Opinion
Civil Action 7:21-cv-01094-DCC-JDA
01-06-2023
George Colley, Plaintiff, v. ISS Facility Services, Inc., Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court on Defendant's motion for summary judgment. [Doc. 26.] Plaintiff alleges he was retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). [Doc. 1.] 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 employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff filed this action on April 14, 2021. [Doc. 1.] Defendant filed a motion for summary judgment on April 7, 2022. [Doc. 26.] Plaintiff filed a response in opposition to the motion on April 27, 2022 [Doc. 29], and Defendant filed a reply on May 4, 2022 [Doc. 30]. Accordingly, the motion for summary judgment is ripe for review.
BACKGROUND
In ruling on a motion for summary judgment, this Court reviews the facts and reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Viewed in the light most favorable to Plaintiff, the summary judgment record reveals the following facts.
Plaintiff's Employment and Work on Defendant's Adidas Account
Defendant is a facility services company that provides maintenance, cleaning, and other services to its customers, generally large companies, so that its customers' buildings operate smoothly, enabling the customers to focus on running their core businesses. [Doc. 29-21 at 1:16-2:9.] Plaintiff was first hired by Defendant in 2014 as the general manager for the specialized services division and was responsible for accounts in Virginia, North Carolina, and South Carolina. [Id. at 1:4-15; Doc. 26-3 at 3:8-11.] Plaintiff resigned from that position in 2016 and was subsequently rehired by Defendant in 2017 to work as the director of engineering for Defendant's Sealed Air account. [Doc. 26-3 at 3:12-16, 4:6-14, 7:21-8:7.]
In April 2019, Plaintiff was assigned to the Adidas account as the director of operations at the request of Chris Seeley, who was the key account manager (“KAM”) for the Adidas account in North America. [Id. at 9:10-15, 10:24-11:21.] Seeley specialized in finance and requested that Plaintiff be transferred to the Adidas account because of his operational expertise. [Id. at 10:24-11:21; Doc. 26-6 at 5:23-6:2.] Plaintiff described his position as one where he was brought in to “an existing [account] that was failing miserably . . . to clean up and try to make some of th[e] problems go away.” [Doc. 26-3 at 12:17-13:5.] His objectives included getting the computerized maintenance management system (“CMMS”) working properly, training Defendant's employees on the CMMS, ensuring compliance measures were met, improving safety, and bringing the budgets in line at all distribution sites by decreasing overtime. [Id. at 13:7-14:3, 15:22-18:20, 21:9-11.]
Plaintiff testified that he was hired as the director of operations for the Adidas account [Doc. 26-3 at 11:19-21]; however, the organizational chart for the Adidas account and Plaintiff's email signature listed his title as director of engineering [Docs. 26-19 at 2-3; 26-20 at 3; 29-16 at 2; 29-19 at 3].
The KAM is the top-level position for an account. [Doc. 29-21 at 12:4-6.]
Plaintiff explained that the CMMS is “the heart of everything” Defendant does because “[i]t records and has data for everything.” [Doc. 26-3 at 16:19-22.]
Around August 2019, Seeley resigned from Defendant, and Matthew Nadeau, who was Defendant's director of operations for key accounts, stepped in as the interim KAM for the Adidas account in addition to the other roles he already had with Defendant. [Id. at 14:10-23; Doc. 26-6 at 4:16-21, 11:9-12:1; see Doc. 29-19 at 2 (showing job title).] Plaintiff testified that Seeley offered the KAM position to Plaintiff when he resigned but that Plaintiff declined the position because it would require him to live in Portland and Plaintiff wanted to stay where he was. [Doc. 29-21 at 44:11-45:7.] Nadeau testified that the international relationship between Defendant and Adidas was unstable at the time and that, in North America, Defendant did not have a good relationship with its key stakeholders at Adidas, had operational performance issues, and was significantly under its profit budget. [Doc. 26-6 at 7:15-9:20, 10:8-19.] Therefore, Nadeau stepped in as the interim KAM rather than hiring a replacement for Seeley because of the unstable relationship between Defendant and Adidas. [Id. at 11:9-12:1.]
In October 2019, Nadeau let Plaintiff know that his position was not one that the Adidas account could support long term and, therefore, he would need to move into another role. [Id. at 40:2-7.] Around the same time, Defendant began looking for Plaintiff's next assignment. [Id. at 13:5-10; Doc. 29-21 at 19:19-20:9.] Plaintiff's 2019 annual appraisal, completed by Nadeau in early January 2020, also noted that because Plaintiff had accomplished “most of what was asked of him at the Spartanburg site, [Defendant would] look for his next assignment.” [Doc. 26-10 at 2, 10.] On his annual appraisal, Plaintiff acknowledged that he “was asked to get Spartanburg under control . . . then we would branch out” and that he felt that goal had been accomplished “in many ways.” [Id. at 10 (alteration in original).] Thus, Plaintiff remarked that he looked forward to his next assignment. [Id.]
Plaintiff's Report of Comments Made to a Coworker by an Adidas Employee
In late January 2020, Plaintiff informed Nadeau that Adidas's facilities manager, Don Sompogna, had made comments to Leah Merino, one of Defendant's employees, “about sex and about being his bitch.” [Doc. 29-21 at 23:5-22.] Sompogna had made the comments in early October 2019 and early January 2020. In early October 2019, Plaintiff was talking to Sompogna on the patio around lunchtime when Sompogna's phone rang. [Doc. 29-4.] Merino was calling, and Sompogna answered the call. [Id.] During the phone conversation, Sompogna said to Merino, “‘I don't mind heated conversations with you .... Because now we get to have this “make up sex” call.'” [Id. (alteration in original) (emphasis omitted); see Doc. 29-3.] Plaintiff “was taken aback when [he] heard” Sompogna make this comment. [Doc. 29-4.] Plaintiff talked to Merino about the comment, and Merino told Plaintiff “that she would have to think about [reporting the comment] because she knew it needed to be reported and she would work her way to that.” [Doc. 26-3 at 31:23-32:4.] Plaintiff did not report the comment in October 2019 because he thought that Merino should be the one to report it based on the comment being made to her. [Id. at 30:24-31:22.] However, Merino also did not report Sompogna's comment. [Doc. 29-24 at 2:3-13.]
On January 7, 2020, Plaintiff, Sompogna, and Merino were engaged in a conversation in an office at the Adidas site. [Doc. 29-4.] When Sompogna was leaving the office, he asked to speak to Merino in the hallway. [Id.] Merino talked to Sompogna, and when she returned to the office, Plaintiff “could tell from her expression [that] something was not right.” [Id.] Plaintiff asked her what was wrong, and Merino informed Plaintiff that Sompagna had said to her, “‘you can't get away from this account . . [.] I want you here . . . you're my bitch.'” [Id. (some alterations in original) (emphasis omitted); see Doc. 29-3.] Nadeau was scheduled to come to town, so Plaintiff told Merino that he would give her 24 hours to report Sompogna's comment to Nadeau or Plaintiff would report it. [Doc. 29-21 at 19:3-12.] However, Merino did not report Sompogna's comment. [Doc. 29-24 at 17:17-20.]
Plaintiff reported Sompogna's comments to Nadeau in late January 2020, when Nadeau and Plaintiff could meet face to face. [Doc. 29-21 at 22:16-23:22.] Plaintiff testified that Nadeau “just sat there and kind of rubbed his head and turned red as a beet for a while because it just angered him that he was going to have to deal with it and . . . [h]e said, ‘Damn, now, I have to deal with this.'” [Id. at 51:20-52:6.] When Nadeau left the meeting, “he was obviously perturbed.” [Id. at 52:7-20.]
Plaintiff testified that he talked to Nadeau the day after Merino's January encounter with Sompogna “and found that [Nadeau's] trip was delayed.” [Doc. 29-21 at 23:5-9.] Plaintiff told Nadeau then that he had some things they needed to discuss, but Nadeau wanted to wait until he was in Charlotte. [Id. at 23:9-17.]
Defendant's Handling the Reporting of the Comments
After learning about Sompogna's comments, Nadeau discussed the issue with his boss and with human resources. [Doc. 29-25 at 7:1-18.] They decided to escalate the issue with Adidas and asked Plaintiff and Merino “to prepare statements regarding these two incidents plus any other inappropriate incidents that had occurred with” Sompogna. [Id. at 7:6-10.] Therefore, on January 31, 2020, Nadeau sent the following email to Plaintiff and Merino:
Hello Fine People.
There's few things that I dislike more than bad news on a Friday afternoon, but here it comes . . .
After having a few discussions today and thinking it through several times, I decided that we need to escalate the recent . . . issues [involving Sompogna] to Tim [Glackin] to ensure that it does not continue. There will be a lot of backlash with this and it will most likely set u[s] back months in terms of our progress in stabilizing our relationship with adidas, but we have an obligation to protect our employees from inappropriate, abusive, or harassing communication and behavior.
I need both of you to prepare a statement detailing the conversations that you have had with [Sompogna] that fall into this category. Please include details on not only conversations that occurred between you and him, but also conversations with other ISS employees that you have observed or heard.
Please format the description of each conversation with approximate date, format/setting (i.e. phone call, face-to-face meeting, etc.), other attendees, and the comments that he made.
I would like to meet with Tim on Tue[sday] or Wed[nesday] next week, so please provide this to me by EOD Monday.
Thank you, Matthew[Doc. 29-19 at 1-2 (footnote added).] Both Plaintiff and Merino provided written statements. [Docs. 29-3; 29-4.]
Tim Glackin was Adidas's director of workplace services. [Doc. 26-6 at 8:1-11.]
In February 2020, Katy Heasty, Adidas's human resources director, interviewed Plaintiff, Merino, and Gary Hills, one of Defendant's facility managers, about Sompogna's conduct. [Docs. 26-3 at 42:8-13, 55:10-21, 56:23-57:18, 58:4-60:15; 26-11 at 8; see also Doc. 29-18 (Hills' statement).] At the conclusion of Adidas's investigation, Sompogna was terminated. [Doc. 29-5.]
Plaintiff's Completed Assignment on the Adidas Account, Furlough, and Termination
As stated, Defendant began looking for Plaintiff's next assignment around October 2019. [Doc. 26-6 at 13:5-10.] From early January through about the middle of March 2020, Plaintiff worked on the Suncor account in addition to working on the Adidas account. [Docs. 29-21 at 33:24-34:8, 37:5-14; 29-25 at 11:9-12:12, 13:5-18.] While Plaintiff worked on both accounts, his salary was allocated proportionately between the accounts. [Doc. 29-25 at 11:13-12:12.]
In early May, an opportunity became available on the Rolls Royce account. An asset care manager on the Rolls Royce account had given notice that he was resigning, so Defendant was looking to fill the position quickly to allow overlap of the employees while they looked for someone to fill the position permanently. [Docs. 26-6 at 22:19-23:13; 29-21 at 26:15-17, 40:13-42:1.] Plaintiff had a conversation with the KAM for the Rolls Royce account and learned that he could still support the Adidas account while filling in on the Rolls Royce account. [Docs. 26-19 at 3; 29-21 at 38:14-39:3.] After his conversation with the KAM for the Rolls Royce account, Plaintiff expressed concerns to Nadeau about filling in on the Rolls Royce account because it was “not close to [his] wheelhouse as an operations expert” and in performing some of the duties, he “could make [Defendant] look not so professional.” [Doc. 26-19 at 2.] Nadeau urged Plaintiff not to worry about his lack of experience in some of the areas because “[f]or what they need in the interim, [Plaintiff would] do great.” [Id.] Ultimately, the KAM for the Rolls Royce account hired someone else to fill the position. [Docs. 26-6 at 25:23-26:3; 29-21 at 38:10-39:8.]
Nadeau had hoped that Plaintiff would be able to support the Rolls Royce account such that part of his salary would be covered by that account and the rest covered by the Adidas account until an opportunity opened for Plaintiff to be assigned to the Mars account. [Doc. 26-6 at 24:4-8.] In late 2019, Defendant was in the process of obtaining an account with Mars that would require a large group of Defendant's best employees, and there would be an opportunity for Plaintiff to work on that account. [Id.; Doc. 29-21 at 20:10-21:4.] However, Mars delayed the transition to Defendant multiple times, primarily because of the COVID-19 pandemic, and the Mars account did not go live until the end of 2020, at which time Plaintiff was no longer employed by Defendant. [Doc. 26-6 at 21:12-22:6.]
Because Defendant's revenue was significantly impacted by the COVID-19 pandemic, it decided to implement furloughs to reduce spending. [Id. at 28:6-18.] As a result, Plaintiff was furloughed on June 1, 2020. [Id.; Doc. 29-21 at 50:10-11.]
On August 3, 2020, Defendant eliminated Plaintiff's position and terminated his employment. [Docs. 1 at 5 ¶ 35; 8 at 6 ¶ 35.] Plaintiff's position and the position of human resources generalist were eliminated because they were above-unit roles on the Adidas account that either had to be moved into other locations or laid off because Defendant needed to meet a $400,000 gross maximum profit stretch on the account. [Doc. 26-9 at 5:5-6:2.]
Although Merino referred to this position as a human resources generalist role [Doc. 26-9 at 5:18-23], the organizational chart for the Adidas account listed the position as P&C admin [Doc. 29-16 at 2].
A New KAM for the Adidas Account
By June 2020, the global master service agreement between Adidas and Defendant had been terminated. [Doc. 29-25 at 17:17-18:8.] Over the summer of 2020, Nadeau negotiated with Glackin and Skip Henkel from Adidas to work toward a new agreement between the two companies in North America. [Id. at 17:17-19:9.] Adidas's sales had dropped significantly as a result of the impact of COVID-19, and Adidas had challenged Defendant to present cost-saving opportunities as well as a new commercial model. [Id.] Ultimately, Adidas and Defendant entered into a new written contract. [Id. at 19:3-5.]
As part of the discussions after Henkel joined the account, it was decided that the Adidas KAM could be based in Spartanburg instead of Portland. [Id. at 20:22-21:7.] Ron Anthony then joined Defendant as the KAM for the Adidas account on August 31, 2020. [See Doc. 29-13.]
Plaintiff's Charge of Discrimination and Title VII Action
In October 2020, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission and the South Carolina Human Affairs Commission alleging that he was retaliated against in violation of Title VII because he reported sexual harassment. [Doc. 26-5.] As stated, Plaintiff filed this action on April 14, 2021, alleging retaliation in violation of Title VII. [Doc. 1.] For relief, he seeks all compensation and benefits due; reinstatement to his prior position and salary; and attorney's fees and costs. [Id. at 6.]
APPLICABLE LAW
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
Defendant argues it is entitled to summary judgment because Plaintiff cannot establish a prima facie case of retaliatory discharge and, even if he could establish a prima facie case, he cannot establish that Defendant's legitimate, non-retaliatory reason for terminating Plaintiff is a pretext for unlawful retaliation. [Doc. 26-1 at 13-29.] The Court agrees that Defendant is entitled to summary judgment.
Under Title VII, an employer is forbidden 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); 29 U.S.C. § 623(d). 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).
Through the two clauses of the antiretaliation provision, Title VII and the ADEA protect activities that “fall into two distinct categories: participation or opposition.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998); see also 29 U.S.C. § 623(d). Here, Plaintiff alleges he engaged in opposition activity.
Absent direct or indirect evidence of retaliatory animus, a Title VII plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to establish a retaliation claim. Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 249 (4th Cir. 2015). Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804.
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 h[im], 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). Here, even assuming Plaintiff can establish a prima facie case of retaliation, Defendant has articulated a legitimate, nonretaliatory reason for terminating Plaintiff. Specifically, Defendant asserts that Plaintiff was terminated because of the Adidas account's inability to financially support Plaintiff's position, the impact of the COVID-19 pandemic, and the lack of other positions available. [Doc. 26-1 at 8-9, 10, 14, 28.] Because Defendant has articulated a legitimate, nonretaliatory reason for terminating Plaintiff, the Court will consider whether Plaintiff has met his burden of demonstrating that Defendant's proffered reason is merely a pretext for retaliation, which would indicate whether Plaintiff could meet his ultimate burden of persuasion and demonstrate retaliation vel non. See Merritt, 601 F.3d at 294.
As one court within the Fourth Circuit has noted, “[t]he relevance of the McDonnell Douglas scheme outside of the trial context is limited.” Lerner v. Shinseki, No. ELH-10-1109, 2011 WL 2414967, at *14 (D. Md. June 10, 2011). The Fourth Circuit has observed,
Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the same, necessitating resolution of “the ultimate question of discrimination vel non.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983). As the Supreme Court has explained, “[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). Thus, “[c]ourts must . . . resist the temptation to become so entwined in the intricacies of the [McDonnell Douglas] proof scheme that they forget that the scheme exists solely to facilitate determination of ‘the ultimate question of discrimination vel non.'” Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (citation omitted).Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294-95 (4th Cir. 2010). Further, the Supreme Court has stated,
Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff.Aikens, 460 U.S. at 715 (internal quotation marks omitted); see Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (“The Aikens principle applies, moreover, to summary judgment as well as trial proceedings.”). In light of this guidance from the Supreme Court and the Fourth Circuit Court of Appeals, the Court agrees with the District of Maryland that where the employer has met its burden of articulating a legitimate, nondiscriminatory reason for its adverse action against the plaintiff, the Court may assume, without deciding, that the plaintiff has established a prima facie case of discrimination. See Lerner, 2011 WL 2414967, at *14.
Generally, to prove an employer's articulated reason is a pretext for discrimination or retaliation, a plaintiff “must prove ‘both that the reason was false, and that [retaliation] was the real reason' for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (quoting St. Mary's Honor Ctr., 509 U.S. at 515). However, “a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully [retaliated].” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). Ultimately, to survive summary judgment on a retaliation claim, a plaintiff must demonstrate ?a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016). The plaintiff must show that the protected activity was a but-for cause of the adverse action. Id. at 218. Here, Plaintiff has failed to demonstrate a genuine factual dispute on the question of pretext.
Plaintiff argues that Defendant “did not eliminate [Plaintiff's] position, it just changed the title back to ‘KAM.'” [Doc. 29 at 29.] However, even the evidence Plaintiff has submitted to the Court does not support this argument. The pre-termination organizational chart for Defendant's leadership team on the Adidas account shows 12 team members:
(Image Omitted)
[Doc. 29-16 at 2.] Under this structure, the facilities managers reported to Plaintiff, and Plaintiff in turn reported to the KAM, who was Nadeau at the time. On the other hand, the post-termination organizational chart for Defendant's leadership team on the Adidas account shows 9 team members:
Although Plaintiff asserts that “[i]nstead of hiring a KAM, Defendant just assigned [Plaintiff] to perform most of those duties” [Doc. 29 at 6], as previously noted, after Seeley resigned, Nadeau stepped in as the interim KAM rather than hiring a replacement because of the unstable relationship between Defendant and Adidas [Doc. 26-6 at 11:9-12:1]. Nadeau's stepping in as the interim KAM also explains why he is identified as a KAM on the organizational chart. [See Doc. 29 at 6 n.4 (asserting that Defendant's employees used the titles “key account manager,” “director of operations,” and “operations manager” interchangeably and that, “[i]n one organizational chart, Nadeau is even identified as a KAM”).] Nadeau testified that he “was also running two or three other accounts as primary lead and [he] also had responsibility to support four or five other accounts,” so he asked Merino to provide support in running the Adidas account when he stepped in. [Doc. 26-6 at 4:16-24; see also Doc. 29-21 at 12:8-10 (Plaintiff's testimony that Nadeau had been serving as a KAM for six or seven sites for years).] He also testified that there was “a fluid arrangement where [they] didn't specify what [Merino's] role would be and what [Plaintiff's] role would be” so “[t]here was a lot of overlap” but that generally the office facilities managers reported to Merino and the distribution center facilities managers reported to Plaintiff. [Doc. 29-25 at 20:1-13.] The organizational charts show that Nadeau was the interim KAM and Plaintiff's position was at a level between the facilities managers and the KAM.
(Image Omitted)
[Doc. 29-17 at 2.] Under this structure, the facilities managers reported directly to the KAM, who was Anthony at the time. Accordingly, both before and after Plaintiff's termination, Defendant had a KAM assigned to the Adidas account, but after his termination, they did not employ anyone at the level between the facilities managers and the KAM because they eliminated that position just as Nadeau had warned Plaintiff they would do in October 2019. Indeed, Plaintiff acknowledges that “[t]he account did not want to pay for both an operations manager and a KAM.” [Doc. 29 at 29 n.20.] Thus, the record does not support Plaintiff's argument that Defendant changed the title of Plaintiff's position to KAM and hired Anthony as Plaintiff's replacement.
Throughout his response in opposition to the motion for summary judgment, Plaintiff asserts that Anthony was hired as Plaintiff's replacement. [Doc. 29 at 2, 13, 14, 20, 27, 28.] He appears to base this assertion on an email dated June 29, 2020, from Nadeau to Glackin, which Plaintiff represents as “stating that the ‘New KAM' was replacing the ‘ops manager.'” [Id. at 28 (emphasis added).] However, a review of that email shows that Nadeau and Glackin had discussed hiring a new KAM and removing the ops manager. [Doc. 29-20 at 1.] Plaintiff has failed to direct the Court to any record evidence to support his assertion that Anthony replaced Plaintiff.
Plaintiff also argues that he should have been placed in the KAM position rather than Anthony once Defendant decided the position could be located in Spartanburg. [Doc. 29 at 19-20, 29-31.] To support this argument, Plaintiff relies on testimony from Tom LaMartina and on Plaintiff's testimony that Seeley offered Plaintiff the KAM position when he resigned. [Id. at 14-15, 19-20, 21, 24-26, 29-31.] However, “[i]t is the perception of the decision maker which is relevant,” King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (internal quotation marks omitted), and neither LaMartina nor Seeley were involved in the decision to terminate Plaintiff or to hire Anthony as the KAM for the Adidas account because they were no longer employed by Defendant at the time those decisions were made [Docs. 26-3 at 14:10-23; 26-6 at 4:16-17; 29-23 at 14:14-15]. Accordingly,
LaMartina and Plaintiff had worked together at other companies, and LaMartina offered Plaintiff his first position with Defendant in 2014 and brought him back to Defendant in 2017. [Doc. 29-23 at 3:10-4:1, 6:4-18, 9:17-10:10, 13:7-14:4]. LaMartina stopped working for Defendant in 2018. [Id. at 14:14-15.]
Plaintiff appears to concede that Nadeau made the decision to hire Anthony. [Doc. 29 at 13 (contending that Nadeau “identified [Plaintiff's] replacement: Ron Anthony”).] Nadeau testified that he did not consider Plaintiff to be qualified for the KAM position because the position requires an understanding and management of the commercial model, an understanding and capacity to manage the financial performance of the account, leadership competency across several aspects to manage staff, and a healthy relationship with the partner. [Doc. 30-2 at 4:7-20.] Nadeau believed Plaintiff did not have experience running a sophisticated commercial model like the Adidas account [id. at 27:2-29:12], did not have experience owning a budget [id. at 29:23-30:4], did not have experience managing a team as large as the Adidas account [id. at 31:15-22], and did not have a strong relationship with Adidas leadership employees or “display an aptitude for nurturing relationships with [them]” [id. at 30:6-31:14]. Although Plaintiff contends he had the necessary experience [Doc. 29 at 14-15, 24, 26, 31], he has not directed the Court to any evidence that Nadeau knew about Plaintiff's experience outside of what he observed on the Adidas account or to any other evidence to support a finding that Nadeau did not actually believe Plaintiff was not qualified for the KAM position. Nor has Plaintiff directed the Court to any evidence that Nadeau knew that Seeley had purportedly offered Plaintiff the KAM position before he resigned. Moreover, Nadeau's failure to tell Plaintiff that the KAM position could be located in Spartanburg instead of Portland [see Doc. 29 at 11, 25], does not establish pretext because, if Nadeau did not believe Plaintiff was qualified for the KAM position, he would have had no reason to inform Plaintiff that it could be located in Spartanburg. Nor has Plaintiff demonstrated that Nadeau knowingly made misrepresentations during their telephone conversation on May 28, 2020. [See id. at 11-12, 31.] Plaintiff asserts that, during that call, “Nadeau failed to advise Plaintiff that in fact Adidas was paying [Defendant's] invoices and had agreed to enter a new North American contract and to move the KAM position to Spartanburg.” [Id. at 11.] However, the timeline established in the record does not support that any of these events had occurred by May 28, 2020. The evidence shows that on May 4, 2020, Nadeau followed up on an email chain that began in late March about outstanding invoices, letting Adidas know that by the end of that week, it would “have $2.2M in overdue status for Jan[uary], Feb[ruary], Mar[ch], and Apr[il] services.” [Doc. 29-10 at 2.] Glackin responded that he was “still working through details but there [was] supposed to be 1.3 million being sent [that day] and approximately another 1.1 being sent on Friday.” [Id. at 1.] However, nothing in the record establishes that those payments actually were made or that Adidas was not still in arrears regarding its invoices. Further, nothing in the record establishes that as of May 28, 2020, Defendant and Adidas had entered into a new contract or agreed to move the KAM position to Spartanburg. [See, e.g., Doc. 29-25 at 17:17-19:9 (Nadeau's testimony that in June 2020, Henkel challenged Defendant “to come back to him with cost-savings opportunities and with a new commercial model”; that if it was successful, they would move forward with a new agreement; and that they worked on that over the summer of 2020), 20:22-21:7 (Nadeau's testimony that after Henkel joined the account in June 2020, it was decided that the Adidas KAM could be based out of Spartanburg instead of Portland); see also Docs. 29-12 (emails about a June 17, 2020, meeting and follow-up items from that meeting regarding scope review and analysis and potential efficiency options); 29-20 (June 29, 2020, email from Nadeau to Glackin outlining “Savings Opportunities” that had been discussed on a prior call).]
Plaintiff's belief that he should have been placed in the KAM position does not create a genuine issue of material fact regarding pretext.
Plaintiff also argues that Nadeau and Defendant began treating him differently in early March 2020 when Nadeau canceled his one-on-one meetings with Plaintiff, Defendant removed Plaintiff from working on the Suncor account, and the position on the Rolls Royce account disappeared. [Doc. 29 at 20, 21-24, 31.] The majority of Plaintiff's argument regarding his different treatment is directed toward establishing a causal connection between his reporting Sompogna's comments and his termination. [Id. at 21-24 (citing cases for the proposition that antagonistic events occurring regularly after an employee engages in protected activity are sufficient to show a causal link between protected activity and adverse action).] However, the burden for establishing causation at the pretext stage is more onerous than at the prima facie stage. Foster, 787 F.3d at 251. And Plaintiff's speculation that his reporting Sompogna's comments caused Nadeau to cancel one-on-one meetings and caused Defendant to remove Plaintiff from the Suncor account and to hire someone else for the Rolls Royce account is not enough to meet his burden of demonstrating a genuine dispute of material fact as to whether his protected activity was a but-for cause of his termination. Nor does the record support his speculation that any of these events occurred because he reported Sompogna's comments. With respect to Nadeau canceling one-on-one meetings, Plaintiff testified that Nadeau provided reasons for canceling the meetings but Plaintiff simply did not believe his reasons and that they still continued to have group meetings. [Doc. 30-1 at 15:6-17:12, 19:7-20:21.] With respect to the Suncor assignment, nothing in the record supports a finding that Nadeau had any input in the decision to stop having Plaintiff support the Suncor account. [Docs. 29-21 at 34:5-37:1; 29-25 at 12:16-13:4.] And with respect to the Rolls Royce opportunity, Plaintiff testified that they pitched it to him as an opportunity to “fill-in until they found the proper candidate to do th[e] job” because Plaintiff was too expensive to take the full-time position permanently. [Doc. 29-21 at 40:1-9.] That Defendant was able to hire someone to fill the permanent position before it needed Plaintiff to temporarily fill in does not tend to show retaliatory animus.
Plaintiff also notes that his badge was deactivated, which prevented him from entering the building. [Doc. 29 at 10 n.9, 24 n.18.] However, Plaintiff fails to explain how his badge being deactivated establishes retaliatory animus or to allege who deactivated the badge. Nadeau testified that once Plaintiff informed him about the badge, Nadeau asked Glackin to look into it because he was over the security department within Adidas, and that Plaintiff was then able to enter the building. [Doc. 29-25 at 15:12-16:5.]
Additionally, Nadeau's reaction when Plaintiff reported the comments does not support a finding of retaliatory animus. As noted, Plaintiff testified that Nadeau was angry that he had to deal with the situation and “was obviously perturbed.” [Doc. 29-21 at 51:20-52:20.] However, being angry or frustrated about having to deal with a possible sexual harassment situation does not mean that the frustration or anger is based on retaliatory animus or that Nadeau was frustrated or angry because Plaintiff had reported the activity rather than being frustrated or angry that the comments had been made at all. Indeed, Nadeau's subsequent email requesting statements from Plaintiff and Merino shows that, despite potential setbacks in stabilizing Defendant's relationship with Adidas, Nadeau wanted to take steps to protect Defendant's employees and escalate the issue to Glackin. [Doc. 29-19 at 1-2.]
The evidence in the record leaves no doubt that, as of October or November 2019, Defendant informed Plaintiff that his assignment would be ending because the Adidas account could not support his position long term and Defendant began looking for Plaintiff's next assignment. [Docs. 26-6 at 13:5-10, 40:2-7; 29-21 at 19:19-20:9.] Further, Plaintiff's 2019 annual appraisal, completed in early January 2020, noted that Defendant was looking for Plaintiff's next assignment. [Doc. 26-10 at 2, 10.] Thus, Defendant had already planned to move Plaintiff off the Adidas account and find him a new assignment before Plaintiff reported Sompogna's comments in late January. [Doc. 29-21 at 23:5-22.] Additionally, beginning in January 2020, Defendant pursued other opportunities for Plaintiff, including those where Plaintiff's salary would be partially covered by accounts other than the Adidas account until they could find something permanent for him. [Id. at 26:15-17, 33:24-34:8, 37:5-14, 38:14-39:3, 40:13-42:1; Docs. 26-6 at 22:19-23:13, 24:4-8; 26-19 at 3; 29-25 at 11:9-12:12, 13:5-18.] Defendant had planned to assign Plaintiff to the new Mars account that it was working to obtain. [Docs. 26-6 at 20:8-13, 24:4-8; 29-21 at 20:10-21:4.] However, mainly because of the COVID-19 pandemic, obtaining the Mars account was delayed. [Doc. 26-6 at 21:12-22:6.] Plaintiff was then furloughed on June 1, 2020, because Defendant needed to reduce spending. [Id. at 28:6-18; Doc. 29-21 at 50:10-11.] Additionally, by June 2020, the global master service agreement between Adidas and Defendant had been terminated, and Adidas's sales had dropped significantly as a result of the impact of COVID-19. [Doc. 29-25 at 17:17-19:9.] Thus, Adidas challenged Defendant to find ways to cut costs and to come up with a new commercial model as part of the negotiation process to enter into a new agreement to continue working with Defendant. [Id.; see also Docs. 29-12 (emails about a June 17, 2020, meeting and follow-up items from that meeting regarding scope review and analysis and potential efficiency options); 29-20 (June 29, 2020, email from Nadeau to Glackin outlining “Savings Opportunities” that had been discussed on a prior call).] Plaintiff's position was eliminated and he was terminated on August 3, 2020, because it was an above-unit role and Defendant needed to meet a $400,000 gross maximum profit stretch on the account. [Doc. 26-9 at 5:5-6:2.] Given the forecasted evidence establishing the decision that the Adidas account could not financially support Plaintiff's position was made before Plaintiff reported Sompogna's comments, that Defendant actively attempted to find another assignment for Plaintiff, and that the COVID-19 pandemic negatively impacted Defendant and its customers financially combined with the lack of forecasted evidence tending to show that Plaintiff's termination had anything to do with his reporting the comments-let alone that his reporting the comments was the but-for cause of his termination-the Court concludes that no reasonable fact finder could infer that Defendant's proffered reason was not the true reason for Plaintiff's termination. Accordingly, the Court concludes that this is not a case where “‘the totality of the circumstances surrounding the employer's action may carry [Plaintiff's] burden in a jury's eyes'” [Doc. 29 at 18 (quoting Edwards v. BCDR, LLC, 3:19-cv-02671-JMC, 2022 WL 981173, at *2 (D.S.C. Mar. 31, 2022)], and that Plaintiff has not demonstrated “a genuine dispute of material fact on the question of pretext sufficient to make [Defendant's] proffered justification a triable issue,” Guessous, 828 F.3d at 217. Accordingly, Defendant's motion for summary judgment should be granted.
Although Plaintiff contends that he found Defendant's explanation that Plaintiff was being furloughed for financial reasons to be “confusing” because “April and May had the highest margins ever” for the Adidas account [Doc. 29 at 29 n.20], Plaintiff has not provided the Court with any evidence that casts doubt on Nadeau's testimony that Defendant as a “company was heavily impacted by the service reduction that was driven by the COVID impact” such that its revenue as a whole, not just this account, was impacted and Defendant determined it “needed to implement furloughs in order to reduce [the company's spending] while the revenue was being impacted.” [Doc. 26-6 at 28:12-18.] Moreover, as stated, Defendant had informed Plaintiff months earlier that the Adidas account could not support his position long term, and around the time Plaintiff was furloughed, Defendant and Adidas were negotiating to enter into a new agreement with Adidas challenging Defendant to find ways to cut costs and be more efficient. [Docs. 29-12; 29-20; 29-25 at 17:17-19:9.]
Although Plaintiff contends that “there had never been any discussion or contemplation of terminating Plaintiff's employment” before he reported Sompogna's comments [Doc. 29 at 25], Plaintiff has directed the Court to no evidence suggesting a genuine dispute as to whether his position and the human resources generalist position were eliminated to close a $400,000 gross maximum profit stretch as Merino testified [Doc. 26-9 at 5:5-6:2].
Because the Court concludes that summary judgment should be granted for the reasons discussed, the Court declines to address Defendant's remaining arguments.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's motion for summary judgment [Doc. 26] be GRANTED.
IT IS SO RECOMMENDED.