Opinion
C. A. 3:22-4548-DCC-SVH
06-27-2024
Bartholomew Earl Green, Plaintiff, v. Martin Marietta Materials, Inc., Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this employment discrimination case, an employee alleges he was subjected to a racially discriminatory and hostile work environment and that he was retaliated against, eventually resulting in having to leave his employment. His former employer seeks dismissal of all claims.
Bartholomew Earl Green (“Plaintiff”) originally filed his complaint in the Lexington County Court of Common Pleas. Plaintiff's former employer, Martin Marietta Materials, Inc. (“Defendant”), removed the case to this court on December 16, 2022. Plaintiff alleges claims of racial discrimination, retaliation, and wrongful discharge in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and claims for retaliation in violation of the Family and Medical Leave Act (“FMLA “), 29 U.S.C. § 2601, et seq.
Plaintiff also asserted claims for failure to accommodate and retaliation in violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (“ADA”). These claims have been dismissed with prejudice for failure to exhaust the applicable administrative remedies. [See ECF Nos. 15, 38]. Additionally, in briefing, Plaintiff has stipulated to the dismissal of his previously-asserted FMLA interference claim. [See ECF No. 51 at 9].
This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 44]. The motion is fully briefed [see ECF Nos. 51, 52, 55] and ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion for summary judgment.
I. Factual and Procedural Background
A. Plaintiff's 2019 Promotion
Plaintiff worked for Defendant for over 34 years, beginning in May 1987 when he was about 20 years old. [ECF No. 44-2 at 4:17-21]. Plaintiff primarily worked as the lead man at the North Columbia Quarry prior to his promotion to foreman. Id. at 5:12-6:21, 11:10-12. Plaintiff had good performance reviews throughout his many years of employment. [ECF No. 44-2 at 114:12-15, ECF No. 44-10 at 36:10-41:4, see also ECF Nos. 44-107, 44-108].
Effective June 1, 2019, Plaintiff was promoted to the position of foreman at the Edmund Sand Plant, where he began reporting to plant manager John David Law (“Law”), a white male, until Plaintiff's last day of work with Defendant on May 24, 2021. [ECF No. 44-2 at 6:18-7:6, 8:4-18, ECF No. 52-9].
Law was plant manager over the Edmund Sand Plant, as well as two smaller plants: Calhoun Sands and Old Charleston. Id. at 13:14-18:11. Calhoun Sands and Old Charleston each had a “lead man,” but no foreman, and they both supposedly were under Plaintiff's supervision. Id. Law reported to the production manager, who then reported to the area manager. Id. The production manager was Justin Nelson (“Nelson”), black male, for part of the relevant time period until he went downward to a plant manager position at a different location. Thereafter, Alex Jolly (“Jolly), a white male, became the new production manager. Id. at 14:1-15:20.
B. Incidents Following Promotion
After Plaintiff moved to the Edmund Sand Plant and began reporting to Law, the following relevant incidents occurred: first, in 2019, an employee named Jordan, known as “Lurch,” a white male, sent a message through another employee to tell Plaintiff to “get his black ass up here.” [ECF No. 44-2 at 46:9-50:14, ECF No. 44-10 at 71:15-18]. Plaintiff reported the incident to Law and to human resources (“HR”) and called Defendant's ethics hotline. [ECF No. 44-2 at 46:9-50:14]. Lurch was suspended for three days as a result and thereafter terminated roughly a month later for a separate incident where he failed to clean out a fuel truck. Id.
In 2020, Plaintiff was informed another white male employee, Jarrett Hill (“Hill”), had referred to Plaintiff using the term “black ass” and the N-word. Id. at 50:17-53:20. Plaintiff reported the incident to Defendant's ethics hotline, as well as to Law and Ashonia McLaughlin (“McLaughlin”) in HR. Id. After HR investigated, they informed Plaintiff that they were able to confirm the “black ass” comment was made, but could not confirm use of the N-word and that Hill was suspended for three days. [ECF No. 44-2 at 50:17-53:20, see also ECF 44-12 at 10 (an incident report dated April 29, 2020, where Hill was written up for using racial language)).
Another employee and black male, Matthew Kaiser (“Kaiser”), informed Plaintiff about Hill's comments and was then terminated. [See ECF No. 44-2 at 50:25-51:4, 54:1-55:16]. Plaintiff testified Kaiser had attendance issues, he complained about Kaiser's attendance issues himself, Plaintiff attended Kaiser's termination meeting, and Plaintiff believes he may have signed his termination document. Id. at 54:1-55:16. Plaintiff also testified, however, that Law made the decision to terminate Kaiser, even though Plaintiff wanted to continue to “work with” Kaiser and even though it appeared to Plaintiff that Kaiser's attendance issues had been ignored prior to him informing Plaintiff of Hill's comments. Id. at 54:1-55:16 (“He would be late. He would not show up sometimes. But the whole time, when I was complaining about that, it was fine. But after he reported to me what Jarrett did, then all of the sudden, it became a problem”), 179:6-180:13.
Plaintiff has also submitted the following evidence concerning incidents involving his supervisor Law:
• Law referred to himself as a “redneck” or “proud redneck” to Plaintiff and others; Plaintiff testified he expressed to Law that he felt this was racial in nature, and Law never responded. [ECF No. 44-2 at 117:13- 118:9, ECF No. 44-10 at 78:3-25].
• Law told Plaintiff that the KKK met down the road from the plant, and you could see burning crosses. Plaintiff reported this comment to Nelson, Law's supervisor at the time, who claimed he would handle it, but Plaintiff testified he did not know what happened next. [ECF No. 44-2 at 119:1-120:7, 121:9-122:8].
• Law told Plaintiff that a KKK Grand Wizard lived down the road from the plant and asked if Plaintiff would like to go see him, which Plaintiff obviously refused. [ECF No. 44-2 at 120:8-121:3]. Plaintiff also reported this comment to Nelson. Id. at 124:5-23. Nelson got back to Plaintiff and told Plaintiff that “it was inappropriate” and that Law said, “I was saying it in a jokingly manner.” Id.
• Law told Plaintiff a story about another black employee, Willie Jeffcoat (“Jeffcoat”), mistakenly believing that someone wearing a white bathrobe and white hat from the neighboring trailer park was a member of the KKK and becoming scared and yelling about the clan being there. [ECF No. 44-2 at 125:8-128:14]. Law also said that if you gave Jeffcoat some white chocolate to eat he “will jump around like a monkey.” Id. at 125:15-18, 129:1-15.See also id. at 129:16-131:22 (Plaintiff testifying that the above comments are the only relevant ones made by Law).
Law testified his referring to himself as a redneck was never mentioned in the workplace as a problem, he never made a comment about burning crosses, and it was Plaintiff that brought up the conversation about the KKK being “pretty prominent out here in this area,” with Law responding to Plaintiff that “the grand wizard lives right back here behind the pit.” [ECF No. 44-10 at 79:480:24].
C. Further Difficulties with Law
Plaintiff testified that because he was the foreman for all three plants, but only physically worked at the Edmund Sand Plant, he made efforts to physically go to the other plants. [ECF No. 44-2 at 114:25-116:20, see also Id. at 111:14-16 (“David told me, ‘Don't worry about the other two plants because they are up the snuff. Just focus and remain at Edmond.'”)]. Eventually, Law allowed Plaintiff to go one day a week to each plant. Id.
Law testified that Edmond had more employees (14-15) than Calhoun (3) and Old Charleston (4). [ECF No. 44-10 at 26:8-15]. Additionally, unlike Edmund, both Calhoun and Old Charleston had leadmen supervisors onsite. Id. 26:1619.
Plaintiff testified that Law undermined him and did not let him participate in the performance reviews of the lead men and other subordinate employees. Id. at 154:2-157:6. Although Plaintiff reported his concerns to Nelson, who told Law to include Plaintiff, Law continued to omit him from evaluations. Id.
Law testified he completed the evaluations himself because Plaintiff was not at work due to illness and “the evaluations were due and [he] had to get them done.” [ECF No. 44-10 at 75:11-76:7]. Law reviewed the evaluations with Plaintiff later. Id.
Additionally, Jeff Saul (“Saul”), a white male, was working on machinery without taking the proper safety precautions under Defendant's lockout/tagout policy, and Plaintiff sent Saul home. [ECF No. 44-2 at 55:24-58:21, ECF No. 44-10 at 48:4-6]. Law arrived at the plant, upset with Plaintiff for sending Saul home, and then sent Plaintiff home. [ECF No. 44-2 at 55:24-58:21]. Plaintiff reported the incident to the ethics hotline and to Nelson. Id. Nelson talked to Law, who talked to Saul about following safety rules. Id. Plaintiff testified he did not know whether there was a writeup or other discipline. Id.
Plaintiff also testified that his truck was tampered with while at work, including folding in his side mirrors, hanging rags and junk on his mirrors, and even wheel chops to his tires. [ECF No. 44-2 at 191:23-192:23]. Plaintiff, however, was unable to provide admissible evidence as to who may have committed these acts. See id.; see also Lyons v. City of Alexandria, 35 F.4th 285, 290 (4th Cir. 2022) (“[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.”) (citing Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991)).
D. Plaintiff's Health Issues
In May and June 2021, Plaintiff suffered congestive heart failure due to kidney failure and took FMLA leave due to several hospitalizations and procedures, ultimately resulting in the placement of a chest catheter for dialysis. [ECF No. 44-2 at 132:9-134:14, ECF No. 44-10 at 31:8-34:25, see also ECF Nos. 52-6, 52-7]. Plaintiff began dialysis three times a week on Tuesdays, Thursdays, and Saturdays. [ECF No. 44-2 at 134:15-23]. Plaintiff requested and was approved for intermittent FMLA to arrive to work later Tuesday and Thursdays after dialysis. Id. at 135:7-136:10.
About his condition at this time, Plaintiff testified as follows:
Q: .... During this period, were you experiencing general fatigue?
A. No. As a matter of fact, I was asked, “Man how do you do it? How do you come to work after going to dialysis?”
Q. Who asked you that?
A. David [Law] asked me that. Plant fellows at the job asked me that.
Q. What did you say?
A. I said, “I feel better now than I did before I went to dialysis.”Id. at 138:17-139:9. Plaintiff testified that the HR personnel handling his FMLA leave seemed to care about his health situation, but that Law did not. Id. at 141:23-142:9.
Plaintiff has offered testimony that Jason Mobley (“Mobley”) reported to him Law's comments about Plaintiff's absences. [ECF No. 44-2 at 143:3-9]. Defendant argues that Mobley's comments are inadmissible hearsay. [ECF No. 55 at 4]. As stated, hearsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment. Lyons, 35 F. 4th at 290. A statement is not hearsay if “[t]he statement is offered against an opposing party and . . . was made by the party's agent or employee on a matter within the scope of that relationship and while it existed,” Fed.R.Evid. 801(d)(2)(D), but there is no indication that Mobley had personnel or supervisory responsibilities. [See ECF No. 44-2 at 143:17-19 (“Jason was a haul truck driver/loader operator.”)].
E. Plaintiff's Performance Issues
In May 2021, Defendant promoted Jolly as district production manager above Law. [ECF No. 44-8 at 21:1-3]. Jolly testified that “[w]hen [he] took this role, there were already some thing in place to potentially offer Mr. Green a demotion based on performance,” more “specifically leadership issues, lack of accountability of his workforce, lack of hands on work at the operation, and then lack of respect of . . . his crew,” as stated by Law and Christy Miceli (“Miceli”) in HR to Jolly. Id. at 23:20-24:5.
During June 2021, Law, Jolly, and multiple HR administrators discussed Plaintiff's doctor's release and his return to work. [See ECF Nos. 527, 52-8, 44-100-44-103]. On June 3, 2021, McLaughlin emailed other members of HR that “[d]ue to reorganization, Earl is designated to be an Operator-Loader/Dozer” [ECF No. 52-8], but Miceli responded that Plaintiff's medical certification to return to work should be “work[ed] through . . . as a Foreman since that is his current role,” further requesting updates “as to when he returns so we know when we can start working on his position situation.” [ECF No. 52-7 at 3].
On June 21, 2021, Miceli emailed Jolly and others that Plaintiff had returned to work and that “[w]e can discuss when you are ready as to what our next steps should be with his position,” noting “Justin has been holding his operator position for him in Cayce.” [ECF No. 44-101]. Jolly responded he had “some thoughts on this” he wanted to discuss, see id., and on June 24, 2021, Law sent an inquiry to HR entitled “job classification,” asking McLaughlin what the job classification for a loader/dozer operator and minimum pay was and how much FMLA leave Plaintiff was eligible to receive. [ECF No. 44-102].
Jolly testified he was unaware why McLaughlin would refer to Plaintiff's demotion as “reorganization” or why Law would inquire about the job classification for loader/dozer operator. [ECF No. 44-8 at 42:16-44:10].
On June 29, 2021, Jolly emailed Steve Bruce (“Bruce”), Defendant's regional vice president, stating as follows:
[Miceli] and I talked last week and have a plan. I am meeting with [Plaintiff] today. I have not seen him since I have been back in S.C. since he just returned last week. I want to see where he is at mentally and physically. I will update you tomorrow on our plans.[ECF No. 44-103]. Jolly testified that his “thoughts” and “plan” referred to in the above emails were to continue to evaluate Plaintiff's performance prior to any demotion. [ECF No. 44-8 at 33:5-36:22].
After meeting with Plaintiff, Jolly harbored his own concerns about Plaintiff's “performance and ability to be the foreman” because he seemed to lack “knowledge of what was going on at the operation.” Id. at 38:1-39:16.
F. July 2021 and Plaintiff's Termination
Defendant strictly prohibits sleeping at work. [ECF No. 44-2 at 32:2233:21, 88:12-89:1, ECF No. 44-3, ECF No. 44-4 (Defendant's working rules and regulations)]. On July 21, 2021, Mobley reported to Law that Plaintiff was asleep in his work truck during working hours, [ECF No. 44-10 at 43:25-45:4, 65:2-20, ECF No. 44-8 at 44:20-45:16, 55:3-16, 60:2-20, ECF No. 44-9], providing the following picture he took:
(IMAGE OMITTED) [ECF No. 44-10 at 46:16-47:1, ECF No. 44-11, see also ECF No. 52-20]. Jolly testified that the picture convinced him that Plaintiff had violated Defendant's policy against sleeping on the job. [ECF No. 44-8 at 60:2-20, ECF No. 44-10 at 98:21-99:8].
In his deposition, Plaintiff admitted the picture shows him at work, during working hours, in his work truck, wearing his work uniform, with his work radio clipped to his shirt. [ECF No. 44-2 at 72:5-76:3]. Plaintiff testified he did not know who took the picture, but also testified that he is awake in the picture:
Q: . . . You looked at [the photo] and you told me you were awake.
A: Uh-hmm.
Q: I'm trying figure out how you reached that conclusion ....
A: Okay. My answer is, “I was awake.”
Q: Right. And I understand that. Your testimony is, in the picture . . . you were awake. I'm asking, looking at the picture, can you help me understand how you reached that conclusion? ....
A: I was awake.
Q: Because you recall this incident?
A: No, I don't.
Q: So do you have any memory at all of the situation that's photographed in [the picture]?
A: No. I don't.Id. at 75:1-24.
Defendant's policy permits terminating an employee for a first offense of sleeping on the job. [ECF No. 44-4, ECF No. 44-2 at 33:13-21, 36:3-20]. On July 21, 2021, Miceli sent the following email to Jolly, Bruce, McLaughlin, and others:
Thank you [Jolly] for your time this morning with the details on yesterday's situation involving a witness seeing Earl sleeping in his truck at end of shift. Prior to Earl's medical leave, we had approval to demote Earl to an hourly position based on the documented performance issues.Now that he has had another incident after being released back to work, Steve and I agree that it is time to demote Earl to an hourly equipment operator at Cayce quarry as originally planned. I know David is speaking to Earl right now regarding the incident yesterday and barring anything coming out of that conversation, you mentioned you could meet with Earl next Monday to let him know that he is being transferred to a nonmanagement position at Cayce effective Monday 8/2 based on his performance both before and after his leave; should he choose not to accept it, we would then need to accept his voluntary resignation and/or retirement (he has 34 years with the company but is not of retirement age yet). I will ask that you keep David Law and Justin Nelson looped in ....I have attached an updated demotion letter to provide to [Plaintiff].[ECF No. 44-106, ECF No. 44-8 at 44:15-24, 49:5-50:22, 60:14-20, ECF No. 44-109 (demotion letter)].
Jolly testified that he was unsure who would have given approval to demote Plaintiff prior to himself doing so. [ECF No. 44-8 at 50:2-11]. Miceli testified such a decision would have been made “collectively as a group on the leadership team.” [ECF No. 52-4 at 40:2-8].
On July 26, 2021, Plaintiff met with Law, McLaughlin, and Jolly in Law's office at Edmund Sand. [ECF No. 44-2 at 79:7-79:18]. Plaintiff initially thought it was the meeting he had requested because he felt they were lying about him. Id. at 183:21-184:16. Jolly led the meeting and stated that because Plaintiff had been accused of sleeping on the job, they were demoting him to the position as a pit loader operator at the Cayce quarry. Id. at 79:19-80:7. Plaintiff told them he was not sleeping on the job and further expressed that he had a “target on [his] back” and they were trying to get rid of him and lying on him because of the “color of [his] skin.” Id. at 83:18-84:22, 89:2-8.Plaintiff felt he had no choice but to retire instead of taking the demoted position, but Jolly and McLaughlin told Plaintiff to take Tuesday off, when Plaintiff already had a doctor's appointment, to think his decision over and then return Wednesday. Id. at 80:8-81:9.
Plaintiff testified that he has heard about a white employee that was caught sleeping on the job and was reprimanded with three days' suspension, but who was not demoted or terminated. [ECF No. 52-2 at 86:14-88:11]. However, Plaintiff was not able to recall the employee's real name, but said he was called “Rusty,” and testified that he was an electrician who had worked at the Cayce plant. Id.
When Plaintiff returned to work on Wednesday, he told Law he had decided he had to retire because he could not work that pit loader position due to his health. Id. at 81:10-83:17, 184:17-185:6. Plaintiff was not allowed to work out his two-week notice, and instead was sent home, but was paid for this period. [ECF No. 44-2 at 91:3-93:3, ECF No. 52-9].
II. Discussion
A. Standard on Motion 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 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 nonmoving 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.
B. Analysis
1. Retaliation Claims
The FMLA permits eligible employees to take up to twelve workweeks of leave per year due to a “serious health condition.” 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves-(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Employees who take leave pursuant to the FMLA are generally entitled to return to the same or equivalent position with the same benefits as they had prior to taking the leave. 29 U.S.C. § 2614(a)(1). If an employer interferes with an eligible employee's right to FMLA leave or retaliates against an eligible employee for exercising her right to leave, the employer may be liable for violations of the FMLA. 29 U.S.C. §§ 2615, 2617.
Additionally, Title VII prohibits an employer from retaliating against an employee on the grounds that the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a).
Courts analyze claims under Title VII and Section 1981 using the same analytic framework. Bryant v. Aiken Reg'l Med. Cntrs., Inc., 333 F.3d 536, 543-45 (4th Cir. 2003). Additionally, retaliation claims brought under Title VII and the FMLA are analogous. Laing v. Federal Express Corp., 703 F.3d 713, 717 (4th Cir. 2013); Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006).
Because Plaintiff has no direct evidence of retaliation in support of his retaliation claims arising under the FMLA, Title VII, or 42 U.S.C. 1981, he proceeds through the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80006 (1973), burden-shifting framework. Yashenko, 446 F.3d at 551; see also, e.g., Gomez v. Haystax Tech., Inc., 761 Fed.Appx. 220, 235 (4th Cir. 2019).
First, a plaintiff must establish a prima facie case by showing “that he engaged in protected activity, that the employer took adverse action against him, and that the adverse action was causally connected to the plaintiff's protected activity.” Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016) (citation omitted). The burden then shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for” the alleged retaliatory action. See id. The burden then shifts to the plaintiff to prove by the preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reason, but were instead pretext for retaliation. See Mercer v. Arc of Prince Georges Cnty, 532 Fed.Appx. 392, 398 (4th Cir. 2013).
Even assuming Plaintiff is able to establish a prima facie case-which Defendant disputes-he has failed to prove that the legitimate reasons offered by Defendant for his offer of demotion, leading to his retirement-sleeping on the job-is pretext for retaliation. Plaintiff disagrees, arguing that pretext can be demonstrated through Defendant's shifting and inconsistent reasons for his demotion that resulted in his retirement.
Plaintiff is correct that an employer's inconsistent explanations may be probative of pretext. See EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001); see also Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir. 2006) (noting that pretext is not established “by focusing on minor discrepancies that do not cast doubt on the explanation's validity, or by raising points that are wholly irrelevant to it”).
In support of this argument, Plaintiff argues in full as follows:
Although Alex Jolly claims to have been aware of some sort of performance issues, there simply are none to speak of. (Jolly Dep.)
(Law Dep. 49:6-17). Law indicates that Jolly made the termination decision along with McLaughlin, he did not know about the [d]emotion until right before it happened, and is not sure why they chose demotion. (Law Dep. 49:18-52:9). In fact, the demotion document that was given to Green cited performance problems but Law could not point to any other than the sleeping allegation. (Law Dep. 55:2-56:8). The only evidence is a[n] unclear photo of Green looking down at his lap (and presumably his phone or paperwork) and they cannot even say when the photo was taken, whether Plaintiff was on a break, and whether it was actually at the end of shift or not. (Law Dep. 66:18-67:8).
Interestingly, while they claim the demotion decision was due to the sleeping incident, it was clear that this had been contemplated well before and was part of a “plan.” (Law Dep. __, Pl. Ex.) (McGlaughlin Dep. __, Pl. Ex.) (Miceli Dep. __, Pl. Ex). In fact, McLaughlin sent an email back on June 3, 2021 (well before the alleged sleeping incident) indicating that Green was going to be demoted due to a “reorganization”. (McLaughlin Dep. 65:8-67:14, Pl. Ex. 16). It is also clear that Alex Jolly, who had just come into the position, was not the sole decision maker and did not have a good basis as he claims. (Jolly Dep.). These inconsistencies make clear the purported reason is not legitimate and summary judgment should be denied.[ECF No. 51 at 11 (blank citations in original)].
Law testified that although performance issues were referenced in the demotion document, he did not write the letter, “[t]he main thing was the sleeping,” and although “Earl had had some-some tiffs with some of the guys,” he had never been written up. [ECF No. 44-10 at 55:8-56:8]. This testimony, however, is not incompatible with Jolly's testimony about the alleged performance problems he was informed of in May 2021 when he became production manager that “there were already some thing in place to potentially offer Mr. Green a demotion based on performance,” more “specifically leadership issues, lack of accountability of his workforce, lack of hands on work at the operation, and then lack of respect of . . . his crew,” or Jolly's testimony that he himself harbored his own concerns about Plaintiff's “performance and ability to be the foreman” because Plaintiff seemed to lack “knowledge of what was going on at the operation,” following a meeting they had in June 2021. [ECF No. 44-8 at 23:20-24:5, 38:1-39:16, see also ECF No. 44-9 (Jolly's notes concerning the July 26, 2021 meeting stating in part “I led the conversation to let Earl know that his performance has been below par for sometime now and the events that occurred July 21st were not the actions of a leader.”)].
Additionally, it does not appear dispositive that Plaintiff's demotion had been contemplated prior to the demotion occurring, where he has failed to submit evidence that the reason provided-that Plaintiff was sleeping on the job-is not the actual reason why he was offered a demotion, nor is it dispositive that Plaintiff personally believed that he was not sleeping in the picture accompanying the report of his sleeping in his work truck. As stated by the Fourth Circuit, “[i]f [plaintiff] was fired for misconduct [ ]he did not actually engage in, that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.” Powell v. Biscuitville, Inc., C/A No. 20-2378, 2021 WL 2434011, at *2 (4th Cir. June 15, 2021) (citing Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017)). The court does not “sit as a super-personnel department, weighing the prudence of employment decisions made by the defendants.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998). The court need not decide “whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's retaliation claims.
2. Race Discrimination Claims
As with Plaintiff's retaliation claims, absent evidence of direct discrimination, Plaintiff may use the burden-shifting framework of McDonnell Douglas to prove his claims of race discrimination.
Title VII and Section 1981 employment discrimination claims are analyzed with the same requirements. See, e.g., Hamada v. Boeing Co., C/A No. 2:19-02777-DCN-MGB, 2021 WL 4398456, at *3 n.1 (D.S.C. Sept. 27, 2021).
Here, Plaintiff argues that Defendant terminated his employment for discriminatory reasons. To make a prima facie case to support his claim, he must show (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) that similarly-situated employees outside the protected class received more favorable treatment. White v. BFI Waste Services, LLC, 375 F.3d 288, 295 (4th Cir. 2004). If a prima facie case is presented, the burden shifts back to Defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If Defendant does so, the burden shifts back to Plaintiff to prove by the preponderance of the evidence that Defendant's offered reasons are pretext.
Because Plaintiff's race discrimination claim is centered solely on his alleged wrongful termination, this claim fails for the same reasons articulated above regarding his retaliation claims.
Additionally, although he argues otherwise, Plaintiff has failed to identify similarly-situated employees who received more favorable treatment than he did. Plaintiff disagrees, as follows:
In regards to the comparator, Green has raised a few comparators including Law himself. Despite the various racial and inappropriate remarks made by Law, he was not formally disciplined, demoted or terminated as a result. (Green Dep. 185:23-186:20) (Law Dep. 28:24-30:12). Even the employees who made racial comments, such as Jarrett Hill, were given a slap on the wrist whereas the Plaintiff was demoted and constructively discharged.[ECF No. 51 at 12].
However, “[t]o “establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.” Haynes v Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (citations omitted). Plaintiff has failed to do so here.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's race discrimination claims.
3. Hostile Work Environment Claims
“The elements of a hostile work environment claim ‘are the same under either § 1981 or Title VII.'” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 221 (4th Cir. 2016) (citing Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001)). “To demonstrate . . . a racially hostile work environment, a plaintiff must show that there is ‘(1) unwelcome conduct; (2) that is based on the plaintiff's . . . [race]; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.'” Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (citing Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334 (4th Cir. 2010)). A work environment is hostile when “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted).
As Defendant notes, Plaintiff has asserted two different types of harassment that have different legal standards: subordinate/coworker harassment and supervisory harassment. Plaintiff's claim for subordinate or coworker harassment fails where Defendant took prompt remedial action and the misconduct stopped. As stated by the Fourth Circuit, “[a]n employer may be liable where the victim is harassed by a co-worker only when the employer knew or should have known about the harassment and failed to take effective action to stop it,” defining “[e]ffective corrective action” as “discipline that is reasonably calculated to end the behavior.” Brown v. Bratton, No. 21-1998, 2022 WL 17336572, at *11 (4th Cir. Nov. 30, 2022) (citing Strothers v. City of Laurel Maryland, 895 F.3d 317, 332-33 (4th Cir. 2018)). Here, Defendant took effective corrective action.
As to evidence submitted regarding the handful of comments Law made, the court is constrained to recommend dismissal of Plaintiff's hostile work environment claims where these comments did not create a sufficiently-abusive work environment. While the asserted comments were inappropriate and offensive, Plaintiff does not establish the comments, over a two-year period, meet the legal standard for severe or pervasive. As stated by the Fourth
Circuit, a plaintiff asserting a hostile work environment claim faces “a high bar,” and “[u]ndesirable work assignments, a boss who plays favorites and criticizes one's work, colleagues who give the cold shoulder, and ‘the sporadic use of abusive language' are ‘ordinary tribulations of the workplace' that, while unfair and hurtful, do not implicate Title VII.” Roesinger v. Pohanka of Salisbury, Inc., No. 21-1617, 2024 WL 701776, at *3 (4th Cir. Feb. 21, 2024) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's hostile work environment claims.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 44].
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.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).