Opinion
Civil Action No. 4:16-cv-3326-RBH-TER
02-13-2019
CLARA LEWIS BROCKINGTON, Plaintiff, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES and REESE PALMER, Defendant.
REPORT AND RECOMMENDATION
I. INTRODUCTION
This action arises out of Plaintiff's former employment with Defendant South Carolina Department of Social Services (DSS). Plaintiff, who is proceeding pro se, alleges that Defendant terminated her employment because of her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. She also alleges that Defendant violated the South Carolina Workers' Compensation Act (SCWCA), S.C.Code Ann. § 42-1-540, et al., and she seeks compensation for damages she sustained in the parking lot of DSS. Presently before the court is Defendants' Motion for Summary Judgment (ECF No. 68). Because she is proceeding pro se, Plaintiff was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to the moving Defendant's motion could result in dismissal of her case.
Plaintiff filed a Response (ECF No. 80) but argued that the documents Defendants provided in discovery were not responsive to her requests, and she could not respond to the Motion for Summary Judgment until she received the documents she requested. The undersigned entered an order noting that Plaintiff had not previously raised the issue of the sufficiency of Defendants' responses in a motion to compel, and even if the court were to construe her response as a motion to compel, it would not be timely under the scheduling order. The undersigned gave Plaintiff an additional ten days to file a response to Defendants' Motion for Summary Judgment. On the day Plaintiff's Response was due, February 11, 2019, Plaintiff filed a Motion for Extension of Time (ECF No. 89), stating that she had not received the order until February 7, 2019, and needed an extension to respond. The undersigned denied the motion but noted that Plaintiff could file any response as part of her objections to the Report and Recommendation. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff began her employment with DSS on February 9, 2015, when she was hired as a Child Protective Services Specialist (Human Services Specialist II). Pl. Dep. 59-60. Plaintiff was 59 years old at the time she was hired. Pl. Dep. 96.
Plaintiff began her employment with DSS as a probationary employee. Pl. Dep. 61. DSS requires that all employees who conduct intake, child protective services (CPS) assessments or investigations, or carry caseloads in foster care, family preservations, or adoptions, be child welfare certified. Elmore Aff. ¶ 4; Child Protective Services Protective and Preventive Services Manual (Ex. B to Elmore Aff.). According to DSS policy: "Staff must obtain child welfare certification prior to being assigned cases for CPS assessment, CPS investigation, family preservation, foster care, adoptions, and/or county foster care licensing." Elmore Aff. ¶ 4; Child Protective Services Protective and Preventive Services Manual (Ex. B to Elmore Aff.). To meet this requirement, all DSS staff are required to complete the Child Welfare Basic Training, a certification program offered by the University of South Carolina Center for Child and Family Studies, in conjunction with DSS. Elmore Aff., ¶ 5; DSS Directive Memo D14-14 (Ex. C to Elmore Aff.). Employees who fail to successfully complete the Child Welfare Basic Training course are not permitted to perform child welfare case management duties and are terminated from their employment with DSS. Elmore Aff., ¶ 6; DSS Directive Memo D14-14 (Ex. C to Elmore Aff.). After being hired, Plaintiff went through daily meetings with approximately 20 to 30 other employees in which they received instruction and training. Pl. Dep. 63-64, 66-67. During these meetings, Plaintiff and all other employees in attendance were told that they would take certification testing. Pl. Dep. 65, 73.
At the time of Plaintiff's employment with DSS, the Initial Child Welfare Certification required a score of 85% on the Child Welfare Basic Training examination and successful completion of the DSS approved Trial Preparation Training. Elmore Aff. ¶ 6; DSS Directive Memo D14-14 (Ex. C to Elmore Aff.). In the event that an employee fails to obtain the necessary score on the Child Welfare Basic Exam, DSS policy provides the County Director may allow the employee to retake the exam a second time. Elmore Aff. ¶ 6; DSS Directive Memo D14-14 (Ex. C to Elmore Aff.). If an employee fails the second attempt, DSS policy provides the employee is no longer eligible to perform child welfare case management duties or may no longer may be employed. Elmore Aff. ¶ 6; Child Protective Services Protective and Preventive Services Manual (Ex. B to Elmore Aff.); DSS Directive Memo D14-14 (Ex. C to Elmore Aff). However, in "extraordinary circumstances," a third attempt to pass the examination may be granted at the discretion of the Director of Knowledge Management and Practice Change. Elmore Aff. ¶ 6; Child Protective Services Protective and Preventive Services Manual (Ex. B to Elmore Aff.); DSS Directive Memo D14-14 (Ex. C to Elmore Aff). Plaintiff alleges in her Amended Complaint that "some staff took the test three or more times." Am. Compl. p. 2.
Plaintiff took the Child Welfare Basic Training Examination and failed. Pl. Dep. 74. She was then allowed to take the examination again but failed the second attempt as well. Pl. Dep. 74, 76. On June 23, 2015, Defendant Rasel "Reese" Palmer, Richland County DSS Director, contacted Glenise Elmore, Employee Relations Director for DSS, and informed her that he wanted to terminate Plaintiff for failing her certification examination twice. Elmore Aff. ¶ 7; Palmer Email (Ex. D to Elmore Aff.). DSS Human Resources staff reviewed the request and approved Plaintiff's termination as it was consistent with DSS practice of terminating employees who failed to obtain their certification. Elmore Aff. ¶¶ 8-9.
On June 24, 2015, Palmer met with Plaintiff and notified her that her employment with DSS was being terminated effective immediately for unsuccessful completion of the Child Welfare Basics Certification. Pl. Dep. 41, 91, 92; Termination Letter (Ex. E to Elmore Aff.).
As she was leaving, Plaintiff fell in the parking lot of the Richland County DSS offices. Pl. Dep. 97. She "injured [her] right leg, right knee, lower back and other parts of the body." Am. Compl. p. 1. Her supervisor while she was employed with DSS, Roshawnda Gooden, "requested" that she go to the emergency room and let her know what the "Medical Professionals" said. Am. Compl. p. 1. Plaintiff advised Gooden that the hospital was requesting workers compensation paperwork, but Defendant refused to provide it. Am. Compl. p. 2. She later filed a claim for workers' compensation benefits as a result of injuries sustained in that fall. Pl. Dep. 97, 98.
On or about October 2, 2015, Plaintiff filed a Charge of Discrimination. On May 19, 2016, the South Carolina Human Affairs Commission issued a Dismissal and Notice of Right to Sue in which the agency found no cause. On July 7, 2016, the United States Equal Employment Opportunity Commission adopted the South Carolina Human Affairs Commissions' findings and issued a Dismissal and Notice of Rights.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by "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." Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. ADEA
In her Amended Complaint, Plaintiff alleges that "Plaintiff took the test twice while there were some staff took the test three or more times. Plaintiff was discriminated against because of her age by Defendants." Am. Compl. p. 2. The ADEA makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. 29 U.S.C. § 623(a)(1).
As an initial matter, to the extent Plaintiff asserts her ADEA claim against Defendant Reese Palmer, the claim fails. The ADEA does not provide for causes of action against defendants who are sued in their individual capacities. See Jones v. Sternheimer, 387 F. App'x 366, 368 (4th Cir. 2010) (per curiam) (recognizing that Title VII, the ADA, and the ADEA "do not provide for causes of action against defendants in their individual capacities"); Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (noting that the Fourth Circuit rejects claims of individual liability under the ADEA).
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, she may establish through direct or circumstantial proof that a protected characteristic such as age was a motivating factor in the employer's adverse decision. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir.2005); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir.2004) (en banc). Direct evidence is defined as "evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision." Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir.2006) (internal quotations omitted). Direct evidence is said to prove a fact "without any inference or presumptions." O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir.1995). Circumstantial evidence must be of sufficient probative force to raise a genuine dispute of material fact. Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959 (4th Cir. 1996). Plaintiff does not present evidence or allege that she has direct evidence that her termination was based on her age.
When direct evidence is lacking, a plaintiff may proceed under the burden-shifting proof scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this burden-shifting scheme, Plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. The Fourth Circuit has held that the causation and burden-shifting standards applicable in Title VII cases as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) are also applicable in discrimination or retaliation cases brought pursuant to the ADEA "where the defendant disavows any reliance on discriminatory reasons for its adverse employment action." Ennis v. Nat'l Assoc. Of Business and Educ. Radio, 53 F.3d 55, 58 (4th Cir.1995). Under the analysis set forth in McDonnell Douglas, Plaintiff has the initial burden of demonstrating a prima facie case of discrimination. Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002). If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for the Plaintiff's discharge. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Once Defendant has met its burden of production by producing its legitimate, nondiscriminatory reason, the sole remaining issue is "discrimination vel non." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000)(citing Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendant is not its true reason, but was pretext for discrimination. Reeves, 530 U.S. at 143.
The McDonnell Douglas analysis was refined in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The Supreme Court has noted that it "has not definitively decided" whether the McDonnell Douglas framework, first developed in the context of Title VII cases, "is appropriate in the ADEA context." Gross v. FBL Financial Services, Inc., 557 U.S. 167, 174, 129 S.Ct. 2343, 2349 n.2, 174 L.Ed.2d 119 (2009). In the absence of further direction from the Supreme Court, the undersigned must follow Fourth Circuit precedent, which applies the McDonnell Douglas framework to ADEA claims. See Hill, 354 F.3d at 285; see also Waters v. Logistics Mgmt. Inst., 716 F. App'x 194, 197 (4th Cir. 2018)(continuing to apply the McDonnell Douglas framework in the ADEA context).
To set forth a prima facie case under the ADEA, Plaintiff must establish that: (1) she was a member of a protected class (at least 40 years old); (2) she was performing at a level that met her employer's legitimate job expectations; (3) she suffered an adverse employment action; and (4) that similarly-situated employees outside of the protected class received more favorable treatment or there is some other evidence giving rise to an inference of unlawful discrimination. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 2895 (4th Cir. 2004); Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir.2005). Defendants acknowledge that Plaintiff, at 59 years old, is a member of a protected class and that she suffered an adverse employment action when she was terminated. However, they argue that Plaintiff was not performing at a level that met her employer's legitimate job expectations, nor did similarly situated employees outside the protected class receive more favorable treatment.
The evidence in the record reveals that as a Child Protective Services Specialist, Plaintiff was required to successfully complete the Child Welfare Basic Training. Elmore Aff., ¶¶ 4, 5, 6; Child Protective Services Protective and Preventive Services Manual (Ex. B to Elmore Aff.); DSS Directive Memo D14-14 (Ex. C to Elmore Aff). Failure to do so rendered Plaintiff unable to perform the functions of her position. Id. Plaintiff asserts in her Amended Complaint that she should not have been required to take the test and that no one told her at the time of hire that it was required. However, she admitted during her deposition that she and the other employees were informed of the testing requirement. Pl. Dep. 65, 73. Further, she was provided training along with other employees prior to taking the test and was then given another opportunity to take the test after she failed the first one. The policy provides that "at the discretion of the County Director, a participant who fails that Child Welfare Basic exam may make a second attempt to pass and is provided an individualized study guide." DSS Directive Memo D14-14 (Ex. C to Elmore Aff). Thus, Palmer, as the Richland County DSS Director, was not required to allow Plaintiff to take the test again but did so in his discretion. Nevertheless, Plaintiff again failed the test.
Once an employee has failed the test twice, the policy provides that termination is appropriate. Only in "extraordinary circumstances" at the "discretion of the Director of Knowledge Management and Practice Change with appointing authorities recommendation and justification in writing" is an employee allowed to take the test for a third time. DSS Directive Memo D14-14 (Ex. C to Elmore Aff). An email chain including Palmer and others within DSS reveals why Palmer did not recommend that Plaintiff be allowed to take the test a third time. Palmer Email (Ex. D to Elmore Aff.). The proctor for Plaintiff's second test stated in an email that Plaintiff disregarded or challenged several rules she had given to the participants prior to the exam. Palmer Email (Ex. D to Elmore Aff.). Plaintiff questioned why she was told not to discuss the exam with anyone outside of the classroom. She also used her phone to text and take a phone call during the test despite being told to refrain from using cells phones. Palmer Email (Ex. D to Elmore Aff.). Plaintiff also told the proctor that she would not be coming back to take the test again, and complained that she should not have to take it at all since she was a licensed social worker. Palmer Email (Ex. D to Elmore Aff.). Palmer referred to the comments from the proctor and stated "[Plaintiff's] conduct as described below is why we do not wish to have her take the exam a third time." Palmer Email (Ex. D to Elmore Aff.). John Shackelford responded that "you need only send the request [to allow for a third test] for those you feel are committed, passionate, and are exhibiting the skill sets needed to serve the children and families. For those staff that do not pass the 2nd attempt that do mot meet the standard you are seeking for your staff can be released." At that point, Palmer notified Glenise Elmore, Employee Relations Director for DSS that he would be "moving towards termination of [Plaintiff]." Palmer Email (Ex. D to Elmore Aff.). Thus, Plaintiff failed to perform at a level that met her employer's legitimate job expectations in two respects: she did not pass the required exam after two attempts, and her conduct "did not meet the standard [Palmer was] seeking for [his] staff." Palmer Email (Ex. D to Elmore Aff.). It is well-held that "[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff" that determines if the employee is meeting the employer's expectations. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000). Plaintiff fails to present evidence to meet this prima facie requirement.
Shackelford's position within DSS is not clear from the record.
Defendants also argue that Plaintiff fails to show that similarly situated employees outside her protected class received more favorable treatment. Plaintiff asserts in her Amended Complaint that other employees were allowed to take the Child Welfare Basic Training examination three or more times. However, in her deposition, she testifies that she does not specifically know of any employees who were younger than her who were allowed to take the test more than twice. Pl. Dep. 96-97. Defendants assert that Plaintiff points to Gerri Williams and Ashley Holmes as two employees who were allowed to take the test for a third time. Defendants argue that, even assuming these two employees were allowed to take the test a third time, Williams was 53 years old and Holmes was 28 years old. Elmore Aff. ¶ 10. Thus, Plaintiff has identified one similarly situated employee outside of her protected class who was treated differently than she was. Nevertheless, as discussed above, Plaintiff fails to present evidence sufficient to show that she was meeting her employer's job expectations. Therefore, summary judgment is appropriate.
Even assuming Plaintiff has presented sufficient evidence to establish a prima facie case of age discrimination, she fails to show that Defendants' reason for her adverse employment action was pretext for a discriminatory reason. Defendants assert that Plaintiff's employment was terminated because she failed to pass the Child Welfare Basic Training examination after two attempts. Plaintiff does not dispute that she failed to pass the exam twice. Thus, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendants is not the true reason, but was pretext for discrimination. Reeves, 530 U.S. at 143. Plaintiff fails to meet this burden. She does not dispute that DSS policy provides when an employee fails the second attempt, the employee is no longer eligible to perform child welfare case management duties or may no longer may be employed. During the years 2014 through 2016, DSS terminated at least 25 employees, including Plaintiff, for not successfully completing the Child Welfare Basic Training examination. Elmore Aff., ¶ 9; Termination Chart (Ex. G to Elmore Aff.). Of these 25 employees, 10 were over the age of 40 while the remaining 15 were under the age of 40. Elmore Aff., ¶ 9; Termination Chart (Ex. G to Elmore Aff.). Plaintiff argues, however, that other employees were allowed to take the test three or more times. As discussed above, DSS policy allows the test to be taken a third time, but only in "extraordinary circumstances." The records shows only a limited number of employees were allowed to take the test a third time, and of the two that were given the opportunity, one was within the protected class and one was not. Additionally, Palmer explained in an email that he was not recommending that she be allowed to take the test a third time because of her behavior towards the proctor of her exam. Plaintiff does not dispute this reasoning.
In sum, "[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). Given the evidence in the record, Plaintiff fails to show that her termination was the result of intentional discrimination because of her age. Therefore, summary judgment is appropriate.
B. State Law Claims
Plaintiff also alleges in her complaint that she sustained injuries when she fell in the DSS parking lot and Defendants refused to provide workers' compensation benefits. Personal injury claims sound in tort and, thus, are state law claims. Plaintiff points to no federal law that would give rise to a cause of action for these claims. Title 28 U.S.C. § 1367(c)(3) provides, in pertinent part, "[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction...." The Fourth Circuit has recognized that "trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished." Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Revene v. Charles County Comm'rs, 882 F.2d 870, 875 (4th Cir.1989). In determining whether to retain jurisdiction, courts consider "the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy." Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claim for defamation. There are no issues of federal policy underlying the remaining state law claim. In addition, comity favors remand since the remaining claims are quintessential state law questions. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court cautioned that "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law. . . . if the federal law claims are dismissed before trial ... the state claims should be dismissed as well." Accordingly, should the district judge accept the recommendation with respect to Plaintiff's federal claim, it is recommended that the court decline to exercise jurisdiction over the remaining state law claim.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 68) be granted as to Plaintiff's ADEA claim, that the court decline to exercise supplemental jurisdiction over Plaintiff's state law claim, and that this case be dismissed in its entirety.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge February 13, 2019
Florence, South Carolina