Opinion
C. A. 2:22-4088-RMG-SVH
05-02-2024
Sharon Lewis, Plaintiff, v. Medical University of South Carolina doing business as Medical University Hospital Authority, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this employment discrimination case, an employee alleges she was subjected to illegal discriminatory and retaliatory treatment due to her age and disabilities, eventually resulting in her termination. Her former employer seeks dismissal of all claims.
Sharon Lewis (“Plaintiff”) originally filed her complaint in the Charleston Court of Common Pleas (“state court”). Medical University of South Carolina (“MUSC”) doing business as Medical University Hospital Authority (“MUHA”) removed the case to this court on November 16, 2022. [ECF No. 1].
Defendant has submitted evidence that MUSC and MUHA are separate entities, that MUSC does not do business as MUHA, and that MUSC never employed Plaintiff. [See, e.g., ECF No. 52 at 1, ECF No. 41-1 at 9:3-14, 38:2139:10]. Although Plaintiff argues otherwise, in doing so she admits that her employment “offer letter came from MUSC but stated that she was an employee of MUHA.” [ECF No. 47 at 15-16, see also ECF No. 41-9 (offer letter)]. As discussed below, the court need not resolve this issue at this time.
Plaintiff alleges claims for discrimination in violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq. (“ADA”), hostile work environment in violation of the ADA and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”), and retaliation in violation of the ADA. Plaintiff seeks only monetary damages. [ECF No. 1-1 at 21-22, see also ECF No. 47]. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 41]. The motion is fully briefed [see ECF Nos. 47, 52] and ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion for summary judgment.
I. Factual and Procedural Background
Plaintiff applied for the Document Management I Specialist position with MUHA and began working in October 2021 under Lisa Lynch (“Lynch”). [ECF No. 41-3 at 72:15-18, ECF No. 41-4 at 20:21-23].
For approximately six months prior to Plaintiff beginning work at MUHA, she had a handicap parking placard. [ECF No. 41:3 at 75:23-76:20]. On or about November 4, 2021, Plaintiff submitted a request to MUSC's office of parking management that her physician prepared seeking permission to use handicap parking in an MUSC parking garage. [ECF No. 41-11, ECF No. 41:3 at 75:11-83:16].
In the request, Plaintiff's physician notes the following about her: 1) “[o]steoarthritis of the left knee;” 2) disability (i.e., osteoarthritis of the left knee) is “permanent;” 3) “unable to walk distances or climb stairs;” and 4) “unable to ride a bus” to or from work. [ECF No. 41-11]. As to these notes, Plaintiff testified that as of November 4, 2021, she did not think her knee problem was a disability or permanent, because she planned on getting the knee replaced,but she agreed she had osteoarthritis, was unable to walk long distances, could not climb stairs, and could not ride the bus to or from work. [ECF No. 41-3 at 75:11-83:16].
Plaintiff also testified that during the interview process for her position, she informed Defendant she did not have a disability and she did not believe herself to be disabled at that time. [ECF No. 41-3 at 73:1-24].
On November 10, 2021, during a meeting she had with Lynch, Plaintiff handed her a letter that includes the following:
I want to state concerns I have due to mobility issues with regards to my knees. Yesterday, November 8, 2021, I completed the process for a parking decal through the Office of Parking Management. I do now have a MUSC parking decal to accompany my Handicap Placard. My other concern is to try and get accommodations to do my assigned job with regards to all of the required walking. You see I am unable to ride the normal MUSC BUS as its entry steps are too high for me to navigate.
As you know, I started this job on Monday, October 25, 2021, with MUSC as a Document Management Specialist I in Medical Records (MRs) .... When I interviewed for this position, they told me there would be a lot of walking and I thought by what they told me, I could handle it with my cane.
When I went to Employee Health Services on October 14, 2021 to be processed for this position, I told them of my existing medical condition for my right and left knees and they were fine with me using my cane. In addition, they asked me do you need any other accommodations. I basically answered that I thought that the cane would be suitable. They also said that any other accommodations would require medical paperwork from a doctor. But what these were or could be was not explained nor did I ask for further explanation.
Tuesday, October 26, 2021 was my first workday at the Hospital. On this day, I found out that walking is required every day .... .
So earlier yesterday, November 8, 2021, I went by Employee Health Services and spoke in private with Andrea Cumberland [(“Cumberland”)] who is an RN over there ....She suggested I talk to management first to see if they would give me accommodations for me to do my job. She referred to this approach as Plan A. I mentioned my Productivity may suffer because of taking too long to complete trips to get MRs as well as returning to the MRO. She said one of the accommodations could be to allow more time to retrieve MRs. She even mentioned that MUSC has courier services and maybe they could be used as well. She also agreed that my walking with a cane and pulling a dolly is unsafe especially when done on the outside sidewalks.....She did say that if Plan A was not possible then we will go to Plan B which requires medical paperwork.[ECF No. 41-12, ECF No. 41-3 at 84:10-85:10].
Following this meeting that also included Greg Bellamy (“Bellamy”), MUHA's manager of health information management, Plaintiff emailed Cumberland, detailing what occurred. [ECF No. 41-3 at 84:10-85:10, ECF No. 41-13, ECF No. 41-4 at 8:17]. Plaintiff states she was informed she had “gone over [Lynch and Bellamy's] heads” and did not follow the proper chain of command by not discussing this issue with them first and that her accommodation request was denied. [ECF No. 41-13 (“I did not understand them saying all of this to me nor their lack of concern for my medical condition.”)].
In contrast, Bellamy testified that in this meeting, Plaintiff asked to only be in the office and was informed that picking up documents was part of the position she was hired for and to “get an accommodation and then we'll address it then.” [ECF No. 41-4 at 21:3-20]. Bellamy further testified “we never heard back about any kind of accommodation.” Id. at 23:2-3.
In response, Cumberland emailed as follows:
It seems there may be some misunderstandings, so I hope to address them. Our Nurse Practitioner's at EHS always make a point to address physical accommodations during pre-employment appointments. Originally, when you came through EHS it is my understanding you denied the need for any physical accommodations. When you came to EHS on Monday, it was to explain while originally you didn't feel you would need accommodations, after being in the position you realized you may indeed need some type of accommodation and just wanted to know the process to follow. This was in no way going over anyone's head. I asked you if you had spoken with your manager and you stated you had not. I informed you that would be the first step in this process since you had already started employment. However, if you and your manager were unable to come up with a solution then, you would need to have your Orthopedic doctor complete ADA paperwork....I did inform you Monday, I would speak with your manager and let her know the concerns so she could research possible solutions, such as attempting to see if a courier could be
implemented to reduce walking. Since it appears a solution could not be reached then yes, it looks like you should progress to Plan B and have your doctor complete ADA paperwork.Id.
On November 18, 2021, Plaintiff submitted an employee accommodation medical certification form and the previously-submitted office of parking management medical form to Brantley Rogers (“Rogers”), a compliance consultant in Defendant's human resource department. [ECF No. 47-2 at 27, ECF No. 41-29, ECF No. 41-5 at 8:3-13]. In the former form, the doctor stated Plaintiff had advanced knee arthritis, that it was a long-term or permanent impairment, that is impacted her standing, walking, climbing, and using stairs, but the only accommodation sought was a request for handicap parking. [ECF No. 41-29]. Plaintiff testified she agreed with the information provided by her physician in the form submitted to Rogers and did not request any changes be made to the form. [ECF No. 41-3 at 99:18-103:17]. Her accommodation was approved, but she already had handicap parking through her prior request to the MUSC office of parking management. Id.
Plaintiff confirmed in her deposition that from November 18, 2021, for the “remainder of ‘21,” she “just went about doing [her] work.” [ECF No. 41-3 at 104:2-8].
From January 2022 to May 2022, both Lynch and Bellamy sent numerous emails to Plaintiff about her continuing errors in processing of documents. [ECF No. 41-14]. On May 17, 2022, Lynch completed a counseling session report, informing Plaintiff that “[t]here is a quality concern regarding the number of errors associated with reviewing documents,” also noting that while plaintiff was “making progress with her productivity,” she was “only meting about a third of her productivity goal.” [ECF No. 41-15].
Plaintiff testified that “everyone” got these types of correction emails and that she “didn't get enough proper help training” for some of the document processing she was required to do. [ECF No. 41-3 at 109:4-5, 115:23-24]. However, Plaintiff also testified she had no direct knowledge that anybody received more training than she did. Id. at 157:22-161:4. Bellamy testified that Plaintiff received “more training than I believe any employee I remember hiring in that position and extended it much longer than the average.” [ECF No. 41-4 at 26:18-23].
Thereafter, Plaintiff's performance deficiencies continued into May and June 2022. [ECF No. 41-16]. On June 23, 2022, Lynch held a counseling session with Plaintiff to discuss her deficient performance and steps Plaintiff should take to improve her performance. [ECF No. 41-17]. On July 23, 2022, Plaintiff fell at work and had to go to the emergency room. [ECF No. 41-3 at 124:21-125:24].
In June and July 2022, Plaintiff's deficient performance continued, and Lynch continued to notify Plaintiff of errors and provide guidance on corrective actions. [ECF No. 41-18]. On July 19, 2022, Lynch held another counseling session with Plaintiff to discuss her deficient performance and steps she should take to improve her performance. [ECF No. 41-19]. Between August 1, 2022, and August 18, 2022, Plaintiff's poor performance continued, and Lynch and Bellamy continued to notify Plaintiff of errors and provide guidance on corrective actions. [ECF No. 41-20].
On August 12, 2022, Plaintiff testified she spoke with Lynch while the two were alone in a scanning room. [ECF No. 41-3 at 132:1-136:20, see also ECF No. 47-1 at 24]. During the meeting, Plaintiff stated that Lynch told her the new “second level boss,” Bellamy's supervisor, was “profiling” Plaintiff regarding her production, and that Lynch, Plaintiff, and Bellamy were going to have a meeting. Id. Additionally, during the same meeting, Lynch told Plaintiff the following: 1) Plaintiff was one of the best employees with respect to attendance; 2) Lynch did not want to lose Plaintiff as an employee; and 3) Plaintiff was a good team member and worked well with others. Id. Plaintiff was encouraged by Lynch's statements. Id.
Plaintiff's characterization of this conversation in briefing is not consistent with her testimony concerning this conversation and other evidence is record. [See ECF No. 47 at 9 (“On August 12, 2022, the Plaintiff was in the scanning room with Lynch and informed Lynch of her concerns regarding walking, productivity and management trying to find a reason to terminate her because of her issues.”)]. The undersigned notes that this is one example of many where Plaintiff relies on facts not found in the record. To the extent that Plaintiff relies on her post-deposition affidavit submitted in conjunction with her response to Defendant's motion [ECF No. 47-1], the court disregards any allegations that directly contradict her sworn testimony. See, e.g., Kinser v. United Methodist Agency for the Retarded-W. N Carolina, Inc., 613 Fed.Appx. 209, 210 (4th Cir. 2015) (“At the summary judgment stage, if an affidavit is inconsistent with the affiant's prior deposition testimony, courts may disregard the affidavit pursuant to the sham-affidavit rule.”) (citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)).
After the above-referenced meeting occurred on August 17, 2022 [ECF No. 41-21], Lynch completed a corrective action report, documenting the counseling session and the oral reprimand Plaintiff received for work performance, as follows:
There is concern of Sharon's performance regarding her productivity. She has been in the department for approximately 10 months and is working at a 40% productivity level. Worked period, November 2021 to June 2022. She is averaging 120 images per hour. The goal is 300 images per hour.
We meet monthly to strategize and identify goals to assist in meeting her productivity. Discussion has included her continuing to ask questions on items she does not understand, for her to observe/re-evaluate workflow, to apply focused attention to details of work. Tip sheets have also been provided to assist in identifying how to doc type Non MUSC documents as well as an Error Code tip sheet to assist when assigning errors. Email notifications are also sent with explanation to help correct documents that were doc typed incorrectly.Id. Lynch continued as follows: “Sharon must meet productivity goal of 300 images per hour or be very close to meeting her goal. We will be monitoring weekly for improvement and meet in a month to review if goal has been met.” Id. The form further lists September 19, 2022 as the “check-in date(s) or deadline(s) to meet expectations.” Id.
Between Thursday, August 18, 2022, and Friday, August 26, 2022, Lynch identified more errors by Plaintiff. [ECF No. 41-22]. Lynch notified Plaintiff of the errors and Lynch included related instruction for Plaintiff each time. Id.
Plaintiff testified that between November 2021 and August 26, 2022, she had no further discussions with Lynch, Bellamy, or anyone else concerning her mobility or health issues. [ECF No. 41-3 at 138:10-22]. Plaintiff argues in briefing otherwise, that she spoke with Lynch in July 2022 and August about her disability and mobility limitations [see, e.g., ECF No. 47 at 25], but offers no evidence in support.
On or before August 25, 2022, Bellamy spoke to Rogers about terminating Plaintiff's employment, with Rogers providing Bellamy a termination template. [ECF No. 41-23].
While the conversation between Rogers and Bellamy was ongoing via email, Bellamy emailed Rogers on the morning of August 26, 2022, to inform Rogers that Plaintiff's husband called as follows:
when you get a chance can you call me. The employee's husband just called us and said his wife's foot is swollen and bleeding (thinks she has an ulcer) and might need to go to the hospital. He talked about getting her on FMLA, etc. Do we have any alternatives to terminate via phone or do we have to wait until she comes back? Just afraid she might go out on medical leave.Id.
Rogers provided the following response:
I spoke with my supervisor Theo Lu and we agreed for optics sake it would be better to see what she says about how long she may be
out and then go from there. I would let her know she doesn't qualify for FMLA and then when she comes back hopefully next week, you can proceed. Let me know if you still need to talk.Id.
Rogers testified that Plaintiff did not qualify for FMLA at the time because she had not worked for Defendant for at least a year or worked enough hours. [ECF No. 41-5 at 15:6-11].
Plaintiff was hospitalized beginning Friday, August 26, 2022, and she remained in the hospital until Friday, September 2, 2022. [ECF No. 41-3 at 141:7-142:16]. Thereafter, from Friday, September 2, 2022, to Thursday, September 8, 2022, Plaintiff convalesced at home. Id.
On Tuesday, September 6, 2022, Plaintiff submitted an “Employee Accommodation Medical Certification Form” prepared by her physician requesting certain accommodations for her return to work. [ECF No. 41-24]. On Wednesday, September 7, 2022, Rogers notified Plaintiff the accommodation request was approved, and Plaintiff was expected to return to work on Thursday, September 8, 2022. [ECF No. 41-25].
Plaintiff returned to work on September 8, 2022. [ECF No. 41-3 at 142:612]. Upon arrival, Lynch directed Plaintiff to clock-in and then Plaintiff met with Lynch and Bellamy. Id. at 152:1-20. During the meeting, Lynch and Bellamy notified Plaintiff her employment with MUHA was terminated for performance issues, and Plaintiff was given a “Medical University Hospital Authority Termination Report” and the previously-approved termination letter. [ECF No. 41-3 at 152:22-155:4, ECF No. 41-30, ECF No. 41-31]. The termination letter contains a typed date of August 26, 2022, but a handwritten date of September 8, 2022 next to Bellamy and Lunch's signatures. [ECF No. 41-30].
Plaintiff filed a charge of discrimination with the South Carolina Human Affairs Commission (“SCHAC”) against Defendant, signed on October 3, 2022, alleging discrimination based on “Age, Disability” extending from November 9, 2021 to September 8, 2022, providing as follows:
I began my employment on October 25, 2021, as a Document Management Specialist. During the hiring process I disclosed my need to use an ambulatory device to assist with my mobility. On November 8, 2021, I asked a representative in Employee Health Services, for information on how to request a reasonable accommodation for my disability-related impairment. I was advised to discuss my request with management. On November 9, 2021, management denied my request and chastised me for going outside the chain of command. Since this time I have struggled to perform the physical-related tasks required of my position. On September 8, 2022, I was discharged.
I was told my request for a reasonable accommodation was denied because it wouldn't be fair to the other employees. I was told I was discharged for unsatisfactory performance, and because management did not feel I could improve my productivity.
I believe that I have been discriminated against on the basis of disability, and retaliation, in violation of Title I of the Americans with Disabilities Act of 1990, as amended.[ECF No. 47-2 at 5, see also id. at 9-19 (10-page memorandum also submitted)].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
1. Eleventh Amendment and Sovereign Immunity
Defendant argues that because MUSC is a South Carolina state agency, Plaintiff's claims are barred by sovereign and Eleventh Amendment immunity. See McKay v. Med. Univ. of S.C., C/A No. 2:17-45-RMG, 2017 WL 3477799, at *2 (D.S.C. Aug. 14, 2017) (“MUSC is a state agency and has Eleventh Amendment immunity from claims for monetary damages brought in federal court.”).
Defendant argues that MUSC is the properly-identified defendant in this case, but even if MUHA were the properly-identified defendant, the above immunity arguments would still apply. See, e.g., MUSC Health Cancer Care Org., LLC v. Med. Univ. Hosp. Auth., 659 F.Supp.3d 700, 709, 713 (D.S.C. 2023) (noting “MUSC and MUHA are distinct legal entities, they exist- practically speaking-as a single unit,” and finding “under the relevant Supreme Court and Fourth Circuit case law, that MUHA is an arm of the state of South Carolina and, thus, that the Eleventh Amendment bars Plaintiff from maintaining this suit in federal court”).
“‘The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.'” Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 480 (quoting U.S. CONST. amend XI). Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state and its agencies may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989).
“Title I of the [Americans with Disabilities Act] protects workers with disabilities from discrimination and requires employers to make reasonable accommodations for them.” Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019). In addition, “although Congress purported to abrogate state sovereign immunity from lawsuits under Title I of the ADA, the Supreme Court has held that Congress exceeded its authority in doing so.” Id. (citing Board of Trustees v. Garrett, 531 U.S. 356 (2001)). Likewise, in Kimel v. Fla. Bd. of Regents, the Supreme Court ruled that the “ADEA does not validly abrogate the States' sovereign immunity.” 528 U.S. 62, 92 (2000); see McCray v. Maryland Dep't of Transp., Maryland Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014) (“Sovereign immunity has not been abrogated for ADEA claims and ADA Title I claims.”).
Plaintiff cannot pursue her claim under Title I of the ADA or under the ADEA without showing Defendant waived Eleventh Amendment immunity, which she has failed to do. Plaintiff makes no specific argument in opposition to Defendant's immunity assertions, but incorrectly argues that Defendant has only asserted an immunity defense as to MUSC, not MUHA, notably conceding that “MUSC may not have waived its right to be sued ....”. [ECF No. 47 at 16, see also ECF No. 41-1 at 11 n.42].
Plaintiff does, however, make passing reference to Lapides v. Board of Regents of Univ. Sys. of Georgia, 535 U.S. 613 (2002), in her briefing [ECF No. 47 at 16], perhaps implying that in removing this case from state court, Defendant waived immunity. To the extent Plaintiff so argues, she is incorrect.
In Lapides, the Supreme Court held that “the State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity ” 535 U.S. at 624. However, Lapides “does not resolve whether a state that has not consented to suit in its own courts maintains either the broader concept of sovereign immunity or Eleventh Amendment immunity upon voluntarily removing a case to federal court.” Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir. 2005).
As the Fourth Circuit has held, where a state retains its sovereign immunity from suit in state court, it does not lose that immunity by removing the case to federal court. Id. at 491; see also Young v. Tri-Cnty. Tech. Coll., C/A No. 8:18-01464-DCC-JDA, 2019 WL 8375934, at *5 (D.S.C. July 3, 2019) (“Here, it is undisputed that South Carolina has not consented to being sued in state courts under the ADEA; thus, Defendant's removal of this case to federal court did not effect a waiver of Eleventh Amendment immunity.”), report and recommendation adopted, C/A No. 8:18-01464-DCC, 2020 WL 813248 (D.S.C. Feb. 19, 2020); Squires v. S.C. Dep't of Health & Env't Control, C/A No. 4:16-02414-RBH, 2017 WL 874986, at *5 (D.S.C. Mar. 6, 2017) (“the Court finds Defendant's alleged acceptance of federal funds does not constitute a waiver of its Eleventh Amendment immunity for its alleged violations of Title I of the ADA. No exceptions to Eleventh Amendment immunity apply here.”).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as Plaintiff's claims are barred. The undersigned also recommends the district judge grant Defendant's motion for summary judgment for the additional reasons discussed below.
2. Administrative Exhaustion
Prior to filing an action alleging violations of the ADA or the ADEA, a plaintiff must first exhaust her administrative remedies. Sydnor v. Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012); Walton v. Harker, No. 21-1041, 2022 WL 1257128, at *4 (4th Cir. Apr. 28, 2022) (citing 29 U.S.C. § 633a(d)).
Additionally, a claimant is required to file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act or acts, or, if the alleged discrimination occurred in a “deferral state,” then within 300 days of the alleged discriminatory act(s) if the claimant initially institutes proceedings with the appropriate state agency, or within thirty days of the state agency's termination of its proceedings, whichever is earlier. See 42 U.S.C. § 2000e-5(e). South Carolina is a deferral state, with the appropriate state agency being SCHAC. The parties agree the 300-day limitations period applies.
Here, where Plaintiff filed her charge on October 3, 2022, the court cannot consider any allegations she made occurring more than 300 days prior, or before December 7, 2021. Plaintiff appears to concede as much, but also arguing “[t]he actions that occurred prior to the 300-day time frame are not considered actionable events but they can show a history of the Defendant failing and refusing to handle her complaints and requests for accommodation.” [ECF No. 47 at 22].
Plaintiff may be invoking the continuing violation doctrine that permits “consideration of incidents that occurred outside [a] time bar when those incidents are part of a single, ongoing pattern of discrimination.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007). This doctrine is applicable only to Plaintiff's hostile work environment claims. See, e.g., Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 221 & n.5 (4th Cir. 2016); see also, e.g., Speach v. Bon Secours Health Sys., Inc., C/A No. 6:22-884-HMH-KFM, 2023 WL 2838358, at *6 (D.S.C. Feb. 10, 2023), report and recommendation adopted, C/A No. 6:22-884-HMH-KFM, 2023 WL 2300041 (D.S.C. Mar. 1, 2023).
To the extent that Plaintiff argues this doctrine is applicable to her hostile work environment claims [see ECF No. 47 at 27], she has failed to identify any specific occurrences in support of these claims occurring after December 7, 2021, during the statutory period. Guessous, 828 F.3d at 222 (“even if most of the harassing conduct on which a plaintiff relies to establish her hostile work environment claim occurred outside the statutory period, the claim will be considered timely if at least one act continuing the violation occurred within the statutory period”).
In briefing, and in support of her ADA and ADEA hostile work environment claims, Plaintiff fails to identify any specific allegation or piece of evidence beyond citing to “supra, facts.” [ECF No. 47 at 25-28, see also id. at 27 (Plaintiff arguing generally that “[w]hen viewing the Plaintiff's entire work environment for the last 300 days of employment, the work environment was riddled with actions by Lynch that could be perceived as hostile pursuant to the severe and pervasive evidence threshold.”)]. Plaintiff states, without supporting citations, that she fell in July and August 2022, was denied but then provided accommodations, and argues she would not have had employment issues if she had been accommodated sooner or properly trained like other employees, Id. at 27-28, but fails to indicate how these allegations and conclusions, with no citations to the record, support Plaintiff's ADA or ADEA hostile work environment claims. Additionally, as Defendant correctly argues, “the only actions Lewis alleges that she could attempt to contend created a hostile work environment took place during a meeting with Bellamy and Lynch on November 9, 2021” [ECF No. 52 at 6] and are therefore barred.
Accordingly, the undersigned has not considered any of Plaintiff's allegations prior to December 7, 2021, and recommends the district judge dismiss her hostile work environment claims where no evidence in support of these claims occurs during the statutory period.
3. Claims Concerning Termination
Plaintiff has argued that her termination was an act of discrimination and retaliation under the ADA. Because Plaintiff has no direct evidence in support of her discrimination and retaliation claims, she proceeds through the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973), burden- shifting framework. Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006); see also, e.g., Gomez v. Haystax Tech., Inc., 761 Fed.Appx. 220, 235 (4th Cir. 2019) (addressing Title VII, ADA, FMLA discrimination and retaliation claims).
Under this framework, “the plaintiff bears the burden of establishing a prima facie case of discrimination or retaliation.” Gomez, 761 Fed.Appx. at 235. If the plaintiff succeeds, “the burden of production then shifts to the employer to articulate a non-discriminatory or non-retaliatory reason for the adverse action.” Guessous, 828 F.3d at 216. “[T]he burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the stated reason for the adverse employment action is a pretext and that the true reason is discriminatory or retaliatory.” Id. at 216.
Even assuming Plaintiff could establish a prima facie case-which Defendant disputes-she has failed to prove that the legitimate reasons offered by Defendant for her termination-Plaintiff's deficient performance-is pretext for discrimination or retaliation.
Although difficult to parse, it appears Plaintiff argues the timeline related to her termination is suspicious. [ECF No. 47 at 29-30, see also ECF No. 47-1 at 8-13]. The record, taken in the light most favorable to her, indicates she was reassured by a conversation she had with Lynch on August 12, 2022, but was placed on a performance plan on August 17, 2022, including a plan for weekly monitoring. The record further indicates Plaintiff continued to have performance issues, and that Bellamy discussed Plaintiff's termination with Rogers around August 26, 2022, completing Plaintiff's termination letter on that date. At this time, Defendant was informed about Plaintiff's hospitalization, and Plaintiff was then informed about her termination upon return to work after her hospitalization. It is unclear how this timeline supports a finding of pretext, particularly where Plaintiff states in her affidavit that if she “hadn't had a[] medical emergency she would have gone to work and been terminated.” [ECF No. 47-1 at 11].
To the extent Plaintiff argues pretext can be shown by Defendant's alleged failure to follow its own internal procedures, for example by providing Plaintiff a performance review plan but then terminating her employment while she was on that plan, as explained by the Fourth Circuit:
“The mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent.” Vaughan v. Metrahealth Cos., 145 F.3d 197, 203 (4th Cir. 1998) (emphasis and internal quotation marks omitted), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); accord Johnson v. Weld Cty., 594 F.3d 1202, 1213 (10th Cir. 2010). Instead, “there must be some evidence that the irregularity directly and uniquely disadvantaged a minority employee.” Johnson, 594 F.3d at 1213 (internal quotation marks omitted).Russell v. Harlow, 771 Fed.Appx. 206, 207-08 (4th Cir. 2019). Plaintiff has provided no evidence or argument how any alleged inconsistency in Defendant's application of its own procedures is probative of pretext.
“Courts in this District have found that for an employer's violation of its internal policies to be evidence of pretext, ‘the violation must be material and significant.'” Lockley v. Town of Berwyn Heights, C/A No. JFM-14-825, 2015 WL 5334256, at *8 (D. Md. Sept. 11, 2015) (citing Noshafagh v. Leggett, C/A No. DKC 11-3038, 2013 WL 93345, at *10 (D. Md. Jan. 7, 2013), aff'd, 538 Fed.Appx. 251 (4th Cir. 2013)).
In sum, Plaintiff has failed to offer evidence of pretext that the reason provided for her termination was not the actual reason for her termination. As stated by the Fourth Circuit, “[i]f [plaintiff] was fired for misconduct [ ]he did not actually engage in, that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.” Powell v. Biscuitville, Inc., C/A No. 20-2378, 2021 WL 2434011, at *2 (4th Cir. June 15, 2021) (citing Villa, 858 F.3d at 903). Here, however, the court notes that Plaintiff does not appear to dispute she had performance issues. Even if she did dispute her performance issues, though, the court does not “sit as a super-personnel department, weighing the prudence of employment decisions made by the defendants.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998). The court need not decide “whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA discrimination and retaliation claims.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 41].
Given the analysis and recommendation above, it is unnecessary for the court to address Defendant's additional and alternative arguments.
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 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).