Opinion
C. A. 3:19-3294-JMC-KDW
07-14-2021
Barry D. Granda, Plaintiff, v. Old Dominion Freight Line, Inc., Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Plaintiff Barry D. Granda (“Plaintiff” or “Granda”) filed this action against his former employer, Defendant Old Dominion Freight Line, Inc. (“OD” or “Defendant”), alleging discrimination and retaliation under the Americans with Disabilities Act, as amended (“ADA” or “ADAAA”), and bringing a state-law-based claim of defamation. Compl., ECF No. 1-1. At the close of discovery, Defendant moved for summary judgment, ECF No. 42; to which Plaintiff responded, ECF No. 47; and Defendant replied, ECF No. 52. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a report and recommendation (“R&R”) regarding Defendant's pending dispositive motion. Having reviewed the parties' submissions and the applicable law, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 42, be granted and this matter be ended.
The action was filed in the Lexington County Court of Common Pleas and removed to this court. ECF No. 1.
I. Factual overview
As always, to the extent supported by the record, the court construes all facts in the light most favorable to Plaintiff, the nonmoving party.
This overview is not intended to exhaustively catalog every anecdote or argument made by the parties. The undersigned has reviewed all argument and evidence presented. To the extent necessary, additional facts are set out in the context of Plaintiff's specific causes of action.
A. Plaintiff's employment by OD
OD, a transportation solutions company headquartered in Thomasville, North Carolina, hired Plaintiff as an Assistant Manager in its Atlanta Service Center in 1999. Pl. Dep. 49, 59, 63.OD promoted Plaintiff to Manager of the Columbia (COL) Service Center in October 2000. He held the COL Service Center Manager position until he was terminated on February 15, 2019. Id. at 49. The highest-ranking management-team member at COL Service Center, Plaintiff was trained as to leadership style. Plaintiff acknowledged he was to treat people respectfully, and that a “core expectation” of OD was that managers were to treat employees professionally and with respect. Id. at 65-75, 264-65.
Excerpts of Plaintiff's deposition are available at ECF Nos. 42-6, 47-1, and 52-3.
1. Plaintiff's performance
Plaintiff's immediate supervisor, Regional VP Gerry Broadwell, testified that Plaintiff performed well “[o]n operations, as far as his numbers, ” the COL Service Center performed well. Broadwell Dep., 62-63, ECF No. 47-4; see also Pl. Dep. 187-205 (testifying that he ranked as above-average in objective evaluative metrics for region). The record also includes evidence of complaints regarding Plaintiff.
2. Alleged 2016 coaching
According to Defendant, in 2016, Jack Reece, OD's Regional Human Resources (“HR”) Manager for the Mid-South Region, investigated an HR issue at the COL Service Center that was not related to Plaintiff. Dep. of Director of HR Development Dorenda (a/k/a Dee Dee) Cox (“Cox Dep.”) 59, ECF No. 42-8. While denied by Plaintiff, Defendant alleges that, during that investigation, several employees mentioned that Plaintiff “cannot talk to them, that he throws tantrums, he slams down the telephone.” Id. Reece allegedly had a conversation with Plaintiff about his conduct at that time. Id. The record does not include documentary evidence of a 2016 coaching.
Plaintiff indicates that Reece was at the COL Service Center in 2016 investigating another employee. Plaintiff denies having any communications with Reece regarding any complaints against him. Further, he denies “any such improper conduct.” Pl. Aff. ¶ 3, ECF No. 47-13. Construing the facts in the light most favorable to the nonmoving party, the court does not further consider evidence of a 2016 coaching. Rather, information about the alleged 2016 coaching is provided for information only.
3. March 2018 complaint by OD employee Stephanie Price
On March 16, 2018, Stephanie Price, an OD employee in its Central Dispatch Department in Thomasville, North Carolina, complained to HR Director Cox that Plaintiff treated her disrespectfully. Mar. 16, 2018 email, ECF No. 42-9 (including complaint and forwarding email exchange between Plaintiff and Price about which Price was complaining). Price indicated to Cox, “I've been employed by [OD] since 1999 and I have to say this is one of the most rude [Service Center Managers] I've ever had to deal with.” Id. at 1. Cox informed Plaintiff's immediate supervisor, Broadwell, of Price's complaint, noting it would be investigated. Id. Cox also noted, “[W]e continue to get complaints about how Barry speaks to people[.] The complaints regarding Barry now cross[] many departments and people[.]” Id.
Cox assigned HR Development Manager Monica Erdner to investigate Price's complaint. Id. Erdner was told several negative comments/opinions from several employees she interviewed during her investigation. See HR Investigation/Follow Up Forms, ECF No. 42-10. In Erdner's interview of Price, Price recounted a June 2017 conversation with Plaintiff that left her in tears because Plaintiff had been so rude to her. Id. at 5. Price said that conversation caused her to begin taking anxiety medication the following week. Id. Price told Erdner she did not want Plaintiff to be terminated as a result of her complaint; rather, she wanted him “to be an adult, be respectful . . . .” Id. at 5-6.
Plaintiff does not dispute that the March 16, 2018 email exchange between Price and himself took place. Rather, he denies any wrongdoing or misbehavior on his part. See Pl. Dep. 98-115. Plaintiff indicates he was never provided details of any investigation concerning Central Dispatch employees. Pl. Aff. ¶ 10.
4. June 27, 2018 meeting between Broadwell and Plaintiff and “final warning” email regarding Plaintiff's treatment of other employees
As discussed below, Plaintiff takes issue with whether the June 27, 2018 meeting and follow-up email constituted a proper “final warning” because Broadwell did not use a particular OD form known as an “Interview Report Form (IRF).”
Cox reviewed in detail the findings of Erdner's investigation with Broadwell. Cox Dep. 86-87. Cox recalled that, during the discussion with Broadwell, she recounted that they had previously discussed Plaintiff's unprofessional treatment of employees. Cox and Broadwell determined that Plaintiff needed to be written up regarding his unprofessional treatment of OD employees. Id. (noting Broadwell agreed he was “going to have to get it down on paper”).
Broadwell traveled to Columbia and met with Plaintiff on June 27, 2018. In an email summarizing their conversation, Broadwell stated the following:
Barry,
Summary of our conversation today.
Reference: Dealing with internal customer (other OD employees)
This is the last time I will address this, I have complaints on Attitude, arguing over decision, and confrontational with other OD employees.
These have to be fixed by you. This is a final any issues will result i[n] future action up to and including termination.
Thank you.
Broadwell's June 27, 2018 email to Plaintiff, ECF No. 42-11. Plaintiff does not dispute having received this email.
The email was sent at 11:48 a.m. on June 27, 2018. Although the subject line of the email is called “re June 27, 2017, ” Broadwell confirms this was a typographical error, and that the meeting took place the same day the email was sent: June 27, 2018. Broadwell Dep. 35.
5. Plaintiff's alleged treatment of OD employee Becky Summerford
Becky Summerford, a Solutions Specialist (i.e., sales representative) in the COL Service Center, testified that sometime in 2018 Plaintiff approached her at her cubicle and asked what she was doing. Rebecca A. Summerford Decl. ¶ 5, ECF No. 42-12. Summerford indicated she was working on a project for a customer; Plaintiff allegedly responded by yelling that he had completed the project. Plaintiff allegedly threw several papers in Summerford's face, walked to his office, and slammed the door. Id.
Summerford's Declaration indicates the encounter took place “in 2018.” Summerford Decl. ¶ 5, ECF No. 21-12. Although Plaintiff indicates in his brief that the event “is alleged to have taken place in January of 2018, ” Pl. Mem. 7, the cited deposition excerpt, Broadwell Dep. 56, is not part of the record provided to the court.
Plaintiff denied throwing papers at Summerford, slamming the door, or otherwise acting in a “‘rude disrespectful, and unprofessional manner” toward her. Pl. Aff. ¶ 5. Plaintiff testifies no one discussed this incident with him and he just learned of it during the discovery phase of this case. Id. ¶ 6.
Greg Plemmons, OD's Senior Vice President of Sales, and Steve Hartsell, OD's Vice President of Field Sales, learned of the incident in which Plaintiff allegedly threw papers in Summerford's face and reported it to Marty Freeman, OD's Executive Vice President and Chief Operating Officer (“COO”). Freeman Dep. 15, 2-28, ECF No. 42-5. Upon having been advised of that incident, Freeman asked Cox whether Plaintiff's file contained any “IRFs.” Id. at 32-33. In response, on January 7, 2019, Cox sent the June 27, 2018 “final warning” email Broadwell sent Plaintiff. Cox Dep. 26; Jan. 7, 2019 email from Cox sending “Barry IRF” to Freeman, ECF No. 42-13. Freeman advised Dave Bates, OD's Senior Vice President of Operations and Broadwell's direct supervisor, of Summerford's complaint. Bates Dep. 24-25, ECF No. 42-14. Bates then asked employees in Defendant's Expedited, HR, and Safety Departments about their impressions of Plaintiff. Id. at 37-38. Bates testified that “different folks in those departments [] all said they can't stand working with [Plaintiff].” Id. at 38.
Freeman explained that “IRF” stood for “Interview Report Form.” Freeman Dep. 32. Freeman noted that management is “supposed to” use a one-page IRF form. He noted, however, that Broadwell's “IRF” to Plaintiff had been issued in the form of an email. Id. at 33.
6. Freeman sets up In-Depth Interview Process for Columbia
Upon receiving information about prior complaints and the final warning (IRF) that had been sent to Plaintiff, Freeman determined it appropriate to set up an In-Depth Interview (“IDI”) for the Columbia Service Center. Freeman Dep. 27-29. On January 8, 2019, Freeman sent Cox an email requesting that the IDI be scheduled. Jan. 8, 2019 email, ECF No. 42-13.
As explained by Cox, an IDI is a tool OD uses to “go in and talk with our employees to gauge moral[e], how management is doing in that particular service center so that we can fix and resolve any issues that we find.” Cox. Dep. 20. The IDIs are performed by interviewers who also hold other positions within OD. Prospective interviewers go through an exhaustive training and selection process before being chosen to be on the interviewer list. OD maintains a list of topics that interviewers will discuss with employees during each interview. Id. at 22-24. Interviewers endeavor to interview at least 90% of a Service Center's employees during each IDI. Id. at 42.
7. January 2019 Meeting between Plaintiff and Freeman
On January 10, 2019, Plaintiff and Freeman were both attending company Union Avoidance Training. See Freeman Dep. 27. Plaintiff asked Freeman if they could meet one-on-one, and Freeman invited Plaintiff to go to Freeman's office after he had completed the training sessions. Id. at 38. Freeman and Plaintiff met behind closed doors for about 30 minutes. Plaintiff told Freeman he felt he was being “blackballed.” Id. at 39. Although Freeman did not recall exactly how Plaintiff explained the “blackballing, ” Freeman recalls that he did speak with Plaintiff “about his management style, the way he deals with people and-and that it needed to-to be repaired because it wouldn't be tolerated.” Id. Freeman noted he did not recall all of the specifics he gave Plaintiff, but he “basically told him that he had quite a few salespeople to turn over in his service center in the past and also how some of the people that he deals with in the corporate office perceive him when he has to talk to them via telephone.” Id. at 45. In his deposition, Freeman recalled having received specific complaints about how Plaintiff treated them from Lisa DeHart, OD's Manager of Safety and Personnel, and several salespeople, Geannie Doyle, Angie Pender, and Danielle Piegler. Id. at 45-48.
Plaintiff indicated the training took place from January 7-9, 2019. Pl. Dep. 34-36. Plaintiff does not address, however, the January 10, 2019 email he sent to Freeman indicating they had met on that day. Plaintiff indicates he was back home on January 10, 2019, and met with his doctor (Dr. Koli) on January 11, 2019. Id. at 35. As discussed within, Plaintiff alleges at the time he attended the training his “symptoms, ” presumably his slurred speech and balance issues, had become “noticeable and problematic.” Pl. Mem. 7.
Plaintiff sent Freeman the following by email at 7:31 p.m. on January 10, 2019: “Just wanted to drop you a note and say thank you again for listening to me today. Also I want you to know I heard what you said and I will begin to work on how others perceive me.” Pl. Jan. 10, 2019 email to Freeman, ECF No. 42-15.
8. Plaintiff's medical treatment
Plaintiff's medical condition and treatment are discussed in more detail below. Basic information about when he sought medical treatment is contained in this factual summary for the sake of providing a cogent chronology of events.
Plaintiff testified that he “had to be slurring” his speech at the time he was at the training at the corporate office. Pl. Dep. 35. He indicates he had not spoken to his doctor about his condition until he saw Dr. Vijay Koli on January 11, 2019. Id.
On January 29, 2019, Plaintiff told OD Field Service Supervisor Tim Russell that he would be late to work the following morning because he was scheduled to undergo “a CT with an angiogram” because of a “slurring speech problem along with a balance issue.” Pl. Dep. 20. Plaintiff told Russell he had had a CT on January 24, 2019, and the CT with angiogram was in follow-up. Id. at 21. Plaintiff recalls that Russell responded, “[T]hat explains a lot of things[, ]” and indicated Plaintiff was “getting worse on [his] slurred speech.” Id. at 20-21. Russell recalls that he told Plaintiff there seemed to be something wrong with his speech, and Plaintiff responded by asking, “Does it seem like I'm drunk?” Russell Dep. 13, ECF No. 42-22. Russell replied, “I don't know about drunk, but something is wrong, and I hope everything is okay.” Id. Later that day, Russell informed Broadwell, Plaintiff's supervisor, about his discussion with Plaintiff and Plaintiff's medical treatment. Id. at 14-15.
On January 30, 2019, National Account Executive Tim Edwards called and told Broadwell that he was concerned about Plaintiff because Plaintiff was slurring his speech and was seeking medical treatment. Broadwell Dep. 58. Broadwell then called Plaintiff to ask whether he was okay. Id. at 58, 60; Broadwell Notes, ECF No. 42-23; see also Pl. Dep. 22. Broadwell told Plaintiff he heard from Russell that Plaintiff was “having some tests done.” Pl. Dep. 22. Plaintiff told Broadwell he had “really noticed” issues with his balance and slurred speech since the end of 2018. Id. at 23. Plaintiff mentioned to Broadwell that he had undergone a CT scan on January 24, 2019, and that scan was inconclusive. Id. at 27-28. Plaintiff noted that he was healthy “from his neck down, ” but he and doctors were trying to determine what was causing issue with balance and speech. Id. at 24. Broadwell replied, “[O]kay. Well, let me know what you find out.” Id. Plaintiff never had another conversation with Broadwell about his tests or health issues. Id. at 28.
On January 31, 2019, Plaintiff received information that the results of his CT with angiogram had been inconclusive. Pl. Dep. 25. Plaintiff went on a cruise on February 1, 2019. Id. at 24.
9. February 2019 IDI at COL Service Center
Plaintiff returned to work on February 7, 2019. Cox called him on February 8, 2019 to inform him that an IDI would take place at the COL Service Center beginning on February 11, 2019. Pl. Dep. 29. As explained by Cox, once the decision is made to conduct IDIs, she selects interviewers from the list of employees who have completed the 48-hour IDI training course. Cox Dep. 19-20, 22. For the COL IDI Cox selected Camile Araiza, an HR Manager based in OD's Chicago Service Center, and Logan Herber, Operations Supervisor based in OD's Atlanta West Service Center, to conduct the February 11 and 12, 2019 IDI. See Declaration of Camile Araiza ¶ 2, ECF No. 42-17; Feb. 11-12, 2019 IDI for COL Service Center, ECF No. 42-16. Cox explained that she selected Araiza because she was an HR Manager who had had no dealings with OD's Mid-South Region in which the COL Service Center operated. Cox Dep. 37. Araiza understood that her assignment was to gather information from the Service Center's employees in an objective and unbiased manner. Araiza Decl. ¶ 7. Araiza was not provided any information about Plaintiff in advance of the IDI, nor was she told she and Herber were going to the COL Service Center to investigate Plaintiff. Id. ¶ 6. Plaintiff had not met Araiza or Herber before the IDIs and had no reason to believe they were biased against him. Pl. Dep. 212-13.
Cox advised Plaintiff on February 8, 2019 that the COL Service Center had been chosen at random as a site for conducting IDIs. Pl. Dep. 34. As noted above, however, Freeman requested the COL IDI in a January 8, 2019 email. ECF No. 42-13. Cox testified that, as a matter of course, OD advises every service center manager that his or her facility has been randomly selected for an IDI in order to maintain the integrity of the IDI process. Cox Dep. 79.
Plaintiff drops a footnote objecting to the admissibility of Araiza's Declaration because it was not provided to Plaintiff's counsel until the day after the close of discovery. Pl. Mem. 12 n.12. However, Defendant indicates Araiza timely had been disclosed as a witness, and Plaintiff had the option of deposing her. He did not do so. Further, the court is aware of no rule requiring disclosure of affidavits used to support dispositive motions prior to the close of discovery, nor has Plaintiff referenced any such rule. The Araiza Declaration is appropriately considered herein, albeit in the light most favorable to Plaintiff, the nonmoving party.
Araiza and Herber separately interviewed a total of 52 COL Service Center employees. ECF No. 42-16. Araiza and Herber divided the employees to interview and then combined their notes to create a report at the time of the interviews. Araiza Decl. ¶ 9. They did not prompt any of the employees interviewed to make negative comments about Plaintiff. Id. ¶ 10. They viewed the comments about Plaintiff's management style to be “overwhelmingly negative and inconsistent with behavior expected of Service Center Managers.” Id. ¶ 12. Araiza and Herber sent the report to Cox on the evening of February 12, 2019. ECF No. 42-16. The IDI Report sent from Araiza and Herber includes a four-page summary report, broken into 17 sections, including “Most Positive Findings, ” “Most Pressing Concerns, ” and various subject-matter-specific sections-including one on Service Center Management. Also attached are copies of Araiza's and Herber's handwritten notes from their employee interviews. Those interview sheets are broken out into sections that loosely mirror the sections in Araiza's and Herber's Report. IDI, ECF No. 42-16.
Additional details of the IDI Report, including Plaintiff's evidentiary objections to same, are discussed within as needed.
B. Plaintiff's termination
Cox forwarded the IDI to Freeman and Bates on the evening of February 12, 2019; Bates forwarded it to Broadwell the following morning. Transmittal email, ECF No. 42-19. On February 13, 2019, Cox, Freeman, Bates, and Chris Brooks (Senior Vice President of HR and Cox's direct supervisor) conferred by telephone about the results of the IDI. Cox Dep. 52. During that call, the four of them agreed Plaintiff's employment should be terminated based on the “disturbing” reports in the IDI concerning his mistreatment of employees and “given that he had already been talked to.” Id. at 52; id. at 52-53. Cox noted that she did not know whether Bates spoke with Broadwell about the decision, id. at 53; later, Cox indicated that Broadwell, Bates, and Freeman “would have all recommended termination” and HR would have supported such a decision, id. at 70. Freeman indicated that he made the “ultimate decision” to terminate Plaintiff but that he, Bates, and Broadwell “decided as a team to terminate” Plaintiff. Freeman Dep. 25. Freeman indicated Plaintiff was terminated because he not “able to manage his people effectively and cultivate a good working environment with his employees.” Id. at 27.
On February 15, 2019, Broadwell met with Plaintiff in Plaintiff's office and informed him that he was terminated. Pl. Dep. 29, 45-46. Broadwell told Plaintiff he was being terminated because the results of the IDIs were “bad” and OD believed Plaintiff could “no longer lead the [COL Service Center] in the direction [the Company] want[ed] it to go.” Id. at 46; see Id. at 47. II. Standard of Review
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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either 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;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
III. Analysis
Plaintiff's Complaint alleges discrimination and retaliation in violation of the ADA, as amended. He also brings a state-law-based claim for defamation. Compl. ECF No. 1. Defendant seeks summary judgment as to all of Plaintiff's claims.
A. Plaintiff's ADA causes of action
The ADA provides in part that an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(2), 12112(a). Plaintiff brings claims of disability-based discrimination and retaliation.
“When a plaintiff alleges that h[is] employer unlawfully discriminated or retaliated against h[im] in violation of the ADA, []he can prove h[is] claim through direct and indirect evidence . . . [or] . . . may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), a familiar way to resolve claims arising under federal employment discrimination laws[.]” Laird v. Fairfax Cnty., Va., 978 F.3d 887, 892 (4th Cir. 2020) (citing Jacobs v. N.C. Admin Off. of the Cts., 780 F.3d 562, 572, 577 (4th Cir. 2015)). Utilizing the first method, a plaintiff offers direct or indirect evidence of discrimination using “ordinary principles of proof.” Burns v. AA F-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (internal quotations omitted). Under this method, a plaintiff will only survive summary judgment if he or she “produce[s] direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.” Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001) (retaliation claim) (citation and quotation omitted). The other method of proof is to follow the burden-shifting approach first articulated by the Supreme Court in McDonnell Douglas Corp., 411 U.S. 792. See Ennis, 53 F.3d at 58; Chauncey v. Life Cycle Eng'g, Inc., No. 2:12-CV-968-DCN, 2013 WL 5468237, at *7 (D.S.C. Sept. 30, 2013) (considering ADA claims using burden-shifting analysis).
1. Discrimination claim
a. Direct-evidence-of-discrimination argument: the IDI
Although Plaintiff first states he is proceeding under the McDonnell Douglas burden-shifting framework in this case, Pl. Mem. 19, he then briefly argues that statements in the IDI constitute direct evidence of disability-based discrimination, id. at 20. More specifically, Plaintiff submits that “numerous employees commented during the IDI that they thought Plaintiff was an alcoholic or had a drinking problem and that he slurred his speech, ” and this information was provided to Freeman, Cox, Bates, and Brooks, who considered the IDI in deciding to terminate Plaintiff. Id. (citing no legal authority for this argument); see IDI, ECF No. 42-16.
As an initial matter, the undersigned finds it curious that Plaintiff relies on the IDI in arguing it provides direct evidence of discrimination but elsewhere argues the complaints compiled in the IDI are inadmissible hearsay. Pl. Mem. 23-24. However, the undersigned agrees with Defendant that the IDI statements may be considered because they are not introduced for the truth of what they say, but rather for showing the decisionmakers considered the information in deciding to terminate Plaintiff. Reply 8-9. Further, Araiza indicated in her declaration that the report on the IDIs conducted was created as part of her normal business practices and done contemporaneously with her interviews of COL employees. Araiza Decl. ¶¶ 8-9.
The undersigned agrees with Defendant that the IDI does not provide direct evidence of discrimination. The IDI Report's information that several of the interviewed employees wondered whether Plaintiff may have a drug or alcohol problem because he had been slurring his speech is far from providing “direct evidence of a stated purpose to discrimination” or even indirect evidence of “sufficient probative force to reflect a genuine issue of fact” as to disability-based discrimination. Rhoads, 257 F.3d at 391. Statements by non-decisionmakers (such as the commenting employees) are not direct evidence. Martin v. Alumax of S.C., Inc., 380 F.Supp.2d 723, 728 (D.S.C. 2005) (noting “statements by decisionmakers unrelated to the decisional process itself” do not constitute direct evidence). While it is true that those involved in the decision to terminate Plaintiff considered the IDI in making that decision, their testimony is that they relied specifically on the comments about Plaintiff's treatment of employees. E.g., Freeman Dep. 66 (noting the portion of the IDI that led to termination decision related to “the complaints that [he] read about the way [Plaintiff] talks to people” and his history of how he talked to people); Broadwell Dep. 89 (noting issues regarding Plaintiff's handling of other employees without appropriate respect as indicated in both the IDI report and the previous final warning led to Plaintiff's termination): Bates Dep. 82-83 (noting discussions about IDI but noting no discussions about Plaintiff's slurred speech); Cox Dep. 57, 95 (noting complaints about Plaintiff's treatment of other employees and “interpersonal skills” as reason for termination).
Plaintiff has provided no evidence that anyone involved in the decision to terminate Plaintiff made or relied on any statements concerning comments about Plaintiff's slurred speech, balance issues, or possible drug/alcohol problem in deciding to terminate him. That several interviewed for the IDI speculated as to these possible issues simply does not amount to direct evidence of disability-based discrimination by Defendant. The court next considers Plaintiff's claims using the burden-shifting analysis.
b. Burden-shifting argument
In proceeding under the McDonnell Douglas burden-shifting paradigm, Plaintiff must first set out a prima facie case of disability-based discrimination by proving “evidence sufficient to demonstrate that (1) he ‘was a qualified individual with a disability'; (2) he was ‘discharged'; (3) he ‘was fulfilling his employer's legitimate expectations at the time of discharge'; and (4) ‘the circumstances of his discharge raise a reasonable inference of unlawful discrimination.'” Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 150 (4th Cir. 2012) (quoting Rohan v. Networks Presentations, LLC, 375 F.3d 266, 277 n.9 (4th Cir. 2004)). “Evidence of all four of these elements is necessary to survive summary judgment.” Reynolds, 701 F.3d at 150. If Plaintiff establishes a prima facie case, the burden shifts to Defendant to set forth evidence of a legitimate, nondiscriminatory reason for the adverse action (here, the termination). See McDonnell Douglas Corp., 411 U.S. at 802. The burden then shifts to Plaintiff to provide evidence that Defendant's non-discriminatory justification was merely pretext. See Id. at 804. While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). See also Ennis, 53 F.3d at 58 (citing St. Mary's Honor Center and noting the same in ADA context). Plaintiff must establish “but-for” causation in an ADA claim. Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (“The only remaining question is whether the ADA's text calls for a ‘but-for' causation standard. We hold that it does.”).
i. Prima facie case: qualified individual with a disability
Generally, a plaintiff may satisfy the first element of an ADA claim-being an individual with a disability within the meaning of the ADA-by satisfying one of the ADA's three definitions of disability. “The term ‘disability' means, with respect to an individual-“(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1). Examples of “major life activities” include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and work” and “operation of a major bodily function.” Id. at § 12102(2). Additionally, “[a] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 42 U.S.C. § 12102(2)(B). The ADA, as amended, makes clear that the definition of disability is to be construed broadly and for the purpose of making it easier for an individual to show that he or she is disabled. See 42 U.S.C. § 12102(4).
Defendant seeks summary judgment as to this first prong, arguing Plaintiff has not demonstrated he is actually “disabled” for purposes of the ADA, as amended, nor has he shown he was regarded as disabled. Def. Mem. 18-21 (citing testimony of Plaintiff and his physician). Defendant cites Plaintiff's deposition testimony in which he stated his slurred speech did not have any effect on his ability to do his job. Pl. Dep. 37 (“It didn't affect my ability to do my job, it didn't affect the ability for me to, in my opinion, lead the terminal or do anything on my job. It affected the way I talked and it may have affected the way people perceived me, but that's it.”). Plaintiff's doctor did not place any work restrictions on Plaintiff. Koli Dep. 33, 35-38.
Plaintiff counters that he can establish a disability by showing a substantially limiting impairment (based on his issues with balance and slurred speech) and/or by showing he was “regarded as” disabled based on comments by some OD employees that they believed he had a problem with drugs or alcohol. Pl. Mem. 21-23. Plaintiff appropriately notes that his own testimony should not be taken as tantamount to “direct admissions of law.” Id. at 40. Plaintiff notes his deposition testimony in which he indicated that, because of his balance issues he was no longer walking around certain areas of COL. Pl. Dep. 39-40.
The issue of whether Plaintiff has established a prima facie actual disability is a close one. On the one hand, his own testimony indicates he continued to work and neither he nor his physician found him to actually be unable to work. However, the question of whether one has a “disability” for purposes of the ADA, as amended, is to be construed broadly in Plaintiff's favor. Accordingly, the undersigned assumes, arguendo, that Plaintiff has satisfied this first prong. Such a finding would negate the need for considering whether Plaintiff can show he was “regarded as disabled” to satisfy this prong.
Here, Plaintiff again looks to interviews of OD employees during the IDI in which several indicated they believed Plaintiff may have a drinking or drug problem based on his slurred speech. He also cites to an affidavit provided by now-former OD employee Scott Schilling who indicated he had observed Plaintiff's issues with slurred speech and with balance and that he had received a call from Chuck Powell, another now-former OD employee, who asked whether Plaintiff had a drinking problem. Schilling Aff., ECF No. 47-5. However, in determining whether an employee is “regarded as” disabled, it is the employer (that is, the decision-makers) who are to be considered. “Thus, the perception of the employer [that the employee has an actual or perceived disability] becomes the relevant inquiry for the court [in considering whether employee is a qualified individual under the ADAAA].” Chamberlain v. Securian Fin. Grp., Inc., 180 F.Supp.3d 381, 399 (W.D. N.C. 2016) (emphasis added). Plaintiff has proffered no evidence that Schilling or Powell were involved in the decision to terminate Plaintiff. Further, as discussed above, what employees who were interviewed as part of the IDI may have thought is not sufficient. None of those involved in the decision to terminate focused on such observations. Plaintiff cannot meet his burden of showing Defendant “regarded” him as disabled for purposes of his prima facie case. Should the district judge choose to consider the “regarded as” prong, the undersigned is of the opinion Plaintiff cannot establish the first prong in this manner. The ADAAA provides that one is “regarded as” having an impairment if “the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3).
ii. Prima facie case: meeting employer's expectations at time of termination
Looking to the various complaints about Plaintiff's treatment of other OD employees, including the “final” warning provided by email in 2018 and the numerous negative remarks obtained during the IDI, Defendant argues Plaintiff cannot establish his prima facie case because he cannot satisfy the “meeting expectations” prong. See Def. Mem. 21-23; see June 27, 2018 email from Broadwell to Plaintiff, ECF No. 42-11 (setting out complaints about attitude, argument, confrontational behavior and noting it would be the last time Broadwell addressed the matter and “any issues will result i[n] future action up to and including termination”); Jan. 10, 2019 email from Plaintiff to Freeman, ECF No. 42-15 (Plaintiff's telling Freeman he would “begin to work on what [Freeman] said” and would “work on how others perceive [him]”); Feb. 2019 IDI, ECF No. 42-16 (including numerous complaints about Plaintiff's behavior toward other employees).
In response, Plaintiff first submits that the statements in the IDI could not be relied on because they are inadmissible hearsay and that, without them, Defendant has no admissible evidence that he was not meeting expectations at the time he was terminated. Pl. Mem. 24. He also submits that, based on economic performance metrics, his performance was satisfactory. Id. at 24-25.
In considering whether an employee was meeting his employer's legitimate expectations, “it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000). The court “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (quoting Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997)). “[I]t is not [the court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Id.
As noted above, the undersigned disagrees with Plaintiff's argument that the IDI Report may not be considered in assessing the motion for summary judgment. Rather, to be considered at this time, the statements contained in the IDI need not actually be true. Rather, OD must have relied on them in determining it appropriate to terminate Plaintiff. See Holland v. Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007) (“[T]he uncontested evidence established. . . the decisionmaker [] honestly believed that [plaintiff] deserved to be discharged for threatening [the employee], regardless of whether the [plaintiff] did in fact issue the threats.”) (in Title VII disability context); Pence v. Tenneco Auto. Operating Co., Inc., 169 Fed.Appx. 808, 811 (4th Cir. 2006) (noting that “the ADA is not violated when an employer discharges an employee because of a mistaken perception of misconduct, even if the misconduct would have been related to a disability.”).
Further, information gleaned during the IDI and from the IDI Report was not the only information available to OD when it made the decision to terminate Plaintiff. Plaintiff's quibble with the format in which the June 2018 “Final” warning was issued notwithstanding, Plaintiff acknowledges that he received it. Plaintiff also acknowledges having met with Freeman in January 2019 and having sent him an email indicating he would work on how others perceived him. In addition, Defendant does not claim the financial performance of the COL terminal under Plaintiff's leadership was lacking. Financial performance is not the only metric appropriately considered in determining whether an employee is meeting expectations. The Fourth Circuit has explained that whether an employee met his employer's legitimate expectations at the time of termination depends on the “perception of the decision maker . . ., not the self-assessment of the plaintiff.” Hawkins, 203 F.3d at 280; see Donaldson v. Clover Sch. Dist., No. CV 0:15-1768-MBS-KDW, 2017 WL 8897151, at *10 (D.S.C. July 24, 2017), report and recommendation adopted, No. CV 0:15-1768-MBS, 2017 WL 4173596 (D.S.C. Sept. 21, 2017) (granting summary judgment as to ADA discrimination claim, noting employee's unprofessional conduct, which included complaints from parents of students, showed employee was not meeting legitimate expectations at time of adverse action).
Plaintiff bears the burden of showing by a preponderance of the evidence that he was meeting OD's legitimate expectations at the time of termination. He has not met this burden. Because it is the plaintiff's burden to persuade the trier of fact that he met his employer's legitimate subjective employment expectations, at the prima facie stage we must consider the employer's “evidence that the employee was not meeting those expectations.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006) (considering legitimate-expectations prong of prima facie case under a different statutory scheme). Summary judgment is appropriate. See Pate v. Med. Diagnostic Lab'ys L.L.C., No. 7:19-CV-126-FL, 2021 WL 965906, at *8 (E.D. N.C. Mar. 15, 2021) (finding employee had not satisfied burden of establishing prima facie case as to meeting legitimate expectations and granting summary judgment for employer as to ADA discrimination claim); Parker v. Premise Health Emp. Sols., Inc., No. CV 3:18-2740-MGL-KDW, 2020 WL 6218795 (D.S.C. June 5, 2020), report and recommendation adopted, No. CV 3:18-2740-MGL-KDW, 2020 WL 5810519, at **12, 14 (D.S.C. Sept. 30, 2020), aff'd, 845 Fed.Appx. 283 (4th Cir. 2021) (granting summary judgment as to claims of race-based and disability-based discrimination in part because plaintiff could not satisfy prima facie prong that she was satisfying employer's legitimate expectations and had not shown that supervisor “did not genuinely believe Plaintiff's professionalism was lacking at the times she counseled Plaintiff”).
At bottom, Plaintiff has not set out sufficient evidence to demonstrate he was meeting his employer's legitimately held expectations at the time of termination. Accordingly, Plaintiff cannot satisfy the third element of the prima facie case, and his disability discrimination claim fails as a matter of law.
No further analysis of Plaintiff's ADA-based discrimination claim is required. In so finding, the undersigned notes that, citing only an unpublished 2000 decision issued by a district court in Maryland, Plaintiff suggests that the court should assume a prima facie case and jump directly to the pretext analysis. Pl. Mem. 23 (citing Jones v. Giant Foods, Inc., No. Civ. JFM-00-3469, 2000 WL 1835393 (D. Md. Nov. 27, 2000)). In Jones, the court opted to assume a prima facie case and focus on pretext analysis because the employer had set out the same evidence to show both that plaintiff was not meeting its reasonable expectations and as its reasonable, non-discriminatory reason for terminating the employee. Id. at *2. Plaintiff cites no controlling authority in support of this argument, and the undersigned is far from convinced the prima facie analysis should automatically be presumed when an employer's nondiscriminatory reason for terminating an employee (or otherwise taking adverse action against him or her) is also the reason shown for the employee's not meeting legitimate expectations at the time of the adverse action. To do so effectively would eviscerate the need for a prima facie analysis in many, many cases. Rather, the Fourth Circuit has stated that “[e]vidence of all four of these [prima facie] elements is necessary to survive summary judgment.” Reynolds, 701 F.3d at 150 (affirming a grant of summary judgment to an employer when the plaintiff employee failed to provide sufficient evidence that he had a disability to satisfy a prong of a prima facie claim of ADA discrimination). Consideration of the final prong (an inference of discrimination) and the pretext analysis is unnecessary. Summary judgment should be granted as to Plaintiff's claim of disability discrimination.
In any event, the undersigned has reviewed all of Plaintiff's arguments regarding pretext, including his argument regarding the timing of the IDI and his termination and his argument that pretext is shown by Defendant's untruthfully telling Plaintiff COL had been chosen for an IDI “at random, ” and finds he has not established that he would not have been terminated “but for” wrongfully discriminatory activity focused on his disability. Davis v. W. Carolina Univ., 695 Fed.Appx. 686, 688 (4th Cir. 2017) (“To establish a discrimination claim pursuant to the ADA, a party must establish his disability was the “but-for” cause of an adverse employment decision.”) (citing Gentry, 816 F.3d at 235). “In other words, causation requires disability to be more than a motivating factor: it must be the only motivating factor.” Davis, 695 Fed.Appx. at 688 (emphasis in original). Summary judgment remains appropriate if the pretext-portion of the burden-shifting analysis is undertaken.
2. Retaliation claim
Both parties analyze Plaintiff's ADA-based retaliation claim using the burden-shifting framework. To set out his prima facie case, Plaintiff must prove that: (1) he has engaged in protected conduct; (2) he suffered an adverse action after engaging in the protected conduct; and (3) there was a causal link between the protected conduct and the adverse action. Laird, 978 F.3d at 892 n.4 (citing Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006)). If Plaintiff establishes a prima facie case of retaliation, the burden shifts to Defendant to produce evidence of legitimate, nonretaliatory reasons for the complained-of acts. If it does so, the burden returns to Plaintiff to demonstrate that Defendant's proffered reasons for its actions were pretextual. Plaintiff retains the ultimate burden of showing that his “engagement in the protected activities was a ‘but for' cause of [the adverse action].” Staley v. Gruenberg, 575 Fed.Appx. 153, 155 (4th Cir. 2014) (applying but-for causation standard in analyzing whether plaintiff alleging retaliation under ADA, Rehabilitation Act, and Title VII had established pretext).
Here, Defendant first argues Plaintiff cannot establish his prima facie case because he has not participated in protected activity. Def. Mem. 26-27 (citing cases to support argument that Plaintiff's disclosing that he was having medical treatment did not amount to protected activity under the ADA).
Plaintiff does not provide any discussion or legal argument to support his apparent claim that his telling several OD employees he would need time off of work to have diagnostic tests performed was tantamount to activity protected by the ADA, nor does Plaintiff attempt to distinguish cases cited by Defendant. Pl. Mem. 29-30 (characterizing protected activity as his advising “Defendant employees that he would be needing time away from work to have medical tests done necessary to diagnose his disability on January 29 and January 30, 2019.”). Plaintiff's now characterizing those conversations as relating to the need for tests to “diagnose his disability” does not transform them into protected activity. Anderson v. Roche Carolina Inc., No. CA 4:10-2792-RBH-SVH, 2011 WL 7145158, at *8 (D.S.C. Nov. 14, 2011), report and recommendation adopted in relevant part, No. CIV.A. 4:10-2792-RBH, 2012 WL 368710 (D.S.C. Feb. 3, 2012) (granting summary judgment as to ADA retaliation claim when plaintiff's alleged protected activity was asking to take leave to pursue alternative medications for migraine headaches).
The undersigned agrees with Defendant that summary judgment is appropriate as to the retaliation claim because Plaintiff did not participate in “protected activity” under the ADA. As recently noted by the Fourth Circuit, “[p]rotected activity includes the right to file an EEOC charge or similar complaint with a state agency, . . ., or to request an accommodation, Haulbrook [v. Michelin N. Am.], 252 F.3d [696, ] 706 (4th Cir. 2001).” Thomas v. City of Annapolis, Md., No. 18-2148, 2021 WL 943700, at *7 (4th Cir. Mar. 12, 2021). Plaintiff has not alleged that he filed a charge or otherwise objected to a practice he believed violated the ADA, nor did he ever seek any sort of accommodation. Rather, Plaintiff advised Russell and Broadwell that he was undergoing diagnostic medical treatment. Plaintiff has cited no case law for the proposition that merely advising an employer that time was being taken off of work for diagnostic testing is protected activity. Because Plaintiff has not demonstrated that he participated in activity protected by the ADA he cannot establish a prima facie case of retaliation. See Thompson v. City of Charlotte, 827 Fed.Appx. 277, 279 (4th Cir. 2020) (affirming district court's grant of judgment as a matter of law as to ADA retaliation claim, finding employee's contacting employee-assistance program to request assistance with mental health issues was “insufficient to establish that [employee] had engaged in protected activity-that is, that he ‘opposed an[ ] act or practice made unlawful' by the ADA ‘or participated in any manner in any investigation, proceeding, or hearing under' the ADA.”) (quoting 42 U.S.C. § 12203(a)). Summary judgment is appropriate as to Plaintiff's retaliation claim.
Further, as with his discrimination claim, even if the court were to presume a prima facie case, summary judgment would be appropriate. Plaintiff has not established pretext and has not shown that but for any protected activity he would not have been terminated. Staley, 575 Fed.Appx. at 155.
B. Defamation claim
Defendant also seeks summary judgment as to Plaintiff's state-law-based claim of defamation, claiming Plaintiff has not set out evidence sufficient to be presented to a jury on this claim. Def. Mem. 29-33; Reply 15. Plaintiff disagrees, alleging “a reasonable juror could determine that Defendant defamed Plaintiff by both words and acts, by and through its employees, by publishing the false accusations that Plaintiff had a drinking problem to Chuck Powell, a third party with no reason to know this information, and others, and by conducting the IDI and then terminating Plaintiff shortly thereafter.” Pl. Mem. 39. 1. The alleged defamation
Although the record is not clear as to precisely when Powell retired, he is a former OD employee who remained employed in January 2019. Powell Dep. 16. Accordingly, Powell would not be a third party.
As taken largely from Plaintiff's memorandum, Plaintiff claims the following in support of his defamation claim:
In the interest of completeness, this R&R sets out the evidence on which Plaintiff relies for his defamation claim. The court's recitation of such evidence does not automatically indicate the court finds all statements therein to be based on competent, admissible evidence. Only statements supported by citation to competent testimony need be considered by the court in deciding summary judgment. See Duffey v. Wal-Mart Stores E. LP, No. 8:19-CV-665-TMC, 2021 WL 62163, at *4 (D.S.C. Jan. 7, 2021) (finding “self-serving hearsay claim” did not create material question of fact sufficient to survive summary judgment; citing Farrar & Farrar Farms v. Miller-St. Nazianz, Inc., 477 Fed. App'x 981, 986 (4th Cir. 2012); Md. Highways Contractors Ass'n v. State of Md., 933 F.2d 1246, 1251 (4th Cir. 1991) (“[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.”)).
Following Defendant's termination of Plaintiff's employment, Plaintiff's friend, Chuck Powell, called another one of Plaintiff's friends, Scott Schilling, to inquire as to how Plaintiff was doing. (Schilling Aff. ¶¶ 10-11, [ECF No. 47-5]). Without prompt, Powell questioned whether Plaintiff had an alcohol problem.
(Schilling Aff. ¶ 12). To Schilling and Plaintiff's knowledge, Powell had no basis from which to think Plaintiff may have an alcohol problem. (Schilling Dep. 36:1-24). In testimony, Powell admitted that the insinuations that Plaintiff may have a drug or alcohol problem came from a conversation with a Defendant employee. (Powell Dep. 18:11-20:10[, ECF No. 47-6]). Powell explained that this conversation took place several weeks after Plaintiff's termination. (Powell Dep. 18:11-20:10 [ECF No. 47-12]). Powell also discussed a conversation with Dave Bates at this time regarding whether Plaintiff had suffered a series of strokes. (Powell Dep. 16:20-17:11); (Bates Dep. 76:2-78:19).Pl. Mem. 15-16. Although Plaintiff does not list specific remarks from the IDI, he states that the IDI “notes comments from employees indicating” Plaintiff had a drinking or drug problem. Id. at 39. Plaintiff characterizes this evidence as amounting to defamation per se and as having been “widely published by Defendant.” Id. Plaintiff also submits that the “termination itself further published the defamatory inference where it occurred suddenly to a 20 year employee immediately after the IDI was conducted (and over 50 employees interviewed) and in midst of publications about Plaintiff having a drinking problem.” Id.
2. South Carolina defamation law
South Carolina law applies to the defamation cause of action. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938). The tort of defamation allows a plaintiff to recover when a defendant communicates a false message about the plaintiff to others that injures the plaintiff's reputation. McBride v. Sch. Dist. of Greenville Cnty., 698 S.E.2d 845, 852 (S.C. Ct. App. 2010). To establish defamation under South Carolina law, Plaintiff must show: “(1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Erickson v. Jones Street Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006) (citation omitted).
South Carolina courts typically include “falsity” in stating the elements of defamation. However, as the court noted in Jeter v. Allstate Insurance Co., No. CV 7:15-1458-TMC, 2016 WL 7115912, at *4 (D.S.C. Aug. 22, 2016), a private individual claiming defamation as to a matter that is not of public concern “has no duty to plead or prove falsity during his case-in-chief[.]” Id. at *12, n.4 (quoting Parrish v. Allen, 656 S.E.2d 382, 392 (S.C. Ct. App. 2007)). Truth is an affirmative defense as to which the defendant has the burden of proof unless the statement involves a constitutional issue. Id.
Here most of the alleged defamatory statements were spoken, making Plaintiff's claim one of slander. “Slander is actionable per se when the defendant's alleged defamatory statements charge the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession.” Goodwin v. Kennedy, 552 S.E.2d 319, 322-23 (S.C. Ct. App. 2001). Whether a statement is actionable per se is a matter for the court to determine. McBride., 698 S.E.2d at 852 (citing Erickson, 629 S.E.2d at 664). When a statement is considered actionable per se, defendant is presumed to have acted with common law malice, and the plaintiff is presumed to have suffered general damages. Id. When the statement is not actionable per se, “the plaintiff must plead and prove both common law malice and special damages.” Id. “Common law malice means the defendant acted with ill will toward the plaintiff, or acted recklessly or wantonly, i.e., with conscious indifference of the plaintiff's rights.” Erickson, 629 S.E.2d at 665.
Statements within the IDI report, while written, are subject to privilege, as discussed below. Plaintiff does not allege or establish that a written version of the IDI was published outside of OD.
Defendant challenges all of the allegedly defamatory statements, asserting those related to the IDI were subject to privilege and other alleged statements have not been identified with sufficient specificity to be actionable and are based on inadmissible hearsay. Def. Mem. 29-32, Reply 15.
3. Defamation analysis
Defendant first argues any statements related to an alleged drinking or drug problem made within the confines of the IDI process are qualifiedly privileged. Plaintiff did not address this portion of Defendant's defamation argument, suggesting Plaintiff concedes the qualified privilege of statements made within the IDI process.
Whether an occasion gives rise to a qualified or conditional privilege is a question of law for the court. Murray v. Holnam, Inc., 542 S.E.2d 743, 749 (S.C. Ct. App. 2001). The undersigned agrees with Defendant that statements within the IDI are privileged and therefore are not actionable. A statement is qualifiedly privileged if the speaker makes it in good faith on a subject about which he has an interest or duty, and he makes the statement to a person with a corresponding interest or duty, even though it contains matter which, without this privilege, may be actionable. McBride, 698 S.E.2d at 853; Murray, 542 S.E.2d at 749. Communications among employees and officers of a corporation are qualifiedly privileged if made in good faith and in the usual course of business. Id. OD has presented evidence that this IDI was conducted in the ordinary course of business and conducted by highly trained employees. Cox Dep. 19-22, Freeman Dep. 58. When an occasion gives rise to a qualified privilege, the burden shifts to the plaintiff to show the defendant abused its privilege. Harris v. Tietex Int'l Ltd., No. 2014-000902, 2016 WL 3573146, at *4 (S.C. Ct. App. Jun. 29, 2016) (citation omitted). Plaintiff has not attempted to do so. Summary judgment in OD's favor is appropriate as to any allegedly defamatory statements made in relation to the IDI.
Defendant seeks summary judgment as to the other evidence of alleged defamatory remarks, arguing Plaintiff has provided no competent evidence that any such statements were published to any third party and that the proffered evidence is not sufficiently specific to survive summary judgment. Def. Mem. 31-32, Reply 15. The undersigned agrees and recommends summary judgment as to such alleged evidence of defamation.
In opposing summary judgment, Plaintiff focuses on evidence from Schilling and Powell, both of whom were OD employees during the time at issue. Schilling notes that he received a call from Powell, who worked for OD in Texas, during which Powell asked whether Plaintiff had a drinking problem. Schilling makes the “assumption” that Powell “had heard something or something was said” about Plaintiff, that caused Powell to contact Schilling. Schilling Dep. 36; see Pl. Mem. 38 (“Powell would have had no basis to form the opinion that Plaintiff had a drinking problem without a Defendant employee relaying that information to him.”). Review of Powell's testimony indicates Powell never believed the unnamed employee was “kind of implying” that drinking or alcohol may have been a concern. Powell Dep. 19. Further, neither Schilling nor Powell knew the name of the unnamed OD employee who supposedly provided defamatory information.
Plaintiff has not set out evidence from which a reasonable juror could find any specific non-privileged statements were published to a third party. Summary judgment is appropriate. See McNeil v. S.C. Dep't of Corr., 743 S.E.2d 843, 848 (S.C. Ct. App. 2013) (affirming dismissal of defamation cause of action when the plaintiff could neither set forth with specificity the alleged false statements, whether defendant made allegedly defamatory statements, or to what third party such statements were published).
Finally, Plaintiff argues, almost in passing, that his termination itself “published the defamatory inference” that he had a drinking or alcohol problem. Pl. Mem. 39 (citing Tyler v. Macks Stores of S.C., 272 S.E.2d 633, 645 (S.C. 1980)). The undersigned finds this argument unavailing. Tyler does provide that “a defamatory insinuation may be made by actions or conduct as well as by word.” Tyler, 272 S.E.2d at 634. However, Plaintiff has provided no analysis or cited controlling authority in which termination alone may create defamation per se. In Tyler, the plaintiff was required to take a polygraph for wrongful activity and was terminated shortly thereafter. Here, though, Plaintiff was terminated subsequent to an internal investigation that revealed that issues regarding Plaintiffs demeanor and treatment of others continued. Summary judgment is appropriate. See Cain v. Providence Hosp., LLC, No. 3:18-CV-2120-JFA-SVH, 2020 WL 1149724, at *9 (D.S.C. Mar. 10, 2020) (distinguishing Tyler and granting summary judgment as to defamation claim where plaintiff was terminated after internal audit revealed deficiencies).
Summary judgment is appropriate as to Plaintiffs defamation claim.
IV. Conclusion
For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 42, be granted. As it is recommended that all of Plaintiff s claims are subject to summary judgment, this matter should be ended.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”