Opinion
C/A 4:21-cv-01875-RBH-KDW
03-22-2023
Jane M. Helms, Plaintiff, v. Hilton Resort Corp. d/b/a Hilton Grand Vacations and Hilton Grand Vacations, LLC, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Plaintiff Jane M. Helms (“Plaintiff” or “Helms”) filed this action in the Horry County Court of Common Pleas against her former employer alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), a hostile work environment in violation of each of these statutory schemes as well as the Americans with Disabilities Act (“ADA”), and a violation of the South Carolina Payment of Wages Act (“SCPWA”). Compl., ECF No. 1-1. By consent of Defendant, Plaintiff filed an Amended Complaint to correct the name of Defendant to Hilton Resort Corp. d/b/a Hilton Grand Vacations and Hilton Grand Vacations, LLC (hereinafter “Hilton,” “HGV,” or “Defendant”).Am. Compl., ECF No. 11.
As noted in its responses to Local Rule 26.01 Interrogatories and in its Motion for Summary Judgment, Defendant Hilton Resorts Corporation is the proper party to this action. See Local Rule 26.01 Answers to Interrogs., ECF No. 3; Mem. in Supp. of Mot. for Summ. J. 1 n.1, ECF No. 511.
The bulk of Plaintiff's federal claims relate to her having been furloughed on April 2, 2020, and terminated on October 31, 2020, as part of a reduction in force (“RIF”) occasioned by the COVID-19 pandemic. Defendant has moved for summary judgment as to all claims. ECF No. 51. Plaintiff responded to this motion, ECF No. 56; and Defendant filed a reply, ECF No. 61. 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 (“Report”) regarding Defendant's pending dispositive motion. Having reviewed the parties' submissions and the applicable law, the undersigned recommends Defendant's Motion, ECF No. 51, be granted as to her ADEA, Title VII, and ADA claims and that the case be remanded to the Horry County Court of Common Pleas for consideration of her SCPWA claim.
To the extent supported by the record, the court considers the facts in the light most favorable to Plaintiff, the nonmoving party, and potentially differing accounts of events are noted. This overview is not intended to exhaustively catalog every example cited by Plaintiff in her memorandum. The undersigned has reviewed all arguments and evidence presented. To the extent necessary, additional facts are set out in the context of Plaintiff's specific causes of action.
In June 2017 HGV hired Plaintiff (then Jane Marie Beck), who had previous experience in timeshare sales, as a Sales Executive in Myrtle Beach, South Carolina. Pl. Resume, ECF No. 563; Offer of Employment, ECF No. 56-4. At the time of her furlough and termination she worked at HGV's Ocean Enclave resort. An understanding of HGV's business model, including performance metrics for sales performance, provides context for considering Plaintiff's claims.
A. HGV's business model
HGV is a hospitality company that operates vacation ownership resorts (also commonly called timeshares) around the globe. HGV's business model relies on the sale of vacation ownership at each of its resorts. Ocean Enclave is one of HGV's resorts in Myrtle Beach, South Carolina. Ocean Enclave has two distinct sales departments: “Action Line,” which sells to firsttime HGV customers; and “In-house,” which sells to existing HGV owners. Plaintiff worked on the Action Line.Pl. Dep. 26, ECF No. 51-2. Generally, HGV's sales methodology includes an Action Line Sales Executive taking a potential customer on a minimum 90-minute tour of the facility. The tour would end at the Sales Executive's desk on the sales floor. Id. at 29; Dep. of Senior Director of Sales Roger Gorby, 28-29, ECF No. 51-3. If a customer decides to make a purchase, the Sales Executive turns the customer over to a Sales Leader, commonly called a “T.O.” (“Takeover Manager”). Pl. Dep. 29. The T.O. presents available inventory to the customer for selection; the sales contract is then prepared and signed. Id.
Unless otherwise indicated, reference to “Sales Executives” refers to those on the Action Line.
Defendant notes that Sales Leaders/TOs are now referred to as “Sales Managers.” Def. Mem. 3.
HGV maintains detailed records regarding sales performance. Two key metrics HGV uses to measure Sales Executives' performance are relevant here: volume per guest (“VPG”) and net closing percentage. VPG is “similar to a baseball batting average. It [is] the amount of volume” measured in dollars “that a Sales Executive has been able to sell, divided by the number of prospects he has seen.” Gorby Dep. 27. Net closing percentage is the number of sales made divided by the number of customers the Sales Executive has taken on tours during a prescribed period. Dep. of Action Line Director of Sales, Ocean Enclave, John Gibbs Dep. 13, ECF No. 51-7 (also available at ECF No. 56-22); Dep. of HGV's Vice President of Sales for South Carolina, Mike Riley 21, ECF No. 51-4. As noted on a Documentation of Counseling for Action Line Sales Executive Minimum Performance Standards form issued to Plaintiff on January 12, 2019,each Action Line Sales Executive was to maintain a VPG of 90% or greater of the monthly budgeted VPG or a monthly net closing percentage of 11.5% to avoid performance counseling. Documentation for Action Line Sales Executive Minimum Performance Standards, ECF No. 515. VPG and net closing percentage are updated weekly for each Sales Executive.
Exhibits provided by Defendant include these Documentation forms for some other weeks, as well. ECF No. 51-5 at 5-14.
B. HGV's policies regarding a discrimination- and harassment-free workplace
HGV maintains comprehensive policies against workplace discrimination, harassment, and retaliation. Code of Conduct, 3-4, ECF No. 51-6. To prevent discrimination and harassment in the workplace, HGV provides multiple channels by which employees may report discrimination or harassment, including reporting the discrimination or harassment to the employee's supervisor, department head, the Director of Human Resources, or the senior Human Resources representative at the employee's location. Id. at 2. Additionally, HGV's Equal Employment Opportunity and Road to a Harassment-Free Workplace policies expressly state that HGV forbids retaliation against an employee who makes a good-faith complaint of workplace discrimination or harassment. Id.
C. The impact of the COVID-19 pandemic
In early 2020, as COVID-19 cases rose and governments began restricting travel, tourism slowed to a halt. HGV's timeshare business was substantially impacted as hotels and resorts were forced to close. Ocean Enclave closed as a result of COVID-19 on March 19, 2020. Am. Compl. ¶ 46; Mar. 19, 2020 email from Riley to employees, ECF No. 56-8 at 5-7 (advising that Myrtle Beach Sales and Marketing operations would be closed through April 2, 2020; HGV would continue to pay impacted Team Members for their regularly scheduled hours during that closure period).
Approximately two weeks later, HGV reopened Ocean Enclave with a skeleton crew of 17 Sales Executives and implemented a furlough for the remaining 53 Sales Executives. Gibbs Dep. 23. HGV informed the impacted Sales Executives, including Plaintiff, of this furlough via letter dated April 2, 2020. Furlough Letter, ECF No. 51-5 at 17-18. HGV's corporate office made the decision to furlough employees. Id. at 20; Riley Dep. 16. Local management teams had to comply and were tasked with determining an effective and efficient way to implement the furlough. Gibbs Dep. 20; Riley Dep. 16-17. Throughout 2020, local management teams developed plans for a phased return to work of a percentage of the workforce, based on market conditions, and, later, a selection process for those who would be terminated as part of a nationwide RIF caused by the ongoing economic impact of the pandemic. Gibbs Dep. 20; Riley Dep. 19-20. South Carolina's Vice President of Sales Riley prepared a strategy for furloughs and phased reopening with the Ocean Enclave management team, Roger Gorby (then Senior Director of Sales), John Gibbs (then Senior Sales Manager), and Woody Dellis (then Director of Sales) (collectively, the “management team”). Id. For the Action Line at Ocean Enclave, the management team determined the most appropriate metric for ranking and returning the Sales Executives was the individual's net closing percentage. Riley Dep. 20, 25, 34, 49; Gibbs Dep. 20-21; Gorby Dep. 31. Management team members testified this metric represented the number of “yeses” the Sales Executive elicited from new customers. Riley Dep. 20, 25, 34, 49; Gibbs Dep. 21. HGV needed as many new customers to make purchases as possible following the reopening of Ocean Enclave. Riley Dep. 21. HGV did not use seniority or tenure as selection criteria for the furloughs or return of employees. Dep. of Def. 30(b)6) Rep. Allyson Meldeau Dep. 11, ECF No. 51-8. HGV's marketing department prepared regular reports forecasting the tour flow (i.e., number of customers registered for a tour) for HGV properties in consultation with the company's marketing partners. Riley Dep. 17, 21-22; Gorby Dep. 33-34. The management team used these reports to ensure proper staffing levels to meet the forecasted demand. Id. The management team determined based on these reports that 17 Action Line Sales Executives were needed at Ocean Enclave as of April 2020. Id. Management testified it used a neutral selection criterion to retain the highest-performing Sales Executives possible. Gorby Dep. 33-34; Riley Dep. 39-41.Specifically, in selecting the 17 to be returned first, the Action Line Sales Executives were ranked based on their net closing percentage using the prior six-month period as a lookback. Gibbs Dep. 28; Riley Dep. 34; see ex. 1 to Def. Position Statement to EEOC, ECF No. 56-11 at 21 (indicating data for the report of six-month lookback from September 1, 2019 through February 29, 2020 was last updated on March 24, 2020). The top 17 Action Line Sales Executives based on the net closing percentage were returned to work following the initial closing of the site, and all others were furloughed in Phase 1 of the site's reopening (“Phase 1”). Id; Color-coded spreadsheet, Pl. Dep. Ex. 44, ECF No. 51-5 at 49-51. The site also retained several T.O. managers using the same selection criteria. Pl. Ex. 28, ECF No. 51 5 at 33; Riley Dep. 37-41.
Plaintiff's challenges to the metrics used are discussed below. Here, the court sets out Defendant's explanation of how it determined which metrics to use and how it endeavored to implement them in the furlough and layoff/RIF.
In its facts section Defendant cites to the spreadsheet marked Plaintiff's Exhibit 44 as listing the top 17 Action Line Sales Executives at the time they were returned to work. Def. Mem. 6. The court notes that, in their depositions, Riley and Gibbs discuss various spreadsheets in response to questions from Plaintiff's counsel. In the cited deposition testimony, Riley and Gibbs seem to be responding to questions regarding Plaintiff's Exhibit 34, which is an email from Riley to Dennis DeLorenzo explaining that the metric for Action Line reps would be a six-month lookback of net close percentage. Pl. ex. 34, ECF No. 51-5 at 41. See more complete versions of the deposition transcripts of Riley at ECF No. 56-13, Gibbs at ECF No. 56-22, and Gorby at ECF No. 56-21. The court also notes Defendant has provided a declaration from Allyson Meldeau, an employee “with knowledge of the company's personnel.” Meldeau Decl. ¶ 2, ECF No. 51-10; see Meldeau Dep. 5, ECF No. 56-23 at 6 (identifying Meldeau as the Director of Team Member Relations for Defendant). Meldeau provides two spreadsheets as attachments to her declaration: her exhibit 1 includes the six-month lookback period for net closing percentages, Meldeau Decl. ¶ 4, ECF No. 51-10 at 4-8; and her exhibit 2 includes a ranking based on a 12-month lookback period, Meldeau Decl. ¶ 5, ECF No. 9-11.
On April 2, 2020, Plaintiff received a letter from Barbara L. Hollkamp, Executive Vice President & Chief Human Resources Officer. The letter set forth that certain team members were being placed on temporary furlough status to reduce staffing levels and adjust to unanticipated circumstances. Apr. 2, 2020 Furlough Letter, ECF No. 51-5 at 17-18. The letter further stated there would be “no bumping rights” in connection with the furlough. “Accordingly,” the letter continued, “you may not transfer to a position held by another employee or displace another employee who is not subject to a furlough. Id. at 18.
On May 12, 2020, Plaintiff and her husbandsent an email requesting that HGV “consider refunding the commissioned-paid employees, who are suffering severe economic harm as a result thereof, to possibly return their Reserve Account Funds, so that said funds can be used to bridge the gap until operations are up and running ....” May 12, 2020 email, ECF No. 56-8 at 1.
Plaintiff's husband, Jeffrey Helms was also an Action Line Sales Executive at Ocean Enclave. Proceeding pro se, Jeffrey Helms is pursuing litigation principally related to the furlough. See Jeffrey M. Helms v. Hilton Resorts Corp., C. A. No. 4:21-3266-JD-TER (D.S.C.)).
Management discussions about Ocean Enclave at times also included a discussion about how to handle the furlough and RIF at another property in South Carolina, located in Hilton Head Island. See, e.g., Mar. 24, 2020 recommendations from Riley to Dennis DeLorenzo, ECF No. 567 at 1-3 (recommending metric for Myrtle Beach Action Line Sales Employees be net closing percentage and metric for in-house Sales Employees be VPG; recommending metric for Hilton Head Sales Executives (which was a “blended line”) be VPG). Meldeau noted that various HGV locations used various metrics for returning employees from furlough. She testified this was a “direct result of business is different in each market, and they also reopened at different times.” She noted some locations “likely” used VPG. Meldeau Dep. 11-12.
As the hospitality industry continued to partially re-open in 2020, the management team created a plan to bring additional employees back from furlough. Using the available market forecasts of projected tours provided to them, the management team estimated how many Sales Executives would be required as Ocean Enclave began reopening. Riley Dep. 22, 25. HGV brought back additional Sales Executives in phases. Subsequent to Phase I, management used the same metric-the top Sales Executives by net closing percentage-but extended the lookback period from six months to 12 months to account for the seasonal fluctuations of sales in South Carolina. Riley Dep. 16, 22-23; Gibbs Dep. 28; see ex. 2 to Def. Position Statement to EEOC, ECF No. 5611 at 26 (indicating data for the report of 12-month lookback from March 20, 2019 through March 19, 2020 was last updated on May 1, 2020). The second group of Action Line Sales Executives was returned “about 45 days” after the first group had been returned. Gibbs Dep. 23.
On July 1, 2020, Plaintiff was notified by letter from HGV that her furlough was to continue indefinitely. The letter again noted there would be “no bumping rights at the property.” July 1, 2020 Letter, ECF 56-14 at 2.
C. Plaintiff questions the furlough, sends a letter through counsel, and files a Charge with the EEOC
Plaintiff has provided a series of text messages that appear to have been between her and Gibbs on August 21 and 22, 2020. Text messages, ECF No. 56-20. On August 21, 2020, Plaintiff sent Gibbs a screen shot of what seems to be a March 2020 Line-up, in which Sales Executives are ranked by a blended VPG in determining the order in which they are to take tours. Id. at 3. Gibbs told Plaintiff the screen shot “had nothing to do with the actual determination” of who would be returned. Id. at 4. Gibbs later indicated to Plaintiff that VPG “is the benchmark,” but advised Plaintiff her “numbers weren't there.” Id. at 5. Gibbs reiterates to Plaintiff that a 12-month lookback period was used, although he again indicates VPG was utilized. Id. at 6. In his deposition, Gibbs acknowledged the text messages but indicated his reference to using VPGs as the metric was a “misspeak, specifically because we had gone back and forth between what determination we were going to use before landing on closing percentage. And closing percentage was the actual metric we used.” Gibbs Dep. 35.
Plaintiff submits this text from Gibbs creates a question of fact as to whether Defendant actually used VPG or sales percentage as the applicable metric. However, the record is devoid of evidence that VPG was actually used for all of the Myrtle Beach Action Line Sales Executives. The decision to use percentages had been made and spreadsheets actually utilized had been created prior to this text exchange.
On August 23, 2020, Plaintiff and her husband emailed a letter to “Hilton Team Member Relations/At Your Service.” Aug. 23, 2020 Letter, ECF No. 56-25 at 1-2. In the letter they question the order in which salespersons were being returned from furlough. Plaintiff specifically referred to the tour line-up, including VPG information, from the week of March 9-March 15, 2020, and questioned why she was not being returned to work. Id. at 2. Plaintiff also cataloged what she termed rather “negative and discouraging responses” she and her husband had received in response to text messages sent to their “new Manager,” Gibbs. Id. at 1-2. Plaintiff also expresses frustration that they were told by Corporate that local management decided when a furloughed employee was returned and they should remain in contact with that local management but that local management (including Gibbs) advised that he could not provide details about when Plaintiff might be called back, but that Hilton would need to provide that. Id. Plaintiff also questioned how several in sales-training positions could be reintegrated into the Sales Executive floor when the training positions had been “dissolved,” asking why that would not be considered “bumping.” Id. at 2.
Plaintiff highlights snippets from “rather negative and discouraging” text messages she said were exchanged between herself and Gibbs and between her husband and Gibbs. Aug. 23, 2020 Ltr. 12. These snippets include, for example: “it isn't always fair just consistent,” “your numbers were unfortunately not there compared to your peers.” Id.; See Text Messages between Plaintiff and Gibbs at ECF No. 56-20.
Plaintiff's husband, Jeff Helms was returned to work on September 2, 2020. Pl. Dep. 39.
On September 23, 2020, Plaintiff's counsel wrote Riley advising of her representation and including a charge of discrimination that would be filed with the EEOC on October 2, 2020. Counsel indicated the charge would not be filed if HGV responded to resolve claims by Plaintiff. Sept. 23, 2020 Letter (partially redacted), ECF No. 56-26 at 1-2.
Plaintiff signed her first charge of discrimination on September 24, 2020; it was filed with the EEOC on October 6, 2020 (“First Charge”). First Charge, ECF No. 56-1. The First Charge indicated it included claims of discrimination based on sex, national origin, retaliation, age, disability, and a hostile work environment. First Charge 1, EEOC 436-2020-00026. See First Charge for additional details.
D. Plaintiff's termination
Some Action Line Sales Executives, including Plaintiff, were subject to a nationwide RIF as of October 31, 2020. Oct. 16, 2020 Ltr., ECF No. 51-5. In the October 16, 2020 letter, HGV explained that the RIF affected “approximately 1600” employees nationwide. Id. Riley testified that whether an Action Line Sales Executive was furloughed, returned to work, or terminated pursuant to the RIF was that Sales Executive's relative (“stacked”) rank among all Action Line Sales Executives at Ocean Enclave based on his or her net closing percentage. Riley Dep. 25.
Based on the six-month lookback stacked ranking that had been utilized at the start of the furlough, Plaintiff ranked 33rd among the more than 70 Action Line Sales Executives based on her net closing percentage of 9.38% over the preceding six months. Pl. Ex. 44, ECF No. 51-5 at 49; ex. 1 to Meldeau Decl., ECF No. 51-10 at 5. As noted above, only 17 Action Line Sales Executives were retained in Phase 1 and the remaining, including Plaintiff, were furloughed on April 2, 2020. When the management team expanded the lookback period from six months to 12 months to determine the Action Line Sales Executives to bring back from furlough in subsequent phases, Plaintiff's net closing percentage was 8.82%, and she ranked 45th out of all Action Line Sales Executives recorded at Ocean Enclave. Pl. Ex. 42, ECF No. 51-5 at 43; ex. 2 to Meldeau Decl., ECF No. 51-10 at 10.
E. Plaintiff's second charge; Defendant's response to the EEOC
On October 23, 2020, Plaintiff signed a Second Charge with the EEOC. Second Charge, ECF No. 56-2. The Second Charge is one for retaliatory termination. Id. The court notes, however, that the record contains no clear information indicating this Second Charge was ever filed with the EEOC. See Am. Compl. ¶ 15 (setting out particulars of Second Charge); Answer ¶ 15 (indicating Defendant lacks knowledge or information regarding the Second Charge), ECF No. 25. The copy of the Second Charge submitted by Plaintiff does not include an EEOC-assigned number. Defendant never specifically discusses the Second Charge in its Motion or Reply.On November 17, 2020, Defendant, through counsel, provided its position statement in response to Plaintiff's First Charge. Position Statement, ECF No. 56-11. Although there is no reference to a second charge number, the Position Statement addresses both the furlough and the termination. Position Statement 1. Defendant explained the closing percentage metric used to determine furlough and lay off (termination); it included spreadsheets of the rankings using both a six-month and 12-month lookback. Id. at 3-4, 21-29.
While the record begs the question of whether the second charge was filed with the EEOC, neither party focuses on this issue. Moreover, whether there was a second charge filed with the EEOC is not determinative of any issues raised in Defendant's Motion.
On March 31, 2021 Plaintiff submitted a rebuttal statement to the EEOC. Rebuttal, ECF No. 56-12.In addition to legal argument, Plaintiff submits that VPG, not closing percentage, should have been the metric used to determine whether employees were returned from furlough.
Although the Rebuttal Statement provided by Plaintiff at ECF No. 56-12 includes no date, in her brief she indicates it was provided on March 31, 2021. Pl. Mem. 14.
Plaintiff's Amended Complaint also references her not having been hired by Defendant after interviewing with Defendant on March 19, 2021. Am. Compl. ¶¶ 59-61. Defendant submits any such claim is subject to dismissal. Def. Mem. 7, n.12. As Plaintiff does not discuss the March
2021 failure-to-hire allegation in responding to summary judgment, she is deemed to have abandoned any such claim.
Plaintiff received a Right-to-Sue letter from the EEOC on March 26, 2021. Am. Compl. ¶ 16. This litigation followed.
II. Standard of Review
A. 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 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). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). 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). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See Id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Burden of proof, generally
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). 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). A plaintiff may demonstrate a violation of any of these statutory schemes with direct evidence (sometimes referred to as “mixed motive”) or by proceeding under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (applying the framework to an ADEA retaliation claim); 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).
Plaintiff analyzes her claims using the burden-shifting framework. Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The framework essentially is the same for ADEA and ADA claims, as well.
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)).
III. Analysis
A. Plaintiff's federal-law-based claims a. Plaintiff is not pursuing a separate ADA-based claim
Plaintiff's Amended Complaint generally includes a few references to her having a “disability.” E.g., Am. Compl. ¶ 46 (averring Plaintiff's last day at work was March 15, 2020, noting she was out of work “due to her asthma,” and Defendant “was well aware of the Plaintiff's asthma and perceived it as a disability.”); ¶ 67 (generally alleging she suffered discrimination based on “age, national origin, disability, and retaliation”); ¶ 111 (generally averring she made complaints regarding “Sex, National Origin, Age and disability discrimination”). Other than initially indicating the case is brought pursuant to the ADA (among other statutes), Am. Compl. ¶ 3, Plaintiff's Amended Complaint does not include an ADA-based cause of action. Defendant notes this in seeking summary judgment. Def. Mem. 22. Notably, Plaintiff never addresses any ADA-related claim in responding to summary judgment. Rather, she baldly states in her conclusion that she has established differential treatment “based on her perceived disability, age and sex.” Pl. Mem. 35. “A plaintiff can abandon claims by failing to address them in a response to a summary judgment motion.” Nelson v. Sci. ApplicationsInt'lCorp., No. CIV.A. 2:11-2928-PMD, 2013 WL 764664, at *5 (D.S.C. Feb. 7, 2013) (citations omitted), report and recommendation adopted, No. CA 2:11-2928-PMD, 2013 WL 754834 (D.S.C. Feb. 27, 2013); Jones v. Family Health Ctrs. Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in summary judgment motion opposition memorandum has been abandoned); Cousar v. Richland Cnty. Sheriff's Dep't, No. CIV. A. 3:08-392-CMC, 2009 WL 982414, at *6 (D.S.C. Apr. 10, 2009) (same).
Furthermore, were Plaintiff considered to be pursuing any disability-related claim, the undersigned is of the opinion that summary judgment remains appropriate. Plaintiff has offered no analysis of having any disability-actual or perceived-for purposes of the ADA, nor has she tied any discrimination or retaliation to any disability.
b. Plaintiff's ADEA discrimination claim
In large measure, all of Plaintiff's federal-law-based claims center on Plaintiff's arguments that Defendant did not effectuate the furlough and RIF based on appropriate neutral metrics. Employment-law principles concerning how an employer implements a furlough or RIF generally are applicable regardless of the statutory scheme under which an employee alleges unlawful discrimination as a result of the furlough or RIF. See Dugan v. Albemarle Cnty. Sch. Bd., 293 F.3d 716, 722 (4th Cir. 2002) (in Title VII and ADEA context, finding there is no inference of discrimination when employer adheres to neutral, established policies and procedures for a RIF). Accordingly, much of the analysis made here in connection with Plaintiff's ADEA-based claims will apply with equal force to her other federal claims.
Defendant first seeks summary judgment as to Plaintiff's ADEA-based discrimination claim, which focuses on her furlough and termination. Although her Amended Complaint contains allegations that those younger than she were not disciplined and received “more favorable tours” and job assignments, Am. Compl. ¶ 91, Defendant submits Plaintiff has provided no evidence of such claims. Def. Mem. 13-14. In responding to summary judgment, Plaintiff focuses only on claims related to the furlough and the termination. Because Plaintiff has not pursued age-based claims related to assignments or discipline, no consideration of such claims is required.
Both parties proceed under the McDonnell Douglas framework; however, they set out slightly different formulations of what constitutes a prima facie case and neither party considers the prima facie case most often used in this Circuit when considering matters related to a furlough or RIF. Defendant sets out the following elements of an ADEA discrimination claim: a plaintiff must show that (1) she was a member of the protected class; (2) she was qualified for the job and met the employer's legitimate expectations; (3) she was discharged despite her qualifications and performance; and (4) following her discharge, she was replaced by a substantially younger individual with similar qualifications. Def. Mem. 11-12 (citing Hart v. Bon Secours Balt. Health Sys., 455 Fed.Appx. 337, 339 (4th Cir. 2011) (citation omitted)). Although Plaintiff presents the elements in a slightly different order, her formulation of a prima facie case is quite similar but characterizes the fourth element as requiring Plaintiff to show the adverse employment actions occurred “under circumstances that raise a reasonable inference of unlawful age discrimination, such as being replaced by a substantially younger person.” Pl. Mem. 26-27 (citing Vaughan v. MetraHealth Cos., 145 F.3d 197, 203 (4th Cir. 1998); Chaundhry v. Mobil Oil Corp., 186 F.3d 502, 505 (4th Cir. 1999)). Although neither case cited by Plaintiff specifically includes the “reasonable inference of unlawful age discrimination” language, the court agrees that the fourth prong of an age-discrimination case may be satisfied by establishing “circumstances that give rise to an inference of unlawful discrimination.” Denis v. Horry Cnty. Police Dep't, No. 4:20-CV-3849-JD-TER, 2022 WL 4181042, at *6 (D.S.C. June 28, 2022), (in failure-to-promote context, citing, inter alia, Gurganus v. Beneficial, N.C., Inc., 25 Fed.Appx. 110, 111 (4th Cir. 2001), report and recommendation, 2022 WL 3357883 (D.S.C. Aug. 15, 2022)). In other words, evidence giving rise to an inference of discrimination may satisfy the fourth prong. While Plaintiff may accomplish this by showing she was “replaced by a substantially younger person,” other evidence giving rise to such an inference may be used.
Defendant concedes Plaintiff, who is over 40 years old, is a member of the protected class and was subjected to adverse action (furlough and discharge). Defendant submits, though, that Plaintiff cannot establish she was meeting legitimate expectations at the time, nor can she satisfy the fourth prong of having been replaced by a substantially younger individual with similar qualifications (or otherwise show a reasonable inference of discrimination).
In support of its argument that Plaintiff was not meeting legitimate expectations, Defendant cites to several written Documentation of Counseling for Action Line Sales Executive Minimum Performance Standards Plaintiff received for weeks she did not satisfy Defendant's weekly performance goals. See Documentation of Counseling for Action Line Sales Executive Minimum Performance Standards, ECF No. 51-5 at 5-14. These forms provide the Sales Executive's performance metrics of Closing Percentage, Number of Tours, Net VPG, and Volume. Company-established minimum performance standards are set out as requiring the Action Line Sales Executive to meet one of these criteria: 11.5 or higher net close for the month; or Individual net VPG must meet or exceed 90% of the Action Line monthly budgeted VPG. Id. In addition to these Documentations, Defendant looks to Plaintiff's net closing percentage of 9.38% based on a sixmonth lookback (as to the furlough decision) and an 8.82% based on a 12-month lookback (as to the RIF/termination decision). Id.; see also 6-month lookback spreadsheet, indicating lowest net close percentage for executive returned from furlough in first phase of return was 12.00 %, ECF No. 51-5 at 49; 12-month lookback spreadsheet, indicating Plaintiff's net close percentage was 8.82%, ECF No. 51-5 at 43. Similarly, Defendant argues Plaintiff's net closing percentage numbers were lower than those returned to work, meaning she has not provided evidence of an inference of discrimination to satisfy the fourth prong.
In responding to summary judgment, Plaintiff does not specifically parse out the elements of the prima facie case to explain why she believes she satisfies each of them. She argues she satisfies the first two prongs because she is within the protected class and was subjected to adverse employment actions. Pl. Mem. 27. Rather than specifically discuss the third and fourth prongs of the prima facie case, though, Plaintiff jumps to a discussion of how Defendant's reasons for not returning her to work was pretext for discrimination. Id. Elsewhere in her memorandum Plaintiff submits that, by utilizing different metrics, such as VPG, she would be found to be meeting expectations. For example, she points to her over $2700 VPG for the week of February 17 through 23, 2020, as placing her as “number 2 on the elite alternate lineup,” a metric devised by Gibbs to determine the order in which sales executives gave tours to potential customers. Pl. Mem. 15; Pl. ex. 17, ECF No. 56-6 at 26.
In considering Defendant's argument that Plaintiff cannot show she was meeting legitimate expectations, the court notes that the “meeting reasonable expectations” prong is not always especially apt in the context of a furlough or RIF:
Recognizing that it may be difficult to demonstrate the qualifications of the replacement in the context of a mass reduction in force (“RIF”), because the position may have been absorbed or combined with other positions, the Fourth Circuit has indicated that the elements of the prima facie case may be slightly modified in a RIF case. See Corti v. Storage Tech. Corp., 304 F.3d 336, 340 n.6 (4th Cir. 2002). The Fourth Circuit has described the variation of the prima facie case in the context of a RIF as follows: “1) [plaintiff] was protected under [the statutory scheme, there Title VII], 2) she was selected from a larger group of candidates, 3) she was performing at a level substantially equivalent to the lowest level of that in the group retained, and 4) the process of selection produced a residual work force that contained some unprotected persons who were performing at a level lower than that at which the plaintiff was performing.” Corti, 304 F.3d at 340 n.6; cf. Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315 (4th Cir. 1993) (applying the RIF prima facie standard in an ADEA case). The final element of the prima facie case may also be satisfied by showing “some other evidence indicating that the employer did not treat [the protected class] neutrally” when reducing the force. Herold v. Hajoca Corp., 864 F.2d 317, 319 (4th Cir.) (citing E.E.O.C. v. W. Elec. Co., 713 F.2d 1011, 1014 (4th Cir. 1983)).Grochowski v. Sci. ApplicationsInt'lCorp., No. CIV.A. ELH-13-3771, 2015 WL 5334051, at *13 (D. Md. Sept. 11, 2015). While neither party used the RIF-specific formulation, the prima facie framework is meant to be a flexible one. The undersigned finds the RIF-specific formulation informative when considering Plaintiff's relative qualifications and in considering whether Plaintiff has set out evidence from which one might make a reasonable inference of discrimination.
The precise formulation of the required prima facie showing will vary in “differing factual situations,” McDonnell Douglas, 411 U.S. at 802 n.13, and the elements were “never intended to be rigid, mechanized, or ritualistic,” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
Although Plaintiff's focus is not specifically on the third and fourth prongs of the prima facie case, her position includes two themes: Defendant improperly used the net-close-percentage metric and should have used the VPG metric; and Defendant's net-close-percentage charts were not used in an even-handed, neutral manner.
In arguing VPG, not closing-percentage, was the metric that should have been utilized, Plaintiff notes that the Sales Executives' monthly sales numbers were evaluated using either closing percentages or VPG. Plaintiff claimed that her accolades from clients and her higher VPG that allowed her more tours demonstrated her excellence. This is unavailing. Although Plaintiff may have preferred that VPG be the metric used, the evidence is that closing percentages were also a metric utilized prior to the furlough and eventual RIF. Management determined the closing percentage was the most appropriate metric, noting it accounted for the number of “yeses,” (or actual sales). See Riley Dep. 20, 25, 34, 49; Gibbs Dep. 20-21; Gorby Dep. 31. While it is true that, after the determination to utilize the closing percentage numbers had been made, Gibbs “misspoke” in a text exchange with Plaintiff and told her VPG was the relevant metric, there is zero evidence that VPG was actually used in making return-to-work decisions as to Action Line Sales Executives. The undisputed evidence is that the furlough, phased call-back, and RIF decisions were made based on closing percentages. This evenhanded use of a metric that was one of several already being used pre-pandemic was appropriate. There is no inference of discrimination when an employer adheres to neutral, established policies and procedures for a RIF. Dugan v. Albemarle Cnty. Sch. Bd., 293 F.3d 716, 722 (4th Cir. 2002). Indeed, “it is within the employer's purview, in implementing a RIF, to analyze its employees' performance and determine, without utilizing any protected characteristic, who must be terminated.” Marshall v. AT&T Mobility Servs., LLC, No. 3:17-CV-1577-CMC, 2019 WL 1274723, at *4 (D.S.C. Mar. 20, 2019), aff'd, 811 Fed.Appx. 849 (4th Cir. 2020); see also Rowe v. Marley Co., 233 F.3d 825, 831 (4th Cir. 2000) (“The decision to discharge [the plaintiff] and retain [others] is the kind of business decision that we are reluctant to second-guess.”).
Plaintiff's challenges to the application of the closing-percentage metric in determining who returned to work and who was terminated are similarly unavailing. In large measure, these challenges seem to conflate the six-month and 12-month lookback spreadsheets. Specifically as to her ADEA claim, Plaintiff submits that “Mr. Josh Grodnitzky and Mr. Wernig [] were returned in the first phase when their numbers were less than others. Mr. Grodnitzky was ranked lower than the Plaintiff.” Pl. Mem. 28. However, review of the 6-month lookback spreadsheet indicates Wernig had a 15.85% net close average, Grodnitzky had a 12.00% average, and Plaintiff had a 9.38% average. Pl. ex. 44, ECF No. 51-5 at 49. It is true that Grodnitzky's average on the 12-month lookback was 8.55%, lower than Plaintiff's 8.82%. Pl. ex. 42, ECF No. 42 at 43. As noted by Defendant, though, the expansion of the lookback period by six-months would necessarily alter the numbers for the sales executives, thereby potentially altering their relative rank. Def. Reply 2. While it may be a bit confusing that Defendant's spreadsheets maintain the already-returned group of sales executives in the 12-month lookback spreadsheet, it does not suggest discrimination. See Marshall, 2019 WL 1274723, at *6 (noting the change of RIF policies is a “business decision the court will not second-guess.” (citing Rowe, 233 F.3d at 831; Sagar v. Oracle Corp., 914 F.Supp.2d 688, 695 (D. Md. 2012)). Defendant consistently applied the six-month metric in determining which employees initially would be returned from furlough. Defendant's decision to change the metric to a 12-month window for those remaining on furlough in deciding whom to recall and whom to terminate was applied evenhandedly. Plaintiff has not demonstrated that Defendant somehow “picked and chose” based on age (or any other protected characteristic). When considering the appropriate spreadsheet no sales executive with net closing percentages lower than Plaintiff was recalled from furlough (six-month lookback list) or later returned to work (12-month list).
Finally, Plaintiff briefly submits Defendant improperly “bumped” three individual males. Pl. Mem. 28.This seems to refer to Staggs, Platt, and Marshall-three Action Line Sales Executives who recently had been promoted out of the line. In making furlough and termination decisions, management determined it was appropriate that Staggs, Platt, and Marshall be included in the ranking of all Action Line Sales Executives and their sales percentage would be considered the same as other sales executives. See May 4, 2020 Plan, ECF No. 56-7 at 18. Plaintiff submits this ran afoul of the “no bumping” policy set out in the furlough and termination letters. Significantly, however, Plaintiff has provided no law or analysis explaining how the consideration of these employees, based on their own sales percentages as calculated for the same timeframe as Plaintiff's, would run afoul of the ADEA (or other statute). While Plaintiff does not even reference their ages, the court notes they are 57, 41, and 54. Plaintiff was 58. ECF No. 51-10 at 10. Plaintiff has not provided evidence from which discrimination could be inferred.
Plaintiff notes the furlough and RIF letters indicated there would be no “bumping rights.” As Defendant notes, this language is included in such letters to comply with the WARN Act and its regulations, 29 U.S.C. § 2101, et seq.; 20 C.F.R. § 609, and relates to “bumping rights” sometimes in effect based on collective bargaining agreements. Reply 4. Similarly, the United States Department of Labor's “WARN Advisor” defines “bumping rights” as follows: “In a seniority system, the rights of workers with greater seniority whose jobs are abolished to replace (bump) workers with less seniority so that the worker who ultimately loses his/her job is not the worker whose job was abolished.” https://webapps.dol.gov/elaws/eta/warn/glossary.asp?p=Bumping%20Rights (last visited Jan. 21, 2023).
At bottom, Defendant has set forth undisputed evidence that it consistently applied the same neutral metrics in making decisions as to whom to return from furlough and in determining who would be terminated. Plaintiff has set forth no evidence from which an inference of discrimination could be made. Summary judgment is appropriate as to Plaintiff's ADEA discrimination claims.
Furthermore, even if it is assumed, arguendo, that Plaintiff has satisfied her prima facie case, the undersigned is of the opinion she has not established pretext.
Defendant has proffered a legitimate, nondiscriminatory reason for Plaintiff's discharge- that a furlough and ultimately a RIF were required and that Plaintiff was dismissed based on her relatively low net sales averages based on neutral data management determined it would use. No doubt, an employer's business decision for a RIF may be a legitimate, non-discriminatory reason for an employee's termination. See generally Conkwright, 933 F.2d 231 (RIF established legitimate nondiscriminatory business reason for plaintiff/employee's discharge that plaintiff did not overcome with showing of pretext); Marshall, 2019 WL 1274723, at *6 (same) Davis v. Centex Homes, No. CA 4:09-830-RBH-SVH, 2011 WL 1525764, at *4 (D.S.C. Apr. 1, 2011), report and recommendation adopted sub nom. Davis v. Centex Int'l II LLC, No. 4:09-CV-00830-RBH, 2011 WL 1526928 (D.S.C. Apr. 20, 2011). Here, Plaintiff does not question whether Defendant has put forth a legitimate, nondiscriminatory reason for her furlough and termination. Pl. Mem. 22 (citing cases, including Conkwright, and acknowledging, “Thus, as a general matter, Defendant[] [has] stated a lawful and legitimate reason for terminating Plaintiff-through the implementation of a reduction-in-force policy during challenging economic times.”).
Rather, Plaintiff argues she has shown pretext based on “how the Reduction in Force was applied and substantiated by the Defendant[].” Pl. Mem. 24. Plaintiff's arguments as to pretext essentially are the same ones discussed above in connection with her prima facie case. She submits that Defendant's “proffered reason for including the Plaintiff in the termination list is invalid. The Defendant[] instituted a [lay] off but refused to apply the RIF across the board and did not follow the numbers but granted exceptions and brought back who they wanted in the order they wanted.” Pl. Mem. 24-25.
As more fully discussed above, the undersigned has considered Plaintiff's arguments and evidence and is unpersuaded. At bottom, Defendant has the right to analyze performance and create RIF criteria and metrics as it sees fit. The court is not in the business of micro-managing these details. Plaintiff's own focus on different metrics (VPG) from different timeframes notwithstanding, Defendant has shown it utilized a net close percentage metric across the board in deciding who would be subject to the RIF. See Rowe, 233 F.3d at 831 (“The decision to discharge [plaintiff] and retain [other employees] is the kind of business decision that we are reluctant to second-guess.”); Mazur-Taylor v. S.C. Dep't of Pub. Safety, No. 3:04-23291-CMC-JRM, 2006 WL 2052055, at *7 (D.S.C. July 20, 2006) (quoting Rowe and finding no pretext in RIF situation, albeit based on different, fact-specific arguments by employee as to whether her being included in RIF was pretext for discrimination).
Defendant presented cogent business reasons for using the net closing percentage and not the VPG metric. Gibbs, Riley, and Gorby indicated the net closing metric better accounted for actual sales, or, as they termed it, the number of “yeses” a Sales Executive was able to get from potential customers. E.g., Gibbs Dep. 21; Riley Dep. 20; Gorby 31. See Small v. N.C. A&TState Univ. No. 1:13CV248, 2014 WL 4105406, at *13 (M.D. N.C. Aug. 20, 2014) (“It is well-established that in employment discrimination cases involving a reduction in force, it is not the court's duty to second guess the business judgment of the defendant's employees or managers or the manner in which the reduction in force is carried out”). Defendant also explained the expansion to the 12-month lookback period took South Carolina's seasonal sales fluctuations into account. Riley Dep. 16, 22-23.
Regarding Plaintiff's focus on Gibbs' August 21-22, 2020 text message exchange with her in which he “misspoke” and indicated to her that VPG had been the applicable metric, the undersigned is of the opinion this does not indicate pretext. While “[t]he fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext,” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir. 2002), the record does not support this claim by Plaintiff here. Rather, the undisputed evidence is that the net sales percentage metric was actually used for Action Line Sales Executives. Plaintiff has made it clear that she believes VPG should have been used. However, nothing in the record-including numerous emails and spreadsheets, both internal and provided to the EEOC-indicates Defendant ever actually utilized the VPG metric for Action Line Sales Executives at Ocean Enclave. Plaintiff has acknowledged the net sales percentage was used, her confusion in comparing the six-month and 12-month lookback charges notwithstanding. The minor inconsistency found in Gibbs' informal text message to Plaintiff, sent after the metrics had been determined and utilized, would not permit a factfinder to infer pretext See generally Cole v. Fam. Dollar Stores of Md., Inc., 811 Fed.Appx. 168, 173, n.2 (4th Cir. 2020) (finding no pretext and affirming grant of summary judgment of ADEA claim despite employer's “different analyses of the number of her absences at different stages,” noting employer had “consistently represented that Cole was fired for absenteeism”).
Finally, Plaintiff argues she has demonstrated pretext based on the content of a list of employees Defendant provided during discovery in this matter that included the ages of 17 employees who were terminated. Plaintiff submits that the individuals included on the list as terminated “did not include Plaintiff because she was hired in 2017.” Pl. Mem. 28. In support, Plaintiff references her exhibit 5, deposition exhibit 13, page 82; and her exhibit 7, exhibit 33, page 11. Id. at 29 n.84. While these citations make it somewhat difficult to determine the specific pages on which Plaintiff is focused, it appears they are a spreadsheet that includes pages found at ECF No. 56-6 at 23 and ECF No. 56-8 at 11, both of which are copies of a spreadsheet bates-numbered as Def493. Plaintiff has provided no context to explain what this spreadsheet purports to represent. Additionally, it is noted that the column showing “initial hire dates” includes several entries of individuals hired in 2017. In any event, the court will not endeavor to interpret this out-of-context spreadsheet. Plaintiff has not demonstrated pretext based on this vague argument. The court further notes that the spreadsheets provided to the court with Meldeau's declaration include the ages, genders, and races of all of the listed sales executives. ECF No. 51-10. Without more context, Plaintiff cannot be said to have set out facts from which a factfinder could determine pretext.
At bottom, Plaintiff has not provided evidence or argument indicating a jury question exists as to whether the Defendant considered performance metrics in such a manner to hide Defendant's alleged improper reasons for including her in the furlough and for terminating her. Plaintiff has not established pretext. Summary judgment is appropriate as to her ADEA claim.
c. Title VII discrimination claims (national origin and gender)
Defendant also seeks summary judgment as to Plaintiff's Title Vil-based discrimination claims based on national origin and gender. In large measure, each of these causes of action is based on the same general line of argument fully discussed in connection with the ADEA claim, i.e., Plaintiff argues the manner in which the furlough and RIF were effected was discriminatory to her based on her national origin (Caucasian) and her gender (female). As her overarching arguments and challenges to the use of net close percentages in determining who would be furloughed and then terminated are discussed in detail above, no detailed additional analysis on those points is required. Summary judgment should be granted as to Plaintiff's Title VII discrimination claims based on national origin and gender.
As pointed out by Defendant, Plaintiff's claim of national origin discrimination seems to hinge on her treatment by Gibbs, whom she believed to be of middle-eastern descent. She submits that both Kumar and Dahabani-whose nationality she does not know for sure-were treated more favorably than Caucasians such as Plaintiff. Pl. Dep. 63-66, 70, 72, 74. See Def. Mem. 16. Gibbs testified that he was actually “French Canadian and Caucasian.” Gibbs Dep. 38. Additionally, one of Plaintiff's purported comparators, Kumar, was a T.O. and was not ranked in comparison to Plaintiff. Dahabani, a fellow Action Line Sales Executive, was not returned in the initial wave. At that time, based on the six-month lookback, his net close percentage was 7.14%. Based on the 12-month metric, Dahabani was returned as his net close percentage was 9.29% (as compared to Plaintiff's 8.82%).
Plaintiff has not set out evidence from which an inference of discrimination may be made, nor has she demonstrated pretext of discrimination based on her national origin. Defendant neutrally applied business-based metrics as to the furlough and termination of Plaintiff and other Action Line Sales Executives. Summary judgment is appropriate as to her national origin discrimination claim.
As to Plaintiff's gender discrimination claim, Plaintiff asserts “other males were returned to work ahead of her because the Defendant chose to do so.” Pl. Mem. 30. Plaintiff also indicates the “graphs provided by the Defendant show that an individual male was returned in the first phase before the Plaintiff who had worse numbers than the Plaintiff.” Id. at 31. Plaintiff does not point to specific comparators for whom she claims this is the case. As discussed above, Defendant's neutral application of its six-month and 12-month lookback metrics based on net close percentages did not result in a male being returned to work who had a lower percentage than Plaintiff. Plaintiff has not set out evidence that the furlough or RIF decisions were made in a manner to favor males.
Defendant also notes Plaintiff attributes sexual animus to Kumar, her female T.O. Plaintiff testified she believed Kumar favored assisting male sales executives when making rounds on the sales floor to show inventory to customers. Def. Mem. 18 (citing Pl. Dep. 77). Defendant points out, though, that Kumar was not in management and that Plaintiff was one of only two females on T.O. Kumar's team. Pl. Dep. 31, 106. Defendant submits, then, that Plaintiff has set out no non-furlough/RIF basis for a viable gender discrimination claim. In opposing summary judgment Plaintiff makes no effort to pursue these non-furlough/RIF claims and has abandoned them.
Plaintiff has not provided evidence from which a reasonable factfinder could determine furlough and termination decisions were made in a way that gender was taken into account, nor has she submitted other evidence of gender-based discrimination. Summary judgment is appropriate as to Plaintiff's claims of Title VII discrimination based on gender and national origin.
d. Retaliation claims
Defendant also seeks summary judgment as to Plaintiff's retaliation claims. To establish a prima facie case of retaliation, Plaintiff must show that (1) she engaged in protected activity; (2) her employer took adverse action against her; and (3) a causal relationship exists between the protected activity and the adverse action. Foster v. Univ. of Md. E. Shore, 787 F.3d 243, 250 (4th Cir. 2015). Similar to the framework for the discrimination claims discussed above, if Plaintiff establishes a prima facie case the burden shifts to Defendant to articulate a legitimate nonretaliatory reason for the adverse action(s). If Defendant does so, the burden returns to Plaintiff for her to prove that the reason offered was merely a pretext for unlawful retaliation. Id. In the retaliation context, Plaintiff must prove that the “unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013).
The court first considers Plaintiff's protected activities. In her Amended Complaint, Plaintiff avers she was “permanently laid off from work” as a result of her “complaints regarding Sex, National Origin, Age and disability discrimination to management.” Am. Compl. ¶ 111. In response to Defendant's interrogatory as to what Plaintiff's “complaints” were, she identified the following: complaints regarding post-recission chargebacks (related to sales commissions and the subject of Plaintiff's SCPWA claim); complaints regarding the exclusion of Sales Executives in holiday festivities; complaints regarding other Sales Executives' inappropriate Facebook posts; complaints “of New Management's refusal to return Plaintiff and Plaintiff's spouse to work after the Pandemic in May of 2020.” Pl.'s Resps. to First Set of Interrogs. No. 16. ECF No. 51-12.
Defendant correctly submits that none of these claims other than the one concerning the failure to be returned to work could potentially be considered protected activity based on age, gender, national origin, or disability status. Def. Mem. 21-22. Defendant notes, however, that Plaintiff has proffered no documents or testamentary evidence tying any internal complaints to her age, gender, national origin, or disability status. Def. Mem. 22. In her deposition testimony, Plaintiff notes that she texted and called Gibbs and wrote a letter to HGV, referring to the August 23, 2020 letter Plaintiff wrote to Hilton Resorts Corporation. Pl. Dep. 39; Aug. 23, 2020 Letter, ECF No. 51-5. However, nothing in that letter or in the texts to Gibbs complain that she (or her husband) was not being returned to work based on any protected characteristic. Rather, the letter (and texts) complain more generally that Plaintiff and her husband wanted to be returned to work and believed they were being “treated differently” because the “new management staff did not hire [them]” and was “looking for a reason to not allow [them] to return and not giving [them] sufficient information as to the WHY.” Aug. 23, 2020 Ltr. 3.
In responding to summary judgment, Plaintiff acknowledges she is not looking to the wage complaint or other general complaints. Rather, she again points to her “several complaints [made] internally” as to the way she and her husband were treated in not being returned to work. Pl. Mem. 32. However, to be considered protected activity, the complaint must relate to actions the employee reasonably believed to be improper under specific discrimination statutes. Perry v. Maryland, No. CV ELH-17-3619, 2019 WL 2177349, at *9 (D. Md. May 17, 2019) (“Critically, the employee's complaints have to relate to a discriminatory employment practice, because” general complaints of unfair treatment are not protected.). Plaintiff does not explain how the August 23, 2020 Letter or the texts include any specific complaints that could be construed as complaints related to differential treatment based on age, national origin, gender, or disability status. Accordingly, the undersigned is of the opinion the August 2020 text and letter are not protected activity for purposes of a prima facie retaliation claim under the ADEA, Title VII, or the ADA.
Even if the August 21-22, 2020 text exchange with Gibbs or the August 23, 2020 letter were considered protected activity, Plaintiff cannot show causation because the business determination to use the net close percentage metric predated them.
Plaintiff appropriately refers to her October 2020 EEOC Charge as protected activity. Pl. Mem. 32. Construing all evidence in the light most favorable to Plaintiff, Plaintiff's counsel sent Riley a letter on September 23, 2020 that included a copy of the EEOC Charge that was later filed on October 6, 2020. ECF No. 56-26. The First Charge included allegations related to gender, national origin, age, and disability. ECF No. 56-1.
As noted above, it is unclear whether the Second Charge was filed with the EEOC. In any event, the court notes Defendant's counsel addressed Plaintiff's termination in setting forth Defendant's position to the EEOC.
The September 2020 letter and charge predate the October 16, 2020 letter sent to Plaintiff advising her that she was being terminated effective October 31, 2020. However, the undisputed evidence is that Defendant had already made its business decisions to utilize the net close percentage as the nondiscriminatory metric by which it would determine who would be returned to work. The initial determination to utilize a six-month lookback in determining the first wave of sales executives to be returned from furlough took place around March 26, 2020. Mar. 26, 2020 email from Riley to DeLorenzo, ECF No. 51-5 at 41 (indicating the metric for Action Line reps would be a six-month lookback of their relative net close percentages). The decisions regarding the multi-phased reopening (using the 12-month lookback and eventually leading to the RIF that included Plaintiff) were made in early May 2020. Riley Dep. 16, 22-23; Gibbs Dep. 28; see ex. 2 to Def. Position Statement to EEOC, ECF No. 56-11 at 26 (indicating data for the report of 12-month lookback from March 20, 2019 through March 19, 2020 was last updated on May 1, 2020); May 6, 2020 email from Riley to Gorby, Dellis, Gibbs, and others discussing plans for phased return of additional Sales Executives). Plaintiff cannot demonstrate prima facie causation when the protected activity post-dates the allegedly retaliatory decision. Accordingly, Defendant's request for summary judgment on Plaintiff's retaliation claim could be granted on this ground alone.
The court notes, though, if considering the adverse action not to have taken place on October 16, 2020, the date of the RIF/termination letter to Plaintiff, she arguably has demonstrated causation based on temporal proximity to the September 23, 2020 date counsel informed Defendant of Plaintiff's plan to file the EEOC Charge. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (finding “very close” temporal proximity between protected activity and adverse action provides prima facie causation). Even assuming, arguendo, Plaintiff could establish her prima facie case, she cannot demonstrate pretext. As discussed above in connection with Plaintiff's ADEA discrimination claim, Defendant's business decisions regarding the use of the net close percentage metric was legitimate, and nothing submitted by Plaintiff presents any question of pretext. In addition, in the retaliation context Plaintiff would be required to demonstrate that retaliation was the “real reason” for her termination. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015). Plaintiff has offered no evidence of this sort. Summary judgment is appropriate as to Plaintiff's retaliation claims.
e. Hostile work environment claim
Plaintiff's final federal-law-based claim to be considered is her claim that she was subject to a hostile work environment. Am. Compl. ¶¶ 122-32. A hostile work environment exists “[w]hen 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, 22 (1993). In determining whether a hostile work environment exists, courts must examine the totality of the circumstances, including “‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'” Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris, 510 U.S. at 23).
To survive summary judgment on this claim, Plaintiff must proffer evidence that: (1) she experienced unwelcome harassment; (2) the harassment was based on her age (or other protected characteristic or action); (3) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. See Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). The severity and pervasiveness of harassment is assessed “from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal quotation marks omitted).
In her Amended Complaint, Plaintiff submits she was subject to a hostile work environment when T.O.s would go to male team members' tables before assisting her. Am. Compl. ¶¶ 39-40, 42-44. She also alleges she was subjected to “inappropriate commentary” regarding her gender and referencing her sex life with her husband. Id. ¶ 38. In her deposition, Plaintiff submitted HGV was a “good old boys club” that was run by a “West Virginia boy who is a sexist.” Pl. Dep. 106.
Defendant submits Plaintiff's allegations do not indicate harassment based on gender (or any protected activity), nor has she demonstrated the complained-of behavior was so severe or pervasive that it altered the terms of her employment and created an abusive work environment. Def. Mem. 26-28 (citing cases).
In response, Plaintiff does little more than cite hornbook-type law concerning a hostile work environment. Pl. Mem. 33-34. The only analysis she offers is to state the following:
In this case the Plaintiff was subjected to discriminatory actions, refused to be returned to work and terminated from her employment for filing a charge of discrimination. The Plaintiff has presented evidence of a severe and pervasive work environment when one looks at the totality of the circumstances that the Plaintiff was subject to work with Gorby, Gibbs and Riley.Pl. Mem. 34.
The undersigned agrees with Defendant that Plaintiff has not set out evidence of conduct so severe or pervasive so as to impact Plaintiff's terms of employment. Regarding complaints about T.O. Kumar's favoring males, for instance, Plaintiff acknowledged she made sufficient sales with Kumar and other T.O.s to “live[] a nice lifestyle.” Pl. Dep. 79, 81. Further, Plaintiff has provided no specific allegations of harassment tied to her age, national origin, or disability. Plaintiff's generalized distaste for working with Gorby, Gibbs, and Riley is not the stuff of which hostile-work-environment claims are made. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d at 765 (allegations of a “workplace dispute” and “some perhaps callous behavior by her superiors” do not amount to the “type of severe or pervasive gender, race, or age based activity necessary to state a hostile work environment claim”). Further, to the extent Plaintiff claims her termination was related to the alleged hostile work environment, she has not demonstrated the requisite but-for causation. Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998) (“To establish a hostile environment claim, Causey must show that ‘but for' his race or age, he would not have been the victim of the alleged discrimination.”).
Summary judgment is appropriate as to Plaintiff's hostile work environment claim.
B. S.C. wage claim
Plaintiff also asserts a state law claim for violation of the SCPWA, SC Code Ann. § 4110-10, et seq. When removed, Plaintiff's federal-law-based claims gave this court supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367(c)(3). Section 1367(c)(3) of Title 28 provides, in pertinent part, “[t]he district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction. . . .” The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966); Revene v. Charles Cnty. Comm 'rs, 882 F.2d 870, 875 (4th Cir. 1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claim. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand because the remaining claim is a quintessential state law question. In United Mine Workers of America v. Gibbs, 383 U.S. at 726, the Supreme Court cautioned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law . . . . if the federal law claims are dismissed before trial . . . the state claims should be dismissed as well.” Accordingly, should the district judge accept the recommendation with respect to Plaintiff's federal claims, it is recommended that the court decline to exercise jurisdiction over the remaining state law claim. See ECF No. 63 in Jeffrey L. Helms v. Hilton Resorts Corp., d/b/a Hilton Grand Vacations, and Hilton Grand Vacations, LLC, 4:21-cv-3266-JD-TER (D.S.C. Jan. 17, 2023) (after recommending summary judgment as to federal-law-based claims brought by Plaintiff's husband based on theories and facts similar to Plaintiff's herein, recommending the court decline to exercise supplemental jurisdiction over SCPWA claims). Because Plaintiff filed this matter in state court, it would be appropriate for the remaining claims to be remanded to the Horry County Court of Common Pleas. “[A] district court has inherent power to dismiss the case or, in cases removed from State court, to remand, provided the conditions set forth in § 1367(c) for declining to exercise supplemental jurisdiction have been met.” Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir. 2001); see Nowlin v. Dodson Bros. Exterminating Co., Inc., No. 4:18-CV-0480-SAL, 2020 WL 2306610, at *6 (D.S.C. May 8, 2020) (quoting Hinson and declining to exercise supplemental jurisdiction over state law claims and noting remand of such claims is appropriate in claims originally filed in state court).
IV. Conclusion
For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 51, be granted as to Plaintiff's Title VII, ADEA, and ADA causes of action, and the court decline to exercise jurisdiction over Plaintiff's state law claim and remand the remaining claim to the Court of Common Pleas, Horry County, South Carolina.
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.”