Opinion
Civil Action 3:22-cv-0911-JFA-TER
01-12-2024
LaSHAUN CURRY, Plaintiff, v. SOUTH CAROLINA STATE ELECTION COMMISSION, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
I. INTRODUCTION
This action arises from Plaintiff's employment with Defendant. In his Complaint, Plaintiff alleges causes of action for race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. as well as a state law claim for defamation. Plaintiff originally filed this action in the Court of Common Pleas, Richland County, South Carolina, and Defendant removed it to this court. Presently before the Court is Defendant's Motion for Summary Judgment (ECF No. 24). Plaintiff filed a Response (ECF No. 28), and Defendant filed a Reply (ECF No. 29). 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
In early 2019, Director Andino decided to restructure the management level positions at the South Carolina Election Commission. Chris Whitmire had been serving as the Director of Public Information and Training and felt like he was doing two different jobs because those roles were not related. Whitmire Dep.36-37 (ECF No. 28-5). As the agency had grown, so had its responsibilities, and there was a need for two separate positions. Whitmire Dep. 36-37. Andino decided to create a new manager position in charge of both training and compliance and created a separate position for public information and outreach. Andino Dep. 16 (ECF No. 28-17). Whitmire would no longer supervise training but continue to manage public information and increase the agency's outreach functions. Whitmire Dep. at 21, 37.
In April of 2019, Defendant posted the Director of Training position online for applicants to apply. Director of Training Posting (ECF No. 28-1). Plaintiff, an African-American female, applied. Pl. Dep. 28 (ECF No. 28-2). Plaintiff had no elections experience but had been employed by the State of South Carolina since July of 2018 at the South Carolina Public Benefit Authority (PEBA) as an Employer and Field Services Manager where she did have experience in conducting trainings. Pl. Resume Cover Letter (Pl. Dep. Ex 3) (ECF No. 24-3). She was earning a salary of approximately $45,000.00 annually during her brief employment with PEBA. Pl. Dep. at 28.
Plaintiff was interviewed by Andino. Pl. Dep. 142. On June 5, 2019, after the application and interview process, Andino offered Plaintiff the Director of Training position with Defendant at a salary of $69,289. Offer Letter (ECF No. 28-3). Plaintiff began her employment with Defendant in late June 2019. Pl. Dep. 35. In broad terms, Plaintiff was responsible for the oversight of the training and certification program. Pl. Dep. 30. Plaintiff was not provided an orientation wherein she went over the policies and procedures. Pl. Dep. 36-37.
Plaintiff reported to the Defendant's Executive Director, Marcie Andino, a white female. Pl. Dep. 37. Andino reported to the Board of Commissioners. Pl. Dep. 37; Organizational Chart (ECF No. 28-4). Per Plaintiff, for the first eight months or so of her employment, she got along well with Andino, and everything was okay. Pl. Dep. 39. Around the eight month point, Plaintiff perceived Andino's demeanor towards her changed. Pl. Dep. 39-40.
Prior to Plaintiff becoming the Director of Training, training was handled by Chris Whitmire. Whitmire Dep. 13 (ECF No. 28-5). Whitmire, a white male, took over as the Director of Public Information and Training in or around August 2011. Whitmore Dep. 13. He held that position until Plaintiff's hire in 2019. Whitmire Dep. 14. As a result of restructuring the Director of Public Information and Training was split into two positions, and Whitmire served only as the Director of Public Information once Plaintiff was hired as the Director of Training. Whitmore Dep. 14; Organizational Chart. Whitmire did not handle compliance when he was in the position - an aspect that was added to Plaintiff's responsibilities upon her hire. Whitmire Dep. 23, 27-28.
As of April 2019, Whitmire was making an annual salary of $86,868.61 in his Director of Public Information and Training position. Def. Int. Resp. p. 3 (ECF No. 6). As of June 2019, when Whitmire was reorganized into the newly created Director of Public Information position, Whitmire earned an annual salary of $88,605.00. Defendant's Interrogatory Responses p. 3. During the reorganization in June 2019, Whitmire's position remained the same but-for him losing the training responsibilities. Whitmire Dep. 21. Whitmire testified that he did not lose any pay during his employment, including, but not limited to, when he was relieved of the training responsibilities. Whitmire Dep. 21-22. Whitmire received an increase in pay in April 2020, bringing his Director of Public Information salary to $91,263.00. Def. Int. Resp. p. 3. .
At or around the same time Plaintiff was terminated in May 2021, Whitmire was asked to resume the “training” responsibilities. Whitmire Dep. 15. He effectively resumed the Director of Public Information and Training position. Whitmire Dep. 15. Although Whitmire testified that about a year prior to his leaving employment, which would have been Spring 2022, he was promoted to Deputy Executive Director, in or around May 2021, Whitmire's pay record indicated he was issued a “reclassification upward.” Whitmire Dep. 15-19; Def. Int. Resp. p. 3. Regardless, Whitmire's salary increased approximately $5,000.00 to an annual salary of $96,343.00 in May 2021, just after Plaintiff's termination and him resuming the “training” responsibilities. Def. Int. Resp. p. 3. Whitmire did not take on the “compliance” responsibilities at that time. Whitmire Dep. 24.
Around the same time Plaintiff was hired, Defendant was seeking to fill its Director of Voting Services position. Director of Voter Services Posting (ECF No. 28-7). Defendant hired Howard Knapp, a white male, as the Director of Voter Services in October 2019. Knapp Dep. 13-14 (ECF No. 28-8); Knapp Offer Letter (ECF No. 28-9). Knapp was offered a starting salary of $80,000.00. Knapp Offer Letter. Prior to his hire, Knapp had never worked for the Defendant and/or any other state election commission. Knapp Dep. 15.
This posting states that it is for a Program Manager I position. However, both parties refer to this posting as the one for Director of Voting Services.
In April 2020, approximately six months after his hire, Knapp received a pay raise to $81,600.00. Def. Int. Resp. p. 2. Less than three months later, in July 2020, Knapp received another sizeable raise - bringing his salary to $89,760.00. Def. Int. Resp. p. 2. On May 17, 2021, shortly after Plaintiff's termination, and on the same date that Whitmire received a raise, Knapp received a raise to $96,132.00. Def. Int. Resp. p. 2. Per Knapp, he likely received this May 2021 raise as a result of additional duties- taking over Plaintiff's prior “compliance” responsibilities in a like manner to Whitmire resuming “training” responsibilities. Knapp Dep. 23-24; Knapp Duties Email (ECF No. 28-10).
As stated above, at the time she began her employment, Plaintiff received a starting salary of $69,289.00. Plaintiff had requested a starting salary of $70,000.00 as the salary range for the position was $49,594 - $91,755. Pl. Dep. 35; Director of Training Posting. As of July 16, 2019, Plaintiff's salary was adjusted to $70,674.00 because the midpoint for her position had increased. July 2019 Email (ECF No. 28-11). In October 2020, Plaintiff received a salary increase of 2%, retroactive to July 2020 because she had received a “Successful” on her most recent EPMS (Employee Performance Management System). October 2020 Email (ECF No. 28-12). At that point, Plaintiff's salary was $72,088.00. October 2020 Email. Plaintiff's salary remained at $72,088.00 through her termination.
This EPMS covered June 24, 2019, through June 24, 2020, her first year of employment. 2019 EPMS (ECF No. 28-13).
Plaintiff's role as a supervisor meant that she had to evaluate her subordinate employees. She had one training coordinator and three to five area representatives whom she supervised. Organizational Chart. Plaintiff had not gone through the state's EPMS when she worked at PEBA because she did not work there a full year, so the process was new to her. Pl. Dep. 51. One of Plaintiff's subordinates, Kizzie Scott, was new to her role at the SCEC, and Plaintiff conducted her 2020 evaluation. Andino Dep. 41, 43-44 (ECF No. 28-17). The EPMS procedure provides that Plaintiff prepare an evaluation and then provide it to her supervisor for review. Andino Dep. 41, 43-44. The supervisor would then provide input and any changes that needed to be made before the evaluation was presented to the subordinate. Andino Dep. 41, 43-44. Thereafter Plaintiff would meet with the subordinate to review the evaluation. Andino Dep. 41, 43-44.
In February of 2020, Andino as supervisor reviewed Plaintiff's evaluations of Plaintiff's subordinates. Audino Dep. 41-32; Termination Letter (ECF No. 28-24). Plaintiff had given Scott an “exceptional” rating despite Scott having been in her position for less than one year. Audino Dep. 41-32; Termination Letter. Andino explained to Plaintiff that Scott had not yet worked during a general election or conducted compliance audits and was still learning the job duties. Audino Dep. 41-32; Termination Letter. Andino had a policy based on her training and on her understanding of the State HR regulations of not awarding an exceptional rating to an employee who had been in the position for less than one year. Andino Dep. 95-96. As Andino explained at her deposition:
To get an exceptional.. .they would have to go above and beyond and that's very difficult when you're a brand new employee and you don't know the job, you're just learning it. And in some cases, they haven't even completed all of the tasks on their-in their job description.Andino Dep. 95-96; Whitmire Dep. 44-45 (“It was the unwritten rule”).
Andino explained her rationale to Plaintiff and instructed Plaintiff to change Scott's rating from “exceptional” to “satisfactory.” Audino Dep.96. Plaintiff told Andino that she understood the reasoning for changing Scott's evaluation and would do so before presenting the evaluation to her. Andino Dep. 41-42; Termination Letter. However, in March of 2021, Andino discovered that despite Plaintiff telling Andino that she had changed Scott's evaluation, Plaintiff had defied her instruction and had not changed it as directed. Andino Dep. 96; Termination Letter.
On another occasion, Plaintiff's subordinate Eliza Spence had some performance issues including attendance, low productivity, and ignoring directives. Pl. Dep. 100; Andino Dep. 94. State policy did not permit Plaintiff giving Spence an unsuccessful rating on her EPMS evaluation unless she had first given Spence a notice of substandard performance. Andino Dep.94-95. Andino had to explain to Plaintiff that at the time Spence's annual evaluation was due in February, Plaintiff had not yet issued Spence a notice of substandard performance, so she therefore could not give her an unsuccessful performance evaluation. Audino Dep. 94-95. Instead, Spence received a performance rating of successful by default according to the EPMS policy. Andino Dep. 94.
Plaintiff testified that about eight months into her tenure Andino's communications became rude and condescending. Pl. Dep. 29. Andino found communication with Plaintiff sporadic and difficult and asked Plaintiff that she speak with her in person in the office instead of by Plaintiff's preferred method of lengthy emails. See e.g. October 2020 Email Chain (ECF No. 28-18) (wherein Andino tells Plaintiff in response to lengthy emails: “I explained when you were assigned to Richland County I preferred that we discuss situations so I could provide ongoing guidance.”) (emphasis in the original).
On October 22, 2020, Plaintiff and Andino engaged in an e-mail exchange concerning Richland County and IT. October 2020 Email Chain. On October 22nd, Plaintiff sent an email to Andino advising her, among other things, of her concern that Andino continued to disparage her. Ocotber 2020 Email Chain. Andino responded later the same date that she was “not trying to disparage or minimize your decisions” and discussed her concerns that Plaintiff had placed the statewide voter registration system at risk. October 2020, Email Chain. Plaintiff disputed Andino's characterization of the events that occurred and reiterated her concerns that Andino was hostile towards her in emails. meetings, and conversations, that Andino's guidance was not consistent, which resulted in Plaintiff receiving additional criticism, that Plaintiff was distressed and intimidated by Andino, and that there was a difference between constructive criticism and consistent derision and disparate treatment. October 2020 Email Chain.
On December 21, 2020, Andino issued Plaintiff a reprimand for a number of issues. December 2020 Reprimand (ECF No. 28-20). The prior April, Andino had privately counseled Plaintiff to provide constructive criticism to her as a new manager. December 2020 Reprimand. In response, Plaintiff complained to coworkers that her assignments were outside of her purview, and Plaintiff distanced herself from her supervisor which resulted in strained and reduced communications. December 2020 Reprimand. In the December written reprimand, Andino noted that Plaintiff's “limited engagement and lack of communication creates uncertainty, doubt and unnecessary stress for everyone.” December 2020 Reprimand.
Further, Andino had instructed Plaintiff to receive training on ballot proofing so that she could work with the ballot proofing and quality assurance team. December 2020 Reprimand. Andino later asked Plaintiff whether the proofing had been completed, and instead of telling her supervisor that she had not yet been trained, Plaintiff responded “no,” misleading her supervisor to think she had undergone the training when she had not. December 2020 Reprimand; Pl. Dep. 82-83.
Andino met with Plaintiff to review the written reprimand and asked that Knapp be present in his role as interim Director of Administration. Pl. Dep. 78, 83-84. They also went over the planning stage of Plaintiff's EPMS which outlined the expectations for Plaintiff's role at the agency. Pl. Dep. 84; 2020 EPMS (ECF No. 28-14). Plaintiff did not sign the planning stage EPMS until January 14, 2021, several weeks after it had been presented to her on December 21, 2020. 2020 EPMS. She also submitted a written document she entitled “EPMS Addendum” in which she complained that she had not received guidance and feedback in order to do her job. 2020 EPMS. She further complained that she had been left out of meetings and not allowed to make changes to the training program. 2020 EPMS.
Later the same day following the reprimand meeting on December 21, 2020, Plaintiff sent a lengthy email to Andino, Knapp, and the commissioners of the State Election Commission. December 21, 2020 Email (ECF No. 28-19). Plaintiff's email described her disagreements with the written reprimand and alleged that she had suffered disparate treatment which “instinct and experience ha[d] led [her] to determine” was based on “racial bias and animus,” and “blatant racism and bias” by Andino. December 21, 2020 Email. Plaintiff stated,
Your documented behaviors and actions in conjunction with affirmation by colleagues current and former - as well as past employees - solidifies blatant racism and bias on your part, a belief that I no longer have to conceal, and a belief that if researched by the South Carolina Election Commission Board (SCEC), will be revealed to be fact.”December 21, 2020 Email. Plaintiff further stated that she had contacted the South Carolina Human Affairs Commission (SCHAC) and the Equal Employment Opportunity Commission (EEOC). December 21, 2020 Email. She also complained, inter alia, that she was the lowest paid director on staff with equivalent or more experience, and that she was left out of meetings. December 21, 2020 Email. She complained that “the toxicity and divide for employees of color and white employees is widespread and well-known” and that she “was informed that minority employees, particularly women, are frequently cited for infractions-yet the same or similar infractions by non-minority employees are overlooked.” December 21, 2020 Email. She further complained that Andino had orchestrated another black female manager's termination and had now set her sights on her, the other black female manager. December 21, 2020 Email. Plaintiff also reiterated a past request for leave for the holidays. December 21, 2020 Email.
Andino responded to Plaintiff briefly on December 21, 2020, to approve her requested leave and then with a more lengthy reply on December 29, 2020. December 21, 2020, Email; Pl. Dep Ex. 20 (ECF No. 24-3). When Knapp was asked in his deposition whether he recalled Andino being made or frustrated about Plaintiff including the commissioners on her email, he replied, “[t]he only conversation I remember having with her about it is the morning after [Plaintiff sent the email]. I walked in the office and I asked her basically did you see [Plaintiff's] email and she said yes and I'll take care of it.” Knapp Dep. 44.
On February 10, 2021, Plaintiff met with Andino regarding a second reprimand. Andino Dep. 53. Knapp was again present in his role as interim Director of Administration. Pl. Dep. 107-08. Andino went over the second reprimand, noting that Plaintiff's attitude and willingness to work with others had not improved despite the prior warnings and reprimand. February 2021Reprimand (ECF No. 28-21). Andino noted that Plaintiff raised no complaints or concerns during their December 21, 2020, discussion about Plaintiff's EPMS planning stage and did not send Andino a copy of her addendum rebutting portions of the document. February 2021, Reprimand. In the second written reprimand, Andino also highlighted Plaintiff's inability to accept constructive criticism, including interrupting her in a meeting by saying they would “have to agree to disagree.” February 2021 Reprimand. Plaintiff responded with a an email the same day she received the second written reprimand and reiterated her complaints. Pl. Dep. Ex.23 (ECF No. 24-3).
Knapp testified that he did not participate in preparing either the December or the February reprimands and served only as a witness during the meetings between Plaintiff and Andino. Knapp Dep. 31-32, 45-46.
On February 16, 2021, Plaintiff filed her first charge of discrimination with SCHAC alleging discrimination based on race, age, and sex and retaliation. February Charge (ECF No. 28-22) Plaintiff's charge alleged, inter alia, that Andino had communicated in a hostile and berating manner, excluded her from meetings, withheld important information, instructed her to follow a white coworker's guidance, disciplined her with written reprimands, and paid her less than white counterparts. February Charge. Andino became aware of the Charge as soon as it was sent to Defendant. Andino Dep. 77.
On February 25, 2021, Plaintiff submitted a harassment/discrimination complaint to the SCEC alleging that Andino had been subjecting her to “disparate and discriminatory behavior.” SCEC Complaint (ECF No. 28-31). She submitted the complaint to Knapp who was Acting Director of Administration at the time and also to her supervisor, Director Andino. SCEC Complaint. As the Acting Director of Administration and pursuant to agency policy, Knapp was tasked with investigating the complaint. Andino Dep. at 72. Knapp, along with agency Human Resources liaison Daylin Silber, met with two agency employees as part of his investigation into the complaint. Knapp Dep. at 37. Neither of the employees had any race-related complaints about agency management, though one employee did cite conflict between two former agency employees who were both black. Knapp Dep. at 39-40.
On March 3, 2021, Plaintiff filed her second charge of discrimination with SCHAC alleging retaliation based on Andino asking her to modify her work schedule and also on her performance evaluation. March Charge (ECF No. 28-23). Andino was aware of this Charge as well. Andino Dep. 79.
On May 11, 2021, Andino terminated Plaintiff's employment for misconduct. Pl. Dep. 125-26; Termination Letter. Andino noted that Plaintiff had not attempted improvement after the first two written reprimands. Termination Letter. In addition to the conduct previously addressed in those reprimands, Andino also noted in the Termination Letter that she had recently learned from a March 2021 email from Plaintiff that Plaintiff had refused Andino's February 2020 directive to change Kizzie Scott's evaluation from “exceptional” to “satisfactory,” even though Plaintiff had previously told Andino that she had changed it. Termination Letter. Also, in April of 2021, SCEC's general counsel requested from Plaintiff the most recent compliance audit plan and asked Plaintiff to add a date to it, but Plaintiff refused to add the date. Andino twice asked Plaintiff to provide the plan with the date and explained why general counsel could not add the date to the plan, but Plaintiff refused. Termination Letter. For these reasons, Plaintiff's employment was terminated.
On May 17, 2021, Plaintiff filed a third Charge of Discrimination with SCHAC alleging that Andino retaliated against her by terminating her after she had engaged in protected activity by filing her first two charges. May Charge (ECF No. 28-25). Plaintiff also pursued the grievance process through State HR, but her termination was not overturned. Pl. Dep. Ex. 29 (ECF No. 24-3).
Andino left her employment with Defendant in October of 2021, after providing notice of her departure in May of 2021. Audino Email (ECF No. 28-26); Audino Dep. 11, 85-86.
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 87475 (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 (4thCir. 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
Plaintiff alleges causes of action for disparate pay and retaliation based on race and complaints of race discrimination in violation of Title VII. She also alleges a cause of action for defamation. Plaintiff did not specifically allege another cause of action in her complaint, but in her response discusses a claim for “disparate/hostile treatment,” in which she appears to combine claims for disparate treatment and a hostile work environment. Therefore, out of an abundance of caution, the undersigned will address such a claim as well. Title VII makes it “an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....” 42 U.S.C. § 2000e-2(a)(1). In the absence of direct evidence of discrimination, the McDonnell Douglas burden-shifting framework applies to claims under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 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 elements of a prima facie case differ depending on the nature of the claim.” Rowe v. Marley Co., 233 F.3d 825, 829 (4th Cir. 2000).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for the disparate treatment. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). This is merely a burden of production, not of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993).
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 reasons, but was pretext for discrimination. Reeves, 530 U.S. at 143. Throughout the burden shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving that Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff. Plaintiff has the ultimate burden of presenting evidence from which a reasonable could conclude defendant intentionally discriminated against him.
A. Disparate Pay
Defendant argues first with respect to Plaintiff's disparate pay claim that such a claim is time-barred. “Before filing suit under Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC.” Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir.2000); see also 42 U.S.C. § 2000e-5(f)(1). In South Carolina, the charge must be filed within 300 days after an “alleged unlawful employment practice” occurred. 42 U.S.C. § 2000e-5(c), (e); Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir.2009). The failure to file a timely charge with the EEOC bars the claim in federal court. See McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th Cir.1994) (“When the plaintiff fails to file such a complaint in a timely fashion with the EEOC, the claim is time-barred in federal court.”). Plaintiff filed her first Charge of Discrimination complaining about her pay on February 16, 2021. February 2021 Charge. Only acts occurring within 300 days of February 16, 2021, or after April 22, 2020, are actionable under Title VII. It is not clear when, according to Defendant, Plaintiff's time for filing a charge with respect to pay disparity began to run. It argues that Plaintiff's employment with Defendant began in July of 2018, long before April 22, 2020, and points to Plaintiff's testimony that she looked her coworkers' salaries up in a public salary database. Pl. Dep. 153. However, there's no evidence in the record as to when that occurred. However, as set forth above, the record reflects that a disparity in pay existed between Plaintiff and her white coworkers, Whitmire and Knapp, throughout her employment. Under the Ledbetter Act, 42 U.S.C. § 2000e-5(e)(3)(A), a Title VII claim addressing disparity in pay accrues with each paycheck issued pursuant to an allegedly discriminatory decision or other practice. See Spraker v. RTG Furniture of Ga., C/A No. 6:11-3517-MGL, 2013 WL 3804075 (D.S.C. July 19, 2013). Accordingly, Plaintiff's charge was timely.
To establish a prima facie case of discrimination in pay, a prima facie pay-disparity case requires a plaintiff to establish (1) she is a member of a protected class, (2) she was performing her job satisfactorily, (3) an adverse employment action occurred, and (4) the circumstances suggest an unlawfully discriminatory motive. Spencer v. Virginia State Univ., 919 F.3d 199, 207 (4th Cir. 2019), as amended (Mar. 26, 2019). Where, as here, the prima facie case of wage discrimination is based on comparators, the plaintiff must show that she is paid less than white employees in similar jobs. See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994). The issue raised in the present case is whether Plaintiff was “similarly-situated” with her white coworkers, Whitmire and Knapp.
In determining whether employees are similarly situated, courts consider “whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications-provided the employer considered these latter factors in making the personnel decision.” Spencer, 919 F.3d at 207 (quoting Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005) (internal quotation marks omitted). The plaintiff must provide evidence that the proposed comparators are not just similar in some respects, but “similarly-situated in all respects.” Id. (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).
Plaintiff, Whitmire, and Knapp were all managers who reported to Andino. Defendant argues, however, that their similarities end there. Prior to working for Defendant, Plaintiff worked for less than one year for the state of South Carolina at PEBA. See P. dep. at 21:23-22:9. She was an Employer and Field Services Manager earning $45,000.00 annually. Id. Plaintiff had no prior experience working for state government. See P. dep. at ex. 3. On her application to work for Defendant, Plaintiff noted that she desired a minimum salary of $70,000. Pl. Job Application (Pl. Dep. Ex. 2) (ECF No. 24-3). The job had been created within State Pay Band 7, and the starting salary range was $49,594 to $70,674. Director of Training Posting. State HR approved Defendant offering Plaintiff $69,289. Andino Dep. at 29-30. Plaintiff's position requires a college degree and five years of professional experience. Director of Training Posting. Four to six employees reported to Plaintiff. Organizational Chart.
The organizational chart lists six positions under Plaintiff, but noted two of them as vacant. Organizational Chart.
Whitmire began working for Defendant in April of 2005 as a public information officer. Whitmire Dep. at 12-13. After a couple of years he served as the assistant to Executive Director Andino. Whitmire Dep. 12-13. In 2011 he became the Director of Public Information and Training where he served until Plaintiff was hired in 2019. Whitmire Dep. 13-14. Whitmire had also been certified as a public manager for approximately ten years. Whitmire Dep. 10. One employee reported to Whitmire. Organizational Chart.
Plaintiff argues that Whitmire maintained the same salary and received raises even though he held less responsibilities than he did before Plaintiff was hired. She also argues that he only supervised one employee while she supervised six.
Knapp also has more state government experience than Plaintiff. He began working for the South Carolina Legislative Audit Council in May of 2012 until 2014 when he went to work for the Office of Regulatory Staff. Knapp Dep. at 12-13. In August of 2016 he went to work for the state Executive Budget Office until 2019 when he briefly worked at the Department of Social Services before going to work at the SCEC in October of 2019. Knapp Dep. 12-13. Knapp did not have direct experience with elections, but he had worked with the SCEC when he was at the state budget office because the agency was one for which he was assigned to assist with its budget. Knapp Dep. 16. He also has a juris doctor degree and a certificate in public leadership from the Harvard Kennedy School. Knapp Dep. 9-10. The starting salary range for Knapp's position was $48,622 to $89,956. Director of Voting Services Posting. He was hired with a starting salary of $80,000. Knapp Offer Letter. Knapp's position requires a college degree and five years of senior management experience. Director of Voting Services Posting. Nine employees reported to Knapp, and all were information technology specialists or managers. Organizational Chart.
Plaintiff argues that, despite the fact that Knapp was hired at approximately the same time she was, he received more and greater pay raises than she did. For example, he received a 6-month EMPS increase in April 2020; Plaintiff received a salary “adjustment” in July of 2019, soon after she started the position. She then received a 2% increase in October 2020 (retroactive to June of 2020). In June 2020, Knapp received another increase of nearly 10%. In May 2021, after assuming some of Plaintiff's responsibilities following her termination, he received another raise of close to 8%. Def. Int. Resp.
Plaintiff fails to take several factors into consideration. First, she was hired at nearly the top of the salary range for her position. The salary range was listed in the Director of Training Services posting and there is no indication that the posting was made after she was being considered for the position. Thus the top amount for her position was already in place prior to her hire. The top salary amount for Knapp's position was higher than Plaintiff's by over $19,000 (though he was not hired at the top of his position's range). This significant difference in salary range shows that Plaintiff's position and Knapp's position were not similar in addition to the fact that Plaintiff's position required five years of professional experience, while Knapp's position required five years of senior management experience. With respect to Whitmire, at the time of Plaintiff's hire, Whitmire had been working for Defendant for approximately fourteen years and was already making approximately $18,000 more than the top salary listed for Plaintiff's position. He had been performing many of the same responsibilities for Defendant for approximately eight years at the time of Plaintiff's hire. Thus, Whitmire had significantly more experience than Plaintiff. Based on the facts in the record, Plaintiff fails to show that Whitmire and Knapp are proper comparators. As such, summary judgment is appropriate at to her disparate pay claim.
It is noted that Andino hired Viola Faust, a black female, in early 2020 to fill the role of Director of Administration, and her salary was the same as Howard Knapp's starting salary, about $80,000. Andino Dep. 90.
B. “Disparate/Hostile Treatment”
As stated above, Plaintiff appears to present an argument on a disparate treatment claim and a hostile work environment claim. She sets forth the prima facie elements for a disparate treatment claim, but then recites law relevant to a hostile work environment claim. She spends little time discussing either in her response.
The prima facie elements for a disparate treatment claim are the same as those set forth above with respect to Plaintiff's disparate claim: (1) membership in a protected class, (2) satisfactory job performance, (3) an adverse employment action, and (4) the circumstances that suggest an unlawfully discriminatory motive. Spencer, 919 F.3d at 207.
Plaintiff refers to her two written reprimands and her termination as adverse employment actions. An adverse employment action is a discriminatory act that “adversely affects the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (quoting James v. Booz-Allen & Hamilton. Inc., 368 F.3d 371,375 (4th Cir. 2004)). Examples include “discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion[.]” Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999). Plaintiff's termination was clearly an adverse employment action. However, written reprimand does not constitute an adverse employment action absent facts showing that it could result in a real employment injury, such as a specific impact on the plaintiff's, pay, job title, work responsibilities, or opportunities for promotion. See Newman v. Giant Food, Inc., 187 F.Supp.2d 524, 528-29 (D. Md. 2002) (holding that a counseling letter was not an adverse employment action without evidence that the warning could lead to further disciplinary action such as termination); cf. Lewis v. Forest Pharmaceuticals, Inc., 217 F.Supp.2d 638, 648 (D. Md. 2002) (in discussing “tangible employment actions” for purposes of a Title VII sexual harassment claim, finding that a written reprimand does not “significantly affect the terms or conditions of employment” absent “a real, rather than speculative, employment injury”). Neither of the written reprimands received by Plaintiff contained a warning that further problems could result in additional disciplinary action, nor has Plaintiff otherwise shown that they had a specific impact on her pay, job title, responsibilities, or opportunities for promotion. Further, Plaintiff fails to meet the fourth factor by showing that she suffered any adverse actions, including termination, under circumstances giving rise to an inference of unlawful discrimination.
Evidence sufficient to meet the fourth element generally comes in the form of similarly situated employees outside of her protected class who engaged in similar conduct but received more favorable treatment. See Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010); Moore v. City of Charlotte, 754 F.2d 1100, 1105-06 (4th Cir. 1985). Plaintiff would have to present evidence that employees outside her protected class engaged in the same conduct she did but did not receive written reprimands or were not terminated. Plaintiff has failed to do so, nor has she pointed to any other evidence that would give rise to an inference of discrimination with respect to these adverse employment actions. Thus, any disparate treatment claim Plaintiff has alleged is subject to dismissal.
To establish a hostile work environment claim, Plaintiff must show that she suffered from harassment that was (1) unwelcome, (2) based on a protected status, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to the employer. EEOC v. C. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). Plaintiff does not point to any specific harassment that she asserts created a hostile work environment. Though the record includes complaints raised by Plaintiff that Andino belittled her, left her out of meetings, and otherwise created a toxic atmosphere based on race, Plaintiff fails to show that any conduct by Andino was sufficiently severe or pervasive to alter the terms and conditions of employment and create an abusive atmosphere. Harassment is severe or pervasive only if the workplace is “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 316 (4th Cir. 2008) (internal quotation marks omitted). Rude treatment, callous behavior, and a routine difference of opinion and personality conflict do not suffice to state a hostile work environment claim. Id. at 315-16. “[S]imple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citations and quotation marks omitted). The Fourth Circuit has “recognized that plaintiffs must clear a high bar in order to satisfy the severe or pervasive test.” Sunbelt Rentals, Inc., 521 F.3d at 315. The evidence in the record is insufficient to clear this high bar. Thus, to the extent Plaintiff has alleged a hostile work environment claim, summary judgment is appropriate.
C. Retaliation
Plaintiff also alleges a claim for retaliation. Title VII makes it an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The McDonnell Douglas burden-shifting scheme set forth above also applies to retaliation claims. To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) he engaged in protected activity, (2) the employer took adverse action against him, and (3) a causal connection existed between the protected activity and the adverse action. Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 258 (4th Cir. 1998); Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998). If Plaintiff establishes a prima facie case, Defendants can rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. At that point, Plaintiff must present evidence sufficient to create a genuine issue of material fact that Defendants' legitimate, non-retaliatory reason is pretextual. Matvia v. Bald Head Island Management, 259 F.3d 261, 271 (4th Cir. 2001).
Protected activity involves opposing an unlawful employment practice which the plaintiff reasonably believed had occurred or was occurring. Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003). Title VII protects an employee who opposes “any practice made an unlawful employment practice,” 42 U.S.C. § 2000e-3(a), or who “reasonably believes” she is opposing a practice made an unlawful practice by Title VII. E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005). The Fourth Circuit has “articulated an expansive view of what constitutes oppositional conduct, recognizing that it encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities.” DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (internal quotation marks omitted). Filing an EEOC charge is also a protected activity. 42 U.S.C. § 2000e-3(a). “Protected activity does not include generalized employment-related complaints unrelated to Title VII prohibited discrimination.” Sung Kun Kim v. Panetta, No. 1:11-cv-1370 (LMB/TCB), 2012 WL3600288, at * 17 (E.D. Va. Aug. 21, 2012). The parties do not dispute that Plaintiff engaged in protected activity when she emailed Andino, Knapp, and commissioners of the State Election Commission on December 21, 2020, wherein she complained of racial bias and animus from Andino, as well as when she filed her three EEOC charges. Plaintiff's complaints about Andino prior to December 21, 2020, did not mention race.
Plaintiff also suffered adverse actions during her employment. As stated above, her termination was clearly an adverse action. Further, a less strenuous standard applies with respect to adverse actions in the retaliation context as opposed to the discrimination context. Strothers v. City of Laurel, Maryland, 895 F.3d 317, 327 (4th Cir. 2018). The adverse action “need not be employment or workplace-related in order to sustain a retaliation claim.” Id.; see also Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 64 (2006)(“[T]he antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.”); Barnes v. Charles Cty. Pub. Schools, 747 Fed.Appx. 115, 119 (4th Cir. 2018) (per curiam) (“An adverse action need not affect the terms and conditions of employment” in a retaliation claim.) Thus, “[t]he scope of Title VII's anti-retaliation provision ... is broader than the anti-discrimination provision.” Strothers, 895 F.3d at 327. Nevertheless, the adverse action taken by the employer against the plaintiff must still be materially adverse because “[t]he antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington Northern, 548 U.S. at 67.
The Fourth Circuit has ruled that “a letter of warning did amount to an adverse action because [plaintiff's supervisor] warned [plaintiff] that future disciplinary actions could result in further discipline, including termination.” Barnes, 747 Fed.Appx. at 119. However, neither of Plaintiff's written reprimands include a similar warning nor has Plaintiff shown that they otherwise produced an injury or harm. Therefore, the only potentially actionable adverse action is her termination.
Plaintiff must also present sufficient evidence of a causal connection between her protected activity and the adverse actions. “[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 Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 253 (4th Cir. 2015) . However, the temporal nexus between two events cannot provide proof of causation unless the “temporal proximity between an employer's knowledge of protected activity and an adverse employment action” was “very close.” Clark County School District. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotation marks omitted). A“ ‘lengthy time lapse between the [defendant's] becoming aware of the protected activity and the alleged adverse ... action' ” often “ ‘negates any inference that a causal connection exists between the two.' ” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005) (citation omitted).
Plaintiff first raised complaints of racial bias and animus by Andino on December 21, 2020. She filed her first EEOC charge on February 16, 2021, a complaint with Defendant on February 25, 2021, and her second EEOC charge on March 2, 2021. Plaintiff's employment was terminated on May 11, 2021. The Fourth Circuit has held that a temporal lapse of even two months is too long without other retaliatory acts in the interim to support an inference of causation. See, e.g., Laurent-Workman v. Wormuth, 54 F.4th 201, 219 (4th Cir. 2022) (“[A] two-month temporal gap ... is sufficiently long so as to weaken significantly the inference of causation.” (internal quotation marks and citation omitted)); Horne v. Reznick Fedder & Silverman, 154 Fed.Appx. 361,364 (4th Cir. 2005) (lapse of two months is “sufficiently long so as to weaken significantly the inference of causation”); see also Gaines v. Balt. Police Dep't, 657 F.Supp.3d 708, 745 (D. Md. 2023) (noting that a lapse of time as little as two months between the protected activity and an adverse employment action is sufficiently long so as to weaken significantly the inference of causation); Hamada v. Boeing Co., C.A. 2:19-02777-DCN-MGB, 2021 WL 4398456, *7 (D.S.C. Sept. 27, 2021) (holding “temporal proximity on the basis of one to two months between protected activity and adverse action is not alone sufficient to prove causation”); Williams v. Fairfield Memorial Hospital, C.A. 0:19-183-MGL-PJG, 2020 WL 2573386, *7 (D.S.C. May 6, 2020) (holding 8 weeks between employee's complaint and her termination, without more, was not sufficient to establish causation), R&R adopted, 2020 WL 2572277 (D.S.C. May 21, 2020).
However, Plaintiff argues that other evidence supports a causal connection between Plaintiff's complaints and her termination. She points to Andino's statement to Knapp following Plaintiff's first complaint of race discrimination in December of 2020 that she will “take care of it.” Knapp. Dep. 44. Plaintiff argues that a reasonable jury could conclude that this statement by Andino was a forecast for retaliatory conduct. While this statement could have more than one interpretation, viewing the facts in the light most favorable to Plaintiff, at least one reasonable interpretation is that Andino would retaliate in some way against Plaintiff for the complaints raised in her December 21, 2020, email. Also relevant to the causal connection analysis is that Plaintiff's termination came after she made three complaints of racial discrimination within an fairly short period of time. Any of these facts considered alone may not be sufficient to show a causal connection between Plaintiff's protected activities and her termination; however, when considered together and in the light most favorable to Plaintiff, they are sufficient to create an issue of fact at the prima facie stage.
As such, the burden shifts to Defendant to present a legitimate, non-retaliatory reason for Plaintiff's termination. Defendant states that Plaintiff was terminated for the reasons set forth in her termination letter, that is, she made false statements to Andino by telling her she had revised the evaluation when she had not, engaged in improper conduct, failed to maintain harmonious working relationships, and engaged in insubordination. Termination Letter. Even though Plaintiff had received counseling and written reprimands on two occasions, she had not shown any improvement in the areas identified in those reprimands. Termination Letter.
Plaintiff argues that Defendant has failed to provide a legitimate, non-retaliatory reason for her termination, and, thus, she need not identify pretext. She argues that no other employees or supervisors witnessed the behavior identified by Andino in her written reprimands or the termination letters and, thus, Defendant fails to show that the reasons given by Andino are legitimate. However, Defendant's burden at this stage of the burden-shifting scheme “is one of production, not persuasion; it ‘can involve no credibility assessment.'” Reeves, 530 U.S. at 142 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). Defendant has produced evidence, contemporaneous with Plaintiff's termination, of a legitimate, non-retaliatory reason for the termination. It is the opinion of Plaintiff's supervisor, not ofher coworkers, that is relevant here. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000). “[T]hat plaintiff's coworkers ‘may have thought that [she] did a good job, or that [she] did not ‘deserve' [to be discharged], is close to irrelevant.'” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (quoting Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir.1991)).
Ultimately, in any discrimination or retaliation case, the final burden rests with the plaintiff to prove that she was subjected to intentional retaliation for her protected activity. Reeves, 530 U.S. at 143. In retaliation cases, plaintiffs are bound by “traditional principles of but-for causation” and must be able to prove that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015) (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013)). Based on the evidence in the record, Plaintiff has failed to show that retaliation for her protected activity, and nothing else, was the reason for her termination. Therefore, her retaliation claim fails.
D. Defamation
Plaintiff alleges she suffered defamation when her supervisor issued her written reprimands and a termination letter and when an HR employee escorted her out of the building. Pl. Dep. 147-48. To prove defamation, Plaintiff must show: (1) a false and defamatory statement was made; (2) the unprivileged statement was published to a third party; (3) the publisher was at fault; and (4) either the statement was actionable irrespective of special harm or the publication of the statement caused special harm. Fleming v. Rose, 567 S.E.2d 857, 860 (S.C. 2002). Plaintiff's claim fails because she fails to show that Andino's statements in her written reprimands or her termination letter were false or that they were published to anyone other than Knapp, who was serving as the interim Director of Administration at the time. Further, “[c]ommunications between officers and employees of a corporation are qualifiedly privileged if made in good faith and in the usual course of business.” Murray v. Holnam, Inc., 542 S.E.2d 743, 748 (S.C. Ct.App. 2001). Plaintiff fails to show that any communication between Andino and Knapp regarding Plaintiff's termination were in bad faith or outside the usual course of business. In fact, Knapp testified that he was not aware of the issues giving rise to Plaintiff's reprimands and only became aware of them because he acted as a witness during the meetings between Plaintiff and Andino. Knapp Dep. 31-32, 45-46. Because Plaintiff fails to present sufficient evidence to support a claim for defamation, summary judgment is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion for Summary Judgment (ECF No. 24) be granted and this case be dismissed in its entirety.
The parties are directed to the important information in the attached page.