Harris v. Fulton-Dekalb Hospital Authority (255 F. Supp. 2d 1347, 2002)

ORDER

THRASH, District Judge.

This is an employment discrimination action in which Plaintiff asserts causes of action for sexual harassment, gender and race discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; denial of due process pursuant to 42 U.S.C. § 1983; as well as state law claims for negligent retention, breach of fiduciary duty, intentional infliction of emotional distress, negligent infliction of emotional distress and invasion of privacy. It is before the Court on Report and Recommendation [Doc. 41] of the Magistrate Judge recommending granting in part and denying in part the Defendants’ Motion for Summary Judgment [Doc. 19]. For the reasons set forth below, the Court declines to adopt that portion of the Report and Recommendation recommending denying the Defendants’ motion with respect to the Plaintiffs retaliation and intentional infliction of emotional distress claims.

I. BACKGROUND

The facts of this case are set out in the Report and Recommendation of Magistrate Judge Alan J. Baverman. For convenience, these facts are restated here. The parties agree that Plaintiff Joyce Gul-ledge Harris was first employed at Grady Memorial Hospital in 1994 as Vice President of Human Resources and that she became Senior Vice President of Human Resources a few months later. They also agree that Defendant Edward Renford, the President/Chief Executive Officer of Grady Health System, terminated her on December 9, 1998. They do not agree, however, about much that occurred in between.

The parties’ factual statements paint very different pictures of Plaintiffs tenure at Grady. For instance, Plaintiff and a number of witnesses on her behalf assert that she “related well with and supported her employees and was an even-tempered and objective manager” and that “[although she disagreed with Defendant Ren-ford from time to time on various issues, she did so respectfully and executed directives given.” Defendants and their witnesses, on the other hand, contend that Plaintiff had “a difficult time dealing with authority” and that she did not get along well with Defendant Renford and made comments to him such as, “If you know so much, handle it yourself.” She allegedly frequently showed a lack of respect for him by stating that she would not follow his directives, raising sensitive topics in public meetings, and by talking about him to other employees in sarcastic tones. Defendants assert that Plaintiff also had trouble relating with in-house and outside attorneys while performing her human resources/personnel duties.

Plaintiff, meanwhile, asserts that it was Defendant Renford who treated her disrespectfully. She claims that he made suggestive and inappropriate sexual comments to her, such as saying that she had “gorgeous brown eyes” and “soft gentle hands” while “roaming his eyes over her body and giving Plaintiff the sense that he was ‘undressing’ her with his eyes.” She also says that he made inappropriate comments about himself, such as calling himself “Big Ed,” which she took to be a reference to the size of his penis, and telling Plaintiff that, if he ever got divorced, she would be at his “beck and call.” She also asserts that Defendant Renford often “hugged her, stroked her and otherwise touched her suggestively and inappropriately.” He also allegedly inquired about her private life, asking about the “type of men” she was dating, how she “treated” these men, and how she believed she could better “please” the men in her life.

In her deposition, Plaintiff testified that Defendant Renford made the suggestive and inappropriate comments about her physical characteristics during the first two or three years of her employment, from 1994 through 1997. (Dep. of Joyce Harris, pp. 170-71). She also testified that the “Big Ed” comment was made around 1996 or 1997 and that the “beck and call” statement was made before that. (Dep. of Joyce Harris, p. 173). She testified that the questions about her private life began shortly after she started working there and that she could not remember when they stopped. (Dep. of Joyce Harris, p. 176). In a document she submitted to the Equal Employment Opportunity Commission (“EEOC”) titled “Response to EEOC Charge,” and dated May 21, 1999, Plaintiff asserted that he stopped asking her for hugs “during approximately the last 18 months of [her] employment.” (Dep. of Joyce Harris, p. 11).

She asserts that, because she did not react positively to these comments, Defendant Renford denied her a pay increase in 1995; frequently denied her requests to use vacation time, with the latest such denial coming in the summer of 1998; denied a tuition reimbursement in 1997; and conducted a year-long “investigational vendetta” against her department in 1996-97. She also alleges that he was frequently rude, hostile and abusive to her and that he intentionally sought to embarrass her in front of other executives. She finally alleges that he retaliated against her in an unspecified way for publicly “speaking out against policies and procedures contrary to applicable federal or state law, rules and regulations, including inter alia, the letting of a contract to a State Senator in 1995 or 1996 without following proper procedures.” (Affidavit of Joyce Harris, ¶ 4).

Another Grady employee, Christine Swainson, filed a discrimination lawsuit against the Authority. The Plaintiff was also named as a defendant in that lawsuit. It is undisputed that Plaintiff was a material witness in the Swainson litigation and that she had been involved in the exchange of memoranda with Ms. Swainson, which led to Ms. Swainson’s termination. It is also undisputed that Plaintiff was deposed by Ms. Swainson’s counsel. During the deposition, Plaintiff testified that she herself may have been a victim of discrimination, but then refused to answer any further questions from Ms. Swainson’s lawyer about it, causing the deposition to be adjourned. She also later refused to answer any questions about her allegation either from Defendants’ attorneys or from another team of independent attorneys who were hired by Grady to investigate her claim of discrimination. (Affidavit of Randy Gepp., ¶¶ 5-10).

Plaintiff denies that she testified that she may have been a discrimination victim but asserts that she said, “I had thought about some things” when asked if she had ever been the victim of discrimination. She acknowledges, however, that she repeatedly refused to answer the same question about her being discriminated against at Grady. (Affidavit of Joyce Harris, ¶¶ 25-34). Plaintiff refused to answer based on her own personal belief and values system. After the Magistrate Judge ordered her to testify, the deposition was adjourned in order to allow her to retain independent counsel.

In a letter dated November 4, 1998, Defendant Renford told Plaintiff that her “recent actions in the Swainson litigation causefd him] to question [her] judgment and objectivity.” He observed that “revealing for the first time at a deposition in an important case that [she] may [have felt] that [she] was discriminated against or treated unfairly demonstrates a serious lack of judgment.” He also questioned the wisdom of her refusal not to discuss her allegations with Grady’s attorneys or with the counsel hired to investigate the matter independently. He also stated to her: “You do not appear to be satisfied in your current position and based on your current conduct of refusing to cooperate with The Authority and its attorneys I seriously question your judgment and ability to successfully perform your duties.” He concluded by giving her the option of (1) meeting with Grady’s attorneys and answering their questions about the Swain-son litigation, being suspended for three days if she refused, and then terminated if she refused again; or (2) resigning immediately. (Dep. of Joyce Harris, Exhibit 8).

Plaintiff responded in a letter dated November 10, 1998. She accused Defendant Renford of having mistreated her over the years. She complained that he had discriminated against her by not approving the tuition reimbursement for her that he had approved for his secretary. She complained that he had intentionally inflicted emotional distress upon her by denying her vacation requests, publicly ridiculing her and being openly hostile toward her. She also alleged that his decision to cut the human resources management staff by 50% was based on a personal vendetta against her. She also indicated that she had not submitted formal complaints against him (except on one previous occasion) because she did not want to harm Grady or her own career. She also implied that she would have answered questions about her allegations if Defendant Renford personally had asked her about it earlier. (Dep. of Joyce Harris, Exhibit 27).

Defendants assert that Plaintiff was then suspended without pay from November 12 through November 16, 1998, but Plaintiff asserts that she was out on paid sick leave those days (Affidavit of Joyce Harris, ¶ 38). It is agreed, however, that Plaintiff was terminated on December 9, 1998. Defendant Renford presented Plaintiff with another letter, in which he notified her of his decision to terminate her because “it ha[d] become increasingly clear to [him] that [their] working relationship ha[d] deteriorated to a point that it [was] no longer effective or beneficial to Fulton DeKalb Hospital Authority.” (Dep. of Joyce Harris, Exhibit 12). He cited concerns about her performance as Senior Vice President of Human Resources, including actions and statements that indicated her lack of support for him. He asserted that she had not completed important assignments, that she had developed poor relationships with other members of the management team and that she had allowed her disapproval of him to affect her performance. He specifically referred to her refusal to cooperate with the attorneys in the Swainson litigation. (Dep. of Joyce Harris, Exhibit 12).

On March 10, 1999, Plaintiff filed her charge of discrimination with the EEOC, alleging race, sex, and disability discrimination as well as retaliation. (Dep. of Joyce Harris, Exhibit 6). On February 12, 2002, a Report and Recommendation (R & R) was issued by Magistrate Judge Alan J. Baverman granting summary judgment to all Defendants on all substantive counts of Plaintiffs complaint with two exceptions. The Magistrate Judge denied summary judgment for Defendants Grady with respect to Plaintiffs retaliation claim, and denied summary judgment for all the Defendants on Plaintiffs claim of intentional infliction of emotional distress. The Magistrate failed to address Defendants’ motion with respect to Plaintiffs punitive damages claim. Defendants object to those portions of the Report and Recommendation.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(C). The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. DISCUSSION

After careful review of the Report and Recommendation, this Court agrees with the thorough and well reasoned Report and Recommendation Magistrate Judge recommending granting summary judgment on the Title VII claims against the individual Defendants; granting summary judgment with respect to the sexual harassment claim for failure to file an EEOC charge within 180 days of the harassing behavior; granting summary judgment as to her race and sex discrimination claims for failure to file an EEOC charge within 180 days of the discriminatory actions and failure to state a prima facie case as to her termination. The issue remaining is whether the Magistrate Judge was correct in denying summary judgment regarding Plaintiffs retaliation claim and Plaintiffs claim of intentional infliction of emotional distress. In addition, this Court will address the issue of punitive damages.

A RETALIATION CLAIM

In order to state a prima facie case of retaliation, Plaintiff must establish statutorily protected activity, an adverse employment action, and a causal connection between the two. Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir.1997). The Magistrate Judge correctly limited Plaintiffs retaliation claim to her termination on December 9, 1998, and correctly found that her termination constituted an “adverse employment action” under Title VII. (Report and Recommendation, p. 22). The Magistrate Judge also concluded that the Plaintiffs testimony in her deposition for the Swainson litigation and her refusal to provide information to Defendants in their subsequent investigation were statutorily protected activities within the coverage of Title VIPs anti-retaliation provisions. Further, the Magistrate Judge found that the Plaintiff could also establish a causal connection between the two events. Thus, the Magistrate Judge held that the Plaintiff had satisfied the three-pronged test establishing a 'prima facie case and denied summary judgment on the retaliation claim. (Report and Recommendation, p. 31). The undersigned respectfully disagrees with the Magistrate Judge’s conclusion that the retaliation provision of Title VII protects an employee who refuses to participate in an investigation of a discrimination charge.

Title VII prohibits discrimination against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The Magistrate Judge found that the Plaintiffs refusal to answer questions in her deposition in the Swain-son lawsuit, even after being ordered to do so by Magistrate Judge Harper, and her subsequent refusal to cooperate in an internal investigation, constituted statutorily “protected activity.” (Report and Recommendation, p. 22 & n. 4). However, the undersigned holds that the Plaintiffs refusal to participate in a Title VII investigation is not statutorily protected activity.

The cases relied upon by the Magistrate Judge did not involve an employee’s voluntary and insubordinate refusal to participate in a Title VII investigation of complaints of discrimination. Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir.1997) involved an employee who did participate, through involuntarily, in a Title VII proceeding by reluctantly giving deposition testimony which, in spite of his own personal wishes, assisted the claimant. Merritt, 120 F.3d at 1185. The Eleventh Circuit in Merritt held that involuntary participation and unwilling assistance in a Title VII proceeding constituted conduct protected from retaliation. Id. at 1185, 1189. This Court believes that Merritt is inapplicable to the facts of the present case. Unlike in Merritt, the Plaintiff in this case actually refused to give deposition testimony at all regarding her own experiences with discrimination, and continued to refuse to do so at her employer’s request, even though both Plaintiff and her employer knew that such testimony could benefit Ms. Swainson. (Dep. of Joyce Harris, pp. 60, 62, 153-54). Thus, Merritt’s determination that the participation clause protects all kinds of testimony, whether supportive of the claimant or not, does not resolve the issue presented by the facts in the instant case. The issue presented here is whether a complete refusal to participate in an investigation constitutes protected activity in keeping with Title VII. There is no hint in Merritt that the Eleventh Circuit would give an employee a cause of action for retaliation where the employee makes a claim of discrimination, refuses to cooperate in an investigation of the claim and, thus, provokes the employer to fire her for insubordination. Indeed it would be a strange world where the law rewarded such insubordinate behavior. The retaliation clause of Title VII is not a license for insubordination.

Another case that the Magistrate relies upon is Smith v. Columbus Metro. Hous. Auth., 443 F.Supp. 61 (S.D.Ohio 1977). This' case is also distinguishable. In Smith, an employee was demoted after she refused to sign an affidavit requested by the state agency which would have exculpated her employer in a pending agency investigation under Title VII. Smith, 443 F.Supp. at 62. Under these facts the Smith court held that “whether an employee decides to assist the charging party, or refuses to assist the employer, the employer may not retaliate against the employee, because this decision of the employee constitutes participation in an investigation-or proceeding under Title VII.” Id. at 64. The Smith court clarified, however, that it was not holding that an employee could never be disciplined for refusing to assist. Id. at 65. Rather, it limited its holding to a finding that the plaintiffs demotion was unlawful under the facts of the case before it because it constituted retaliation for her “decision not to participate in a pending investigation and proceeding in the manner that defendant desired.” Id.

Unlike the employer in Smith, and as the Magistrate Judge noted, Grady attempted to have Plaintiff participate in an investigation with full knowledge that her testimony might harm, rather than exculpate it in the Swainson case. (Report and Recommendation, p. 27). Unlike the employer in Smith there is no evidence that Grady ever instructed Plaintiff to provide exculpatory testimony; rather, Grady, and Magistrate Judge Harper, desired only that she participate. (Affidavit of Randy Gepp, ¶¶ 8-10; Dep. of Joyce Harris, pp. 153-154, 163 & Exhibit 9). In doing so Grady merely sought to fulfill its obligations under Title VII to respond promptly with corrective action to eliminate such problems from the workplace and avoid litigation. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 806, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). An employer does not buy a lawsuit when it attempts to comply with Title VII by investigating a claim of discrimination and dismissing an insubordinate employee who refuses to cooperate in the investigation. Allowing such a lawsuit would frustrate the purpose and intent of Title VIPs remedial nature and the requirements of Faragher and Ellerth that prompt investigation of Title VII complaints is required.

In contrast to the cases relied upon by the Magistrate Judge, there are cases which have directly addressed the issue of whether non-participation in an investigation or proceeding is statutorily protected activity. In Williams v. West, 172 F.3d 54 (Table) (unpublished), 172 F.3d 54, 1998 WL 904722, *3 (7th Cir.1998), the plaintiff complained to her department chief that she was being sexually harassed by a coworker, and that when she reported the harassment to her supervisor, no corrective action was taken. Williams, 172 F.3d 54, 1998 WL 904722 at *1. Later the department chief and the employer’s EEO counselor both insisted that the plaintiff file formal EEO complaints against the alleged harasser and her supervisor. Id. Plaintiff refused to do so, and as a result, she was demoted and denied career opportunities. Id. Approximately five months after she was demoted and denied career opportunities, she filed a complaint with the EEOC which included allegations of retaliation. Id. The district court granted summary judgment in favor of the employer, and the Seventh Circuit affirmed. The Seventh Circuit declined to follow Smith v. Columbus Metro. Hous. Auth., 443 F.Supp. 61 (S.D.Ohio 1977), relied upon by the Magistrate Judge in this case, finding that, unlike in Smith, there was no indication that the employer in Williams was attempting to frustrate the purpose of Title VII. Williams, 172 F.3d 54, 1998 WL 904722 at *4.

The Sixth Circuit reached similar conclusions in two cases decided after the Smith decision. In one case, the plaintiff was discharged for refusing to cooperate with a state agency conducting an age discrimination investigation and for giving conflicting statements to the company regarding his activities as associated with the investigation. Merkel v. Scovill, Inc., 787 F.2d 174, 179 (6th Cir.1986). The Sixth Circuit reversed a finding by the district court that the plaintiffs non-participation in the investigation was “protected activity,” holding that “discrimination against an employee for lack of participation or nonparticipation in an investigation would not be a violation of the ADEA.” The Merkel Court recognized two exceptions to this holding, finding that a non-participating plaintiff would be protected under the anti-retaliation provisions only when the employer, in the course of an investigation, pressures an employee to provide a statement that the employer knows or should know to be false, or pressures an employee to provide information or evidence which the employer does not reasonably believe the employee possesses. Id. Finding that none of the exceptions applied to the facts before it, the Merkel court reversed the finding of the district court, further noting that:

[i]t is the interest of all concerned and consistent with the purpose of the ADEA to investigate and to resolve a discrimination charge as expeditiously and as fairly as reasonably possible. Thus it appears to us that the ADEA should not be construed to hold an employer liable for retaliation against an employee under the circumstances presented here.

Id. at 179.

The Sixth Circuit reached a similar conclusion in the case most similar to the instant one, Thomas v. Norbar, Inc., 822 F.2d 1089 (Table) (unpublished), 1987 WL 38040, 822 F.2d 1089 (6th Cir.1987). In Thomas, the plaintiff was asked by his supervisor to speak with a commissioner from the Ohio Civil Rights Commission, who was visiting the company’s plant in connection with an investigation of several charges pending against the company. Thomas, 822 F.2d 1089, 1987 WL 38040 at *1-2. Despite his supervisor’s insistence, the plaintiff was reluctant to speak with the investigator. Id. at *2. The Sixth Circuit reversed the finding of the Southern District of Ohio and held that the plaintiffs refusal to speak to the commissioner and participate in the investigation was not “protected activity” under Title VII, and that the supervisor’s insistence that the plaintiff speak to the investigator was not improper. Id. at *5. Specifically, the Thomas court held that, because there was no evidence that the plaintiffs supervisors had pressured him to he to the commissioner or that he had been pressured to give information regarding matters about which he had no knowledge, his refusal to participate in the investigation was not protected activity. Id.

Like the plaintiff in Thomas, Plaintiff in this case was reluctant to, and indeed refused to, testify about her alleged experiences with discrimination with Grady. This is true even after being directly questioned about it during the Swainson deposition, and after being ordered to do so by Magistrate Judge Harper. (Dep. of Joyce Harris, Exhibit 9). She also refused to cooperate with investigators in a separate internal investigation of her possible claims. (Dep. of Joyce Harris, pp. 153-154). There is no evidence in the record that Renford or anyone else at Grady pressured Plaintiff to lie in her deposition, or to the investigators, or that anyone insisted that Plaintiff provide information about which she had no knowledge. To the contrary, it was Plaintiff who determined on her own that she would not cooperate based solely on her “personal belief system and values.” (Dep. of Joyce Harris, pp. 60, 62, 153-54). Thus, under Thomas, Merkel and Williams, Plaintiffs refusal to participate in the subsequent internal investigation are not protected activities under Title VII.

There are no cases from the Eleventh Circuit that have specifically dealt with the issue presented in the instant case. Although this Court is not bound by any cases outside the Eleventh Circuit, this Court looks to Thomas, Merkel and Williams for guidance in this matter because of both their factual similarity to the present case and their furtherance of the purpose and intent of Title VII. Thus, the Defendants are entitled to Summary Judgment as to the claim of retaliation.

B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM

Plaintiff has alleged a state law cause of action for intentional infliction of emotional distress. To establish a claim of intentional infliction of emotional distress, Plaintiff must establish each of the following elements: (1) intentional or reckless conduct (2) which is extreme and outrageous and (3) caused emotional distress (4) which is severe. Trimble v. Circuit City Stores, Inc., 220 Ga.App. 498, 499, 469 S.E.2d 776 (1996). Georgia courts have recognized that the “burden which the plaintiff must meet in order to prevail in [alleging intentional infliction of emotional distress] is a stringent one.” Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga.App. 227, 229, 335 S.E.2d 445 (1985). Further, under Georgia law, termination of an at-will employee will not support a cause of action for intentional infliction of emotional distress. Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1229 (11th Cir.1993).

In her Complaint, Plaintiff alleged that Defendant Renford intentionally inflicted emotional distress upon her, and that all Defendants are liable for his actions because they failed to stop him. (Complaint ¶¶ 55-57; Dep. of Joyce Harris, p. 144). Although Plaintiff never specified the exact nature of her intentional infliction of emotional distress claim (Plaintiffs Brief in Opp. to Defendant’s Motion for Summ. J., p. 20), the Magistrate Judge concluded that her allegations were based only upon the alleged retaliation she suffered by being discharged for refusing to testify in the Swainson litigation and for refusing to cooperate in the subsequent internal investigation. (Report and Recommendation, p. 41).

The Magistrate Judge concluded that because he believed a genuine issue of material fact existed with respect to Plaintiffs retaliation claim, and based on the holding of Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 706, 409 S.E.2d 835 (1991), Plaintiffs claim of intentional infliction of emotional distress could survive Defendants’ motion for summary judgment. (Report and Recommendation, pp. 42-43). As discussed above, however, Plaintiffs retaliation claim should fail under Title VII, as she cannot establish that she engaged in any “protected activity” under Title VII. Thus, the Plaintiff has failed to create a genuine issue of fact as to the “intentional and reckless conduct” element of the claim and cannot sustain a cause of action for intentional infliction of emotional distress under these facts. The Defendants are entitled to Summary Judgment as to this claim. Furthermore, all of Plaintiffs state law claims are barred by the two year statute of limitations.

C. PUNITIVE DAMAGES CLAIM

Count Nine of Plaintiffs Complaint contains a separate and distinct cause of action for punitive damages. (Complaint, ¶¶ 72-74). Defendants moved for summary judgment on this Count, seeking to have all claims for punitive damages against Grady and the individual defendants in their official capacities dismissed as a matter of law. The Magistrate Judge failed to address this argument in his February 12, 2002 Report and Recommendation.

In Georgia, punitive damages “may be awarded only in tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed evidence of willful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise presumption of a conscious indifference to the consequences.” O.C.G.A § 51-12-5.1. Georgia’s punitive damages statute further provides that the purposes of punitive damages is not to compensate a plaintiff but is solely to punish a tortfeasor for outrageous conduct, and to deter others from engaging in similar conduct. See Id. In strict interpretation of this punitive damages statute, Georgia’s Court of Appeals has held that any evidence presented must be “clear and convincing” and “it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage.” Kodadek v. Lieberman, 247 Ga.App. 606, 610, 545 S.E.2d 25 (2001).

In light of the foregoing, Plaintiff is not entitled to recover punitive damages under the facts of this case. According to Georgia law, without a tort claim, punitive damages are simply not recoverable. No independent cause of action sounding in tort as required by O.C.G.A § 51-12-5.1 remains in this case. Thus, Defendants’ Motion for Summary Judgment for punitive damages is granted.

TV. CONCLUSION

For the reasons set forth above, the Court adopts those portions of the Report and Recommendation recommending granting the Defendants’ Motion for Summary Judgment and declines to adopt those portions of the Report and Recommendation recommending denying the Defendants’ Motion for Summary Judgment. For the reasons set forth above, the Defendants’ Motion Summary Judgment [Doc. 19] is GRANTED.

UNITED STATES MAGISTRATE JUDGE’S NON-FINAL REPORT AND RECOMMENDATION

BAVERMAN, United States Magistrate Judge.

This matter is before the Court on Defendants’ motion for summary judgment [Doc. 19], In this employment discrimination case, Plaintiff asserts causes of action for sexual harassment, gender and race discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and a denial of due process presumably pursuant to 42 U.S.C. § 1983; as well as state law claims for negligent retention, breach of fiduciary duty, intentional infliction of emotional distress, negligent infliction of emotional distress and invasion of privacy. These allegations arise out of Plaintiffs former employment with Defendant Fulton-De-Kalb Hospital Authority. For the reasons explained herein, the undersigned Magistrate Judge hereby RECOMMENDS that Defendants’ motion for summary judgment be GRANTED IN PART and DENIED IN PART.

I. Summary judgment standard

Federal Rule of Civil Procedure 56 provides that summary judgment shall be “rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P.56(c). The party moving for summary judgment bears the initial burden of “informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact.” Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir.2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The non-moving party then “may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” FED.R.Civ.P.56(e). If in response the non-moving party does not sufficiently support an essential element of his case as to which he bears the burden of proof, summary judgment is appropriate. Rice-Lamar, 232 F.3d at 840 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). “In determining whether genuine issues of material fact exist, [the Court] resolve[s] all ambiguities and draw[s] all justifiable inferences in favor of the non-moving party.” Rice-Lamar, 232 F.3d at 840 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

II. Title VII framework

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l).

When analyzing a disparate treatment claim based upon circumstantial evidence, courts utilize the burden-shifting framework articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Under this framework, the plaintiff must first establish a prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; (3) similarly situated employees outside her protected class were treated more favorably by his employer; and (4) she was qualified for the job. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997).

If the plaintiff establishes this prima facie case, an inference of discrimination is raised, and a burden of production then shifts to the defendant to rebut the inference of discrimination by articulating a legitimate, non-discriminatory reason for its action. This burden is “exceedingly light.” Id. at 1564. If the defendant meets this light burden, then the inference of discrimination is erased, and the burden then shifts back again to the plaintiff “to demonstrate that the defendant’s articulated reason for the adverse employment action is a mere pretext for discrimination.” Id. at 1565. Despite this burden-shifting framework, the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089.

Title VII also makes it an unlawful employment practice for an employer to dis- ■ criminate against an employee “because he has opposed any practice made an unlawful employment practice by this subchap-ter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e~3(a). These two prohibitions on retaliation are generally known as. the opposition clause and the participation clause, respectively. EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir.2000). A plaintiff asserting a claim of retaliation in violation of Title VII must establish a prima facie case by showing “(1) that [s]he engaged in statutorily protected expression; (2) that [s]he suffered an adverse employment action; and (3) that there is some causal relationship between the two events.” Holifield, 115 F.3d at 1566. She is not required to prove the underlying claim of discrimination that led to his protected activity, but he “must have had a reasonable good faith belief that the discrimination existed.” Id. If the plaintiff establishes the prima facie case, the burden-shifting analysis articulated in McDonnell Douglas, Burdine, and Hicks for disparate treatment claims based on circumstantial evidence' continues. See Pennington v. City of Huntsville, 261 F.3d 1262 (11th Cir.2001) (applying burden-shifting paradigm of prima facie case, articulation of legitimate reasons, and showing of pretext to retaliation claim).

Workplace harassment based on a prohibited factor, such as an employee’s sex or race, also violates' Title VII. See Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (discussing Title VII’s prohibition on severe or pervasive harassment based on prohibited factors, including sex, race, and national origin). A plaintiff asserting a harassment claim must show that (1) she is a member of a protected class; (2) she has been subject to unwelcome harassment; (3) the harassment was based on her membership in the protected class; (4) the harassment was sufficiently severe or pervasive such that it altered the terms and conditions of her employment and created a discriminatorily abusive working environment; and (5) there is a basis for holding her employer liable. See Johnson v. Booker T. Washington Broadcasting Serv., Inc., 234 F.3d 501, 508 (11th Cir.2000) (outlining elements of sexual harassment claim).

III. Facts of the case

Virtually every fact in the record in this case is disputed by the parties. They agree that Plaintiff Joyce Gulledge Harris was first employed at Grady Memorial Hospital by Defendant Fulton-DeKalb Hospital Authority in 1994 as Vice President of Human Resources and that she became Senior Vice President of Human Resources a few months later. (D ¶ l). They also agree that Defendant Edward Renford, the President/Chief Executive Officer of Grady Health System, terminated her on December 9, 1998. (D ¶ 39). They do not agree, however, about much that occurred in between.

The parties’ factual statements paint very different pictures of Plaintiffs tenure at Grady. For instance, Plaintiff and a number of witnesses on her behalf assert that she “related well with and supported her employees and was an even-tempered and objective manager” and that “[a]l-though she disagreed with Defendant Ren-ford from time to time on various issues, she did so respectfully and executed directives given.” (P,p.2). Defendants and their witnesses, on the other hand, contend that Plaintiff had “a difficult time dealing with authority” and that she did not get along well with Defendant Renford and made comments to him such as, “If you know so much, handle it yourself.” (D ¶¶ 2, 4). She allegedly frequently showed a lack of respect for him by stating that she would not follow his directives and raising sensitive topics in public meetings and by talking about him to other employees in sarcastic tones. (D ¶¶ 6-7, 20). Defendants assert that Plaintiff also had trouble relating with in-house and outside attorneys while performing her human resources/personnel duties. (D ¶¶ 9-15).

Plaintiff, meanwhile, asserts that it was Defendant Renford who treated her disrespectfully. She claims that he made suggestive and inappropriate sexual comments to her, such as saying that she had “gorgeous brown eyes” and “soft gentle hands” while “roaming his eyes over her body and giving Plaintiff the sense that he was ‘undressing’ her with his eyes.” (P, p. 2-3). She also says that he made inappropriate comments about himself, such as calling himself “Big Ed,” which she took to be a reference to the size of his penis, and telling Plaintiff that, if he ever got divorced, she would be at his “beck and call.” She also asserts that Defendant Renford often “hugged her, stroked her and otherwise touched her suggestively and inappropriately.” He also allegedly inquired about her private life, asking about the “type of men” she was dating, how she “treated” these men, and how she believed she could better “please” the men in her life. (P,p. 3).

In her deposition, Plaintiff testified that Defendant Renford made the suggestive and inappropriate comments about her physical characteristics during the first two or three years of her employment, from 1994 through 1997. (Harris depo., p. 170-71). She also testified that the “Big Ed” comment was made around 1996 or 1997 and that the “beck and call” statement was made before that. (Harris depo., p. 173). She testified that the questions about her private life began shortly after she started working there and that she could not remember when they stopped. (Harris depo., p. 176). In a document she submitted to the Equal Employment Opportunity Commission (“EEOC”) titled “Response to EEOC charge” and dated May 21, 1999, Plaintiff asserted that he stopped asking her for hugs “during approximately the last 18 months of [her] employment.” (Harris depo., exh. 1, p. 11).

She asserts that, because she did not react positively to these comments, Defendant Renford denied her a pay increase in 1995; frequently denied her requests to use vacation time, with the latest such denial coming in the summer of 1998; denied a tuition reimbursement in 1997; and conducted a year-long “investigational vendetta” against her department in 1996-97. She also alleges that he was frequently rude, hostile and abusive to her and that he intentionally sought to embarrass her in front of other executives. She finally alleges that he retaliated against her in an unspecified way for publicly “speaking out against policies and procedures contrary to applicable Federal or State Law, Rules and Regulations, including inter alia, the letting of a contract to a State Senator in 1995 or 1996 without following proper procedures.” (Harris aff., ¶ 4).

Although the parties interpret the incident quite differently, they do seem to agree that a problem developed over Plaintiffs participation or lack thereof in an employment discrimination lawsuit filed against Grady by Christine Swainson. It is undisputed that Plaintiff was a material witness and defendant in the Swainson litigation and that she had been involved in the exchange of memoranda with Ms. Swainson, which led to Ms. Swainson’s termination, of which she approved. (D ¶ 25). It is also undisputed that Plaintiff was deposed by Ms. Swainson’s counsel. According to Randy Gepp, an attorney with the firm of Arrington & Hollowed., P.C., who represented the defendants in that matter, Plaintiff Harris (who was a defendant there) testified that she herself may have been a victim of discrimination but then refused to answer any further questions from Ms. Swainson’s lawyer about it, causing the deposition to be adjourned. According to him, she also later refused to answer any questions about her allegation either from Defendants’ attorneys or from another team of independent attorneys who were hired to investigate.. He avers that Defendants also hired an attorney to represent Plaintiff in the Swainson matter but she stid refused to cooperate. (Gepp aff., ¶¶ 5-10).

Plaintiff denies that she testified that she may have been a discrimination victim but asserts that she said, “I had thought about some things” when asked if she had ever been the victim of discrimination. She acknowledges, though, that she repeatedly refused to answer the same question about her being discriminated against at Grady. (Harris aff., ¶¶ 25-34). Plaintiff apparently refused to answer based on her own personal belief and values system. (D ¶ 28).

In a letter dated November 4, 1998, Defendant Renford told Plaintiff that her “recent actions in the Swainson litigation cause[d him] to question [her] judgment and objectivity.” He observed that “revealing for the first time at a deposition in an important case that [she] may [have felt] that [she] was discriminated against or treated unfairly demonstrates a serious lack of judgment.” He also questioned the wisdom of her refusal not to discuss her allegations with Grady’s attorneys or with the counsel hired to investigate the matter independently. He also stated to her: “You do not appear to be satisfied in your current position and based on your current conduct of refusing to cooperate with The Authority and its attorneys I seriously question your judgment and ability to successfully perform your duties.” He concluded by giving her the option of (1) meeting with Grady’s attorneys and answering their questions about the Swain-son litigation, being suspended for three days if she refused, and then terminated if she refused again; or (2) resigning immediately. (Harris depo, exh. 8).

Plaintiff responded in a letter dated November 10, 1998. She accused Defendant Renford of having mistreated her over the years. She complained that he had discriminated against her by not approving the tuition reimbursement for her that he had approved for his secretary. She complained that he had intentionally inflicted emotional distress upon her by denying her vacation requests, publicly ridiculing her and being openly hostile toward her. She also alleged that his decision to cut the human resources management staff by 50% was based on a personal vendetta against her. She also indicated that she had not submitted formal complaints against him (except on one previous occasion) because she did not want to harm Grady or her own career. She also implied that she would have answered questions about her allegations if Defendant Renford personally had asked her about it earlier. (Harris depo., exh. 27).

Defendants assert that Plaintiff was then suspended without pay from November 12 through November 16, 1998, (D ¶ 38), but Plaintiff asserts that she was out on paid sick leave those days, (Harris aff., f 38). It is agreed, however, that Plaintiff was terminated on December 9, 1998. Defendant Renford presented Plaintiff with another letter, in which he notified her of his decision to terminate her because “it ha[d] become increasingly clear to [him] that [their] working relationship ha[d] deteriorated to a point that it [was] no longer effective or beneficial to Fulton DeKalb Hospital Authority.” (Harris depo., exh. 12). He cited concerns about her performance as Senior Vice President of Human Resources, including actions and statements that indicated her lack of support for him. He asserted that she had not completed important assignments, that she had developed poor relationships with other members of the management team and that she had allowed her disapproval of him to affect her performance. He specifically referred to her refusal to cooperate with the attorneys in the Swainson litigation. (Harris depo., exh. 12).

On March 10, 1999, Plaintiff filed her charge of discrimination with the EEOC, alleging race, sex, and disability discrimination as well as retaliation. (Harris depo., exh. 6).

IV. Plaintiff's Title VII claims

In her complaint, filed on December 14, 2000, Plaintiff asserts claims under Title VII for sexual harassment, gender and race discrimination (disparate treatment), and retaliation.

A. Claims against individual defendants in their individual capacities

In addition to her corporate employers, Plaintiff has also sued Edward J. Renford, Robert L. Brown, Jr., Sarah R. Sloan, and Marla O. Coleman in both their individual and official capacities. As Defendants correctly argue, there is no individual liability under Title VII. Hinson v. Clinch County Bd. of Educ., 231 F.3d 821, 827 (11th Cir.2000); Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir.1995). The individual Defendants are not proper defendants in their individual capacities. The undersigned Magistrate Judge, therefore, RECOMMENDS that Defendants’ motion for summary judgment be GRANTED as to Plaintiffs Title VII claims against Defendants Renford, Brown, Sloan, and Coleman in their individual capacities.

B. Sexual harassment claim

In “Count One: Sexual Harassment” of her complaint, Plaintiff alleges that Defendant Renford created a sexually hostile work environment and made her believe that her job, pay and benefits were dependent upon her positively responding and submitting to his inappropriate and suggestive comments and actions. As explained above, these comments allegedly included his saying that she had “gorgeous brown eyes” and “soft gentle hands” while “roaming his eyes over her body and giving Plaintiff the sense that he was ‘undressing’ her with his eyes” from 1994 through 1997; calling himself “Big Ed,” which she took to be a reference to the size of his penis, around 1996 or 1997; and telling her that, if he ever got divorced, she would be at his “beck and call” sometime before that. He also allegedly inquired about her private life, asking about the “type of men” she was dating, how she “treated” these men, and how she believed she could better “please” the men in her fife. She testified that these questions began shortly after she started working there and that she could not remember when they stopped. His allegedly inappropriate actions involved “huggfing] her, stroking] her and otherwise touched her suggestively and inappropriately” until approximately 18 months prior to her termination. She also alleges that he was frequently rude, hostile and abusive to her and that he intentionally sought to embarrass her in front of other executives. She asserts that, because she did not react positively to this behavior, Defendant Ren-ford denied her a pay increase in 1995; frequently denied her requests to use vacation time, with the latest such denial coming in the summer of 1998; denied a tuition reimbursement in 1997; and conducted a year-long “investigational vendetta” against her department in 1996-97, and ultimately terminated her in 1998.

Defendant first argues that Plaintiffs sexual harassment claim is time-barred by her failure to file an EEOC charge of discrimination within 180 days of the harassing behavior. “Title VII requires that any employee invoking the statute’s protection file a charge with the EEOC within 180 days of the date he or she was discriminated against.” Hill v. Metropolitan Atlanta Rapid Transit Auth., 841 F.2d 1533, 1545, amended by, 848 F.2d 1522 (11th Cir.1988). “The 180 days begins running from the date the employee knows or reasonably should know that he or she has been discriminated against.” Id. Here, Plaintiff filed her EEOC charge in March 1999, precluding from consideration any discriminatory acts that took place prior to October 1998.

Plaintiff generally acknowledges that the harassing acts took place outside of the 180-day time period but argues that her claim is nevertheless timely because these acts were part of a continuing violation that culminated with her termination in December 1998, less than 180 days before the filing of her charge. The continuing violations doctrine provides an exception to the 180-day rule, allowing a plaintiff to pursue a claim on an alleged act of discrimination that took place more than 180 days before she filed her EEOC charge where that discriminatory act was part of a continuing violation of Title VII that continued into the period of time beginning 180 days before the EEOC filing. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir.2001); Beavers v. American Cast Iron Pipe Co., 975 F.2d 792 (11th Cir.1992); Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986). This exception to the general rule is “premised on the equitable notion that the statute of limitations ought not to begin to run until facts supportive of the cause of action are or should be apparent to a reasonably prudent person similarly situated.” Hipp, 252 F.3d at 1222. The purpose of the exception “is to permit the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred.” Id. (quoting Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7th Cir.1994)).

This Court has previously held:

Thus, under the continuing violations doctrine, a claim which otherwise would be precluded because it is based on conduct which falls outside of the 180-day filing period may nonetheless be considered timely when there is a “substantial nexus” between that conduct and conduct occurring within the filing period. In order to demonstrate a continuing violation, a plaintiff must show (1) the occurrence of a specific act of discrimination within the filing period and (2) a link between this act and the alleged misconduct outside of the filing period which forms the basis of plaintiffs claim.

Chawla v. Emory Univ., 1997 WL 907570, *8 (N.D.Ga. Feb. 12, 1997).

Here, the only act of sexual harassment that Plaintiff alleges to have taken place within the 180-day period is her December 1998 termination. The other acts allegedly took place at various times well before that, during the period from 1994 through, at the latest, the summer of 1998. Under the test explained in Chawla, she has not shown that these allegations constitute a continuing violation as she has not shown that there is a substantial nexus between her termination and the alleged harassing behavior, which took place anywhere from six months to four years earlier. The previous acts and the decision to terminate her are not similar in nature. There also is not a close temporal proximity between them. There is no other evidence in the record, other than Plaintiffs conclusory allegation, showing that her termination was based on Defendant Renford’s allegedly harassing behavior or lack of a positive response to it. Furthermore, applying the continuing violations doctrine here would not serve its purpose of “permit[ting] the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred.” Hipp, 252 F.3d at 1222. The discriminatory nature of Defendant Renford’s alleged acts of harassment would have been clear when they occurred.

Accordingly, the undersigned Magistrate Judge finds that Plaintiffs Title VII sexual harassment claim is time-barred and RECOMMENDS that Defendants’ summary judgment motion as to that claim be GRANTED.

C. Disparate treatment claims

The nature of Plaintiffs disparate treatment race and sex discrimination claims, found in “Count Two: Gender and Race Discrimination” of her complaint, is somewhat unclear. In her summary judgment response brief, she seems to argue that she was discriminated against based on her sex and gender when she was denied accrued vacation time; when an earned pay increase was delayed; when she was denied access to a tuition reimbursement plan; and when she was terminated. (Plaintiffs Brief in Opposition to Defendants’ Motion for Summary Judgment, p. 11,13).

Three of these four alleged adverse actions are clearly time-barred. As explained above, the record indicates that Plaintiff was denied vacation time for the last time in the summer of 1998; was denied a pay increase in 1995; and denied a tuition reimbursement in 1997. It is undisputed that each of these discrete adverse employment actions took place more than 180 days before Plaintiff finally filed her EEOC charge in March 1999. As a result, Plaintiffs claims based on them are time-barred. Accordingly, the undersigned Magistrate Judge RECOMMENDS that Defendants’ motion for summary judgment be GRANTED as to Plaintiffs Title VII race and sex discrimination claims regarding these three adverse actions.

The only adverse action as to which Plaintiff filed a timely EEOC charge, then, is her December 1998 termination. As explained above, in order to establish a prima facie case of race or sex discrimination, Plaintiff must show that she is a member of a protected class; that she suffered an adverse employment action; that similarly situated employees from outside her protected class were treated more favorably; and that she was qualified for her job. For these purposes, it is undisputed that Plaintiff is a member of protected classes as she is an African-American female; that she suffered an adverse employment action when she was terminated; and that she was generally qualified for the position she had held for more than four years. The parties dispute, however, whether similarly situated employees from outside her protected classes were treated more favorably in this regard.

The undersigned Magistrate Judge finds that Plaintiff cannot establish a prima facie case of sex or race discrimination as she has not identified a similarly situated male or non-African-American who was treated more favorably than she was regarding her termination. In attempting to satisfy this third prong of the prima, facie case, Plaintiff argues that Defendant Renford treated her more roughly than he treated white females; that he never humiliated men as he humiliated her at meetings; and that he was not open to the ideas of women, especially black women. This line of argument, however, even if true, misses the point. It is Plaintiffs ultimate burden to prove in a Title VII disparate treatment case that, specifically in regard to the adverse employment action on which her claim is based, she was treated less favorably than similarly situated employees outside her protected classes. It is not enough to show that in general the decision-maker treated other people better.

The Eleventh Circuit Court of Appeals has held that:

In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.... We require that the quantity and quality of the comparator’ misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples and oranges.

Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999) (citations omitted). Plaintiff, therefore, would need to show that a male or non-African-American employee (or both) engaged in the same or similar conduct and was disciplined less severely. For instance, she would need to show that a specific male or non-African-American also refused to answer questions regarding a lawsuit filed against Defendants and a subsequent investigation, but was not terminated. Plaintiff has not come close to doing this. In her brief, she has only made general claims that Defendant Ren-ford was less harsh and more open to other unnamed employees.

Accordingly, the undersigned Magistrate Judge finds that Plaintiff is unable to make out a prima facie case of race or sex discrimination and, therefore, RECOMMENDS that Defendants’ motion for summary judgment be GRANTED as to Plaintiffs Title VII disparate treatment claims.

D. Retaliation claim

Plaintiff further alleges that she was terminated in retaliation for her refusal to answer questions about possible discrimination in her deposition for the Swainson litigation and in subsequent questioning and investigations. As explained above, in order to establish a prima facie case of retaliation, Plaintiff must show that she engaged in statutorily protected conduct; that she suffered an adverse employment action; and that there is a causal connection between the two events. It is again undisputed that Plaintiff suffered an adverse employment action when she was terminated, but the parties dispute whether she can satisfy the other two prongs.

This claim raises the rather unusual issue of whether an employee’s refusal to answer questions, asked in a deposition regarding another employee’s lawsuit and a resulting investigation, about whether her employer had previously discriminated against her constitutes protected activity under Title VII. The statute prohibits discrimination against an employee “because [s]he has opposed any practice made an unlawful employment practice by this sub-chapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). This prohibition includes both an “opposition clause” and a “participation clause.” EEOC v. Total Sys. Servs., Inc., 221 F.3d at 1174. Although Plaintiff does not reference this distinction, it appears that she relies on the participation clause r