Opinion
Civil Action No. 8:18-cv-01876-HMH-JDA
12-20-2019
Sherry L. Quinn, Plaintiff, v. South Carolina Department of Transportation, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's motions for judgment on the pleadings [Doc. 68] and for review on statute of limitations and grant relief of equitable tolling and/or relief estoppel to file discrimination claim [Doc. 70], and on Defendant's motion for summary judgment [Doc. 69]. Proceeding pro se, Plaintiff alleges violations under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), the Americans with Disabilities Act ("ADA"), and the Equal Pay Act ("EPA"). [Doc. 1-5 at 3.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff brought suit in this Court on July 9, 2018. [Doc. 1.] On April 23, 2019, the Court granted Defendant's partial motion to dismiss the ADA claims and request for punitive damages. [Doc. 58; see Doc. 53.] On July 26, 2019, Plaintiff filed a motion for judgment on the pleadings regarding her EPA claim and a motion for review on statute of limitations and grant relief of equitable tolling and/or relief estoppel to file discrimination claim ("Plaintiff's motions"). [Docs. 68; 70.] On July 29, 2019, Defendant filed a motion for summary judgment. [Doc. 69.] On August 2, 2019, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment procedure and of the possible consequences if she failed to adequately respond to Defendant's motion. [Doc. 74.] Responses and replies have been filed related to all motions. [Docs. 76; 77; 83; 84; 89; 91.] Accordingly, all three motions are now ripe for review.
In this motion, Plaintiff "requests equitable and/or estoppel tolling relief and [a Court] order that [Plaintiff's] complaint of employment discrimination was factually and appropriately filed within the statute of limitation." [Doc. 70 at 1.]
BACKGROUND
The Background section is a summary of the allegations contained in Plaintiff's charge of discrimination, which she incorporates in the Complaint.
As an employee of Defendant, Plaintiff "was subjected to intimidation" and "disparate terms and conditions" and was "denied equal wages from on or about September 1, 2010, through on or about May 12, 2017." [Doc. 1-1 at 2.] Plaintiff was "denied equal opportunities for career development, enrichment, and seminar/convention participation"; "evaluated unequally compared to the evaluations of similarly-situated employees"; "excluded from chain of command communications between managers/subordinates (males)"; "denied promotions to positions for which [she was] qualified"; and "paid lower wages than other employees (male) in similar positions and male subordinates." [Id.] Defendant "has shown a pattern and practice of limiting the advancement opportunities of female employees and treating them less favorably than males." [Id.] Additionally, Plaintiff was subjected to a hostile work environment by her male supervisor and her male subordinates, one of whom "threatened [her] with physical harm." [Id.] She "complained to Human Resources (HR), but no corrective action was taken." [Id.] Then, while she was "on medical leave due to a severe injury, [her] disability income was incorrectly calculated based on [her] previous salary before the salary increase mandated by the state legislature, and [her] insurance premium contribution incorrectly included the premium for [her] long term disability insurance, both of which resulted in a decrease in [her] benefits." [Id.] Plaintiff "was subjected to such treatment because of [her] sex, medical condition, and in retaliation for [her] complaints of discrimination." [Id.]
Plaintiff "was denied a reasonable accommodation from February 14, 2017, through on or about May 12, 2017." [Id. at 3.] Plaintiff "was released by [her] doctor to return to work following medical leave related to [her] injury." [Id.] "However, [her] job description was amended while [she] was on leave to include duties that would prevent [her] from returning with [her] restrictions." [Id.] Additionally, her "requests to transfer to a position where [she] would be able to work with [her] restrictions, or work from home, were denied." [Id.] "[O]ther employees (male) were allowed to work from home." [Id.] She "was denied a reasonable accommodation and the same opportunities afforded to male employees because of [her] medical condition [and] sex, and in retaliation for her complaints." [Id.]
Plaintiff "was discharged on or about May 12, 2017" and "not allowed to return to work and separated from service due to [Defendant's] rejection of [her] requests for reasonable accommodation." [Id.] Plaintiff's "employment was terminated because of [her] medical condition and in retaliation for [her] complaints." [Id.] She was "discriminated against based on [her] sex (female) [and] qualified disability, and in retaliation for engaging in [protected activities]." [Id.]
In August 2017, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the South Carolina Human Affairs Commission ("SCHAC") based on the allegations set out above. [Doc. 1-1 at 2-3.] Plaintiff received her Notice of Right to Sue and initiated the present action. [Docs. 1; 1-1 at 5.] Her Complaint demands reinstatement of employment as well as compensatory and punitive damages. [Doc. 1-5 at 5-6.]
Plaintiff had filed an Inquiry Questionnaire with the SCHAC on January 4, 2017. [Docs. 69-3 at 23-24; 69-5 at 6-14.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Judgment on the Pleadings Standard
Rule 12(c) permits a party to move for judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial. . . . " Fed. R. Civ. P. 12(c). In reviewing a motion for judgment on the pleadings, a court should "construe the facts and reasonable inferences . . . in the light most favorable to the [nonmoving party]." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Thus, "[t]he court must accept all well pleaded factual allegations in the non-moving party's pleadings as true and reject all contravening assertions in the moving party's pleadings as false." Integon Gen. Ins. Co. v. Bartkowiak ex rel. Bartkowiak, No. 7:09-cv-03045-JMC, 2010 WL 4156471, at *2 (D.S.C. Oct. 19, 2010) (internal quotation marks omitted). A court should grant a motion for judgment on the pleadings "only if the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law." Lewis v. Excel Mech., LLC, No. 2:13-cv-281, 2013 WL 4585873, at *2 (D.S.C. Aug. 28, 2013) (internal quotation marks omitted).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.adverse party cannot produce admissible evidence to support the fact.
DISCUSSION
Defendant argues that it is entitled to summary judgment on all of Plaintiff's claims. The undersigned agrees and will address the claims seriatim.
Defendant argues that most of Plaintiff's claims are time-barred. [Doc. 69-1 at 7-13; 28-30.] Because the undersigned concludes that Defendant is entitled to summary judgment on each claim independent of any statute-of-limitations issues, the undersigned does not address those issues and recommends that Plaintiff's motion for review on statute of limitations and grant relief of equitable tolling and/or relief estoppel to file discrimination claim [Doc. 70] be found as moot.
Title VII
Discrimination and Retaliation Claims
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either "opposed any practice made an unlawful employment practice by this subchapter" or has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The purpose of this antiretaliation provision is to prevent "an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006).
Through the two clauses of the antiretaliation provision, Title VII protects activities that "fall into two distinct categories: participation or opposition." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). For purposes of these motions, Defendant does not dispute that Plaintiff engaged in opposition activity. [Doc. 69-1 at 26-27.]
Absent direct or indirect evidence of discrimination or retaliation, a Title VII plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to establish a claim of employment discrimination or retaliation. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015); Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802.
To establish a prima facie case of discrimination under Title VII, a plaintiff must demonstrate (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was performing his job duties at a level that met the employer's legitimate expectations at the time of the adverse employment action; and (4) other employees who are not members of the protected class did not suffer the adverse employment action under similar circumstances. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002); see also EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n.2 (4th Cir. 2001) ("What is critical with respect to the fourth element is that the plaintiff demonstrate he was not hired (or fired or not promoted, etc.) 'under circumstances which give rise to an inference of unlawful discrimination.'" (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981))). To establish a prima facie case of retaliation, a plaintiff must demonstrate "(1) she engaged in a protected activity, (2) the employer acted adversely against her, and (3) there was a causal connection between the protected activity and the asserted adverse action." Hoyle v. Freightliner, LLC, 650 F.3d 321, 337(4th Cir. 2011) (citing Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007)).
If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory and nonretaliatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination or retaliation created by the prima facie case, and "[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,510-11 (1993) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). If the employer articulates a legitimate, nondiscriminatory and nonretaliatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination or retaliation. McDonnell Douglas, 411 U.S. at 804.
Plaintiff points to several actions that she claims constituted adverse employment actions taken against her because of her sex or in retaliation for her complaints of discrimination. The undersigned concludes that Plaintiff has failed to forecast evidence sufficient to survive summary judgment with regard to any of these actions.
Denial of Training/Career Advancement
Plaintiff alleges that she was "denied equal opportunities for career development, enrichment, and seminar/convention participation" because of her sex. [Doc. 1-1 at 2.] However, as Defendant argues, Plaintiff has not forecasted evidence that she was denied these opportunities under circumstances giving rise to an inference of unlawful discrimination. [Doc. 69-1 at 14.] Indeed, she testified in her deposition that although these development and training opportunities were not made available to her, they were made available to the other male and female employees in the Secondary Pavement Management unit in which she worked. [Docs. 69-4 at 30-31; 69-5 at 53]. Plaintiff identifies no basis for any reasonable inference that any denial of training or advancement was at all related to her sex. See Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010) (explaining that a prima facie case of disparate treatment requires proof of "different treatment from similarly situated employees outside the protected class"); see also Hawkins v. Pepsico, Inc., 203 F.3d 274, 282 (4th Cir. 2000) ("Law does not blindly ascribe to [sex] all personal conflicts between individuals of different [sexes] . . . . Instead, legally sufficient evidence is required to transform [a workplace] conflict . . . into an actionable claim of discrimination."). Accordingly, the undersigned concludes that Defendant is entitled to summary judgment as to any Title VII discrimination claim based on denial of training/career enhancement.
During her deposition, Plaintiff was asked why, given her admission that both males and females were being given opportunities of the type she claimed she was not receiving, that she thought she was being denied those opportunities because she was female. [Doc. 69-4 at 31.] She responded by describing one instance in which she asked her male supervisor if she could attend a particular conference, and he ended up selecting himself to attend. [Id. at 31-32.]
Unequal Evaluation
Plaintiff also claims that she was "evaluated unequally compared to . . . similarly-situated employees." [Doc. 1-1 at 2.] Defendant correctly argues that Plaintiff has not forecasted evidence of circumstances that give rise to an inference that her evaluations were the product of unlawful discrimination. [Doc. 69-1 at 14-15.] Indeed, during her deposition, Plaintiff could not identify any male employee who received a more favorable evaluation than she did. [Doc. 69-4 at 51-52.] The undersigned therefore concludes that Defendant is entitled to summary judgment as to any Title VII discrimination claim based on Plaintiff's evaluations.
Exclusion from Chain-of-Command Communications
Plaintiff also alleges she was "excluded from chain of command communications between managers/subordinates (males)." [Doc. 1-1 at 2.] Even assuming that such exclusion occurred, Defendant correctly argues that Plaintiff has forecasted no evidence that it occurred under circumstances giving rise to an inference of unlawful discrimination. [Doc. 69-1 at 15-16]. The undersigned therefore concludes that Defendant is entitled to summary judgment regarding any Title VII discrimination claim concerning her exclusion from chain-of-command communications.
Denial of Promotions
Plaintiff alleges that she was "denied promotions to positions for which [she was] qualified." [Doc. 1-1 at 2.] Plaintiff has identified only one promotion that she was denied within 300 days of January 4, 2017, the date that SCHAC received Plaintiff's initial questionnaire. [Doc. 69-3 at 24-25.] Defendant correctly argues that Plaintiff has not forecasted evidence that Defendant's decision not to give Plaintiff this promotion was under circumstances giving rise to an inference of unlawful discrimination. [Doc. 69-1 at 16-17.] Indeed, Plaintiff concedes that the one position she claimed she was denied was given to another female. [Docs. 69-3 at 24-31.] Accordingly, the undersigned concludes that Defendant is entitled to summary judgment on any Title VII sex discrimination claim based on denial of promotions.
Before filing suit under Title VII, a plaintiff must exhaust administrative remedies by filing a charge with the EEOC. Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). In South Carolina, the charge must be filed within 300 days after an "alleged unlawful employment practice" occurred. 42 U.S.C. § 2000e-5(e)(1); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009), abrogated on other grounds by Fort Bend Cty., Tx. v. Davis, 139 S. Ct. 1843, 1850-52 (2019). The Court notes that Defendant argues that the initial questionnaire is not a charge and, therefore, "only those acts of discrimination that occurred within the 300-day period preceding August 18, 2017, the date of [Plaintiff's] charge can be considered." [Doc. 69-1 at 9-10.] However, the Court need not resolve this issue because even using January 4, 2017, Plaintiff cannot establish her claim based on denial of promotions.
Denial of Accommodations
Plaintiff alleges she was denied the opportunity to work from home. [Doc. 1-1 at 3.] Defendant contends, however, that Plaintiff has not forecasted evidence that Defendant denied Plaintiff this opportunity under circumstances giving rise to an inference of unlawful discrimination. [Doc. 69-1 at 24-26.] During her deposition, Plaintiff conceded that she was not aware of any employee similarly situated to her regarding job duties and medical restrictions who was permitted to work from home. [Doc. 69-4 at 19-20.] Absent such evidence, Plaintiff's claim regarding denial of accommodations cannot succeed. See Swaso v. Onslow Cty. Bd. of Educ., No. 7:13-cv-224-FL, 2016 WL 6238523, at *5-6 (E.D.N.C. Oct. 25, 2016) (holding that plaintiff's allegations that her employer refused to allow her to return to work with medical conditions but allowed white teachers with "more serious health conditions" and "more restrictions" did not warrant inference of racial discrimination absent allegations showing that the purported comparators' job responsibilities and restrictions were similar to plaintiff's), aff'd, 698 F. App'x 745 (4th Cir. 2017). Additionally, Defendant points out that it has submitted the affidavit of Defendant's employee Chadwick Rawls asserting that the duties of Plaintiff's position, Field Engineer over a Secondary Pavement Management unit, cannot be performed from home and, for that reason, as supervisor over these units, he has not approved any Field Engineer in Secondary Pavement Management to work from home. [Docs. 69-1 at 26; 69-6 at 4-5.] Plaintiff has not forecasted any evidence that would create a genuine dispute regarding these facts either. The undersigned thus concludes that Defendant is entitled to summary judgment on any Title VII sex discrimination claim based on denial of accommodations.
In Swaso, the Fourth Circuit explained,
Where a plaintiff attempts to rely on comparator evidence to establish circumstances giving rise to an inference of unlawful discrimination . . ., the similarity between comparators must be clearly established in order to be meaningful. Overall, the inquiry simply asks whether there are sufficient commonalities on the key variables between the plaintiff and the would-be comparator to allow the type of comparison that, taken together with the other prima facie evidence, would allow a jury to reach an inference of discrimination.698 F. App'x at 748 (internal quotation marks, citations, and alterations omitted).
To the extent Plaintiff seeks to argue that Defendant is not entitled to summary judgment on her ADA failure-to-accommodate claim, all ADA claims have already been dismissed by a prior Order of this Court. [Doc. 58; see also Doc. 53.]
Pay
Plaintiff alleges that her salary was lower because of her sex. [Doc. 1-1 at 2.] When Plaintiff was asked at her deposition to identify a particular male comparator who was paid more than she was for work substantially equal to that which she performed, she identified only her two subordinates, Stanley Dorn and Roger Young. [Doc. 69-4 at 68, 75.] Even assuming that Plaintiff could establish a prima facie case of discrimination with regard to Plaintiff's salary, Defendant has submitted a legitimate, nondiscriminatory explanation for Dorn's and Young's salaries, namely, that they had significantly more seniority than Plaintiff. [Doc. 69-1 at 32, 35.] Indeed, salary records submitted by Defendant confirm that Dorn's and Young's salaries had increased significantly over the years. [Docs. 69-7 at 110-13.] Defendant submitted the affidavit of its employee Darlene Rikard, which stated that the "employees' different salaries were not due to their sex but were due to their individual employment history and salary history with [Defendant] within the State Classification and Compensation structure." [Id. at 6-7.] Plaintiff has forecasted no evidence from which it could be reasonably inferred that this difference in seniority was not the true explanation for Plaintiff's salary relative to the two comparators. Accordingly, the undersigned concludes that Defendant is entitled to summary judgment on Plaintiff's Title VII pay claim as well.
Although she also mentioned Engineers who were assigned to Survey Teams, she did not identify any one of them in particular or explain how the comparator's job was substantially similar to hers. And Rawls explains in his affidavit that the work performed by Plaintiff and other Field Engineers in Secondary Pavement Management was not substantially identical to the work performed by Survey Team engineers. [Doc. 69-6 at 6, 17-21.]
As one court within the Fourth Circuit has noted, "[t]he relevance of the McDonnell Douglas scheme outside of the trial context is limited." Lerner v. Shinseki, No. ELH-10-1109, 2011 WL 2414967, at *14 (D. Md. June 10, 2011). The Fourth Circuit has observed,
Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the same, necessitating resolution of "the ultimate question of discrimination vel non." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983). As the Supreme Court has explained, "[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). Thus, "[c]ourts must . . . resist the temptation to become so entwined in the intricacies of the [McDonnell Douglas] proof scheme that they forget that the scheme exists solely to facilitate determinationof 'the ultimate question of discrimination vel non.'" Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (citation omitted).
In her response in opposition to summary judgment, Plaintiff requests that Rawls' and Rikard's affidavits stricken because they "do not meet the clear standards set for admissibility." [Doc. 89 at 7.] The undersigned disagrees. Rule 56(c)(4) provides: "An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). "An affidavit is a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath." Farm Bureau Mut. Ins. Co. v. Hammer, 83 F. Supp. 383, 386 (W.D. Va. 1949), rev'd on other grounds, 177 F.2d 793 (4th Cir. 1949). Here, both Rawls's and Rikard's affidavits [Docs. 69-6; 69-7] reflect that the affiants swore to the truth of their statements before a notary public, who, in South Carolina, is an officer authorized to administer oaths. See S.C. Code § 26-1-90(A)(2). The fact that the affidavits here were sworn distinguishes the facts before us from those of Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300 (5th Cir. 1988), on which Plaintiff relies. See id. at 1305-06 & n.9.
Plaintiff also asserts that data Rikard presents "is misleading, appears to be pre-selected and filtered to only meet Defendant's intended narrative." [Doc. 89 at 8.] And she contends that Rawls's statement "lacks candor in multiple items." [Id.] However, "[t]o avoid summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue for trial." Evans v. Int'l Paper Co., 936 F.3d 183, 191 (4th Cir. 2019). Merely alleging that the opposing party's witnesses are lying or incorrect is not sufficient. See Sheppard v. Beerman, 317 F.3d 351, 356 (2d Cir. 2003); Rand v. CF Indus., Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994); Mitchell v. Sec'y Veterans Affairs, 467 F. Supp. 2d 544, 555 (D.S.C. 2006).
Finally, Plaintiff opposes including Exhibit 2 of her deposition [Doc. 69-5 at 15-17] because "it is irrelevant to and beyond the scope of [her] complaint and only is another example which justifies and supports [her] complaints of ongoing harassment and hostility, a means of continuing to cause embarrassment, continuing harassment to cause prejudice of the Plaintiff." [Doc. 89 at 7-8.] The exhibit, however, does not form any part of the basis for the undersigned's recommendation that Defendant's summary judgment motion be granted.
Two further facts undermine Plaintiff's assertion that her sex affected her salary: First, undisputed evidence in the summary judgment record that when Plaintiff began her leave of absence due to her injury, on April 18, 2016, her salary was greater than that of her male counterpart in the Midlands Region. [Docs. 69-5 at 42-45; 69-6 at 3.] And second, when Plaintiff began as the Piedmont Region Field Engineer in 2010, her salary was $2,500 greater than Mr. Richea House, the then-recently retired male Field Engineer who led the Midlands region's Secondary Pavement Management unit from 2001 until his retirement in January 2010. [Doc. 69-7 at 8, 133-37.]
Retaliatory Termination
Plaintiff also alleges she was terminated in retaliation for her complaints of discrimination. [Doc. 1-3 at 2.] Defendant argues that Plaintiff cannot establish a prima facie case of retaliation and that even if she could make out a prima facie case, Defendant has articulated a legitimate, nondiscriminatory and nonretaliatory reason for terminating her employment. [Doc. 69-1 at 26-28.] The undersigned agrees.
Defendant concedes that Plaintiff forecasted evidence that she engaged in protected opposition activity when she complained to Rawls in December 2015 about sex discrimination regarding her pay and to Rikard about pay, promotion, and training/advancement opportunities in January and March 2016. [Doc. 69-1 at 26-27.] Defendant also concedes that she forecasted evidence that she was terminated in May 2017 and that termination is a materially adverse action. [Id. at 27.] However, Defendant correctly points out that Plaintiff's complaints to Rawls and Rikard took place 12 to 14 months before she was terminated, so that the temporal proximity alone is not sufficient to support a reasonable inference of a causal relationship. See Perry v. Kappos, 489 F. App'x 637, 643-44 (4th Cir. 2012) (holding that three months between protected activity and adverse action was too long to justify a reasonable inference of causation). And although Plaintiff filed her initial questionnaire with SCHAC in January 2017, it is undisputed that Rawls and Rikard were unaware she had done so. [Docs. 69-6 at 6; 69-7 at 7.] Accordingly, Plaintiff cannot make out a prima facie case of retaliatory termination based on the questionnaire. Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998) (explaining that "[s]ince, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to" show that the employer took an adverse action because of the protected activity), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see also Landino v. Sapp, 520 F. App'x 195, 198 (4th Cir. 2013) ("To demonstrate a causal connection between the protected activity and the adverse action, a plaintiff must . . . show that his employer knew that he engaged in protected activity.").
Even assuming Plaintiff did make out a prima facie case, Defendant would still be entitled to summary judgment on the retaliatory termination claim. That is so because Defendant has offered a legitimate nonretaliatory explanation for the termination: Plaintiff was given a one-year leave of absence and even after that time, her doctor could not say when or if she would be able to return to work and perform the essential duties of her position, and Defendant had been unable to find another available, suitable position that fit Plaintiff's skill set and limitations. [Doc. 69-5 at 84-103; 69-7 at 5-6.] And Plaintiff has not forecasted evidence from which it could be reasonably inferred that this explanation is actually a pretext for retaliation. For all of these reasons, the undersigned concludes that Defendant is entitled to summary judgment on Plaintiff's Title VII retaliatory termination claim.
Hostile Work Environment Claim
Title VII prohibits creating or allowing a hostile work environment based on race, color, religion, sex, or national origin. See Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006). To prove a hostile work environment, a plaintiff must show that: (1) she experienced unwelcome harassment; (2) the harassment was based on sex; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) some basis exists for imputing liability to the employer. Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc). In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court reaffirmed the standard for determining when a plaintiff has established a hostile work environment, stating that a 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 victim in fact did perceive to be so." Faragher, 524 U.S. at 787 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). Actionable harassment occurs when the workplace is "permeated with discriminatory intimidation, ridicule, and insult.'" Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). Title VII is not a "general civility code." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). "Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). Complaints based on nothing more than rude treatment by co-workers, callous behavior by supervisors, or a routine difference of opinion and personality conflict with supervisors are not actionable under Title VII. Id. When considering a plaintiff's claim that she was subjected to a hostile work environment, the Court must consider the totality of the circumstances. Harris, 510 U.S. at 23. Relevant factors "may include the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id.
Plaintiff alleges that she "was subjected to a hostile work environment by [her] male subordinates, one of whom threatened [her] with physical harm, and [by her male] supervisor." [Doc. 1-1 at 2.] At her deposition, Plaintiff testified that actually she had trouble with only one of her subordinates, Stanley Dorn. [Doc. 69-3 at 39-40, 51.] Plaintiff described Dorn as "cantankerous" and a "hot head" and said that he "has one gear, it's either zero or a hundred," and that "he did not like certain things about her." [Id. at 39; 43-44; 51.] Plaintiff testified that on an unspecified date prior to 2015, she was counseling Dorn about some mistakes he had made when he told her that "it took everything in his might not to come across the room and punch [her] in [her] face," to which she responded, "[W]ell, I appreciate you not doing that." [Id. at 43.] However, as Defendant argues [Doc. 69-1 at 18-21], Plaintiff has forecasted no evidence that Dorn's objectionable conduct was because of Plaintiff's sex; nor has she forecasted evidence that the conduct was sufficiently severe or pervasive to alter the conditions of her employment, see Sunbelt Rentals, 521 F.3d at 315-16 (collecting cases holding that complaints of rude treatment, callous behavior by superiors, or differences of opinion or personality conflicts with supervisors are not actionable under Title VII); Harvey v. Saluda Smiles Family Dentistry, 210 F. Supp. 3d 812, 821 (D.S.C. 2016) (finding that the plaintiff had not satisfactorily shown that she experienced severe or pervasive harassment when the plaintiff alleged "nitpicking" by her superior, being chastised in front of a patient, and ongoing friction with her superior). Accordingly, the undersigned concludes that Defendant is entitled to summary judgment as to Plaintiff's hostile work environment claim.
Because Plaintiff's hostile environment claim fails for both of these reasons, the undersigned does not address Defendant's argument that Plaintiff also has not forecasted any evidence that would be grounds for imputing liability to Defendant from Dorn's actions. [Doc. 69-1 at 21-23.]
The undersigned also notes that Plaintiff alleges that Defendant "has shown a pattern and practice of limiting the advancement opportunities of female employees and treating them less favorably than males." [Doc. 1-6 at 1.] However, as Defendant points out [Doc. 69-1 at 23], a private plaintiff cannot maintain a Title VII "pattern or practice" claim outside of a class action setting. See Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999); see also Pouyeh v. UAB Dep't of Ophthalmology, 625 F. App'x 495, 498 (11th Cir. 2015). --------
In sum, for all of the foregoing reasons, the undersigned recommends that Defendant's summary judgment motion be granted as to Plaintiff's Title VII claims.
EPA
Plaintiff also alleges a violation of the EPA. [Doc. 1-5 at 3.] "The EPA prohibits gender-based discrimination by employers resulting in unequal pay for equal work." EEOC v. Md. Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018). To establish a prima facie case of a violation, a plaintiff must show: "(1) the employer paid different wages to an employee of the opposite sex, (2) for equal work on jobs requiring equal skill, effort, and responsibility, which jobs (3) all are performed under similar working conditions." Evans v. Int'l Paper Co., 936 F.3d 183, 196 (4th Cir. 2019). "Generally, it is not enough to simply show that the comparators hold the same title and the same general responsibility as the plaintiff." Id. Rather, the jobs must be "virtually identical." Id.
As the undersigned has already discussed with regard to Plaintiff's Title VII claim regarding her pay, Plaintiff has not forecasted evidence that her pay was causally related to the fact she is female. As noted, Rikard stated in his affidavit that the "employees' different salaries were not due to their sex but were due to their individual employment history and salary history with [Defendant] within the State Classification and Compensation structure." [Doc. 69-7 at 6-7.] Differences based on such factors do not violate the EPA. See Corning Glass Works v. Brennen, 417 U.S. 188, 204 (1974) ("The Act . . . contemplates that a male employee with 20 years seniority can receive a higher wage than a woman with two years' seniority."); Lauderdale v. Ill. Dep't of Human Servs., 876 F.3d 904, 908-09 (7th Cir. 2017) (noting that "use of seniority-based systems makes it common in civil service settings for a subordinate to be paid more than his or her supervisor," and that "a pay discrepancy created by reliance on employees' prior salaries is not a violation of the [EPA]" (emphasis added)). Accordingly, the undersigned recommends granting Defendant's summary judgment motion regarding the EPA claim and denying Plaintiff's motion for judgment on the pleadings on the EPA claim for the same reasons.
RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Plaintiff's motion for judgment on the pleadings [Doc. 68] be DENIED; that Defendant's motion for summary judgment [Doc. 69] be GRANTED; and that Plaintiff's motion for review on statute of limitations and grant relief of equitable tolling and/or relief estoppel to file discrimination claim [Doc. 70] be FOUND AS MOOT.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge November 20, 2019
Greenville, South Carolina
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294-95 (4th Cir. 2010). Further, the Supreme Court has stated,
Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether "the defendant intentionally discriminated against the plaintiff."Aikens, 460 U.S. at 715 (quoting Burdine, 450 U.S. at 253); see Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) ("The Aikens principle applies, moreover, to summary judgment as well as trial proceedings."). In light of this guidance from the Supreme Court and the Fourth Circuit Court of Appeals, the Court agrees with the District of Maryland that where the employer has met its burden of articulating a legitimate, nondiscriminatory reason for its adverse action against the plaintiff, the Court may assume, without deciding, that the plaintiff has established a prima facie case of discrimination. See Lerner, 2011 WL 2414967, at *14.