Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 1 of 16
OR\G\~~f\L

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA, DIVISION

DEC 1 2003

SANDRA J. DAVIS; VELMA B. DUNCAN; ROSA BROWN; AND ANNETTE AMICK,
Plaintiffs, Vs.

CIVIL ACTION NO. 1:03-CV-2462 - MHS
CLASS ACTION
L.J: 04 CVZD- 2 (. C DL) :

VALLEY HOSPITALITY SERVICES, LLC.,

Defendant.

AMENDED COMPLAINT - CLASS ACTION

The Amended Complaint of Plaintiffs, Sandra J. Davis ("Davis"),

Velma B. Duncan ("Duncan"), Rosa Brown ("Brown"), and Annette Amick

("Amick"), hereinafter referred to as "Plaintiffs", is filed in accordance with

FRCP Rule 15 (a) and Rule 23 pursuant to 42 U.S.C. §1981, Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. et seq., Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and Plaintiffs

show the Court as follows:

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 2 of 16
PLAINTIFFS 1.
Plaintiff Duncan is a resident of the Northern District of Georgia, Plaintiffs Davis and Brown are residents of the Middle District of Georgia, and Plaintiff Amick is a resident of Alabama.
DEFENDANT
2.
The Defendant, Valley Hospitality Services, LLC., (Valley Hospitality) is a Georgia Corporation, having a registered agent, J. Edward Sprouse, located at 1043 3rd Ave. Columbus, Georgia and is subject to the jurisdiction of this Court. The Defendant had been previously served.
JURISDICTION 3.
Jurisdiction for this action is pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq, and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
VENUE 4.
Venue is proper pursuant to 28 U.S.C. §1391 in the United States District Court for the Northern District of Georgia where Plaintiff Duncan

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 3 of 16
resides and where the Defendant is doing business, has their principle place of business, and may be found and served in the Northern District of Georgia.
CLASS ACTION ALLEGATIONS 5.
Plaintiffs bring this action on behalf of themselves and for the Class of:
all former and present managers, front desk employees, and other employees who have been discriminated against in the termination oftheir employment and other terms ofemployment on account ofrace or age at the Wyndham Hotel.
6. The prerequisites to this Class Action under Rule 23 (a) are met that: (1) The Class of approximately 40 similarly situated managers, front desk employees and other employees who have been terminated in their employment and discriminated in other terms and conditions of their employment on account of race and age at the Wyndham Hotel are so numerous that joinder of all members of the proposed Class is impractical; (2) there are common questions of law and fact in that the Defendant after acquiring the ownership and management of the Wyndham Hotel has engaged in a pattern of employment discrimination and termination of managers, front desk employees and other employees at the Wyndham Hotel on account of race and age in violation of the applicable civil rights laws (3)

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 4 of 16
the claims of the Plaintiffs are typical of the claims of the Class in that the Plaintiffs and similarly situated present and former employees the Defendant at the Wyndham Hotel in the Class seek equitable relief and damages against the Defendants who caused their illegal employment discrimination; and (4) the Plaintiffs will fairly and adequately protect the interest of the Class, the Plaintiffs have no antagonistic or conflicting interests which would prevent the Plaintiffs from safe guarding the rights of the Class, Plaintiffs share the same common interests with the Class, and the Plaintiffs have engaged competent counsel.
7. The Class should be certified pursuant Rule 23 (b) (2) because the Defendants have engaged in a pattern of discrimination on account of race and age are against the Plaintiffs and similarly situated managers, front desk employees and other employees at the Wyndham Hotel in violation of the civil rights laws thereby making appropriate injunctive relief and corresponding declaratory relief as well as monetary relief with respect to the Class as a whole.
8. The Class should be certified pursuant to Rule 23 (b) (3) because the questions or law and fact common to the Plaintiffs and to all similarly

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 5 of 16
situated employees in the Class predominate over questions affecting only individual members in that all members of the Class were illegally discriminated against in the tenure and other conditions of employment by the actions of the Defendants in engaging in a pattern of discrimination on account of race and age against the Plaintiffs and similarly situated managers, front desk employees and other employees at the Wyndham Hotel, and a class action is superior to a myriad of individual cases in which the same questions would be repeatedly litigated and which many of the present and former managers, front desk employees, and others employees of the Wyndham Hotel in the proposed Class would not have the financial or legal recourse to pursue.
COMMON QUESTIONS OF LAW AND FACTS 9.
Plaintiffs were all formerly employed at the Wyndham Hotel in Columbus, Georgia as managers or on the front desk prior to November 4, 2002. Plaintiff Davis had been employed for 15 Y2 years and was the front desk manager, Plaintiff Brown had been employed for 1 Y2 years and was a front desk employee, and Plaintiff Duncan had been employed for five months and was the housekeeping manager having been recruited by the Wyndham Hotel from Atlanta because of her fifteen years of experience

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 6 of 16
working in housekeeping for hotels. Plaintiff Amick had been employed for 13 years as the restaurant manager.
10. Plaintiffs Davis, Duncan, and Brown are African-American females and Plaintiffs Davis, Brown, and Amick at the time of their discharges were over forty years of age, and Plaintiff Duncan is now over forty years of age.
II.
On November 1, 2002 the Defendant Valley Hospitality acquired the ownership and management of the Wyndham Hotel in Columbus, Georgia and hired the Plaintiffs to continue as employees working in their previous positions at the Wyndham Hotel. At a meeting on October 25, 2002, and again on November 1, 2002 the general manager of the Defendant Valley Hospitality, Brian Plemons, had assured all the managers that everyone of them would keep their positions at the hotel.
12. On November 4, 2003 the owner of Defendant Valley Hospitality, Jack Pezold, at a news conference publicly stated that no employees would lose their jobs as a result of the acquisition of the Wyndham Hotel by the Defendant Valley Hospitality.

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 7 of 16
13. On the very same day of the news conference, November 4, 2003, the Defendant Valley Hospitality terminated the employment of Plaintiff Davis, front desk manager, on the pretext that her position was being eliminated, but immediately, Amanda Fox, a younger white female assumed the function and title of front desk manager. And on November 4,2003 Plaintiff Duncan was terminated on the pretext that her position of housekeeping manager was being eliminated, but immediately Veronica Williams, an African- American female, was taken off the front desk as the By-Request Manager and replaced by Stephanie Pezold, a younger white female, and Veronica Williams assumed the function of housekeeping manager.
14. The next day on November 5, 2002 the Defendant's rooms executive, Bruce Raines, call in Tamara Stansel and Glenda Crawford who are white young females working on the front desk and told them that they did not have to worry that their jobs were secure because "they had the look that they wanted to have for the front desk."
15. On December 4, 2002 Plaintiff Brown was terminated from employment on the front desk by the Defendants on the pretext that she had

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 8 of 16
accepted a check from a guest for room and tax when the Wyndham Hotel had always had a policy of accepting checks from guests with proper identification which policy she had followed and she had not been told of any change in policy. She was replaced by white younger females working on the front desk.
16. On June 24, 2003 Plaintiff Amick was summarily forced to resign and constructively terminated as the restaurant manager and immediately replaced by a younger employee the next day. She was not told why she was terminated but subsequently the Defendants stated a pretext that she did not go out to other restaurants and recruit enough new employees to work for the hotel restaurant when that was not her responsibility.
17. The Defendant Valley Hospitality has engaged in a pattern of discrimination against employing managers and front desk employees who are African-American and terminating African-American Managers and front desk employees who are older in favor of hiring white younger managers and front desk employees.

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 9 of 16
18. Plaintiffs Davis and Duncan both filed a Charge of Discrimination with the Equal Employment Opportunity Commission on November 11, 2002 and Plaintiff Brown filed a Charge of Discrimination with the Equal Employment Opportunity Commission on December 31, 2002 charging discrimination based on race in violation of Title VII of the Civil Rights Act of 1964, as amended. Plaintiff Brown also filed a Charge of Discrimination based on her age in violation of the Age Discrimination in Employment Act of 1967. Plaintiff Amick filed a Charge of Discrimination with the Equal Employment Opportunity Commission on September 12, 2003 based on her age (60) in violation of the Age Discrimination in Employment Act of 1967, as amended.
19. On July 21, 2003 Plaintiffs Davis, Duncan and Brown were sent Notice of Right to Sue letters by the District Director of the Equal Employment Opportunity Commission issued on request of Plaintiffs' attorney because more than 180 days had passed since filing of the Charges of Discrimination. On October 30, 2003 Plaintiff Amick was sent a Notice of Right to Sue letter at the request of Plaintiff Amick's attorney. Copies of

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 10 of 16
the Notice of Right to Sue letters are attached hereto and marked "Exhibit
A."
20. The discriminatory acts and practices of the Defendant Valley Hospitality have discriminated against the Plaintiffs and similarly situated managers, front desk employees in the Class in terminating their employment because of their race in violation of Title VII, 42 U.S.C. § 2000e (2).
21. The discriminatory acts and practices of the Defendant Valley Hospitality have discriminated against the Plaintiffs and similarly situated managers, front desk employees, and other employees in the Class in terminating their employment because of their race in violation of the United States Constitution as protected by 42 U.S.C. § 1981.
22. The discriminatory acts and practices of the Defendant Valley Hospitality have discriminated against the Plaintiffs and similarly situated managers, front desk employees, and other employees in the Class in terminating their employment because of their age in violation of the Age Discrimination Employment Act of 1967,29 U.S.C. § 623.

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 11 of 16
COUNT I - EQUITABLE RELIEF 23.
Plaintiffs for themselves and for other similarly situated managers, front desk employees, and other employees in The Class bring this action for equitable relief against the Defendant for discrimination on account of race and age in violation of the Civil Rights laws of the United States.
24. Plaintiffs and similarly situated managers, front desk employees, and other employees in the Class have been terminated in their employment and other terms of employment by the Defendant at the Wyndham Hotel In violation of the Civil Rights laws of the United States.
25. The continued illegal employment discrimination by the Defendants of the Plaintiffs and similarly situated managers, front desk employees and other employees in the Class has caused and continues to cause them to suffer discrimination in the loss of their employment and other conditions of their employment and will continued to suffer irreparable injury unless the discriminatory actions are enjoined and restrained by this Court.

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 12 of 16
26. Plaintiffs and similarly situated managers, front desk employees, and other employees in The Class are entitled to equitable relief that the Defendant be ordered and enjoined to cease discrimination on account of race and age against the Plaintiffs and members of the Class and that Plaintiffs and similarly situated managers, front desk employees, and other employees who have been discriminated against by the Defendant on account of race and age be ordered reinstated to their former employment positions at the Wyndahm Hotel with the payment by the Defendant of all back pay and fringe benefits that the Plaintaiffs have suffured loss because ofthe employment discrimination ofthe Defendant.
COUNT II - DAMAGES 27.
Plaintiffs for themselves and for similarly situated managers, front desk employees, and other employees in The Class bring this action against the Defendant for damages that the discriminatory acts of the Defendant has caused them in violation of the Civil Rights laws of the United States.
28. The Plaintiffs and similarly situated managers, front desk employees, and other employees in The Class are entitled to recover damages including

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 13 of 16

front pay as provided by law from the Defendant for employment

discrimination in their tenure and other conditions of employment in

violation of the civil rights laws of the United States.

29.

The actions of the Defendants were intentional, reckless, and

vindictive entitling the Plaintiffs and similarly situated managers, front desk

employees, and other employees in The Class to an appropriate award of

punitive and exemplary damages.

WHEREFORE, Plaintiffs for themselves and other members of The

Class respectfully prays for the relief as follows:

(1)

That the Court certify: The Class as sought or modified, the

Plaintiffs as Class Representatives, and the undersigned

counsel as Class Counsel;

(2)

For a declaration that the acts and practices complained of

herein by the Defendant are in violation of the Civil Rights

Act of 1964, the United States Constitution, 42 U.S.C. §

1981, and the Age Discrimination in Employment Act of

1967,29 U.S.C. § 621 et seq.;

(3)

That the Defendant be ordered to reinstate Plaintiffs and

members of The Class to the positions that they would have

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 14 of 16

occupied prior to the discriminatory conduct ofthe

Defendant, or if the Court deems reinstatement

inappropriate, that the Defendant be ordered to pay front

pay for future loss of earnings;

(4)

That the Plaintiffs be awarded back pay in an amount to

compensate them for their lost wages and benefits;

(5)

That the Defendant be enjoined from conduct in the future

in violation of the Civil Rights Act of 1964, the United

Sates Constitution, 42 U.S.C. § 1981, and the Age

Discrimination in Employment Act of 1967;

(6)

That the Plaintiffs be awarded compensatory, consequential,

punitive and liquidated damages in the maximum amounts

allowed by law;

(7)

That the Defendant be ordered to pay reasonable attorneys

fees and costs;

(8)

That Plaintiffs be awarded prejudgment interest on all

tangible damages from the date of loss;

(9)

That the Plaintiffs be awarded such other and further relief

as they may be entitled to under the laws of Georgia and the

United States;

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 15 of 16

(10) That this case be tried by jury.

1040 Peachtree Battle Ave. Atlanta, Georgia 30327 Tel. No. 404-352-2144 Fax No. 404-367-0353
P.o. Box 5391 Atlanta, Georgia 31107 Tel. & Fax. No. 404-367-0507

~~~ McNeill StoKes Georgia Bar No. 683600 Attorney for Plaintiffs
Gerald Webber Georgia Bar No. 744878 Attorney for Plaintiffs

Case 4:04-cv-00020-CDL Document 27 Filed 02/10/04 Page 16 of 16

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the foregoing

Amended Complaint - Class Action upon the following parties by United

States Mail with sufficient postage prepaid and addressed to:

William L. Tucker Page, Scrantom, Sprouse, Tucker & Ford, P.C. 1043 Third Avenue
Columbus, Georgia 31901

This

b

L/
day

of December,

2003

1040 Peachtree Battle Ave. Atlanta, Georgia 30327 Tel: 404-352-2144 Fax 404-367-0353

McNeill Stokes Attorney for Plaintiffs

 
 Case 4:04-cv-00020-CDL Document 41 Filed 06/10/04 Page 1 of 9

s.

F.!LED
DISTRICT

COUHT

t'liDDLE GEORGIA

SANDRA J. DAVIS, VELINA B. DUNCAN, ROSE BROWN and ANNETTE AMI CK,
Plaintiffs,
v.
VALLEY HOSPITALITY SERVICES, LLC,
Defendant

*

*

*

*

CASE NO. 4:04-CV-20-2(CDL)

*

*

*

oRD E R
Plaintiffs in the above captioned lawsuit assert individual claims against Defendant, Valley Hospitality Services, LLC ("Valley Hospitality"), pursuant to Title VII and the Age Discrimination in Employment Act ("ADEN'). Plaintiffs have also asserted, through an amendment to their Complaint, a putative class claim under Title VII and a putative collective action under the ADEA. Defendant seeks dismissal of Plaintiffs' class-wide claims, contending that Plaintiffs failed to include such claims in their charges of discrimination filed with the Equal Employment Opportunity Commission ("EEOC"). Defendant also seeks dismissal of any age discrimination claims alleged individually by Plaintiffs Davis or Duncan. For the following reasons, the Court grants Defendant's motion as to Plaintiffs' putative Title VII class action claims and as to Plaintiff Duncan's purported individual and collective action claims under the ADEA. The Court denies Defendant's motion to dismiss Plaintiff Davis's individual and collective action claims under the ADEA and denies

Case 4:04-cv-00020-CDL Document 41 Filed 06/10/04 Page 2 of 9
Defendant's motion to dismiss Plaintiff Brown's collective action claim.
BACKGROUND Defendant purchased the hotel at which Plaintiffs were employed. Subsequent to that change in ownership, Defendant terminated Plaintiffs' employment. Davis and Duncan were fired on November 4, 2002. Brown was fired on December 4, 2002, and Amick was fired on June 24, 2003. Davis and Duncan both filed charges of discrimination with the EEOC on November 19, 2002, claiming Defendant discriminated against them because of their race. Brown filed her EEOC charge on December 31, 2002, alleging race and age discrimination. Amick filed her EEOC charge on September 12, 2003, based upon alleged age discrimination. 1 None of these EEOC charges alleged that Defendant's discrimination was class-wide; nor did they seek to assert claims on behalf of employees other than themselves as part of their EEOC charges. On January 27, 2003, before Amick had filed her EEOC charges but after Davis, Duncan, and Brown had filed their charges, Plaintiffs' attorney wrote a letter to the EEOC giving a "preliminary statement" of Davis's, Duncan's, and Brown's charges. In that letter, the attorney described for the first time allegations that Defendant engaged in class-wide discrimination as to race and age. Plaintiffs' attorney in this letter sought "to amend [Davis's, Duncan's, and
lPlaintiff Amick's EEOC charge does not allege any facts supporting a collective action under the ADEA.
2

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Brown's] EEOC charges to add age and gender discrimination to the filed racial discrimination charges for themselves and all other similarly situated employees who have been discriminated against by Valley Hospitality. 112 Neither Plaintiffs nor their attorney took any further action to amend their EEOC charges.
The EEOC mailed Davis, Duncan, and Brown their right to sue letters on July 21, 2003. 3 Amick's right to sue letter was sent subsequently on October 30, 2003. Davis, Duncan, and Brown filed this lawsuit on August 18, 2003. Amick was added as a plaintiff by amendment on February 10, 2004.
Defendant contends that Plaintiffs' class-wide discrimination claims must be dismissed because Plaintiffs never filed a valid charge of class-wide discrimination with the EEOC prior to filing suit. Defendant also argues that Plaintiff Davis's individual ADEA claim must be dismissed because she did not properly assert those claims to the EEOC. Defendant further maintains that Plaintiff Duncan's ADEA claims should be dismissed because she was under forty years of age at the time her employment was terminated. Plaintiff Duncan now states that she never intended to assert a claim under the ADEA. To avoid confusion, the Court therefore dismisses that claim.
2A factual dispute exists as to when a copy of this letter was provided to Defendant and/or its attorney. The resolution of this dispute is unnecessary for the determination of the present motion.
3The only checked box on Plaintiff Davis's and Duncan's right to sue letters was the entry for Title VII claims. However, a right to sue letter is not a necessary prerequisite for suit under the ADEA. See Grayson v. K Mart Corp., 79 F.3d 1086, 1100 (11th Cir. 1996).
3

Case 4:04-cv-00020-CDL Document 41 Filed 06/10/04 Page 4 of 9
Regarding Plaintiffs' class-wide discrimination claims and Plaintiff Davis's individual ADEA claim, Plaintiffs contend that their attorney's January 27 letter to the EEOC constitutes a valid charge and/or amendment under the applicable EEOC regulations. Therefore, Plaintiffs argue that the class-wide claims and Davis's individual ADEA claim, which are included in that letter, should not be dismissed.
DISCUSSION Plaintiffs' Title VII Class-wide Discrimination Claims A plaintiff must file a charge of discrimination with the EEOC prior to filing a lawsuit seeking relief under Title VII. 42 U.S.C. § 2000e-5 (e) . Furthermore, the EEOC charge must comply with the requirements of Title VII and the EEOC regulations promulgated thereunder, including the requirement that any charge must be verified or made under oath and be in writing. See 42 U.S.C. § 2000e-5(b) i 29 C.F.R. §§ 1601.9, 1601.3(a). This requirement cannot be waived. See Vason v. City of Montgomery, Ala., 240 F.3d 905 (11th Cir. 2001). It is undisputed that none of the Plaintiffs included allegations of class-wide discrimination in their verified EEOC charges. Therefore, the issue presented by Defendant's motion is whether the January 27 letter from Plaintiffs' attorney to the EEOC, which does allege class-wide discrimination, constitutes a valid "charge of discrimination" or is a valid amendment to the previously filed charges. The Court finds that the attorney letter is not a valid EEOC charge of class-wide discrimination under Title VII. Any charge with
4

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the EEOC alleging discrimination under Title VII must be made under

oath or affirmation. See Vas on , 240 F.3d at 907. The letter was not

verified, and no attempt has been made to "amend" it to include a

verification. Consequently, the January 27 attorney letter was not

a valid EEOC charge of discrimination.

The Court also finds that the letter was not a valid amendment

of the previously filed charges. "A charge may be amended to cure

technical defects or omissions, including the failure to verify the

charge, or to clarify and amplify allegations made therein." 29

C.F.R. § 1601.12(b).

Because no allegations of class-wide

discrimination were included in Plaintiffs' original charges, the

January 27 letter does not "clarify or amplify" any of the original

charges' allegations. See, e.g., Cheek v. W. and S. Life Ins. Co.,

31 F.3d 497, 503 (7~ Cir. 1994) ("Pursuant to 29 C.F.R. § 1601.12(b),

additional allegations cannot expand the scope of the

allegations in [the plaintiff I s] original charge i they only may

lIclarify or amplifylf the allegations [already] in the charge. "). The

January 27 letter clearly seeks to add new separate charges of class-

wide discrimination. It does not seek to clarify or amplify the

previous allegations. Consequently, the letter does not constitute

a valid amendment.

The Court also finds that Plaintiffs' original charges were

insufficient to place the Defendant or the EEOC on reasonable notice

that class-wide discrimination would be relevant to any of Plaintiffs'

individual claims. Therefore, any investigation by the EEOC of the

original charges would not have reasonably extended to encompass the

5

Case 4:04-cv-00020-CDL Document 41 Filed 06/10/04 Page 6 of 9
class-wide discrimination claims. See Grayson v. K Mart Corp., 79 F.3d 1086, 1107 (11th Cir. 1996) i Cf. Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 465-66 (5 th Cir. 1970) (allowing the scope of the plaintiff's action to exceed the technical claims in her EEOC charge because a reasonable investigation by the EEOC based upon the plaintiff's charge would have discovered a sufficient basis for the plaintiff's additional claims).
In summary, the January 27 letter did not comply with Title VII's charge and amendment requirements. Since no valid EEOC charge of class-wide discrimination prohibited by Title VII has been filed, those claims must be dismissed.
Plaintiffs' ADEA Individual and Collective Action Claims It would appear that the foregoing analysis should also apply to Plaintiffs' ADEA claims. However, although the charge requirements under Title VII and the ADEA are similar, a significant difference exists that ultimately requires a different outcome. See, e.g., Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1221 n.l0 (11th Cir. 2001). Unlike the Title VII regulations, neither the ADEA nor the EEOC regulations promulgated thereunder require a verification of the written charge of discrimination by the claimant. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1321 n.3 (11th Cir. 2001) i see also 29 C.F.R. §§ 1626.1 et seq. Consequently, the lack of verification of the January 27 attorney letter is not fatal to Plaintiffs' ADEA claims
6

Case 4:04-cv-00020-CDL Document 41 Filed 06/10/04 Page 7 of 9
as it was to Plaintiffs' Title VII class claims.4 The Court must therefore determine whether the letter otherwise complies with the ADEA and EEOC charge requirements.
EEOC regulations define the term "charge" as a "statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act. II 29 C.F.R. § 1626.3. This charge should include pertinent information about the person making the charge and the person against whom the charge is made, as well as a concise statement of the facts and other information about the proceeding and the employer. See 29 C.F.R. § 1626.8(a). However, if the charge is reduced to writing l names the prospective respondent, and generally alleges the complained of discriminatory conduct, the charge should be deemed sufficient. See 29 C.F.R. § 1626.8(b) i 29 C.F.R. § 1626.6.
The attorney letter of January 27 is in writing, names the prospective respondent, and details the class-wide age-based discrimination that Plaintiffs allege occurred. The letter was also timely sent to the EEOC. Therefore, the letter constitutes a valid charge under the ADEA and EEOC regulations.
Defendants argue that even if the letter contained all of the elements of a valid charge, Plaintiffs' claims asserted for the first time in the letter should still be dismissed because it did not
4The Court can conceive of no legitimate reason for this difference in the charge requirements for ADEA and Title VII claimants. However, this Court is obliged to apply the law even if it is contrary to the Court's personal notions of common sense.
7

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receive pre-litigation notice of the attorney letter. Although one

of the purposes underlying the charge requirements is to provide

employers with prompt notice of an employee's allegations of unlawful

conduct, the Court finds that under the circumstances of the case at

bar Plaintiffs should not be penalized for the EEOC's failure to

process and to notify the employer of Plaintiffs' charges included in

the attorney letter. See, e.g; Forehand v. Fla. State Hosp. at

Chattahoochee, 89 F.3d 1562, 1570 (11th Cir. 1996) ("Title VII does

not condition an individual's right to sue upon the EEOC's performance

of its administrative duties.") i see also Albano v. Schering-Plogh

Corp., 912 F.2d 384, 388 (9th Cir. 1990) ("It is the EEOC, not the

claimant, who is responsible for notifying the employer of the claims

alleged in the EEOC charge.

Thus, the claimant should not now

be penalized because of the EEOC's own errors.") i Steffen v. Meridian

Life Ins. Co., 859 F.2d 534, 544 (7 th Cir. 1988) (ADEA action should

proceed regardless of EEOC's failure to act because plaintiff's intake

questionnaire contained all necessary information and plaintiff made

clear to the EEOC officer that he intended to activate the ADEA's

machinery.) .

The Court finds that the January 27 attorney letter constitutes

a valid charge of discrimination under the ADEA. Therefore,

Defendant's motion to dismiss Plaintiff Davis and Brown's putative

ADEA collective action and Davis's individual ADEA claim is denied.

8

Case 4:04-cv-00020-CDL Document 41 Filed 06/10/04 Page 9 of 9 CONCLUSION
Defendant's motion to dismiss Plaintiffs' claims of class-wide Title VII discrimination is granted. Defendant's motion to dismiss Plaintiff Duncan's individual claim of age discrimination is granted. Defendant's motion to dismiss Plaintiffs ' collective action ADEA claims is denied. Defendant's motion to dismiss Plaintiff Davis's individual ADEA claim is denied.
IT IS SO ORDERED, this loth day of June, 2004. UNITED STATES DISTRICT JUDGE
9

 
 Case 4:04-cv-00020-CDL Document 93 Filed 05/31/05 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION

SANDRA J. DAVIS, VELINA B.

*

DUNCAN, ROSE BROWN AND

ANNETTE AMICK,

*

Plaintiffs,

*

vs.

*

VALLEY HOSPITALITY SERVICES, LLC, *

Defendant

*

CASE NO. 4:04-CV-20-2(CDL)

O R D E R The Court presently has before it several motions related to its April 25, 2005 Order granting in part and denying in part Defendant’s Motions for Summary Judgment. In that Order, the Court granted Defendant’s Motions for Summary Judgment with regard to the disparate impact and systemic disparate treatment claims of all four Plaintiffs and also granted summary judgment in favor of Defendant with regard to the individual disparate treatment claims of Plaintiffs Velina Duncan, Rose Brown and Annette Amick. The Court denied Defendant’s Motion for Summary Judgment with regard to the individual disparate treatment claims of Plaintiff Sandra Davis, which are now the only claims remaining in the case. Before the Court is Defendant’s Motion for Reconsideration of its Order denying Defendant’s Motion for Summary Judgment with regard to the claims of Plaintiff Davis. In the alternative, Defendant has moved for certification for immediate appeal of the denial of Defendant’s Motion for Summary Judgment pursuant to 28 U.S.C. § 1292(b). The Court also has before it, pursuant to Federal Rule of

Case 4:04-cv-00020-CDL Document 93 Filed 05/31/05 Page 2 of 3
Civil Procedure 54(b), Plaintiffs’ Motion for Entry of Final Judgment as to the claims of Plaintiffs Duncan, Brown and Amick.
Defendant’s Motion for Reconsideration is denied. Defendant’s Motion for Certification, pursuant to 28 U.S.C. § 1292(b), for immediate appeal of the denial of Defendant’s Motion for Summary Judgment is granted. The Court’s order of April 25, 2005, is hereby modified by the addition of the following paragraph: The Court certifies, pursuant to 28 U.S.C. § 1292(b), that it is of the opinion that the denial of Defendant’s Motion for Summary Judgment with regard to the claims of Plaintiff Sandra Davis involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the termination of the litigation. Plaintiffs’ Motion for Entry of Final Judgment pursuant to Federal Rule of Civil Procedure 54(b) as to the claims of Plaintiffs Duncan, Brown and Amick is granted. In its April 25, 2005 Order, the Court completely disposed of these Plaintiffs’ claims of disparate impact, systemic disparate treatment and individual disparate treatment by granting Defendant’s Motion for Summary Judgment as to these claims. These claims are separable from Plaintiff Davis’ claims for individual disparate treatment, which are the only claims not disposed of by the April 25, 2005 Order. The Court finds that there is no just reason for delaying entry of final judgment as to the claims of Plaintiffs Duncan, Brown and Amick. Each Plaintiff is seeking separate relief based on separate sets of facts, and no useful purpose can be served by postponing the final disposition of the
2

Case 4:04-cv-00020-CDL Document 93 Filed 05/31/05 Page 3 of 3 claims of Duncan, Brown and Amick. Accordingly, the Clerk is directed to enter final judgment in favor of Defendant and against Plaintiffs Duncan Brown and Amick.
In summary, Defendant’s motion for reconsideration is denied; Defendant’s motion for certificate of immediate appeal is granted; and Plaintiff’s motion for entry of final judgment against Duncan, Brown and Amick in favor of Defendant is granted.
IT IS SO ORDERED, this 31st day of May, 2005. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE
3

 
 Case 4:04-cv-00020-CDL Document 95 Filed 06/06/05 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION

SANDRA J. DAVIS,

*

VELINA B. DUNCAN,

ROSE BROWN and ANNETTE AMICK, *

Plaintiffs vs.

* Case Number 4:04-CV-20 (CDL)
*

VALLEY HOSPITALITY SERVICES, LLC,*

Defendant

*

J U D G M E N T Pursuant to this Court’s Order dated May 31, 2005, and for the reasons stated therein, JUDGMENT is hereby entered in favor of Defendant as to the claims of Plaintiffs Duncan, Brown, and Amick. Plaintiffs shall recover nothing of Defendant. Defendant shall also recover its costs of this action. This 6th day of June, 2005.
Gregory J. Leonard, Clerk
S/ Terrie L. Smith Deputy Clerk

 
 Case 4:04-cv-00020-CDL Document 100 Filed 07/11/05 Page 1 of 1

IN THE UNITED STATES COURT

FOR THE ELEVENTH CIRCU T

a JlH B 2005

No. OS-9001S-J
I
VALLEY HOSPITALITY SERVICES, LLC,

Petitioner,

versus

SANDRA J. DAVIS,
Respondent.
Petition for Permission to Appeal an Order from the United States District Court for the Middle District of Georgia

BEFORE: TJOFLAT, BIRCH and HULL, Circuit Judges. BY THE COURT:
The petition for permission to appeal pursuant to 28 U.S.C.
§1292{b) is GRANTED.

 
 Case 4:04-cv-00020-CDL Document 107 Filed 10/04/05 Page 1 of 2

t

.. -

1

IN THE UNITED STATES COURT OF APPEALS
\...J,J ;
FOR THE ELEVENTH CIRCUIT

No.05-13107-JJ

SEP :~ 0 Z005

SANDRA J. DAVIS, VELMA B. DUNCAN, et al.,
versus VALLEY HOSPITALITY SERVICES, LLC,

Plaintiffs-Appellants,
Defendant~Appellee.

Appeal from the United States District Court for the Middle District of Georgia
Before CARNES and MARCUS, Circuit Judges. BY THE COUR T:
This appeal is DISMISSED as toAppellantDavis. The district court's April 25, 2005, order is not final and appealable as to her. See 28 U.S.C. § 1291; Beluga Holding. Ltd. v. Commerce Capital Corp., 212 F.3d 1199, 1202 (lIth Cir. 2000); Fed.R.Civ.P.54(b); Williams v. Bishop, 732 F.2d 885, 886 (lIth Cir. 1984); In re Yarn Processing Patent Validity Litig., 680 F.2d 1338, 1340 (11th Cir. 1982). This appeal SHALL PROCEED as to Appellants Duncan, Brown, and Amick, to the extent that the Apri125, 2005, order denied them injunctive relief. See Carson v. Am. Brands, Inc., 450 U.S. 79, 83-84, 101 S.Ct. 993,996-97,67 L.Ed.2d 59 (l981). To the extent that the April

Case 4:04-cv-00020-CDL Document 107 Filed 10/04/05 Page 2 of 2
-
25, 2005, order did not deny injunctive relief, the appeal as to Duncan, Brown, and Amick is DISMISSED for lack ofjurisdiction. See 28 U.S.C. § 1291; Beluga Holding, Ltd., 212 F.3dat 1202; Fed.R.Civ.P. 54(b); Williams, 732 F.2dat886;Inre Yarn Processing PatentValidity Litig., 680 F.2d at 1340.
2

 
 Case 4:04-cv-00020-CDL Document 85 Filed 04/25/05 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION

SANDRA J. DAVIS, VELINA B.

*

DUNCAN, ROSE BROWN AND

ANNETTE AMICK,

*

Plaintiffs,

*

vs.

*

VALLEY HOSPITALITY SERVICES, LLC, *

Defendant

*

CASE NO. 4:04-CV-20(CDL)

O R D E R This lawsuit arises from the termination of four employees—Sandra J. Davis, Velina B. Duncan, Rose Brown and Annette Amick—from the Wyndham Hotel in Columbus, Georgia. Before the Court are Defendant’s motions for judgment on the pleadings as to Plaintiffs Amick and Brown; Defendant’s motions for summary judgment as to the claims of all four Plaintiffs; and Defendant’s Motion to Strike Exhibits A through C of Plaintiffs’ Response to Defendant’s Motions for Summary Judgment. For the reasons below, the Court grants Defendant’s motions for summary judgment as to all of Plaintiffs’ claims except Plaintiff Davis’s individual disparate treatment claims, finds that Defendant’s 12(c) motions are moot, and grants in part and denies in part Defendant’s Motion to Strike.
FACTUAL BACKGROUND Plaintiffs in this case are former employees of the Wyndham Hotel (“the Wyndham”) in downtown Columbus, Georgia. In recent years, the hotel has undergone a series of name, ownership, and management changes. The Wyndham was formerly the Columbus Hilton Hotel. Wyndham International took ownership of the Columbus Hilton in July 1998 and

Case 4:04-cv-00020-CDL Document 85 Filed 04/25/05 Page 2 of 42
changed the hotel’s name to the Wyndham Hotel in September 2002. Wyndham International operated the hotel until October 2002. In October 2002, Defendant Valley Hospitality Services, LLC (“VHS”), a hotel and food service management company, began planning to take over management of the Wyndham. VHS took over management of the hotel on November 1, 2002, planning to keep most of the Wyndham’s employees to operate the hotel. As part of the VHS takeover, VHS conducted an orientation for the employees, issued new employee handbooks, and required each employee to complete a new employment application and submit to a drug test and criminal background check.
Prior to the VHS takeover, the Wyndham was organized into eight departments, each with its own department manager that reported directly to the hotel’s General Manager. The eight department managers were: Front Office Manager, Executive Housekeeper, Maintenance/Chief Engineer, Director of Sales, Restaurant and Bar Manager, Chef, Banquet Manager, and Accounting Manager. Immediately after the takeover, VHS began implementing a corporate reorganization, eliminating the eight separate departments and dividing the hotel into three functional areas: sales, managed by a Sales Director; finance, managed by a Vice President of Finance; and general hotel operations, managed by the Acting General Manager. The general hotel operations division consisted of two departments: the Rooms Department, led by Rooms Executive Bruce Raines, who is white and was 50 years old at the time of the VHS takeover, and the Food and Beverage Department, led by Food and Beverage Director Franco Brady, who is white and was over 40 years old at the time of the VHS takeover. After the reorganization, the Food and Beverage Department had four supervisory positions: Restaurant Manager, Executive Chef, Banquet Manager and
2

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Room Service Manager. After the reorganization, the Rooms Department had five supervisory positions to oversee the work of the front desk, housekeeping, bell stand, laundry, and maintenance. Brian Plemmons, who served as General Manager of the Columbus Hilton from September 1987 to October 1996, returned to the Wyndham in 2002 as President of VHS and the Acting General Manager of the Wyndham; at the time, he was 43 years old. Plemmons, who is white, was the hotel’s Acting General Manager when each of the Plaintiffs was terminated from her job. In his capacity as Acting General Manager, Plemmons made the final decision to terminate each Plaintiff.
All four Plaintiffs contend that Defendant terminated older employees and African American employees because they did not have the “right look” for the hotel.1 Plaintiffs assert claims for race and age discrimination, and all four seek reinstatement (or, in the alternative, front pay) and monetary damages. 1. Plaintiff Sandra J. Davis
In August 1988, Plemmons hired Plaintiff Davis, an African American woman, to work as a Front Desk Clerk at the Columbus Hilton. Plemmons later promoted Davis to Front Office Manager in 1990. About a year later, when Davis wanted to resign from her job as Front Office
1 The “right look” theory is derived chiefly from the statement of Glenda Crawford, an African American woman who was terminated from her position as a front desk clerk sometime between January 27, 2003 and October 20, 2004. In her affidavit, Crawford stated that Rooms Executive Bruce Raines reassured her of her position on November 5, 2003 by telling Crawford she had the “look” hotel management wanted. Raines did not tell Crawford what he meant by the “right look.” Crawford observed that she is “young, petite, medium built, light or fair complexion.” Plaintiffs have interpreted Crawford’s observation to mean that the “right look” desired by VHS executives includes only young, fair-skinned people. But Crawford’s opinions cannot be attributed to Raines; the evidence shows only that Raines expected the front desk clerks to have a certain “look”—it does not show that Raines expected the front desk clerks to be young or fair-skinned.
3

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Manager because of the strain it placed upon her, Plemmons allowed Davis to step down from that position and to select another position. Davis selected the PM Supervisor position, and she held that position until she resigned from the Hilton in 1993 to take a job at another hotel. In 1994 or 1995, Plemmons rehired Davis, this time as a Reservations Agent. Plemmons promoted Davis to Reservations Manager in 1996. After Plemmons left the Hilton to start his own company, a different General Manager promoted Davis to Front Office Manager. In this position, Davis reported directly to the General Manager. Davis served as Front Office Manager from November 1998 until her termination November 4, 2002. Prior to the VHS takeover, on October 31, 2002, Davis completed a VHS employment application. She applied for the “Guest Service Manager” position. On November 4, 2002, Davis was informed by Rooms Executive Bruce Raines and Human Resources Director Vickie Menza that her position had been eliminated and that she was being terminated as a result. When she was told that her position had been eliminated, Davis asked if there was any other position in the hotel for her. She was told no. At the time of her termination, Davis was 41 years old.
In her capacity as Front Office Manager, Davis managed approximately fifteen employees and oversaw five areas, including the front desk, bell staff, reservations, communications, and security. According to Defendant, the Front Office Manager position was eliminated in the reorganization, and the Front Office Manager’s duties were divided between the Rooms Executive and a newly-created Front Desk Supervisor position. The new Front Desk Supervisor supervised and was responsible only for supervising the front desk and the front desk staff. The Rooms Executive was responsible for the
4

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remaining Front Office Manager functions (bell staff, reservations, communications, and security). He also supervised the Front Desk Supervisor, as well as laundry, maintenance, and housekeeping. Davis argues that her only real function as Front Office Manager was to manage the front desk. But in her deposition, Davis stated that she oversaw the front desk, PBX (communications), and reservations. (Davis Dep. at 98.) Davis also stated that before the VHS takeover, the Bell Captain resigned and that she was asked to oversee two additional areas: security and the bell staff. (Davis Dep. at 64-65, 98.)
Davis argues that her position was not truly eliminated. She contends that the “Front Office Manager” job was renamed “Front Desk Supervisor” and that the position was filled by a white woman under the age of forty. Initially, Michael Sabbs, an African American man, was selected to fill the Front Desk Supervisor position. However, Sabbs was terminated on November 6, 2002, when his drug test results came back positive. VHS brought in Amanda Fox, a 24 year-old white woman, from another VHS hotel to be the Front Desk Supervisor.
Davis posits that she was terminated because of her race and age—because she did not have the “right look.” Davis brought claims under Title VII of the Civil Rights Act of 1974, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), 42 U.S.C. § 1981 (“§ 1981”), and the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. § 621, et seq. (“ADEA”). 2. Plaintiff Velina B. Duncan
Plaintiff Duncan, an African American woman, was hired as Executive Housekeeper of the Columbus Hilton in June 2002. As Executive Housekeeper, Duncan reported directly to the General Manager
5

Case 4:04-cv-00020-CDL Document 85 Filed 04/25/05 Page 6 of 42
and supervised approximately twenty-three employees, including Room Attendants, Housemen, a Night Lobby Attendant, a Laundry Supervisor and a Room Inspector. Duncan served as Executive Housekeeper until November 4, 2002. She completed an employment application for VHS on November 1, 2002, and she applied for the “Housekeeping Manager” position. On November 4, 2002, Duncan was informed by Rooms Executive Bruce Raines and Human Resources Director Vickie Menza that her position had been eliminated and that she was being terminated as a result. At the time of her termination, Duncan was 38 years old. Veronica Williams, an African American woman over the age of 40 who had worked for the Wyndham for several years, was transferred into the new Housekeeping Manager position.2
According to Defendant, the Executive Housekeeper position was eliminated in the reorganization, and the Executive Housekeeper’s duties were divided between the Rooms Executive and a newly-created Housekeeping Manager position. The new Housekeeping Manager reported to the Rooms Executive and was responsible only for supervising the housekeeping staff. The Rooms Executive was responsible for the remaining Executive Housekeeper functions, including budgeting, managing the laundry department, and managing the Housemen. Duncan
2 Plaintiffs characterize Williams’s transfer as a “demotion” because her old position, By Request Supervisor, was a “front of the house” customer service position and her new position, Housekeeping Manager, was a “back of the house” job. However, there is no evidence that the transfer was a demotion. The new job did not result in a reduction in Williams’s pay, and she received a raise 90 days after the transfer. Furthermore, in her new job, Williams was responsible for directly supervising the housekeeping staff; in her old job, she had no supervisory role. Based upon the evidence, the Court cannot conclude that Williams’s transfer was a demotion. Even if it were, that is not the issue before the Court; the issue is whether Defendant discriminated against Duncan by 1) eliminating her job and 2) assigning Williams to the position most analogous to Duncan’s old job.
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maintains that her only real function as Executive Housekeeper was supervising and scheduling the housekeeping staff, though she acknowledged in her deposition that she had supervised the laundry department and that after the reorganization the laundry supervisor did not report to the Housekeeping Manager.
Duncan argues that her position was not truly eliminated. She contends that the “Executive Housekeeper” job was renamed “Housekeeping Manager” and that she was terminated because of her race—because she did not have the “right look.” Duncan asserts claims under Title VII and § 1981. 3. Plaintiff Rose Brown
In May 2001, then-Front Office Manager Sandra Davis hired Plaintiff Brown, an African American woman, to work as a part-time Front Desk Clerk at the Columbus Hilton. As a Front Desk Clerk, Brown was responsible for providing courteous customer service to the hotel’s guests and for complying with the hotel’s standards and regulations. Brown reported to Davis until November 1, 2002, when VHS began managing the hotel. After the VHS takeover, Brown reported to Front Desk Supervisor Amanda Fox, who reported to Rooms Executive Bruce Raines, who reported to Acting General Manager Brian Plemmons. On December 4, 2002, Brown was informed by Front Desk Supervisor Fox and Human Resources Director Vickie Menza that she was being discharged for violating the hotel’s personal check policy and because of customer complaints regarding her work. Plemmons made the decision to terminate Brown. At the time of her termination, Brown was 55 years old.
Defendant offered two reasons for its decision to terminate Brown: first, Brown accepted a personal check for payment of room
7

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charges in violation of VHS policy, and second, Defendant received complaints from customers that Brown was rude to them and failed to provide adequate customer service. Brown contends that there was no policy forbidding acceptance of personal checks for payment of room charges, that she properly accepted a personal check pursuant to the hotel’s longstanding policy, and that similarly situated white employees accepted personal checks but were not terminated. Brown also contends that she was never counseled or told about customer complaints against her until she was terminated and that the hotel received customer complaints about similarly situated white employees but did not terminate them as a result. Brown asserts claims under Title VII, § 1981, and the ADEA. 4. Plaintiff Annette Amick
Plaintiff Amick, a white woman, was hired to be the Bar Manager at the Columbus Hilton’s restaurant in 1998. She was promoted to Catering Manager in 1999 and then to Restaurant Manager in 2000. Prior to the VHS takeover, Amick was responsible for overseeing the management and operation of the hotel’s restaurant, bar, and room service; she managed a staff of 15 to 25 employees and reported directly to the hotel’s General Manager. Amick remained Restaurant Manager when VHS took over management of the hotel in November 2002. At that time, she was 59 years old. Under the new VHS structure, the Restaurant Manager reported to Franco Brady, the Food and Beverage Director, and was responsible for coordinating, supervising, and directing the restaurant’s operations, including staffing, compliance with health regulations, and responding to guest complaints. Brady reported to the hotel’s Acting General Manager, Brian Plemmons.
8

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Soon after VHS took over management of the Wyndham, Brady and Plemmons found that the restaurant was not performing well. Brady attributed many of the restaurant’s problems to Amick’s performance. He began counseling Amick regarding the problems, and he began keeping records of her performance deficiencies. After several months and a number of continuing problems in the restaurant, Brady issued Amick a written disciplinary warning regarding her performance. Approximately two months later, Amick’s performance had not improved, and Plemmons decided to discharge her for failure to manage her department effectively. On June 24, 2003, Food and Beverage Director Brady and Human Resources Director Vickie Menza informed Amick of the discharge decision and offered Amick an opportunity to resign in lieu of being terminated. Amick accepted the offer and resigned from her position that day. At the time of her termination, Amick was 60 years old. Amick disputes Defendant’s account of her performance and contends that the problems for which she was disciplined and ultimately terminated were someone else’s fault. She further argues that Brady stacked her employment file with the false write-ups so that he could fire her because of her age.
According to Defendant, there is no longer a Restaurant Manager position. Brady took over management of the restaurant, and all of the restaurant’s supervisors now report directly to him. Amick contends that the Restaurant Manager position was not eliminated and that her responsibilities are now shared by two young women who fit the restaurant’s “youthful image.” Amick asserts a claim under the ADEA.
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DISCUSSION 1. The 12(c) Motions
Plaintiffs Brown and Amick both filed for Chapter 13 bankruptcy protection in 2001, and both Plaintiffs were put on a payment plan. They both had an obligation to disclose interest in any property held by the estate after commencement of the case. See 11 U.S.C. § 541(a)(7). Defendant argues that the doctrine of judicial estoppel applies in this case and that the claims of Plaintiffs Brown and Amick should be dismissed because both Plaintiffs failed to disclose the instant suit to the bankruptcy court until after Defendant presented its 12(c) motion.
Judicial estoppel is applied to prevent a bankruptcy debtor from receiving bankruptcy protection and then turning around to pursue claims she had previously misrepresented or failed to reveal. See, e.g., Brassfield v. Jack McLendon Furniture, Inc., 953 F. Supp. 1424, 1432 (M.D. Ala. 1996). The doctrine applies to claims for damages, but the Eleventh Circuit has held that it does not apply to claims for injunctive relief. Barger v. City of Cartersville, 348 F.3d 1289, 1297 (11th Cir. 2003). Therefore, Plaintiffs’ claims for injunctive relief (reinstatement) are not subject to judicial estoppel. Moreover, because the Court finds that Defendant is entitled to summary judgment on all of Plaintiff Brown’s and Plaintiff Amick’s claims, see infra, it is not necessary to reach the question whether Plaintiffs Amick and Brown should be judicially estopped from pursuing their monetary damages claims. Accordingly, Defendant’s motions for judgment on the pleadings are denied as moot. 2. The Motion to Strike
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Defendant has moved to strike three exhibits attached to Plaintiffs’ brief in opposition to Defendant’s Motion for Summary Judgment. First, Defendant seeks to strike Exhibit A—the headcount charts which had been submitted to the EEOC—arguing that the charts were not authenticated or verified as required by Federal Rule of Evidence 901. The charts provide a headcount of the Wyndham’s employees before and after the VHS takeover. Both Davis and Brown swore that the charts represented a true and correct listing of managers and front desk employees before and after November 1, 2002. The Court acknowledges that Defendant has presented uncontradicted evidence which completely discredits Plaintiffs’ charts. However, the Court declines at this time to strike Plaintiffs’ Exhibit A. In the Court’s view, the charts represent Plaintiffs’ own headcount of the Wyndham’s employees before and after the VHS takeover and has been adequately authenticated and verified by Plaintiffs Brown and Davis. Of course, this ruling does not foreclose Defendant from making a motion on other grounds to exclude Exhibit A from future consideration in this case, but for purposes of Defendant’s Motion for Summary Judgment, the Court finds that Exhibit A should not be stricken.
Next, Defendant seeks to strike portions of Exhibit B, the affidavit of Glenda Crawford, and Exhibit C, the affidavit of Rose Brown. A court may strike portions of an affidavit that are not based upon the affiant’s personal knowledge or make generalized and conclusory statements. See Fed. R. Civ. P. 56(e). Defendant claims that Crawford and Brown lacked personal knowledge as to some of their statements and that portions of their affidavits contain inadmissible generalized conclusions. Plaintiffs maintain that the affidavits are based on the witnesses’ own knowledge and therefore satisfy the
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personal knowledge requirement of Federal Rule of Civil Procedure 56(e). They also contend that the portions challenged as inadmissible general conclusions are supported by facts within each affiant’s knowledge.
A witness may certainly testify to her own observations, and a witness may offer opinion testimony that is rationally based upon her own perceptions. See Fed. R. Evid. 701. Though a clear statement that an affidavit is based on personal knowledge would satisfy Rule 56(e)’s requirement, such a statement is not necessarily required. Personal knowledge and competence to testify may be inferred from the affidavits themselves—for example, common sense dictates that if an affiant is an employee of a company, she has personal knowledge of events and circumstances that occurred at the company within her sphere of observation. See Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (finding individuals’ personal knowledge and competence to testify to circumstances of negotiations could be reasonably inferred from their positions and participation in the negotiations); cf. Lupo v. Wyeth-Ayerst Labs., 4 F. Supp. 2d 642, 649 (E.D. Tex. 1997) (noting that a court may infer personal knowledge from the affidavit itself but that a court need not make such an inference when other evidence indicates that the affiant did not or could not have personal knowledge of the subject matter).
Crawford stated at the beginning of her affidavit that she had been an employee of the Columbus Wyndham as a front desk clerk and PBX (communications) operator. In paragraph 2 of her affidavit, Crawford stated that after the Front Office Manager was terminated, there were rumors about the continued employment of the remaining employees. Defendant argues that this statement is based on rumors and not
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personal knowledge. However, the Court reads paragraph 2 to be Crawford’s observation that there were rumors after Davis was terminated. Accordingly, the Court declines to strike Paragraph 2. In paragraph 4 of her affidavit, Crawford stated that “it was noticed” that individuals who were darker, older, and overweight were terminated or moved out of public view. Defendant essentially argues that because Crawford used passive voice to make this statement, it is clear that Crawford lacks personal knowledge required to support this statement. The Court disagrees and reads the statement to be Crawford’s own observation of what happened after the takeover. Therefore, the Court declines to strike paragraph 4. In paragraph 6 of her affidavit, Crawford posited that her own dismissal from the Wyndham was “an effort to make a full sweep so that there would be no one left at the front from the change in management.” Defendant contends that this statement is unsupported by underlying facts and is therefore an inadmissible opinion. The Court reads this statement to be Crawford’s opinion rationally based on her perceptions as a front desk clerk following the VHS takeover and therefore declines to strike paragraph 6. Defendant may, of course, seek to exclude these statements on other grounds from future consideration in this case, but for purposes of Defendant’s summary judgment motion, the Court finds that Crawford’s affidavit should not be stricken.
Brown’s affidavit does not provide a neat context statement regarding her employment at the Columbus Wyndham as Crawford’s does, but it does reflect the fact that Brown worked at the Wyndham as a front desk employee. In paragraph 3 of her affidavit, Brown stated that “Amanda [Fox] was completely doing the job of Front Desk Manager the same as Sandra Davis had done.” Brown did not assert that she had
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knowledge of Fox’s role other than Fox’s supervision of the front desk, and there is no evidence that it was within her capacity to observe whether Fox handled the additional responsibilities of the Front Office Manager. Therefore, the Court cannot conclude that Brown had personal knowledge that Fox was performing all of the functions of the Front Office Manager. Accordingly, this statement in paragraph 3 is stricken. Brown also stated in paragraph 3 that she is very soft spoken and that her customer service skills do not dictate that she would raise her voice to anyone. Defendant seeks to strike this statement as a conclusion without any underlying factual support. However, Brown obviously has knowledge of her own personal style and work habits, and she may testify about them. This statement in paragraph 3 is therefore not stricken. Finally, in the first sentence of paragraph 4, Brown stated that there “were other caucasian [sic] employees that had been written up, conselled [sic] and taken off the front desk but never let go or any other form of reprimand.” Brown does not provide any information as to how this information came to her knowledge; without more facts, the Court cannot conclude that Brown’s employment as a front desk clerk would have enabled her to acquire information about how other front desk employees were disciplined. Therefore, this sentence is stricken. In the second sentence of paragraph 4, Brown stated that “one person in particular was constantly rude to a guest, even on the phone, but remained employed with the hotel.” Certainly, it was within Brown’s capacity to observe the customer service skills of her coworker, to form an opinion based on this observation that the coworker was rude, and observe that the coworker continued to be employed by the hotel despite the transgressions which Brown perceived. Accordingly, this
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sentence is not stricken. Again, Defendant may still seek to exclude the remaining statements on other grounds from future consideration in this case, but for purposes of Defendant’s Motion for Summary Judgment, these statements are not stricken. 3. The Summary Judgment Motions
Summary judgment may be granted only when “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 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). If the evidence, viewed in the light most favorable to the nonmoving party, would not permit a reasonable jury to find for the nonmovant, summary judgment may be granted in favor of the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). It is not enough to have some alleged factual dispute; there must be a genuine issue of material fact to defeat a motion for summary judgment. Anderson, 477 U.S. at 247-48. A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party—there must be more than “some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); accord Anderson, 477 U.S. at 248.
Plaintiffs in this case assert discrimination claims under Title VII, § 1981, and the ADEA. Under Title VII and the ADEA, an employer can be held liable for age and race discrimination under any one of three theories: individual disparate treatment, systemic disparate
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treatment, or disparate impact discrimination. Smith v. City of Jackson, 125 S. Ct. 1536 (2005); Cooper v. Southern Co., 390 F.3d 695, 723 (11th Cir. 2004); Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1227 (11th Cir. 2001). Both disparate treatment theories require the plaintiffs to prove discriminatory intent, while the disparate impact theory does not. Cooper, 390 F.3d at 723. Both disparate treatment theories are also available under § 1981, but the disparate impact theory is not. Section 1981 only provides a cause of action for claims involving intentional discrimination. Id. Plaintiffs in this case argue that they have raised genuine issues of material fact as to whether Defendant engaged in systemic disparate treatment, individual disparate treatment, and disparate impact on the basis of race and age. Defendant contends that it did not discriminate against Plaintiffs on the basis of race or age and asserts that there is no genuine issue of material fact as to Plaintiffs’ claims. Each type of claim is addressed below.
a. Plaintiffs Have No Disparate Impact Claims Plaintiffs suggest—fleetingly and without much discussion—that they have presented evidence of disparate impact in the termination of African American and older employees. Disparate impact discrimination exists when a facially neutral employment policy adversely affects one group more than another and cannot be justified. See 42 U.S.C. 2000e-2(k) (2005). Under a disparate impact theory, the plaintiff need not prove intent to discriminate, but the plaintiff must identify specific facially neutral employment practices that are allegedly responsible for statistical disparities. EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000). Here, Plaintiffs contend that Defendant terminated Plaintiffs as part of its
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policy to achieve the “right look” for the hotel—and that African American and older employees did not have the “right look.” This alleged policy is clearly a facially discriminatory policy and does not give rise to a claim under a disparate impact theory. See Joe’s Stone Crab, 220 F.3d at 1278. The appropriate avenue for addressing a facially discriminatory policy allegedly responsible for statistical disparities is a systemic disparate treatment claim, discussed infra. For these reasons, the Court grants Defendant’s motions for summary judgment with regard to any disparate impact claims asserted by Plaintiffs.
b. Systemic Disparate Treatment Plaintiffs allege that Defendant regularly and purposefully treated African American and older employees less favorably than younger and white employees—who had the “right look.” The disparity in treatment allegedly occurred in Defendant’s termination decisions immediately following Defendant’s takeover of the Wyndham. The ultimate factual issue is whether there was a pattern or practice of such disparate treatment and, if so, whether these differences were based upon race and age. See Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 (1977). In pattern and practice cases, the plaintiff cannot prevail simply by showing “the mere occurrence of isolated or accidental or sporadic discriminatory acts”—the plaintiff must prove that discrimination is the employer’s “standard operating procedure.” Joe’s Stone Crab, 220 F.3d at 1286-87. In other words, the plaintiff must prove that the decision-maker chose his course of action at least in part because of its adverse effects on an identifiable group of employees. Id. at 1273. This is typically done through a combination of statistics and anecdotes. Id. at 1274, 1287.
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The function of the statistics—which show the fact of differences in treatment—is to rule out chance as the cause of disparity. Generally, plaintiffs seeking to introduce statistical evidence in a pattern and practice case submit a statistical analysis comparing the impacted group to similarly situated employees; such analyses are generally generated by statisticians, labor economists, or other appropriate experts. See, e.g., Cooper, 390 F.3d at 716-18 (evaluating statistical evidence consisting of expert reports by statisticians); cf., e.g., Joe’s Stone Crab, 220 F.3d at 1270-72 (reviewing district court’s analysis of the statistical evidence, which had been completed by experts in statistics and labor economics). To be sufficient to show a pattern or practice of discrimination, a statistical analysis must be based on good data and a reliable methodology; it must be based upon a sample size large enough to yield a meaningful conclusion; and it must show that there was a statistically significant disparity in the treatment of the impacted group. See Cooper, 390 F.3d at 726 (finding expert’s analysis to be insufficient because it was based on unreliable methodology and was not meaningfully tailored to compare similarly situated employees); Williams v. Tallahassee Motors, Inc., 607 F.2d 689, 693 (5th Cir. 1979) (noting that a “‘small universe’ to which statistics relate may preclude significant comparisons”).
Plaintiffs contend that, following the VHS takeover, there was a disparity in discharge rates of older and African American employees as compared to discharge rates of younger and white employees.3 In
3 A somewhat confusing matter in this case is that the impacted “group” is not uniform and thus not easily characterized as an “identifiable group” to be compared to employees outside the group as contemplated in Joe’s Stone
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support of this contention, Plaintiffs have not presented a statistical analysis. Rather, Plaintiffs have presented what they purport to be before-and-after snapshots of two segments of the hotel’s staff: front desk staff and managers. In addition to the snapshots, Plaintiffs argue that Defendant admitted to terminating a large number of older and African American employees but replacing them with mostly non-protected individuals—and that the Plaintiffs’ calculations based on this alleged admission prove systemic disparate treatment in the discharge of older and African American employees.
i. The Management Snapshots According to the “before” management snapshot, there were ten managers before the VHS takeover—two African American managers over 40, one African American manager under 40, three white managers over forty, and four white managers under 40. The “after” snapshot is a list of retained managers plus a list of managers added after November 1, 2002 but before January 27, 2003 (indeed, Plaintiff Amick is still listed as “currently” employed by Defendant). According to the “after” snapshot, eight managers were retained after the VHS takeover, including one African American manager over 40, three white managers over 40 and four white managers under 40, and ten new
Crab, 220 F.3d at 1273. Plaintiffs attempt to show that there was disparate treatment of older and African American employees by lumping together employees who do not all share both of these characteristics and by grouping together managers and non-managers. Plaintiffs themselves do not form a uniform group. Only Brown, a front desk clerk, and Davis, a manager, claim that they were terminated because of race and age; Amick claims that she was terminated because of her age, and Duncan claims that she was terminated because of her race. It might have been appropriate to split Plaintiffs’ impacted “group” into several separate sub-groups to determine whether there was systematic disparate treatment of older employees only, African American employees only, older and African American employees only, or older or African American employees. Plaintiffs have not, however, presented such an analysis.
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managers were hired after the VHS takeover—all of them white, and seven of them under 40. The “after” snapshot does not contain a list of managers hired or terminated after January 27, 2003, although Plaintiffs did in their briefs add one additional terminated employee to the headcount: Plaintiff Amick. Because it appears that Plaintiffs’ statistics based upon the management headcount focus on the terminations and hires immediately following the VHS takeover, this omission is not critical. (See Pls.’ Resp. to Def.’s Mot. for Summ. J. at 18 [hereinafter Pls.’ Resp.].)
There are at least two major factual problems with Plaintiffs’ “after” management headcount. First, Defendant has presented uncontradicted evidence that two African American employees over the age of 40, Ruby Hicks and Eric Bellamy, were promoted to management positions reporting directly to the Rooms Executive after VHS takeover. Neither Hicks nor Bellamy was listed on the headcount. Second, Defendant has also presented uncontradicted evidence that two of the new managers who Plaintiffs represented to be under 40, David Burris and Joe Buentello, were over the age of 40 when they were hired.
From the inaccurate before-and-after headcount, Plaintiffs conducted a rough statistical analysis and concluded that “[t]he percentage of managers hired as replacement [sic] for the African American managers who were initially terminated . . . is [2] vs. 0 or 0%.” (Pls.’ Resp. at 18.) This analysis does not factor in age. Thus, Plaintiffs are attempting to make out a case of systemic disparate treatment on the basis of race only by comparing the number of African American managers prior to the VHS takeover with the number of African American managers hired after the VHS takeover.
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Plaintiffs’ evidence does not support this method of analyzing the data. Although Plaintiffs emphasize that most of the new managers were white, for Defendant’s hiring practices to be probative, there must be evidence of a significant statistical disparity between the proportion of the impacted group in the available labor pool and the proportion of impacted group hired. See, e.g., Joe’s Stone Crab, 220 F.3d at 1274. Plaintiffs have presented neither evidence regarding the available labor pool nor a statistical analysis regarding Defendant’s hiring practices. Even if Plaintiffs had sufficient evidence to pursue this method of analyzing the data, Plaintiffs have plugged in the wrong numbers. It is true that two African American managers were terminated, but it is also true that one African American manager was retained, and two were added.
Plaintiffs are attempting to show that there was systemic disparate treatment in the discharge of African American managers. One way to show such disparate treatment would be to show that there was a statistically significant disparity between the termination rates of African American managers and white managers. Plaintiffs have offered no evidence of the expected termination rates as compared to the actual termination rates. And though Plaintiffs posit that the “applicable standard deviations are totally one sided and virtually off the charts,” they have offered no evidence of what the standard deviation from the expected outcome is and no evidence that the variance from the expected termination rate is outside the standard deviation. Furthermore, there is no evidence that the sample size is large enough to make meaningful statistical comparisons. For these reasons, Plaintiffs have failed to offer sufficient evidence to show
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systematic disparate treatment in the discharge of older and African American managers.
ii. The Front Desk Snapshots According to the “before” front desk snapshot, there were seven front desk clerks—five African American clerks and two white clerks. The “after” snapshot is a list of retained front desk employees plus a list of front desk employees added after November 1, 2002 but before January 27, 2003 (indeed, Glenda Crawford is still listed as “currently” employed by Defendant). According to the “after” front desk snapshot, four of the front desk clerks—three African American clerks and one white clerk—were terminated shortly after the VHS takeover, and one African American front desk clerk, Glenda Crawford, was terminated at some later point. VHS retained two clerks, one white and one African American. VHS hired four new front desk clerks between November 1, 2002 and January 27, 2003. All four new clerks were white. The “after” snapshot does not contain a list of front desk clerks hired or terminated after January 27, 2003, although Plaintiffs did in their briefs add one additional terminated employee to the headcount: Glenda Crawford. From the before-and-after headcount, Plaintiffs conducted a rough statistical analysis and concluded that “[t]he number front desk employees [sic] hired as initial replacements for African-American front desk employees is 4 vs. 0 or 0%.” (Pls.’ Resp. at 18.) This analysis does not factor in age. Thus, Plaintiffs are attempting to make a case of systemic disparate treatment on the basis of race only by comparing the number of African American clerks prior to the VHS takeover with the number of African American clerks hired after the VHS takeover. This analytical method has the same problems as
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Plaintiffs’ analysis of the management headcount: Plaintiffs have not presented evidence regarding the available labor pool, and they have not presented a statistical analysis regarding Defendant’s hiring practices.
To prevail, Plaintiffs must show that there was systemic disparate treatment in the discharge of African American front desk employees. As discussed with regard to the managers supra, one way to show such disparate treatment would be to show that there was a statistically significant disparity between the termination rates of African American front desk clerks and white clerks. Plaintiffs have offered no evidence of the expected termination rates as compared to the actual termination rates. They have offered no evidence of what the standard deviation from the expected outcome is, no evidence that the variance from the expected termination rate is outside the standard deviation, and no evidence that the sample size is large enough to make meaningful statistical comparisons. For these reasons, Plaintiffs have failed to offer sufficient evidence to show systematic disparate treatment in the discharge of older and African American front desk clerks.
iii. The Alleged Admission Plaintiffs also assert that Defendant in its pleadings admitted to 1) terminating fifteen employees over the age of 40 and replacing only five of them with individuals over 40 and 2) terminating forty African American employees and replacing only seventeen of them with African American individuals. They argue that the ratios (17:40, or
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42.5%, 2:15,4 or 13.3%) show a significant statistical disparity in the discharge of older and African American employees. There are three major flaws in this argument. First, it is not clear that Defendant made the admission at all. Defendant referred to these numbers as Plaintiffs’ “own record analysis” and used them to make the point that there was no evidence supporting the “numerosity” requirement for a Rule 23 class. Second, the purported admission does not differentiate between job types and is not a comparison of similarly situated employees even though company-wide data cannot be used to identify discrimination within specific segments of the workforce. See Cooper, 390 F.3d at 726. Third, as discussed supra, for Defendant’s hiring practices to be probative, there must be evidence of a significant statistical disparity between the proportion of the impacted group in the available labor pool and the proportion of impacted group hired, see, e.g., Joe’s Stone Crab, 220 F.3d at 1274, and Plaintiff has presented neither evidence regarding the available labor pool nor a statistical analysis regarding Defendant’s hiring practices. For these reasons, the purported admission is insufficient to show a significant statistical disparity in the discharge of older and African American employees.
iv. Conclusion: The Pattern and Practice Claims Fail It is Plaintiffs’ burden to produce evidence of a statistically significant disparity in the discharge of older and African American employees. As discussed above, Plaintiffs in this case have asked the
4 Plaintiffs argue that the three new executives—all of whom were over 40—should be excluded from the analysis. Because Plaintiffs’ analysis of the “admission” is seriously flawed for other reasons, it is immaterial whether this exclusion was appropriate.
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Court to sift through their raw, questionable, and incomplete data and declare that this burden is satisfied. However, Plaintiffs’ evidence is an insufficient basis for a proper statistical analysis regarding whether a statistically significant disparity existed. Furthermore, even if Plaintiffs’ evidence did lend itself to a proper statistical analysis, it is not the Court’s function to serve as Plaintiffs’ expert statistician. The Court’s function is to determine whether there is a genuine issue of material fact as to whether there was systemic disparate treatment. Although the absence of valid statistical evidence is not necessarily fatal to Plaintiffs’ claims, see Hipp, 252 F.3d at 1228, Plaintiffs have presented only vague allegations of a policy of terminating older and African American employees. They did not prove that race and age discrimination were Defendant’s “standard operating procedure” in making its termination decisions. The Court concludes that there is no genuine issue of material fact on this issue and that no reasonable fact finder could conclude from Plaintiffs’ evidence that systemic disparate treatment on the basis of race and age occurred.5 For these reasons, the Court grants Defendant’s motions for summary judgment with regard to Plaintiffs’ systemic disparate treatment claims.
c. Individual Disparate Treatment. In addition to the systemic disparate treatment claims, each Plaintiff contends that Defendant intentionally discriminated against her because of race and/or age. All four Plaintiffs rely upon
5 Because Plaintiffs’ statistical evidence is insufficient to support Plaintiffs’ pattern and practice claims, it is also insufficient to support any collective action ADEA claim by Brown and Davis—such a claim depends upon the same statistical evidence.
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circumstantial evidence to prove their claims. When a plaintiff offers circumstantial evidence to prove a Title VII, ADEA or § 1981 claim,6 the claim is analyzed under the analytical framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1331 (11th Cir. 1998). Under this framework, the plaintiff must establish a prima facie case of discrimination; this creates a rebuttable presumption that the employer unlawfully discriminated against the employee because it eliminates the most common reasons for the challenged employment action. McDonnell Douglas, 411 U.S. at 802; Texas Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981); Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254; Chapman, 229 F.3d at 1024. The employer’s burden at this point is a burden of production—the employer must “clearly set forth, through the introduction of admissible evidence, the reasons for the [challenged employment action].” Burdine, 450 U.S. at 255. If the employer meets its burden of production, the presumption raised by the prima facie case is rebutted. To avoid summary judgment, the plaintiff must come forward with evidence, including evidence establishing the prima facie case, sufficient to create a “genuine issue of material fact regarding
6 Title VII and § 1981 “have the same requirements of proof and use the same analytical framework.” Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998); see also Cooper, 390 F.3d at 724 n.16. The Eleventh Circuit also uses the McDonnell-Douglas framework for ADEA cases. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).
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whether each of the defendant employer’s articulated reasons” is pretext for discrimination. Chapman, 229 F.3d at 1024, 1037; see also Burdine, 450 U.S. at 255-256. Although a plaintiff cannot prove that the proffered reasons were pretext for discrimination simply by showing that the reasons were false, rejection of the employer’s proffered reasons will in some cases permit an inference of discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”).
i. Plaintiff Davis Plaintiff Davis brought claims under Title VII, § 1981 and the ADEA, alleging discriminatory discharge. Defendant discharged Davis as part of a restructuring implemented immediately following the takeover. According to Defendant, Davis’s position of Front Office Manager was eliminated in the reorganization. Davis contends that the Front Office Manager position was not eliminated and that she can prove that she was discriminated against because of her age and race by showing that she was 1) a member of a protected class, 2) qualified for the position in question, 3) terminated, and 4) replaced by someone outside the protected class. See Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002). Defendant has presented uncontradicted evidence that it did eliminate the Front Office Manager position. Defendant’s evidence shows that Amanda Fox, the new Front Desk Supervisor, assumed some—but not all—of Davis’s responsibilities. While Fox did assume responsibility for supervising the front desk staff, she did not
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assume responsibility for communications, security, the bell staff, or reservations. After the reorganization, those functions were overseen by Rooms Executive Bruce Raines and performed by either Raines or various supervisors. Davis has presented only her own conclusory statement that Fox took over her day-to-day responsibilities, and she admitted in her deposition that she had several responsibilities besides supervising the front desk staff. Davis’s statement is not sufficient to refute Defendant’s evidence that the Front Office Manager position was eliminated. Accordingly, the Court finds that the Front Office Manager position was eliminated. Cf. Minton v. Am. Bankers Ins. Group, No. 02-12942, 2003 WL 21303330, at *1 (11th Cir. 2003).
Because her position was eliminated as part of a reduction in force, to make a prima facie case of discrimination, Davis must 1) show that she was a member of a protected class, 2) show that she was qualified for her current position or to assume another position for which she applied, and 3) present evidence by which a fact finder could reasonably conclude that the employer intended to discriminate against her on the basis of race and age in making the decision. Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344 (11th Cir. 2003); Standard, 161 F.3d at 1329.
It is undisputed that Davis meets prong one of the prima facie case. Because her position was eliminated, the next question is whether Davis applied for another position for which she was qualified. Given her experience as a front desk clerk, PM Supervisor, reservations agent, Reservations Manager, and the Front Office Manager, Davis possessed the background and skills for a variety of jobs in the front desk and reservations departments. The question is
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whether she applied for any of these positions. In her application, Davis applied for a “Guest Service Manager” position. Also, at the time of her discharge, Davis asked if there was anything else at the hotel she could do—that is, she expressed a general interest in any job.
An employee is generally not considered to have “applied for” a job unless she submits an application or expresses interest in a specific position. See Smith, 352 F.3d at 1345. In Smith—unlike the instant case—the plaintiff knew of various vacant positions within the company prior to her termination in a reduction in force, but she did not apply for them or express an interest in any specific job. Id. at 1344. In this case, Defendant asserts that Davis should have been aware of available positions at the hotel because it advertised about them in a local newspaper. However, the exhibit submitted by Defendant shows that the ad ran on November 3, 2002—several days after Davis completed her VHS application—and stated only that Defendant was accepting applications for a vague list of positions, including “Front Desk.”
Davis did not know about the impending reorganization when she completed her VHS application. She did not know that there would be a new “Front Desk Supervisor” position; there was no way she could specifically apply for it in her application. It would strain reason to require Davis to apply for a position she did not know existed. Cf. Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1132 (11th Cir. 1984)(refusing to require plaintiff to apply for a job when he had no way of knowing about its availability). Accordingly, the Court finds that Davis’s application for the “Guest Service Manager” position, a
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job with some (though not all) of the Front Desk Supervisor responsibilities, suffices to meet prong two of the prima facie case.
To satisfy prong three of the prima facie case, Davis may point to direct evidence of discriminatory intent, or she may show that though she was qualified for and applied for an available position, the employer offered the job to someone outside the protected class. See Jameson v. Arrow Co., 75 F.3d 1528, 1532 (11th Cir. 1996). Davis has not pointed to any direct evidence of discriminatory intent. Nor does the evidence establish that the Front Desk Supervisor position, a job for which Davis was qualified, was offered to someone outside the protected class—at least as part of the initial restructuring. Defendant has presented uncontradicted evidence that it selected Michael Sabbs, an African American man, to be the Front Desk Supervisor. The Court is unable to locate any evidence in the record regarding how old Sabbs was at the time of his selection. Because Davis has the burden to establish a prima facie case, the burden is on her to point to some evidence that would enable a reasonable fact finder to determine that she was replaced by someone outside the protected class. See, e.g., Chapman, 229 F.3d at 1024. It is undisputed that Sabbs is African American. Davis has not pointed to any evidence that Sabbs was under 40 when he was selected to be Front Desk Supervisor. Therefore, Davis has failed to meet prong three of the prima facie case for discrimination in the elimination of a position as part of a reduction in force.
That is not, however, the end of Davis’s case. Two days after Sabbs was selected for the Front Desk Supervisor position, he was terminated for failing his drug test. Defendant needed to fill the position quickly, and there is no indication that the position was
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advertised or that additional applications were accepted for it. Defendant did not look to Davis, who had performed the Front Desk Supervisor job in addition to her other responsibilities and had, two days before Sabbs’s termination, expressed an interest in any position at the hotel. Instead, Defendant brought in Amanda Fox, a 24 year-old white woman, from another VHS hotel. Davis contends that Defendant discriminated against her on the basis of race and age by refusing to hire her to fill the Front Desk Supervisor job and by hiring Fox instead.
To make a prima facie case for failure to hire, Davis must prove that 1) she was a member of a protected class, 2) she was qualified for the open position for which she applied, 3) she was rejected despite her qualifications, and 4) Defendant hired someone outside the protected class to fill the position. See Chapman, 229 F.3d at 1025; see also McDonnell Douglas, 411 U.S. at 802. It is undisputed that Davis was a member of a protected class and qualified to be Front Desk Supervisor. The Front Desk Supervisor position came open when Sabbs was terminated, and it is undisputed that Defendant selected Fox, a young white woman, to fill the job. The only remaining question is whether Davis applied for the job.
Davis completed an application for “Guest Services Manager” on October 31, 2003. Then, when she was terminated on November 4, 2003, Davis expressed an interest in any job at the hotel. Based on this, the Court concludes that Davis has presented sufficient evidence to allow a fact finder to conclude that she applied for the Front Desk Supervisor position, which became open only two days after Davis was terminated. The Court does not suggest that an employer is required to consider individuals whose applications have become stale. In
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other words, an employer is not obligated to keep applications on file indefinitely after a position is filled and then use those applications as a pool for future hires. However, where, as here, a position becomes vacant almost immediately after it is filled and an employer must fill it on very short notice, a fact finder could reasonably determine that the original applications are still fresh. For these reasons, the Court concludes that Davis has made a prima facie case of race and age discrimination for failure to hire.
Because Davis has established a prima facie case of race and age discrimination, the burden shifts to Defendant to articulate a legitimate nondiscriminatory reason for its decision. Defendant has failed to do so. Although Defendant has articulated a legitimate nondiscriminatory reason for the elimination of Davis’s position (the reorganization), it has not provided a legitimate nondiscriminatory reason for its failure to rehire Davis. Defendant’s argument with regard to Davis’s failure to hire claim is that Davis did not apply for the job or that the job was not open when she applied for it. There is no alternative argument that, even if Davis did make a prima facie case for failure to hire, Defendant has a legitimate nondiscriminatory reason for its decision. Defendant contends that after Sabbs was terminated, it needed to fill the Front Desk Supervisor position on short notice. However, Defendant offered no reason why it selected to move Fox from another VHS hotel rather than rehire Davis to return to a job she had done, in addition to her other responsibilities, until two days before. Therefore, the Court finds that Defendant has failed to meet its burden of articulating a legitimate nondiscriminatory reason for failing to rehire Davis.
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Defendant’s Motion for Summary Judgment with regard to Davis’s individual disparate treatment claims is therefore denied.
ii. Plaintiff Duncan Plaintiff Duncan brought claims under Title VII and § 1981, alleging discriminatory discharge. Defendant contends that it discharged Duncan as part of a reorganization implemented immediately following the takeover. According to Defendant, Duncan’s position of Executive Housekeeper was eliminated in the reorganization. Like Davis, Duncan contends that her position was not eliminated. However, Defendant has presented evidence that it did eliminate the Executive Housekeeper Position—this evidence shows that Veronica Williams, an African American woman over the age of 40, was transferred to the new Housekeeping Manager position and that she assumed some, but not all, of the Executive Housekeeper’s functions. Williams did take over the role of supervising the housekeeping staff, but she did not assume responsibility for several other functions of the Executive Housekeeper, including oversight of the laundry. That function was given to Ruby Hicks, an African American woman over the age of 40. Duncan presented only her own conclusory statement that her day-to-day responsibilities were taken by Williams, though she did state in her deposition that Williams did not have responsibility over the laundry. Duncan’s statement is not sufficient to refute Defendant’s evidence that the position was eliminated. Accordingly, the Court finds that the Executive Housekeeper position was eliminated. Cf. Minton, 2003 WL 21303330, at *1. Because her position was eliminated as part of a reduction in force, to make a prima facie case of discrimination, Duncan must 1) show that she was a member of a protected class, 2) show that she
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was qualified for her current position or to assume another position for which she applied, and 3) present evidence by which a fact finder could reasonably conclude that the employer intended to discriminate against her on the basis of race in making the decision. Standard, 161 F.3d at 1329.
It is undisputed that Duncan was a member of a protected class, and there is evidence showing that Duncan applied for a “Housekeeping Manager” position (exactly the title of the new position established in the reorganization). Therefore, the Court finds that Duncan has met prongs one and two of the prima facie case. However, Duncan has not presented evidence by which a fact finder could reasonably conclude that Defendant intended to discriminate against her on the basis of race in making the decision. She has not pointed to direct evidence, and she has not shown that Defendant offered the job to someone outside the protected class. See Jameson, 75 F.3d at 1532. Duncan has not presented any other evidence that indicates intentional discrimination on the basis of race. The evidence establishes that Defendant selected Williams, an African American woman over the age of 40 who had worked for the hotel for several years, to be the Housekeeping Manager. Therefore, the Court finds that Duncan has failed to present a prima facie case of discrimination. Accordingly, the Court grants Defendant’s summary judgment motion as to Duncan’s claims.
iii. Plaintiff Brown Plaintiff Brown brought claims under Title VII, § 1981 and the ADEA, alleging discriminatory discharge due to violation of work rules. Essentially, Brown contends that Defendant fired her for certain infractions but retained white employees who committed the
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same infractions. A plaintiff makes out a prima facie case of discriminatory discharge due to violation of work rules by establishing that she was 1) a member of a protected class, 2) qualified for the job, 3) terminated, and 4) replaced by someone outside the protected class. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181 (11th Cir. 1984) (citing Krieg v. Paul Revere Life Ins. Co., 718 F.2d 998, 999 (11th Cir. 1983)); see also Cooper-Houston v. Southern Ry. Co., 37 F.3d 604, 605 (11th Cir. 1994). In this case, it is not disputed that Brown was a member of a protected class, terminated from her job, and replaced by a younger white front desk clerk. Defendant contends that Brown was not qualified to be a front desk clerk because she violated two of Defendant’s work policies, thus falling short of several “essential functions” of a front desk clerk. Defendant further contends that even if Brown was minimally qualified to be a front desk clerk, it had a legitimate nondiscriminatory reason for terminating her: she violated two work rules. Brown argues that she did not violate Defendant’s policies and was therefore qualified for her job. She also asserts that Defendant’s proffered reason for terminating her is pretextual because white employees violated the policies but were not terminated—that she and employees outside the protected class were “involved in or accused of the same or similar conduct and [were] disciplined in different ways.” Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir. 1998) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)).
In determining whether a plaintiff is qualified for the position, the Eleventh Circuit focuses on the plaintiff’s skills and background, addressing questions about an employee’s on-the-job performance as part of the second and third steps of the McDonnell Douglas scheme.
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See Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1227 (11th Cir. 1993). The fact that Brown had been a front desk clerk at the Wyndham for at least a year and a half and the fact that VHS hired her to be a front desk clerk after the takeover show that Brown had the skills and background necessary to be a front desk clerk. See id. Though Defendant has introduced evidence that Brown violated certain work policies, the violations do not establish that Brown was unqualified. See id. For this reason, the Court finds that Brown met the prima facie case requirement.
The Court also finds that Defendant met its burden of articulating a legitimate nondiscriminatory reason for terminating Brown. The remaining question is whether Defendant’s proffered reason for terminating Brown was pretextual. To avoid summary judgment, Brown must point to evidence raising a genuine issue of material fact that Defendant’s proffered reason was pretextual; this can be done by showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could find [all the reasons] unworthy of credence.” Standard, 161 F.3d 1318 at 1331-32. In this case, such a genuine issue of material fact does not exist.
Defendant has offered evidence showing that Plemmons, who made the decision to terminate Brown, received reports that Brown violated two separate VHS policies. First, Plemmons was informed that Brown accepted a personal check from a guest as payment for room charges. Second, Plemmons was informed that a guest had lodged a serious complaint about Brown’s professionalism and customer service. After
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considering both reports together, Plemmons decided to terminate Brown.
In challenging Defendant’s proffered reason of the guest’s complaint against her, Brown contends that 1) she did not engage in the behavior resulting in the complaint, 2) the complaint was actually against Olivia O’Brien, a white front desk clerk but seized upon by VHS as a reason to terminate Brown, 3) even if there were complaints about Brown, similarly situated young white employees were not terminated for similar conduct. First, it is irrelevant whether Brown thought she was rude and unhelpful to a guest. The hotel received a credible complaint from a guest regarding Brown’s conduct. In making the complaint, the guest listed a number of specific reasons why she was dissatisfied and upset by Brown’s conduct. Second, there is no evidence that the complaint in question was made against O’Brien or any other white front desk clerk rather than Brown—not even Brown’s deposition testimony. In fact, the evidence overwhelmingly indicates that the complaint in question was against Brown. In her affidavit, the guest, an African American woman, specifically pointed to Brown as the clerk whose conduct was so objectionable to her and stated that she was “very hesitant to complain the job performance of minorities.” Third, Brown has not pointed to evidence sufficient to create a genuine issue of material fact as to whether similarly situated white employees were treated more favorably. It is true that discrimination could be inferred if Brown identified young white employees who engaged in “nearly identical” conduct but were treated more favorably than she was. See Nix, 738 F.2d at 1186. However, Brown has not pointed to evidence of a single instance where the hotel received a guest complaint about a white employee but did not discharge that
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employee. In sum, Brown has failed to show that Defendant’s proffered
reason of the customer complaint was pretext for discrimination.
Because Brown was required to show that each of Defendant’s proffered
reasons is pretext for discrimination in order to prevail, see
Chapman, 229 F.3d at 1024, 1037, and because she has failed to do so,
summary judgment in favor of Defendant on Brown’s individual claims is appropriate.7 Accordingly, the Court grants Defendant’s summary
judgment motion as to Brown’s individual disparate treatment claims.
7Brown has also not shown that the personal check violation was pretextual. Sufficient evidence exists supporting Defendant’s contention that it had a policy forbidding acceptance of personal checks for payment of room charges. Brown certainly has not pointed to any evidence that would support her bare allegation that Defendant’s contention as to the existence of a personal check policy was pretextual. As to whether Brown violated the policy, the only evidence on this matter is VHS’s: Plemmons stated that Brown accepted a personal check. Brown did not state that she did not accept a personal check—she stated that she did not remember doing so. This is not enough to create a genuine issue of material fact as to whether she accepted the check. Brown also argues that even if there was a policy forbidding acceptance of personal checks and even if she accepted a personal check in violation of that policy, Amanda Fox, a young white employee, accepted a personal check for payment of room charges but was not fired. Again, intentional discrimination can be inferred if two employees—one in the protected class and one outside the protected class—engage in “nearly identical” conduct but the protected class employee is disciplined more harshly. See Nix, 738 F.2d at 1186. In support of her contention that Fox engaged in nearly identical conduct, Brown points to the statement of Glenda Crawford, a former front desk employee who overheard Rooms Executive Bruce Raines chastising Fox for accepting a check. Fox was not fired for this alleged infraction. Crawford’s statement does not establish that Fox and Brown were similarly situated; the statement does not indicate that the check in question was a personal check, and it does not indicate that the check was accepted for payment of room charges. Furthermore, even if Fox did accept a personal check for room charges, Plemmons made the decision to terminate Brown because of the check policy violation and because of the customer complaint against her. There is no evidence of customer complaints against Fox—therefore, it cannot be said that the two women engaged in “nearly identical” conduct.
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iv. Plaintiff Amick Plaintiff Amick brought claims under the ADEA, alleging discriminatory discharge. A plaintiff makes out a prima facie case of discriminatory discharge on the basis of age by establishing that she was 1) a member of a protected class, 2) qualified for the job, 3) terminated, and 4) replaced by someone outside the protected class. See Kelliher, 313 F.3d at 1275; see also McDonnell Douglas, 411 U.S. at 802. It is undisputed that Amick was a member of a protected class and terminated from her job. Defendant contends that Amick fails to meet prongs two and four. First, Defendant argues that Amick fails to make out a prima facie case because she was not qualified for the position. In support of this contention, Defendant points to a series of performance problems Amick had after the VHS takeover. As discussed above, the Eleventh Circuit focuses on a plaintiff’s skills and background in determining whether the plaintiff was qualified for the position in question. Clark, 990 F.2d at 1227. Questions about an employee’s job performance are addressed as part of the second and third steps of the McDonnell Douglas scheme. Amick had worked for the hotel’s restaurant off and on since 1985, working her way up to Restaurant Manager twice. She served as Restaurant Manager for a number of years. She was kept on after the VHS takeover. Therefore, it is clear that Amick had the skills and background required to be the Restaurant Manager. See id. For this reason, the Court finds that Amick meets prong two of the prima facie case requirement. Next, Defendant argues that Amick fails to make out a prima facie case because she was not replaced with younger employees. Defendant has presented evidence that it eliminated the Restaurant Manager
39

Case 4:04-cv-00020-CDL Document 85 Filed 04/25/05 Page 40 of 42
position and that Food and Beverage Director Franco Brady took over management of the restaurant. After Amick’s termination, the restaurant supervisors, including two young white women who were hired after the VHS takeover, reported directly to Brady. Amick has not presented any evidence other than her own conclusory statements that the two young women took over her day to day responsibilities. Therefore, the Court cannot find that she was replaced by someone outside the protected class, and prong four of the prima facie case is not present.
Even if Amick had made out a prima facie case, the Court finds that Defendant has articulated a legitimate nondiscriminatory reason for terminating Amick: Plemmons’s good faith belief that Amick’s performance was unsatisfactory. See Clark, 990 F.2d at 1228 (noting that an employer’s good faith belief that the employee’s performance is unsatisfactory is a legitimate nondiscriminatory reason for termination). The Court further finds that Amick has not pointed to evidence showing that the proffered reason is pretext for discrimination. See id.
In support of its contention that the hotel’s executives believed that Amick’s performance was unsatisfactory, Defendant submitted a series of memoranda from Brady to Amick regarding recurring problems in the restaurant, including understaffing of the restaurant, excessive use of overtime by the restaurant staff (due to understaffing), high turnover of restaurant staff, lack of training for restaurant staff, improper accounting procedures, and issues with food quality. On April 25, 2003, Brady issued a written warning to Amick in the form of an Employee Corrective Counseling Form, and he met with Amick to discuss the problems; the warning focused on
40

Case 4:04-cv-00020-CDL Document 85 Filed 04/25/05 Page 41 of 42
problems with shift staffing and understaffing in general. According to Brady and Plemmons, the problems addressed in the memos and the warning were Amick’s responsibility, and they believed that her performance was deficient because she failed to correct the problems.
Although Amick in her briefs and her counter statement of material facts argues that the problems attributed to her were not her responsibility and were therefore pretext for discrimination, the evidence suggests that most, if not all, of the problems were Amick’s responsibility. Amick acknowledged in her deposition that the restaurant was constantly understaffed, that the understaffing led to overtime problems, and that Brady continually asked her to hire more staff. She indicated that one of her responsibilities was to hire restaurant staff.8 She also pointed to five memos that contained problems she considered to be her responsibility and her fault. These memos covered staffing and overtime; accounting problems; and particular problems with food quality, including a breakfast buffet where there was a live roach in the bread basket. According to Amick, these problems—even the ones she admitted were her fault—did not warrant her termination. However, it is well established that where, as here, the proffered reason is one that might motivate a reasonable
8Amick’s testimony regarding her responsibilities is somewhat inconsistent, but it does indicate that hiring was one of her responsibilities—even though she tried to deny it. When she wrote out her job description for Brady, Amick included hiring and staffing among her responsibilities. She stated at one point during the deposition that hiring was part of her job but stated at other points that hiring was not part of her job and that it was a job for the Human Resources Department. Amick acknowledged throughout the deposition that Brady asked her repeatedly to hire more staff for the restaurant; she acknowledged that it was her responsibility to interview prospective employees and to work with Human Resources to address her staffing needs; she stated that she took on the job of hiring restaurant staff; and she acknowledged that though Brady expected her to go out and recruit new employees, she did not do such recruiting.
41

Case 4:04-cv-00020-CDL Document 85 Filed 04/25/05 Page 42 of 42
employer to terminate an employee, the plaintiff cannot establish pretext merely by questioning the wisdom of the employer’s reason. See Chapman, 229 F.3d at 1030. Accordingly, the Court finds that Amick has not presented sufficient evidence for a fact finder to conclude that Defendant’s reason was pretextual. For these reasons, the Court grants Defendant’s Motion for Summary Judgment as to Amick’s claims.
CONCLUSION The Court finds that Defendant’s 12(c) motions are moot. The Court grants Defendant’s Motion to Strike as to Brown’s affidavit testimony regarding Amanda Fox’s job responsibilities and as to Brown’s affidavit testimony regarding discipline of Caucasian employees in general. The Court denies the remainder of Defendant’s Motion to Strike. The Court grants Defendant’s Motion for Summary Judgment as to Plaintiffs’ disparate impact and systemic disparate treatment claims. The Court also grants Defendant’s motions for summary judgment as to the individual disparate treatment claims of Plaintiffs Duncan, Brown, and Amick. The Court denies Defendant’s Motion for Summary Judgment as to the individual disparate treatment claims of Plaintiff Davis, which are the only claims remaining in this case.
IT IS SO ORDERED, this 25th day of April, 2005.
S/Clay D. Land CLAY D. LAND
UNITED STATES DISTRICT JUDGE
42

 
 Case 4:04-cv-00020-CDL Document 119 Filed 01/11/07 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION

Sandra J. Davis,

*

Plaintiff vs.

* Case No. 4:04-CV-20 (CDL)
*

Valley Hospitality Services, LLC,*

Defendant

*

J U D G M E N T

Pursuant to the Mandate issued by the Eleventh Circuit Court of Appeals on January 3, 2007, JUDGMENT is hereby entered in favor of Defendant against Plaintiff Davis. Defendant is entitled to recover costs of this action.
This 8th day of January, 2007. Gregory J. Leonard, Clerk S/ Terrie L. Smith Deputy Clerk

Approved by:

S/Clay D. Land Clay D. Land United States District Judge

 
 Case 4:04-cv-00020-CDL Document 120 Filed 07/13/07 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION

SANDRA J. DAVIS; VELINA B. DUNCAN; ROSE M. BROWN; and ANNETTE L. AMICK,

CIVIL ACTION NO. 4:04-CV-20-2 (CDL)

Plaintiffs,

Vs.

VALLEY HOSPITALITY SERVICES, LLC.

Defendant.

SETTLEMENT AND RELEASE OF COSTS AND RELEASE OF SUPERSEDEAS APPEAL BOND

Defendant Valley Hospitality, through its undersigned counsel,

acknowledges receipt of $3,500.00 as payment in full and settlement of all

costs in the above styled case paid on behalf of the Defendants and hereby

releases the Supersedeas Appeal Bond as satisfied.

ThisZ.Sn-\ctay of June, 2007.
Chorey, Taylor & Feil The Lenox Building, Suite 1700 3399 Peachtree Road, N.E. Atlanta, GA 30326-1148

~:M
Georgia Bar No. 775075 Attorney for Defendant Valley Hospitality Services, Inc.

1

 
 Case 4:04-cv-00020-CDL Document 117-2 Filed 01/04/07 Page 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILLD
FOR THE ELEVENTH CIRCUI1 L.S. COLRT OF APPFALS
ELLVI:NTH CIRCuiT
NOV 30. 200(1

No. 05-13670

TI lOMAS K. KAliN ('LERK

D. C. Docket No. 04-00020-CV-CDL-4

SANDRA J. DAVIS,

Plaintiff-Appellee,

VELMA B. DUNCAN, et al,

versus VALLEY HOSPITALITY SERVICES, LLC,

Plaintiffs, Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Georgia
(November 30, 2006) Before BIRCH, PRYOR and FAY, Circuit Judges. PER CURIAM:

Case 4:04-cv-00020-CDL Document 117-2 Filed 01/04/07 Page 2 of 7
Defendant Valley Hospitality Services, LLC. ("Valley Hospitality") appeals the interlocutory order denying its motion for summary judgment against plaintiff Sandra J. Davis in her employment discrimination action. 1
Davis, an over 40-year-old African-American woman, was employed as Front Office Manager at the Wyndham hotel in Columbus, Georgia. During her employment, the hotel had eight department managers, including the Front Office Manager, who reported to the General Manager. As Front Office Manager, Davis managed seven to ten employees, and supervised five areas including the bell staff, communications, front desk, reservations, and security. In October 2002, Valley Hospitality was chosen to take over management of the hotel and began planning toward that end. The Wyndham's acting general manager held a meeting with the hotel managers in late October 2002, advised them of the anticipated changes in management organization, and asked each employee to complete a new application for employment and submit to a drug test. On 31 October 2002, Davis completed an application for employment for the position of "Guest Service Manager." Exh. 66 at Exh. 4.
1 This appeal was consolidated with Nos. 05-13107 and 05-13342, appeals filed by plaintiffs Velma B. Duncan, Rosa Brown, and Annette Amick from orders which, respectively, denied their motion for class certification and granted Valley Hospitality summary judgment on their employment discrimination claims. In the separate opinion issued in those appeals, we vacated the consolidation of those appeals with this case.
2

Case 4:04-cv-00020-CDL Document 117-2 Filed 01/04/07 Page 3 of 7
On 1 November 2002, Valley Hospitality took over full control of the Wyndham. It reorganized the hotel management into three functional areas: sales, finance, and general hotel operations. The general hotel operations were organized into two departments which were supervised by executives: the Rooms Department and the Food and Beverage Department. The Rooms Department Executive was given supervision of a newly created of Front Desk Supervisor; the staff previously assigned to the Front Office Manager, including the bell staff, communications, reservations, and security; and other staff, including housekeeping, laundry, and maintenance. The Front Desk Supervisor oversaw only the front desk and its staff, lost supervision of numerous positions previously assigned to the former Front Office Manager, and earned less than the former Front Office Manager. The newly created positions, including "front desk clerks," were advertised in the local newspaper on 3 November 2002. Exh. 66 at 103-04, Exh. 7.
On 4 November 2002, Davis was terminated because her position was eliminated. Immediately after being advised of her termination, she asked whether there were any other positions that she could do at the hotel. She was told "no." Exh. 66 at 71-72.
The Front Desk Supervisor position was filled on 4 November 2002 with an African-American male. He was dismissed on 6 November when his drug test
3

Case 4:04-cv-00020-CDL Document 117-2 Filed 01/04/07 Page 4 of 7
carne back positive, and was replaced by a 24-year-old white female who transferred from another Valley Hospitality property.
On 19 November 2002, Davis filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). In her charge, she stated that she was "discharged from [her] position as Front Desk Manager/Supervisor" despite assurances that she would remain in her position following a change of ownership. R1-31, Exh. A. She alleged that she was "discriminated against ... based on [her] race (Black)." Id.
Davis subsequently brought an action against Valley Hospitality under 42 U.S.C. § 1981 and 29 U.S.C. §§ 623, alleging that she was discharged on the basis of her race and age, respectively. She requested job reinstatement and monetary damages. She argued that her position was not truly eliminated but was merely renamed and that the position was filled with a younger white woman. Valley Hospitality moved for summary judgment, and explained that all of the hotel's employees were required to complete a new employment application during the reorganization. Although Davis stated that she wanted another position at the hotel, she also answered "[n]o" when asked if she wanted to be transferred to a different position within the hotel. Exh. 66 at 107-08. Valley Hospitality responded that Davis failed to apply for any advertised position with the hotel after
4

Case 4:04-cv-00020-CDL Document 117-2 Filed 01/04/07 Page 5 of 7
her position was terminated. The district court denied Valley Hospitality's motion for summary judgment
as to Davis's individual disparate treatment claim. It found that Davis had established a prima facie case of both race and age discrimination and that, although Valley Hospitality had articulated a legitimate nondiscriminatory reason for eliminating her position, it had not provided a legitimate nondiscriminatory reason for not rehiring her. The court reasoned that Davis's 31 October application for Guest Services Manager constituted an application for the Front Desk Supervisor position because she had no way of applying for the newly created Front Desk Supervisor position when she completed her application. The district court denied Valley Hospitality's motion for reconsideration, and certified the denial of summary judgment as to Davis's claims for interlocutory appeal pursuant to 28 U.S.C. § l292(b).
On appeal, Valley Hospitality argues that the district court improperly found that it had discriminated against Davis by failing to hire her for the Front Desk Supervisor position because she never asserted a failure to hire claim in the case. It maintains that her case is based on solely on her termination. It notes that she conceded this point in her response to Valley Hospitality's motion for reconsideration when she stated:
5

Case 4:04-cv-00020-CDL Document 117-2 Filed 01/04/07 Page 6 of 7
The employment action that discriminatorily affected [Davis] was the discharge of her from employment with [Valley Hospitality] .
This is not a failure to hire case, but as [Davis] correctly alleged in the Amend[ed] Complaint that [she] was discharged [based on her race and age]. R4-89 at 2. In employment discrimination actions, the plaintiff's judicial complaint is limited to "the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Mulhall v. Advance Sec., Inc., 19 F.3d 586,589 n.8 (11th Cir. 1994). The complaint must provide "'a short and plain statement of the claim' that will give the defendant fair notice of ... the ... claim ... and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957) (citing Fed. R. Civ. P. 8(a)). Allegations which fail to provide such notice are appropriately subject to summary judgment. Swierkiewicz v. Sorema N.A., 534 U.S. 506,514, 122 S. Ct. 992,998 (2002). To assert a failure to hire claim, the plaintiff must show, inter alia, that she applied for a job for which she was qualified and which was available at the time of her termination. Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344-45 (11th Cir. 2003) (per curiam). A plaintiff who has knowledge of an advertised position, but fails to formally apply for it, is unable to show that she applied for the position.
6

Case 4:04-cv-00020-CDL Document 117-2 Filed 01/04/07 Page 7 of 7
Id. at 1345-46. "A general interest in being rehired without submitting an application is not enough to establish a prima facie case of age discrimination when the defendant-employer has publicized an open position."2 Id. at 1345.
A claim of wrongful discharge is not the equivalent of a claim of failure to hire. Davis's EEOC wrongful discharge claim and the resulting investigation would not trigger an inquiry into Valley Hospitality's hiring policies. She did not apply for an advertised position after Valley Hospitality had reorganized the management positions and she was terminated. Further, Davis expressly stated that she was not raising a failure to hire claim. Accordingly, the district court erred by finding that a rehiring claim was raised and by denying Valley Hospitality's motion for summary judgment regarding her discharge.
The district court's denial of Valley Hospitality's motion for summary judgment on Davis's claims is, therefore, REVERSED and the matter s REMANDED for further proceedings consistent with this opinion.
2 Although we have noted that the lack of an application for a specific job would not defeat a failure to hire claim where the plaintiff applied for "work" but was initially told that no full-time positions were available, we explained that the plaintiff learned of the possibility of a position "by word of mouth" and that "[t]he defendant did not advertise its job openings." Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129, 1132 (11th Cir. 1984). We commented that the plaintiff"was not required to do more than indicate as best he could that he would take any available job" and "could not be expected to ask for a [specific] position when he did not know one was available." Id. at 1132.
7

 
 Case 4:04-cv-00020-CDL Document 117-3 Filed 01/04/07 Page 1 of 1

05-13107, 05-13342, 05-13670

vs

Case No

~-~<ts.~,?l<..'"l<;"!::!_~,~

foEc f~ ~in~~Sif• Valley Hos(;litality Services LLC

Appellee

~ . riLED -----~= ·-·-o~11 ·~S.;:.(O~~UYR~TJHOCFIARPCPUEITALS

Fed.R.App.P. 39 and lith Cir. R. 39-1 (see reverse) govern costs which are taxable in thi

motion for leave to file out of time is required for a Bill of Costs not timely received.

'""" ond

I of Com,

INSTRUCTIONS

L..

... • ~...."'J'·~-.-.......,.,.,,P.r:~·~

In the grid below, multiply the number of original pages of each document by the total n mber of docu~lJ9ftP~~ calculate the otal

number of copies reproduced. Multiply this number by the cost per copy ( $.15 per cop~ for "In-House", up~[

y for comme cia!

reproduction, supported by receipts) showing the product as costs requested.

DOCUMENT

Repro. Method (Mark One)
In-House Comm•

Appellant's Brief

Record Excerpts

Appellee's Brief

X

Reply Brief

Appellee's Response to Jurisdictional Question

X

X Response of Appellee in Opposition
to Appellants' Motion to Consolidate

l Appeals 13107 & 13342 &Appellee's
Interlocutory Appea1reproduction was done commercially, receipt(s) must be attached.

No. of Original
Pages
67
10 15

Total No. Documents Reproduced

Total No. of Copies

10 (8)

670

10

100

10

150

TOTAL

COSTS REQUESTED

CT. USE ONLY COSTS
ALLOWED

100.5

$8o.4o

15.00

22.50

$

138.00

REQUESTED

-0-** -0-** $ $80.40
ALLOWED

I hereby swear or affirm that the costs claimed were actually and necessarily incurred or performed in this appeal a d that I have se of Costs on counsel/parties of record.

Date Signed: 12-13-0fi'------------

FOR COURT USE ONLY

:•m:z;;; and are payable directly to ______.;:;A::.~P::.aP::.:e:::l::;;l:e=e--------------------------JAN 0 3 2007

Issued o n : · - - - - - - - - - - - - - - -

Deputy Clerk

**Not payable in our court, only briefs/record ex.

MISC-12
(Rev 12/98)

 
 Case 4:04-cv-00020-CDL Document 116-2 Filed 12/14/06 Page 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED
FOR THE ELEVENTH CIRCUI1 U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 13,2006

No. 05-13107 and 05-13342

THOMAS K. KAHN
CLERK

D. C. Docket No. 04-00020-CV-CDL-4

SANDRA J. DAVIS,

Plaintiff,

VELMA B. DUNCAN, ROSA BROWN, ANNETTE AMICK,

versus

Plaintiffs-Appellants,

VALLEY HOSPITALITY SERVICES, LLC,

Defendant-Appellee.

Appeals from the United States District Court for the Middle District of Georgia
(November 13, 2006) Before BIRCH, PRYOR and FAY, Circuit Judges. PER CURIAM:

Case 4:04-cv-00020-CDL Document 116-2 Filed 12/14/06 Page 2 of 7
Plaintiffs Velma B. Duncan, Rosa Brown, and Anette Amick appeal the district court's orders in their employment discrimination action denying class certification, No. 05-13107, and granting defendant Valley Hospitality Services, LLC ("Valley Hospitality") summary judgment, No. 05-13342. 1
Duncan, Brown, and Amick were employed and fired by a hotel in Columbus, Georgia, owned by Valley Hospitality. Following their terminations, each filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Duncan alleged that she was fired because of her race, Brown alleged that she was fired because of her race and age, and Amick alleged that she was fired because ofher age. R1-31, Exh. A. None ofthe EEOC charges sought to assert claims on behalf of other employees or alleged that Valley Hospitality's discrimination was class-wide. After Duncan and Brown had filed their charges but before Amick had filed her charge, Duncan and Brown's attorney sent a letter to the EEOC alleging that Valley Hospitality engaged in class-wide race and age discrimination and seeking "to amend their EEOC charges ... for all other similarly situated employees." R2-33, Exh. A. The parties, however, took
1• These appeals were consolidated with No. 05-13670, in which defendant Valley Hospitality Services, LLC appealed the district court's interlocutory order denying its motion for summary judgment against plaintiff Sandra J. Davis. We hereby vacate the consolidation of these appeals. This opinion deals only with Nos. 05-13107 and 05-13342. A separate opinion will be issued as to No. 05-13670.
2

Case 4:04-cv-00020-CDL Document 116-2 Filed 12/14/06 Page 3 of 7
no further action to amend their EEOC charges. After the EEOC issued right to sue letters, Duncan, Brown, and Amick filed their complaint.
The district court correctly granted Valley Hospitality's motion to dismiss the class-wide discrimination charges because the letter from Duncan and Brown's attorney did not comply with Title VII's charge and amendment requirements. The letter did not constitute a valid EEOC charge of discrimination because it was not verified and there was no effort made to amend it to include a verification. See Vason v. City of Montgomery, Ala., 240 F.3d 905, 907 (I lth Cir. 2001) (per curiam). The letter did not validly amend the previously filed charge because it clearly sought to add new separate charges of class-wide discrimination instead of clarifying or amplifying the original allegations. See 29 C.F.R. § 1601.12(b); Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500, 502-03 (7th Cir. 1994). The charge, therefore, failed to give the EEOC or Valley Hospitality adequate notice that an investigation of class-wide discrimination was relevant to Duncan and Brown's individual claims. See Grayson v. K Mart Corp., 79 F.3d 1086, 1107 (11th Cir. 1996); Sanchez v. Standard Brands. Inc., 431 F.2d 455, 466 (5th Cir. 1979).
In a thorough and well-reasoned opinion, the district court also correctly granted Valley Hospitality's motion for summary judgment. The district court
3

Case 4:04-cv-00020-CDL Document 116-2 Filed 12/14/06 Page 4 of 7
dismissed Duncan, Brown, and Amick's disparate impact claims because the policy leading to their asserted claim did not give rise to a disparate impact. Duncan, Brown, and Amick argued that they were adversely affected by the hotel's policy regarding the "right look." This policy was not facially neutral, but facially discriminatory, and its impact was properly reviewed under Duncan, Brown and Amick's systemic disparate treatment claim. See EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1278 (11th Cir. 2000).
The district court correctly found that summary judgment was appropriate as to both the systemic and individual disparate impact claims of Duncan, Brown, and Amick. Duncan, Brown, and Amick claimed that Valley Hospitality's policy regarding a "right look" for employees treated African American and older employees less favorably and resulted in a great~r discharge rate to them than that of white and younger employees. A plaintiff seeking to show an employer's pattern and practice of discrimination or disparate treatment based upon race and age must prove, typically through statistics and anecdotes, that the course of action was chosen at least in part because of its adverse effect on an identifiable group. Joe's Stone Crab, 220 F.3d at 1273-74, 1286-87. Duncan, Brown, and Amick failed to offer sufficient evidence to show that Valley Hospitality engaged in systemic disparate treatment as to positions in management or at the front desk.
4

Case 4:04-cv-00020-CDL Document 116-2 Filed 12/14/06 Page 5 of 7
They offered no statistical evidence, and the uncontradicted evidence submitted by Valley Hospitality reflected that, although two African American managers were terminated, one African American manager was retained, and two over 40-year-old African Americans were promoted to management. They failed to offer sufficient evidence to show disparate treatment in the discharge of older and African American front desk employees.
Duncan, Brown, and Amick also failed on their individual disparate treatment cases. To establish a prima facie case of disparate treatment, the plaintiff must show (1) membership in a protected group, (2) subjection to an adverse employment action, (3) qualification for a position, and (4) placement in the position of an individual outside of a protected group. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en bane). Duncan was a member of a protected class, was subjected to an adverse employment action, and was qualified for the position for which she applied. She was unable to show, however, that Valley Hospitality offered the position that she applied for to someone outside of the protected class or any other evidence of intentional discrimination on the basis of race. In fact, the evidence showed that the individual selected for the position instead of Duncan was an African American woman over the age of 40 who also qualified for the position.
5

Case 4:04-cv-00020-CDL Document 116-2 Filed 12/14/06 Page 6 of 7
Brown alleged that, while she was fired for certain infractions, white employees who committed the same infractions were retained. Although she established a prima facie case of discriminatory discharge, the evidence supported Valley Hospitality's proffered legitimate nondiscriminatory reasons for her dismissal and Brown failed to produce evidence showing that these reasons were pretextual. See R3-63 at 2; Clark v. Coats & Clark. Inc., 990 F.2d 1217, 1228 (11th Cir. 1993) (plaintiffs "burden of proving pretext ... can be met ... by discrediting the employer's proffered explanation.").
Because the evidence showed that Amick's position was eliminated and she did not show that she was replaced with an individual outside of the protected group, she was unable to establish a prima facie case of discriminatory discharge. To the extent that she did make a prima facie case, she did not show that Valley Hospitality's proffered legitimate nondiscriminatory reason for her discharge was pretextual. The evidence showed that Valley Hospitality was concerned with Amick's performance and counseled her numerous times before her discharge. R3-62, Exh. at 10-13; Exh. 65 at 131-32, 135-46, Exhs. 18, 21, 23, 25. Valley Hospitality's proffered reason for Amick's termination is "one that might motivate a reasonable employer" and we will not consider her arguments as to the wisdom of that reason. Chapman, 229 F.3d at 1030-31.
6

Case 4:04-cv-00020-CDL Document 116-2 Filed 12/14/06 Page 7 of 7
For the reasons stated above, the district court's dismissal of the class-wide discrimination charges and grant of summary judgment on Duncan, Brown, and Amick's systemic and individual disparate treatment claims are
AFFIRMED.
7

 
 s

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 1 of 210

ORIGINAL

:,::':- C,- "; CLEEK'S OFFICE

IN THE UNITED STATES DISTRICT COURT' '::. Atlanta

FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA, DIVISION

AUG 18 lOO~

SANDRA J. DAVIS; VELMA B. DUNCAN; ROSA BROWN,

Plaintiffs,

Vs. VALLEY HOSPITALITY SERVICES, LLC.,
Defendant.

1:03-CV-2462
M H rti. ~~;
- " ..liI_. ~""-)

COMPLAINT

Plaintiffs, Sandra J. Davis ("Davis"), Velma B. Duncan ("Duncan"),

and Rosa Brown ("Brown"), hereinafter referred to as "Plaintiffs", files this

Complaint pursuant to 42 U.S.C. §1981, Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e. et seq., Age Discrimination III

Employment Act, 29 U.S.C. § 621 et seq., and states as follows:

PLAINTIFFS

1.

Plaintiffs Davis, Duncan, and Brown, are all residents within the

Northern District of Georgia.

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 2 of 210
DEFENDANT 2.
The Defendant, Valley Hospitality Services, LLC., (Valley Hospitality) is a Georgia Corporation, having a registered agent within the Northern District of Georgia, J. Edward Sprouse, located at 1043 3rd Ave. Columbus, Georgia and is subject to the jurisdiction of this Court.
JURISDICTION
3.
Jurisdiction for this action is pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq, and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
VENUE 4.
Venue is proper pursuant to 28 U.S.C. §1391 in the United States District Court for the Northern District of Georgia where the Defendant has a registered office, has their principle place of business, may be found and served in the Northern District of Georgia.

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 3 of 210
CAUSE OF ACTION 5.
Plaintiffs were all formerly employed at the Wyndham Hotel in Columbus, Georgia as managers or on the front desk prior to November 4, 2002. Plaintiff Davis had been employed for 15 Yz years and was the front desk manager, Plaintiff Brown had been employed for 1 Yz years and was a front desk employee, and Plaintiff Duncan had been employed for five months and was the housekeeping manager having been recruited by the Wyndham Hotel from Atlanta because of her fifteen years of experience working in housekeeping for hotels.
6. All Plaintiffs are African-American females and Plaintiffs Davis and Brown at the time of their discharge were over forty years of age, and Plaintiff Duncan is now over forty years of age.
7. On November 1, 2002 the Defendant Valley Hospitality acquired the ownership and management of the Wyndham Hotel in Columbus, Georgia and hired the Plaintiffs to continue as employees working in their previous positions at the Wyndham Hotel. At a meeting on October 25, 2002, and again on November 1, 2002 the general manager of the Defendant Valley

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 4 of 210
Hospitality, Brian Plemons, had assured all the managers that everyone of them would keep their positions at the hotel.
8. On November 4, 2003 the owner of Defendant Valley Hospitality, Jack Pezold, at a news conference publicly stated that no employees would lose their jobs as a result of the acquisition of the Wyndham Hotel by the Defendant Valley Hospitality.
9. On the very same day of the news conference, November 4, 2003, the Defendant Valley Hospitality terminated the employment of Plaintiff Davis, front desk manager, on the pretext that her position was being eliminated, but immediately, Amanda Fox, a younger white female assumed the function and title of front desk manager. And on November 4, 2003 Plaintiff Duncan was terminated on the pretext that her position of housekeeping manager was being eliminated, but immediately Veronica Williams, an African- American female, was taken off the front desk as the By-Request Manager and replaced by Stephanie Pezold, a younger white female, and Veronica Williams assumed the function of housekeeping manager.

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 5 of 210
10. The next day on November 5, 2002 the Defendant's rooms executive, Bruce Raines, call in Tamara Stansel and Glenda Crawford who are white young females working on the front desk and told them that they did not have to worry that their jobs were secure because "they had the look that they wanted to have for the front desk."
11. On December 4, 2002 Plaintiff Brown was terminated from employment on the front desk by the Defendants on the pretext that she had accepted a check from a guest for room and tax when the Wyndham Hotel had always had a policy of accepting checks from guests with proper identification which policy she had followed and she had not been told of any change in policy. She was replaced by white younger females working on the front desk.
12. The Defendant Valley Hospitality has engaged in a pattern of discrimination against employing managers and front desk employees who are AfricanAmerican and terminating African-American Managers and front desk employees who are older in favor of hiring white younger managers and front desk employees.

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 6 of 210
13. Plaintiffs Davis and Duncan both filed a Charge of Discrimination with the Equal Employment Opportunity Commission on November 11, 2002 and Plaintiff Brown filed a Charge of Discrimination with the Equal Employment Opportunity Commission on December 31, 2002 charging discrimination based on race in violation of Title VII of the Civil Rights Act of 1964, as amended. Plaintiff Brown also filed a Charge of Discrimination based on her age in violation of the Age Discrimination in Employment Act of 1967.
14. On July 21, 2003 Plaintiffs Davis, Duncan and Brown were sent Notice of Right to Sue letters by the District Director of the Equal Employment Opportunity Commission issued on request of Plaintiffs' attorney because more than 180 days had passed since filing of the Charges of Discrimination. Copies of the Notice of Right to Sue letters are attached hereto and marked "Exhibit A."
15. The discriminatory acts and practices of the Defendant Valley Hospitality have discriminated against the Plaintiffs in terminating their

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 7 of 210

employment because of their race in violation of Title VII, 42 U.S.C. §

2000e (2).

16.

The discriminatory acts and practices of the Defendant Valley

Hospitality have discriminated against the Plaintiffs in terminating their

employment because of their race in violation of the United States

Constitution as protected by 42 U.S.C. § 1981.

17.

The discriminatory acts and practices of the Defendant Valley

Hospitality have discriminated against the Plaintiffs in terminating their

employment because of their age in violation of the Age Discrimination

Employment Act of 1967,29 U.S.C. § 623.

WHEREFORE, Plaintiffs respectfully prays for the relief as follows:

(1)

For a declaration that the acts and practices complained of

herein by the Defendant are in violation of the Civil Rights

Act of 1964, the United States Constitution, 42 U.S.C. §

1981, and the Age Discrimination in Employment Act of

1967,29 U.S.C. § 621 et seq.;

(2)

That the Defendant be ordered to reinstate Plaintiffs to the

positions that they would have occupied prior to the

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 8 of 210

discriminatory conduct of the Defendant, or if the Court

deems reinstatement inappropriate, that the Defendant be

ordered to pay front pay for future loss of earnings;

(3)

That the Plaintiffs be awarded back pay in an amount to

compensate them for their lost wages and benefits;

(4)

That the Defendant be enjoined from conduct in the future

in violation of the Civil Rights Act of 1964, the United

Sates Constitution, 42 U.S.C. § 1981, and the Age

Discrimination in Employment Act of 1967;

(5)

That the Plaintiffs be awarded compensatory, consequential,

punitive and liquidated damages in the maximum amounts

allowed by law;

(6)

That the Defendant be ordered to pay reasonable attorneys

fees and costs;

(7)

That Plaintiffs be awarded prejudgment interest on all

tangible damages from the date of loss;

(8)

That the Plaintiffs be awarded such other and further relief

as they may be entitled to under the laws of Georgia and the

United States;

(9)

That this case be tried by jury.

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 9 of 210

1040 Peachtree Battle Ave. Atlanta, Georgia 30327 Tel. No. 404-352-2144 Fax No. 404-367-0353

eill okes
/
Georgia Bar No. 683600 Attorney for Plaintiffs

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 10 of 210
EXHIBIT A

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 11 of 210

EEOC Form 161-B (10/96)

u.s. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE (ISSUED ON REQUEST)

To: Velina B,. Duncan 2142 Avalon Road Columbus, GA 31901

From:

EEOC, Atlanta District Office 100 Alabama Street, SW, Suite 4R30 Atlanta, GA 30303

On behalfofperson(s) aggrieved whose Identlty IS CONFIDENTIAL (29 CFR § 1601.7(a))

Charge No.
1l0A300535

EEOC Representative
Nancy P. Gilbert, Senior Investigator

Telephone No_
(404) 562-6858

NOTICE TO THE PERSON AGGRIEVED:

(See also the additional information attached to this form.)

Title VII of the Civil Rights Act of 1964 and/or the Americans with Disabilities Act (ADA): This is your Notice of Right to Sue, issued under Title VIi andior the ADA based on the above-numbered charge. It has been issued at your request. Your lawsuit under Title VII or the ADA must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on this charge will be lost_ (The time limit for filing suit based on a state claim may be different.)

x

More than 180 days have passed since the filing of this charge.

Less than 180 days have passed since the filing of this charge, but I have determined that it is unlikely that the EEOC

will be able to complete its administrative processing within 180 days from the filing of the charge.

.

x

The EEOC is terminating its processing of this charge.

The EEOC will continue to process this charge.

Age Discrimination in Employment Act (ADEA): You may sue under the ADEA at any time from 60 days after the charge was filed until 90 days after you receive notice that we have completed action on the charge. In this regard, the paragraph marked below applies to your case:

The EEOC is closing your case. Therefore, your lawsuit under the ADEA must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on the above-numbered charge will be lost.

The EEOC is continuing its handling of your ADEA case. However, if 60 days have passed since the filing of your charge, you may file suit in federal or state court under the ADEA at this time.

Equal Pay Act (EPA): You already have the right to sue under the EPA (filing an EEOC charge is not required.) EPA suits must be brought in federal or state court within 2 years (3 years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years) before you file suit may not be collectible.
py of your court complaint to this office.

Enclosure(s)
cc: Valley Hospitality Wyndham Hotel 800 Front Street Columbus, GA 31901

ice Williams-Kimbrough, District Dire('~r-.--.

JUL 21 2003
(Date Mailed)

Case 4:04-cv-00020-CDL Document 25 Filed 02/05/04 Page 12 of 210

EEOC Fonn 161-B (10/96)

u.s. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE (ISSUED ON REQUEST)

To: Rose M. Brown 836 Pheasant Loop Columbus, GA 31907

From:

EEOC, Atlanta District Office 100 Alabama Street, SW, Suite 4R30 Atlanta, GA 30303

On behalfofperson(s) aggrIeved whose Idenllty IS CONFIDENTIAL (29 CFR § J60I.7(a))

Charge No.
l10A301007

EEOC Representative
Nancy P. Gilbert, Senior Investigator

Telephone No.
(404) 562-6858

NOTICE TO THE PERSON AGGRIEVED:

(See also the additional in/ormation attached to this/arm.)

Titie "vIi oi the Civii Rights Act of 1964 and/or the Americans with Disabiiiti:::; Act (ADA): This is your Notice of Right to S!.le, issued under Title VII and/or the ADA based on the above-numbered charge. It has been issued at your request. Your lawsuit under Title VII or the ADA must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on this charge will be lost. (The time limit for filing suit based on a state claim may be different.)

x

More than 180 days have passed since the filing of this charge.

Less than 180 days have passed since the filing of this charge, but I have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of the charge.

x

The EEOC is terminating its processing of this charge.

The EEOC will continue to process this charge.

Age Discrimination in Employment Act (ADEA): You may sue under the ADEA at any time from 60 days after the charge was filed until 90 days after you receive notice that we have completed action on the charge. In this regard, the paragraph marked below applies to your case:

The EEOC is closing your case. Therefore, your lawsuit under the ADEA must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on the above-numbered charge will be lost.

The EEOC is continuing its handling of your ADEA case. However, if 60 days have passed since the filing of your charge, you may file suit in federal or state court under the ADEA at this time.

Equal Pay Act (EPA): You already have the right to sue under the EPA (filing an EEOC charge is not required.) EPA suits must be brought in federal or state court within 2 years (3 years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 vears (3 years) b~fore you file suit may ii.ot be <:v:1;;;l:/;ilJl.:.
If you file suit based on this charge, plellS<~~ a copy of your court complaint to this office.

On behalf of the Commission

Enclosure(s)

B~iIIiams-Kimbrough, District Dire

JUL 21 Z003
(Date MGlled)

cc: Valley Hospitality Wyndham Hotel 800 Front Street Columbus, GA 31901

 
 Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 1 of 9
U.S. District Court [LIVE AREA] Georgia Middle District (Columbus) CIVIL DOCKET FOR CASE #: 4:04−cv−00020−CDL

CLOSED

Davis, et al v. Valley Services, LLC Assigned to: Judge Clay D. Land Demand: $0 Cause: 42:1981 Job Discrimination (Race) Plaintiff Sandra J. Davis
Plaintiff Velma B. Duncan
Plaintiff Rosa Brown
Plaintiff Annette Amick

Date Filed: 02/05/2004 Date Terminated: 01/11/2007 Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Gerald R. Weber P.O. Box 5391 Atlanta, GA 31107 404−522−0507 Email: wgerryweber@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
McNeill Stokes 1040 Peachtree Battle Avenue Atlanta, GA 30327 404−352−2144 Email: mcstokes@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
McNeill Stokes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
McNeill Stokes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
McNeill Stokes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 2 of 9

V. Defendant Valley Hospitality Services, LLC

represented by Elizabeth Jewelle Johnson 945 East Paces Ferry Road Suite 1500, Resurgens Plaza Atlanta, GA 30326 404−240−4286 Email: ejjohnson@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mairen C. Kelly 945 E. Paces Ferry Road Resurgens Plaza, Suite 1500 Atlanta, GA 30326 404−231−1400 Email: mkelly@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth W. Woodling 191 Peachtree Street, N.E. Suite 3300 Atlanta, GA 30303 404−736−3663 Fax: 404−736−3662 Email: rwoodling@woodlinglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/05/2004
02/05/2004 02/05/2004 02/05/2004 02/05/2004 02/05/2004

# Docket Text
25 Certified copy of transfer order, docket sheet, and Original File Received from Northern District of Georgia, case 03CV2462. File includes: 1 Complaint, 2 Waiver of service, 3 Motion by defendant to transfer case, 4 Answer, 5 Response by plaintiff to 3 motion, 6 Reply by defendant to 3 motion, 7 Supplemental response by plaintiffs to 3 motion, 8 Discovery schedule, 9 Certificate of interested persons, 10 Certificate of interested persons, 11 Discovery schedule, 12 Answers to initial disclosures by plaintiffs, 13 Scheduling order, 14 Motion by plaintiffs to amend complaint, 15 , Response by defendant to 14 motion, 16 Supplemental brief by defendant to 3 motion, 17 Attorney appearance for defendant by attorney Woodling and Kelly, 18 Response by defendant to 14 motion, 19 Motion by defendant for substitution of counsel, 20 Response by plaintiffs to 18 , 21 Certificate of service by plaintiff, 22 Notice of subpoena by defendant, 23 Order granting 19 motion, 24 Order granting 3 motion to transfer to the Middle District of Georgia (tls) (Entered: 02/05/2004)
14 MOTION by Sandra J. Davis, Velma B. Duncan, Rosa Brown to Amend Complaint (tls) (Entered: 02/05/2004)
15 RESPONSE by Valley Services, LLC to [14−1] motion to Amend Complaint (tls) (Entered: 02/05/2004)
18 SUPPLEMENTAL RESPONSE by Valley Services, LLC to [14−1] motion to Amend Complaint (tls) (Entered: 02/05/2004)
20 REPLY by Sandra J. Davis, Velma B. Duncan, Rosa Brown to response to [14−1] motion to Amend Complaint (tls) (Entered: 02/05/2004)
MOTION(S) submitted: submitted [14−1] motion to Amend Complaint; Original case file and motion sent to Judge Clay D. Land (tls) (Entered: 02/05/2004)

Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 3 of 9

02/05/2004 02/09/2004 02/10/2004 02/10/2004 02/10/2004 02/23/2004 02/27/2004 03/11/2004 03/11/2004 03/11/2004 03/24/2004 03/25/2004
03/29/2004 04/12/2004 04/12/2004 04/27/2004
04/27/2004 05/04/2004
05/06/2004 05/24/2004
05/24/2004 06/10/2004
06/21/2004

SUMMONS(ES) issued for Valley Services, LLC (tls) (Entered: 02/05/2004)
Case referred to ARBITRATION (trh) (Entered: 02/09/2004)
26 ORDER granting [14−1] motion to Amend Complaint ( signed by Judge Clay D. Land ) (tls) (Entered: 02/11/2004)
27 AMENDED COMPLAINT amending (Answer due 2/20/04 for Valley Services, LLC ) (tls) (Entered: 02/11/2004)
28 RULES 16 AND 26 ORDER; proposed scheduling/discovery order due on 3/26/04 . ( signed by Judge Clay D. Land ) (tls) (Entered: 02/11/2004)
ARBITRATION LETTER mailed. Parties to opt−out of arbitration by 3/22/04 (trh) (Entered: 02/23/2004)
Case no longer referred to ARBITRATION. (trh) (Entered: 02/27/2004)
30 MOTION by Valley Services, LLC to Dismiss claims Response due by 4/5/04 Reply to Response due by 4/20/04 for [30−1] motion (tls) (Entered: 03/11/2004)
31 MEMORANDUM by Valley Services, LLC in support of [30−1] motion to Dismiss claims (tls) (Entered: 03/11/2004)
29 ANSWER by Valley Services, LLC to amended complaint (tls) (Entered: 03/11/2004)
PROPOSED SCHEDULING/DISCOVERY order received, and forwarded to Judge Land for review (tls) (Entered: 03/24/2004)
32 SCHEDULING/DISCOVERY ORDER executed. Dispositive Motions to be filed by 10/1/04 Discovery to be complete 9/3/04 ; ( signed by Judge Clay D. Land ) (tls) (Entered: 03/25/2004)
33 RESPONSE by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick to [30−1] motion to Dismiss claims (tls) (Entered: 03/29/2004)
34 REPLY by Valley Services, LLC to response to [30−1] motion to Dismiss claims (tls) (Entered: 04/12/2004)
MOTION(S) submitted: submitted [30−1] motion to Dismiss claims; routing slip sent to Judge Clay D. Land (tls) (Entered: 04/12/2004)
35 MOTION by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick to certify class Response due by 5/20/04 Reply to Response due by 6/7/04 for [35−1] motion (tls) Modified on 05/04/2004 (Entered: 04/27/2004)
36 MEMORANDUM by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick in support of [35−1] motion (tls) (Entered: 04/27/2004)
37 ORDER setting brief deadline, staying 35 motion for class certification set Brief deadline to 5/24/04 for parties to file supplemental briefs re: 30 motion to dismiss ( signed by Judge Clay D. Land ) (tls) (Entered: 05/04/2004)
38 CONSENT PROTECTIVE ORDER ( signed by Judge Clay D. Land ) (tls) (Entered: 05/06/2004)
39 SUPPLEMENTAL RESPONSE by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Valley Services, LLC to [30−1] motion to Dismiss claims (tls) (Entered: 05/24/2004)
40 SUPPLEMENTAL RESPONSE by Valley Services, LLC to [30−1] motion to Dismiss claims (tls) (Entered: 05/24/2004)
41 ORDER granting in part, denying in part [30−1] motion to Dismiss claims ( signed by Judge Clay D. Land ) (tls) Additional attachment(s) added on 10/19/2004 (tls, ). (Entered: 06/21/2004)
MOTION(S) submitted: submitted [35−1] motion to certify class; routing slip and motion sent to Judge Clay D. Land (tls) (Entered: 06/21/2004)

Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 4 of 9

06/23/2004 06/24/2004 07/09/2004 07/22/2004 08/11/2004 08/17/2004 09/24/2004
09/24/2004
10/01/2004
10/01/2004 10/01/2004 10/01/2004
10/01/2004 10/01/2004 10/01/2004
10/01/2004 10/01/2004

42 ORDER denying as moot [35−1] motion to certify class ( signed by Judge Clay D. Land ) (tlf) (Entered: 06/23/2004)
43 MOTION by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick for Leave to File interlocutory appeal Response due by 7/19/04 Reply to Response due by 8/3/04 for [44−1] motion (tlf) (Entered: 06/24/2004)
44 RESPONSE by Valley Services, LLC to [43−1] motion for Leave to File interlocutory appeal (tls) Modified on 10/19/2004 (tls, ). (Entered: 07/09/2004)
45 USCA ORDER denying petition for permission to appeal (tls) (Entered: 07/27/2004)
MOTION(S) submitted: submitted [44−1] motion for Leave to File interlocutory appeal; routing slip sent to Judge Clay D. Land (tls) (Entered: 08/11/2004)
46 ORDER denying [43−1] motion for Leave to File interlocutory appeal ( signed by Judge Clay D. Land ) (tls) Modified on 10/19/2004 (tls, ). (Entered: 08/17/2004)
47 MOTION with memorandum in support by Valley Services, LLC to Dismiss claims of Rose Brown Response due by 10/18/04 , Reply to Response due by 11/3/04 for [47−1] motion (tls) Modified on 10/19/2004 (tls, ). (Entered: 09/24/2004)
48 MOTION with memorandum in support by Valley Services, LLC to Dismiss claims of Annette Amick Response due by 10/18/04 , Reply to Response due by 11/3/04 for [48−1] motion (tls) Modified on 10/19/2004 (tls, ). (Entered: 09/24/2004)
49 MOTION for Summary Judgment as to Plaintiff Davis by Valley Hospitality Services, LLC filed by Elizabeth Jewelle Johnson, Mairen C. Kelly, Ruth W. Woodling. Response due by 10/25/2004 Reply due by 11/10/2004. (cmf, ) (Entered: 10/05/2004)
50 MEMORANDUM in Support of 49 MOTION for Summary Judgment as to Plaintiff Davis filed by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
51 STATEMENT OF UNDISPUTED MATERIAL FACTS re 49 MOTION for Summary Judgment as to Plaintiff Davis filed by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
52 MOTION for Summary Judgment as to Plaintiff Duncan by Valley Hospitality Services, LLC filed by Elizabeth Jewelle Johnson, Mairen C. Kelly, Ruth W. Woodling. Response due by 10/25/2004 Reply due by 11/10/2004. (cmf, ) (Entered: 10/05/2004)
53 MEMORANDUM in Support of 52 MOTION for Summary Judgment as to Plaintiff Duncan filed by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
54 STATEMENT OF UNDISPUTED MATERIAL FACTS as to Plaintiff Duncan re 52 MOTION for Summary Judgment filed by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
55 MOTION for Summary Judgment as to Plaintiff Brown by Valley Hospitality Services, LLC filed by Elizabeth Jewelle Johnson, Mairen C. Kelly, Ruth W. Woodling. Response due by 10/25/2004 Reply due by 11/10/2004. (cmf, ) (Entered: 10/05/2004)
56 MEMORANDUM in Support of 55 MOTION for Summary Judgment as to Plaintiff Brown filed by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
57 STATEMENT OF UNDISPUTED MATERIAL FACTS as to Plaintiff Brown re 55 MOTION for Summary Judgment filed by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)

Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 5 of 9

10/01/2004
10/01/2004 10/01/2004 10/01/2004 10/01/2004
10/01/2004
10/01/2004 10/01/2004 10/01/2004 10/01/2004 10/13/2004 10/26/2004
10/26/2004 10/26/2004 10/26/2004 10/26/2004 10/27/2004 11/12/2004

58 MOTION for Summary Judgment as to Plaintiff Amick by Valley Hospitality Services, LLC filed by Elizabeth Jewelle Johnson, Mairen C. Kelly, Ruth W. Woodling. Response due by 10/25/2004 Reply due by 11/10/2004. (cmf, ) (Entered: 10/05/2004)
59 MEMORANDUM in Support of 58 MOTION for Summary Judgment as to Plaintiff Amick filed by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
60 STATEMENT OF UNDISPUTED MATERIAL FACTS as to Plaintiff Amick re 58 MOTION for Summary Judgment filed by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
61 Certification of Need to File Discovery by Valley Hospitality Services, LLC.(cmf, ) (Entered: 10/05/2004)
62 AFFIDAVIT of Brian Plemmons re 55 MOTION for Summary Judgment, 49 MOTION for Summary Judgment, 58 MOTION for Summary Judgment, 52 MOTION for Summary Judgment by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
63 AFFIDAVIT of Lisa Lyons−Ward re 55 MOTION for Summary Judgment, 49 MOTION for Summary Judgment, 58 MOTION for Summary Judgment, 52 MOTION for Summary Judgment by Valley Hospitality Services, LLC. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/05/2004)
64 DEPOSITION of Rose M. Brown taken on 3/5/2004. Court Reporter: Leita J. Seaborn by Valley Hospitality Services, LLC.(cmf, ) (Entered: 10/05/2004)
65 DEPOSITION of Annette L. Amick taken on 3/16/04. Court Reporter: Leita Seaborn by Valley Hospitality Services, LLC.(cmf, ) (Entered: 10/05/2004)
66 DEPOSITION of Sandra Jean Davis taken on 3/3/04. Court Reporter: Leita J. Seaborn by Valley Hospitality Services, LLC.(cmf, ) (Entered: 10/05/2004)
67 DEPOSITION of Velina B. Duncan taken on 3/10/04. Court Reporter: Nayivis Cunill by Valley Hospitality Services, LLC.(cmf, ) (Entered: 10/05/2004)
68 RESPONSE to Motion re 47 Motion to Dismiss Plaintiff Amick and 48 motion to Dismiss Plaintiff Brown of Defendant filed by Plaintiffs Annette Amick, Rosa Brown. (cmf, ) Modified on 10/19/2004 (tls, ). (Entered: 10/13/2004)
69 RESPONSE to Motion re 55 MOTION for Summary Judgment, 49 MOTION for Summary Judgment, 58 MOTION for Summary Judgment, 52 MOTION for Summary Judgment filed by Annette Amick, Rosa Brown, Sandra J. Davis, Velma B. Duncan. (cmf, ) (Entered: 10/26/2004)
70 COUNTER STATEMENT OF UNDISPUTED MATERIAL FACTS re 58 MOTION for Summary Judgment filed by Annette Amick. (cmf, ) (Entered: 10/26/2004)
71 COUNTER STATEMENT OF UNDISPUTED MATERIAL FACTS re 55 MOTION for Summary Judgment filed by Rosa Brown. (cmf, ) (Entered: 10/26/2004)
72 COUNTER STATEMENT OF UNDISPUTED MATERIAL FACTS re 52 MOTION for Summary Judgment filed by Velma B. Duncan. (cmf, ) (Entered: 10/26/2004)
73 COUNTER STATEMENT OF UNDISPUTED MATERIAL FACTS re 49 MOTION for Summary Judgment filed by Sandra J. Davis. (cmf, ) (Entered: 10/26/2004)
74 REPLY to Response to Motion re 47 Motion to Dismiss, 48 Motion to Dismiss filed by Valley Hospitality Services, LLC. (Johnson, Elizabeth) (Entered: 10/27/2004)
75 MOTION to Strike by Valley Hospitality Services, LLC filed by Elizabeth Jewelle Johnson. Response to Motion due by 12/6/2004 Reply to Response to Motion due by 12/22/2004. (Johnson, Elizabeth) (Entered: 11/12/2004)

Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 6 of 9

11/12/2004 11/12/2004 11/28/2004 11/28/2004 11/30/2004 11/30/2004
12/13/2004 04/14/2005
04/14/2005 04/15/2005 04/25/2005
05/09/2005
05/17/2005 05/17/2005

76 REPLY to Response to Motion re 55 MOTION for Summary Judgment, 49 MOTION for Summary Judgment, 58 MOTION for Summary Judgment, 52 MOTION for Summary Judgment filed by Valley Hospitality Services, LLC. (Johnson, Elizabeth) (Entered: 11/12/2004)
77 REPLY to Response to Motion re 55 MOTION for Summary Judgment, 49 MOTION for Summary Judgment, 58 MOTION for Summary Judgment, 52 MOTION for Summary Judgment filed by Valley Hospitality Services, LLC. (Johnson, Elizabeth) (Entered: 11/12/2004)
78 MOTION for Leave to File Excess Pages by Annette Amick, Rosa Brown, Sandra J. Davis, Velma B. Duncan filed by McNeill Stokes. (Stokes, McNeill) (Entered: 11/28/2004)
79 RESPONSE to Motion re 75 MOTION to Strike filed by Annette Amick, Rosa Brown, Sandra J. Davis, Velma B. Duncan. (Stokes, McNeill) (Entered: 11/28/2004)
80 This is a text only entry; no document issued. ORDER granting 78 Motion for Leave to File Excess Pages . Signed by Judge Clay D. Land on November 30, 2004. (Land, Clay) (Entered: 11/30/2004)
CERTIFICATE OF SERVICE − I certify that on this date I have mailed by United States Postal Service a copy of 80 Order on Motion for Leave to File Excess Pages including any attachments filed with this document to all non−CM/ECF participants as indicated on the Notice of Electronic Filing. By Carolyn H. Fryer, Deputy Clerk. (cmf, ) (Entered: 11/30/2004)
81 REPLY to Response to Motion re 75 MOTION to Strike filed by Valley Hospitality Services, LLC. (Johnson, Elizabeth) (Entered: 12/13/2004)
82 MOTION for Leave to File Supplemental Response of Plaintiff's to Defendant's Motions for Summary Judgment by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick filed by McNeill Stokes. Response to Motion due by 5/9/2005 Reply to Response to Motion due by 5/24/2005. (Stokes, McNeill) (Entered: 04/14/2005)
83 SURREPLY filed by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick re 55 MOTION for Summary Judgment, 49 MOTION for Summary Judgment, 58 MOTION for Summary Judgment, 52 MOTION for Summary Judgment (Stokes, McNeill) (Entered: 04/14/2005)
84 This is a text only entry; no document issued. ORDER granting 82 Motion for Leave to File surreply brief. Surreply brief previously filed as document 83 . Signed by Judge Clay D. Land on 04/15/2005. (pgs, ) (Entered: 04/15/2005)
85 ORDER denying 47 Motion to Dismiss, denying 48 Motion to Dismiss, granting in part and denying in part 49 Motion for Summary Judgment, granting 52 Motion for Summary Judgment, granting 55 Motion for Summary Judgment, granting 58 Motion for Summary Judgment, granting in part and denying in part 75 Motion to Strike. Signed by Judge Clay D. Land on 4/25/05. (tls, ) (Entered: 04/25/2005)
86 MOTION for Reconsideration re 85 Order on Motion to Dismiss,, Order on Motion for Summary Judgment,,,, Order on Motion to Strike,,,,,,, by Valley Hospitality Services, LLC filed by Elizabeth Jewelle Johnson. Response to Motion due by 5/23/2005 (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Johnson, Elizabeth) (Entered: 05/09/2005)
87 MOTION for Entry of Judgment under Rule 54(b) by Velma B. Duncan, Rosa Brown, Annette Amick filed by McNeill Stokes. Response to Motion due by 6/9/2005 Reply to Response to Motion due by 6/27/2005. (Stokes, McNeill) (Entered: 05/17/2005)
88 NOTICE OF APPEAL as to 85 Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Strike, by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick. Transcript Information Form due by 6/2/2005. (Stokes, McNeill) (Entered: 05/17/2005)

Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 7 of 9

05/18/2005 05/19/2005 05/23/2005 05/25/2005 05/25/2005 05/31/2005 06/03/2005
06/06/2005 06/06/2005 06/10/2005 06/14/2005 06/15/2005
06/15/2005 06/20/2005 06/24/2005
07/11/2005 07/14/2005
07/15/2005

Remark: Mailed transcript order information form to plaintiff's attorney with a note reminding him the filing fee of $255.00 had not yet been paid (tlf). (Entered: 05/18/2005)
89 RESPONSE filed by Sandra J. Davis re 86 MOTION for Reconsideration (Stokes, McNeill) (Entered: 05/19/2005)
90 REPLY to Response filed by Valley Hospitality Services, LLC re 86 MOTION for Reconsideration (Woodling, Ruth) (Entered: 05/23/2005)
91 RESPONSE filed by Valley Hospitality Services, LLC re 87 MOTION for Entry of Judgment under Rule 54(b) (Johnson, Elizabeth) (Entered: 05/25/2005)
92 TRANSCRIPT INFORMATION FORM by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick. re 88 Notice of Appeal, NO TRANSCRIPTS ORDERED. (tls, ) (Entered: 05/27/2005)
93 ORDER denying 86 Motion for Reconsideration, granting motion for certificate of immediate appeal, and granting 87 Motion for Entry of Judgment under Rule 54(b). Signed by Judge Clay D. Land on 5/31/05. (tls, ) (Entered: 05/31/2005)
94 Letter of Transmittal re 88 Notice of Appeal. Certified Copy of Notice of Appeal, Docket Sheet, and Order mailed to USCA. NOTICE: A Civil Appeal Statement must be filed with the Court of Appeals. A copy of this form may be obtained from the District Clerk's Office or the district court internet site (www.gamd.uscourts.gov). (tls, ) (Entered: 06/03/2005)
95 JUDGMENT entered pursuant to Rule 54(b); Judgment in favor of Defendant against Plaintiffs. (tls, ) (Entered: 06/06/2005)
USCA Appeal Fees received May 19, 2005 $ 255.00 receipt number 402259 re 88 Notice of Appeal, filed by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick (tlf). (Entered: 06/06/2005)
96 USCA Case Number 05−13107JJ re 88 Notice of Appeal, filed by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick. (tls, ) (Entered: 06/10/2005)
97 NOTICE OF APPEAL as to 95 Judgment by Velma B. Duncan, Rosa Brown, Annette Amick. Transcript Information Form due by 6/30/2005. (Stokes, McNeill) (Entered: 06/14/2005)
98 Letter of Transmittal re 97 Second Notice of Appeal. Certified Copy of Notice of Appeal, Docket Sheet, Order and Judgment mailed to USCA. NOTICE: A Civil Appeal Statement must be filed with the Court of Appeals. A copy of this form may be obtained from the District Clerk's Office or the district court internet site (www.gamd.uscourts.gov). (tls, ) (Entered: 06/15/2005)
Appeal fee for 97 notice of appeal not received. (tls, ) (Entered: 06/15/2005)
USCA Appeal Fees received $ 255.00; receipt number 402296 re 97 Notice of Appeal filed by Velma B. Duncan, Rosa Brown, Annette Amick (tlf). (Entered: 06/20/2005)
99 BILL OF COSTS by Valley Hospitality Services, LLC. Response to Bill of Costs due by 7/18/2005 (Attachments: # 1 Supplement Fees of Court Reporter# 2 Supplement Fees for Exemplification and Copies)(Woodling, Ruth) (Entered: 06/24/2005)
100 USCA ORDER granting permission to appeal. (tls, ) (Entered: 07/11/2005)
101 NOTICE OF APPEAL re: Davis as to 85 Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion to Strike, by Valley Hospitality Services, LLC. Transcript Information Form due by 8/1/2005. (Johnson, Elizabeth) (Entered: 07/14/2005)
102 Letter of Transmittal re 101 Notice of Appeal. Certified Copy of Notice of Appeal, Docket Sheet, Order and Judgment mailed to USCA. NOTICE: A Civil Appeal Statement must be filed with the Court of Appeals. A copy of this form may be obtained from the District Clerk's Office or the district court internet site (www.gamd.uscourts.gov). (tls, ) (Entered: 07/15/2005)

Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 8 of 9

07/15/2005 07/15/2005 07/20/2005 07/25/2005 08/01/2005 10/04/2005 10/12/2005 10/13/2005
11/07/2005 12/07/2005
02/24/2006 03/06/2006 05/05/2006 05/05/2006 05/11/2006 12/14/2006
01/04/2007
01/04/2007 01/11/2007

USCA Appeal Fees received $ 255 receipt number 402331 re 101 Notice of Appeal filed by Valley Hospitality Services, LLC. (tls, ) (Entered: 07/15/2005)
103 Certificate of Readiness of Record on Appeal forwarded to USCA re 88 , 97 , and 101 Notices of Appeal. (Attachments: # 1 Docket Sheet Report)(tls, ) (Entered: 07/15/2005)
104 TRANSCRIPT INFORMATION FORM by Sandra J. Davis. re 101 Notice of Appeal; NO TRANSCRIPTS ORDERED. (tls, ) (Entered: 07/20/2005)
105 USCA Case Number 05−13670−J re 101 Notice of Appeal filed by Valley Hospitality Services, LLC. (tls, ) (Entered: 07/25/2005)
106 TAXATION OF COSTS in the amount of $ 3,464.60 against Velma B. Duncan, Rosa Brown, and Annette Amick (tlf). Modified on 10/13/2005 (tlf). (Entered: 08/01/2005)
107 USCA ORDER dismissing 88 Notice of Appeal as to Appellant Davis(tls, ) (Entered: 10/04/2005)
108 Letter regarding Request for Writ of Execution. (Attachments: # 1 Copy of bill of costs)(tls, ) (Entered: 10/12/2005)
109 MOTION to Stay Award of Costs and for Supercedeas of Writ of Execution re 108 Letter, 106 Taxation of Costs by Velma B. Duncan, Rosa Brown, Annette Amick filed by McNeill Stokes. Response to Motion due by 11/7/2005 Reply to Response to Motion due by 11/22/2005. (Stokes, McNeill) (Entered: 10/13/2005)
110 RESPONSE filed by Valley Hospitality Services, LLC re 109 MOTION to Stay Award of Costs and for Supercedeas of Writ of Execution re 108 Letter, 106 Taxation of Costs (Woodling, Ruth) (Entered: 11/07/2005)
This is a text only entry; no document issued. ORDER granting in part and denying in part 109 Motion to Stay. Plaintiff's motion to stay is granted upon the submission of a bond in the amount of $3,500.00 to ensure payment of costs should Plaintiff lose on appeal. . Signed by Judge Clay D. Land on December 7, 2005. (Land, Clay) (Entered: 12/07/2005)
111 Certified and Transmitted Record on Appeal to US Court of Appeals re 97 Notice of Appeal (tlf). Additional attachment(s) added on 2/24/2006 (tlf, ). (Entered: 02/24/2006)
112 USCA Case Number 05−13107JJ re 101 Notice of Appeal.(tls, ) (Entered: 03/06/2006)
113 Letter from Attorney Woodling concerning writ of execution. (Attachments: # 1 Attachments)(tls, ) (Entered: 05/05/2006)
114 WRIT of Execution issued as to Plaintiffs Velma B. Duncan, Rosa Brown, and Annette Amick. (tls, ) (Entered: 05/05/2006)
115 NOTICE of Filing Supercedeas Appeal Bond by Velma B. Duncan, Rosa Brown, Annette Amick (Attachments: # 1 Exhibit Supercedeas Appeal Bond)(Stokes, McNeill) (Entered: 05/11/2006)
116 USCA JUDGMENT re 88 and 97 Notices of Appeal issued as mandate. District court's dismissal of the class−wide discrimination charges and grant of summary judgment on Defendants is affirmed. (Attachments: # 1 Opinion; # 2 USCA Transmittal Letter)(tls, ) (Entered: 12/14/2006)
117 USCA JUDGMENT reversing and remanding district court as to 101 Notice of Appeal filed by Valley Hospitality Services, LLC, (Attachments: # 1 Opinion; # 2 Bill of Costs) # 3 Judgment Issued as Mandate on 1/3/07. (tls, ) (Entered: 01/05/2007)
118 Appeal Record Returned: 101 Notice of Appeal, 88 Notice of Appeal, 97 Notice of Appeal (tls, ) (Entered: 01/05/2007)
119 JUDGMENT in favor of Defendant against Plaintiff Davis. Deposition Disposal Letter due by 3/19/2007. (tls, ) (Entered: 01/11/2007)

Case: 4:04-cv-00020-CDL As of: 11/19/2010 06:43 PM EST 9 of 9

03/28/2007 07/13/2007

NOTICE TO COUNSEL: This case has been closed, therefore deposition transcripts filed in paper form in this case, with the exception of those filed by court reporters or any other transcripts filed electronically, will be destroyed unless the filer(s) of those documents make arrangements with the Clerk's Office to retrieve them before the scheduled disposal date. Depositions to be destroyed on 4/11/2007. (tls, ) (Entered: 03/28/2007)
120 NOTICE of Filing Settlement and Release of Costs and Release of Supersedeas Appeal Bond by Sandra J. Davis, Velma B. Duncan, Rosa Brown, Annette Amick (Stokes, McNeill) (Entered: 07/13/2007)

 
 Case: 1:03-cv-02462-MHS As of: 06/13/2014 10:59 AM EDT 1 of 3
4months,CLOSED
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:03−cv−02462−MHS

Davis, et al v. Valley Hospitality Assigned to: Judge Marvin H. Shoob Demand: $0 Cause: 42:2000 Job Discrimination (Race) Plaintiff Sandra J. Davis
Plaintiff Velma B. Duncan
Plaintiff Rosa Brown

Date Filed: 08/18/2003 Date Terminated: 01/29/2004 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by McNeill Stokes Office of McNeill Stokes 1040 Peachtree Battle Avenue Atlanta, GA 30327 404−352−2144 Email: mcstokes@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by McNeill Stokes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by McNeill Stokes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Valley Hospitality Services, LLC.

represented by Mairen C. Kelly Fisher &Phillips, LLP−ATL Suite 3500 1075 Peachtree Street, NE Atlanta, GA 30309 404−231−1400 Email: mkelly@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth W. Woodling WoodlingLaw, LLC Promenade II, Suite 1900 1230 Peachtree Street NE Atlanta, GA 30309 404−942−4422 Fax: 404−942−4421 Email: rwoodling@woodlinglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Jane Miller Page Scrantom Sprouse Tucker &Ford P.O. Box 1199 1043 Third Avenue

Case: 1:03-cv-02462-MHS As of: 06/13/2014 10:59 AM EDT 2 of 3
Columbus, GA 31902−1199 706−243−5632 Email: rjmlawpc@knology.net TERMINATED: 01/29/2004
William L. Tucker Page Scrantom Sprouse Tucker &Ford P.O. Box 1199 1043 Third Avenue Columbus, GA 31902−1199 706−243−5632 Email: wlt@psstf.com TERMINATED: 01/29/2004

Date Filed 08/18/2003
08/18/2003 09/15/2003 10/03/2003 10/07/2003 10/08/2003 10/08/2003 10/14/2003 10/17/2003 10/22/2003
11/03/2003 11/03/2003 11/03/2003 11/03/2003 11/12/2003 11/20/2003 12/01/2003 12/01/2003

# Docket Text
1 COMPLAINT filed and summons(es) issued. Consent form to proceed before U.S. magistrate and pretrial instructions given to attorney; jury demand FILING FEE $ 150 RECEIPT # 509804 (jdb) (Entered: 08/19/2003)
CASE REFERRED to Mag Judge Gerrilyn G. Brill (Calendar sheets forwarded and notice sent to counsel) (jdb) (Entered: 08/19/2003)
2 WAIVER OF SERVICE Returned Executed as to Valley Hospitality mailed 8/19/03 Answer due by 10/18/03 for Valley Hospitality (er) (Entered: 09/17/2003)
3 MOTION by defendant to transfer case to the Middle District of Georgia, Columbus Division with brief in support. (er) (Entered: 10/06/2003)
4 ANSWER by defendant to complaint [1−1] Discovery ends 3/5/04 (er) (Entered: 10/08/2003)
Title VII information sent to parties. (er) (Entered: 10/08/2003)
5 RESPONSE by plaintiff to [3−1] dft's motion to transfer case to the Middle District of Georgia, Columbus Division (er) (Entered: 10/14/2003)
SUBMITTED to Mag Judge Gerrilyn G. Brill on [3−1] dft's motion to transfer case to the Middle District of Georgia, Columbus Division (er) (Entered: 10/14/2003)
6 REPLY BRIEF by dft in support of [3−1] motion to transfer case to the Middle District of Georgia, Columbus Division (er) (Entered: 10/22/2003)
7 SUPPLEMENTAL RESPONSE by plaintiffs in opposition to [3−1] dft's motion to transfer case to the Middle District of Georgia, Columbus Division (er) (Entered: 10/29/2003)
8 Preliminary Report and Discovery Schedule by dft. (to: GGB) (er) (Entered: 11/05/2003)
9 Certificate of interested persons by dft. (to: GGB &MHS) (er) Modified on 11/05/2003 (Entered: 11/05/2003)
10 Certificate of interested persons by pla. (to: GGB &MHS) (er) Modified on 11/05/2003 (Entered: 11/05/2003)
11 Preliminary Report and Discovery Schedule by plas. (to: MHS) (er) (Entered: 11/05/2003)
12 ANSWERS TO INITIAL DISCLOSURES by plaintiffs. (er) (Entered: 11/14/2003)
13 SCHEDULING ORDER and instructions regarding sum. jgm. motions by Mag Judge Gerrilyn G. Brill. (cc) (er) (Entered: 11/21/2003)
14 MOTION by plaintiffs to file amended complaint − class action with brief in support. (er) (Entered: 12/02/2003)
Proposed amended [1−1] complaint − class action by plaintiffs. (er) (Entered: 12/02/2003)

Case: 1:03-cv-02462-MHS As of: 06/13/2014 10:59 AM EDT 3 of 3

12/12/2003 12/12/2003
12/15/2003
12/17/2003 12/18/2003 12/23/2003 12/29/2003 01/14/2004 01/20/2004 01/23/2004
01/29/2004
01/29/2004
01/29/2004 01/29/2004 01/30/2004 02/04/2004 02/06/2004 02/06/2004

15 RESPONSE by defendant to plas' [14−1] motion to file amended complaint − class action (er) (Entered: 12/15/2003)
16 SUPPLEMENTAL BRIEF by defendant in support of [3−1] motion to transfer case to the Middle District of Georgia, Columbus Division (er) (Entered: 12/15/2003)
SUBMITTED to Mag Judge Gerrilyn G. Brill on [14−1] plas' motion to file amended complaint − class action. (*** file in chambers ***) (er) (Entered: 12/15/2003)
17 Attorney appearance for defendant Valley Hospitality by Ruth W. Woodling and Mairen C. Kelly (er) (Entered: 12/18/2003)
18 SUPPLEMENTAL OBJECTIONS by defendant to [14−1] pla's motion to file amended complaint − class action (er) (Entered: 12/22/2003)
19 MOTION by defendant Valley Hospitality for order permitting withdrawal and substitution of counsel (er) (Entered: 12/29/2003)
20 RESPONSE by plaintiffs to dft's supplemental [18−1] objections to plas' [14−1] motion to file amended cmp − class action (er) (Entered: 12/30/2003)
21 Certificate of service of discovery by plaintiff: first interrogs. and first request for production to dft. (er) (Entered: 01/20/2004)
22 Notice of service of subpoena for docs. by defendant. (er) (Entered: 01/22/2004)
SUBMITTED to Mag Judge Gerrilyn G. Brill on [19−1] motion for order permitting withdrawal and substitution of counsel (*** file in chambers ***) (er) (Entered: 01/23/2004)
23 ORDER by Mag Judge Gerrilyn G. Brill GRANTING [19−1] dft's motion to permit withdrawal and substitution of counsel. William L. Tucker and Rebecca J. Miller are permitted to withdraw; Ruth W. Woodling and Mairen C. Kelly have appeared and will represent dft. (cc) (er) (Entered: 01/30/2004)
24 ORDER by Mag Judge Gerrilyn G. Brill GRANTING [3−1] dft's motion to transfer case to the Middle District of Georgia, Columbus Division. (cc) (er) (Entered: 01/30/2004)
Completed referral to Mag Judge Gerrilyn G. Brill (er) (Entered: 01/30/2004)
Case terminated. (er) (Entered: 01/30/2004)
Transmittal of documents to USDC, Middle District of GA, Colombus Division. (ntc mailed) (er) (Entered: 01/30/2004)
25 Notice of service of supboena for docs. by defendant Valley Hospitality (er) (Entered: 02/09/2004)
Acknowledgement of receipt by USDC MD GA, Columbus Div. of transmitted docs. (er) (Entered: 02/09/2004)
Certified mail receipt green card returned re: transmitted docs. to USDC MD GA. (er) (Entered: 02/11/2004)