Opinion
Civil Action No. 6:19-cv-01250-DCC-JDA
07-07-2020
Maria Luisa Dugena, Plaintiff, v. Greer Rehabilitation Healthcare Center Dena Johnson Administrator, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Defendant's motion for summary judgment and Plaintiff's motion to appoint counsel. [Docs. 103; 113.] Proceeding pro se, Plaintiff alleges violations under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), and the Americans with Disabilities Act ("ADA"). [Doc. 29.] 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 brought suit in this Court on April 30, 2019. [Doc. 1.] On May 28, 2019, this Court issued an Order instructing Plaintiff that she had not named a proper defendant and her Complaint was subject to summary dismissal but allowing Plaintiff to amend her Complaint to name a proper defendant. [Doc. 20.] On June 20 and June 26, 2019, the Clerk docketed an Amended Complaint from Plaintiff and a supplement to the Amended Complaint. [Docs. 29; 35.] Defendant filed a motion for summary judgment on May 6, 2020. [Doc. 103.] On May 11, 2020, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment procedure and of the possible consequences if she failed to adequately respond to Defendant's motion. [Doc. 105.] A response from Plaintiff was docketed on June 17, 2020. [Doc. 110.] And Defendant filed a reply on June 24, 2020. [Doc. 112.] On June 29, 2020, the Clerk docketed a motion from Plaintiff for appointment of counsel. [Doc. 113.] Both motions are ripe for consideration.
BACKGROUND
Viewed in the light most favorable to Plaintiff, the record reveals the following facts. In June 2016, Defendant hired Plaintiff as a certified nursing assistant ("CNA") on a pro re nata ("PRN") or "as needed" basis, and she began working for Defendant in July 2016. [Docs. 103-2 at 4-5; 103-3.] In February 2018, Plaintiff requested an accommodation to "not lift[] heavy things" due to a physical limitation caused by back pain. [Docs. 103-2 at 11-12; 103-8 at 1.] Defendant agreed to that request, noting that Plaintiff was "doing sitter job PRN which is as needed." [Doc. 103-9.] Plaintiff then continued working as a sitter for approximately 10 months and was able to physically perform her work without issue. [Doc. 103-2 at 14-23.] Then in December 2018, Plaintiff requested to change her status from PRN to part-time so that she could increase her hours, but Defendant denied the request. [Docs. 103-2 at 22, 24-28; 103-10.] On April 18, 2019, Defendant terminated Plaintiff's employment for failure to work for the previous 90 days. [Doc. 103-11.]
In February 2019, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the South Carolina Human Affairs Commission ("SCHAC"), alleging that she had been employed by Defendant since June 2015, and had held the position of CNA, but was removed from the work schedule on January 23, 2018. [Doc. 103-12 at 1.] The charge further alleged that she had "been subjected to adverse actions due to" her national origin, which was the Philippines, and her "[m]edical condition." [Id.] Specifically, she alleged that her "position was converted from PRN to part-time on December 2018" and converted back on January 14, 2019, and that she was "removed from the schedule" without any explanation, all in violation of Title VII and the ADA. [Id.] Plaintiff received her Notice of Right to Sue and initiated the present action. [Docs. 1; 1-1.]
Her Amended Complaint alleges that Defendant violated her rights under Title VII and the ADA by refusing to accommodate her disability and harassing, demoting, terminating, and treating her less favorably on the basis of her race and national origin and because Defendant regarded her as having a disability, specifically, that she could not "work on high impact activities." [Doc. 29 at 4, 8, 11.] Plaintiff alleges that on the evening of January 23, 2019, Defendant's Office Administrator Dena Johnson cancelled her hours that she had been scheduled to work on January 24, 25, and 26 and also "demoted [her] from [part-time] to PRN." [Id. at 9-10.] Plaintiff alleges Defendant did not offer Plaintiff any hours after that and Plaintiff eventually was terminated on April 18, 2019, for failing to work for the prior 90 days. [Id. at 10-11.]
As relief, Plaintiff demands reinstatement of employment as well as compensatory and punitive damages. [Id. at 6-7.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
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." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
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.(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.
DISCUSSION
Defendant argues that it is entitled to summary judgment on all of Plaintiff's claims. The undersigned agrees and will address the claims seriatim.
Title VII
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Absent direct or indirect evidence of discrimination, 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 claim of employment discrimination. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015); Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005).
Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of discrimination under Title VII, a plaintiff must demonstrate (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was performing his job duties at a level that met the employer's legitimate expectations at the time of the adverse employment action; and (4) other employees who are not members of the protected class did not suffer the adverse employment action under similar circumstances. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002); see also EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n.2 (4th Cir. 2001) ("What is critical with respect to the fourth element is that the plaintiff demonstrate he was not hired (or fired or not promoted, etc.) 'under circumstances which give rise to an inference of unlawful discrimination.'" (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981))).
If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011). By providing such an explanation, the employer rebuts the presumption of discrimination or retaliation 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 or retaliation. McDonnell Douglas, 411 U.S. at 804.
Defendant argues that Plaintiff has neither forecasted any direct or indirect evidence of discrimination based on national origin or race, nor has she forecasted evidence that could otherwise establish a prima facie case of such discrimination. [Doc. 103 at 14-21.] Regarding this latter contention, Defendant specifically asserts that Plaintiff has failed to forecast evidence that she performed her job satisfactorily or that she was treated differently from similarly situated employees outside the protected class. [Id. at 14-17, 19-21.] As for the treated-differently element of the prima facie case, Defendant notes that Plaintiff contends that Defendant essentially gave Plaintiff's hours to a person named "Jasmine." [Doc. 103 at 19-20; see also Doc.103-2 at 30-33.] However, Defendant argues that Plaintiff did not forecast admissible evidence that Jasmine was similarly situated to Plaintiff and that, more specifically, Plaintiff failed to forecast any evidence about whether Jasmine had full-time, part-time, or as-needed status or whether she even had the same job as Plaintiff. [Doc. 103 at 19-21.] Defendant also argues that Plaintiff forecasted no admissible evidence to support her allegation that she was demoted from part-time status to PRN status in late 2018 or early 2019. [Id. at 17-19.] Rather, Defendant contends that "the uncontroverted evidence readily demonstrates that she worked on a PRN basis during her entire employment." [Id. at 17.]
In her response, Plaintiff does not acknowledge the elements she must address to avoid summary judgment on her claims. She does not point the Court to any admissible evidence supporting a reasonable inference that her race or national origin affected any action by Defendant, nor does she point to any evidence that she was performing her job satisfactorily or that Jasmine was similarly situated to her in any relevant respect. Because Plaintiff has not forecasted evidence that could support a prima facie case regarding her Title VII claim, the Court recommends granting Defendant's motion for summary judgment on this claim.
Plaintiff does point to a document attached to her response, which she describes as a "letter [she] sent to HR Cassandra." [Doc. 110 at 6.] This document appears to contain her own allegations that she was discriminated against based on her race. [Doc. 110-10.] Plaintiff also points to another attachment to her response that she describes as "legal letters from [her] Legal Shields advisors." [Doc. 110 at 8.] This letter is from an attorney to Defendant asking about the reason Plaintiff was terminated. [Doc. 110-11.] Plaintiff cannot meet her burden with these letters because the representations made in them are out-of-court statements; thus, the letters would be inadmissible to prove the truth of the representations they contain. Fed. R. Evid. 801, 802. Accordingly, the letters cannot be considered for purposes of summary judgment. See Fed. R. Civ. P. 56(c)(2); see Greensboro Prof'l Fire Fighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995) ("[Hearsay] is neither admissible at trial nor supportive of an opposition to a motion for summary judgment.").
ADA
The ADA prohibits discrimination "against a qualified individual on the basis of disability," which includes refusing to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless . . . the accommodation would impose an undue hardship." 42 U.S.C. § 12112(a). The ADA provides that the term "disability" includes "a physical or mental impairment that substantially limits one or more major life activities"; "a record of such impairment"; or "being regarded as having such an impairment." 42 U.S.C. § 12102(1).
Plaintiff alleges that Defendant violated the ADA both by treating her differently on the basis of disability and by refusing to accommodate her disability. [Doc. 29 at 4, 8, 11.] To establish a prima facie case of disability discrimination in violation of the ADA, a plaintiff must establish (1) that she was disabled for purposes of the ADA; (2) that she was a qualified individual for the job in question; and (3) that she was discharged or otherwise suffered an adverse employment action under circumstances that give rise to a reasonable inference of discrimination. McFarland-Peebles v. Va. Dep't of Motor Vehicles, 352 F. App'x 848, 849 (4th Cir. 2009). To establish a prima facie case in a failure-to-accommodate claim under the ADA, a plaintiff must show "(1) that he was an individual who had a disability within the meaning of the statute; (2) that the [employer] had notice of his disability; (3) that with reasonable accommodation he could perform the essential functions of the position . . .; and (4) that the [employer] refused to make such accommodations." Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001) (alterations in original).
Defendant argues that Plaintiff has not forecasted admissible evidence to support her allegation that she was terminated because she was regarded as having a disability. [Doc. 103 at 21-25.] Defendant maintains that the uncontroverted evidence demonstrates that she was terminated pursuant to Defendant's policy calling for termination of employees who have not worked in 90 days. [Id. at 21.] Defendant also argues that Plaintiff has not forecasted evidence that Defendant refused to accommodate her disability. [Id. at 21-25.] Defendant maintains that Plaintiff requested in February 2018 to be accommodated by not requiring her to "'lift heavy things.'" [Id. at 22; see also Doc. 103-8 at 1.] Defendant contends that it granted her request by assigning her to do a "sitter job PRN which is as needed" [id. (citing Doc. 103-9); see also Doc. 103-2 at 14, 16, 18, 20-23] and maintains that Plaintiff was physically able to do such work and that she in fact did such work into December 2018 [id. at 22-25].
Defendant points to Plaintiff's testimony in her deposition wherein she describes requesting an accommodation in February 2018 and Defendant responding by allowing her to work as a sitter, which was work that she was physically able to perform.
Plaintiff's arguments in her response are not altogether clear. She does not appear to dispute that, after she requested an accommodation in February 2018, Defendant made sure to assign her only work within the physical limitations she requested. And Plaintiff does not appear to identify any further accommodation that she needed, let alone point to admissible evidence that Defendant refused to grant her such an accommodation after being made aware of it.
Plaintiff points to two documents attached to her response to Defendant's motion. [Doc. 110 at 12.] The documents appear to be letters from her doctor directed "[t]o [w]hom it [m]ay [c]oncern" in which he identifies certain physical restrictions that Plaintiff needs to adhere to, and he requests that a permanent position accommodating these restrictions be found for Plaintiff. [Doc. 110-15.] It is not clear what specific facts Plaintiff contends that these documents are evidence of, but Plaintiff has not forecasted admissible evidence that these letters were given to Defendant or that Defendant refused to accommodate the physical restrictions that the letters identify.
The essence of Plaintiff's ADA claim appears to be that she was discriminated against by not being elevated from PRN status to part- or full-time, by being demoted from part-time to PRN status in December 2018, by not being given more hours, and by replacing her on the work schedule with another person, which eventually led to her termination after she had not worked for 90 days. The primary problem with the viability of these legal theory, however, is that Plaintiff has not forecasted any admissible evidence that would give rise to a reasonable inference that any of these actions, assuming they occurred, were motivated by disability-related concerns.
Because Plaintiff has failed to forecast admissible evidence that could establish a prima facie case under either a refusal-to-accommodate or a discrimination theory, the Court recommends that Defendant's motion for summary judgment be granted as to Plaintiff's ADA claim as well.
Because the Court concludes that Defendant is entitled to summary judgment for the reasons already discussed, the Court does not address Defendant's remaining arguments, including the argument that Plaintiff has not exhausted her administrative remedies [Doc. 103 at 8-13]. The Court notes that although Defendant contends that the exhaustion issue affects the Court's subject-matter jurisdiction [id. at 10, 13], the Supreme Court has recently ruled otherwise, Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1850-51 (2019).
The Court also notes that on June 29, 2020, the Clerk docketed a motion from Plaintiff for appointment of counsel. [Doc. 113.] Besides requesting counsel, and apparently in response to the Court's Order directing Plaintiff to respond to the summary judgment motion [Doc. 107], Plaintiff emphasizes that she has done her best to attempt to prosecute this case and does not wish to abandon it [Doc. 113]. With Plaintiff having responded to Defendant's summary judgment motion, the Court does not recommend that her case be dismissed for failure to prosecute or for failure to comply with this Court's Orders. However, given that Plaintiff has already provided the Court with her response to Defendant's summary judgment motion, the Court recommends that the motion for appointment of counsel be denied for the same reason that the Court previously denied Plaintiff's requests for appointment of counsel. [Docs. 71; 95.]
RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Defendant's motion for summary judgment [Doc. 103] be GRANTED and Plaintiff's motion to appoint counsel [Doc. 113] be DENIED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 7, 2020
Greenville, South Carolina