Scarbary v. Georgia Department of Natural Resources

245 F. Supp. 3d 1328, 2017 U.S. Dist. LEXIS 160500
CourtDistrict Court, M.D. Georgia
DecidedMarch 24, 2017
DocketCIVIL ACTION NO. 1:15-CV-2183-SCJ
StatusPublished
Cited by3 cases

This text of 245 F. Supp. 3d 1328 (Scarbary v. Georgia Department of Natural Resources) is published on Counsel Stack Legal Research, covering District Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scarbary v. Georgia Department of Natural Resources, 245 F. Supp. 3d 1328, 2017 U.S. Dist. LEXIS 160500 (M.D. Ga. 2017).

Opinion

ORDER

HONORABLE STEVE C. JONES, UNITED STATES DISTRICT JUDGE .

■ Beforé the Court ini this Title VII retaliation case- is the Magistrate Judge’s Report and Recommendation (R & R) that Defendant’s motion for summary judgment be granted. Doc. 55.1 Jacquelyn Scarbary objects.2 Doc. 58. Incorporating the facts and procedural history set forth in the R & R, the Court- examines its recommendations and Searbary’s objections.

I. BACKGROUND3

Georgia’s Department of Natural Resources’ (DNR) Environmental Protection [1331]*1331Division (EPD), like almost every government agency, suffered budget cuts during the 2008 recession. Doc. 36-2 at 6. In “early 2011,” EPD disbanded its Emergency Response Team (ERT) and created the Emergency Response Network (ERN). Id. ERT members had full-time positions, whereas the ERN scraped together people from various groups on a volunteer, part-time basis. Scarbary volunteered to serve as an assistant on the ERN. Id. at 8.

In addition to volunteers, the ERN had four or five more permanent members (doc. 50 at 2-3), including Jerald Campbell, with whom Scarbary worked in her capacity as an assistant. Doc. 35-2 at 8. Campbell and Scarbary had a “flirty” relationship characterized by suggestive comments from Campbell with little to no in-kind response from Scarbary. Id. at 8-9. Eventually, because Campbell was good friends with the ERN’s manager, Scarbary approached Campbell about becoming a core member of the ERN. Doc. 43-1 at 6.

Campbell then asked her “[w]ell, what do I get?” Id. Scarbary asked “what do you want,” which prompted Campbell to request that she send him revealing pictures via personal email. Doc. 35-19 at 58. She asked if that would get her the job— Campbell confirmed that it would. Id, at 63. So, Scarbary sent him nude pictures taken for her then-boyfriend.

Sometime thereafter, in late-2011, Scar-bary received a more permanent position on the ERN. Doc. 43-1 at 7. Two years after that, Defendant reversed the recession-induced reliance on the ERN and reestablished a permanent ERT. Doc. 35-2 at 11. Campbell became its manager. Id. He recommended six people for positions on the ERT, but did not choose Scarbary. Id. at 12.

Miffed, Scarbary discussed the situation with her direct supervisor, David Reuland. In that conversation, she mentioned the nude photos .and “that she should have reported Campbell for sexual harassment because he had coerced her into sending” them. Doc. 43-1 at 8. EPD policy required Reuland to report Scarbary’s story to his supervisor.

That report eventually landed in front of Randall Harris, EPD’s human resources manager. Doc. 35-2 at 14. Harris began an investigation by asking Reuland to' write down his recollection of his conversation with Scarbary. Id. at 15. Reuland reported that Scarbary “told him. she felt pressured to send nude photos of herself to Campbell in order to secure a permanent position on the ERT team, a position for which she had applied and that Campbell, as manager, would be filling.” Id. His memo to Harris included nothing about when Scar-bary said that she sent the pictures. See doc. 35-5 at 23.

Harris also talked- to Scarbary directly, though with -another HR employee present. Doc. 35-2 at 16. During the pre-test interview, Harris asked Scarbary when she sent the photos to Campbell. Id. The record contains no transcript of that interview, but Harris testified that he “understood Scarbary to say the photos were sent [in] approximately” 2013. Id. By contrast, a contemporaneous memo that Harris wrote about the interview contains no indication that Scarbary said anything about when she sent the pictures. Doc. 35-5 at 26. The memo does, however, contain Campbell’s estimate of when the events transpired. Id.

Because the matter amounted to a “he said, she said,” Harris next ordered that Campbell and Scarbary undergo a Georgia Bureau of Investigation (GBI)- polygraph test. During that interview, conducted by GBI agent Ben Hanson, Scarbary consis[1332]*1332tently stated that she sent the photos in 2011, not 2013. She also maintained that the Campbell coerced the pictures and that she- never consented. Scarbary never admitted that she ever provided Harris or anyone else incorrect information about the incident and its timing, though she did confess to a bad memory for dates and some possibility that the ERT-ERN organizational shifts within EPD may have contributed to a garbled retelling.

Ultimately, HanSon decided against administering the polygraph after it became apparent that Campbell and Scarbary’s stories about the incident largely matched. Five days later, Harris wrote a memo to Mary Walker, EPD’s Assistant Director (who previously approved the polygraph), recommending thát she fee Scarbary. Doc. 35-5 at 28. In it, Harris wrote, among other things, that Scarbary stated that the nude photo incident “was not sexual harassment but a consensual act;” that Hanson’s supervisor told Hanson during the interview that he need not conduct a polygraph because of that admission; that Scarbary’s statements “changed to match Mr. Campbell’s;” and that she “admitted to [Hanson] that she gave incorrect information to the EPD investigators.” Id.

Walker approved Scarbary’s termination that same day (June 17, 2014) (doc. 35-5 at 28) without conducting any independent investigation.4 Doc. 35-13 at 4. Walker testified that she based her decision on Harris’ report (the second paragraph," in particular), a prior incident where Scarbary received a reprimand for misusing an EPD gas card, and Harris’ indication that Scar-bary’s “supervisors 'were not generally strong supporters of her.” Id. DNR’s human resources director at the time, Jim Laine, testified that he also recommended that Walker terminate Scarbary because of the allegations in Harris’ report. See doc. 35-14 at 16 (Scarbary’s “untruthfulness in the course ' of the investigation” as described in Harris’ memo “was the ultimate factor that led to termination”).

Less than two months later Scarbary complained to the Equal Employment Opportunity Commission. After receiving a right-to-sue letter, she. filed this action. Doc. 1. Eventually Defendant moved for summary judgment.- Doc. 35. The Magistrate Judge later recommended that the Court grant the motion and dismiss Scar-bary’s complaint. Doc. 55.

A. The R & R

Scarbary pled three different theories of retaliation-based liability (i.e., types of complaints that she arguably made that allegedly spawned retaliation): (1) hostile work environment; (2) sex discrimination; and (3) quid pro quo sexual harassment.5 [1333]*1333The Magistrate Judge concluded that Scarbary failed to establish prima facie cases under the first two. Scarbary does not contest those conclusions. Finding no clear error, the Court agrees. It thus GRANTS Defendants’ summary judgment motion as to Scarbary’s hostile work environment and sex discrimination-based retaliation claims.

The R & R also found that Scarbary established a prima facie case of quid pro quo sexual harassment. Doc. 55 at 27.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
245 F. Supp. 3d 1328, 2017 U.S. Dist. LEXIS 160500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scarbary-v-georgia-department-of-natural-resources-gamd-2017.