Opinion
C. A. 2:20-cv-0806-RMG-MHC
01-24-2022
ALICIA MAXIE, Plaintiff, v. BROWN & BROWN, INC., and BROWN & BROWN OF SOUTH CAROLINA, INC., Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff brings this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). ECF No. 1-1.
Before the Court is Defendants' Motion for Summary Judgment (“Motion”), ECF No. 21, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 22, and Defendant filed a Reply, ECF No. 25. The Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
BACKGROUND FACTS
Defendant Brown & Brown of South Carolina, Inc. (“BBSC”) is a wholly owned subsidiary of Defendant Brown & Brown, Inc. (“BBI”). ECF No. 2 at 2. BBSC is an insurance company that offers insurance through three separate departments: (1) BBSC's Commercial Department; (2) BBSC's Employee Benefits Department, which handles employee benefit plans, benefits insurance, and related benefits services; and (3) BBSC's Community Accounts Department. (Tyler Dec. ¶ 3, ECF No. 21-6.) Employees at BBSC are generally assigned to only one of these departments. (Id.)
A. BBSC's Commercial Department
BBSC's Commercial Department sells insurance to and services commercial accounts above $2,500 in annual revenue. Id. Griffin Wise is employed as BBSC's Sales Leader and manages this department. (Tyler Dep. 15-16, ECF No. 22-2; Wise Dep. 5, ECF No. 22-5.) BBSC employs at least ten Commercial Producers within this department. (Tyler Dec. ¶ 37, ECF No. 21-6.) Commercial Producers are sales employees who start at BBSC with a salary-plus-commission compensation schedule with the goal to move to straight commission within two years. (Pl. Dep. 23-24, 117, ECF No. 21-2; Tyler Dec. ¶ 7, ECF No. 21-6.) After this initial transition period, Commercial Producers generally work on a full commission compensation arrangement and their primary duty is sales. (Tyler Dec. ¶ 7, ECF No. 21-6.) BBSC also employs Account Managers in this department who service commercial accounts after they are sold by the Commercial Producers. (Id.) The Account Managers are hourly paid employees who do not receive commissions on the accounts they service. (Id.)
B. BBSC's Community Accounts Department
BBSC's Community Accounts Department sells insurance to and services Personal Lines (“PL”) accounts and Small Business Unit (“SBU”) accounts. PL accounts are personal insurance accounts rather than corporate accounts and include automobile insurance, homeowners' insurance, disability insurance, valuables insurance and umbrella coverage. (Tyler Dec. ¶ 9, ECF No. 21-6.) The average yearly revenue to BBSC on a PL account is $300. (Pl. Dep. 25, ECF No. 21-2.) BBSC designates commercial accounts with less than $2,500 in annual revenue as SBU accounts. (Pl. Dep. 29, ECF No. 21-2.)
C. Plaintiff's Role at BBSC
Prior to joining BBSC, Plaintiff worked as a Commercial Lines Account Manager at the Taylor Agency. (Pl. Dep. 13, ECF No. 21-2.) In that role, she did not solicit new commercial accounts and did not have any accounts that were coded to her. (Pl. Dep. 13-14, Ex. 1, ECF No. 21-2.) Plaintiff testified that although she sold additional lines of coverage to existing clients, she was not given the option to sell new commercial accounts at the Taylor Agency. (Id.) She also testified that her role at Taylor Agency was similar to what she had done at her prior employer, David Crotts & Associates. (Id.)
In December 2015, Plaintiff submitted an application of employment to BBSC to become the person who manages the hourly account managers in the Commercial Department. (Pl. Dep. 14-15, ECF No. 22-3.) At the time, BBSC was combining the PL and SBU departments into a newly created Community Accounts Department. (Tyler Dec. ¶ 11, ECF No. 21-6.) Todd Tyler, BBSC's Profit Center Manager and Executive Vice President over South Carolina, interviewed Plaintiff and asked her if she would be interested in managing this new department. (Pl. Dep. 16, ECF No. 22-3.) Plaintiff was interested in this position and completed an application to become BBSC's “Community Accounts Leader and Personal Lines Producer.” (Pl. Dep. 16-17, 111-12, Ex. 1, ECF No. 21-2.)
On January 5, 2016, Defendants hired Plaintiff as the Community Accounts Leader and Personal Lines Producer to manage employees and sell policies. (Pl. Mot. Opp. Summ. J. 4, ECF No. 22; Tyler Dep. 11-12, ECF No. 22-2; Pl. Dep. 17-18, 23, ECF No. 21-2.) Plaintiff was the only person with this position. (Pl. Dep. 18, ECF No. 21-2.)
Plaintiff's initial Complaint alleges that “Plaintiff's Job title was Producer Sales (“PS”) for Property and Casualty Insurance.” (ECF No. 1-1 at 2, ¶ 10). Plaintiff's Opposition to Summary Judgment, however, states that “Defendants hired Plaintiff as Community Accounts Leader.” ECF No. 22 at 4.
At all times, Plaintiff managed between two and five employees for BBSC and was treated as a salaried-exempt employee. (Pl. Dep. 18-20, Ex. 1, ECF No. 21-2.) Her responsibilities included making hiring, discipline, and termination decisions for her department, managing employees, and retaining clients. (Id.) Plaintiff was required to sell and service PL and SBU accounts, and she also could sell any other type of Commercial or Benefits account offered by BBSC. (Id; Tyler Dec. ¶ 12, ECF No. 21-6; Pl. Dep. 122, Ex. 2, ECF No. 21-2.) Plaintiff received commissions on the PL, SBU, and Commercial accounts that she sold, as well as on PL and SBU accounts that Commercial Producers referred to her. (Pl. Dep. 25, 31, 111-12, ECF No. 21-2; Pl. Ex. 1, ECF No. 21-2; Tyler Dec. ¶ 12, ECF No. 21-6.)
BBSC set Plaintiff's initial salary at $55,000 per year, plus commissions. (Pl. Dep. 111- 12, Ex. 1, ECF No. 21-2.) Plaintiff's personal compensation goal at BBSC was to increase her total annual compensation to $100,000 in five years. (Id. at 115.) Plaintiff's compensation growth at BBSC was as follows: 2015 - $63,398; 2016 - $86,196; 2017 - $95,678; 2018 - $117,690; 2019 - over $120,000. (Pl. Dep. 142-43, Ex. 13, ECF No. 21-2.)
In August 2017, Tyler asked Plaintiff if her goal was to remain in management or to become a Commercial Producer. (Pl. 113-18, Pl. Ex. 3, ECF No. 21-2.) Plaintiff responded that she wanted to stay in her current role as Community Accounts Leader but receive additional compensation. (Id.) Tyler and Plaintiff began discussing the possibility of her taking on management of the PL/SBU accounts in BBSC's Greenville office. (Id.; Pl. Aff. ¶ 14, ECF No. 22-6.)
On February 5, 2018, Plaintiff sent an e-mail to Tyler asking for a meeting to discuss how she was getting paid. (Pl. Dep. 122, Pl. Ex. 5, ECF No. 21-2 at 113.) During Plaintiff's review on February 8, 2018, Tyler again asked Plaintiff about her desired path, “management or production.” (Pl. Dep. 118-20, Pl. Ex. 4, ECF No. 21-2.) Tyler offered Plaintiff the opportunity to move into a Commercial Producer role. (Id.)
On February 16, 2018, Tyler recommended that Plaintiff meet with BBSC's Accounting Leader Keith Graham to discuss different compensation scenarios to help her make the decision about whether to move to a Commercial Producer role. (Pl. Dep. 123-24, Ex. 5, ECF No. 21-2.) Plaintiff never met with Graham as Tyler suggested. (Id.) On February 20, 2018, Plaintiff declined the opportunity to move to a Commercial Producer role, stating that she was “not that much of a risk taker.” (Id.) Instead, she proposed the following:
Become the PL/SBU leader for all offices in S.C. that would entail being responsible for both offices retention, growth, compliance with Audit, carrier issues/adding new companies, monthly reports, customer contact when claims or coverage is an issue, resources for coverage questions/carrier questions, make sure all employees are getting additional education and possible designations to become more skilled for the agency's benefit, and all the other daily duties my brain cannot think of right now.(Pl. Dep. 122, Ex. 5, ECF No. 21-2 at 112.) She also proposed a $10,000 salary increase to $65,000 per year with an additional 10% renewal commission on certain accounts. (Id.) Tyler accepted Plaintiff's proposal but ultimately gave her a higher compensation plan than she initially requested, increasing her salary to $70,000. (Pl. Dep. 124-25, Ex. 5, 7, ECF No. 21-2.) These changes became effective on April 19, 2018. (Id.)
D. Messina and Potts Account Transfers
In the fall of 2018, Commercial Producers Steve Messina and Keefe Potts left employment with BBSC. (Tyler Dec. ¶ 16, ECF No. 21-6; ECF No. 22 at 16-17.) After an employee leaves employment, BBSC reassigns the accounts from the leaving employee's Book of Business (“BOB”). (Tyler Dep. 14-15, ECF No. 21-3; Pl. Dep. 17, ECF No. 21-2.) Tyler decides who receives the BOBs. (Tyler Dep. 16, ECF No. 21-3; Pl. Aff. ¶¶ 9, 10, ECF No. 22-6.) Some of Messina's and Potts' accounts were coded to “house accounts” or to Tyler, and BBSC did not pay any commissions on these accounts. (Tyler Dec. ¶¶ 16, 18, 20, ECF No. 21-6.) Some of their accounts were transferred to full-commission Commercial Producers Morgan Herterich, Chris Cook, Isaac Matthews. (Id.)
In November 2018, Plaintiff asked Tyler why he did not give her any of Potts' or Messina's BOBs. (Pl Dep. 128-29, Ex. 8, ECF No. 21-2.) Tyler stated that he wished Plaintiff had asked before the accounts were transferred and that he did not want to “burden [her] with extra work when [she has] so much going on with managing [her] department.” (Id.) Tyler stated, “I promise you that if it happens again, you'll be in the conversation.” (Tyler Dep. 60:11-12, Ex. 17, ECF No. 22-2.) The accounts Plaintiff sought were transferred to Commercial Producer Chris Cook. (Pl. Dep. 128-29, ECF No. 21-2.)
E. Plaintiff's Discussions of a Reduction in her Management Role
In an Employee Self-Evaluation Form from May 2019, Plaintiff expressed feeling burnt out and stated that her biggest obstacle was having to wear two hats - sales and leadership. (Pl. Dep. 129-31, Ex. 9, ECF No. 21-2.) In September 2019, Tyler again asked Plaintiff whether she wanted to focus on management or sales. (Pl. Dep. 152-53, Ex. 16, ECF No. 21-2.) Plaintiff wished to reduce her management duties and no longer manage PL/SBU for BBSC's Greenville office, and Plaintiff and Tyler discussed potential options to maintain her compensation. (Pl. Dep. 130-31, 156-59, Ex. 18, 20, 21, ECF No. 21-2.) Tyler also told Plaintiff that he was willing to move her out of the statewide management role but needed to hire a replacement for that position first. (Pl. Dep. 156, ECF No. 21-2.)
F. Commercial Producer Chris Cook's Resignation and Plaintiff's Opportunity to Become a Commercial Producer
In November 2019, Commercial Producer Cook resigned from BBSC. (Cook Dep. 13, ECF No. 22-4; Tyler Dep. 14-15, Ex. 21, ECF No. 21-3.) On November 12, Tyler emailed Plaintiff that he was awarding “less than half” of Cook's BOB to Griffin Wise, Sales Leader of the Commercial Department, and Tyler suggested that Plaintiff become a Commercial Producer. (Pl. Dep. 159:5- 8, ECF No. 21-2; Pl. Aff. ¶ 25, ECF No. 22-6.) Tyler sent Plaintiff career options, one of which was for Tyler to assign some of Cook's clients to Plaintiff once she became a Commercial Producer. (Pl. Dep. 159, Ex. 20, ECF No. 21-2.) Plaintiff opted to move to a Commercial Producer position. (Pl. Dep. 162-63, ECF No. 21-2; Pl. Aff. ¶ 25, ECF No. 22-6.)
On November 19, 2019, Tyler met with Plaintiff and encouraged her to meet with other Commercial Producers and ask them questions about how to successfully make this transition to a full Commercial Producer. (Tyler Dec. ¶ 26, ECF No. 21-6; Pl. Dep. 71-72, Ex. 22, ECF No. 21-2.) Plaintiff responded with a question about what she could learn from these other Commercial Producers since she had sold three larger Commercial accounts during her employment with BBSC. (Id.; Tyler Dep. 59, ECF No. 22-2.) Specifically, Plaintiff wrote:
When we met Tuesday, you and I discussed the executive summary and analysis and I let you know I've used that in the past on larger accounts that warrant the process such as Linden Construction and IPW. What insight are you wanting me to get from them that I already don't have experience with as a commercial producer?(ECF No. 21-2 at 141.) Tyler responded:
I would like for you to sit down with each of them and just talk. Be humble and ask them questions. I realize that you write IPW and Linden but you need to get other people's feedback. Just be vulnerable and ask them questions such as…
“What do you think will be the hardest thing for me making the transition from PL to CL?”
“Why do you need to do policy analysis for all of your accounts?”
“Why do I need to go to BBU?”
Anything else you can think of to ask. I'm not saying that you cannot do this, but I would like for you to get their feedback and insight. Another person that would be very helpful for you to speak with would be Seth McDonald. His background was personal lines and he said that although he had written a few commercial accounts, it was much different than what he imagined when he first came to work with us.
This is a big decision for you and it will require some restructuring (with Personal Lines). Before we move forward, I want to make certain we are all on the same page as far as expectations.(Id.; Tyler Dec. ¶ 26, ECF No. 21-6; Pl. Dep. 71-72, 76-78, 163; Tyler Dep. Ex. 10, ECF No. 21-3; Pl. Aff. ¶ 27, ECF No. 22-6.) Plaintiff never met with or asked any questions of the individuals mentioned in Tyler's e-mail related to the transition. (Pl. Dep. 83-84, ECF No. 21-2.)
As of the morning of November 22, 2019, Plaintiff made the decision to stay in her Community Accounts Leader role. (Pl. Dep. 169, ECF No. 21-2.) However, by that afternoon, Plaintiff and Tyler resumed discussions about the transition to a Commercial Producer position. (Id. at 169-72.)
During the time period of Cook's resignation, Tyler was busy with BBSC's acquisition of an insurance agency in Columbia, South Carolina. (Tyler Dec. ¶ 24, ECF No. 21-6.) This acquisition caused some delays in final decisions and communications related to where to transfer Cook's accounts. (Id.; Wise Dep. 6-7, ECF No. 22-5.) None of Cook's accounts were transferred to any BBSC employee in November or December 2019. Rather, the BBSC Account Managers who were previously assisting Cook with these accounts continued to provide services for these accounts. (Id.)
On December 10, 2019, Plaintiff sent Tyler an email asking about compensation and what accounts she would receive. (Pl. Dep. 173-74, Ex. 24, ECF No. 21-2.) Tyler responded that day asking Plaintiff to communicate with Keith Graham about the details of the plan. (Id.) Plaintiff did not meet with Graham. (Pl. Dep. 175, ECF No. 21-2.) On December 13, Plaintiff filed a charge with the EEOC alleging unlawful discrimination from Tyler's failure to assign her BOBs. (Pl. Dep. 175-76, Ex. 25, ECF No. 21-2.) The charge claims a continuing violation from September 2017 through the Charge date. (Id.)
On January 3, 2020, Tyler met with Plaintiff and gave her a report of the accounts that would be transferred to her as a Commercial Producer. (Pl. Dep. 182-83, ECF No. 21-2.) The total revenue BBSC proposed to transfer to Plaintiff was $186,800. (Id.) The proposed account transfer was at a high enough value that Plaintiff's compensation would not have been reduced after this transition. (Pl. Dep. 184, ECF No. 22-3.) However, Plaintiff testified that these accounts included one out of “possibly ten” of Cook's accounts that Plaintiff had requested. (Id.) BBSC also provided Plaintiff with a document that outlined the performance expectations of a Commercial Producer. (Pl. Dep. 186-87, ECF No. 22-3.) Plaintiff had not been given these Commercial Producer expectations previously because she was not a Commercial Producer. (Id.; Tyler Dec. ¶ 31, ECF No. 21-6.) These expectations had been given to all new Commercial Producers. (Tyler Dep. 79, Ex. 25, ECF No. 21-3.)
Plaintiff did not ask Tyler or Wise any questions about this plan, the expectations, or the accounts that would be transferred. (Pl. Dep. 186, ECF No. 21-2.) She never responded to this offer and resigned four days later on January 7, 2020, with her resignation being communicated by her as “effective immediately.” (Pl. Dep. 187, Ex. 29, ECF No. 21-2.)
LEGAL STANDARD
Summary judgment is appropriate when “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). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). The nonmoving party, however, “must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish an essential element to their case, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial, ” thus the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.”).
DISCUSSION
Plaintiff's sole claim in this lawsuit is a Title VII claim for employment discrimination based on her sex. Specifically, Plaintiff alleges that Defendants “discriminated against her in her terms and conditions of employment and in her wages by awarding BOBs only to male employees.” ECF No. 1-1, Compl. ¶ 29.
Under Title VII, an employer cannot “discriminate against any individual with respect to [her] compensation . . . because of such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To prevail on a Title VII claim, a plaintiff must establish intentional discrimination. Spencer v. Virginia State Univ., 919 F.3d 199, 207 (4th Cir. 2019), as amended (Mar. 26, 2019). A plaintiff may do so through two avenues of proof: by “presenting direct or circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor such as [sex] motivated the employer's adverse employment decision, ” or by relying on the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see Spencer, 919 F.3d at 207.
Plaintiff concedes that this case does not involve direct evidence of discrimination. ECF No. 22 at 13. Thus, Plaintiff must prove her claim of discrimination by using the McDonnell Douglas burden-shifting framework.
Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. 411 U.S. at 802. Once the plaintiff establishes her prima facie case, the burden of production then shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment action. Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). “Finally, if the employer carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the neutral reasons offered by the employer ‘were not its true reasons, but were a pretext for discrimination.'” Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1983)).
A. Prima Facie Case of Discrimination
To establish a prima facie case of sex discrimination, Plaintiff must demonstrate the following elements: (1) membership in a protected class; (2) that she was performing her job satisfactorily; (3) that she was subjected to an adverse employment action; and (4) that similarly situated employees outside the protected class were treated more favorably. Gerner v. Cty. of Chesterfield, 674 F.3d 264, 266 (4th Cir. 2012) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)).
Plaintiff argues in her Response that the Court must deny Defendants' Motion because rather than cite a case that describes the fourth element as requiring a showing that similarly situated employees were “treated more favorably, ” Defendants cited a Title VII case that describes the fourth element of the prima facie case as follows: “Other similarly situated employees who are not members of the protected class did not suffer the same adverse action.” ECF No. 22 at 14-15 (emphasis added). Plaintiff cites no support for the proposition that this difference mandates denial of Defendants' Motion, and the undersigned finds no merit to this argument.
It is undisputed that Plaintiff is a member of a protected class (female) and that her job performance was satisfactory. ECF No. 21-1 at 22; ECF No. 22 at 15-16. Moreover, Defendants appear to concede that there is a genuine question of material fact as to whether not assigning BOBs to Plaintiff was an adverse employment action. See ECF No. 21-1 at 25; ECF No. 25 at 14. However, Defendants argue that Plaintiff has failed to establish the fourth element of her prima facie claim, i.e., that Plaintiff was “treated differently than similarly-situated employees outside her protected class.” Id. at 25-28.
In their Motion, Defendants argue that Plaintiff has not established that she was constructively discharged from her employment, such that her resignation was not an adverse action. ECF No. 21-1 at 23-24. Plaintiff does not disagree. Rather, she clarifies that she did “not allege in her Complaint that she was constructively discharged” and that her “sole Claim is that Defendants discriminated against her because of her sex by assigning ‘BOB' accounts only to male salespersons.” ECF No. 22 at 1. Defendants do not argue in their Motion that the assignment of the BOBs was not an adverse action. Moreover, the undersigned finds sufficient evidence in the record to create a question of fact as to whether Plaintiff's not receiving BOBs adversely affected her compensation, such that Plaintiff has established the third element of her prima facie case for purposes of summary judgment. See, e.g., Pl. Dep. 63-64, ECF No. 22-3; Pl. Aff. ¶¶ 7-8, ECF No. 22-6.
In determining whether a comparator is similarly situated to the plaintiff, “courts consider whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications-provided the employer considered these latter factors in making the personnel decision.” Spencer, 919 F.3d at 207 (quoting Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005)). Jobs must be “similar in the level of competency, education, and requirements.” Watts v. S.C. Dep't of Corr., No. 3: 17-CV-2376-JMC-TER, 2019 WL 2090789, at *4 (D.S.C. Jan. 29, 2019), report and recommendation adopted, No. 3:17-CV-02376-JMC, 2019 WL 1122934 (D.S.C. Mar. 11, 2019) (quoting Siraj v. Hermitage in N. VA, 51 F. App'x. 102, 113 (4th Cir. 2002)).
Importantly, “the plaintiff must provide evidence that the proposed comparators are not just similar in some respects, but similarly-situated in all respects.” Spencer, 919 F.3d at 207 (internal quotation marks omitted); see also Haynes, v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, were subject to the same standards and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.”) (internal quotation marks omitted).
Although Plaintiff argues that she is similarly situated to “the [Commercial] Producers who received BOBs, ” she does not name specific comparators in her Response to the Motion. ECF No. 22 at 17. However, in her interrogatory responses, Plaintiff identified the following comparators: Christopher Cook, Morgan Herterich, Griffin Wise, Clint Richey, and Isaac Matthews. ECF No. 21-2 at 154-55 ¶ 2. There is very little evidence in the record regarding Richey, and Plaintiff does not point to any evidence that he was ever assigned BOBs. Accordingly, the undersigned finds that Plaintiff has failed to establish that Richey is a similarly situated comparator. The record does, however, contain evidence that Cook, Herterich, Matthews, and Wise were each assigned BOBs. Cook, Herterich, and Matthews were Commercial Producers, and Wise was a Sales Leader.
1. Plaintiff Has Not Shown She Was Similarly Situated to the Commercial Producers
Plaintiff has not produced evidence establishing that she was similarly situated to the Commercial Producer comparators. First, Plaintiff has not shown that she held the same job description as Commercial Producers. Indeed, Plaintiff was the only person in the position of Community Accounts Leader, Personal Lines Producer, a job she described as “management with sales.” Pl. Dep. 17-18, 23, ECF No. 22-3. In contrast, the Commercial Producers focused on commercial account sales and did not have management responsibilities such as making hiring and termination decisions. Pl. Dep. 19-20, 23, ECF No. 21-2; Tyler Dec. ¶ 35, ECF No. 21-6. Moreover, while Plaintiff was the head of the Community Accounts Department, Commercial Producers were employees in the Commercial Department.
Though Plaintiff argues that she was held to the same performance standards, had the same job duties, and that she and her proposed comparators were all under Tyler's supervision, Plaintiff does not cite the record for these assertions. ECF No. 22 at 17. Moreover, the evidence in the record does not support Plaintiff's argument.
Second, Plaintiff and the Commercial Producer comparators were not subject to the same compensation structure. Specifically, while Plaintiff received a salary plus commissions in her role as Community Accounts Leader, the evidence in the record shows that the proffered Commercial Producer comparators were paid only commissions. Tyler Dec. ¶ 18, ECF No. 21-6; Cook Dep. 14-16, ECF No. 22-4.
Finally, Plaintiff has not shown that she shared a supervisor with the Commercial Producer comparators. Plaintiff reported directly to Tyler, BBSC's Profit Center Manager and Executive Vice President over South Carolina. Meanwhile, the Commercial Producers reported directly to Wise, who was the Sales Leader over the Commercial Department. Pl. Dep. 16-17, ECF No. 21-2; Tyler Dec. ¶ 34, ECF No. 21-6. Therefore, Plaintiff has not shown evidence that the proposed Commercial Producer comparators were “similarly-situated in all respects” to her. Spencer, 919 F.3d at 207. Accordingly, the undersigned finds that Plaintiff has not established the fourth element of her prima facie claim based on BOB transfers to Commercial Producers Cook, Herterich, or Matthews.
2. Plaintiff Has Not Shown She Was Treated Less Favorably than Sales Leader Wise
Plaintiff identified Wise as her final comparator. ECF No. 21-2 at 154-55 ¶ 2. Although they were in different departments and did not have the same job description, their jobs were similar. Plaintiff was the Leader of the Community Accounts Department, while Wise was the Sales Leader of the Commercial Department. Pl. Dep. 67:9-25, ECF No. 22-3; Wise Dep. 6:6-7, ECF No. 22-5; Tyler Dep. 15, ECF No. 22-2; Wise Dec. ¶ 2, ECF No. 25-1. Like Plaintiff, Wise had both management and sales duties and reported directly to Tyler. Wise Dec. ¶ 2, ECF No. 25-1. Additionally, both Plaintiff and Wise received a salary plus commissions. Wise Dep. 8, ECF No. 22-5; Pl. Dep. 111-12, ECF No. 22-3. Thus, for purposes of this Motion, the undersigned finds that there is sufficient evidence to create a question of fact as to whether Wise was similarly situated to Plaintiff.
Although it is undisputed that Wise was the Sales Leader over the Commercial Account Department, there is some dispute over whether he was also a Commercial Producer. Plaintiff testified that Wise was a Commercial Producer, as well as the Sales Leader over the Commercial Producers in the Commercial Department. Pl. Dep. 67:9-25, ECF No. 22-3. Wise testified that he was a “Sales Leader, ” not a Commercial Producer. Wise Dep. 6:6-7, ECF No. 22-5.
However, to establish the fourth element of her prima facie case, Plaintiff must show that the similarly situated comparator was “treated more favorably” than Plaintiff. Gerner, 674 F.3d at 266. Here, Plaintiff has not pointed to any evidence showing that Wise was assigned any BOBs while Plaintiff worked for Defendants, but she was not.
There is evidence in the record that when Messina and Potts left in 2018, some of their accounts were coded to “house accounts” or to Tyler, and some of their accounts were transferred to Commercial Producers Herterich, Cook, and Matthews. Tyler Dec. ¶¶ 16, 18, 20, ECF No. 21-6. However, Plaintiff has not produced any evidence that these accounts were transferred to Wise. See Id. at ¶ 22 (averring that Wise did not receive Messina or Potts account transfers).
With respect to the transfer of Cook's accounts after he resigned in 2019, the evidence shows that Tyler first mentioned in November 2019 the possible transfer of less than half of Cook's accounts to Wise, around the same time that he first mentioned the possible transfer of some of Cook's accounts to Plaintiff if she switched to the Commercial Department. Pl. Dep. 159:5-8, Ex. 20, ECF No. 21-2; Pl. Aff. ¶ 25, ECF No. 22-6. However, the evidence also shows that none of Cook's accounts were transferred until sometime in January 2020, and that account managers in the Commercial Department continued to service those accounts in the interim. Tyler Dec. ¶ 24, ECF No. 21-6; Wise Dep. 6-7, ECF No. 22-5. Wise testified that he did not know which of Cook's accounts would be transferred to him until around January 3, 2020. Wise Dep. 6-7, 17, ECF No. 22-5. Similarly, Plaintiff testified that on January 3, 2020, she learned of the accounts that would be transferred to her as a Commercial Producer, including $186,000 of Cook's BOB. Pl. Dep. 182- 83, ECF No. 21-2. Plaintiff resigned four days later, before any accounts were transferred to her. Id. at 187-88; Tyler Dep. 15, ECF No. 22-2. There is no evidence in the record that any of Cook's accounts had been transferred to Wise prior to Plaintiff's resignation. On this record, the undersigned finds that Plaintiff has not produced evidence establishing that Wise was assigned or transferred BOBs when Plaintiff was not, such that she has not established that Wise was treated more favorably than Plaintiff.
For the foregoing reasons, the undersigned concludes that Plaintiff has failed to establish her prima facie case of discrimination. Accordingly, the undersigned recommends granting Defendants' Motion for Summary Judgment.
B. Plaintiff Has Failed to Establish Pretext
Even if Plaintiff could establish a prima facie case of Title VII sex discrimination, her case still could not withstand summary judgment. Once a plaintiff establishes a prima facie case, the burden of production shifts to the employer to proffer a legitimate, nondiscriminatory explanation for the employment action. Spencer, 919 F.3d at 208; Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 216-17 (4th Cir. 2016). Here, Defendants satisfy this requirement by providing the following explanation for why Plaintiff did not receive BOBs:
Plaintiff was the leader of the Community Accounts Department. Plaintiff had significant responsibilities related to managing this department. When a producer from the Commercial Lines Department Property and Casualty left BBSC, that individual's accounts were reassigned to Producers in the Commercial Lines Department Property and Casualty, were assigned to management officials or were designated as “House Accounts.” Because Plaintiff did not work in that department, those accounts were not transferred to her.ECF No. 25 at 14 (quoting Defs.' Disc. Resp., ECF No. 25-4 at 4-5). According to Defendants, “Plaintiff admittedly had taken on more management duties than she could handle during this time period, ” and it “would have been unreasonable to assign Plaintiff new accounts that would need immediate attention on top of her already overwhelming management duties.” Id.
Having proffered a nondiscriminatory explanation for not assigning BOBs to Plaintiff, Defendants shift the burden back to Plaintiff “to prove that the explanation is merely pretextual for invidious discrimination.” Spencer, 919 F.3d at 208; Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344 (4th Cir. 1994) (“[O]nce the defendant offers a non-discriminatory justification for the wage differential, the burden of persuasion remains on the plaintiff to demonstrate that the proffered explanation is pretextual and that the defendant was actually motivated by discriminatory intent.”) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
To establish pretext, Plaintiff must show that Defendant's proffered reason is unworthy of credence or false. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49 (2000). It is “not enough . . . to disbelieve the employer; the fact-finder must believe the plaintiff's explanation of intentional discrimination.” Id. (citation and internal quotation marks omitted). Further, to show pretext, Plaintiff may not rely on mere speculation. Hawkins v. Pepsico, Inc., 203 F.3d 274, 280- 81 (4th Cir. 2000) (mere speculation is insufficient to demonstrate pretext as “no court sits to arbitrate mere differences in opinion between employees and their supervisors”); see also DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (explaining that a court “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination”). “The final pretext inquiry merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination, which at all times remains with the plaintiff.” Merritt, 601 F.3d at 294 (internal quotation marks omitted).
1. Department Assignment
Plaintiff first argues that Defendants' rationale for not assigning Plaintiff BOBs-that she was not assigned to the Commercial Department-is false and pretextual. Plaintiff contends that when she complained in November 2018 about not receiving any of Potts' or Messina's BOBs, Tyler promised to assign Plaintiff BOBs. ECF No. 22 at 19. The record reflects that Tyler told Plaintiff in a November 2018 email, “I promise you that if it happens again, you'll be in the conversation.” Tyler Dep. 60, Ex. 17, ECF No. 22-2. Plaintiff appears to argue that, because Tyler did not suggest at that time that she would have to transfer to the Commercial Department to receive BOBs from departing Commercial Producers, Defendants' rationale for not assigning her BOBs is pretextual. However, the evidence also shows that when Tyler subsequently reached out to Plaintiff regarding Cook's BOB within days of Cook's resignation, Tyler made it clear that Plaintiff would need to transfer to the Commercial Department before she could be transferred Cook's accounts. On this record, Plaintiff has not shown how Tyler's 2018 promise is evidence that Defendants' rationale for not assigning Plaintiff BOBs was false or that Tyler was motivated by discriminatory intent.
Plaintiff also contends that Defendants assigned BOBs “to at least two individuals who were not assigned to the Commercial department, including Tyler.” ECF No. 22 at 19. Plaintiff does not identify the second individual to whom she refers. See Id. As explained above, however, all of the potential comparators identified by Plaintiff were assigned to the Commercial Department as either Commercial Producers or the Sales Leader. With respect to Tyler, Plaintiff does not argue that he is a similarly situated comparator, nor could she, as he was her direct supervisor and the Profit Center Leader responsible for all BBSC departments, including the Commercial Department. Tyler Dep. 9, 15, ECF No. 22-2. Moreover, while Plaintiff sought BOBs to increase her commissions, the undisputed evidence shows that Tyler did not receive commissions on the transferred BOBs assigned to him. Tyler Dec. ¶ 20, ECF No. 21-6. Rather, they operated like house accounts, for which no commissions were paid. Id. On this record,
Plaintiff has not demonstrated how the transfer of some BOBs to Tyler is evidence that Defendants' assignment of BOBs was motivated by discriminatory intent.
2. BBU and Tyler's Use of the Terms “Humble” and “Vulnerable”
In support of her pretext argument, Plaintiff also points to evidence that she was required to attend Brown & Brown University (“BBU”) to be a Commercial Producer while some males were not, and that Tyler told Plaintiff to be “vulnerable” and “humble” to other employees. However, Plaintiff has not shown through either instance that her sex motivated Defendants' failure to assign her accounts.
The evidence shows that Plaintiff's proffered Commercial Producer comparators all attended BBU, which is an in-house training program for Commercial Producers. Tyler Dec. ¶ 18, ECF No. 21-6; Tyler Dep. 33-34, ECF No. 22-2; Cook Dep. 18, ECF No. 22-4; Wise Dep. 15, ECF No. 22-5. Additionally, the record shows that Tyler regularly used the terms “humble” and “vulnerable” with employees as part of his management style. Tyler Dep. 47, 50, ECF No. 22-2; Ex. 25, 27, ECF No. 21-3; Ex. 10, ECF No. 21-3; Pl. Dep. Ex. 27, ECF No. 21-3. Indeed, Wise testified that Tyler specifically directed him “to act humble and vulnerable” with employee Eddie Whittingham “to try to get to know him” and to “gain his trust.” Wise Dep. 16-17, ECF No. 22-5. Thus, with respect to the evidence relating to BBU and Tyler's use of “humble” and “vulnerable, ” Plaintiff has not shown a nexus between her sex and Tyler's motivation when assigning BOBs.
3. Alleged Joke by Mike Keeby and Comment by Isaac Matthews
Plaintiff argues that Defendants' explanation is pretextual because of an alleged joke made by Regional Manager Mike Keeby at a business dinner. Plaintiff testified that at a September 2019 business dinner, Keeby was talking about his daughter wanting to go into insurance sales and that he discouraged her, and he “joked and laughed and said that's because I'm a male chauvinist pig.” Pl. Dep. 147-50, ECF No. 22-3. Plaintiff testified that she was not sure of the context of this comment. Id. Although Tyler and Cook also attended this dinner, there is no evidence that either heard Keeby make this comment. Cook Dep. 10-11, ECF No. 22-4; Tyler Dep. 20, ECF No. 22-2. Moreover, Plaintiff testified that she never complained to Tyler about Keeby's comment. Pl. Dep. 149-50, ECF No. 22-3.
Plaintiff also offers as evidence a situation wherein another employee, Isaac Matthews, referred to Plaintiff as his assistant in e-mails or text messages to clients. ECF No. 22 at 11; Pl. Dep. 40-45, ECF No. 22-3. Plaintiff complained to Tyler about Matthews' use of the word “assistant.” Id. Although it is unclear from the record whether Tyler investigated this matter, Plaintiff testified that she is aware of no instance after she complained to Tyler when Matthews referred to her as his assistant. Id.
Neither of these instances relate to BOB assignment, and there is no evidence that either Keeby or Matthews played any part in assigning BOBs. Accordingly, this evidence does not show that Defendants had discriminatory intent or even considered sex when they did not assign BOBs to Plaintiff, such that Plaintiff has not shown that Defendants' proffered explanation is pretext.
For the foregoing reasons, the undersigned concludes that based on the evidence presented, no reasonable jury could conclude that the failure to assign BOBs to Plaintiff was a result of intentional sex discrimination. Accordingly, the undersigned recommends that Defendant's Motion be granted.
Because the undersigned recommends granting summary judgment for Defendants on Plaintiff's sole claim, the undersigned does not address Defendants' alternative argument that summary judgment should be granted on the issue of damages. See ECF No. 21-1 at 31-32 (arguing that Plaintiff's voluntary resignation limits her recovery on damages).
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion for Summary Judgment, ECF No. 21, be GRANTED.
The parties are referred to the Notice Page attached hereto.
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
Post Office Box 835
Charleston, South Carolina 29402
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).