Opinion
6:21-cv-02901-DCC-JDA
12-29-2022
Rufus J. Anderson, Plaintiff, v. J.A. Piper Roofing Co. Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on a motion for summary judgment filed by Defendant. [Doc. 24.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in this employment discrimination case were referred to the undersigned United States Magistrate Judge for consideration.
Plaintiff, proceeding pro se, brings this civil action alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act of 1990 (“ADA”). [Doc. 1 at 3.] Specifically, Plaintiff alleges race discrimination based on termination, failure to promote and retaliation, and discrimination based on disability or perceived disability. [Id. at 4-5] On June 20, 2022, Defendant filed a motion for summary judgment. [Doc. 24.] On June 23, 2022, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 26.] The Clerk docketed Plaintiff's response in opposition on July 27, 2022. [Doc. 35.] On August 3, 2022, Defendant filed a reply in support of its motion. [Doc. 37.] Accordingly, Defendant's summary judgment motion is ripe for review.
The facts included in this Background section are taken directly from Plaintiff's Complaint. [Docs. 1; 1-1.]
Plaintiff alleges that, while employed with Defendant, he was denied a promotion to the foreman position due to his “engagement in a protected activity according to ADA and Title VII.” [Doc. 1-1 at 1.] Plaintiff alleges that he initiated “the statutory grievance phase” with Defendant on July 24, 2020, by “communicating to them that [his] work conditions were hostile and [he] believe[d] their actions to be unlawful and discriminatory. [He] further alleged a violation of the anti retaliation provisions governed by the [Equal Employment Opportunity Commission (“EEOC”)].” [Id.] Plaintiff alleges the grievance process was cut short on July 29, 2020, and that he was terminated and was denied re-hire by the head decisionmaker on August 3, 2020. [Id.] He asserts that he was discriminated against based on his race in violation of Title VII and was subjected to retaliation in violation of Title VII and the ADA. [Id.]
STANDARD OF REVIEW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Race and Disability Discrimination
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . 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). A plaintiff may ultimately prove a race-discrimination claim under Title VII through direct evidence that racial discrimination motivated an employer's adverse employment action, see, e.g., Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005), or, if a plaintiff lacks direct evidence (as in this case), a plaintiff can alternatively proceed under the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004), abrogated in part on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). The McDonnell Douglas framework applies to both discrimination and retaliation claims under Title VII. See, e.g., Beall v. Abbott Labs, 130 F.3d 614, 619 (4th Cir. 1997), abrogated in part on other grounds by Gilliam v. S.C. Dep't Of Juvenile Justice, 474 F.3d 134 (4th Cir. 2007). “Absent direct evidence, the elements of a prima facie case of discrimination are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (providing the elements of a prima facie case of discrimination under Title VII).
Direct evidence is “evidence from which no inference is required. To show race discrimination by direct evidence, a plaintiff typically must show discriminatory motivation on the part of the decisionmaker involved in the adverse employment action.” Cherry v. Elizabeth City State Univ., 147 F.Supp.3d 414, 421(E.D. N.C. 2015).
Similarly, to establish a prima facie case of termination based on race under McDonnell Douglas, “a plaintiff must show (1) he is a member of a protected class, (2) he was discharged, (3) he was fulfilling his employer's legitimate expectations at the time of his discharge, and (4) he was treated differently than a similarly situated employee outside the protected class.” Benson v. Vaughn Indus. LLC, 450 F.Supp.3d 655, 667 (E.D. N.C. 2020).
To establish a prima facie case of discriminatory discharge, Plaintiff must show that (1) he is a member of a protected class; (2) he suffered from an adverse employment action; (3) at the time the employer took the adverse employment action he was performing at a level that met his employer's legitimate expectations; and (4) that the position remained open or was filled by a similarly qualified applicant outside the protected class. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (noting that when the claim is discriminatory termination, instead of race discrimination based on disparate treatment, the elements are altered slightly); see also Jones, 324 F.Supp.2d at 781; Moore v. Penfed Title, LLC, 2021 WL 2004785, at *6 (E.D. Va. May 18, 2021) (noting similar elements for a prima facie case for wrongful termination in violation of Title VII).
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C. § 12112(a); see also Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 233 (4th Cir. 2016). A person has a disability under the ADA if he has “a physical . . . impairment that substantially limits one or more major life activities,” or if he is “regarded as having such an impairment.” 42 U.S.C. § 12102(1). Plaintiffs can prove an ADA claim by direct or indirect evidence or by use of the burden-shifting scheme established in McDonnell Douglas. See Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 303 (4th Cir. 1998). Under the McDonnell Douglas burden-shifting scheme, Plaintiff must first establish a prima facie case of discrimination by showing (1) that he has a disability or was regarded by his employer as having a disability, (2) that he is a qualified individual for the employment in question, and (3) that he was discharged because of his disability. See McLeod Health, 914 F.3d at 883. If he does so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination. Leonard, 36 F.Supp.3d at 688 (citing Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995)). If the employer produces enough evidence on this point, the Plaintiff must then show why the employer's asserted justification is a pretext for discrimination. Id.
Lack of Performance and No Identified Medical Condition
Defendant argues it is entitled to summary judgment on both Plaintiff's race and disability discrimination claims because, while Plaintiff can establish that he is a member of a protected class with respect to his race discrimination claim, and that he suffered an adverse employment action-termination-he cannot establish either that (1) he was meeting the Company's legitimate performance expectations with respect to either his race or disability claim, or that (2) he has ever identified any kind of medical condition he claims to be a disability. [Doc 24-1 at 4.] The Court agrees.
When a court analyzes whether an employee was meeting his employer's legitimate expectations, “it is the perception of the [employer] which is relevant, not the self-assessment of the plaintiff.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000) (alteration and quotation omitted); see also Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 518 (4th Cir. 2006); Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). Thus, an employee's own testimony about his job performance does not create a genuine issue of material fact as to whether he was meeting his employer's legitimate expectations. See Hawkins, 203 F.3d at 280. Moreover, the employee must show that he was meeting the employer's legitimate expectations at the time of the adverse employment action. See Warch, 435 F.3d at 517; Addison v. CMH Homes, Inc., 47 F.Supp.3d 404, 420 (D.S.C. 2014); Jones v. Dole Food Co., Inc., 827 F.Supp.2d 532, 547 (W.D. N.C. 2011), aff'd, 473 Fed.Appx. 270 (4th Cir. 2012). Alternatively, the employee may show that the employer's expectations were somehow “not legitimate” or that the expectations “were a sham designed to hide the employers discriminatory purpose.” Warch, 435 F.3d at 518 (internal quotation marks and citation omitted).
In his response, Plaintiff mentions that he was “qualified to [r]un the [c]rew and perform the duties of the position exemplified by the body of work that was previously performed.” [Doc. 35 at 1.] He makes no argument, however, that he was meeting his employer's legitimate expectations or that the expectations were a sham. Additionally, Plaintiff provides no argument or evidence regarding his alleged disability.
In support of its argument, on the other hand, Defendant provided the Declaration of John Mathers, Controller of J.A. Piper Roofing. [Doc. 24-3.] According to Mathers, Plaintiff never informed Defendant that he had a disability or requested accommodation for any disability. [Id. at ¶ 4.] Additionally, Mathers stated that Plaintiff was terminated for workplace misconduct and that neither his race (black), his disability status (unknown), nor his prior lawsuits or EEOC charges had anything to do with the reason for his termination. [Id. at ¶¶ 17-18.] Upon investigating a rather lengthy grievance submitted by Plaintiff in July 2020, the company's sales manager/production manager Dan Jarratt performed a thorough investigation and found a troubling patten of behavior consistently described with respect to Plaintiff. Those behaviors included having loud and abusive confrontations with co-workers; refusing to follow directions from supervisors when he did not agree with them; lacking respect for Mr. Bailey, his direct supervisor; making threats and bragging about the use of litigation to protect himself from any accountability for his actions; lacking any support for his allegations of discrimination or retaliation; and the absence of any further options for changing work crews or continuing to issue written warnings in light of Plaintiff's persistent refusal to accept responsibility. [Id. at ¶¶ 13-15.]
Plaintiff, however, contends the Defendant's reasons offered for terminating him are pretextual based on a statement offered by Dan Jarrot to the South Carolina Employment and Workforce Appeals Division (“Appeals Division”), conveying that the reason for Plaintiff's termination was his engagement in protected activity. [Doc. 35 at 2.] Other than regurgitating his prior allegations, however, Plaintiff fails to produce any evidence to support his contention. Plaintiff has submitted a recording of the hearing before the Appeals Division to support his contention that Jarrot “admitted” that he was terminated for engaging in protected activity. [Doc. 35, Exhibit 3 (CD).] The Appeals Division found that Plaintiff was “discharged for cause as a result of not being able to get along with other coworkers.” [Doc. 37-1 at 2.] Further, there was no indication in the Appeals Division's written findings, or on the audio of the hearing provided by Plaintiff, that Plaintiff's litigation activity factored into the decision to terminate his employment.
Defendant objected to the Court's consideration of this CD as it had not been produced to them in discovery by Plaintiff. [Doc. 37 at 2.] The Court, however, found the contents of the recording to be entirely consistent with the finding of the Appeals Division which was attached to Defendant's reply. [Doc. 37-1.]
Thus, viewing the record in the light most favorable to Plaintiff, the Court finds that Plaintiff failed to create a genuine issue of material fact regarding whether he was meeting the Defendant's legitimate expectations of employment, whether he had a disability within the meaning of the ADA, or whether the Defendant's reason for termination was pretextual. To the contrary, Plaintiff failed to even address or acknowledge Defendant's argument that he failed to establish that his performance met company expectations or that he ever identified a medical condition which would make him disabled under the ADA. In opposing a properly supported motion for summary judgment, the nonmoving party cannot rest on “mere allegations or denials,” Liberty Lobby, 477 U.S. at 248, and “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The summary judgment inquiry thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993). Further, courts have recognized that a party's failure to address an issue in its opposition brief concedes the issue. See Klugel v. Small, 519 F.Supp.2d 66, 72 (D.D.C. 2007) (stating that, “when a party does not address arguments raised by a movant, the court may treat those arguments as conceded”); Brand v. N.C. Dep't of Crime Control & Pub. Safety, 352 F.Supp.2d 606, 618 (M.D. N.C. 2004) (concluding that “[i]n Plaintiff's brief in response to Defendants' motion for summary judgment, Plaintiff does not address . . . his hostile work environment claim [and in so doing], Plaintiff concedes that he has not stated a hostile work environment claim”); Hamilton v. Cunningham, 880 F.Supp. 1407, 1411 (D. Colo. 1995) (stating that the defendant “apparently concedes Plaintiffs' limitations analyses . . . having failed to address either in his brief”). Based on the above, Defendant is entitled to summary judgment on Plaintiff's ADA, race discrimination, and discriminatory discharge claims.
Retaliation / Retaliatory Hostile Work Environment
Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or 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 purpose of this antiretaliation provision is to prevent “an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). Absent direct or indirect evidence of retaliation, a Title VII plaintiff may proceed under the burden-shifting framework of McDonnell Douglas to establish a claim of retaliation. See Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015); Diamond, 416 F.3d at 318. Under the burden-shifting framework, an employee must first prove a prima facie case of retaliation. McDonnell Douglas, 411 U.S. at 802.
To establish a prima facie case of retaliation, a plaintiff must demonstrate “(1) [he] engaged in a protected activity, (2) the employer acted adversely against [him], and (3) there was a causal connection between the protected activity and the asserted adverse action.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). In this context, an adverse employment action is an action that “well might have dissuaded a reasonable worker” from engaging in protected conduct. Burlington, 548 U.S. at 68 (internal quotation marks and citation omitted). Although an adverse action under the antiretaliation provision need not “affect the terms and conditions of employment,” id. at 64, it must have “some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it,” Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015). The inclusion of this “materiality” requirement is necessary to ensure that only significant harms are actionable. Burlington, 548 U.S. at 68-70. Actions are not materially adverse if they amount only to “petty slights or minor annoyances [of the type] that often take place at work and that all employees experience.” Id. at 68.
“To state a claim for retaliatory hostile work environment, also known as retaliatory harassment, a plaintiff must show . . . (1) engagement in a protected activity; (2) that he was subjected to severe or pervasive retaliatory harassment by a supervisor; and (3) a causal link between the protected activity and the harassment.” Wilkins v. Sessions, No. 8:17-cv-403-TMC-KDW, 2018 WL 3131027, at *16 n.17 (D.S.C. June 8, 2018) (internal quotation marks omitted), Report and Recommendation adopted by 2018 WL 3127323 (D.S.C. June 26, 2018). “Stated another way, a retaliatory hostile work environment claim requires establishing the same facts as a retaliation claim, save that the ‘materially adverse' element is replaced by subjected to severe or pervasive retaliatory harassment by a supervisor.” Id.
Defendant argues that, even assuming Plaintiff can establish that his prior lawsuit was protected activity and that adverse action was taken against him, he still cannot establish causation or a causal link between the protected activity and the adverse action. [Doc. 24-1 at 5.] Plaintiff filed his lawsuit against Defendant on March 21, 2019, and was terminated on July 29, 2020. [Id. at 6.] During that time, Defendant gave Plaintiff multiple written warnings trying to correct Plaintiff's performance. [Id.] Plaintiff argues that the Defendant's reasons for terminating him are pretextual, and not for disciplinary reasons, based on Dan Jarrot's statement to the Appeals Division clearly indicating that the decision to terminate him was due to his engagement in protected activity. [Doc. 35 at 2.] Plaintiff also argues that Defendant created a hostile work environment for him based on his protected activity related to previously filed litigation. [ Id. at 2-3.] Plaintiff also argues that “after the closing of the [previously filed] litigation,” he was denied a promotion. [Id. at 3.]
Upon review, the Court finds Plaintiff failed to provide evidence of a causal connection between the filing of the prior litigation and his ultimate termination. “[A] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). The Fourth Circuit has held that
evidence that [an] alleged adverse action occurred shortly after the employer became aware of the protected activity is sufficient to “satisf[y] the less onerous burden of making a prima facie case of causa[tion].” Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). We believe the opposite to be equally true. A lengthy time lapse between the employer becoming aware of the protected activity and the alleged adverse employment action, as was the case here, negates any inference that a causal connection exists between the two. See Burrus v. United Tel. Co., 683 F.2d 339, 343 (10th Cir. 1982) (holding that three years between the protected activity and the adverse employment action was too long to establish the third element); Clark v. Chrysler Corp., 673 F.2d 921, 930 (7th Cir. 1982) (holding that two-year time lapse negated any inference of causal connection).Dowe v. Total Action Against Poverty In Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). “The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.'” Clark Cnty. Sch. Dist. V. Breeden, 532 U.S. 268, 273 (2001). In this case, the litigation filed by Plaintiff against Defendant was filed on March 21, 2019. [Doc. 24-1 at 6.] By the time Plaintiff was terminated, over a year had elapsed, defeating a finding of temporal proximity and weighing against the establishment of causation.
With respect to Plaintiff's claim that his filing of a grievance resulted in hostility and harassment towards him, Plaintiff failed to allege or provide evidence that he was subjected to severe or pervasive retaliatory harassment by any supervisor. Plaintiff argues that the fact that he was the “common denominator of arguments with everyone” is the definition of hostile work environment. [Doc. 35 at 3.] Specifically, Plaintiff appears to argue that three crew members asking a supervisor to not put him in charge constitutes harassment and hostility which he would not have known about, although he sensed it. [Id. at 2.] Upon review, the Court finds that Plaintiff has failed to put forth evidence to support or show a prima facie case of retaliatory harassment or a hostile environment as none of these acts described above would dissuade a reasonable employee from lodging a complaint of discrimination. Accordingly, the Court finds Defendants are entitled to summary judgment on Plaintiff's retaliation and hostile work environment claims.
Failure to Promote
To bring a failure-to-promote claim, a plaintiff must establish the following elements: “(1) he is a member of a protected group, (2) there was a specific position for which he applied, (3) he was qualified for that position, and (4) [his employer] rejected [his] application under circumstances that give rise to an inference” of liability. Williams v. Giant Food Inc., 370 F.3d 423, 430 & n.5 (4th Cir. 2004); see also Evans v. Technologies Applications & Serv., 80 F.3d 954, 959-64 (4th Cir. 1996) (reciting elements of a failure-to-promote claim in a case brought under Title VII and the ADEA).
Upon review, the Court notes that Plaintiff has submitted no evidence that he was qualified for a promotion; no evidence that the person promoted was less qualified than Plaintiff; and no evidence that the Company had a discriminatory or retaliatory motive in selecting the person promoted. Even assuming Plaintiff could meet his initial burden on this issue, Defendant provided a legitimate, nondiscriminatory reason for failing to promote Plaintiff. Defendant contends that, with respect to its decision not to promote Plaintiff, “[n]o rational employer would have put Plaintiff in a leadership position given his extensive history of conflict with co-workers and the Company's resulting need to move him from one work crew to another.” [Doc. 37 at 2.] The Court agrees. “Job performance and relative employee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision.” Evans, 80 F.3d at 960. Thus, the Court finds Defendant is entitled to summary judgment on Plaintiff's failure to promote claim.
CONCLUSION
Consequently, for the reasons stated above, the undersigned recommends that Defendant's motion for summary judgment [Doc. 24 ] be GRANTED.
IT IS SO RECOMMENDED.