court agrees with Defendant that Plaintiff's retirement from the DA's Office's in late 2011 or early 2012 was an intervening act that severed any initial hostile work environment from anything that occurred after March of 2014. Further, it appears that Plaintiff concedes as much in her brief when she argues that she may use “prior ‘untimely discriminatory acts’ ” to “bridge the gap” between the alleged discrimination and “retaliatory conduct that occurred years later.” Pl. Br. at 21 (emphasis added). Accordingly, Plaintiff's § 1983 claims must be based on Defendant's conduct that occurred after she returned to the DA's Office in March of 2014.[16]

3. Tangible Employment Action Harassment

*19 Sexual harassment is quid pro quo if a tangible employment action follows the employee's refusals to submit to a supervisor's sexual demands. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Thus, when a plaintiff is claiming that she suffered a tangible employment action resulting from her refusing sexual advances, she is not required to prove that the harassment was “severe or pervasive” because the tangible employment action, by definition, is itself a tangible and material change in the terms or conditions of her employment. Id. at 753–54, 118 S.Ct. 2257. Thus, to avoid summary judgment on a quid pro quo harassment claim, the plaintiff must show that “submission to unwelcome advances was an express or implied condition for receiving job benefits or [that] refusal to submit resulted in a tangible job detriment.” Newton v. Cadwell Labs., 156 F.3d 880, 882 (8th Cir. 1998).

In this case, Plaintiff contends that she suffered tangible employment action harassment. Plaintiff alleges in the Complaint that “[q]uid pro quo was Howard's continual expectation,” and Howard “continually pressured” her with his “quid pro quo, uninvited sexual interactions.” Compl. [1] at ¶¶ 87, 102. She further alleges that “Upon Ms. Carter's firm denial of Howard's sexual advances, without any other changes or alterations in her job performance, Ms. Carter lost her job.” Id. at ¶ 132. Thus, although Plaintiff does not use the terms “tangible employment action” or “quid pro quo” in Count I of the Complaint, the Court has interpreted Count I to be a claim of tangible employment action sexual harassment. See id. at ¶¶ 140-45.

The Supreme Court has defined a tangible employment action as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761, 118 S.Ct. 2257; see also Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245 (11th Cir. 2004). A tangible employment action “in most cases inflicts direct economic harm.” Ellerth, 524 U.S. at 762, 118 S.Ct. 2257. “The test for an adverse employment action in a disparate treatment context is similar to the one for a tangible employment action in a harassment analysis.” Hyde v. K.B. Home, Inc., 355 F. App'x 266, 271 (11th Cir. 2009); see also Webb-Edwards v. Orange Cnty. Sheriff's Office, 525 F.3d 1013, 1031 (11th Cir. 2008); Miles v. City of Birmingham, 398 F. Supp. 3d 1163, 1176 (N.D. Ala. 2019).

To establish a claim of sexual harassment based on a tangible employment action, a plaintiff must show not only that she suffered a tangible employment action, but also that there was a causal link between the tangible employment action and the sexual harassment, or the plaintiff's refusal of sexual advances. See Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231-32 (11th Cir. 2006); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1312 (11th Cir. 2001); see also Criswell v. Intellirisk Mgmt. Corp., 286 F. App'x 660, 663 (11th Cir. 2008) (per curiam) (unpublished). When the alleged harasser is the decisionmaker for the employment action, it can be inferred that the harasser's action was taken because of the plaintiff's refusal of sexual advances or otherwise because of the plaintiff's sex. See Arnold v. Tuskegee Univ., 212 F. App'x 803, 807 (11th Cir. 2006) (citing Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1247 (11th Cir. 1998)).

When the harasser is not the decisionmaker, however, the plaintiff may not benefit from the inference of causation that would arise from their common identity. Arnold, 212 F. App'x at 807–08 (citing Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999)). In that case, a plaintiff must establish the required causal link by showing that the “decisionmaker, without having independently evaluated the plaintiff's situation, acted in accordance with the harasser's wishes in taking the tangible employment action against the plaintiff.” Id. (citing Llampallas, 163 F.3d at 1249 (11th Cir. 1998)).

*20 A plaintiff may also show a genuine issue of fact as to causation based on temporal proximity between the harassment and the tangible employment action. See Cotton, 434 F.3d at 1232; see also Fields v. Atlanta Indep. Sch. Sys., 916 F. Supp.2d 1348, 1364–65 (N.D. Ga. 2013); Orquiola v. Nat'l City Mortg. Co., 510 F.Supp.2d 1134, 1154 (N.D. Ga. 2007). In general, the less time between the two events, “the stronger the inference that the adverse action was improperly motivated.” Orquiola, 510 F.Supp.2d at 1154 (citations and internal marks omitted); see also Higdon v. Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004) (three months is too long to allow a reasonable inference of causation); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (seven weeks was sufficiently proximate to create the causal nexus required for a prima facie case). Although temporal proximity between the harassment and the tangible employment action may be sufficient to establish an inference of causation, such an inference may be negated by unrebutted evidence showing that the tangible employment action was based on reasons that were wholly independent of the alleged harassment. See Arnold, 212 F. App'x at 808 (citing Frederick, 246 F.3d at 1312).

A defendant may thus defeat a claim based on quid pro quo sexual harassment claim by establishing that either: (1) an employment decision did not rise to the level of a tangible employment action, or (2) there is no causal connection between the tangible employment action and the sexual requests/harassment. See Cotton, 434 F.3d at 1231; see also Jenkins v. Koch Foods, Inc., No. 2:17-CV-364-RAH, 2022 WL 141529, at *10 (M.D. Ala. Jan. 14, 2022), aff'd, No. 22-10480, 2022 WL 18781083 (11th Cir. Sept. 20, 2022), and aff'd, No. 22-10480, 2023 WL 3404868 (11th Cir. May 12, 2023); Taylor v. CSX Transp., 418 F. Supp. 2d 1284, 1297 (M.D. Ala. 2006). A defendant can set forth an independent, legitimate non-discriminatory reason for the employment action, which the plaintiff must rebut and show to be a pretext. See Fields, 916 F. Supp.2d at 1364-65.

It is undisputed that the termination of employment constitutes a tangible employment action. See Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1281 (11th Cir. 2003) (“A discharge is unquestionably a tangible employment decision.”). Although Defendant appears to concede that Plaintiff's termination in June of 2019 was a tangible employment action, Defendant argues that Plaintiff's placement on a corrective action plan in April of 2019 for chronic absenteeism and tardiness was not a tangible employment action that could form the basis of her claim. See Def. Br. at 22-23.

In Plaintiff's brief, she does not appear to argue that the corrective action plan was also a tangible employment action for the purpose of her claim of sexual harassment.[17] See Pl. Br. at 11-24. In any event, the Court agrees with Defendant that, under the circumstances presented in this case, because the corrective action plan did not result in a demotion, loss of pay, or other material change to Plaintiff's employment, it was not a tangible employment action for the purpose of her sexual harassment claim.[18] See Fields, 916 F. Supp.2d at 1363-64 (“warnings are not generally considered adverse employment actions for Title VII purposes”) (citing Clark v. Potter, 232 F. App'x 895, 897 (11th Cir. 2007) (per curiam) (unpublished) (a letter of warning was not an adverse employment action)).

*21 With respect to Plaintiff's termination in June of 2019, Howard argues that he had a legitimate reason to terminate Plaintiff's employment that was wholly unrelated to Plaintiff's sex or any alleged sexual harassment, and Plaintiff has failed to present any evidence that the reason for her termination was merely a pretext for discrimination against Plaintiff or retaliation against her for refusing Howard's sexual advances. Def. Br. at 22-24.

In Plaintiff's brief, it is not clear what specific facts or evidence she is relying on to show a causal link between the alleged sexual harassment and her termination. See Pl. Br. at 11-24. She argues only that Howard “used that June 2019 incident as a pre-textual opportunity to terminate Ms. Carter's employment.” Id. at 18, 114 S.Ct. 367. Viewing all the disputed facts in the light most favorable to Plaintiff, however, the Court finds that she has cited to sufficient evidence to create an inference that there was a causal link between her termination and her refusal of Defendant's sexual advances.

As set forth above, after having sex with Howard “at least” 30 times between 2016 and 2018, Plaintiff contends that, sometime in late 2018, she refused to have sex with Howard. Pl. SMF at ¶ 37; Pl. Dep. at 123-24, 147 (Plaintiff testified “I had sex with him up until November of 2018.”); Def. SMF at ¶ 44; Pl. Resp. SMF at ¶ 44. Plaintiff further contends that, shortly after Howard “aided” her during the January 3, 2019, arrest, Howard requested sex from her and she rejected him. Pl. Resp. SMF at ¶ 80; Pl. Decl. at ¶ 4 (“Howard began asking me for sex within days of helping me resolve that gun situation on January 3, 2019, quickly. I rejected his advances ...”). She also states, “at the end of 2018 into the beginning of 2019,” she had “stopped completely” taking his calls, despite his “continual attempts” to have sex with her. Pl. Resp. SMF at ¶ 80; Pl. Dep. at 147-48. It is undisputed that, in June 2019, Howard terminated Plaintiff's employment. Def. SMF at ¶ 81; Def. Ex. 18.

In this case, the fact that the decisionmaker and the alleged harasser are the same person is enough to satisfy Plaintiff's prima facie burden to show evidence of causation. Further, Defendant terminated Plaintiff within approximately six months of her having stopped a sexual relationship with him. While six months is not an especially short time period compared to cases that have found that temporal proximity alone may establish a causal link, the Court finds that, under all the circumstances presented in this case, Plaintiff has presented at least some evidence to suggest an inference of a causal link between her refusal of Howard's advances and her termination.

Howard argues, however, that, intervening acts of misconduct will “break any causal link.” Def. Br. at 23 (citing Henderson v. Fed. Express, 442 F. App'x. 502, 506 (11th Cir. 2011)). According to Howard, he had a completely legitimate reason for terminating Plaintiff's employment—her arrest for assault in June of 2019—that was wholly unrelated to Plaintiff's refusal of any sexual advances, and Plaintiff has failed to cite to any evidence that his reason was pretextual. See id. at 21-24, 114 S.Ct. 367.

As set forth above in the facts, it is undisputed that, on January 3, 2019, Plaintiff was arrested when she entered the Fulton County Courthouse with a firearm, although no action was taken against Plaintiff by Howard or the DA's Office for this arrest. Def. SMF at ¶¶ 73-74; Pl. Resp. SMF at ¶¶ 73-74. Defendant has also presented evidence, largely undisputed by Plaintiff, that in April of 2019, Plaintiff was given a warning based on her chronic absenteeism and tardiness and she was provided with a corrective action plan to complete over a six-week period. Def. SMF at ¶ 74. Further, it is undisputed that, on June 7, 2019, Howard learned from his Chief Investigator, Cynthia Nwokocha, that Plaintiff had been arrested. Def. SMF at ¶ 75; Pl. Resp. SMF at ¶ 75; Def. Ex. 19. While Defendant contends that Plaintiff had been arrested for aggravated assault with a firearm, Plaintiff contends that she was charged with “simple assault.” Def. SMF at ¶ 75; Pl. Resp. SMF at ¶ 75; Def. Ex. 17.

*22 In any event, it is undisputed that the Incident Report of Plaintiff's arrest that Howard reviewed states that Plaintiff admitted to the Officer that, at a gas station, she approached a man that she believed owed her $400 “with her weapon in hand not pointing it at him asking him for the cash he owed and promised to return.” Def. SMF at ¶ 77; Pl. Resp. SMF at ¶ 77; Def. Ex. 17. The Incident Report indicated that the victim stated that “he was fearful of his life and he raised both hands up to the sky as she pointed the weapon at his chest,” and that he eventually ran as other “customers who observed the incident all panicked and hurrily [sic] left the location when the incident occurred.” Def. SMF at ¶ 78; Def. Ex. 17.

Howard contends that, after reviewing the Incident Report, he made the decision to immediately terminate Plaintiff's employment, and he sent her a letter on June 7, 2019, informing her that she was terminated. Def. SMF at ¶ 81; Def. Ex. 18. According to Howard, he made the decision to terminate Plaintiff's employment based on her conduct as reported in the Incident Report, and he also feared that the Office could face liability based on his knowledge of Plaintiff's arrests involving firearms. Def. SMF at ¶ 79; Howard Decl. at ¶¶ 9-12. Howard contends that he also considered that this was Plaintiff's second arrest for a crime with a handgun in six months and that Plaintiff was already on a corrective action plan for chronic absenteeism and tardiness. Def. SMF at ¶ 80; Howard Decl. at ¶¶ 9-12.

The Court finds that Howard has presented sufficient evidence that he had a legitimate reason to terminate Plaintiff's employment that was completely independent of Plaintiff's alleged refusal of his sexual advances. To rebut an independent, non-discriminatory justification for a tangible employment action, a plaintiff “must present concrete evidence in the form of specific facts showing that [the employer's] proffered reason was pretextual.” Fields v. Atlanta Indep. Sch. Sys., 916 F. Supp.2d 1348, 1366 (N.D. Ga. 2013) (quoting Bryant v. Averitt Express, Inc., 375 F. App'x 942, 943 (11th Cir. 2010) (per curiam) (unpublished) (citations and internal marks omitted)). “Ultimately, [she] must meet the employer's stated reason ‘head on and rebut it, and [s]he cannot succeed by simply quarreling with the wisdom of that reason.’ ” Id. (quoting Young v. FedEx Exp., 432 F. App'x 915, 917 (11th Cir. 2011)).

A plaintiff may carry her burden of establishing pretext by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); see also Alvarez v. Royal Atl. Developers, 610 F.3d 1253, 1265 (11th Cir. 2010). However, “[a] reason is not pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” Brooks v. Cty. Comm. of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (emphasis in original) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)); see also Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020).

While Plaintiff argues in her brief that Howard “used that June 2019 incident as a pre-textual opportunity to terminate Ms. Carter's employment,” it is not clear what evidence she is relying on to establish that Howard's purported reason for her termination was pretextual. See Pl. Br. at 18. Viewing all the disputed facts in the light most favorable to Plaintiff, however, the Court finds that she has failed to cite to sufficient evidence to create a genuine issue of material fact as to whether Howard's reasons for terminating her employment were a mere pretext to disguise an intent to terminate her for refusing his sexual advances.

*23 Plaintiff disputes that she had “chronic” absenteeism or tardiness, and disputes Howard's purported reasons for terminating her employment. Pl. Resp. SMF at ¶¶ 79-80. Plaintiff also notes that, regarding her previous arrest on January 3, 2019, for entering the Fulton County Courthouse with a firearm, she did not even receive any discipline for that arrest. Pl. Resp. SMF at ¶ 80; Def. SMF at ¶ 73. But Plaintiff does not dispute that she was arrested for assault that involved the use of a handgun, and she also admits, that in the 15 to 16 years that she has worked at the DA's Office, she does not know of any employees that were not terminated after being accused of using a firearm in an assault. Def. SMF at ¶ 82; Pl. Dep. at 167.

Thus, while Plaintiff states that she “disputes” Howard's reason for her termination and argues that it is “pretextual,” she has failed to rebut Howard's evidence that her arrest for assault in June of 2019 was the reason for her termination by citing to specific evidence suggesting that her arrest was not the true reason for her termination. See, e.g., Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1312–13 (11th Cir. 2001) (finding no causal link when the plaintiff failed to rebut the employer's legitimate reason to take an adverse employment action); see also Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1282 (11th Cir. 2003) (finding no causal link because “the undisputed evidence is that [the plaintiff] was terminated” for reasons unrelated to the alleged harassment).

Because Plaintiff has “failed to identify any specific individuals or the circumstances surrounding the treatment of those individuals,” the Court cannot find that Howard's proffered reason was pretextual “without any specific evidence concerning comparators.” Fields v. Atlanta Indep. Sch. Sys., 916 F. Supp.2d 1348, 1366 (N.D. Ga. 2013) (quoting Blasingame v. Gen. Motors Corp., No. 1:05-cv-1313-GET, 2007 WL 420190, at *15 (N.D. Ga. 2007), adopted at *2 (citations omitted)). Moreover, Plaintiff cannot rebut Howard's independent justification for terminating her employment “by simply quarreling with the wisdom of that reason.” Id. at 1367 (quoting Young v. FedEx Exp., 432 F. App'x 915, 917 (11th Cir. 2011)).

Accordingly, the undersigned RECOMMENDS that Defendant's Amended Motion for Summary Judgment [108] be GRANTED as to Count I, a tangible employment action claim based on alleged quid pro quo sexual harassment.

4. Hostile Work Environment

a. Plaintiff's Prima Facie Case

Plaintiff has also asserted a claim of sexual harassment based on a hostile work environment in Count II of the Complaint. Compl. at ¶¶ 146-47. She alleges that Howard “created, condoned, and ratified a serious hostile work environment, a hostile work environment that the Constitution prohibits.” Id. at ¶ 147.

To establish a prima facie case for sexual harassment based on a hostile work environment, a plaintiff must generally show that: (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; and (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment.[19] See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1257 (11th Cir. 2003); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc); Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995); Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

*24 In this case, although Howard concedes that Plaintiff has presented sufficient evidence to establish that she is female, and thus, a member of a protected group, and that the alleged harassment was based on her sex, Howard argues that Plaintiff cannot present a prima facie case of a hostile work environment based on sexual harassment because she cannot establish the second or fourth elements. Def. Br. at 12-13. Howard argues that the undisputed evidence shows that the alleged “harassment” was not unwelcome, as Plaintiff was instead a willing participant, and further, even if the harassment were unwelcome, it was not sufficiently severe or pervasive to alter the terms and conditions of Plaintiff's employment. Id. at 13-18.

(1) Was the Alleged Harassment Unwelcome?

To establish a prima facie case for a sexually hostile work environment, a plaintiff must show that she was subjected to unwelcome harassment based on her sex. See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc). As the Supreme Court has explained:

[T]he fact that sex-related conduct was “voluntary,” in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.” 29 CFR § 1604.11(a) (1985). While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

Meritor Savings Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (emphasis added).

The Court explained further that courts must consider the “totality of circumstances” to determine whether the harassment was unwelcome:

While “voluntariness” in the sense of consent is not a defense to such a claim, it does not follow that a complainant's sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of “the record as a whole” and “the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.”

Id. at 69 (quoting 29 CFR § 1604.11(b) (1985)).

Howard argues that the evidence shows in this case that Plaintiff was a “willing participant” in the sexual conversations with him, and thus, that the harassment was not unwelcome. Def. Br. at 13. Relying on two district court cases from Alabama, Howard argues that a plaintiff cannot establish a claim of a hostile work environment when she engages in a consensual sexual relationship and never expresses to the alleged harasser that the attention was unwelcome. See id. at 13-15 (citing Jenkins v. Koch Foods, Inc., No. 2:17-CV-364-RAH, 2022 WL 141529, at 61 *10 (M.D. Ala. Jan. 14, 2022), aff'd, No. 22-10480, 2022 WL 18781083 (11th Cir. Sept. 20, 2022), and aff'd, No. 22-10480, 2023 WL 3404868 (11th Cir. May 12, 2023); Miles v. City of Birmingham, 398 F. Supp. 3d 1163, 1180 (N.D. Ala. 2019)).

In Jenkins, the plaintiff was a man who had a consensual sexual relationship with a female human resources (“HR”) supervisor who was allegedly also having a relationship with the male director of her department. Jenkins, 2022 WL 141529, at *1-2. Although the plaintiff testified that the HR supervisor initiated the relationship and “came at [him],” they had consensual sex on numerous occasions, and the HR supervisor never threatened his job if he refused to participate. Id. at 2. Further, the plaintiff also testified that he tried to end the relationship “once or twice,” but that he “felt like he had no other choice” but to continue the relationship because he needed his job. Id. Eventually, after the plaintiff refused the HR supervisor's request to allow the male director of HR (her other sexual partner) watch them have sex, the plaintiff was fired. Id. at *3-4. The plaintiff claimed that, although his direct supervisor allegedly made the decision to fire him, the decision was actually made by the male HR director after the plaintiff had refused to allow the HR director to watch the plaintiff and the HR supervisor having sex. Id. at *4.

*25 In considering the plaintiff's claim for harassment based on both race and sex, the Jenkins court found that the plaintiff had not presented sufficient evidence to establish that the harassment was “unwelcome.” Id. at *9-10.

Aside from Jenkins's own acknowledgements that the relationship was consensual, the record shows that Jenkins's conduct failed to indicate that the relationship was unwelcome. Everything about the relationship, apart from the power imbalance inherent within a supervisor-employee relationship, indicates that the relationship was indeed welcome and consensual.

Id. at *9 (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986)) (“The correct inquiry is whether respondent by [his] conduct indicated that the alleged sexual advances were unwelcome ....”).

The Jenkins court further explained:

The relationship lasted for months. When Jenkins and McDickinson were not having sex, they regularly spoke on the phone with one another. When they were having sex, they would meet all over town and at all times of the day. Jenkins met with McDickinson at work and at various locations throughout town, at night and during the day, with friends and family present and by themselves, at friends’ houses and in each other's cars.... Further, there is no evidence that McDickinson ever conditioned their relationship with threats, and Jenkins never reported or complained to anyone during the months-long affair.

Id. at *10 (citing Miles v. City of Birmingham, 398 F. Supp.3d 1163, 1180 (N.D. Ala. 2019) (emphasizing that the “crux of the welcomeness inquiry” is whether the “employee's conduct indicated that the sexual advances were unwelcome” not whether the relationship is characterized as unwelcome after-the-fact”); Waltz v. Dunning, No. 2:13-CV-00517-JEO, 2014 WL 7409725, at *9 (N.D. Ala. Dec. 31, 2014) (finding sexual relationship was not unwelcome when viewing the plaintiffs conduct in totality revealed a consensual relationship)).

In Miles v. City of Birmingham, 398 F. Supp.3d 1163 (N.D. Ala. 2019), the plaintiff was a woman had a sexual relationship for approximately two years with a co-worker who had supervisory authority over her at various points in her employment, and they talked on the phone and texted each other “every day.” Miles, 398 F. Supp.3d. at 1170-71. The plaintiff initiated some of the calls and texts, and sometimes asked him to come over to her apartment, and “at no point in their relationship did Plaintiff communicate to [her supervisor] that his advances or their sexual encounters were unwelcome.” Id. at 1171. While the supervisor never directly threatened the plaintiff by telling her there would be job-related consequences if she ended the sexual relationship, the plaintiff testified that “she felt indirectly [threatened] because [the supervisor] implied that he had control over her job by saying ‘how you got to where you got. Its because of me. I'm the one that helped you [get] there .... And everything I say do, that's what you do, and don't pay them any attention.’ ” Id. at 1171-72. Plaintiff ultimately resigned her employment and ended the relationship, and later filed a lawsuit against her employer, alleging a hostile work environment based on sexual harassment. Id. at 1174.

*26 In reviewing the evidence presented by the parties, however, the Miles court found that the plaintiff had not presented sufficient evidence to establish that the alleged sexual harassment was “unwelcome.” Id. at 1180.

Plaintiff's own testimony confirms that she willingly engaged in a two-year relationship with Williams.... Plaintiff and Williams talked on the phone and texted each other every day. Though Plaintiff testified that she would occasionally avoid his calls, she initiated many calls herself. When asked if she ever contacted Williams to initiate any sexual contact, she answered yes and explained that she would call him and ask if he planned on coming over....

Plaintiff further admits that she never complained to the City of any sexual harassment. At no point during their relationship did Plaintiff communicate to Williams that his advances and sexual encounters were unwelcome. Indeed, Plaintiff testified that she and Williams engaged in two more sexual encounters after she resigned, but she ended the sexual relationship towards the end of April 2016—one month after her resignation.

Id. at 1179 (internal citations omitted).

The court in Miles further noted that the plaintiff argued that, although her participation in the relationship was voluntary, the advances “were not welcome because she did not solicit most of the actions and felt pressured in order to keep her job.” Id. at 1180. The court was unconvinced by the plaintiff's argument:

Essentially, Plaintiff argues that her two-year relationship with her superior was not welcome because she had seen the consequences of Williams's influence in the workplace—namely, his ability to write-up and suspend other employees.

However, this argument misunderstands the crux of the welcomeness inquiry, which focuses on (1) whether the employee “regarded the conduct as undesirable or offensive” and (2) whether the employee's conduct “indicated that the sexual advances were unwelcome.” Plaintiff's own testimony demonstrates that she welcomed a relationship with Williams.... Plaintiff never refused any of Williams's sexual advances, and even initiated several sexual encounters herself. Finally, although she was given at least three opportunities to report any unwelcome sexual harassment, she never complained about Williams and went so far as to deny the relationship each time to protect herself and Williams.... Based on the record before the court, no reasonable jury could find that Plaintiff's conduct indicated that her relationship with Williams was unwelcome.

Id. (quoting Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982); Meritor, 477 U.S. at 68, 106 S.Ct. 2399) (internal citations omitted).

Similarly, Howard argues, in this case, there is a “plethora of evidence and testimony showing that Plaintiff's conduct never suggested that the purported sexual harassment was unwelcome,” and it is “undisputed that Plaintiff never complained about harassment over the 15-16 years she was employed at the DA's Office.” Def. Br. at 14. Howard contends that the text messages reveal that Plaintiff was making sexual overtures to him, that she was flirting, and that she participated in sexual conversations, including making “sexually provocative statements to Howard, invitations of romantic assignations, pornographic comments, and playful flirting.” Id. Howard also contends that, when she was asked why she flirted with him, Plaintiff responded, “[j]ust humorous and just playing along with Mr. Howard and his little games.” Def. SMF at ¶ 71. Further, Howard argues, “Plaintiff is hard-pressed to claim she was offended by sexually explicit language where the evidence shows that she used identical language.” Def. Br. at 15.

*27 The Court will not repeat all the parties’ contentions about the years-long relationship between Plaintiff and Howard, including the many sexually graphic texts and conversations, as set forth above in the facts. In sum, the Court finds that Howard has presented significant evidence that Plaintiff's participation in many of the flirtatious and sexually-charged conversations with him appeared to be consensual. Nevertheless, the Court must also view all of the disputed facts and evidence in Plaintiff's favor, as the non-movant. And Plaintiff contends that—in fact—her participation in a sexual relationship with Howard was not consensual.

According to Plaintiff, after she began working at the DA's Office in 2000, if she did not give in and have sex with Howard, then she believed that “her job was gone.” Def. SMF at ¶ 9; Pl. Dep. at 34-35. Plaintiff contends that Howard would “pressure her” to have sex, and “if she did not react to said pressure, he would punish her.” Pl. Resp. SMF at ¶ 9; Pl. Dep. at 34-36. Plaintiff also testified that, between 2000 and 2011, if she told Howard “no” to sex then she would be “punished.” Def. SMF at ¶ 10; Pl. Dep. at 34-36. Although Plaintiff does not identify a specific date, the implication from Plaintiff's testimony is that, at least on some occasions, she told Howard “no” in response to his sexual advances, and she received negative treatment from him when she did so. Plaintiff testified, “when I didn't have sex, there was punishment. Either a supervisor would come and tell me that something I was doing wrong or either I would be called into his office, and he'd say that I'm not doing what I'm supposed to do.” Pl. Resp. SMF at ¶ 67; Pl. Dep. at 121-22.

Plaintiff also contends that she “testified throughout her deposition to a systematic scheme of pressure and punishment.” See Pl. Resp. SMF at ¶ 10. In particular, Plaintiff testified that, when Howard first attempted to have sex with her in 2005 or 2006, she told him “no” but he refused to stop:

A. He called me to his office.

Q. Okay.

Q. Okay. Are you contending that it wasn't consensual?

A. I'm not saying it wasn't consensual. But I'm also saying that if I didn't, there was consequences. And I knew that because that's what—that's the way he operate. [sic]

Q. Okay. So consequences with your son?

A. No. With me and my job.

Pl. Dep. at 43-44 (emphasis added).

When asked if she was contending that Howard raped her, Plaintiff testified “I don't say rape. It wasn't consensual.” Id. at 194 (emphasis added). Plaintiff further testified:

When I say consensual, it had—if anything that Mr. Howard did for me or for my family or anything, if I did not give in to his demands of having sex, I felt like I would be punished.... And I was punished. On—there's been numerous of time that he did that and I stopped and then next thing you know, somebody calling me in the office or telling me I'm not doing my job.

Id. at 194-95 (emphasis added); Def. SMF at ¶ 43; Pl. SMF at ¶ 43.

As discussed above, even if some of these alleged events occurred outside the relevant time period, the Supreme Court held in Morgan that a plaintiff is not barred from using prior untimely acts “as background evidence in support of a timely claim.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Thus, because the relationship between Plaintiff and Howard occurred over the course of many years, Plaintiff may present evidence of events prior to 2018 to help establish that Howard's sexual comments and sexual advances were unwelcome.

*28 Furthermore, regarding events that occurred during the relevant time period, Plaintiff also contends that, sometime in late 2018, she refused to have sex with Howard. Pl. SMF at ¶ 37; Pl. Dep. at 147 (Plaintiff testified “I had sex with him up until November of 2018.”). Plaintiff claims that, shortly after Howard “aided” her during her January 3, 2019, courthouse arrest, Howard requested sex from her and she rejected him. Pl. Resp. SMF at ¶ 80; Pl. Decl. at ¶ 4 (“Howard began asking me for sex within days of helping me resolve that gun situation on January 3, 2019, quickly. I rejected his advances ...”). Further, “at the end of 2018 into the beginning of 2019,” she had “stopped completely” taking Howard's calls, despite his “continual attempts” to have sex with her. Pl. Resp. SMF at ¶ 80; Pl. Dep. at 147-48.

Accordingly, the Court finds that, when viewing all disputed facts and evidence in the light most favorable to Plaintiff, although Defendant has presented evidence that Plaintiff was a participant in some of the “sexually charged” conversations with Howard, Plaintiff has presented evidence sufficient to create a genuine dispute of fact as to whether Howard's sexual comments and sexual advances were unwelcome. Plaintiff expressly contends that, when Howard first attempted to have sex with her in 2005 or 2006, she told him no, but he refused to stop. She also testified that she refused his sexual advances on other occasions but was subjected to “punishment” when she did so by being reprimanded at work. She also claims that, in 2018 or 2019, she told Howard that she did not want to have sex with him, and she had also stopped taking his calls, but he continued to make sexual advances and pressure her for sex. For that reason, the Court finds that Plaintiff has presented sufficient evidence to create a genuine issue of fact as to whether Howard's conduct towards her was unwelcome.

(2) Was the Harassment Severe or Pervasive?

Demonstrating the fourth element of a prima facie case of a hostile work environment requires the plaintiff to show that the work environment was “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). As the Supreme Court has stated, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citation omitted). Thus, the alleged harassing conduct must be “extreme” to amount to a change in the terms and conditions of employment, and the “ordinary tribulations of the workplace” such as “sporadic use of abusive language, ... jokes, and occasional teasing” are not enough—since Title VII is not a “general civility code.” Faragher, 524 U.S. at 788, 118 S.Ct. 2275.

In evaluating whether a reasonable person would find conduct to be sufficiently severe or pervasive, “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances.’ ” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); see also Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc) (“courts should examine the conduct in context, not as isolated acts, and determine under the totality of the circumstances whether the harassing conduct is sufficiently severe or pervasive to alter the terms or conditions of the plaintiff's employment and create a hostile or abusive working environment.”). Thus, a court must consider the “totality of the circumstances” in determining whether a hostile environment is severe or pervasive enough to be actionable under Title VII; it must consider not only the frequency of the incidents alleged but also the gravity of those incidents. Harris, 510 U.S. at 23, 114 S.Ct. 367; Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 (11th Cir. 1989). Other factors that are relevant are whether the offensive conduct is physically intimidating or humiliating, and whether it unreasonably interferes with plaintiff's work performance. Harris, 510 U.S. at 23, 114 S.Ct. 367.

*29 Defendant argues that the evidence in this case shows that Plaintiff did not subjectively believe the alleged harassment to be severe or pervasive, and cites to the same evidence discussed above in connection with whether the alleged harassment was unwelcome.[20] See Def. Br. at 16. Defendant argues that Plaintiff sent text messages to him asking him to come to her house, regularly asked to see him, told him to call so she can use her “toy,” and asked him to “promise” “to come see me tomorrow.” Id. Defendant argues further that, although Plaintiff “testified repeatedly that she had to give in to his sexual advances or she would lose her job or be punished,” “in nearly the same breath,” Plaintiff also testified that she regularly refused to have sex with him for long periods, but during those periods, she “was promoted, received a pay raise, and asked Howard for help with her son's legal troubles, which she says he did.” Id. at 17, 114 S.Ct. 367.

Moreover, Defendant argues, although Plaintiff claims she was in fear of being “punished” if she did not have sex with him, “the few examples Plaintiff gives of ‘punishment’ are amorphous and are merely references to minor events where she claims Howard told her that he was unhappy with her job performance.” Id. at 17, 114 S.Ct. 367. Thus, Defendant contends, based on Plaintiff's conduct, it would be “unreasonable” to argue that she subjectively perceived the environment to be abusive or had any reason to fear for her job or to fear punishment. Id. at 17-18, 114 S.Ct. 367.

Defendant also argues that the undisputed evidence demonstrates that the alleged harassment was not objectively severe or pervasive when the evidence shows that Plaintiff engaged in the same conduct that she accuses him of engaging in. Id. at 18, 114 S.Ct. 367. In sum, Defendant argues, the evidence of Plaintiff's conduct shows that the alleged harassment was not objectively severe or pervasive enough to alter the terms and conditions of her employment, nor did she have had a reasonable subjective belief that the purported harassment was severe or pervasive. Id. at 18, 114 S.Ct. 367.

Plaintiff's responsive brief to Defendant's motion is not a model of clarity and does not present as precise of a fact-based argument as the Court expects to see. Nevertheless, the basic chronology here is laid out well enough in the parties’ statements of fact. Viewing all disputed facts and inferences in the light most favorable to Plaintiff, the Court finds that sufficient evidence exists to create a genuine issue of fact as to whether Howard's harassment of her was sufficiently severe or pervasive to alter the conditions of her employment.

First, the Court notes that, most of the evidence relied on by Howard to argue that the harassment was not severe or pervasive is the same evidence he relies on to argue that the harassment was not “unwelcome.” As discussed above, however, the Court finds that Plaintiff has presented evidence sufficient to create a genuine dispute of fact as to whether Howard's sexual comments and sexual advances were unwelcome. Plaintiff expressly contends that, when Howard first attempted to have sex with her in 2005 or 2006, she told him no, but he refused to stop. She also testified that she refused his sexual advances on other occasions but was subjected to various “punishment” when she did so. She also claims that, in 2018 or 2019, she told Howard that she did not want to have sex with him, and she also stopped taking his calls, but he continued to request sex from her.

*30 Moreover, determining whether the alleged harassment was “unwelcome” is different from determining whether it was “severe or pervasive.” As discussed, to determine whether a hostile environment was severe or pervasive enough to alter the conditions of employment, a court must the frequency and gravity of the incidents, as well as whether the harassment was physically intimidating or humiliating, and whether it unreasonably interfered with the plaintiff's work performance. See Harris, 510 U.S. at 23, 114 S.Ct. 367.

The Court will not repeat all the parties’ contentions about what occurred during their relationship, as set forth in the facts. But Defendant concedes that, from 2014 through 2019, Howard texted Plaintiff “often” with “flirtatious” and “sexually charged” messages. Def. SMF at ¶ 45. While neither party has attempted to quantify the number of “flirtatious” or “sexually charged” text messages Howard sent to Plaintiff during the relevant time period, the evidence indicates that Howard's sexual comments to Plaintiff, whether in text messages or phone calls, were so frequent that they could be seen as “pervasive.” See Def. SMF at ¶¶ 44-56; Def. Ex. 7-10 (including numerous text messages sent from Howard to Plaintiff).

Plaintiff has also presented evidence that, between 2012 and late 2014, while she was not working for the DA's Office, Howard called her “all the time.” Pl. Resp. SMF at ¶ 23; Pl. Dep. at 57-58 (“Mr. Howard did not stop calling me.... It was so frequent, sir. I really couldn't tell you how many times.”). While those phone calls may be outside the relevant time period of Plaintiff's actionable § 1983 claim, as discussed, Plaintiff may present some evidence of events from outside the relevant time period to support her claim that she suffered a hostile work environment. Further, during the relevant time period, Plaintiff also contends that, between 2016 and 2018, Howard had sex with her at least 30 times. Def. SMF at ¶ 44; Pl. Resp. SMF at ¶ 44; Pl. Dep. at 123-24 (“It was numerous of times. I can't tell you how many. It could be 20, 30. I don't know. It was numerous....” Q. “Would you say it was at least 30?” A. “Yeah.”). Finally, Plaintiff claims that, after she began rejecting Howard's sexual advances in late 2018 or early 2019, she claims that she “stopped completely” taking Howard's calls, despite his “continual attempts” to have sex with her. Pl. Resp. SMF at ¶ 80; Pl. Dep. at 147-48.

While Plaintiff and Howard dispute many of the facts surrounding the events that occurred between them, “[t]he divergence between [the parties’] versions of events is sufficient to create a genuine issue of fact as to whether [the defendant] acted under color of law to deprive [the plaintiff] of a constitutional right.” Brokenborough v. D.C., 236 F. Supp. 3d 41, 56 (D.D.C. 2017) (citing Jones v. District of Columbia, 646 F.Supp.2d 42, 48 (D.D.C. 2009)) (“[t]here is most certainly a genuine fact issue as to whether defendant Ellison purported to use his supervisory state authority over plaintiff to lure her to his office and harass her”).

In sum, when viewing all the disputed facts and evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff has presented sufficient evidence to create a genuine issue of fact as to whether Howard's conduct towards her was severe or pervasive enough to alter the terms and conditions of her employment. Thus, the Court finds that Plaintiff has cited to evidence that would be sufficient to establish a claim of sexual harassment based on a hostile work environment, and Howard is not entitled to summary judgment on her § 1983 claim against him for that reason.

*31 Howard argues further, however, that, even if Plaintiff had established a prima facie case of a hostile work environment, he would be entitled to an affirmative defense based on Plaintiff's failure to complain about his conduct using the policies and procedures established by the DA's Office.

b. “Faragher/Ellerth” Affirmative Defense

Howard argues that, even if Plaintiff had established a prima facie case of a hostile work environment, he would be entitled to assert an affirmative defense under the Supreme Court's decisions in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). See Def. Br. at 18-21 (asserting the “Faragher/Ellerth Affirmative Defense”).

In Faragher, the Supreme Court held that, when a plaintiff brings a claim against her employer under Title VII for sexual harassment or a hostile work environment, the employer will be strictly liable for the hostile work environment if a supervisor takes tangible employment action against the victim. Faragher, 524 U.S. at 807, 118 S.Ct. 2275. But even if a supervisor takes no tangible employment action against the victim, the employer “is subject to vicarious liability to a victimized employee for an actionable hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee.” Id.

The employer may be vicariously liable under Title VII when the alleged sexual harasser is the plaintiff's supervisor with actual authority over the plaintiff, even if the employer did not have knowledge of the allegedly harassing behavior, unless the employer raises and establishes an affirmative defense. See id. at 806-07, 118 S.Ct. 2275; Ellerth, 524 U.S. at 762-65, 118 S.Ct. 2257. The employer is thus entitled to assert an affirmative defense if the plaintiff has shown that the alleged harasser was a supervisor but the harassment did not result in the supervisor's taking a tangible employment action against the plaintiff as a result of the sexual harassment. See Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; see also Penn. State Police v. Suders, 542 U.S. 129, 143, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1246 (11th Cir. 2004) (“When we talk about tangible employment action and hostile environment, what we are or should be talking about are the two alternative ways a plaintiff may establish a basis for the employer's vicarious liability, which is the fifth factor of a Title VII sexual harassment claim.”).

In this case, however, Plaintiff has asserted no claim under Title VII and no claim against Howard as her employer. Instead, Plaintiff has asserted claims against Howard as an individual under § 1983 for violating her constitutional right to Equal Protection.[21] The Supreme Court decisions in Faragher and Ellerth involved claims of a hostile work environment brought against employers under Title VII, not claims against individuals under § 1983, and nothing in those decisions indicates that the Supreme Court intended for the affirmative defense to be available to individuals sued only under § 1983. See Faragher, 524 U.S. at 780, 118 S.Ct. 2275; Ellerth, 524 U.S. at 746-47, 118 S.Ct. 2257.

In response to Howard's argument, Plaintiff argues that “[n]o affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Pl. Br. at 10, 19. Plaintiff further argues that the affirmative defense does not apply because “this is not a respondent [sic] superior claim.” Id. at 19, 114 S.Ct. 367. Finally, she argues that Defendant Howard is not entitled to the defense because:

*32 [H]e never “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”; instead, and to the compete opposite, he continued sexually harassing Ms. Carter, and bullying her, for nearly 20 years, all the way up to her termination. Furthermore, this defense applies to claims that require a plaintiff to prove a tangible employment action, and thus this defense does not apply to Ms. Carter's hostile work environment claim, which does not require a tangible employment action.

Id. at 19-20.[22]

As discussed above in connection with Plaintiff's claim of quid pro quo sexual harassment, the Court finds that Plaintiff has failed to present sufficient evidence to establish that Howard's termination of her employment was caused by her rejection of his sexual advances, or that her termination was otherwise related to the alleged sexual harassment. But Plaintiff is correct that this is not a respondeat superior claim. Because she is not suing Howard as her employer, the Faragher/Ellerth affirmative defense—which allows employers to escape vicarious liability under Title VII for the harassing conduct of their employees—is not available to Howard on Plaintiff's § 1983 claims against him in his individual capacity.

As explained, the Supreme Court's decision in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), addressed the issue of when an employer may be “vicariously liable [under Title VII] for tortious conduct of a supervisor made possible by abuse of his supervisory authority.” Faragher, 524 U.S. at 802, 118 S.Ct. 2275. But Plaintiff does not sue Howard as her employer under Title VII, she sues Howard in his individual capacity under § 1983 for a violation of her rights under the Equal Protection clause. As discussed, there is no vicarious liability under § 1983, so there is no requirement for Plaintiff to show that her “employer” is vicariously liable for Howard's actions. See Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The Faragher/Ellerth defense simply cannot apply in these circumstances. Howard essentially argues he was under no obligation to correct his behavior, nor could he even be charged with actual or constructive knowledge of his own behavior, because Plaintiff “unreasonably” failed to complain to anyone else at the DA's Office, the Office of Diversity and Civil Rights Compliance (“DCRC”), or the Office of Inspector General, as the anti-harassment policy allowed her to do. But it would obviously be absurd for an individual harasser to avoid liability for his own intentional harassment under § 1983 simply because the victim has not yet reported the harassment. Such a defense would equate to at least one “free pass” of intentional harassment, because an act of harassment will necessarily pre-date the complaint about it. More broadly, it is nonsensical to analyze whether Howard the employer (who is not even a party) might be vicariously liable for the intentional actions of Howard the individual. None of these results was remotely intended in Faragher, which discussed only vicarious claims against employers under Title VII and not claims against individuals for their own intentional conduct under § 1983.

*33 In Defendant's reply brief, Defendant concedes that “[t]his is not a straightforward issue since an elected district attorney is in and of himself the employer.” Def. Reply Br. [130] at 13. Defendant nevertheless argues that cases have held that other elected officials, such as sheriffs, are entitled to assert the affirmative defense, even when the individual officials are sued in their individual capacities under § 1983. See id. at 13-14 (citing Mitchell v. Overbey, No. 5:03-CV-157(WDO), 2005 WL 1983839, at *16 (M.D. Ga. Aug. 17, 2005) (unpublished), aff'd sub nom. Mitchell v. Pope, 189 F. App'x 911 (11th Cir. 2006) (per curiam)).

In Mitchell v. Overbey, an unpublished case from the Middle District of Georgia, the plaintiff asserted claims under Title VII and § 1983, among other claims, against Butts County; the Butts County Sheriff's Department; Gene Pope, the Sheriff of Butts County, and Michael Overbey, a Major in the Sheriff's Department. See Mitchell, 2005 WL 1983839, at *1. Among other claims, the plaintiff claimed that Major Overbey sexually harassed her, which resulted in a hostile work environment under both Title VII and § 1983, thus violating her equal protection rights. Id. at *5.

Significantly, because the plaintiff's claim of a hostile work environment involved largely the same elements as her claim of a hostile work environment under Title VII, the court considered those claims together, including the defendants’ affirmative defense under Faragher for Title VII claims. Id. at *6-11. The court then found that plaintiff had not shown that she had been subjected to an adverse employment action, and—skipping any discussion of the elements of plaintiff's prima facie case of a hostile work environment absent a tangible employment action—found that, in any event, the defendants were able to establish the affirmative defense, and granted summary judgment in their favor. Id. at *16. On appeal, the Eleventh Circuit affirmed the grant of summary judgment on the plaintiff's Title VII and § 1983 claims, but on the different ground that the plaintiff had failed to show that any alleged harassment was severe or pervasive, and the panel specifically did not address whether the defendants were entitled to assert the affirmative defense. See Mitchell v. Pope, 189 F. App'x 911, 914 n.5 (11th Cir. 2006) (per curiam).

In sum, while the district court in Mitchell did apply the Faragher/Ellerth affirmative defense, it did so when discussing the plaintiff's claims under both Title VII and § 1983 together, and assumed, without any discussion of individual liability under § 1983 specifically, that the defense would apply. Moreover, the plaintiff in that case had also sued the Butts County Sheriff's Department, and the Sheriff of Butts County, and were trying to hold them vicariously liable for the actions of Major Overbey, a subordinate employee. By contrast, in this case, Plaintiff sues Howard individually for his own actions, and is not attempting to hold him vicariously liable for the actions of a subordinate employee. Under these circumstances, the Faragher/Ellerth affirmative defense—which applies solely to employers seeking to avoid vicarious liability under Title VII for the actions of an employee—has no application at all.

In his reply, Howard argues further that “the Faragher-Ellerth defense is available to Howard, since, at the time he was district attorney, he was the employer under any formula. In other words, both the Office of the District Attorney and the District Attorney himself are inseparable and cannot exist independently of the other.” Def. Reply Br. at 14. Significantly, Howard cites no cases to support that proposition. In any event, the Court rejects Howard's argument that, because he was the District Attorney and was also Plaintiff's employer, he cannot be separated from his office, because they are “inseparable.”[23]

*34 As discussed, to establish her claim under § 1983, Plaintiff must show that a person acting under color of state law violated a right secured by the Constitution and laws of the United States. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). There is no requirement that Plaintiff establish that Howard is her “employer,” as that simply is not an element of her § 1983 claim. Furthermore, because vicarious liability is inapplicable to § 1983 suits, Plaintiff must show that Howard personally, through his own actions—and not vicariously through a subordinate's actions—has violated the Constitution. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“each Government official ... is only liable for his or her own misconduct”). Thus, it is immaterial to Plaintiff's claims in this case that Howard, in his official capacity as District Attorney, was also her employer. What matters is whether she has shown that his actions against her violated her right to Equal Protection of the laws.

Furthermore, even assuming that Howard had shown that he was entitled to assert the Faragher/Ellerth affirmative defense, the Court finds that issues of fact remain as to whether Howard would be able to successfully establish all the elements of that defense. The Faragher/Ellerth affirmative defense is available to an employer (sued in a vicarious capacity) that (1) shows that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that (2) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275; see Suders, 542 U.S. at 145-46, 124 S.Ct. 2342. “Both elements must be satisfied for the defendant-employer to avoid liability, and the defendant bears the burden of proof on both elements.” Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001) (citations omitted).

In this case, Plaintiff may not have taken advantage of the corrective opportunities made available by the applicable policies. But it is hardly clear as a matter of law that Howard, the alleged harasser, personally “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Any casual review of the evidence in the light most favorable to Plaintiff shows at least an issue of fact as to whether Howard was exercising “reasonable care,” by making numerous sexual advances, vulgar comments, and by actually engaging in sexual relations with Plaintiff dozens of times despite evidence to support the finding that at least some of this was unwanted. A jury would be well able to find that Howard failed to exercise “reasonable care” through this behavior, which would be enough to defeat the Faragher/Ellerth even if it were to apply to this ridiculous scenario.

Accordingly, the undersigned RECOMMENDS that Defendant's Amended Motion for Summary Judgment [108] be DENIED as to Plaintiff's claim of a hostile work environment in Count II of the Complaint.

III. RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that Defendant's Amended Motion for Summary Judgment [108] be GRANTED IN PART, DENIED IN PART.

IT IS RECOMMENDED that the Motion [108] be GRANTED as to Plaintiff's claim of sexual harassment based on a tangible employment action, and that judgment be entered in favor of Defendant on Count I of the Complaint. IT IS FURTHER RECOMMENDED that the Motion [108] be DENIED as to Plaintiff's claim of sexual harassment based on a hostile work environment in Count II of the Complaint.

As this is a Final Report and Recommendation, there is nothing further in this action pending before the undersigned.

IT IS SO RECOMMENDED this 6th day of June, 2023.

Footnotes

[1]

In the Complaint, Plaintiff also asserted claims under 42 U.S.C. § 1983 against Defendant in his official capacity; a claim under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.; and state-law claims for breach of contract and duty of good faith and fair dealing, and negligence, but those claims have been dismissed. See Compl. [1] at 42-47; Report & Rec. [31]; Order [37].

[2]

Although Plaintiff originally filed a Statement of Facts [117] in connection with her response to Defendant's Amended Motion for Summary Judgment on December 12, 2022, she later moved to file an Amended Statement of Facts, which the Court granted on January 13, 2023. See Order [126].

[3]

Both parties filed copies of the transcript of Plaintiff's deposition (“Pl. Dep.”) dated July 8, 2022. See Pl. Dep. [109][118]. Because the version filed by Defendant appears to contain the exhibits, while the version filed by Plaintiff does not, the Court refers herein to the transcript filed by Defendant. See Pl. Dep. [109].

[4]

In response to this fact and many others, Plaintiff's responds “Disputed as stated.” See, e.g., Pl. Resp. SMF at ¶¶ 9-12, 23-25, 32, 43, 44, 61, 65, 66, 70, 82. Plaintiff apparently uses this phrase “Disputed as stated,” to mean “not disputed,” but that she requests that the Court consider other evidence in addition to the evidence cited by Defendant. See id. As discussed above, unless Plaintiff specifically disputes a fact submitted by Defendant with a citation to record evidence reflecting that the Defendant's purported fact is genuinely in dispute, the Court must consider Defendant's fact to be admitted.

[5]

Although Defendant filed a copy of this audio recording, neither party has filed a transcript of the recording. See Notice of Filing Electronic Media [110].

[6]

While Defendant contends that the corrective action plan was over a “six-month period,” the cited testimony indicates that it was a six-week period. See Def. SMF at ¶ 74; Pl. Dep. at 154-55 (Plaintiff testified that Howard put her on probation for “six weeks,” during which time she was required to “[b]e on time for work.”).

[7]

While Plaintiff does not dispute that the Incident Report includes these statements, she states that she “objects” to these statements in the Incident Report because “there is no proof that this incident report has been authenticated and the subject statement is hearsay.” Pl. Resp. SMF at ¶ 78. Plaintiff, however, has also cited to the Incident Report in support of her own contentions. See Pl. Resp. SMF at ¶ 75 (citing to the Incident Report, Def. Ex. 17, to support her contention that she was charged with “simple assault”). Furthermore, the Court overrules Plaintiff's objection to the statements in the Incident Report as “hearsay,” because Defendant has not introduced the statements of the alleged victim for the truth of the matter asserted. It is not material to the issues in this case whether the events in the Incident Report actually occurred as the alleged victim reported. The Incident Report is material only to explain Howard's actions thereafter.

[8]

As noted above, although Plaintiff originally filed a Statement of Facts [117] in connection with her response to Defendant's Amended Motion for Summary Judgment on December 12, 2022, she later filed an Amended Statement of Facts [127]. Plaintiff filed the Declarations of Marlene Allen and Gloria Robinson as exhibits to her original Statement of Facts [117]. See Allen Decl. [117-1]; Robinson Decl. [117-3].

[9]

Although sur-replies are not generally permitted by the Local Rules of this Court, it is within the Court's discretion to grant permission to file a sur-reply brief when a new argument or issue has been raised in a reply brief. See, e.g., Telecom Technical Services v. Siemens Rolm Communications, Inc., 66 F.Supp.2d 1306, 1310 (N.D. Ga. 1998) (allowing the plaintiff to file a sur-reply brief). In this case, however, Plaintiff did not file any motion requesting leave to file a sur-reply to respond to Defendant's objections to the Allen and Robinson Declarations.

[10]

Defendant concedes that the Declarations were shown to him by Plaintiff's counsel during his deposition, but notes that his deposition was taken after the expiration of the discovery period, at the agreement of the parties, so Defendant was unable to depose the Declarants. See Def. Reply Br. [130] at 4; see also Howard Dep. [119] dated October 13, 2022, at 13, 30-31.

[11]

The Court notes that, although it has excluded the Allen and Robinson Declarations from consideration in resolving Defendant's Amended Motion for Summary Judgment, the Plaintiff's purported facts that rely on those Declarations for support are largely immaterial to the issues in this case.

[12]

As noted above, Plaintiff's claims under 42 U.S.C. § 1983 against Defendant in his official capacity; her claim under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.; and her state law claims have been dismissed, leaving only her § 1983 claims against Defendant in his individual capacity. See Order [37].

[13]

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.

[14]

While some of the elements of the claims are similar, § 1983 and Title VII claims are not “identical.” Passananti v. Cook Cnty., 689 F.3d 655, 662 n.4 (7th Cir. 2012). For example, while Title VII imposes liability only on “employers” with more than 15 employees, only persons “acting under color of law” may be sued under § 1983, which does not provide for vicarious liability. See id.; see also Patterson v. County of Oneida, 375 F.3d 206, 225–27 (2d Cir. 2004) (reviewing the differences).

[15]

To the extent that Plaintiff did not intend to assert a claim of quid pro quo sexual harassment in Count I of the Complaint, her claim in Count I would appear to be duplicative of her claim of a sexually hostile work environment in Count II, and thus subject to dismissal on that basis. See Compl. at ¶¶ 140-45.

[16]

Defendant also argues that Plaintiff is judicially estopped from basing her § 1983 claims on any conduct that occurred prior to December 24, 2015, because she failed to disclose her potential claims in her bankruptcy action that was discharged on December 24, 2015. See Def. Br. at 10-12. Because most of the alleged conduct that Plaintiff bases her claims on occurred between 2016 and 2018, the Court declines to address this argument.

[17]

In Plaintiff's brief, she does not respond to Defendant's specific arguments, but instead, discusses both theories of her sexual harassment claim under one heading titled “A triable issue of fact exists as to whether Paul Howard created both a pervasive and hostile work environment for Cathy Carter and a quid pro quo form of harassment.” See Pl. Br. at 11-24. Plaintiff's failure to respond to Defendant's arguments directly makes it difficult to discern which facts, and what evidence, she is relying on to support each element of her claims.

[18]

It is not clear whether Plaintiff is arguing that her move to a new work area in 2018 or 2019 was a tangible employment action, but Plaintiff has not cited to any evidence that her move came with a material change in her duties or compensation. It is undisputed that, although Plaintiff moved to a new work area, she still had the same position as Supervisor of Records from November of 2015 until she was fired in 2019, and neither Howard nor the Chief of Staff told her that her job or her pay had changed. Def. SMF at ¶ 64; Pl. Resp. SMF at ¶ 64; Pl. Dep. at 82-83.

[19]

Under Title VII, a plaintiff would also be required to show a fifth element, there is a basis for holding the employer liable for the harassment either directly or indirectly. See Reeves, 594 F.3d at 808 (quoting Mendoza, 195 F.3d at 1245). In this case, however, Plaintiff seeks to hold Howard liable under § 1983 in his individual capacity, not in his official capacity as her employer, and there is no vicarious liability under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (under § 1983, “each Government official ... is only liable for his or her own misconduct”).

[20]

Defendant also argues that “Plaintiff cannot show that the alleged conduct was severe and pervasive,” but the harassing conduct may be severe or pervasive. Def. Br. at 15; see Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (“For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim's] employment and create an abusive working environment.”) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

[21]

Plaintiff's § 1983 claims against Howard in his official capacity as her employer have been dismissed. See Order [37].

[22]

In support of her argument that the affirmative defense does not apply to her hostile work environment claim, Plaintiff also cites to Baines v. City of Atlanta, Georgia, No. 1:19-CV-0279-TWT-JSA, 2020 WL 10058116 (N.D. Ga. Mar. 10, 2020), report & rec. adopted, No. 1:19-CV-279-TWT, 2020 WL 10070276 (N.D. Ga. Apr. 6, 2020). Baines, however, stated the opposite: that a claim of sexual harassment under Title VII based on a “hostile work environment” theory is subject to the Faragher defense. See Baines, 2020 WL 10058116, at *4.

[23]

The Court notes that Howard was previously able to separate Plaintiff's claims against him in his official capacity from those against him in his individual capacity, as he moved to dismiss Plaintiff's § 1983 claims against him in his official capacity as her employer, and those claims were dismissed. See Order [37].