Opinion
C. A. 6:20-cv-03959-DCC-JDA
06-02-2022
Mitchell D. Hightower, Plaintiff, v. G.B. Shoes, Houser Shoes, Defendants.[1]
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Defendants' motion for summary judgment. [Doc. 85.] Proceeding pro se, Plaintiff alleges claims for employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act of 1990 (“ADA”). [Doc. 1-4 at 3.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff brought suit in this Court on November 12, 2020. [Doc. 1.] On March 15, 2022, Defendants filed a motion for summary judgment. [Doc. 85.] The next day, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 86.] Plaintiff filed a response in opposition on April 14, 2022; Defendants filed a reply on April 21, 2022; and Plaintiff filed a sur-reply on April 27, 2022. [Docs. 88; 90; 92.] Accordingly, the motion is now ripe for review.
BACKGROUND
Viewed in the light most favorable to Plaintiff, the summary judgment record reveals the following facts.
Defendants operate several shoe stores, including one on Pleasantburg Drive in Greenville, South Carolina. [Docs. 85-2 at 3; 88-4 at 13.] Plaintiff applied for a job with Defendants on or about March 22, 2019. [Doc. 85-2 at 27-28.] Ben Justice was the manager at the Pleasantburg Drive store, and Jonathan Rathert was his district manager. [Id. at 55-56; Doc. 85-3 at 4-5.] When Plaintiff applied, Justice was on medical leave, so Plaintiff interviewed with Rathert, and Rathert hired him as a part-time sales associate the same day. [Docs. 85-2 at 28-29, 33, 44-45, 58; 88-2 at 33-34.] Regarding his hours, Plaintiff told Rathert he “couldn't work that much.” [Doc. 85-2 at 34-35.]
Plaintiff began his job with Defendants on March 25, 2019. [Id. at 4.] During his first two weeks, he worked 31.56 and 23.59 hours respectively without voicing any complaint. [Id. at 44-46, 67.] The week beginning April 8, he worked 25.44 hours. [Id. at 46, 67.] Around the middle of April 2019, Justice returned to work. [Id. at 45; Doc. 88-2 at 33.] As the store manager, Justice generally completed the daily shift schedules, a task that fell to the assistant managers and Rathert in Justice's absence. [Doc. 85-3 at 3-4.] On April 12, 2019, Plaintiff left Justice a note stating that Plaintiff had a “medical condition,” for which he could provide documentation if needed, and he could not work more than 25 hours in a week. [Doc. 85-2 at 47-48, 94.] In every subsequent week during his employment Plaintiff worked less than 25 hours, but he had to remind Justice to make the appropriate adjustment each week to the schedules Justice had prepared. [Id. at 39-56,67.] The weeks beginning April 15, 22, and 29, Plaintiff worked 24.89, 20.78, and 15.68 hours, respectively. [Id. at 48-49, 67.] However, on May 3, 2019, Plaintiff left Justice a note that read, “‘Official Two Weeks' notice from Mitch Hightower, Friday, May 3rd.” [Id. at 38-39, 88.]
The following Monday, May 6, 2019, Plaintiff questioned Justice about why he could not be given 20 hours to work every week. [Doc. 88-3 at 30-42.] Justice told Plaintiff that he had hired someone after Plaintiff gave notice and that he was giving Plaintiff the hours that he had available to give. [Id.] Plaintiff did not come back to work after that day. [Docs. 85-2 at 4, 67; 88-2 at 25, 34.]
Plaintiff filed a charge of discrimination with the EEOC (“the Charge”) on April 2, 2020, and the EEOC issued a Notice of Right to Sue letter in August 2020. [Doc. 1-5 at 2; Doc. 85-2 at 68-69.] He alleged discrimination based on sex and disability, and he listed the latest date that discrimination took place as May 8, 2019. The Charge stated, in relevant part:
I began my employment with GB Shoes as Sales Representative in March of 2019. In 2007, I was in an accident that caused me to be left with a medical condition. Due to my medical condition I could not work more than 25 hours a week. I notified Ben Justice, General Manager, Male, of my disability and the conditions I needed to work under. He told me that I needed to notify my district manager of this. I created an agreement with Johnathan (last name unknow[n]), District Manager, Male, that I would not work more than 25 hours a week and I would get proper breaks. Ben continued to schedule me 30-40 hours a week and I complained. He responded to my complaint by saying, my hip hurts too and I have to work 50 plus hours, so why can you not work?. After I complained, I was only given the leftover hours. I had a female coworker who had a disability and was not put through the same stress as I was and was given 15-20 hours a week.
On May 6, 2019, I put in my two weeks notice and Ben told me it would not go into effect until 3 weeks after.[Doc. 85-2 at 68.]
In the present action, Plaintiff alleges claims of gender/sex discrimination under Title VII and disability discrimination and retaliation under the ADA. [Doc. 1-4 at 3-4.] For his relief, Plaintiff seeks money damages in the amount of $30,000. [Id. at 6.]
On August 9, 2021, the Honorable Donald C. Coggins, Jr., dismissed a claim by Plaintiff for Title VII retaliation without prejudice. [Doc. 49; see Doc. 38.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Defendants contend that Plaintiff has failed to forecast evidence creating a genuine dispute of material fact concerning whether Defendants violated either Title VII or the ADA. [Docs. 85-1 at 10-20; 90.] The Court agrees. The Court will address these claims seriatim.
Defendants also argue that they are entitled to summary judgment as to both Plaintiff's Title VII and his ADA claims on the basis of failure to exhaust within the applicable limitations period. [Doc. 85-1 at 8-10.] The Court concludes that this argument has been waived. See Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1849, 1851 (2019) (“Title VII's charge-filing requirement is a processing rule, albeit a mandatory one,” and it “may be forfeited if the party asserting the rule waits too long to raise the point.”) (internal quotation marks omitted); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (“[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”). Defendants did not plead that defense in their Answer [Doc. 26], nor did they assert it in their prior motion for partial dismissal, in which they argued that Plaintiff did not exhaust his administrative remedies with regard to his Title VII retaliation claim [Doc. 28]. Rather, Defendants have raised this defense for the first time in their motion for summary judgment, over a year after the case was filed, and over three months after the passing of the discovery deadline [Doc. 62]. As such, the Court does not recommend granting summary judgment on the basis of failure to exhaust.
Title VII Claim
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Absent direct or circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor motivated an employer's adverse employment action, a plaintiff may proceed under the McDonnell Douglas “pretext” framework to establish claims of employment discrimination. Diamond v. Colonial Life & Acc. Ins. Co., 417 F.3d 310, 318 (4th Cir. 2005) (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2003)). Under this framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993) (citing Tex. Dep'tof Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804.
To establish a prima facie case of discrimination under Title VII, a plaintiff must demonstrate (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was performing his job duties at a level that met the employer's legitimate expectations at the time of the adverse employment action; and (4) other employees who are not members of the protected class did not suffer the adverse employment action under similar circumstances. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002); see also EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n.2 (4th Cir. 2001) (“What is critical with respect to the fourth element is that [he suffered the adverse employment action] under circumstances which give rise to an inference of unlawful discrimination.”) (internal quotation marks omitted).
Plaintiff apparently bases his sex discrimination claim on the allegation that Defendants gave a disabled female employee a consistent 15-to-20-hour-per-week schedule, whereas Defendants refused to regularly schedule Plaintiff for his preferred number of 20-25 hours. [Docs. 1-4 at 3-5; 85-2 at 68.] Defendants contend that Plaintiff has not forecasted evidence that could satisfy the fourth element of his prima facie case regarding this claim. [Docs. 85-1 at 18-20; 90 at 3-4.] The Court agrees.
When a plaintiff bases his discrimination allegations solely upon a comparison to a particular employee of a different sex, as Plaintiff does here, the plaintiff is “required to show that [the plaintiff is] similar in all relevant respects to [his] comparator.” Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010). Plaintiff's manager, Ben Justice, testified that the number of hours he could give Plaintiff in a particular week depended upon the number of full-time employees, the number of part-time employees and their availability, and the specific events happening at the store that week. [Doc. 85-4 at 4, 6-7, 10.] He testified that Plaintiff was hired as a part-time employee and that such employees “are not provided a guaranteed number of hours of work.” [Id. at 5.] Justice explained that there was an “elderly, disabled lady many years before [Justice] began as Store Manager” who had been given a set schedule of 15 to 20 hours per week. [Id. at 10; see Doc. 88-2 at 38.] However, Plaintiff has forecasted no evidence about this woman that could support an inference that she was similarly situated to him. Without such evidence, Plaintiff cannot show that this woman was a valid comparator and cannot establish the fourth prong of his prima facie case. Haywood, 387 Fed.Appx. at 359. The Court thus recommends that Defendants' summary judgment motion be granted as to Plaintiff's claim of Title VII sex discrimination.
In Plaintiff's response opposing Defendants' summary judgment motion, Plaintiff states that he “would like to subpoena [an employee of Defendant's named] Keisha to verify . . . who also had a set schedule.” [Doc. 88-1 at 2.] To the extent that Plaintiff is requesting further discovery concerning a second possible comparator, the Court notes that the discovery deadline has long since expired [Doc. 62] and Defendants would be prejudiced were discovery reopened at this point. Accordingly, the Court recommends that Plaintiff's request for additional discovery be denied.
At Justice's deposition, Plaintiff played an audio recording of a conversation, apparently between Justice and Plaintiff, in which Justice told Plaintiff that the woman in question had been working for Defendants for 15 years and that she had retired and subsequently asked, five years before Justice's deposition, to return and work only two days a week because she had an artificial hip. [Doc. 88-3 at 29-39.] During the conversation, when Plaintiff asked Justice why this woman was consistently given the hours that she wanted, Justice explained that her particular hours, including the particular days of the week she worked, were agreed upon when she was hired. [Id. at 38-39.] The Court notes that Plaintiff has not forecasted any evidence that he was hired with the understanding that he would be guaranteed any particular number of hours. Nor has he forecasted evidence that anyone involved in the decision to hire the woman with the guarantee of a particular number of hours also was involved in Plaintiff's scheduling decisions. See, e.g., Hurst v. Dist. of Columbia, 681 Fed.Appx. 186, 193 (4th Cir. 2017) (affirming summary judgment against plaintiff where plaintiff failed to provide evidence that the person who made her employment decision was the same person who made the decision affecting her would-be comparators).
Plaintiff also asserts generally that the vast majority of employees at Defendants' surrounding stores were female, and he suggests that that fact is evidence of that he was treated differently based on his sex. [Doc. 88-1 at 5.] However, as discussed, Plaintiff has not proffered evidence that he was treated differently than any similarly situated employee. The Court also notes that in his response opposing Defendants' motion, Plaintiff makes reference to the fact that Justice testified that he did not believe he had ever hired an African-American male. [Id.] In fact, Justice testified he had previously hired an African-American man [Doc. 88-3 at 8], but, in any event, Plaintiff's Charge and Complaint do not allege that he was discriminated against because of his race [Docs. 1-4 at 5; 85-2 at 68], and he also has not forecasted evidence of racial discrimination.
ADA Discrimination Claims
The ADA makes it unlawful for an employer to “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. § 12112(a). Discrimination in this context includes refusing to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless . . . the accommodation would impose an undue hardship.” Id. § 12112(b)(5)(A).
The ADA provides that the term “disability” includes “a physical or mental impairment that substantially limits one or more major life activities”; “a record of such impairment”; or “being regarded as having such an impairment.” 42 U.S.C. § 12102(1).
Construed liberally, Plaintiff's Complaint alleges that Defendants discriminated against him by refusing to accommodate him when he informed them that he could not work more than 25 hours per week; by refusing, because of disability animus, to give him as many hours as he wanted to work; and by constructively discharging him based on disability animus. [Docs. 1-4 at 3-5; 85-2 at 68.] The Court will address these three theories seriatim.
Refusal to Accommodate
“[T]he McDonnell Douglas scheme of proof . . . appl[ies] to appropriate claims under the ADA.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). To establish a prima facie case under a failure-to-accommodate theory, a plaintiff must show “(1) that he was an individual who had a disability within the meaning of the statute; (2) that the [employer] had notice of his disability; (3) that with reasonable accommodation he could perform the essential functions of the position . . .; and (4) that the [employer] refused to make such accommodations.” Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (alterations in original) (internal quotation marks omitted).
Regarding Plaintiff's refusal-to-accommodate theory, Defendants argue that once Plaintiff requested not to have to work more than 25 hours, they did not require him to work more than that. [Docs. 85-1 at 11-12; 90 at 2-3.] On that basis, Defendants contend that Plaintiff has not forecasted evidence that they refused to accommodate his disability. [Docs. 85-1 at 11-12; 90 at 2-3.] The Court agrees.
As Defendants point out, the record shows that Plaintiff never worked more than 25 hours in any week that began after he requested that limit. [Doc. 85-2 at 39-51, 65-67.] With Plaintiff having forecasted no evidence that Defendants refused to accommodate his disability, the Court recommends that summary judgment be granted against Plaintiff on his ADA failure-to-accommodate claim.
Plaintiff testified that he repeatedly had to remind Justice, after he made the weekly schedules, to reduce his hours to no more than 25, but Plaintiff does not deny that Justice willingly accommodated his requests to reduce his scheduled hours. [Doc. 85-2 at 53-55.] The Court also notes that after Plaintiff left Justice the note on April 12, 2019, stating that Plaintiff had a medical condition and could not work more than 25 hours per week [id. at 47-48, 94], only three more schedules were made during Plaintiff's employment-for the weeks beginning April 22, April 29, and May 6. [Docs. 85-2 at 92-93; 88-2 at 35 (stating that Justice prepared his schedules on Mondays or Tuesdays for the following week, so that the schedule for the week beginning April 15 would have been prepared April 9 or 10).]
Plaintiff may also allege that Justice's repeated scheduling of Plaintiff for more than 25 hours is the result of Justice's disability animus against Plaintiff such that it could support a disability discrimination claim apart from any failure-to-accommodate theory. However, requiring Plaintiff several times to remind Justice to adjust his schedule does not rise to the level of an adverse action such as would be needed to establish the third element of a prima facie case of ADA discrimination. See Laird v. Fairfax Cnty., 978 F.3d 887, 893 (4th Cir. 2020) (“[F]or a discrimination claim [under the ADA], the adverse action must result in ‘some significant detrimental effect,' requiring more than a position that is ‘less appealing' to the plaintiff.”). In any event, especially given Justice's willingness to adjust the schedules to conform to Plaintiff's requested limitations whenever Plaintiff reminded him to do so, the Court concludes that Plaintiff has not forecasted evidence that Justice's initial schedules were the result of any discriminatory animus. The same is true regarding one occasion when Plaintiff contends his break was scheduled to occur at the end of the workday. [Doc. 88-1 at 5.] Plaintiff points to no evidence that he brought the issue to Justice's attention or that Justice refused to make an appropriate adjustment.
Scheduling Limitations
To establish a prima facie case of disability discrimination in violation of the ADA, a plaintiff must establish (1) that he was disabled for purposes of the ADA; (2) that he was a qualified individual for the job in question; and (3) that he was discharged or otherwise suffered an adverse employment action under circumstances that give rise to a reasonable inference of discrimination. McFarland-Peebles v. Va. Dep't of Motor Vehicles, 352 Fed.Appx. 848, 849 (4th Cir. 2009).
To the extent that Plaintiff argues he suffered discrimination in the form of not being allowed to work all of the hours that he would have preferred to work, Defendants argue that Plaintiff cannot satisfy the third element of his prima facie case because he has not forecasted evidence that Defendants' refusal to regularly give him the hours he wanted was causally related to disability animus. [Doc. 85-1 at 13.] The Court agrees.
As noted, Justice testified that the number of hours he could give Plaintiff in a given week depended upon the number of full-time employees, the number of part-time employees and their availability, and the particular events happening at the store that week. [Doc. 85-4 at 4, 6-7, 10.] Justice also testified that he told Plaintiff that if he regularly gave Plaintiff 20 hours, Justice would have “to find somebody to work an extra 10 or 15”; and that because Justice could not “get [any]body to come in . . . for 10 or 15 hours a week” and Plaintiff had given notice that he was resigning, Justice had “hired somebody to work 30 hours a week” and was willing to give Plaintiff “[w]hatever hours [Justice] ha[d] left.” [Id. at 15; see id. at 16, 18.] Plaintiff has not forecasted any evidence indicating that Justice was being less than candid or that disability-or any other animus, for that matter-played any role in his scheduling decisions. Accordingly, Plaintiff has not forecasted evidence sufficient to establish a prima facie case as to his scheduling-limitation claim. Additionally, Defendants' proffered reason for not regularly scheduling Plaintiff for all of the hours that he preferred was legitimate and nondiscriminatory, and, for the same reasons that Plaintiff cannot satisfy the third element of the prima facie case, Plaintiff has not forecasted evidence that Defendants' proffered reason was a pretext for disability discrimination. For all of these reasons, the Court recommends that Defendants' motion for summary judgment be granted as to Plaintiff's ADA discrimination claim based on his not being allowed to work all of the hours that he preferred.
In Plaintiff's deposition, he testified that Justice would comment whenever he took bathroom breaks. [Doc. 85-2 at 57.] Plaintiff also references these comments in his response opposing summary judgment, although the comments were not mentioned in his EEOC charge. [Id. at 68; Doc. 88-1 at 3.] Defendants argue Plaintiff has not forecasted evidence that any comments Justice made to Plaintiff regarding his bathroom breaks were causally related to discriminatory animus. [Doc. 85-1 at 13-15 .] The Court agrees. When asked if he had ever confronted Plaintiff when he went to the restroom or was sitting down on a break, Justice testified that he had told Plaintiff “more than once . . . [t]o let somebody know when [Plaintiff] was gone from the sales floor, especially if [Plaintiff was] the only one in the area.” [Doc. 85-4 at 4.] With Plaintiff having forecasted no evidence contradicting Justice's account, there is no basis in the record for any reasonable inference that the comments reflected anything more than concern by Justice that the sales floor be properly covered. The Court also agrees with Defendants to the extent they argue that Plaintiff has not forecasted evidence that the comments rose to the level of an adverse employment action [Doc. 85-1 at 13-14]. Any mild unpleasantness that the comments caused Plaintiff falls well short of the significant detriment needed. See Laird, 978 F.3d at 893. Accordingly, even if Plaintiff's Complaint were construed to allege an ADA discrimination claim based on Justice's comments, Plaintiff has failed to forecast evidence sufficient to establish a prima facie case under that theory.
Constructive Discharge
“The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016) (internal quotation marks omitted). To establish constructive discharge, a plaintiff must show “(1) the deliberateness of [the defendant's] actions, motivated by [discriminatory] bias, and (2) the objective intolerability of the working conditions.” Freeman v. Dal-Tile Corp., 750 F.3d 413, 425 (4th Cir. 2014) (internal quotation marks omitted). Mere “dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.” Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 187 (4th Cir. 2004) (internal quotation marks omitted).
Defendants do not deny that proof that Plaintiff was constructively discharged would satisfy the adverse-action element of his retaliation claim. See Monk v. Stuart M. Perry, Inc., 5:07-cv-00020, 2008 WL 2901347, at *5 (W.D. Va. July 18, 2008) (“Constructive discharge is the ultimate adverse action.” (internal quotation marks omitted)), Report and Recommendation adopted by 2008 WL 4450220 (W.D. Va. Sept. 29, 2008). Defendants argue, however, that Plaintiff has not forecasted evidence that he was deliberately mistreated based on his disability or that his working conditions were objectively intolerable. [Docs. 85-1 at 13-15; 90 at 3.] The Court agrees.
As discussed, Plaintiff has not forecasted evidence that Plaintiff's scheduling or Justice's comments were causally related to Plaintiff's disability or his accommodation requests. In any event, just as Plaintiff's vague allegations of mild mistreatment fall short of establishing an adverse action, they fall short of establishing the level of intolerability necessary for constructive discharge. See Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) (concluding that allegations that the plaintiff's “supervisors yelled at her, told her she was a poor manager and gave her poor evaluations, chastised her in front of customers, and once required her to work with an injured back” did not establish a constructive discharge claim).
Similarly, to the extent that Plaintiff intends to allege a hostile work environment claim [Doc. 88-1 at 3 (arguing that Justice “made the environment very hostile”)], either based on his sex or disability, he has not forecasted evidence that he has been subject to severe or pervasive conduct. See Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001) (“[A]n ADA plaintiff must prove the following to establish a hostile environment claim: (1) he is a qualified individual with a disability; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis exists to impute liability for the harassment to the employer.”); Brown v. Perry, 184 F.3d 388, 393 (4th Cir. 1999) (stating the elements of a sexual harassment hostile work environment claim)).
In sum, for all of these reasons, the Court recommends that summary judgment be granted to Defendants on Plaintiff's ADA discrimination claims.
The Court notes that in his response opposing summary judgment, Plaintiff argues that Justice refused to accept his two weeks' notice and that Justice wanted Plaintiff to work until May 24, 2019. [Doc. 88-1 at 2.] Plaintiff does not explain how he believes this fact impacts his claims, and, in any event, it is undisputed that Plaintiff did not work after May 6, 2022. [Docs. 85-2 at 4, 67; 88-2 at 34.]
ADA Retaliation Claim
The ADA's retaliation provision provides, in relevant part, “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter.” 42 U.S.C. § 12203(a). To establish a prima facie claim of retaliation under the ADA, a plaintiff must prove (1) he engaged in protected activity; (2) he suffered an adverse action; and (3) a causal link exists between the protected activity and the adverse action. A Soc'y Without a Name v. Commonwealth of Va., 655 F.3d 342, 350 (4th Cir. 2011). “To satisfy the second element, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from” engaging in the protected activity. Wells v. Gates, 336 Fed.Appx. 378, 383 (4th Cir. 2009).
Construed liberally, Plaintiff's Complaint alleges that Defendants retaliated against him after he requested an accommodation by refusing to allow him to work all of the hours that he wanted and by constructively discharging him. [Docs. 1-4 at 3-5; 85-2 at 68.] Similar to their argument regarding Plaintiff's ADA discrimination claim, Defendants argue that Plaintiff has failed to forecast evidence that Justice's decision not to give Plaintiff more hours was causally related to retaliatory animus and that Plaintiff has not forecasted evidence that he was constructively discharged. [Doc. 85-1 at 15-18.] The Court agrees, for the same reasons that the Court discussed in regard to Plaintiff's discrimination claim, that Plaintiff has not forecasted evidence that Defendants' proffered reason for not allowing Plaintiff to work all of the hours that he preferred was a pretext for illegal retaliation, see Tedder v. Care S.C., Inc., C/A No. 4:20-707-SAL, 2022 WL 909397, at *5 (D.S.C. Mar. 29, 2022) (“While temporal proximity may suffice to demonstrate the causation element of [the plaintiff's] prima facie case [of retaliation],it does not sufficiently demonstrate the ‘but for' causation required at the pretext stage.”), nor has he forecasted evidence that he was constructively discharged because he requested an accommodation. Accordingly, the Court recommends that summary judgment be granted to Defendants on Plaintiff's ADA retaliation claim as well.
To the extent that Plaintiff attempts to base his ADA retaliation claim on Justice's comments about his breaks-a matter not discussed in the Charge [Doc. 85-2 at 68]-the claim would fail for the same reason the Court discussed regarding Plaintiff's discrimination claim. Although the “material adverse action” requirement applicable to retaliation claims is different from the “adverse employment action” standard applicable to disparate treatment claims, see Perkins v. Int'l Paper Co., 936 F.3d 196, 213 (4th Cir. 2019), Plaintiff's evidence regarding Justice's rather benign comments falls well short under either standard, see id. at 213-14 (“The Supreme Court emphasized that . . . only significant harms would be actionable.”).
RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Defendants' motion for summary judgment [Doc. 85] be GRANTED.
IT IS SO RECOMMENDED.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).