Anderson v. Dunbar Armored, Inc. (678 F. Supp. 2d 1280, 2009)

United States District Court for the Northern District of Georgia 2009-08-18

Citations

Full opinion text

ORDER

BEVERLY B. MARTIN, District Judge.

This case is before the court on the Final Report and Recommendation of the Magistrate Judge (the “R & R”) [Doc. No. 42]. In the R & R, the Magistrate Judge recommends that the court grant Defendants Dunbar Armored, Inc. (“Dunbar”), Harry A. Kocopi (“Mr. Kocopi”), and Horace Johnson’s (“Mr. Johnson”) (collectively “Defendants”) converted Motion for Summary Judgment [Doc. No. 24]; and likewise grant Dunbar’s converted Motion for Summary Judgment [Doc. No. 5], Mr. Johnson’s converted Motion for Summary Judgment [Doc. No. 12], and Mr. Kocopi’s converted Motion for Summary Judgment [Doc. No. 14]. Finally, the Magistrate Judge recommends that the court grant the Defendants’ Motion to Strike the Second Amended Complaint [Doc. No. 37]; and recommends sua sponte, that Plaintiffs Sharon Anderson and George Anderson’s (collectively “the Andersons”) claims against Ashley R. Mew “(Mr. Mew”) be dismissed without prejudice due to the Andersons’ failure to serve Mr. Mew pursuant to Rule 4(m).

None of the parties has filed Objections to the R & R. Where no objections to the R & R have been stated, the court reviews the R & R for clear error. Tauber v. Barnhart, 438 F.Supp.2d 1366, 1373-74 (N.D.Ga.2006) (Story, J.) (citing HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir.2005)); Chamblee v. Schweiker, 518 F.Supp. 519, 520 (N.D.Ga.1981) (O’Kelley, J.). Clear error review asks if, “after viewing all the evidence, we are ‘left with the definite and firm conviction that a mistake has been committed.’ ” HGI Assocs., 427 F.3d at 873 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

After having conducted a thorough review of the R & R, the court finds no clear error by the Magistrate Judge. See id. The court thus adopts the R & R in its entirety, and grants the Defendants’ converted Motions for Summary Judgment in full.

Summary

For the foregoing reasons, the court ADOPTS the Final Report and Recommendation of the Magistrate Judge [Doc. No. 42]. The Defendants’ converted Motion for Summary Judgment [Doc. No. 24] is GRANTED; Dunbar’s converted Motion for Summary Judgment [Doc. No. 5] is GRANTED; Mr. Johnson’s converted Motion for Summary Judgment [Doc. No. 12] is GRANTED; and Mr. Kocopi’s converted Motion for Summary Judgment [Doc. No. 14] is likewise GRANTED. The court also GRANTS the Defendants’ Motion to Strike the Second Amended Complaint [Doc. No. 37], and finally, DISMISSES WITHOUT PREJUDICE all claims against Mr. Mew due to the Andersons’ failure to serve him pursuant to Rule 4(m). This case is hereby DISMISSED.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, United States Magistrate Judge.

Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), and N.D. Ga. R. 72.1(D)(2). Let the same be filed and a copy, with a copy of this order, be served upon counsel for the parties or, if a party is not represented, upon that party directly.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to any transcripts if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983).

The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

IT IS SO ORDERED and DIRECTED, this 24th day of July, 2009.

UNITED STATES MAGISTRATE JUDGE’S ORDER AND FINAL REPORT AND RECOMMENDATION

Currently before the Court are Defendants Dunbar Armored, Inc’s (“Dunbar Armored”), Harry Kocopi’s (“Kocopi”) and Horace Johnson’s (“Johnson”) (collectively “Defendants”) converted motions for summary judgment. [Docs. 5, 12, 14 and 24], For the reasons set forth herein, the undersigned RECOMMENDS that Defendants’ converted motion for summary judgment, [Doc. 24], be GRANTED, and that Defendants Dunbar Armored, Kocopi, and Johnson’s converted motions for summary judgment, [Docs. 5, 12, and 14], which rely on the arguments made in Dunbar Armored’s motion, also be GRANTED. The Court further RECOMMENDS that Defendants’ motion to strike Plaintiffs’ Second Amended Complaint, [Doc. 37], be GRANTED. Also, the Court RECOMMENDS, SUA SPONTE, that Plaintiffs’ claims against Defendant Mew be DISMISSED WITHOUT PREJUDICE for Plaintiffs’ failure to serve him pursuant to Fed. R. Civ. P. 4(m). The Court GRANTS Defendants’ motion to stay discovery and defer issuance of the scheduling order, [Doc. 33]. Plaintiffs construed Rule 56(f) motion, [Doc. 36], is DENIED.

INTRODUCTION

Plaintiffs filed a complaint on November 26, 2008, against Defendants alleging pregnancy discrimination and gender discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), harassment in violation of the Civil Rights act of 1991, 42 U.S.C. § 1981, et seq., (“§ 1981”), and negligent retention and hiring, intentional infliction of emotional distress, vicarious/imputed liability, loss of consortium, and punitive damages under Georgia law. [Doc. 1]. In lieu of answering, Defendants filed motions to dismiss and submitted documents in support of their motions. [See Docs. 5, 12, and 14]. Plaintiffs responded to these motions and also submitted various documents in support of their responses. [Docs. 18 and 22],

On March 9, 2009, Plaintiffs filed an amended complaint against all Defendants alleging discrimination based on race and gender in violation of Title VII and 1981, violation of the Equal Protection Clause of the Fourteenth Amendment, conspiracy in violation of 18 U.S.C. § 241, deprivation under color of law in violation of 18 U.S.C. § 242, and intentional infliction of emotional distress, negligent infliction of emotional distress, loss of consortium, and punitive damages under Georgia law, harassment in violation of 1981, retaliation in violation of Title VII and 1981, and vicarious/ imputed liability, and negligent retention and hiring under Georgia law by Dunbar Armored. [Doc. 15 (“Amended Complaint”) ].

Defendants again responded by filing a motion to dismiss with documents in support of their motion. [Doc. 24]. Plaintiffs timely responded and relied on their documents previously submitted. [Docs. 18, 22 and 25]. Defendants timely filed a reply brief. [Doc. 26].

On June 2, 2009, the undersigned converted Defendants’ various motions to dismiss into motions for summary judgment, and gave Plaintiffs until June 23, 2009, to respond to the converted motions for summary judgment. [Doc. 27]. Thereafter, Defendants filed a motion to stay discovery and issuance of the scheduling order, to which Plaintiffs timely responded. [Docs. 33 and 38], On June 22, 2009, Plaintiffs filed a second amended complaint and a response to Defendants’ construed motions for summary judgment. [Docs. 35 and 36, respectively]. Defendants then filed a motion to strike Plaintiffs’ second amended complaint and a reply to Plaintiffs’ response to the construed motions for summary judgment. [Doc. 37 and 39, respectively]. Plaintiffs timely responded to Defendants’ motion to strike. [Doc. 40]. With briefing concluded, the Court now considers Defendants’ converted motions for summary judgment, motion to strike, and motion to stay discovery and defer issuance of the scheduling order, and Plaintiffs’ construed Rule 56(f) motion.

I. Preliminary Matters

A. Defendant’s Motion to Stay Discovery and Defer Issuance of Scheduliny Order, [Doc. 33]

Defendants argue that discovery should be stayed and the issuance of the scheduling order deferred until the Court rules on the converted motions for summary judgment. [Doc.- 33 at 1], Defendants also argue that the Court’s ruling on the dis-positive motions is likely to eliminate the need for any discovery, or reduce the number of claims and parties, which would affect the amount of discovery needed, and therefore, to reduce the expense on the parties, discovery should be delayed pending the Court’s ruling. [Id. at 2]. Defendants also argue that the issuance of the scheduling order should be delayed to avoid unnecessary time and expense caused by the issuance of the scheduling order. [Id. at 3].

Plaintiffs respond that discovery should not be stayed and the scheduling order deferred because discovery is an “integral part of an employment discrimination claim” and Defendants have not show good cause. [Doc. 38 at 3]. Plaintiffs also argue that a scheduling order is necessary “as the preservation of evidence is of the up-most importance due to the fact that a corporate entity and electronic evidence is involved in this matter.” [Id.]. Plaintiffs further argue that the Court can tailor a scheduling order to accommodate the present converted motions for summary judgment. [Id.].

The Federal Rules of Civil Procedure grant the Court discretion to alter the normal discovery schedule “for the convenience of parties’ and witnesses’ and in the interests of justice.” White v. Georgia, No. 1:07-cv-1739-WSD, 2007 WL 3170105, *1 (N.D.Ga. Oct. 25, 2007) (citing Fed. R. Civ. P. 26(d)). Additionally, this Court’s Local Rules grant the Court similar discretion. See N.D. Ga. R. 26.2(B) (“The court may, in its discretion, shorten or lengthen the time for discovery”); see also Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (“The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.”).

In this case, Defendants have challenged the sufficiency of all the claims raised against them in Plaintiffs’ complaint and first amended complaint. As discussed in detail below, Plaintiffs have not specified what discovery they seek to better reply to Defendants’ converted summary judgment motions. Also, the resolution of the pending converted motions for summary judgment alleviates the need for discovery in this case. Therefore, the Court agrees that a stay of discovery and deferring the issuance of the scheduling order is appropriate in this case.

Accordingly, Defendants’ Motion to Stay and Defer Issuance of Scheduling Order, [Doc. 33], is GRANTED pending the District Court’s ruling on Defendants’ converted motions for summary judgment.

B. Defendant’s Motion to Strike Second Amended Complaint, [Doc. 37]

Defendants argue that Plaintiffs’ second amended complaint should be stricken because Plaintiffs failed to comply with Fed. R. Civ. P. 15(a) in that they did not obtain the Defendants’ written consent or seek leave of the court to amend their complaint for a second time. [Doc. 37 at 3].

Plaintiffs respond that after reviewing the Court’s June 2, 2009, Order, they concluded that the “most prudent course of action would be to file a Second Amended Complaint....” [Doc. 40 at 3]. Plaintiffs also argue that they interpreted that Court’s June 2, 2009, Order as allowing them leave to file a second amended complaint. [Id.]. Additionally, Plaintiffs argue that they have opposed Defendants’ converted motions for summary judgment throughout this litigation and have acted to “satisfy the Court’s directive.” [Id.]. Finally, Plaintiffs argue that if the Court determines that the attachments to Plaintiffs Second Amended Complaint are inappropriate, that the Court allow Plaintiff to incorporate all facts, claims, and exhibits in their second amended complaint into their brief in opposition to Defendants’ converted motion for summary judgment. [Id. at 3-4].

Defendants reply that Plaintiffs have made no effort to comply with the procedures for seeking leave to leave to file a second amended complaint. [Doc. 41 at 1]. Defendants further reply that the Court’s June 2, 2009, order did not grant Plaintiffs leave to file a second amended complaint. [Id. at 2-3]. Finally, Defendants reply that allowing Plaintiffs to file a second amended complaint would be frivolous because Plaintiffs’ second amended complaint is substantially similar to their first amended complaint and would cause unnecessary waste of the parties’ time, effort, and money if the Defendants were required to move to dismiss Plaintiffs’ claims again. [Id. at 4-5].

Federal Rule of Civil Procedure 15 provides, in pertinent part, as follows:

(а) Amendments Before Trial.

(1) Amending as a Matter of Course.

A party may amend its pleading once as a matter of course:

(A) before being served with a responsive pleading; or

(B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a).

The Court concludes that Plaintiffs failed to comply with Rule 15 when they filed their second amended complaint. Plaintiffs filed their second amended complaint on June 22, 2009. [Doc. 35]. Plaintiffs previously amended their complaint as a matter of right on March 9, 2009, when they filed their first amended complaint. [See Doc. 15]. Having done so, Plaintiffs are not entitled to further amend their pleadings as a matter of right. Hazewood v. Foundation Financial Group, LLC., Civil Action No. 07-0171-WS-B, 2007 WL 1628305, *1 (S.DAla. June 1, 2007) (citing Williams v. Board of Regents of University System of Georgia, 477 F.3d 1282, 1291 (11th Cir.2007) (recognizing that Rule 15(a) provides that a party “may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served”) (emphasis added)).

Here, Plaintiffs did not seek permission of the Defendants or leave of the Court before filing their second amended complaint. [See Dkt.]. As such, in its present posture Plaintiffs’ second amended complaint has been filed in violation of the Federal Rules of Civil Procedure.

To the extent that Plaintiffs argue that they believed the Court’s June 2, 2009, order gave them permission to file a second amended complaint, this contention is without merit. The Court’s order merely advised the parties that Defendants’ motions to dismiss were being converted to motions for summary judgment and that the parties had twenty days in which to submit all pertinent materials. [Doc. 27 at 1-2, 7-8]. Specifically, the Court’s order provided in part:

As a result, the Court converts Defendants’ motions to dismiss to motions for summary judgment. See Fed. R. Civ. P. 12(d). Plaintiff shall therefore have until June 23, 2009, to present all the material that is pertinent in response to Defendants’ motions. Defendants shall have ten (10) days to file a reply.

[Id. at 7]. This language could not have reasonably led Plaintiffs to believe that they were being granted permission to file a second amended complaint.

Accordingly, the undersigned RECOMMENDS that Defendants’ Motion to Strike Plaintiffs’ Second Amended Complaint, [Doc. 37], be GRANTED and that Plaintiffs’ Second Amended Complaint, [Doc. 35], be STRICKEN from the record. However, the Court will consider the documents attached by Plaintiffs to their second amended complaint in ruling on Defendants’ converted motions for summary judgment, for two reasons. First, Defendants do not oppose the Court’s consideration of these materials. [Doc. 41 at 5]. Second, in ruling on a motion for summary judgment, the Court considers “the pleadings, the discovery and disclosure materials on file, and any affidavits” to determine if there is a genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Unless and until the District Court adopts this portion of the Report and Recommendation (“R & R”), Plaintiffs’ second amended complaint remains part of the record.

C. Plaintiffs’ Construed, Rule 56(f) Motion, [Doc. 36]

In their response to the Court’s June 2, 2009, order, Plaintiffs argue that summary judgment is premature because discovery has not yet been completed. [Doc. 36 at 6-7]. Plaintiffs further argue that Defendants are “working aggressively to preclude discovery.” [Id. at 8]. Finally, Plaintiffs argue that Defendants have not produced enough evidence to refute Plaintiffs’ numerous claims, and thus, discovery needs to conclude before any summary judgment motions are filed. [Id. at 8]. The Court construes this as a motion under Fed. R. Civ. P. 56(f).

Defendants respond that Plaintiffs’ contention that summary judgment is premature must fail because Plaintiffs did not satisfy the requirements of Fed. R. Civ. P. 56(f), in that they did not demonstrate with specificity how discovery will permit them to rebut Defendants’ contentions. [Doc. 39 at 5]. Defendants also argue that Plaintiffs have never asserted that they are unable to respond the converted motion for summary judgment and have already filed three briefs in opposition to the converted motions. [Id. at 6]. Finally, Defendants argue that Plaintiffs have offered nothing more than vague assertions that additional discovery is needed to reveal unspecified facts. [Id.]

Rule 56(f) provides as follows:

(f) When Affidavits Are Unavailable.

If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) deny the motion;

(2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or

(3) issue any other just order.

Fed. R. Civ. P. 56(f). In applying this rule, courts have held that a party opposing a summary judgment motion in this fashion “ ‘must conclusively justify his entitlement to the shelter of Rule 56(f) by presenting specific facts explaining the inability to make a substantive response as required by Rule 56(e) and by specifically demonstrating how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.’ ” Parks v. Doan, Civil Action file No. 1:06-cv-1885-TWT, 2007 WL 1482770, *3 (N.D.Ga. May 17, 2007) (citing Reynard v. NEC Corp., 887 F.Supp. 1500, 1508 (M.D.Fla.1995)) (quoting SEC v. Spence & Green Chem. Co., 612 F.2d 896 (5th Cir. 1980)). The party seeking to use Rule 56(f) “ ‘may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts,’ but rather he must specifically demonstrate ‘how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.’” Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir.1983) (quoting Spence & Green Chem. Co., 612 F.2d at 900). The decision to grant or deny a Rule 56(f) motion lies within the sound discretion of the trial judge. Burks v. Am. Cast Iron Pipe Co., 212 F.3d 1333, 1336 (11th Cir.2000); Carmical v. Bell Helicopter Textron, Inc., 117 F.3d 490, 493 (11th Cir.1997).

In this case, Plaintiffs have failed to satisfy the requirements of Rule 56(f). Specifically, they have not described in detail why they cannot properly oppose Defendants’ converted motions. While it is true that the Eleventh Circuit has held that “the opposing party need not file an affidavit pursuant to Federal Rule of Civil Procedure 56(f) in order to invoke the protection of that rule because the written representation by [the opposing party’s] lawyer, an officer of the court, is in the spirit of Rule 56(f) under the circumstances,” Morrow v. Israel Aircraft Industries, Ltd., No. 2:05-cv-295-FtM-34DNF, 2007 WL 2826148, *4 (M.D.Fla. Sept. 25, 2007) (citing Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 570 (11th Cir.1990) (internal quotations omitted) (alternation in original)), Plaintiffs are not entitled to any relief under Rule 56(f) because they have not set forth any specific facts to justify their need for additional discovery before responding to Defendants’ motions. Instead, as Defendants point out, Plaintiffs vaguely assert that additional discovery is necessary because Defendants are attempting to preclude discovery, but they do not point out the nature of what additional discovery is necessary for their claims to withstand summary judgment. As such, Plaintiffs are not entitled to have the Court delay ruling on Defendants’ converted motions for summary judgment. See Wallace v. Brownell Pontiac-GMC Co., Inc., 70S F.2d 525, 527 (11th Cir.1983) (holding that a nonmovant seeking the protection of Rule 56(f) may not rely on vague assertions that additional discovery will produce needed but unspecified facts, rather that party must demonstrate to the Court how postponement of the ruling will enable him to rebut the movant’s contentions) (internal quotation marks and citations omitted); see also Robinson v. Adventist Health System, 259 Fed.Appx. 245, 246 (11th Cir.2007); Fisher v. Ciba Specialty Chemicals Corp., No. 03-0566-WS-B, 2007 WL 2995525, *10 n. 19 (S.DAla. Oct. 11, 2007) (denying Rule 56(f) motion because plaintiff failed to show how additional discovery would be germane to the issues raised in the summary judgment motion).

Accordingly, Plaintiffs Rule 56(f), [Doc. 36], motion is DENIED.

D. Plaintiffs’ Failure to Serve Defendant Mew

Defendant Mew has never been served with a summons and complaint in the present action. Under the Federal Rules of Civil Procedure, the plaintiff is tasked with serving a defendant with both a summons and the complaint within the time allowed under Fed. R. Civ. P. 4(m). See Fed. R. Civ. P. 4(c)(1). Rule 4(m) requires the plaintiff to effect service upon the defendant within one hundred twenty (120) days of the filing of the complaint. Fed. R. Civ. P. 4(m); see Lepone-Dempsey v. Carroll County Comm’rs, 476 F.3d 1277, 1281 (11th Cir.2007). Thus, Plaintiffs were responsible for properly serving Defendant Mew within one hundred twenty days of the date the complaint was filed initially or an amended complaint was filed. Where, as here, plaintiffs failed to serve Defendant Mew properly within the one hundred twenty-day period allotted under the Federal Rules of Civil Procedure,

the court-on motion or on its own initiative after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be effected within a specified time. But if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). Approximately seven and a half months have elapsed since the filing of this lawsuit and over four months have passed since Plaintiffs filed their first amended complaint, but Plaintiffs have failed to serve Defendant Mew. Accordingly, the undersigned RECOMMENDS that Plaintiffs claims against Defendant Mew be DISMISSED WITHOUT PREJUDICE for failure to serve in accordance with Fed. R. Civ. P. 4(m). See Lau v. Klinger, 46 F.Supp.2d 1377, 1380 (S.D.Ga. 1999); Madison v. BP Oil, 928 F.Supp. 1132, 1136 (S.D.Ala.1996).

This Report and Recommendation (“R & R”) SERVES as notice to Plaintiffs that if they disagree with this recommendation, they must file timely objections to the R & R with the District Court, setting forth appropriate evidence and arguments why their failure to serve Defendant Mew should not result in the dismissal of their claims against him. See e.g., United States v. Willis, 273 F.3d 592, 597 n. 6 (5th Cir.2001) (“We note here that these two concerns [of notice and an opportunity to be heard] were satisfied due to the fact that the magistrate raised the issue and Willis then had an opportunity to argue against the magistrate’s findings to the district court.”); O’Connor v. McNeil, No. 07-60636-CIV, 2008 WL 762651, *3 (S.D.Fla. Mar. 20, 2008) (stating that R & R places petitioner on notice to object to magistrate judge’s sua sponte recommendation of dismissal of habeas petition as untimely filed).

In this regard, Plaintiffs are ADVISED that in order to avoid dismissal for their failure to serve Defendant Mew, they must demonstrate to the District Judge “good cause” for their failure to effectuate service. “Good cause exists ‘only when some outside factor [,] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service.’ ” Lepone-Dempsey, 476 F.3d at 1281 (citing Prisco v. Frank, 929 F.2d 603, 604 (11th Cir.1991) (per curiam) (discussing good cause under former Rule 4(j)), superceded in part by rule as stated in Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 n. 2 (11th Cir.2005)). The serving party (i.e., Plaintiffs) bears the burden of proof with regard to validity of service or good cause for failure to effect timely service. Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir.1990).

The Court acknowledges that even in the absence of a showing of good cause, courts retain the discretion to extend the time for service of process. Horenkamp, 402 F.3d at 1132; Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.1996); Ritts v. Dealers Alliance Credit Corp., 989 F.Supp. 1475, 1478 (N.D.Ga.1997) (extending time to effect service in absence of good cause where the defendant had filed a counterclaim against the plaintiff, because if the court dismissed the plaintiffs complaint the plaintiff could re-file the complaint as a compulsory counterclaim in the pending action); see also Henderson v. United States, 517 U.S. 654, 663, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (recognizing that in the 1993 amendments to the rules, courts were given discretion to extend the one hundred twenty-day period even absent a showing of good cause). Indeed, in Lepone-Dempsey, the Eleventh Circuit determined that where “a plaintiff fails to show good cause for failing to effect timely service pursuant to Rule 4(m), the [ ] court must still consider whether any other circumstances warrant an extension of time based on the facts of the case.” LeponeDempsey, 476 F.3d at 1282 (emphasis supplied). Circumstances justifying a court’s exercise of discretion to extend the time for service include where “the applicable statute of limitations would bar the refiled action, or [where] the defendant is evading service or conceals a defect in attempted service.” Horenkamp, 402 F.3d at 1132-33 (citing Fed. R. Civ. P. 4(m), advisory committee note, 1993 amendments). As the Lepone-Dempsey Court instructed, “[o]nly after considering whether any such factors exist may the [ ] court exercise its discretion and either dismiss the case without prejudice or direct that service be effected within a specified time.” Lepone-Dempsey, 476 F.3d at 1282. “[T]he decision to extend time for service is within the [c]ourt’s sound discretion.” Bailey v. Employment Standards Admin., No. CV 107-010, 2007 WL 2710455, *1 (S.D.Ga. Sept. 12, 2007).

As will be discussed in detail below, Defendants are entitled to summary judgment on all of Plaintiffs claims. Accordingly, the Court RECOMMENDS that Plaintiffs NOT be afforded any additional time in which to serve Defendant Mew.

II. Defendants’ Converted Motion for Summary Judgment, [Doc. 24]

A. Statement of Facts

The pertinent facts of this case at the summary judgment stage, construed in the light most favorable to the Plaintiff as the non-moving party, are as follows:

Dunbar Armored runs an armored car business in Georgia, among other states, which includes a Norcross, Georgia, office (“Atlanta Office”). First Amended Complaint (hereinafter “Amended Complaint”), [Doc. 15], at ¶ 2. During the relevant time period, Kocopi was Dunbar Armored’s Director of Employee Relations, Mew was Dunbar Armored’s Branch Manager, and Johnson was Dunbar Armored’s General Manager. Id. at ¶¶ 3-5.

On April 21, 2001, Plaintiff Sharon Anderson (“Ms. Anderson”), an African-American female, began working for Dunbar Armored as a Secretary. Id. at ¶ 11. On March 10, 2005, Ms. Anderson was promoted to the position of Office Manager at the Atlanta office. Id. at ¶ 16. As Office Manager, Ms. Anderson was in charge of the management and secretarial duties of the front office. Id. at ¶ 22. She was the sole individual who filled the position of Office Manager at Dunbar Armored’s Atlanta office. [Doc. 26-2 (Affidavit of Harry A. Kocopi (“Kocopi Aff.”)) at ¶ 3]. While Ms. Anderson was the Atlanta Office Manager, her immediate supervisor was Horace Johnson. Amended Complaint at ¶ 18. During her employment with Dunbar Armored, Ms. Anderson submitted one written complaint to management, which concerned her workload and was dated January 26, 2006. [Doc. 26-2 at 5-6].

In November 2006, Ms. Anderson learned that she was pregnant. Amended Complaint at ¶ 25. In late February 2007, Ms. Anderson began to experience complications with her pregnancy. Id. at ¶ 27; [see also Doc. 22-2 at 13, Doc. 35-15 at 1].

On March 28, 2007, Johnson issued a written memo addressed to Ms. Anderson. In this memorandum, Johnson stated:

All 201, DOT and training files need to be updated so that the files are in compliance with company expectation. You and your staff were verbally tasked with completing this on more than one occasion by this branch’s former Regional Human Resources Manager Sonia Borges and me several months ago yet files remain incomplete. Last week, further instructions were provided to complete the reorganization of the files to which you agreed to manage the DOT and Training File restructuring. Regional Human Resource Manager Clarisa Thompson agreed to assist with this duty. Unfortunately, the assisted efforts of Ms. Thompson are the only part of the project that has begun to date. The agreement was for you and your staff to complete the DOT and Training Files but that project has not begun as of yet. By Wednesday, April 4, 2007, you are required to ensure that all 201, DOT and Training Files arc properly updated and filed back away. In addition, you should ensure that all files, paperwork and notepads are moved from the tops of the file cabinets and properly stored away. Thank you for your efforts to better the processes within the Front Office.

[Doc. 35-14].

Starting on April 10, 2007, Ms. Anderson was placed on FMLA leave after being certified for such leave by her physician. Amended Complaint at ¶¶ 31-34. Ms. Anderson’s employer certification form, which was completed by her physician, stated that she was suffering from severe headaches, depression, and anxiety causing stress and complications during her pregnancy. [Doc. 22-2 at 14; Docs. 35-16 to— 19]. Ms. Anderson remained on medical leave until October 1, 2007. Amended Complaint at ¶ 34.

While Plaintiff was employed by Dunbar Armored, at least three other employees had medical leaves in excess of twelve weeks. Darci Dunn, the Senior Benefits Administrator, received approximately six months of extended leave due to pregnancy. Amended Complaint at ¶ 42; [see also Doc. 24-7 at 4, 7]. Shuntell Aikens, a Driver/Guard, also received approximately six months of extended leave due to pregnancy. Amended Complaint at ¶ 40. Additionally, Dunbar Armored employee Charles Vaughn received approximately seventeen weeks of extended leave. Amended Complaint at ¶ 39.

In April 2007, Dunbar hired a temporary employee to perform Ms. Anderson’s duties. Amended Complaint at ¶ 52. On July 2, 2007, Kocopi, as Director of Employee Relations for Dunbar Armored, wrote Ms. Anderson a letter concerning her employment status. Id. ¶ 53. The letter stated, as follows:

I am writing to inform you that your Family Medical Leave (FMLA) expired on June 25, 2007. Additionally, the last medical certificate we received from you indicated that you would return to work on/about September 3, 2007.

Because your leave has expired at this time and you are not able to return to work for two months, we cannot hold your position open and we are taking steps to fill it. Therefore, should this position be vacant at the time you are able to return to work, we will reinstate you to your former position. However, if it is encumbered at the time you are able to return to work, we will look at other positions in the Atlanta branch, if any, for which you are qualified and you can decided whether to consider other options. In any event, you remain an employee of the company during this time and your status will be assessed at that time.

It will be necessary for you to present a medical certificate indicating your medical status and/or ability to work on/ about September 3, 2007. You will continue to be eligible for short-term disability as long as you meet the conditions for eligibility for that benefit. Should you have any questions, please feel free to contact me.

[Doc. 24-3 at 2; Doc. 35-21].

On August 27, 2007, Ms. Anderson’s physician advised that she had a Cesarian section on August 3, 2007, would need to be out of work until October 1, 2007, and that after that date, she would be able to return to work with no restrictions. [Doc. 35-22].

On September 13, 2007, Branch Manager Mew wrote a letter to Ms. Anderson advising her that the Office Manager position had been filled, but that she could apply for other positions with Dunbar Armored for which she was qualified. Amended Complaint ¶ 54; [see also Doc. 24-4 at 2; Doc. 35-23]. Specifically, the letter stated as follows:

I am writing to inform you that the Office Manager position in the Atlanta Branch has been filled. Mr. Harry Kocopi, Director of Employee Relations, notified you in writing on July 2, 2007, that we could not hold your position and were taking steps to fill it. If you would be interested in applying for other positions in the Atlanta Branch for which you are qualified, please feel free to contact us.

Please know that we greatly appreciate your efforts. Should you have any questions, please feel free to contact me.

[Id.].

On October 1, 2007, Ms. Anderson contacted Dunbar Armored about returning to work. Amended Complaint at ¶ 55. Since it had filled her Office Manager position, Dunbar Armored offered Ms. Anderson the vacant and available position of Driver/Guard. Id. at ¶ 56. That position provided a different and lesser salary/hourly rate and benefits compared to Ms. Anderson’s former position. Id. at ¶ 58. Dunbar Armored did not offer to train, or train, Ms. Anderson to perform the Driver/guard job. Id. at ¶ 59. On October 1, 2007, Ms. Anderson was terminated from Dunbar Armored because her FMLA leave had expired. Id. ¶ 38; [see also Doc. 22-2 at21; Doc.35-13].

After her employment ended with Dunbar Armored, Ms. Anderson filed for and received unemployment benefits. [Doc. 22-2 at 22; Doc.35-28].

Ms. Anderson filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on November 19, 2007. Amended Complaint ¶ 48; [see also Doc. 24-6 at 2; Doc. 35-30]. Ms. Anderson’s EEOC Charge alleges as follows:

I was employed by the company from April 2001 to October 2007, and my most recent position was Office Manager. I was on medically excused maternity leave from April 11, 2007 to October 1, 2007. On October 1, 2007, I was discharged.

I was informed that my Office Manager position had been filled, and I was not offered any other position.

I believe that I was discriminated against based on my sex (female due to pregnancy) in violation of Title VII of the Civil Rights Act of 1964, as amended.

[Doc. 24-6 at 2; Doc. 35-30]. Additionally, the EEOC Intake Questionnaire, completed by Ms. Anderson on October 25, 2007, alleged that she was discriminated against due to her pregnancy and that her position was filled while she was out on maternity leave. [Doc. 24-7 at 3]. Plaintiff further alleged that two other employees that went on 25 maternity leave prior to her “were out more than five months and were able to return to the same position with the same rate of pay.” [Id.].

The EEOC issued a right to sue letter on August 28, 2008. [Doc. 24-8 at 2; Doc. 35-31].

Although not set forth in a straightforward manner, it appears that Plaintiffs’ Amended Complaint, [Doc. 15], alleges the following:

• Count One: Sharon Anderson’s claim for Title VII race discrimination, against Dunbar Armored;

• Count Two: Sharon Anderson’s claim for Title VII sex discrimination, against Dunbar Armored;

• Count Three: Sharon Anderson’s claim for harassment due to her pregnancy under Title VII and § 1981, against Dunbar Armored;

• Count Four: Sharon Anderson’s claim for retaliation under Title VII and § 1981, against Dunbar Armored;

• Count Five: Sharon Anderson’s Equal Protection claim, against all defendants;

• Count Six: Sharon Anderson’s claim for conspiracy to violate civil rights under 18 U.S.C. § 241, against all defendants;

• Count Seven: Sharon Anderson’s claim for deprivation of rights under color of law under 18 U.S.C. § 242, against all defendants;

• Count Eight: Sharon Anderson’s claim for negligent hiring and retention due to Johnson’s harassment, against Dunbar Armored;

• Count Nine: Sharon Anderson’s claim for negligent hiring and retention due to Kocopi, Mew and Johnson’s discrimination, against Dunbar Armored;

• Count Ten: Sharon Anderson’s claim for intentional infliction of emotional distress, against all defendants;

• Count 11: Sharon Anderson’s claim for negligent infliction of emotional distress, against all defendants;

• Count Twelve: Sharon Anderson’s claim for imputed liability, against Dunbar Armored;

• Count Thirteen: George Anderson’s claim for loss of consortium, against all defendants; and

• Count Fourteen: Plaintiffs’ claim for punitive damages, against all defendants.

B. Summary Judgment Standard

Summary judgment is proper when no genuine issue as to any material fact is present, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant carries 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)); see also Burger King Corp. v. E-Z Eating, 41 Corp., 572 F.3d 1306, 1313 (11th Cir.2009) (“[A] party seeking summary judgment always bears the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”) (quoting Catrett, id.) (internal quotations omitted). “Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

The nonmovant is then required “to go beyond the pleadings” and present competent evidence in the form of affidavits, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. “The mere existence of a scintilla of evidence” supporting the nonmovant’s case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether to grant summary judgment, the Court must remember that “[cjredibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Accordingly, on summary judgment, “the evidence of the non-movant is to be believed.” Id. at 255, 106 S.Ct. 2505. The district court should “resolve all reasonable doubts about the facts in favor of the non-movant,” Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir.1990), and draw “all justifiable inferences ... in his favor,” Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). “If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact,” summary judgment is not justified. United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties in State of Ala., 941 F.2d 1428, 1437 (11th Cir.1991) (quoting Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir.1990)). At the same time, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. If the record does not blatantly contradict the nonmovant’s version of events, the court must determine “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” See Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also EPL Inc. v. USA Federal Credit Union, 173 F.3d 1356, 1362 (11th Cir.1999); Duke v. Cleland, 884 F.Supp. 511, 514 (N.D.Ga.1995). Summary judgment is properly entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

C. Discussion

1. Statutory Framework

Ms. Anderson bring claims of employment discrimination under Title VII and 42 U.S.C. § 1981. Both Title VII and § 1981 employ the same analysis in considering employment discrimination claims. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998) (stating that Title VII and § 1981 “have the same requirements of proof and use the same analytical framework”). Therefore, the Court explicitly addresses Ms. Anderson’s Title VII claims with the understanding that the analysis also applies to her § 1981 claims where appropriate.

Title VII 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)(1). Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts[] ... as is enjoyed by white citizens .... ”

2. Failure to Exhaust

Defendants argue that Ms. Anderson’s Title VII discrimination, hostile work environment, harassment, and retaliation claims based on race are barred because she did not assert these claims in her EEOC Charge. [Doc. 24-2 at 10-13, 16-26].

Plaintiffs do not directly respond to Defendants’ arguments that Ms. Anderson’s Title VII claims for discrimination, hostile work environment, harassment, and retaliation based on race are barred because Ms. Anderson failed to exhaust her administrative remedies. [See e.g., Doc. 25 at 11]. Instead, Plaintiffs argue that these claims are not barred because they are brought pursuant to § 1981. [M]. Defendants reply by reiterating that with the exception of Ms. Anderson’s sex discrimination claim, Plaintiffs’ remaining Title VII claims are barred because she did not raise these claims in the EEOC charge. [Doc. 26 at 5-6].

Then, in response to the Court’s June 2, 2009, order, Plaintiffs further respond that Ms. Anderson’s racial discrimination claims grow out of her EEOC charge because she complained to the EEOC that Darci Dunn, who is Caucasian, was allowed an extended maternity leave. [Doc. 36 at 10].

Defendants further respond by reiterating that Ms. Anderson never filed a charge of discrimination with the EEOC alleging race discrimination. [Doc. 39 at 7].

Before filing a Title VII action in court, a plaintiff first must file a charge of discrimination with the EEOC. Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir.2004). The purpose of an EEOC charge is twofold: “(1) notification to the employer that a discrimination charge has been lodged with the EEOC; and (2) initiation of the agency’s investigation of the complaint.” Pijnenburg v. West Georgia Health System, Inc., 255 F.3d 1304, 1306 (11th Cir.2001). By investigating an EEOC charge, the EEOC may “perform its role in obtaining voluntary compliance and promoting conciliation efforts.” Id. (quoting Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983)). Moreover, the notification and investigation functions are not “satisfied by the filing of an Intake Questionnaire.” Pijnenburg, 255 F.3d at 1306.

On the other hand, a plaintiff may bring Title VII judicial claims that “amplify, clarify, or more clearly focus” the allegations in the EEOC charge. Gregory, 355 F.3d at 1279 (quoting Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.1989)). In other words, “a ‘plaintiffs judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’ ” Id. at 1280 (quoting Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir.2000)). Thus, a plaintiff may not allege new acts of discrimination in a civil action. Id. at 1279-80. “Courts are nonetheless ‘extremely reluctant to allow procedural technicalities to bar claims brought under [Title VII],’ ” such that the EEOC charge is not to be “strictly interpreted.” Id. at 1280 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61, 465 (5th Cir.1970)). “[T]he proper inquiry” is whether the “complaint was like or related to, or grew out of, the allegations contained in her EEOC charge.” Id. As a result, courts examine whether a plaintiff has “stated facts from which a reasonable EEOC investigator could have concluded that what she had complained about is [a discriminatory, harassing, or retaliatory act explicitly omitted from the EEOC charge]” due to her EEOC charge. Id.

Initially, the Court notes that Plaintiffs correctly assert that § 1981 does not require that a plaintiff exhaust her remedies prior to filing a lawsuit. Price v. M & H Valve Co., 177 Fed.Appx. 1, 9 (11th Cir.2006) (holding that a plaintiff is not required to exhaust his administrative remedies before filing a § 1981 action in federal court) (citing Caldwell v. Nat’l Brewing Co., 443 F.2d 1044, 1046 (5th Cir.1971)) (which in turn held that a plaintiff alleging discriminatory employment practices with regard to race “has an independent remedy under § 1981 without respect to exhaustion under Title VII”); see also Gary v. Menlo Logistics Global Transp. Services, Inc., No. 1:06-CV-2139-TWT, 2007 WL 528096, *4 n. 2 (N.D.Ga. Feb. 13, 2007) (“In contrast, § 1981 does not require the exhaustion of remedies.”). Here, however, Ms. Anderson has brought claims pursuant to both Title VII and § 1981. See Amended Complaint, Counts One, Three and Four. Therefore, the Court must address whether Ms. Anderson’s Title VII claims relating to race discrimination properly are before the Court.

The Court concludes that Ms. Anderson’s EEOC charge did not raise claims of discrimination, hostile work environment, harassment and retaliation based on race. First, Ms. Anderson’s EEOC charge makes no mention of any discrimination other than discrimination related to her pregnancy. [See Doc. 24-6 at 2],

Second, her claims of discrimination, hostile work environment, harassment, and retaliation claims based on race would not reasonably be expected to rise out of the EEOC investigation into her gender/pregnancy discrimination claims. Nothing in her EEOC charge suggests that she sought to complain about any type of racial discrimination. Additionally, even if her EEOC intake questionnaire somehow expanded the scope of her EEOC charge, her intake questionnaire makes no mention, nor gives any indication, that she intended to complain about any type of racial discrimination. [See Doc. 24-7]. For example, given the opportunity to check boxes concerning her claims of discrimination, Ms. Anderson only checked the “Pregnancy” box. [Id. at 3]. In addition, in a portion of the questionnaire allowing for a narrative answer, Ms. Anderson made no reference to race discrimination, stating instead as follows:

Upon release from my doctor’s care, I was told by Ashley Mew that I was terminated based on the fact that my position was filled because it was held as long as it could be held. I feel as though I was discriminated against because there were at least two other employees that took maternity leave prior to me and they were out for more than five months but they were able to return to the same position with the same rate of pay.

[/&]. Also, although Ms. Anderson did mention Dunn by name in her EEOC questionnaire, she only complained that Dunn was given six months of maternity leave and allowed to return to her position, but mentioned nothing of Dunn’s race. [Id. at 4, 5 & 7].

Accordingly, these allegations would not lead a reasonable EEOC investigator to conclude that Ms. Anderson complained about discriminatory, harassing, or retaliatory actions based on race. See Hillemann v. Univ. of Central Fla., 167 Fed. Appx. 747, 749-50 (11th Cir.2006) (where EEOC charge contained claim of age discrimination, plaintiff barred from raising race and sex discrimination and retaliation in judicial complaint); Cobb v. Marshall, 481 F.Supp.2d 1248, 1255 (M.D.Ala.2007) (EEOC charge for race and age discrimination and retaliation did not reasonably give rise to investigation into claim of sex discrimination); Richardson v. JM Smith Corp., 473 F.Supp.2d 1317, 1331 (M.D.Ga.2007) (holding that where EEOC charge made no reference whatsoever to a “religion” claim but only race and the factual statements given all pertained to racial discrimination claim, religion claim barred); Gary, 2007 WL 528096 at *6 (“Without some mention in Plaintiffs factual statement of discrimination during the course of his employment, the EEOC had no reason to investigate any adverse employment actions other than Plaintiffs termination.”).

As a result, the undersigned concludes that Ms. Anderson did not exhaust her administrative remedies for her Title VII claims of discrimination, hostile work environment, harassment and retaliation claims based on race.

Accordingly, the undersigned RECOMMENDS that Defendants’ construed motion for summary judgment be GRANTED on Plaintiffs’ Title VII claims of discrimination, hostile work environment, harassment and retaliation based on race. If the District Court disagrees with this conclusion, the undersigned discusses the merits of these claims below.

3. Title VII Gender Discrimination-Disparate Treatment

a. Statutory Framework

As stated above, Title VII 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 ... sex .... ” 42 U.S.C. § 2000e-2(a)(1). Under the Pregnancy Discrimination Act (“PDA”),

[t]he terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

42 U.S.C. § 2000e(k). The Pregnancy Discrimination Act amended Title VII by providing that the prohibition against employment-related discrimination “on the basis of sex” includes discrimination based on pregnancy, childbirth, or related medical conditions. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312-13 (11th Cir.1994). The Eleventh Circuit has held that the “PDA does not require that employers give preferential treatment to pregnant employees.” Spivey v. Beverly Enter. Inc., 196 F.3d 1309, 1312 (11th Cir. 1999). Further, “an employer violates the PDA when it denies a pregnant employee a benefit generally available to temporarily disabled workers holding similar job positions.” Id. at 1313.

b. Circumstantial Evidence

When a party relies on circumstantial evidence to prove their case of discrimination, as in the instant case, courts use the burden-shifting framework articulated by the 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 Cmty. 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); Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.2005); see also Armstrong, 33 F.3d at 1312 (holding that the analysis applied to pregnancy discrimination cases is the same as analysis in other Title VII sex discrimination cases); Brockman v. Avaya, Inc., 545 F.Supp.2d 1248, 1252 (M.D.Fla.2008) (applying McDonnell Douglas framework to PDA claim). Under the McDonnell Douglas framework, a plaintiff must establish first a prima facie case of discrimination. See, e.g., Hicks, 509 U.S. at 506, 113 S.Ct. 2742. If a plaintiff establishes a prima facie case, she has created an inference of discrimination, and the defendant has the burden of producing a legitimate, non-discriminatory reason for its employment action. This burden is “exceedingly light.” Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir.1997). “[T]he defendant must merely proffer non[discriminatory] based reasons, not prove them.” Meeks v. Computer Assocs. Int’l., 15 F.3d at 1013, 1019 (11th Cir.1994).

If the defendant meets this light burden, then the inference of discrimination is erased, and the burden shifts back to the plaintiff “to demonstrate that the defendant’s articulated reason for the adverse employment action is a mere pretext for discrimination.” Holifield, 115 F.3d at 1565. To determine whether an employer’s reason is pretext, courts examine whether the evidence reveals “ ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.’ ” Vessels v. Atlanta Ind. Sch. Sys., 408 F.3d 763, 770 (11th Cir.2005) (quoting Cooper v. Southern Co., 390 F.3d 695, 725 (2004)) (overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006)). A finding that the employer’s reason is not worthy of credence may, but not always, prove pretext because the evidence still must show that the employer was motivated by intentional discrimination. See Meeks, 15 F.3d. at 1019 n. 1 (11th Cir.1994) (citing Hicks, 509 U.S. at 511, 113 S.Ct. 2742). 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.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.2004) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089).

i. Prima Facie Case

Initially, the Court notes that it is unclear whether Ms. Anderson is bringing regular gender discrimination claims in addition to gender discrimination claims under the PDA, or just gender discrimination claims under the PDA. For instance, she alleges that she is bringing claims “due to sex in comparison to male employees in violation of Title VII as codified in 42 U.S.C. § 2000e, et seq.... ” Amended Complaint at 23 (paragraph heading). Additionally, her amended complaint alleges that male employees were allowed to return to their positions with no “change in their position[s] of employment, rate in pay or benefits.” Id. at 24. However, in the factual section of her amended complaint, Ms. Anderson set forth facts which only indicate that she was discriminated against on the basis of her pregnancy. Id. at ¶¶ 25-39. Out of an abundance of caution, therefore, the Court assumes Ms. Anderson is bringing both regular gender and PDA gender discrimination claims.

To establish a prima facie case under the PDA and Title VII “a plaintiff must establish that (1) she is a member of a group protected by Title VII, (2) she is entitled to, or qualified for her position, (3) she suffered an adverse employment action, and (4) she was treated less favorably than similarly situated employees who are not members of her protected class.” Brockman, 545 F.Supp.2d at 1252.

Defendants implicitly concede that Ms. Anderson satisfies the first three requirements of a prima facie case, that is, that she is a member of a protected class, that she was qualified for her position, and that she suffered an adverse employment action. [Doc. 24-2 at 13-16 (indicating that Ms. Anderson satisfies class membership, job qualifications, and adverse employment action) ]. Therefore, the Court will only examine the fourth requirement of the prima facie case.

Similarly-Situated. Comparator

In their amended complaint, Plaintiffs allege that Defendant Dunbar Armored discriminated against Ms. Anderson on the basis of sex because male employees who exercised in excess of twelve weeks of medical leaves of absence were allowed to return to their positions of employment with no change in their position, rate of pay, or benefits. Amended Complaint at ¶ 67.

Defendants argue that Ms. Anderson cannot state a claim for sex discrimination because her amended complaint expressly alleges that two other pregnant females received six months of medical leave due to complications with their pregnancies and were permitted to return to their former positions. [Doc. 242 at 14]. Next, Defendants argue that the one male employee identified by Plaintiffs as a comparator to Ms. Anderson, Charles Vaughn, is not a proper comparator because he was afforded less leave, and was treated less favorably, than Ms. Anderson. [Id. at 15].

Plaintiffs respond that Ms. Anderson has stated a viable claim for sex and pregnancy discrimination because “she was not allowed to retain her employment after the completion of her pregnancy-related medical leave of absence, in contrast to Mr. Vaughn, who was allowed to retain his employment after he completed his extended leave of absence.” [Doc. 25 at 12].

Defendants reply that Ms. Anderson cannot make out a valid claim for sex discrimination because both male and female employees were treated similarly to her. [Doc. 26 at 6-7].

In response to the Court’s June 2, 2009, Order, Ms. Anderson further responds after she returned from her extended medical leave, she was not expressly offered or provided any training for the position of Driver/Guard and that such a position (1) is not equivalent to any position she had been trained for, (2) paid less money, and (3) had fewer benefits. [Doc. 36 at 11-12], Defendants further reply by reiterating that two of the three comparators identified by Plaintiff were pregnant females. [Doc. 39 at 9-10].

Differential treatment may be established by showing that a similarly situated employee that was not in a protected class was treated more favorably. Brockman, 545 F.Supp.2d at 1255. The Eleventh Circuit h