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Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 1 of 12






Commissioner BRIAN OWENS,


CASE NO.: 1:11-CV-142 (WLS)



Before the Court is Defendants Brian Owens, Georgia Department of Corrections,

Calhoun State Prison, and Clay Tatum’s Motion for Summary Judgment. (Doc. 30.) For

the reasons that follow, Defendants’ motion is GRANTED.


This Title VII case arises out of a confrontation between Plaintiff Polamesha Wil-

liams (“Williams”) and Donovan Toole (“Toole”), both former correctional officers at

Calhoun State Prison. After Williams slapped Toole during a disagreement, the prison

warden, Clay Tatum, fired her for purportedly violating a workplace violence policy.

Williams, a black woman, then filed suit alleging her termination resulted from sex and

race discrimination. She claims her firing was pretextual because Toole, a white man

with an alleged history of instigating violence, was not also fired.

After the close of discovery, Defendants moved for summary judgment. They

raise a number of arguments. First, they claim that Defendants Tatum, Owens, and Cal-

houn State Prison are improper parties because Williams seeks to hold the employer,


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 2 of 12

the Department of Corrections, liable. Second, Defendants argue Williams has not es-

tablished a prima facie case because she has not identified a similarly situated person

outside her protected class who did not suffer an adverse employment action. Finally,

they maintain Tatum and his supervisors fired Williams for a legitimate, nondiscrimina-

tory reason—namely, striking another employee.

Williams failed to respond to Defendants’ motion for about four months. With

the Court’s leave, Williams filed an out-of-time response opposing summary judgment.

In the response, Williams argues Toole is a similarly situated employee. Additionally,

she claims that the termination was pretextual because Toole had a history of provoking

violent reactions, and he violated the tardiness policy numerous times before being



The following facts are derived from the Complaint (Doc. 1); the Answer (Doc.

19); Defendants’ Statement of Undisputed Facts (Doc. 30-2)), which was submitted ac-

cording to Local Rule 56;1 and the record in this case. The facts are straightforward and

essentially undisputed.

Williams, a black woman, began working as a correctional officer at Calhoun

State Prison on May 5, 2005. (Doc. 32-2 ¶ 1; Doc. 37 ¶ 1.) Correctional officers with the

Georgia Department of Corrections (“DOC”) are expected to know and abide by DOC

policies, procedures, rules and regulations, including the DOC Standard Operating Pro-

1 Williams, who is represented by counsel, filed a deficient response to Defendants’ Statement of Material
Facts. First, Williams claims, in nearly half of her responses, she “is without further information sufficient
to admit or deny” certain facts. In other responsive paragraphs, Williams denies certain facts without cita-
tion to the record. This Court’s local rules provide: “All material facts contained in the moving party’s
statement which are not specifically controverted by specific citation to the record shall be deemed to have
been admitted, unless otherwise appropriate. The response that a party has insufficient knowledge to ad-
mit or deny is not an acceptable response unless the party has complied with the provisions of Rule 56[d]
of the Federal Rules of Civil Procedure.” These deficient responses are, therefore, deemed admitted.


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 3 of 12

cedures (“SOP”). (Doc. 30-2 ¶ 3; Doc. 37 ¶ 3.) The SOP provides that “employees must

conduct themselves in a manner which reflects credit upon themselves, their co-

workers, and the Department.” (Doc. 5, Ex. B.) According to the SOP, “[e]mployees shall

not engage in illegal activity or other activity which would violate public safety or public

trust,” such as “any assault or battery.”(Id.) Moreover, workplace violence “will result in

appropriate disciplinary action, up to and including dismissal, removal from the work-

place and/or criminal charges.” (Doc. 5, Ex. E.)

In 2009, Clay Tatum, a white man, was warden at Calhoun State Prison. (Doc.

30-2 ¶ 2; Doc. 37 ¶ 2.) That year, Williams was disciplined twice for conflicts with

coworkers. On July 20, 2009, Williams received an Official Letter of Reprimand arising

from a confrontation with another correctional officer, Dianundra Parks.2 Then on De-

cember 11, 2009, Williams slapped Toole during a disagreement about work responsibil-

ities in the prison control room. Toole did not strike Williams but walked to the tele-

phone and reported the incident.

After Williams and Toole’s confrontation, Tatum reviewed reports from the inci-

dent. (Doc. 30-5 ¶ 14.) Shift supervisors Lt. Jessie Tarver and Lt. Russell Hollman, both

black men, reported that Toole told them that Williams struck him; she told them, “it

was done as an impulse” because “[Toole] stepped into her personal space.” (Doc. 30-5,

Ex. D.) Tatum also reviewed William’s statement. (Doc. 30-5 ¶ 14.) In her statement,

2 Williams claims this information is hearsay and should be excluded. This assertion is wholly without
merit. Ordinarily, inadmissible hearsay cannot be considered on a motion for summary judgment. Jones
v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316,
1322 (11th Cir. 1999)). But a district court may consider hearsay statements on a motion for summary
judgment if the statement could be reduced to admissible evidence at trial. Id. Here, the Court may con-
sider this evidence for several reasons. First, the statements in the letter are not offered for the truth of the
matter asserted. Rather, Defendants proffered the letter to show its effect on Tatum’s state of mind when
he fired Williams. Second, even if the letter was hearsay, Tatum could testify himself at trial to the fact
that he disciplined Williams on this occasion. Finally, the letter is a record of a regularly conducted activi-
ty under Federal Rule of Evidence 803(6).


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 4 of 12

Williams also said she struck Toole “on an impulse” because he “stepped into [her] per-

sonal space.” (Id.)

Tatum viewed this incident as workplace violence. He considered Williams’ prior

confrontation with Parks and, taken together, thought these incidences demonstrated

an inability to maintain composure. Tatum concluded that Williams’ conduct violated

several provisions of the SOP. He also thought the conduct created a safety concern be-

cause it indicated to inmates a lack of control over the area.

Before deciding to fire Williams, Tatum consulted several other sources. First, he

reviewed the Adverse Sanction Guidelines provided by the DOC’s Legal Office. These

guidelines provided that workplace violence accompanied by aggravating circumstances,

such as physical contact and prior adverse action, warranted dismissal. Tatum also con-

tacted the DOC’s Legal Office, which advised him that dismissal was appropriate. Tatum

then decided to fire Williams.

Toole did not receive any discipline. Tatum testified Toole was not disciplined be-

cause he did not strike Williams or violate the SOP rules. Moreover, to Tatum’s

knowledge, Toole never engaged in violence during his employment at the prison.

On December 14, 2009, Tatum notified Williams he intended to fire her for the

incident, effective December 15, 2009. The letter informed her she had a right to request

review of the decision. Williams appealed the dismissal to Robert Cooley, a black man,

who is the Commissioner’s Designee for Adverse Action. Tatum provided Cooley with

the reasons for his decision. Williams submitted statements from herself, Tarver, and

Hollman. On December 22, 2009, Williams and Tatum received notice from Cooley up-

holding the dismissal.


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 5 of 12

Williams also wrote the Commissioner of the DOC, Brian Owens, a white man,

alleging her termination was racially motivated. Owens initiated an investigation into

the decision. Nola Bricker, a white woman, interviewed Williams and other witnesses,

reviewed personnel files, and studied the demographic makeup of the prison. She con-

cluded that Williams’ claim of racial discrimination was unsubstantiated.


I. Summary Judgment Standards

Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the plead-

ings, 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 a judgment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). An issue is “genuine” if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party. Hoffman v. Allied Corp., 912 F.2d 1379,

1383 (11th Cir. 1990). A fact is “material” if it is a legal element of the claim under the

applicable substantive law and it might affect the outcome of the nonmoving party’s

case. Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liber-

ty Lobby, 477 U.S. 242, 248 (1986)). A judgment is appropriate “as a matter of law”

when the nonmoving party has failed to meet its burden of persuading the Court on an

essential element of the claim. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,

804 (1999); Celotex Corp., 477 U.S. at 323.

The movant bears the initial burden of showing that there is no genuine issue of ma-

terial fact. Celotex Corp., 477 U.S. at 323. The movant can meet this burden by present-

ing evidence showing there is no dispute of material fact or by showing, or by pointing


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 6 of 12

out to, the district court that the nonmoving party has failed to present evidence in sup-

port of some element of its case on which it bears the ultimate burden of proof. Id. at

322–24. Once the movant has met its burden, the nonmoving party is required “to go

beyond the pleadings” and identify “specific facts showing that there is a genuine issue

for trial.” Id. at 324. To avoid summary judgment, the nonmoving party must do more

than summarily deny the allegations or “show that there is some metaphysical doubt as

to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). Rather, the nonmoving party must provide “enough of a showing that the

jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th

Cir. 1990) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 251 (1986)).

On a motion for summary judgment, the Court must view all the evidence and all

factual inferences drawn therefrom in the light most favorable to the nonmoving party

and determine whether that evidence could reasonably sustain a jury verdict. Celotex

Corp., 477 U.S. at 322-23; Allen, 121 F.3d at 646. However, the Court must grant sum-

mary judgment if there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).

II. Race and Sex Discrimination

Title VII makes it unlawful for employers to discriminate “with respect to [an

employee’s] compensation, terms, or privileges of employment” on the basis of “race,

color religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1)(a). A plaintiff may

prove she received disparate treatment on account of her race or sex through direct or

circumstantial evidence. EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir.

2000). “Direct evidence is evidence that establishes the existence of discriminatory in-

tent behind the employment decision without any inference or presumption.” Wilson v.


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 7 of 12

B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (citation omitted). Where,

like here, the plaintiff relies on circumstantial evidence, she may satisfy her burden

through the McDonnell Douglas burden-shifting framework. Holland v. Gee, 677 F.3d

1047, 1055 (11th Cir. 2012).

The McDonnell Douglas burden-shifting framework requires the plaintiff to first

establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). Once the plaintiff establishes her prima facie case, the burden

shifts to the employer to articulate a legitimate, nondiscriminatory reason for the ad-

verse employment decision. Id.; Combs v. Plantation Patterns, 106 F.3d 1519, 1528

(11th Cir. 1997). If the employer offers a legitimate reason for the decision, the plaintiff

must then produce evidence “sufficient to permit a reasonable factfinder to conclude

that the reasons given by the employer were not the real reasons for the adverse em-

ployment decision.” Chapman v. Al Transport, 229 F.3d 1012, 1024 (11th Cir. 2000).

In this case, Williams claims she suffered disparate treatment because of her race

and sex. To establish a prima facie case of disparate treatment, the plaintiff must show

(1) she belonged to a protected class; (2) was qualified for the job; (3) suffered an ad-

verse employment action; and (4) her employer treated similarly situated employees

outside of her class more favorably than she was treated. Burke-Fowler v. Orange

County, 447 F.3d 1319, 1323 (11th Cir. 2006).

Defendants claim Williams cannot establish her prima facie case because she has

not identified any similarly situated employees who received more favorable treatment.

Alternatively, they argue they have a legitimate, nondiscriminatory reason for firing Wil-

liams—workplace violence—and she has not refuted that reason by providing evidence

of a pretext.


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 8 of 12

(a) Similarly situated employees

The Court agrees with Defendants that Williams has failed, as a matter of law, to

identify a comparator outside her protected class. “In determining whether employees

are similarly situated for purposes of establishing a prima facie case, it is necessary to

consider whether the employees are involved in or accused of the same or similar con-

duct and are disciplined in different ways.” Maniccia v. Brown, 171 F.3d 1364, 1368

(11th Cir. 1999). The “quantity and quality of the comparator’s misconduct must be

nearly identical.” Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127,

1135 (11th Cir. 2012). “The most important factors in the disciplinary context . . . are the

nature of the offenses committed and the nature of the punishment imposed.” Maynard

v. Bd. of Regents of Div. of Univs. of Fla. Dep’t of Educ. ex rel., 342 F.3d 1281, 1289

(11th Cir. 2003) (citation omitted).

Williams claims Toole is a similarly situated because they both “were correctional

officers assigned to the same area(s).” (Doc. 38 at 3.) And while Williams was fired after

two incidents of misconduct, “Toole was not terminated until after he violated GDOC

policies multiple times (chronic tardiness).” (Id. at 4.) Moreover, “Toole had a history of

invoking violence through actions with his co-workers.” (Id.) But Toole’s and Williams’s

misconduct are not “nearly identical.” They are not even alike. Tardiness is a far cry

from battery—one is unprofessional, the other a crime. And even assuming Toole had a

“history” of provoking violence—an inference unsupported by record evidence and any

reasonable inference3—there is no allegation he slapped or struck another employee.

3 Other than the incident resulting in her dismissal, Williams failed to identify any incidents of Toole ac-
tually provoking violence. To support this allegation, Williams points to a statement from another correc-
tional officer she obtained after her termination, which said:

On March 11, 2010, at approximately 1340 hours I, Officer Peterson, was exiting the brief-
ing room. Officer Toole was standing in the doorway. I turned sideways to get by Officer


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 9 of 12

Had he been the incendiary Williams suggests, he would still not be similarly situated

because there is no evidence Tatum knew of such conduct and had reason to discipline.

At bottom, Williams has not identified a white or male correctional officer who,

like her, hit another officer while on duty. It is clear, based on the undisputed DOC

guidelines, that prison officials consider workplace violence coupled with physical con-

tact to warrant severe sanction. Williams has not identified a comparator and has there-

fore failed to establish her prima facie cases of race and sex discrimination.

(b) Evidence of a pretext

Even if Williams had established her prima facie case, Defendants would still be

entitled to a judgment as a matter of law. Williams has not refuted their legitimate, non-

discriminatory reason for her termination. As previously mentioned, once the plaintiff

establishes her prima facie case, the burden of production shifts to the defendant to

show it terminated her for a legitimate, nondiscriminatory reason. Combs v. Plantation

Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). “[T]he defendant must clearly set forth,

through the introduction of admissible evidence, the reasons for the plaintiff’s rejec-

tion.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). “If the defend-

ant carries this burden of production, the presumption raised by the prima facie case is

Toole. He then brushed up against me. I asked Officer Toole to stop playing. He in turn
put his fists up in a defense manner and stated [sic] ‘ What you want to do Officer Peter-
son. [sic] Go ahead hit me. [sic] I told Officer Toole to get out of my face and quit playing.
He continued to bounce around like he wanted to fight. Officer Toole tends to play entire-
ly too much at times. He constantly aggravates employees to the point where you really
want to put your hands on him but you can’t because you will be fired and Officer Toole
will still have his job.

After the December 11, 2009 incident, Williams also informed Cooley that “Officer Toole later expressed
his apologies to me. I too, [sic] apologized to him. He claimed that he was only joking and that I under-
stood his intentions. I explained to him, whether joking or not, he had no right to invade my personal
space. Officer Toole does have a reputation of being playful; however, he had never approached me in the
manner in which he did.” (Doc. at 129–30.) Even viewed in the light most favorable to Williams, these
reports fail to establish Williams had a “history” of provoking violence.


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 10 of 12

rebutted . . . and drops from the case.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

507 (1993) (internal citation and quotation marks omitted).

To show that the defendant’s proffered reason is a pretext, the plaintiff must in-

troduce evidence sufficient to permit a reasonable factfinder to conclude that reason was

not the real reason for the termination. Hulbert v. St. Mary’s Health Care Sys., Inc., 439

F.3d 1286, 1298 (11th Cir. 2006) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1024

(11th Cir. 2000)). A plaintiff may show that the use of a “work rule” is pretextual by

providing evidence (1) she did not violate the cited work rule, or (2), if she did, other

employees outside the protected class, who engaged in similar acts, were not similarly

treated. Damon v. Fleming Supermarkets of Fla. Inc., 196 F.3d 1354, 1362 (11th Cir.

1999) (citing Alphin v. Sears, Roebuck & Co., 904 F.2d 1497 1401 n.1 (11th Cir. 1991)).

Ultimately, “[federal courts] do not sit as a ‘super-personnel department,’ and it is not

[their] role to second-guess the wisdom of an employer’s business decisions—indeed the

wisdom of them is irrelevant—as long as those decisions were not made with a discrimi-

natory motive.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th

Cir. 2010) (quoting Chapman, 229 F.3d at 1030).

Here, Defendants have provided a legitimate, nondiscriminatory reason for Wil-

liams’ termination. The DOC procedures proscribe workplace violence, assault and bat-

tery, and conduct that undermines public trust in the DOC. The DOC Adverse Sanction

Guidelines also provides that workplace violence with physical contact warrants dismis-

sal. There is no dispute that Williams did, in fact, strike Toole. Before reaching his deci-

sion, Tatum reviewed four statements, all of which corroborated the narrative that Wil-

liams impulsively slapped Toole during a disagreement. Tatum also consulted with the

DOC Legal Office, which informed him dismissal was appropriate.


Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 11 of 12

Williams argues this reason was a pretext because she merely defended herself

against Toole, “who had a history of inciting violent behavior (albeit no actual striking of

another employee).” (Doc. 38 at 4 (parenthesis in original).) But there is no evidence

the prison officials responsible for the discipline knew Williams defended herself against

Toole or that Toole had a history of inciting violent behavior. Tatum testified, without

contradiction, that to his knowledge, “Toole never engaged in a physical altercation dur-

ing his tenure at Calhoun State Prison.” Williams’ own statement explained she and

Toole “had a moment where he stepped into my personal space and I reacted on an im-

pulse and struck him in the face.” None of the incident statements explain that Williams

acted in self-defense.

More importantly, prison officials were entitled to treat different conduct differ-

ently, and the Court does not sit to second-guess those decisions. There is no dispute

that Williams alone struck another employee. Perhaps Toole instigated that reaction.

But given that Toole’s and William’s conduct were dissimilar—and hers uniquely seri-

ous—Williams cannot establish a pretext merely by pointing out that she was fired and

Toole was not. There is no evidence the DOC applied the workplace-violence rule incon-

sistently or deviated from its rules when punishing Williams. To the contrary, Williams’

discipline set in motion a multi-stage, well-documented review that involved people of

other race and gender than Tatum.

Williams has not provided sufficient evidence for a reasonable factfinder to con-

clude that workplace violence was not the real reason for the discipline. The defendants

are also entitled to summary judgment on this alternative ground.



Case 1:11-cv-00142-WLS Document 40 Filed 07/31/13 Page 12 of 12

For those reasons, Defendants’ Motion for Summary Judgment (Doc. 30) is

GRANTED. It is hereby ORDERED AND ADJUDGED that Williams shall take

nothing by her Complaint (Docs. 1), and JUDGMENT shall be entered in favor of De-


SO ORDERED, this 31st day of July 2013.

/s/ W. Louis Sands