Howard v. Wilkie

          MEMORANDUM OPINION

          John E. Ott Chief United States Magistrate Judge.

         Plaintiff Kawanna Howard filed a complaint in this court alleging she was discriminated against by her former employer because of her sex in violation of Title VII of the Civil Rights Act of 1964. (Doc. 1 at 2-12).^[1] Now before the court^[2] is the Defendant Robert Wilkie, Secretary, Department of Veteran Affairs' (“Veteran Affairs”) motion to dismiss^[3] or, in the alternative, motion for summary judgment. (Doc. 8). The motion has been fully briefed, (docs. 9, 17, 24), and is now ripe for decision. For the reasons that follow, the motion for summary judgment is due to be granted.

         I. STANDARD OF REVIEW

         Although Defendant's motion is couched as a motion to dismiss and an alternative motion for summary judgment, a review of the briefing convinces the court that it should consider the motion as one for summary judgment, as opposed to a motion to dismiss. In support of the motion, Defendant filed 117 pages of evidence, including the entire EEOC Report of Investigation. (Doc. 10). In response to the motion, Plaintiff filed a brief in opposition to the substantive arguments presented by Defendant, filed her own affidavit in support of her claims and cites to evidence filed by Defendant. (Docs. 17-1 & 17-2).

         Federal Rule of Civil Procedure 12(d) states: “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and no excluded by the court, the motion must be treated as one for summary judgment.” The Rule instructs the court that the “parties must be given a reasonable opportunity to present all the material that is pertinent to the motion” if the court treats it as one for summary judgment. Fed.R.Civ.P. 12(d). Here, the filings by the parties clearly indicate that they were aware that the court may consider the motion one for summary judgment and were given the opportunity to present all materials in support or in opposition to the motion. Accordingly, the court will treat the motion as one for summary judgment and consider the evidence before it.

         Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. See Id. at 324.

         The substantive law identifies which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). 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 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. at 249.

         II. STATEMENT OF FACTS

         Howard began working as a Food Service cashier at the Canteen at the Veterans Administration Medical Center in Tuskegee, Alabama, on February 4, 2015. (Doc. 17-2 (“Howard Aff.”) ¶ 4; Doc. 1 ¶ 7). Johnny Lavalais was the Canteen Chief and William Williams was a Canteen supervisor. Williams was Howard's immediate supervisor. (Id. ¶ 5).

         At the end of her shift on May 1, 2015, Williams instructed Howard to report to work at the Canteen in Montgomery, Alabama. (Id. ¶ 10). Howard called Lavalais for further instructions, and he told her to report to work at 8:00 a.m. on Monday, May 4, 2015. (Id. ¶¶11-12). On May 4th, Howard arrived on time, but Lavalais was not there. (Id. ¶¶13, 14). She stayed until 10:00 a.m. and then left. (Id. ¶ 14). After she left, Howard called the Canteen several times that day, but Lavalais was not there. (Id. ¶ 15). Howard finally got in touch with Lavalais at 2:30 p.m., but he told her that he was busy. (Id. ¶ 16).

         The following day, Howard reported to the Canteen in Montgomery and asked Lavalais “why he asked [Howard] to travel to Montgomery knowing he was not going to be there.” (Id. ¶ 17). “After [Howard] questioned him, [ ] Lavalais stated that [she] was terminated.” (Id. ¶ 18). When Howard asked him why she was being terminated Howard told her “because I can” and that he did not have a reason.^[4] (Id. ¶ 19). After she was terminated, Howard returned to the Canteen in Tuskegee to talk to Williams and get her termination papers. (Id. ¶ 20). Williams told her to come back at 4:00 p.m. (Id. ¶ 21). When she returned, she asked Williams for her personnel file, but he did not have it and did not know where it was located. (Id. ¶¶ 22-23).

         On August 27, 2015, Williams called Howard's union representative, Bobby Henderson, in an effort to contact Howard regarding future employment. (Id. ¶ 26). Henderson got in touch with Howard, and she called Williams who told her to report to the Tuskegee VA in the next 30 minutes to complete an employment application. (Id. ¶¶ 27-28). Howard completed the application and provided Williams a cancelled check for payroll purposes. (Id. ¶¶ 29-31).

         On September 4, 2015, Williams called Howard and told her she would begin work on September 8, 2015, at 8:00 a.m. (Id. ¶ 32). Approximately two hours later, however, Williams called Howard and told her that he could not rehire her because she “was terminated in the Veterans Canteen Services system.” (Id. ¶ 33). Williams stated that Lavalais made the decision to not rehire Howard because he “did not want to rehire an employee whom [sic] had attendance problems.” (Doc. 10 at 79).

         On December 10, 2015, Howard participated in an Alternative Dispute Resolution telephone conference with Abner Martinez, ^[5] Natasha Holloman, the EEO representative, and Henderson “in an attempt to resolve the issue.”^[6] (Howard Aff. ¶ 34). During the conference call, Martinez stated “several times” that Howard was not terminated in the VA system. (Id. ¶ 37). Holloman asked Martinez to contact Williams “to rehire [Howard] because [she] was not terminated in the system.” (Id. 42). She told Martinez that “he had the weekend to find [Howard] a job within the VCS [Veterans Canteen Services] department.”^[7] (Id. ¶ 43).

         The same people participated in another telephone conference on December 14, 2015. (Id. ¶ 45). Martinez reported that there were no available positions to hire Howard. (Id. ¶¶ 46, 48). Howard contends, however, that “several men have been hired since [her] termination.” (Id. ¶ 50). Martinez also stated that he would email Howard's contract to Henderson, but he never received a copy of her contract. (Id. ¶¶ 51-52).

         III. ...