Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 1 of 41 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TERESA SLAYTON, Plaintiff, CIVIL ACTION FILE NO. v. 1:18-ev-3869-CC-IKL DEKALB COUNTY, GA, Defendant. FINAL REPORT AND RECOMMENDATION This is an employment discrimination case arising under the Georgia Whistleblower Act, 0.C.G.A. § 45-1-4, and Title VII of the Civil Rights Act of 1964, 42 US.C. §§ 2000e et seq. Regarding both claims, Plaintiff Teresa Slayton alleges that Defendant DeKalb County, Georgia (“DeKalb County” or the “County”) terminated her employment in retaliation for engaging in protected activity.' [Doc. 3.] This matter is presently before the Court on the County’s | Previously, Plaintiff also asserted a 42 U.S.C. § 1981 retaliation claim, but she has now waived that claim. [Doc. 49 at I n.1,] For the first time at summary judgment, Plaintiff attempts to assert a failure-to-rehire claim. Because that claim is not included in the operative complaint it is not properly before the Court, and the Court does not consider it here. See Gilmour v. Gates, McDonald & Co., 382Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 2 of 41 motion for summary judgment. [Doc. 27.] Plaintiff has responded to the motion, [Doc. 49], and the County has filed a reply [Doc. 51]. The Court heard oral argument on the motion for summary judgment on December 6, 2019. For the following reasons, it is RECOMMENDED that the motion for summary judgment [Doc. 27] be DENIED. L SUMMARY JUDGMENT STANDARD A court should grant summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant bears the ial burden of showing that it is entitled to summary judgment. Id. (“The court shall grant summary judgment if 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.”); Celotex Corp. v. Catrett, 477 USS. 317, 323 (1986) (“Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.”); Clark v. Coats & Clark, Inc., 929 F.3d 1312, 1313 (LIth Cir. 2004); see also Cooley v. Great S. Wood Preserving, 138 F. App’x 149, 153-54 (1 th Cir. 2005). 2Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 3 of 41 F.2d 604, 608 (11th Cir. 1991) (holding that Celotex did not change the rule that the movant bore the initial burden, and stating, “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial”). ‘The movant may carry its burden by showing the court that there is “an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. “Only when that burden has been met does the burden shift to the non- moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark, 929 F.2d at 608. The nonmovant is then required “to go beyond the pleadings” and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 USS. at 324 (quotation omitted); see Fed. R. Civ. P. 56(c). “[M]ere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). Resolving all doubts in favor of the nonmoving party, the court must determine “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In evaluating a summary judgment motion, “[tJhe evidence of the non-movant is toCase 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 4 of 41 be believed, and all justifiable inferences are to be drawn in [the non-movant’s] favor. Id. at 255. IL FACTS In setting out the facts of this case, where possible, the Court relies on Defendant’s Statement of Material Facts (‘DSMF” [Doc. 27-2]), Plaintiff's Statement of Material Facts (“PSMF” [Doc. 49-1]), and the responses thereto (“R- DSMF” [Doc. 49-2], “R-PSME” [Doc. 51-2]).? The Court also has conducted its own review of the record, see Fed. R. Civ. P. 56(c)(3), and takes the facts in the light most favorable to Plaintiff as the non-moving party. Additionally, the Court implicitly resolves some objections that do not meet the substance of the parties” statements of facts and has disregarded some of the parties’ statements of facts, which are clearly immaterial. In the following summary of the facts, the Court begins with a general overview of Plaintiffs employment with the County. Then, the Court sets out in detail the instances of whistleblowing in which Plaintiff asserts she engaged. Next, the Court discusses complaints that Plaintiff made about the workplace 2 The Court also has reviewed and considered Defendant’s reply to Plaintiff's response to its statement of material facts. [Doc. 51-1.] 4Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 5 of 41 environment and the County’s employment practices. Finally, the Court summarizes the relevant facts about Plaintiff's work performance. A. Background Since 2011, DeKalb County has been subject to a federal consent decree requiring it to improve its sewer system. See N.D. Ga. Case No. 1:10-cv-4039- WSD, United States v. DeKalb Cty., Ga. The County’s Department of ‘Watershed ‘Management is working to fully comply with the consent decree by the end of 2020, and if the County does not complete the work on schedule, it could face penalties. (DSMF {f 3-4.) To that end, the County has a special team in its Purchasing and Contracting Department—the Capital Improvement Projects team (“Team CIP”)}— that is responsible for Department of Watershed Management procurements related to consent decree projects.> (Id. {¥ 1-3.) On August 15, 2016, DeKalb County hired Plaintiff as a Senior Procurement Agent on Team CIP. (DSMF ff 12-13.) Because of the temporary nature of the consent decree projects, Plaintiff's position was considered time-limited. (Id. | 12, 14.) As a Senior Procurement Agent, Plaintiff was responsible for complex 3 There were three other teams in the Purchasing and Contracting Department: Team A, Team B, and Team C. (DSMF 2.) 5Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 6 of 41 procurements from the beginning of the process through contract execution. (Id. 15.) Her specific job duties included: developing solicitations for projects by conducting pre-solicitation meetings with the Department of Watershed Management to discuss the scope of each project; submitting solicitations for public advertisement after the solicitations were approved by management; obtaining and providing answers to questions from potential vendors during pre- bid meetings; evaluating whether bids received are responsive, non-responsive, responsible, or non-responsible; drafting appropriate letters when bidders were deemed non-responsive or non-responsible; making recommendations related to these determinations; and preparing agenda items for County Board meetings. (Id. 16.) The terms “responsive” and “responsible” are terms of art in procurement. A responsive bidder submits all the documents required by the solicitation; a responsible bidder meets the minimum qualifications for the project in the solicitation. (Id. ¥ 18-19); see also O.C.G.A. § 36-91-2(13) to (14). Additionally, Senior Procurement Agents acted as team leaders, fulfilling some supervisory functions when a manager was out of the office. (DSMF ff 20-21.) From August 2016 to March 2017, Plaintiff’s supervisor was Warrick Sams, who served as the Team CIP Procurement Manager. (DSMF 22.) Sams reportedCase 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 7 of 41 to Talisa Clark, Chief Procurement Officer, who in tum reported to the Chief Operating Officer of the County. (Id. $f 23-24.) In early March 2017, DeKalb County terminated Sams, ostensibly for performance-related reasons, insubordination, and disrespect. (Dep. of Talisa Clark [Doc. 36, Doc. 36-1, Doc. 43] at 95-98; Pl. Ex. $2 [Doc. 49-35].) Clark asked Plaintiff and Michelle Butler, also a Team CIP Senior Procurement Agent, to serve as “co-leads” for Team CIP. (DSMF § 25.) They served in that capacity from March 8 to March 20, 2017, reporting on an interim basis to Cathryn Horner, the Procurement Manager for Purchasing and Contracting Department Team A. (Id. 26-27.) Plaintiff's salary did not increase for the brief period she served as a co-lead. (Jd 28.) On March 20, 2017, Plaintiff was stripped of her “co-lead” status, and Butler became the Interim Procurement Manager for Team CIP. (Id. {29; PSMF 68.) Clark testified that she chose Butler to be the Interim Manager for Team CIP because she was “the most qualified candidate at the time.” (Clark Dep. at 101.) Plaintiff began reporting to Butler, and Butler reported to Clark. (DSMF $f 31-32.) ‘Throughout her employment with DeKalb County, Plaintiff reported to her supervisors and others, including counsel in the County Law Department and an agent with the Federal Bureau of Investigation (“FBI”), events and circumstancesCase 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 8 of 41 that she believed violated state law, ethics requirements, and procurement best practices. Plaintiff also complained of incidents related to working conditions and allegedly discriminatory employment practices, and she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). The Court discusses those facts in more detail below. On Monday, August 9, 2017, DeKalb County terminated Plaintiff's employment. (DSMF 4 33.) The preceding Friday—August 4—Clark directed Christa Malone, Administrative Operations Manager for Purchasing and Contracting, to draft Plaintiff's termination letter. (See Clark Dep. at 213-14; Dep. of Christa Malone Ex. 44 [Doc. 48-1 at 17-18].) The letter gave no reason for Plaintiff's termination. (Malone Dep. Ex. 30 [Doc. 48-1 at 6].) On a Personnel Action Request Form and a Department of Labor separation notice, the County noted that Plaintiff a time-limited employee and that her services were no longer needed. (Malone Dep. Exs. 11, 29 [Doc. 48-1 at 1, 5].) In Plaintiff's termination meeting with Clark and Malone, Plaintiff asked why she was being terminated. (Dep. of Teresa Slayton [Doc. 37] at 154.) Clark told her that she was “time-limited” and her “services were no longer needed.” (/d.; Clark Dep. at 230.) When Plaintiff filed for unemployment benefits, the County gave the reason for her termination asCase 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 9 of 41 “end temporary employment.” (Clark Dep. at 232; Clark Dep. Ex. 31.) Later, though, DeKalb County told the EEOC that Plaintiff had been discharged for failing to get along with others. (PSMF { 106.) Now, in the instant case, the County asserts that Plaintiff was terminated because she “failed to work peacefully and productively with others and because of her poor performance.” (Decl. of Talisa Clark [Doc. 27-3] 17.) The Court discusses the evidence DeKalb County cites in support of that contention in more detail below. In September 2017, DeKalb County advertised a job posting for the Procurement Manager position (which was held by Butler on an interim basis). When the County first posted the job opening, Horner told Clark that Butler was not qualified for the position because her procurement certification was not listed as an acceptable credential in the job posting. (PI. Ex. 47 [Doc. 49-30].) Clark had the language on the posting changed so that Butler would qualify for the position with her certification. (See id.) Plaintiff applied for the Team CIP Procurement Manager job. (PSMF 113.) According to DeKalb County’s internal policies, Plaintiff was eligible for rehire despite her termination. (PSMF § 111.) Ifshe had been terminated for poor performance, she likely would have been ineligible for rehire for two years. (Dep. of Janet Essix [Docs. 38, 42] at 279-81.) DeKalbCase 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 10 of 41 County’s recruiter “certified” Plaintiff as a candidate and forwarded her resume along with several other resumes, including Butler’s, to Clark for review. (PSMF 114; PL. Ex. 46 [Doc. 49-29].) Clark chose not to interview Plaintiff. (PSMF {J 115.) Instead, Clark hired Butler for the position. (ld. | 119.) B. _ Plaintiff's Alleged Whistleblowing Activity Plaintiff reported suspected wrongdoing on numerous occasions during her employment at DeKalb County. As relevant to her whistleblower claim, on at least the following occasions, Plaintiff reported conduct she believed was in violation of or in noncompliance with the law, ethical standards, or best practices: © In September or October 2016, Plaintiff reported to her supervisor Sams that DeKalb County had wrongfully paid contractors for overbilled, out-of-scope, and unapproved work. Plaintiff also reported the issue to a CIP auditor and “investigators,” presumably law enforcement. (PI. Dep. at 260-61.) © In October or November 2016, Plaintiff told Sams that the Department of Watershed Management had a conflict of interest regarding its employee John Jones, because Jones was simultaneously working for the County and as a data manager for a Department of Watershed Management contractor. Also, in November 2016, Plaintiff told Sams that contractor Tetra Tech was 10Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 11 of 41 overbilling the County. (Pl. Dep. at 26-29, 267-68, 283-84; Resp. to Def.’s Interrogatories [Doc. 37-9 at 181-209] § 12.) * In January 2017, Plaintiff told Sams and Clark that someone in the Department of Watershed Management was providing inside information to Woolpert, a bidder on a major contract.‘ Plaintiff's concerns were conveyed to the Department of Watershed Management and the County Chief Operating Officer. (PI. Dep. at 37-43, 269-70; Clark Dep. at 151-53.) Later, on July 11, 2017, Plaintiff again reported that Woolpert had been tipped off, this time to Butler. (PI. Dep. at 189-91, 269; Pl. Ex. 22 [Doc. 49-40].) 4 Plaintiff believed Woolpert was being tipped off about the bidding process based on a meeting Plaintiff, Clark, and Sams held with Department of Watershed Management officials. During that meeting, they discussed requesting clarification from bidders on the Major Gravity Sewer project, because none of the bidders met one of the main requirements for the project. Before any requests for clarification went out to the bidders, however, Woolpert emailed Plaintiff, asking whether she had tried to contact Woolpert yet for clarification. (PI. Dep. at 37-43.) 5 In July, Plaintiff believed Woolpert had been tipped off again because Team CIP intended to “rebid” the Major Gravity Sewer project with new specifications that they expected to receive from the Department of Watershed Management. Before Team CIP had even received the new specifications from Watershed Management, Woolpert emailed Plaintiff with a question about those specifications. When Plaintiff complained, Butler acknowledged that someone in Watershed Management was leaking information. (PI. Dep. at 190-91; PI Ex. 22.) Butler testified that she did not know exactly which vendor Plaintiff was talking about; nevertheless, she asked the Director of Watershed Management to make sure his team knew to “limit conversation with vendors about upcoming projects.” ILCase 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 12 of 41 Based on an audio recorded conversation between Butler and Plaintiff, it appears that Butler asked Plaintiff to send her an email demonstrating that Woolpert had been tipped off, and Butler indicated she would to send the email to Clark as concrete evidence that there was a problem.® (PI. Ex. 22.) Plaintiff testified that she gave the email to Butler but did not receive any response about her complaint. (Pl. Dep. at 195.) © In January 2017 and again in March 2017, Plaintiff told Clark and Horner that DeKalb County had incorrectly deemed bidders Southeast Pipe Survey and MME non-responsible for the Major Gravity Sewer project. Plaintiff's assessment was that they were responsible pursuant to state law because they had performed work of a similar scope to the Major Gravity project in the past. (Pl. Dep. at 252-54; PI. Resp. to Def.’s Interrogatories J 12.) State law provides that an otherwise responsible bidder should not be disqualified from a job based on previous job experience if, among other things, the bid or (Dep. of Michelle Butler [Doc. 39] at 133-34.) But a recorded conversation between Plaintiff and Butler clearly indicates that Plaintiff told Butler she was concerned about Woolpert. (PI. Ex. 22.) © Butler stated, “Well, email that to me if I have something to . . . send her. Other than just saying . . . hey, look out for this.” Seemingly, the “her” to whom Butler referred was Talisa Clark, based on references in the transcript to “Lisa (phonetic)” and “Jaleesa (phonetic).” (Pl. Ex. 22.) 12Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 13 of 41 proposal is not more than 30 percent greater in scope or cost from the bidder's previous experience in jobs. See 0.C.G.A. § 36-91-23(1). © In February 2017, Plaintiff told Clark that DeKalb County wrongfully continued to contract with Warren St. James, who had failed to pay a subcontractor and therefore breached his contract.’ That same month, Plaintiff told Clark that the County had wrongfully removed subcontractor LCW from a contract because LCW had reported to County and state officials that the County was using unlicensed engineers on a project. The County replaced LCW with Reeves & Associates, which itself used unlicensed engineers on a County project. Plaintiff also reported the LCW issue to the FBI, an Environmental Protection Agency investigator, and the DeKalb County Ethics Officer. (PI. Dep. at 256-59; Pl. Resp. to Def.’s Interrogatories § 11-12.) ¢ Also in February 2017, Plaintiff reported to Clark and Sams that DeKalb County employees had prematurely destroyed records regarding capital 7 Here and elsewhere, the County objects to the Court’s consideration of Plaintiff's testimony that she reported her complaints to Clark because Clark denies some of Plaintiff's statements. (E.g., R-PSMF §f{ 4-5.) That disparity between their testimonies is a dispute of fact, and at summary judgment, the Court must resolve disputes in Plaintiff's favor to determine whether the disputes are material. 13Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 14 of 41 improvement projects for water and sewer services, in violation of the applicable record retention schedule. (PI. Dep. at 258-59, 282-83.) Local government records retention schedules carry the force of law under Georgia’s Records Act. See O.C.G.A. §§ 50-18-92, 50-18-99, 50-18-102. In February or March 2017, Plaintiff reported to Clark and Sams that the County failed to securely maintain its solicitation, bid, and contract files in a manner that would allow it to respond accurately to open records requests and to protect private information in exempt records. (Pl. Dep. at 258, 260.) © Beginning in late March 2017 and continuing through around the end of her employment with the County, Plaintiff reported to an FBI agent about alleged bid rigging, bid steering, and document destruction at Team CIP. Clark did not know Plaintiff was reporting alleged wrongdoing to the FBI until after Plaintiff's termination. (See DSMF {fj 92, 96, 98; Pl. Dep. 240- 41; Pl. Resp. to Def.’s Interrogatories § 12.) * In March or April 2017, Plaintiff told Clark, Butler (who was then newly promoted as the Team CIP supervisor), and Administrative Operations Manager Malone that DeKalb County failed to disclose all non-exemptCase 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 15 of 41 documents in response to open records requests about the Major Gravity Sewer project. (Pl. Dep. at 261-62.) © Also in March or April 2017, Plaintiff told Clark, both verbally and in writing, that DeKalb County had “colluded” and rigged bids by using overly restrictive specifications and administrative criteria, in violation of law. (PSMF 4 9; Pl. Dep. at 254-55.) © In April 2017, Plaintiff wrote an anonymous letter to the County’s human resources department, the Chief Operating Officer, and the Chief Executive Officer complaining of, among other things, “collusion, unethical behavior, improper business practices, conflicts of interest, and clear violations of the procurement code.” She complained that Clark had appointed an Interim Capital Improvement Manager who previously had been reprimanded “for an act related to falsification and dishonesty on a vital Procurement assignment.” Additionally, she complained that employees feared reprisal, including termination, for reporting unethical conduct. By May 2, 2017, Clark had surmised that Plaintiff authored the letter. (DSMF fj 99-102, R- ® The anonymous letter actually consists of two letters drafted in different fonts and styles, but Plaintiff testified that she wrote both. (Pl. Dep. at 200-01.) 15Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 16 of 41 DSMF ff 99-102; Pl. Dep. at 200-01; Clark Dep. at 180-84; Clark Dep. Ex. 28.) © In May 2017, Plaintiff informed Matthew Welch, an attorney in the DeKalb County Department of Law, by email that Butler had altered the scope of a solicitation that had been previously approved by Welch, in violation of law. Plaintiff copied Butler on the email. (PSMF {ff 20.) Butler forwarded the email to Clark, complaining about the form of Plaintiff's email to Welch, in that Plaintiff had simply forwarded Butler’s notes on the solicitation to Welch. (/d. 21; Butler Dep. at 156-60; Butler Dep. Ex. 33.) Butler’s notes, among other things, directed Plaintiff to ask the Department of Watershed Management for certain information, and Plaintiff had forwarded the notes in their entirety to Welch. (Butler Dep. at 158-59.) Clark directed Butler to address the situation as a “training opportunity” and to remind Plaintiff to communicate with the Department of Watershed Management to obtain the information she needed for her procurement assignments. (DSMF { 116.) © In July 2017, Plaintiff told Clark, Horner, Butler, and an attorney in the County’s Law Department that DeKalb County failed to publicly advertise a revised solicitation for a sewer project and instead awarded the contract to 16Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 17 of 41 Woolpert, eliminating competitive bidding on the project, in violation of law. (PSMF 22; Pl. Dep. at 255-56; PI. Resp. to Def. Interrogatories 12.) In August 2017, Plaintiff reported to the DeKalb County Ethies Officer that County employees were falsifying their time sheets, resulting in employees being paid for time they did not work. (DSMF § 135.) C. Plaintif’s Complaints About the Workplace Environment and the County's Employment Practices ‘As noted above, Plaintiff also made a range of complaints about the work environment at Team CIP and about DeKalb County’s employment practices. Some of those complaints constituted statutorily protected activity, but the County considers some of Plaintiff's other complaints to be trivial. In February 2017, Plaintiff told Sams that Clark had asked her to make a false statement about him, namely, that Sams was not being responsive to the Department of Watershed Management, when in fact he was actively communicating with them. (Pl. Dep. at 84-90, 270.) Several months later, in April 2017, Plaintiff complained to Administrative Operations Manager Malone that Butler had falsely accused Plaintiff of insubordination for failing to disclose her cell phone number to Butler, when in fact Butler had her cell phone number and had texted with her previously. (DSMF $95; Pl. Resp. to Def. Interrogatories J 14.) 17Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 18 of 41 Inthe anonymous letter Plaintiff authored in April 2017, she also complained about how Team CIP employees were treated, including that: Clark had held a “special meeting” to remind them that they could be fired at any time and that they could not be paid for sick leave and had singled out employees who took sick days; Clark and Butler often complained about Sams, who had been fired at that point; Butler had demanded employees’ personal cell phone numbers; Clark had directed employees to work from home; and Butler had ordered employees to report to work ona Saturday. (Clark Dep. Ex. 28.) Also in late April 2017, Plaintiff filed a lengthy internal complaint about: (1) Butler’s management style, which Plaintiff considered rude; (2) being made to miss her cancer treatment appointments because of last-minute work assignments; (3) Butler making her use annual leave instead of training hours for her procurement certification training; (4) Clark’s failure to address her complaints and other slights or perceived slights; (5) being forced to work “off the clock” on weekends and late in the evening; and (6) the lyrics of music played during work meetings. Additionally, Plaintiff made a passing reference to workplace theft, indicating that someone stole her lunch, a bag of coins from her office, and her dessert. (Essix Dep. Ex. 13 [Doc. 38-12 at 113-19].)Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 19 of 41 The evidence of record also indicates that Plaintiff was involved in two altercations with an employee on another Purchasing and Contracting team, Judy Moore. The first such incident occurred in May 2017. On May 16, Plaintiff complained to Butler that another employee, Moore, had “snatched” papers from her at the photocopy machine and that she felt that Moore had “put hands on” her. (Butler Dep. at 170.) Butler called a meeting with Plaintiff, Moore, and Horner (Moore’s supervisor), to try to determine exactly what happened but was unsuccessful, and no one was disciplined. (Jd. at 170-72.) Horner told Plaintiff ‘and Moore to consider the meeting a “verbal counseling” that they should behave professionally. (Dep. of Cathryn Horner [Doc. 40] at 51.) A second “copier incident” occurred on July 17, 2017. That incident appears to have been another minor altercation with Moore, but Plaintiff filed a police report and reported the matter to human resources and the EEOC. (Clark Dep. Ex. 39; Dep. of Jelmita Williams [Doe. 41] Ex. 42.) In late July, Plaintiff sent a letter to the County’s human resources department notifying the department of the altercation. (Clark Dep. Ex. 39.) She also reported that she had filed a police report about the incident and had reported it to the EEOC. Her letter included the name of an EEOC investigator and an EEOC charge number. The County CEO’s office 19Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 20 of 41 sent Clark a copy of that letter on August 2, 2017, and asked her to document any investigation of the incident she had performed.’ (/d.) Clark provided some responsive documents to human resources employee Jelmita Williams on August 4, 2017, (PL. Dep. Ex. 32 [Doc. 37-9 at 47-70]), and also assisted with the investigation by asking supervisors whether anyone had reported the incident and asking employees whether anyone had witnessed the incident, (Williams Dep. Ex. 42). Williams prepared a report dated August 14, 2017, about the incident. (Williams Dep. Ex. 42.) Meanwhile, on May 22, 2017, Plaintiff filed a charge of discrimination with the EEOC, complaining of discrimination and retaliation after she complained that sexually explicit music had been played during team meetings and after she complained about “suspected wrong doing involving contracts.” (PI. Dep. at 207- 08; Pl. Dep. Ex. 27 [Doc. 37-9 at 41].) She also asserted that she had been denied an accommodation for her disability. (Pl. Dep. Ex. 27.) She amended her charge ° Clark’s sworn declaration indicates that she decided to fire Plaintiff before she received that email notifying her about the second copier incident and Plaintiff's EEOC charge. (Clark Decl. $ 18.) Accordingly, the County does not rely on the second copier incident to support its legitimate, nondiscriminatory reason for terminating Plaintiff's employment, a position the County confirmed at oral argument. The Court only explains the facts of the second copier incident for context. 20Case 1:18-cv-03869-CC Document53 Filed 12/11/19 Page 21 of 41 on July 18, 2017, to include additional allegations that she had experienced a hostile work environment since filing her EEOC charge and that she had learned she was being paid less in wages than a coworker ofa different race. (PI. Dep. Ex. 28 [Doc. 37-9 at 42].) Plaintiff amended her charge a third time on September 13, 2017, this time adding allegations about her termination. (PI. Dep. Ex. 29 [Doc. 37-9 at 43].) D. Plaintiff's Work Performance Ather deposition, Clark testified that Plaintiff's work was “substandard,” in that she “was not evaluating bids{] according to processes and procedures, not utilizing standard forms, not referencing her procedures manual and using that as a tool as she did her work, [] having to resubmit the same work over and over again{, a]nd, ultimately others, mostly the manager” or Clark had to complete tasks for her. (Clark Dep. at 214.) Clark also testified that two of Plaintiff's projects were running behind, the Fairoaks project and the Major Gravity Sewer project. (Id. at 211-12.) Clark testified that these performance-related reasons and the fact that Plaintiff's services were no longer needed were the only reasons she fired Plaintiff. (Id. at 214-15, 218, 233.) The County points to several events that occurred during Plaintiff's time on Team CIP as indicative of her allegedly poor work performance. First, in January 21Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 22 of 41 or February 2017, Clark met with Plaintiff to discuss the Major Gravity Sewer project. (DSMF { 39.) During the meeting, Clark learned that Plaintiff had not prepared an “evaluation report” (Clark Dep. at 108), and Plaintiff had also left her notes on the project in her car and had to retrieve them (Decl. of Teresa Slayton’ [Doc. 49-46] § 19).!9 Clark instructed Plaintiff to keep her work in the office. (Clark Dep. at 108.) Second, in February 2017, Clark met with Plaintiff after she sent a request to vendors by email “without authorization.” (DSMF { 43.) Clark testified that she had to counsel Plaintiff because Plaintiff emailed a request to vendors on a project without authorization. (Clark Dep. at 112.) When Clark found out, she told Plaintiff to recall the emails, but they could not be recalled. Clark then had to direct Plaintiff to email the vendors to disregard the request. (Jd.) Plaintiff remembered that event differently. On February 28, 2017, Clark wrote in an email that a request 1® Clark also testified that she instructed Plaintiff to complete her work on. the “standard forms,” namely an evaluation form. (Clark Dep. at 108-09.) Plaintiff asserts that Clark did not instruct her to do that, and Clark would not have done so because the project was not yet at a stage where an evaluation report was appropriate. (PI. Decl. § 19.) Additionally, Clark testified that Plaintiff left her notes at home (Clark Dep. at 108), but Plaintiff stated that they were in her car, and the Court takes the facts in the light most favorable to Plaintiff as the non-moving. party. 22Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 23 of 41 to vendors (which had been approved by the Department of Watershed Management) needed to be sent that day and asked Sams and Plaintiff, “[H]ave we sent it to the vendors[?]” (PI. Decl. § 20; Pl. Ex. 54 [Doc. 49-37].) Plaintiff responded that she would send the request that day. (PI. Ex. 54.) Several days later, Plaintiff and Sams informed Clark that they believed the language the Department of Watershed Management had approved was actually a material change for the bid, and Clark instructed Plaintiff to rescind the requests. (PI. Decl. 21.) Third, after Plaintiff was appointed co-lead in March 2017, Clark ostensibly “determined that Plaintiff's work product was substandard and incorrect.” (DSMF 48.) Clark testified that, a few weeks after Plaintiff was appointed co-lead in March 2017, Clark told Plaintiff she would not be a co-lead anymore because she was unable to maintain her own workload with her leadership responsibilities, and her work was “substandard and incorrect.” (Clark Dep. at 103-04.) The County does not point to any specific event or example of poor work quality that occurred between the time Plaintiff was appointed to the co-lead position and the time she was removed from the position, however. Fourth, in March or April 2017, Clark and Horner met with Plaintiff to discuss her work on the Fairoaks and Major Gravity Sewer projects and to “provide 23Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 24 of 41 corrective feedback and guidance.” (DSMF 51.) According to Clark, Plaintiff had not made sufficient progress on those projects. (Jd. 52.) Plaintiff indicates that the projects were already delayed when they were assigned to her at the rebidding stage, and both projects had been put on hold, Fairoaks due to litigation, and Major Gravity Sewer due to a bid protest. (Pl. Decl. 419-12.) It does appear, though, that Plaintiff had some ongoing responsibilities with respect to those projects and that Clark believed Plaintiff had failed to evaluate a bid on the Fairoaks project correctly. (Clark Dep. at 114-15.) In April 2017, Clark had an additional meeting with Plaintiff and Butler to discuss Plaintiff's progress on those same projects and to direct her to resubmit an assignment.'' (/d. at 119-20.) Fifth, on one occasion during Plaintifi’s employment with the County, Clark met with Plaintiff to discuss her attendance. (DSMF § 56.) 1! Butler did not recall the meeting (R-DSMF { 55), but Plaintiff does not deny that it occurred. The testimony Plaintiff cites for the proposition that the meeting was not about Plaintiff's performance is not on point. Moreover, Butler, who was not the decisionmaker, also believed Plaintiff's work could use improvement. On one occasion Butler had to obtain information about a project after Plaintiff failed to do so, and on another occasion, Plaintiff made a miscalculation that affected a vendor recommendation. (DSMF qf 58-59.) The County does not cite evidence indicating that Clark knew about or relied on those specific issues, however, when she made the decision to terminate Plaintiff. 24Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 25 of 41 I. DISCUSSION On March 15, 2018, Plaintiff filed a Georgia Whistleblower Act action in the Superior Court of DeKalb County. [Doe. 1-1 at 3-10.] She later amended her complaint to add a Title VII retaliation claim, and the action was removed to this Court. [Docs. 1, 3.] Below, the Court first addresses the whistleblower claim and then turns to the Title VII claim. A. Georgia Whistleblower Act Claim The Georgia Whistleblower Act, O.C.G.A. § 45-1-4, prohibits public employers from retaliating against their employees for disclosing a violation of, or noncompliance with, a law, rule, or regulation to either as supervisor or a government agency, unless the disclosure was made with knowledge that the disclosure was false or with reckless disregard for its truth or falsity. O.C.G.A. § 45-1-4(d)(2). A law, rule, or regulation is defined as a federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance. Id. § 45-1-4(a)(2). In evaluating claims under the Georgia Whistleblower Act, courts apply the McDonnell Douglas" burden-shifting framework used in other retaliation cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 25Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 26 of 41 Lamar v, Clayton Cty. Sch. Dist., 605 F. App’x 804, 806 (11th Cir. 2015); Joyner ¥. City of Atlanta, 1:16-ev-1780-TWT-LTW, 2018 WL 1442931, at *10 (N.D. Ga. Feb. 23, 2018), report and recommendation adopted, 2018 WL 1427941 (N.D. Ga. Mar, 22, 2018); Forrester v. Ga. Dep’t of Human Servs., 308 Ga. App. 716, 721- 22 (2011) (physical precedent only). The plaintiff establishes a prima facie case of unlawful retaliation by showing that her employer is a “public employer” for purposes of the statute; the employee disclosed a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency; the employee was then discharged, suspended, demoted, or suffered some other adverse employment decision by the public employer; and there is some causal connection between the protected activity and the adverse action. Murray Obertein ¥. Ga. Gov't Transparency & Campaign Fin, Comm'n, 344 Ga. App. 677, 680-81 (2018); Albers v. Ga. Bd. of Regents of Univ. Sys. Of Ga., 300 Ga. App. 58, 523 (2014); Forrester, 308 Ga. App. at 722. Under the McDonnell Douglas framework used in retaliation claims, if the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. Wright v ‘Southland Corp., 187 F.3d 1287, 1291 (11th Cir. 1999). If the employer is able to 26Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 27 of 41 articulate such a reason or reasons, then the burden shifts back to the plaintiff to show that the employer’s stated reason is pretext for unlawful retaliation. McCann y, Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). The plaintiff “must demonstrate 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.” Id. at 1375-76 (quotation omitted). 1. Prima facie case Here, beginning with the prima facie case analysis, it is undisputed that DeKalb County is a public employer for purposes of the whistleblower statute. [Doc. 27-1 at 6 n.1.] Tuming to the question of whether Plaintiff made a protected disclosure, DeKalb County argues that: Plaintiff's testimony about her whistleblowing activity is “self-serving”; that Plaintiff only cited statutes in support of her whistleblowing claims on two occasions and mostly complained about violations of DeKalb County’s internal rules and procedures, not violations of law: and that she failed to show that she had a reasonable belief that any wrongdoing had occurred or to give her employer enough information to investigate the alleged wrongdoing, [Doc. 27-1 at 7-10.] ‘The County's characterization of Plaintiff's 27Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 28 of 41 sworn statements as self-serving is of no moment. See United States v. Davis, 809 F.2d 1509, 1512-13 (11th Cir. 1987) (a party’s self-serving testimony was sufficient to create a jury question at trial where there was no overwhelming direct evidence contradicting his testimony, and his testimony was not so fantastic, internally inconsistent, or speculative that it had no probative value). Plaintiff has presented her own testimony, the testimony of other County employees, and other evidence in support of her claims. The Court may properly consider that evidence at summary judgment. Moreover, the Court is not persuaded by Defendant’s argument that Plaintiff mostly complained about internal policies and did not cite specific statutes in reporting suspected wrongdoing. The record is replete with instances in which Plaintiff allegedly complained about violations of state law. She complained about violations of the competitive bidding process and determinations about bidders’ eligibility to compete for contracts—matters governed by state statue. See, @.8.. O.C.G.A. §§ 36-91-2, 36-91-20, 36-91-21, 36-91-23. Additionally, she complained about document destruction in violation of the Georgia Records Act and incomplete responses to public records requests, in violation of the Georgia Open Records Act. See id. §§ 50-18-92, 50-18-99, 50-18-102, 50-18-71, 50-18-72. 28Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 29 of 41 The mere fact that Plaintiff did not cite these statutes in complaining about violations of law does not mean that she did not engage in whistleblowing activity. It is also significant that Plaintiff was employed by a government department charged with awarding public works contracts through a bidding process governed by state statute. Plaintiff's complaints about irregularities in that process were therefore closely linked to state law. Cf Coward v. MCG Health, Inc., 342 Ga. App. 316, 320-21 (2017) (physical precedent only) (plaintiff's safety concern about hospital understaffing, in violation of internal hospital procedures, ‘was not protected activity under the Whistleblowing Act). DeKalb County also argues that Plaintiff has not shown that she engaged in protected activity because has not demonstrated that she reasonably believed misconduct had occurred, and her complaints were not sufficiently specific to allow her supervisors to investigate them. [Doc. 27-1 at 10.] The Court disagrees. To be sure, several of Plaintifi"s complaints were vague, like her vague reference in At oral argument, Defendant clarified its argument that that Plaintiff did not engage in protected activity because she did not “specify any law, rule, or regulation that was violated or which Plaintiff reasonably believed was violated.” [Doc. 27-1 at 8.} The County's position is that Plaintiff was not required to cite statutes with the ease of lawyer, but she needed to make complaints that were specific enough to allow management to investigate. The Court addresses that argument, which Defendant also raised in its brief, below. 2%Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 30 of 41 the anonymous letter to “collusion,” but many of her complaints were particularized and related to specific incidents and projects. For example, the record indicates that Plaintiff reasonably believed that the Department of Watershed Management was giving inside information to Woolpert in both January and July 2017, as Woolpert had access to information that Purchasing and Contracting had not yet made public. In July 2017, Plaintiff reported to Butler that Woolpert had inside knowledge of project specifications and explained the basis for her belief, and Butler acknowledged that the Department of Watershed Management was leaking information. Those circumstances suggest that Plaintiff both reasonably believed she was reporting wrongdoing and provided her supervisor with sufficient information to investigate the complaint. Similarly, in the Albers case, the trial court characterized the plaintiff's complaints as “potential” and “speculative,” but the Georgia Court of Appeals found there was a jury question as to whether the plaintiff engaged in protected whistleblowing. 330 Ga. App. at 59-62. Albers was the chief of police for a university police department that had arrested a student for theft. Albers objected to the university administration’s attempts to have him speak with the district attorney about dropping charges against the student and told his supervisor he 30Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 31 of 41 believed a separate university investigation into the theft was improper and illegal. He also consulted with an assistant district attorney about his concerns. Id. The court concluded that Albers “opposed specific, ongoing activity by [the university] administration that he reasonably believed obstructed justice.” Id. at 62. Like in Albers, on numerous occasions, Plaintiff opposed specific activity that she reasonably constituted violations of law, not merely violations of internal procedures. See id. In any event, the Whistleblower Act provides that a whistleblower is protected from retaliation unless she knowingly makes a false statement about misconduct or makes a statement in reckless disregard for its truth or falsity. O.C.G.A. § 45-1-4(d)(2). There is no evidence of such knowing or reckless falsehood here. DeKalb County disputes whether Plaintiff actually made some of these complaints to her supervisors as well as the substance of her complaints, but those are disputes of fact that must be taken in Plaintiff's favor at summary judgment, In sum, not all of Plaintiff's complaints constituted whistleblowing activity, but taking the facts in the light most favorable to Plaintiff, she reported suspected violations of the law on many occasions and therefore engaged in protected activity.Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 32 of 41 ‘The third element of her prima facie case, that Plaintiff suffered an adverse action, is also not genuinely in dispute, because Plaintiff was terminated.'* Plaintiff has also made a sufficient showing on the fourth element, namely, that there is a causal connection between Plaintiff's protected activity and the adverse action she suffered. For starters, there is a close temporal proximity between Plaintiff's whistleblowing activity, which continued through August 2017, and her termination. The County argues that Clark was unaware of some of Plaintiff's whistleblowing activity, but the evidence of record, taken in the light most favorable to Plaintiff, indicates that Clark was aware of numerous incidents of whistleblowing, through at least July 2017, and she fired Plaintiff shortly thereafter in early August 2017. For example, in July, Plaintiff complained to Clark and other supervisors that the County had failed to publicly advertise a project and instead had simply awarded the project to Woolpert without a competitive bid. (PI. Dep. at 255-56; PI. Resp. to Def. Interrogatories § 12.) On July 11, Plaintiff complained to Butler that Woolpert was being tipped off, a complaint that Butler At oral argument, Plaintiff made clear that she believes she suffered two adverse actions: termination and failure-to-rehire. As noted above, Plaintiff's failure-to-rehire claim is not in the operative complaint and is not properly before the Court. 32Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 33 of 41 indicated she would forward to Clark. (PI. Dep. at 189-91, 269; Pl. Ex. 22.) Butler’s statement, in which she appears to indicate that she would forward the complaint to Clark, gives rise to a reasonable inference ‘that Clark in fact received Plaintiff's complaint. It is a long-standing principle that a factfinder may infer from a declarant’s out-of-court statement that she intends to perform an act in the future that the declarant carried out her intention. See United States v. Best, 219 F.3d 192, 198 (2d Cir, 2000) (citing Mut. Life Ins. v. Hillmon, 145 U.S. 285 (1892)); Lenza v. Wyrick, 665 F.2d 804, 810 (8th Cir. 1981) (same). Moreover, one of the County's stated reasons for terminating Plaintiff's employment was that she complained about trivial matters, a statement that tends to show a connection between Plaintiff's numerous complaints (protected or otherwise) and her termination. 2. Legitimate, nondiscriminatory reasons Because Plaintiff can establish a prima facie case of retaliation, the burden shifts to the County to offer a legitimate, nondiscriminatory reason or reasons for her termination. As stated above, the County has offered such a reason, namely, Clark’s sworn statement that Plaintiff was discharged for failing to get along with 33Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 34 of 41 others at work and for poor performance. The burden therefore shifts back to Plaintiff to show that that reason is pretext for discrimination. 3. Pretext [As to pretext, Plaintiff has pointed to evidence of record that puts both of the County’s stated reasons in dispute. First, the County has offered “shifting” reasons for terminating Plaintiff, which could suggest pretext. The record indicates that the County did not cite either of its legitimate, nondiscriminatory reasons in Plaintiff's termination letter, in her separation notice and other similar paperwork, or at her termination meeting. Of course, as a courtesy to the employee, an employer might not indicate that an employee was terminated for cause in her separation notice, and—without more—the County’s failure to state the reasons for Plaintiff's termination in her separation paperwork would not be enough to show pretext here. But the County's reasons changed several times after that. The County told the EEOC that its true reason for terminating Plaintiff was that she failed to get to get along with her coworkers. But then, in this case, Clark testified that Plaintiff was fired only because of her work performance, making no mention of Plaintif’s difficulties working peacefully with others. Clark later submitted an affidavit stating that Plaintiff was terminated both for poor work performance and for failing 34Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 35 of 41 to get along her with coworkers. These shifting reasons could suggest to a jury that the County’s legitimate reasons are mere pretext for discrimination. Plaintiff also argues that the facts of record put the County’s reasons for her termination in dispute. As to the County’s assertion that Clark fired Plaintiff for failing to get along with coworkers in a peaceful manner, Plaintiff points to Clark's testimony that the ony reason she terminated Plaintiff was for performance-related reasons. [Doc. 49 at 10 (citing Clark Dep. at 218).] ‘That testimony casts doubt on Clark’s later statement that she also fired Plaintiff for failing to get along with others. Even though Clark’s deposition testimony that she only fired Plaintiff for performance reasons may be an honest mistake, a jury could conclude that Clark did not actually consider Plaintiff's ability to get along with coworkers in deciding to terminate her employment. ‘Also, the County cites two incidents in support of its assertion that Plaintiff was fired for failing to get along with others. First, the County points to a single instance in which Plaintiff reported a supposedly trivial complaint about workplace theft and argues that Plaintiff complained too much about trivial things. [Doc. 27- 1 at 21.] But the record indicates that Plaintiff made numerous protected whistleblowing complaints, and in light of that evidence, a jury could conclude that 35Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 36 of 41 the County’s characterization of Plaintiff as a mere complainer is thinly veiled pretext for discrimination. DeKalb County also points to Plaintiff's May 2017 altercation with Moore at the photocopier, but that incident occurred three months before Plaintiff's termination, and Butler and Horner were not able to determine who was at a fault in the incident and merely counseled the participants to be professional. As to Plaintiff's allegedly poor work performance, there is evidence of record that, if believed, would give a jury reason to disbelieve that Clark terminated Plaintiff for poor performance. Beginning with the first performance-related instance Clark cited at her deposition—in which Clark felt that Plaintiff was not prepared for a meeting because she did not have an evaluation report or her notes on hand—Plaintiff was merely cautioned to keep her work in the workplace. At most, this remark about keeping her work in the workplace was an informal counseling.'’ And the seriousness of that counseling is somewhat belied by the 15 Plaintiff testified that she was never counseled about performance at work, either with Clark or Horner, and that her meetings with supervisors were about day- to-day operations. (Pl. Dep. at 160.) But meetings about the status of Plaintiff's work and projects may well have included informal counseling and guidance about her work, even if Plaintiff would not characterize those meetings as discussions of her work performance. 36Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 37 of 41 suggestion in the record that, later on, Clark encouraged or ordered employees to work from home. As to the second incident—when Plaintiff allegedly sent emails requesting information from vendors without authorization—Clark’s version of that event is put in dispute by the documents showing that Clark arguably told Plaintiff and Sams to send out the emails and by Plaintiffs statement that Clark did not want the emails recalled for several days, when Clark learned that the requests were improper. Further, both those incidents occurred before Clark decided to make Plaintiff a co-lead, from which a jury could infer that her work performance was not only acceptable, it was good enough for Clark to give her supervisory authority. ‘As to the remaining deficiencies in Plaintiff's performance, the County points to no specific deficiency in Plaintiff's work during the time that she was a co-lead which resulted in Clark taking away Plaintiff's supervisory authority. Thereafter, Clark had two meetings with Plaintiff in March and April 2017 about the pace or quality of her work, but there is no indication that there was any issue with Plaintiff's work after April. The other issue Clark cited was that, at some point, she met with Plaintiff about her attendance, but the record does not indicate when that meeting occurred. Thus, at most, Plaintiff was informally counseled 37Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 38 of 41 about her attendance once at an unspecified time and about the pace of her projects twice in the spring of 2017—months before she was supposedly terminated for poor performance. Plaintiff also points out that there is no evidence she was disciplined for poor performance on any occasion, even though Clark had employed progressive discipline with other employees on Plaintiff's team. (See Clark Dep. at 259-61 (discussing letter of counseling from Clark to Sams for insubordination); Pl. Dep. 45 [Doc. 49-28] (letter of counseling from Clark to a CIP procurement agent for poor performance).) A jury could conclude, based on those sparse performance issues, that Clark's statement that she considered Plaintiff's performance in deciding to terminate her was untrue. ‘Another inconsistency in Clark’s testimony could lead a jury to disbelieve her reason for terminating Plaintiff. Initially, Clark denied knowing about Plaintiff's EEOC charge until September 2017 (Clark Dep. at 61-62), testimony that a jury could find was refuted by Clark’s receipt of a letter indicating that Plaintiff had a pending EEOC charge just days before Clark terminated Plaintiff. Clark later acknowledged that she received and looked at that letter. (Id. at 275- 78.) Clark’s initial testimony about her knowledge of Plaintiff's EEOC charge may well have been due to lack of memory, but a jury might also conclude that that 38Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 39 of 41 statement that she did not know about Plaintiff's EEOC charge was untrue and was pretext for discrimination. In sum, a genuine issue of material fact precludes summary judgment on Plaintiff's whistleblower claim. B. Title VII Retaliation Claim Title VIL prohibits retaliation against an employee “because [s]he has opposed any practice made an unlawful employment practice by [Title VII], or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e- 3(a). When an employee relies on circumstantial evidence to show retaliation under Title VII, she first establishes a prima facie case of retaliation by showing that (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment action, and (3) there is some causal connection between the two events. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Under the MeDonnell Douglas framework, once the plaintiff establishes her prima facie case, the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason or reasons for the adverse action. The burden then shifts back to the plaintiff to demonstrate that the reason or reasons were pretext for unlawful discrimination. odCase 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 40 of 41 Here, the County does not dispute that Plaintiff engaged in protected activity by filing a charge of discrimination with the EEOC and by amending her charge. [Doc. 27-1 at 17 n.7.] Further, as noted above, there is no dispute that Plaintiff suffered an adverse action when she was terminated. As to the causal connection between Plaintiff's protected activity and an adverse action, on August 2, 2017, Clark received and read a copy of Plaintiff's letter notifying the County that a workplace incident had occurred. That letter also indicated that Plaintiff had reported the matter to the EEOC and referred to an EEOC charge number. Taking the facts in the light most favorable to Plaintiff, Clark learned of ‘the EEOC charge just two days before she asked a subordinate to draft Plaintiff's termination letter. Clark’s assertion in her affidavit that she had already made the decision to terminate Plaintiff when she received the letter (Clark Decl. {| 18) is a conclusory statement, devoid of any indication of when she actually made the decision to fire Plaintiff, and therefore does not sever the causal connection between Plaintiff's protected activity and Clark’s decision to fire her. For the reasons discussed above with respect to the whistleblower claim, Plaintiff has pointed to evidence suggesting that the County’s reasons for terminating her were pretext for retaliation. For those same reasons, there is a 40Case 1:18-cv-03869-CC Document 53 Filed 12/11/19 Page 41 of 41 genuine dispute of material fact that precludes summary judgment on Plaintiff's Title VII retaliation claim. IV. CONCLUSION For the foregoing reasons, it is RECOMMENDED that the motion for summary judgment be DENIED. [Doc. 27.] ITIS SO RECOMMENDED this 11th day of December, 2019. Yk bAa K.LARKINS It nited States Magistrate Judge 41