Opinion
Civil Action 2:19-01159-DCN-MGB
06-02-2021
Yero Noble, Plaintiff, v. Republic Services of SC, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Yero Noble (“Plaintiff”), through counsel, filed this lawsuit alleging: race discrimination in violation of 42 U.S.C. § 1981 (“Section 1981”); retaliation in violation of the Title VII of the Civil Rights Act (“Title VII”) and Section 1981; hostile work environment in violation of Title VII and Section 1981; and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). (Dkt. No. 1.) This matter is before the Court upon Defendant's Motion for Summary Judgment (Dkt. No. 38.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local 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. For the reasons stated below, the undersigned recommends that Defendant's Motion for Summary Judgment (Dkt. No. 38) be granted as to all of Plaintiff's claims.
BACKGROUND
This civil action arises from Defendant's alleged discrimination and retaliation against Plaintiff, an African American male over forty years old. (Dkt. No. 1 at 4.) Defendant is a waste collection and disposal company that hired Plaintiff in September of 2005 as a residential driver. (Id.; Dkt. No. 38-1 at 1). During the course of his employment, Plaintiff was promoted to operations supervisor for the commercial division. (Dkt. No. 1 at 4.) Plaintiff alleges that his intent was to continue moving up through Defendant's management. (Id.) To further this goal, Plaintiff applied for the “Leadership Training Program” in August of 2017, for the “Landfill 101 Training” in October of 2017, and for the “Operations Manager Training Program” in November of 2017. (Id. at 4-5; Dkt. No. 38-1 at 10.) Plaintiff alleges that his requests to participate in these trainings were denied. (Dkt. No. 1 at 5.)
Plaintiff further alleges that he requested a transfer to a different facility, but that Defendant denied this request. (Id.) More specifically, Plaintiff applied to: a landfill supervisor position in California and a heavy equipment operator position in Bishopville, South Carolina in July of 2017, and an operations manager position in Maryland in September of 2017. (Dkt. No. 38-1 at 6-9; Dkt. No. 38-11 at 2-15.) Plaintiff was not placed in any of these positions. (Dkt. No. 1 at 5; Dkt. No. 38-1 at 6-7.) In November of 2017, Plaintiff resigned from his position to take a job with another company. (Dkt. No. 38-23 at 2.)
Plaintiff contends that he was treated differently than younger, white employees because such employees were allowed to participate in the aforementioned trainings and received the aforementioned transfer positions. (Dkt. No. 1 at 6.) Plaintiff further contends that he was subjected to a hostile work environment during his tenure with Defendant. (Id.) He claims that other employees made “racist commentary regarding [his] appearance.” (Id.) For example, Plaintiff alleges that one specific general manager constantly commented on Plaintiff's hairstyle. (Id.) Plaintiff asserts that he “made several complaints to Human Resources and management” regarding the alleged hostile work environment and discrimination. (Id. at 7.) He argues that Defendant's reasons for its actions were pretextual, and meant to harass, harm, and retaliate against him. (Id.)
Accordingly, on April 22, 2019, Plaintiff filed the instant civil action alleging race discrimination (First Cause of Action); retaliation (Second Cause of Action); hostile work environment (Third Cause of Action); and age discrimination (Fourth Cause of Action). (See generally id.) Now before the Court is Defendant's Motion for Summary Judgment. (Dkt. No. 38.) Defendant filed this Motion on October 16, 2020. (Id.) After requesting and receiving an extension of time to respond, Plaintiff filed a Response in Opposition to Defendant's Motion on November 13, 2020. (Dkt. No. 41.) On December 2, 2020, Defendant filed a timely reply. (Dkt. No. 42.) As such, the motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that 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)).
“As the moving party, Defendant[] [is] required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which [it] believe[s] demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 317). “Plaintiff[] may not rest on mere allegations or denials; [he] must produce ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.” Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2 (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).
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.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party 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.” Sandlands C & D LLC v. County of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). “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.
DISCUSSION
Here, Defendant claims that it is entitled to summary judgment on each of Plaintiff's causes of action because Plaintiff “has not, and cannot, proffer sufficient credible evidence of his claims for age and race-based failure to promote, retaliation, and hostile work environment harassment.” (Dkt. No. 42 at 1.) For the reasons set forth below, the undersigned agrees that Defendant is entitled to summary judgement on all of Plaintiff's claims. The undersigned therefore recommends that Defendant's Motion for Summary Judgment (Dkt. No. 38) be granted and that this case be dismissed in full.
In its reply to Plaintiff's response to its Motion for Summary Judgment, Defendant requests that portions of Plaintiff's response be stricken because such portions constitute “improperly cited evidence and unsupported assertions.” (Dkt. No. 42 at 3.) However, the undersigned finds that striking portions of Plaintiff's response is a drastic sanction inappropriate under the circumstances before the Court. See Graves v. Horry-Georgetown Technical College, 512 F.Supp.2d 413, 417 (D.S.C. 2007). The undersigned has independently reviewed the record evidence in making the recommendations contained herein and therefore concludes that any evidentiary mischaracterizations in Plaintiff's brief are inconsequential.
I. Discrimination in Violation of Section 1981 and the ADEA
Section 1981 states that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). Plaintiff brings a race discrimination claim under Section 1981 and an age discrimination claim under the ADEA. (Dkt. No. 1 at 10-11, 14-15.)
When, as here, the plaintiff lacks direct evidence of discrimination, he must satisfy the three-step burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to prevail on a claim under the ADEA or Section 1981. Jeffers v. Lafarge N. Am., Inc., 622 F.Supp.2d 303, 315 (D.S.C. 2008) (ADEA context); Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (Section 1981 context). Under the McDonnell Douglas paradigm, the plaintiff must first establish the elements of a prima facie discrimination claim.
Plaintiff has failed to present any convincing direct evidence of age or race discrimination. See, e.g., Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (holding that direct evidence is “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision”); see also Martin v. Alumax of S.C., Inc., 380 F.Supp.2d 723, 728 (D.S.C. 2005) (noting that “statements by nondecisionmakers, ” and “statements by decisionmakers unrelated to the decisional process itself” do not constitute direct evidence). In fact, when asked if he had any evidence that he was treated unfairly by Defendant, Plaintiff said “no.” (Dkt. No. 38-2 at 72-73.) Accordingly, the undersigned analyzes Plaintiff's discrimination claims pursuant to the McDonnell Douglas pretext framework.
With respect to Plaintiff's race discrimination claim, Plaintiff can make a prima facie case by demonstrating: (1) membership in a protected class; (2) satisfactory work performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class, or some other evidence giving rise to an inference of unlawful discrimination. Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 719 (D.S.C. 2014); Perkins v. Int'l Paper Co., 936 F.3d 196, 207 (4th Cir. 2019) (referencing Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)); Gairola v. Va. Dep't of Gen. Servs., 753 F.2d 1281 (4th Cir. 1985) (“Under Title VII and either § 1981 or § 1983, the elements of the required prima facie case [for employment discrimination] are the same.”). As for his age discrimination claim, Plaintiff can establish a prima facie case by showing that: (1) he is at least 40; (2) he was performing his job to the legitimate expectations of his employer; (3) his employer took an adverse employment action against him; and (4) the adverse employment action occurred under circumstances that raise a reasonable inference of unlawful discrimination (e.g., younger similarly-situated employees received more favorable treatment). See Wakefield-Brace v. Greenwood Sch. Dist. 50, No. 8:16-cv-2750-MGL-KFM, 2017 WL 9286975, at *8 (D.S.C. May 25, 2017), adopted, 2017 WL 2569846 (D.S.C. June 14, 2017) (referencing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). In short, the plaintiff must prove that race or age was the “but for” cause of the adverse action(s) at issue. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); see also Bolling v. Virginia Commonwealth Univ., 829 F.2d 34 (4th Cir. 1987) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981)); McDonnell Douglas Corp., 411 U.S. at 792) (“A plaintiff's burden in a racial discrimination case . . . is to demonstrate that but for his race, the challenged personnel action would not have been taken against him.”); Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019) (noting that “the employee must prove that the employer would not have fired her in the absence of age discrimination”) (emphasis in original).
If the plaintiff can set forth the elements of a prima facie case of discrimination, the burden then shifts to the employer to show “a legitimate, nondiscriminatory reason” for the alleged adverse action(s). See Westmoreland, 924 F.3d at 725; Ferguson, 18 F.Supp.3d at 719. If the employer provides a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff “to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant-employer were not its true reasons, but were a pretext for discrimination.” Westmoreland, 924 F.3d at 726 (referencing Burdine, 450 U.S. at 253-54); see also Ferguson, 18 F.Supp.3d at 719 (referencing McDonnell Douglas Corp., 411 U.S. at 802-05). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253. Here, the undersigned finds that Plaintiff's discrimination claims fall short under the fourth element of his prima facie case.
At the outset, the undersigned notes that not every personnel decision constitutes an adverse employment action for purposes of a disparate treatment claim. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 570 (D.S.C. 2013); see also Thorn v. Sebelius, 766 F.Supp.2d 585, 599 (D. Md. 2011), aff'd, 465 Fed.Appx. 274 (4th Cir. 2012) (“[N]ot everything that makes an employee unhappy is actionable adverse action.”). “An adverse employment action is a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiff's employment.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004); see also Newman v. Giant Food, Inc., 187 F.Supp.2d 524, 528 (D. Md. 2002), aff'd sub nom. Skipper v. Giant Food Inc., 68 Fed.Appx. 393 (4th Cir. 2003). Thus, to be cognizable, the adverse employment action must have a “significant detrimental effect” on the employee, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Peary v. Goss, 365 F.Supp.2d 713, 722 (E.D. Va. 2005), aff'd, 180 Fed.Appx. 476 (4th Cir. 2006); see also Blakney v. N. Carolina A&T State Univ., No. 1:17-cv-874, 2019 WL 1284006, at *14 (M.D. N.C. Mar. 20, 2019) (citing Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011)). Although the plaintiff need not allege discharge or demotion to satisfy the third prong, less severe employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization” in order to survive summary judgment. See Blakney, 2019 WL 1284006, at *15 (referencing Boone v. Goldin, 178 F.3d 253, 256-57 (4th Cir. 1999)).
In the instant case, Plaintiff alleges that Defendant discriminated against him by denying him training, failing to transfer him, and failing to promote him. (Dkt. No. 1 at 5-15.) For the reasons set forth below, the undersigned finds that only Defendant's failure to promote Plaintiff constitutes an adverse employment action.
Plaintiff first claims that he suffered an adverse employment action when Defendant denied him certain trainings. (See generally Dkt. No. 1; Dkt. No. 38-1; Dkt. No. 41.) According to Plaintiff, Defendant denied him the opportunity to participate in leadership training, “Landfill 101” training, and operations manager training. (Dkt. No. 1 at 4-5.) Although Plaintiff seems to suggest that he needed these specific trainings in order to further develop his career, (Dkt. No. 38-2 at 47-48), he cannot demonstrate that Defendant's actions in denying him these trainings had any “significant detrimental effect” on his employment. Peary, 365 F.Supp.2d at 722 (stating that an adverse employment action must have a “significant detrimental effect” on the employee, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits). Rather, nothing in the record reflects that Plaintiff was required to participate in these trainings, nor does the record reflect that Plaintiff was denied promotional opportunities because of his failure to complete them. (See generally Dkt. No. 38-8; Dkt. No. 38-13; Dkt. No. 38-18.) In fact, the record demonstrates that Plaintiff's Second Level Manager, Robert Carter, offered Plaintiff a special training opportunity in which Plaintiff would train under an employee in a separate division of the company to expand his knowledge and gain experience. (Dkt. No. 38-2 at 45-47; Dkt. No. 38-4 at 4-5.) The record also demonstrates that Plaintiff was ultimately enrolled in a later session of the “Landfill 101” training for which he was initially rejected. (Dkt. No. 38-2 at 55; Dkt. No. 38-4 at 4-5; Dkt. No. 389 at 2-3.) Thus, Plaintiff simply cannot establish that he experienced any significant detrimental effect on his employment as a result of Defendant's failure to provide him with the specific training opportunities he requested. See Blakney, 2019 WL 1284006, at *15 (“[A] plaintiff need not allege discharge or demotion to satisfy the third prong, [but] less severe employment actions ‘must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization' in order to survive summary judgment.” (quoting Boone, 178 F.3d at 256-57)).
To the extent Plaintiff argues that Defendant's failure to provide him with “succession planning” constitutes an adverse employment action, the undersigned finds this argument unconvincing. (Dkt. No. 41 at 23-25.) The record indicates that “succession planning” is reserved for exceptional employees who take it upon themselves to outline career development strategies. (Dkt. No. 44-1 at 2-3.) Further, nothing in the record indicates that Plaintiff requested to partake in any such “succession planning.”
Plaintiff does contend that one of Defendant's employees told him “[y]ou have to get into Landfill 101” after Plaintiff asked “[w]hat are my steps [for advancement]?” (Dkt. No. 38-2 at 48.) However, as noted, Plaintiff was given the opportunity to participate in that training. (Dkt. No. 38-2 at 55; Dkt. No. 38-4 at 45; Dkt. No. 38-9 at 2-3.)
Defendant contends that it denied Plaintiff's first request to participate in this training due to budgetary restraints. (Dkt. No. 38-1 at 20; Dkt. No. 38-3 at 5.)
Further, Plaintiff cannot establish that Defendant's failure to transfer him was an adverse action. Stewart v. Ross, No. 1:16-cv-213-LMB-JFA, 2020 WL 1907471, at *16 (E.D. Va. Apr. 17, 2020), aff'd, 833 Fed.Appx. 995 (4th Cir. 2021) (citing Charlot v. Donley, No. 3:11-cv-00579-MBS, 2014 WL 1319182, at *14 (D.S.C. Mar. 31, 2014); Forgus v. Mattis, 753 Fed.Appx. 150, 153 (4th Cir. 2018); Melendez v. Bd. of Education for Montgomery Cty., 711 Fed.Appx. 685, 688 (4th Cir. 2017)) (explaining that several courts have held that denial of a request to transfer is not an adverse action). As noted above, Plaintiff applied to three jobs during the relevant period: landfill supervisor, operations manager, and heavy equipment operator. (Dkt. No. 38-1 at 6-7.) Plaintiff testified that the heavy equipment operator position would have been a lateral transfer. (Dkt. No. 38-2 at 21.) “[R]efusal to grant a transfer that an employee desires does not qualify as an adverse employment action unless the decision had some significant detrimental effect on the employee.” Duong v. Bank of Am., N.A., No. 1:15-cv-784,, at *3 (E.D. Va. Mar. 2, 2016) (citing Wagstaff v. City of Durham, 233 F.Supp.2d 739, 744 (M.D. N.C. 2002), aff'd, 70 Fed. App'x 725 (4th Cir. 2003)). Here, Plaintiff does not allege that Defendant's failure to transfer him to the heavy equipment operator position had a significant detrimental effect on his employment, and the record does not support a contrary finding. (See generally Dkt. No. 1; Dkt. No. 38-2; Dkt. No. 41.) Plaintiff actually argues that a transfer to heavy equipment operator would have been “a large step backwards in [his] career.” (Dkt. No. 41 at 11.) As such, Defendant's failure to transfer Plaintiff cannot constitute an adverse action.
To the extent Plaintiff argues that he was constructively discharged, this argument also fails. To demonstrate constructive discharge, a plaintiff must show “that his employer ‘deliberately made [his] working conditions intolerable in an effort to induce [him] to quit.'” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 262 (4th Cir. 2006) (quoting Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 272 (4th Cir. 2001)). Plaintiff alleges only that he was constructively discharged on account of Defendant's “discrimination [and] failure to provide the Plaintiff a fair opportunity.” (Dkt. No. 41 at 4.) However, for the reasons set forth herein, Plaintiff cannot demonstrate that he suffered any disparate treatment or that he was subjected to a hostile work environment. As such, he cannot establish that he was constructively discharged based on these actions. Further, Plaintiff's resignation letter states that he resigned because he was “offered a position with another company that [he could not] pass up.” (Dkt. No. 38-23 at 2.)
The undersigned therefore finds that the only adverse action Plaintiff suffered in this case was Defendant's failure to promote him. See Peary, 365 F.Supp.2d at 722 (stating that failure to promote is an “ultimate employment decision” that constitutes an adverse action that may give rise to a disparate treatment claim (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001))). Thus, the undersigned limits her analysis under the fourth prong of Plaintiff's prima facie case to Defendant's alleged failure to promote. As is more fully discussed below, Plaintiff has failed to establish that Defendant's failure to promote him was the result of any sort of discrimination-agebased, race-based, or otherwise.
At the outset, the undersigned notes that Plaintiff has failed to demonstrate that he was treated differently than similarly situated employees who were younger and/or of a different race. See Ferguson, 18 F.Supp.3d at 719 (describing the fourth element of a prima facie case of race discrimination); Wakefield-Brace, 2017 WL 9286975, at *8 (describing the same in ADEA context). Although Plaintiff is not required as a matter of law to identify a similarly-situated comparator to satisfy the fourth prong of his prima facie case, Plaintiff bases his allegations of discrimination largely on the contention that Defendant treated younger, Caucasian employees more favorably. (Dkt. No. 1 at 10, 14.) “When a plaintiff bases [his] discrimination claim on a similarly situated comparator, it is the plaintiff's ‘task to demonstrate that the comparator is indeed similarly situated.'” Davis v. Centex Homes, No. 4:09-cv-830-RBH-SVH, 2011 WL 1525764, at *3 (D.S.C. Apr. 1, 2011), adopted sub nom. Davis v. Centex Int'l II LLC, 2011 WL 1526928 (D.S.C. Apr. 20, 2011) (internal citations omitted). In doing so, Plaintiff must demonstrate that he is similar in all relevant respects to his alleged comparators. Hurst v. D.C., 681 Fed.Appx. 186, 191 (4th Cir. 2017). Such a showing includes evidence that the individuals 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.” Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Here, Plaintiff does not identify any similarly situated comparators who were promoted. (See generally Dkt. No. 38-2; Dkt. No. 41.)
Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003).
Although Plaintiff identifies comparators, such as Misty Arter, Nick Parker, and Caroline Collins, he does not allege that these comparators were promoted. (Dkt. No. 38-2 at 40, 51-44, 72; Dkt. No. 38-3 at 5, 10; Dkt. No. 41 at 23-25.) Rather, Plaintiff alleges that these comparators were trained and developed in ways that Plaintiff was not. Because the undersigned has concluded that Defendant's alleged failure to train Plaintiff does not constitute an adverse action, the undersigned declines to address Plaintiff's arguments regarding these comparators. (See supra at 9-10.)
Moreover, Plaintiff does not offer any evidence or circumstances that would give rise to an inference of discrimination under the fourth prong of her prima facie case. In fact, Plaintiff agreed that he was not qualified for the promotions to which he applied. As noted above, Plaintiff applied for three positions-landfill supervisor, operations manager, and heavy equipment operator. (See supra at 2.) Plaintiff testified that one of those positions (heavy equipment operator) was not a promotion. (Dkt. No. 38-2 at 21.) Thus, the undersigned limits her analysis to the landfill supervisor position and the operations manager position.
With respect to the landfill supervisor role, Plaintiff stated “no” when asked if he thought he was qualified to supervise a landfill. (Dkt. No. 38-2 at 25.) More specifically, Plaintiff stated “I wasn't qualified, but [I] put [my] name in the hat so people could see that [I was] interested.” (Id.) As for the operations manager position, Plaintiff conceded that he was not the right fit for the job. (Id. at 36-37.) He stated that “to run that division, you need somebody not fresh, you need somebody well versed, ” and that he and the hiring manager agreed that Plaintiff did not have the requisite experience for the position. (Id. at 37-38.) Accordingly, the undersigned finds that Plaintiff has failed to show that he was denied a promotion under circumstances that raise a reasonable inference of unlawful discrimination.
However, even if Plaintiff could make a prima facie showing of discrimination, he still fails to raise a genuine question of material fact as to whether Defendant's legitimate, nondiscriminatory reason for failing to promote him was pretext for discrimination. Defendant contends that Plaintiff was not given either of the promotions to which he applied because he was not qualified for them, (Dkt. No. 38-1 at 16-17), and the evidence of record supports this contention (Dkt. No. 38-2 at 25, 37-38; Dkt. No. 383 at 31; Dkt. No. 38-7 at 10-11; Dkt. No. 38-8 at 2; Dkt. No. 38-13 at 2; Dkt. No. 38-19 at 8). Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) (citing Burdine, 450 U.S. at 258-59; Young v. Lehman, 748 F.2d 194, 198 (4th Cir.), cert. denied, 471 U.S. 1061 (1985)) (“Job performance and relative employee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision.”). As noted, Plaintiff agrees that he was not qualified for the positions to which he applied. (See supra at 13.) Even if Plaintiff disagreed with this contention, he has not presented any evidence from which a reasonable jury could find that Defendant's failure to promote him was discriminatory. For instance, Plaintiff had no prior relationship with any of the decisionmakers who declined to promote him and nothing in the record suggests that any decisionmakers inappropriately considered Plaintiff's race or age in making their determinations. Wileman v. Frank, 979 F.2d 30, 38 (4th Cir. 1992) (“[An] employer has discretion to choose among equally qualified candidates provided the decision is not based upon unlawful criteria.”). Further, Plaintiff fails to provide any evidence indicating that he was more qualified for the positions than those who were ultimately selected to fill them. Evans, 80 F.3d at 960 (citing Gairola, 753 F.2d at 1287; Young, 748 F.2d at 198) (“In a failure to promote case, the plaintiff must establish that [he] was the better qualified candidate for the position sought.”).
In any case, federal discrimination statutes are not vehicles for “substituting the judgment of a court for that of the employer.” Thompson v. Rock Hill Sch. Dist. III, No. 0:13-cv-01889-JFA, 2014 WL 5369775, at *12 (D.S.C. Oct. 22, 2014) (citing Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir. 1995); see also Malghan v. Evans, 118 Fed.Appx. 731 (4th Cir. 2004) (“[T]he law does not require an employer to make, in the first instance, employment choices that are wise, rational, or even well-considered, as long as they are nondiscriminatory.”) Thus, even if Defendant discounted Plaintiff's qualifications, it is not this Court's place to decide whether Defendant's reasoning “was wise, fair, or even correct, ultimately, so long as it truly was the reason” for the alleged adverse action. Hawkins v. Pepsico, 203 F.3d 274, 279 (4th Cir. 2000) (citing DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)). Because Plaintiff has failed to present evidence that intentional discrimination was the “but for” reason for Defendant's failure to promote him, the undersigned is constrained to recommend that the Court grant Defendant's Motion for Summary Judgment (Dkt. No. 38) as to Plaintiff's claims for race discrimination in violation of Section 1983 and age discrimination in violation of the ADEA.
II. Retaliation in Violation of the Section 1981 and Title VII
Plaintiff may establish unlawful retaliation under Title VII or Section 1981 through either the mixed-motive framework or the McDonnell Douglas pretext framework. See Perkins, 936 F.3d at 206 n.4 (referencing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015)). Because Plaintiff has not presented any direct or circumstantial evidence of retaliation here, the undersigned again analyzes Plaintiff's claims pursuant to the familiar burden-shifting pretext framework.
Under this framework, the plaintiff must first make a prima facie showing of retaliation by proving that: (1) he engaged in a protected activity; (2) his employer took a materially adverse action against him; and (3) there was a causal link between the two events. Perkins, 936 F.3d at 213; Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (“A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements [as a Title VII retaliation claim].”). In order to establish a causal connection between the protected activity and alleged retaliation, the plaintiff must establish that the decisionmaker had knowledge that he engaged in the protected activity and retaliated against him because of that protected activity. Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007); see also Lambert v. Centerra Grp., Inc., No. 1:18-cv-520-TLW-PJG, 2019 WL 8164782, at *4 (D.S.C. Aug. 19, 2019), adopted, 2020 WL 1082244 (D.S.C. Mar. 6, 2020) (referencing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 362 (2013)) (“A plaintiff must show that but for the protected activity, he would not have experienced the alleged adverse act.”).
If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. Marzett v. Charleston Cty. Sch. Dist., No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at *10 (D.S.C. Jan. 27, 2017), adopted, 2017 WL 589110 (D.S.C. Feb. 14, 2017), aff'd, 697 Fed.Appx. 186 (4th Cir. 2017) (referencing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998)). The plaintiff then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id.
Defendant first argues that Plaintiff cannot establish a prima facie claim of retaliation because he did not engage in a protected activity. (Dkt. No. 38-1 at 22.) Protected activity is conduct by an employee which resists or confronts “an employment practice made unlawful” by a federal discrimination statute. See, e.g., Sutton v. Vilsack, No. 2:12-cv-01386-DCN, 2014 WL 4199163, at *8, n.10 (D.S.C. Aug. 20, 2014). While the Fourth Circuit has “articulated an expansive view of what constitutes oppositional conduct” for purposes of retaliation, federal employment laws do not prohibit private employers from retaliating against an employee based on opposition to discriminatory practices that are outside the scope of Section 1981 or Title VII. Stennis v. Bowie State Univ., 716 Fed.Appx. 164, 167 (4th Cir. 2017). In other words, Plaintiff must allege that he opposed discrimination based on a protected characteristic in order to show actionable protected activity. Hemphill, 975 F.Supp.2d at 561.
Plaintiff contends that he engaged in protected activity when he complained to his supervisor, Odell Armstrong, about comments his Second Level Manager, Robert Carter, made regarding his hairstyle. (Dkt. No. 41 at 25.) However, the record does not reflect that Plaintiff opposed discrimination based on a protected characteristic when making these complaints. Hemphill, 975 F.Supp.2d at 561. Rather, Plaintiff testified that he did not feel that Mr. Carter's comments about his hairstyle were race-based. (Dkt. No. 38-2 at 60-70.) In fact, Plaintiff confirmed that Mr. Carter never mentioned Plaintiff's race in connection with his comments about Plaintiff's hair. (Id. at 69.) Plaintiff explained that Mr. Carter's comments made him feel “uneasy” because Mr. Carter's frequent complimenting of Plaintiff's hairstyle made it seem as if Mr. Carter was “interested” in him. (Id. at 62-69.) As such, Plaintiff cannot establish that these complaints constitute protected activity for purposes of his claim of “retaliation for complaints regarding race discrimination.” (Dkt. No. 1 at 11.)
Nothing in the record, including Mr. Armstrong's testimony, confirms Plaintiff's assertion that he complained about Mr. Carter's comments. (See generally Dkt. No. 38-19.) Nonetheless, the undersigned considers the facts in the light most favorable to Plaintiff and takes his assertion as true. Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (noting that “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor'” when evaluating a motion for summary judgment (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))).
Nonetheless, the record reflects that Plaintiff later complained to Mr. Armstrong of unfair treatment due to his race. (Dkt. No. 38-19 at 4.) Mr. Armstrong recounts that Plaintiff came to him with this complaint after he was denied the opportunity to participate in a “management training program.” (Id.) Considering the facts in the light most favorable to Plaintiff, the undersigned assumes this complaint suffices as a complaint of racial discrimination that constitutes protected activity for purposes of Plaintiff's retaliation claim. Hunt, 526 U.S. at 552 (noting that “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor'” when evaluating a motion for summary judgment (quoting Anderson, 477 U.S. at 255)); Bowman v. Holopack Intern. Corp., No. 3:06-cv-1648-CMC, 2007 WL 4481130, at *14 (D.S.C. Dec. 19, 2007) (“[T]he opposition clause encompasses informal protests, such as voicing complaints to superiors or protests using an employer's grievance procedures.”).
Even so, Plaintiff's retaliation claim cannot survive because he did not experience an adverse action following his complaint to Mr. Armstrong. See Perkins, 936 F.3d at 213 (explaining that a plaintiff must demonstrate that his employer took an adverse action against him on account of his protected conduct). Though the exact date of Plaintiff's complaint is unclear, Mr. Armstrong explains that Plaintiff complained to him after Plaintiff was denied the opportunity to participate in a “management training program.” (Dkt. No. 38-19 at 4.) As noted above, Plaintiff alleges that Defendant's failure to train, transfer, and promote him constitute adverse actions. (See supra at 9-12.) However, Plaintiff applied for each of the training, transfer, and promotional opportunities at issue prior to being denied for the management training program. (See supra at 2; see generally Dkt. No. 1; Dkt. No. 38-1; Dkt. No. 38-11.) Because Plaintiff suffered no other adverse actions, he cannot show that Defendant retaliated against him on account of his protected activity and his retaliation claim must fail. See Perkins, 936 F.3d at 213 (describing the elements of a prima facie case of retaliation). The undersigned therefore recommends that the Court grant Defendant's Motion for Summary Judgment (Dkt. No. 38) on this claim.
Even assuming that Plaintiff could make a prima facie case of retaliation, Plaintiff's claim would fail because he cannot show pretext. More specifically, Plaintiff does not present any evidence from which a reasonable jury could conclude that any of Defendant's actions were retaliatory. (See generally Dkt. No. 41.) In fact, Defendant correctly notes that nothing in the record suggests that the individuals responsible for any alleged retaliatory acts against Plaintiff ever knew of his complaints to Mr. Armstrong. (Dkt. No. 38-1 at 22-24.)
III. Hostile Work Environment in Violation of Section 1981 and Title VII
“A hostile environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Boyer-Liberto, 786 F.3d at 277 (internal quotation marks and citations omitted). To prevail on his hostile workplace claim, Plaintiff must show that there was (1) unwelcome conduct; (2) based on a protected characteristic; (3) which was sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) which is imputable to the employer. See id. (citing Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)). In demonstrating a hostile work environment, the plaintiff must establish that the environment was “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that [the plaintiff] in fact did perceive to be so.” See Fudge v. Sentinel Office Payroll Corp., No. 2:13-cv-01840-CWH, 2015 WL 5682639, at *9-10 (D.S.C. Sept. 25, 2015) (referencing Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
In support of his claim, Plaintiff argues that “he endured rejection after rejection despite notifying the Defendant of his intention to move forward with his career . . . suffer[ed] through commentary on his hair because of the difference between black and white hair styles, [and was] rejected . . . for leadership training.” (Dkt. No. 41 at 29.) Plaintiff further argues that “[w]hen taking the complete work environment of the Plaintiff it is clear that [unwelcome conduct based on a protected characteristic] was severe and pervasive.” (Id.) Defendant argues that the alleged conduct falls short of a hostile work environment because Plaintiff has failed to show that the harassment was sufficiently severe or pervasive. (Dkt. No. 38-1 at 25.) The undersigned agrees.
The undersigned also notes that Plaintiff cannot show that “but for” his race, he would not have been the victim of Defendant's alleged harassment because Plaintiff has provided no evidence that any of Defendant's actions were racially motivated. Pueschel v. Peters, 577 F.3d 558, 565 (4th Cir. 2009). It is well-established that bare, conclusory opinions are insufficient to establish a hostile work environment. See, e.g., Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 570 (D.S.C. 2013) (noting that although two managers may not have “professionally valued” or “personally liked” plaintiff, the fact that plaintiff's managers disliked her and made her job more stressful as a result did not establish a claim for hostile work environment, “absent some independent evidence of racial animosity”).
In determining whether Defendant's purported harassment was sufficiently severe or pervasive to bring it within the purview of Title VII or Section 1981, the undersigned must examine the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with [Plaintiff's] work performance.” See Fudge, 2015 WL 5682639, at *10 (referencing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); see also Dufau v. Price, 703 Fed.Appx. 164, 166 (4th Cir. 2017). It is well-established that “incidents that would objectively give rise to bruised or wounded feelings” do not, without more, satisfy the severe and pervasive standard. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
Here, Plaintiff's hostile work environment claim is based largely on his inability to obtain professional development opportunities and promotions. (Dkt. No. 1 at 4-9, 13.) However, Defendant correctly notes that such events cannot support a hostile work environment claim because they “cannot reasonably be described as either frequent, physically threatening or humiliating.” Perkins, 936 F.3d at 209. Further, Plaintiff does not allege that these events interfered with his ability to perform his job. See id. (finding that plaintiff failed to allege requisite level of severity and pervasiveness required for hostile work environment claim where he did not allege that the incidents at issue interfered with his ability to perform his job). In fact, Plaintiff argues that he “maintained his employment and met or exceeded in performance” despite Defendant's rejections. (Dkt. No. 41 at 29.)
Plaintiff's allegations regarding Mr. Carter's comments about his hair also fall short of establishing a hostile work environment. Plaintiff describes Mr. Carter's comments as compliments, not intimidation, ridicule, or insults. (Dkt. No. 38-2 at 63.) Although Plaintiff does suggest that the compliments were unwelcome, he also testified that he “barely [saw]” Mr. Carter. (Id. at 69.) Thus, Mr. Carter's alleged conduct simply cannot substantiate a work environment that is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, ” even when considering the facts in the light most favorable to Plaintiff. Boyer-Liberto, 786 F.3d at 277.
Moreover, the Fourth Circuit has consistently held that this kind of treatment does not rise to the level of severe and pervasive conduct required to substantiate a hostile work environment claim. See, e.g., Sunbelt Rentals, Inc., 521 F.3d at 315 (noting that complaints premised on nothing more than “rude treatment by co-workers, callous behavior by supervisors, or a routine difference of opinion and personality conflict with one's supervisors” do not establish a hostile work environment); Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) (finding that unpleasant working conditions are not so intolerable as to compel a reasonable person to resign) (internal citations omitted). Accordingly, Plaintiff has failed to establish his hostile work environment claim and the undersigned therefore recommends that this claim be dismissed.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Motion for Summary Judgment (Dkt. No. 38) be granted and that Plaintiff's claims be dismissed in full.
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 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).