Opinion
C. A. 4:21-4201-RBH-SVH
06-15-2023
Anthony Reddick, Plaintiff, v. A.O. Smith Corporation, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this case, an employee alleges he was fired because of his race and in violation of applicable leave policies although he was told he was fired because he violated his employer's COVID safety protocols. His former employer seeks dismissal of the case.
Anthony Reddick (“Plaintiff”) originally filed this case in the Court of Common Pleas for Chesterfield County, South Carolina (“state court”), against his former employer, A.O. Smith Corporation (“Defendant”). Defendant removed this case from state court on December 30, 2021. In the case, Plaintiff alleges two claims: (1) a wrongful termination claim based on race (black) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and (2) a retaliation claim in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA “).
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 43]. The motion has been fully briefed [ECF Nos. 52, 56] and is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion.
I. Factual and Procedural Background
A. Plaintiff's Employment and Termination
Defendant employed Plaintiff from August 30, 1993, to December 1, 2020. [ECF 43-7 ¶ 4]. During that time, Plaintiff received a positive performance review from his supervisor Sam Johnson (“Johnson”). [ECF 43-5, 22:11-23:20].
On November 12, 2020, Plaintiff sought medical care and was tested for COVID because he was feeling unwell. [ECF No. 52-1 at 9, 17]. Plaintiff was diagnosed with an upper respiratory infection. Id. at 17. Plaintiff's physician was written out of work from November 12, 2020, through November 16, 2020. Id. at 16. Plaintiff's wife Taushia Burris Reddick (“Wife”) also was tested for COVID on November 13, 2020, because she was scheduled to undergo an upper GI endoscopy on November 17, 2020. [ECF No. 43-2 at 47:6-10, 49:19-25; ECF No. 52-1 at 10].
Both Plaintiff's November 12, 2020 COVID test and Wife's November 13, 2020 COVID test were negative. [ECF No. 52-1 at 9, 10]. Plaintiff returned to work and worked on November 17, 18, and 19, 2020. [ECF 43-2 at 46:22-47:5].
Plaintiff argues his temperature was checked daily by Defendant “[u]nder the COVID-19 safety protocol in place at the time of [his] termination,” and therefore he did not have a fever during this period because otherwise he would have been sent home. [ECF No. 52 at 2, ECF 43-3 ¶ 7].
Wife had the upper GI endoscopy procedure as scheduled on November 17, 2020. [ECF No. 52-1 at 20]. The discharge summary shows she was released in good condition. Id. Plaintiff testified that it was not until November 19, 2020, when he returned home from work, that he discovered that Wife was ill. [ECF No. 43-2 at 47:10-48:21]. Plaintiff further testified that from November 17 until he returned home from work on November 19, 2020, Wife did not indicate to him that she was experiencing any symptoms such as headache, loss of smell, loss of taste, or congestion. See id.
Plaintiff asserts, and Defendant does not appear to dispute, that Wife's temperature, pulse rate, respiratory rate, blood pressure, and blood oxygen levels were normal when she was released. [See ECF No. 52 at 3 & ns. 1-5].
Plaintiff testified that when he arrived home after work on November 19, 2020 and he discovered Wife was ill, he took her to the hospital. Id. at 47:10-48:21. Wife's emergency room medical record from Thursday, November 19, 2020, at 6:05 p.m. contains the following:
History of Present Illness
Provider at bedside 11/19/2020 18:05 42yo female presents to ED with continued c/o abdominal pain. Pt states that she had an endoscopy on Tuesday and notes that since she has been experiencing CP, generalized body aches and loss of taste and smell. Pt had a negative COVID test on Friday and denies any syncope, SOB, cough, vomiting, diarrhea or any other associated symptoms at this time.
PCP: Hartsville
Onset: [2] Day(s) ago
Duration [2] Day(s)
Timing: Continuous, Worsening
Occurred at: Home
Current Pain: 2
Pain at Worst: 3
Location: Abdomen
Quality: Aching
Exacerbated by: Nothing
Relieved by: Nothing
Severity: Mild
Radiating to: None
Associated Symptom: Abdominal pain, CP, Loss of taste and smell, Body aches[ECF No. 43-6]. Wife tested for COVID at the hospital on November 19 or 20, 2020, and the results, provided to her on November 20, 2020, were positive. [ECF No. 52-1, ECF No. 43-2 at 49:4-10].
There is tension between Plaintiff's testimony that Wife was not sick until November 19, 2020 and her emergency room medical record indicating that “since” Tuesday, November 16, 2020, she “has been experiencing CP, generalized body aches and loss of taste and smell.” [Compare ECF No. 43-2 at 47:10-48:21with ECF No. 43-6].
Plaintiff testified that on November 20, 2020, he called both Wanda Herron (“Herron”), Defendant's human resources manager, and his direct supervisor Johnson to inform them that he needed to miss work because Wife had COVID. [ECF No. 43-2 at 51:11-52:25]. Plaintiff further testified that on his call with Herron, Herron mistakenly thought Wife had COVID on November 16 or 17, that he never discussed Wife's symptoms with Herron, and that he informed Herron that Wife “started feeling bad on Tuesday after she got home from her procedure.” Id. at 53:2-54:17.
In contrast, Defendant has submitted evidence in the form of handwritten notes completed by Herron as follows:
[Plaintiff] called 11/20 saying his wife had been admitted to the hospital and was COVID +. He said that she started feeling sick on Tuesday after being at a Dr. Appt. He said she was also sick Wednesday too complained of a headache, no taste or smell. He worked Tues/Wed/Thurs. I questioned him on why he had come to work if his wife was symptomatic.[ECF No. 43-5 at 11:24-12:9, 24:6-26:16, id. at 16; see also ECF No. 43-2 at 115, ECF No. 43-7 ¶ 9]. Defendant has additionally submitted a declaration from Johnson stating in part as follows:
On November 20, 2020, Mr. Reddick called me directly and told me he had come to work while his wife was ill and had COVID symptom. Given the Company's COVID-19 clear safety rules and policies, I told him there was nothing I could do.[ECF No. 43-4 ¶ 7]. Thereafter, to mitigate any potential exposure to coworkers, Herron had Plaintiff's work area deep-cleaned as a precaution. [ECF No. 43-5 at 18:25-22:10, id. at 16, 18, ECF No. 43-7 ¶ 11, ECF No. 43-4 ¶ 6].
Plaintiff testified that because Wife was sick, he quarantined, took a COVID test on November 20, 2020, and received a negative result on November 23, 2020. [ECF No. 43-2 at 50:5-25, 54:18-55:22, ECF No. 52-1 at 12]. He also called Herron on November 23, 2020, prior to receiving his negative results, to inform her that his two children had tested positive and that he needed to care for one of them, although he did not ask for FMLA paperwork. [ECF 43-2 at 54:18-56:25].Plaintiff confirmed in his deposition that Herron informed him to “[t]ake all the leave that you need.” Id. at 71:1112.
Plaintiff testified that he had previously requested, and was approved for, FMLA leave three times. [ECF No. 43-2 at 27:15-28:14]. Plaintiff confirmed for each of those times, he submitted an FMLA application and provided medical certification. See id.
Between November 23, 2020 and December 1, 2020, there was no contact between Plaintiff and Defendant. Id. at 56:19-57:3. On the morning of December 1, 2020, Plaintiff and Herron spoke again, and Plaintiff informed Herron that his test results were negative and that Wife was scheduled for a follow-up COVID test on December 3, 2020. Id. at 57:4-17. The parties agree that Herron called Plaintiff later that day and informed him that his employment had been terminated. Id. at 57:18-24.
According to Defendant, following Plaintiff's conversation with Herron on November 20, 2020, Herron took the following steps:
I contacted corporate to review approval to terminate. Team approved 12/1 by Shawn Schmonsky [(“Schmonsky”)]. Called to notify [Plaintiff] that day.[ECF No. 43-5 at 11:24-12:9, 24:6-26:16, id. at 16]. Herron, as Defendant's representative, stated Defendant's reason for terminating Plaintiff was “for violat[ing] the COVID safety rules.” [ECF 43-5 at 14:3-4, see also ECF 43-7 ¶ 5 (“A.O. Smith terminated Plaintiff's employment because he violated the Company's COVID-19 safety rules and policies.”)]. The approval for Plaintiff's termination was made by Schmonsky, Defendant's vice president of human resources. [ECF 43-3 ¶¶ 3-4].
B. Defendant's COVID Policy
Defendant has submitted evidence that Plaintiff attended training taught by Johnson on August 31, 2020, informing Plaintiff and others that during the relevant period, Defendant's policy in place was that employees should stay home from work when the following occurred:
When an employee is sick with a fever or two or more other COVID-19 symptoms;
When an employee is awaiting COVID-19 test results;
When an employee has tested positive for COVID-19;
If an employee has been in direct contact with someone who is sick with a fever or two or more other COVID-19 symptoms;
If an employee has been in direct contact with someone who is awaiting COVID-19 test results; or
If an employee has been in direct contact with someone who has tested positive for COVID-19.[See ECF No. 43-2 at 85:1-89:24; id. at 100-111, ECF No. 43-3 ¶ 8].
Defendant has also submitted evidence that during the relevant period, it terminated seven other employees in addition to Plaintiff at the same facility where Plaintiff worked for having violated Defendant's COVID safety rules and policies, as follows:
Name
Race
Gender
Supervisor
Violation
Stacy
White
F
Michael Van Rite(?)
Reported on Thursday that her daughter was positive, tested Tuesday. She continued to work. (1/21/21)
Lee
Af Amer
M
Steve Gainey
Was tested and still reported to work. (7/23/20)
Maria
White
F
Brian Knapko
Employee came to work with a fever and worked for an hour before reporting (5/13/2020)
Larry
Af Amer
M
Brian Knapko
Reported on 5/6 that his wife was tested on 5/3 and he continued to work (5/6/21)
[ECF No. 43-5 at 31:18-33:10; id. at 18 (modified)].
Taylor
Af Amer
F
Brian Knapko
Came to work sick complaining of sinus issues, ended up testing positive (12/14/20)
Corey
White
M
Unsure-Sam Johnson or Jody Blaylock
Received results on Friday for father-in-law who was tested on Wednesday; lives in the same house (10/16/20)
[Plaintiff]
Af Amer
M
Sam Johnson
Wife sick on Tuesday and he continued to work; she was tested Thursday and was positive (11/20/20)
Timmy
White
M
Jody Blaylock
Wife was tested and he continued to report to work. She was positive. (7/17/2020)
Plaintiff testified that he was aware of a white employee, Ronnie Segar (“Segar”),who reported to a different supervisor than Plaintiff and had a different position in the company, who had a wife who tested positive, but who “didn't follow the rules” and was not fired. [ECF No. 43-2 at 40:25-44:13, see also id. at 62:14-66:13, 64:5-6 (“He didn't apply by the code and policy rules, and I did and I got fired.”)].
During Plaintiff's deposition, Segar was identified erroneously as “Ronnie Sigmon.” [See ECF No. 43-1 at 10 n.9].
In opposition to Plaintiff's motion for summary judgment, Plaintiff has submitted an affidavit completed by Wife. [See ECF No. 52-2]. Defendant moves to strike this affidavit as “legally deficient.” [See ECF No. 56 at 1-5]. The court need not resolve this issue where the affidavit at issue does not provide any objective evidence not already in the record, and, therefore, the court need not and does not rely on this affidavit in addressing Defendant's motion for summary judgment.
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
1. Title VII Claim
Absent evidence of direct discrimination, Plaintiff may use the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove his claims of discrimination. Plaintiff must show: (1) he is a member of a protected class; (2) he was performing her duties in a satisfactory manner; (3) he was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for its decision. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 557 (D.S.C. 2013). This is merely a burden of production, not of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Once Defendant meets its burden by producing a legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced is not the true reason, but was pretext for discrimination. Id. Throughout the burden-shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff.
Generally, to prove an employer's articulated reason is a pretext for discrimination or retaliation, a plaintiff “must prove ‘both that the reason was false, and that discrimination was the real reason' for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (emphasis in original) (citing St. Mary's, 509 U.S. at 515. However, “a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. Ultimately, to survive summary judgment, a plaintiff must demonstrate “a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016).
Here, the court assumes without deciding that Plaintiff has established a prima facie case and turns to the issue of pretext. Plaintiff argues that he was submitted sufficient evidence to survive Defendant's motion for summary judgment as follows:
This includes evidence that (1) the medical documentation proves that Plaintiff was not guilty of the COVID safety protocol allegation, (2) the decision to terminate from Plaintiff sourced from all white management outside of Plaintiff's protected class (ECF 43-7); (ECF 43-3); (3) the HR Manager willfully failed to verify the accurate information as to when Mrs. Reddick became ill from COVID-19 with symptoms arriving later in the day on November 19, 2020 (ECF 43-2); (Taushia Reddick Aff.), (4) the HR Manager inaccurately premised the termination process upon the false assumption that Mrs. Reddick was already sick from COVID-19 when Plaintiff worked on November 17, 18, and 19, 2020 (ECF 43-2); (Taushia Reddick Aff.), (5) none of the other decision makers involved in the termination decision communicated with Plaintiff prior to authorizing his termination effective December 1, 2020 (ECF 43-3), (6) all management knew that Plaintiff was a long-standing employee of 27 years and that such a long history of employment showed Plaintiff's reliability and trustworthiness (ECF 43-7); (ECF 43-3); (ECF 43-4); (30(b)(6) Dep. Ex. 3), (7) that a white comparator, Ronnie Sigmon, remained employed despite violations of Defendant's COVID safety protocols (ECF 43-2, 40:17-42:19), and (8) that Plaintiff's circumstances, which were not a violation of Defendant's COVID safety protocols was distinguishably different from the other terminations related to COVID (30(b)(6) Ex. 19). In sum, Plaintiff provides evidence that race was a “motivating factor” in terminating his employment. This evidence suffices to merit a mixed-motive denial of summary judgment.[ECF No. 52 at 20].
Although Plaintiff's evidence that, for example, he was good employee, is relevant to the prima facie inquiry, in focusing solely on the pretext inquiry, Plaintiff's evidence can roughly be categorized as follows: (1) he was terminated by white management for violating Defendant's COVID rules following inadequate investigation when he did not in fact violate Defendant's COVID rules and (2) other employees were treated differently then Plaintiff.
First, Plaintiff's evidence that he did not commit the violation he was terminated for is insufficient to show pretext. See, e.g., Anderson v. Ziehm Imaging, Inc., C/A No. 7:09-02574-JMC, 2011 WL 1374794, at *5 (D.S.C. Apr. 12, 2011) (“The focus of a pretext inquiry is whether the employer's stated reason was honest, not whether it was accurate, wise, or well-considered.”) (citing Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000)). Plaintiff leans heavily on the evidence that the proffered reason for his termination- that he violated Defendant's COVID rules-is not true, in that he did not violate Defendant's COVID rules. However, Plaintiff has offered no evidence that Defendant terminated him for any other reason.
Additionally, “[w]hile evidence of an obviously inadequate investigation into the employee's misconduct could tend to show that claimed employee misconduct was actually a pretext for prohibited animus,” Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 905 (4th Cir. 2017), Plaintiff has failed to offer evidence, or even argument, of an obviously-inadequate investigation, beyond arguing that Herron failed to verify the day Wife began to experience symptoms. [See ECF No. 52 at 20]. Plaintiff fails to elaborate what verification Herron could or should have completed. [See ECF No. 43-6 (Wife's emergency room emergency room medical record indicating that “since” Tuesday, November 16, 2020, she “has been experiencing CP, generalized body aches and loss of taste and smell.”); see also ECF No. 43-2 at 94:10-21 (testimony from Plaintiff that had Wife been symptomatic on November 16, 2020, and had he reported to work, that would have been a violation of Defendant's COVID rules)].
The Fourth Circuit's opinion in Love-Lane in instructive although, in Love-Lane, unlike here, the plaintiff offered “evidence [that] cast[] some doubt on the defendant's assertion that they had legitimate, nondiscriminatory reasons” for the actions taken:
Simply because Love-Lane presents evidence that the defendants' justification for their adverse employment decision may be false does not mean that Love-Lane's evidence demonstrates pretext for race discrimination. “The ultimate question is whether the employer intentionally discriminated, and proof that the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that [Love-Lane's] proffered reason . . . is correct.” Reeves, 530 U.S. at 146-47, 120 S.Ct. 2097 (internal quotation marks and citation omitted). It is not enough to disbelieve the defendants here; the fact-finder must believe Love-Lane's explanation of intentional race discrimination. Id. at 147, 120 S.Ct. 2097. We conclude that no rational jury could do so based on the evidence in the record.Love-Lane v. Martin, 355 F.3d 766, 788 (4th Cir. 2004).
Here, there is no evidence that Defendant's decision to terminate Plaintiff had anything to do with his race. This conclusion is supported by Plaintiff's own testimony:
Q Mr. Reddick, you've alleged race discrimination, and that's a claim that says that the company treated you differently simply because you're black. Who at A.O. Smith discriminated against you on the basis of your race?
A No one.
Q Okay. Before you filed your charge with the South Carolina Human Affairs Commission, did you ever report any race discrimination or differential treatment on the basis of your race to anyone at A.O. Smith?
A No.
Q And did you understand that the company had not only a policy against race discrimination but ways you could report it?
A Yes.
Q Okay. And did you ever see any documents that suggested that you were terminated because of your race?
A No.
Q Did you ever hear any supervisors or managers state or suggest you were terminated because of your race?
A No.
Q Did you ever hear any coworker tell you were terminated because of your race?
A No.
Q Is it true that the only reason-that the reason A.O. Smith told you it was terminating your employment was because you violated its COVID policies and rules?
A Yes.
Q That's what they told you?
A Yes.
Q And you simply disagree with that.
A Yes.
Q Did you ever hear any A.O. Smith supervisor or manager make negative or derogatory comments about your race?
A No.
Q: About any other employee's race?
A No.[ECF No. 43-2 at 66:14-68:6; see also id. at 40:25-41:9 (Plaintiff also testifying that race was considered in the decision to terminate him because Segar wasn't terminated)].
Turning to the comparator evidence, Plaintiff argues Segar, who is white, also violated Defendant's COVID rules, but was not terminated. However, this evidence is inadequate where Plaintiff has failed to establish the similarity between comparators, as Plaintiff has failed to identify when this occurred, who Segar reported to, whether Defendant was aware that Segar broke the rules, under what circumstances Plaintiff became aware of Segar's action, or offer any other specifics. See, e.g., Lightner v. City of Wilmington, N.C. , 545 F.3d 260, 265 (4th Cir. 2008) (“[t]he similarity between comparators . . . must be clearly established in order to be meaningful”); 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 . . . 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.”) (citation omitted)).
Additionally, Plaintiff's argument that his situation is distinguishable from other COVID-based terminations is not supported by the evidence. As to the other employees terminated, Plaintiff has also failed to submit evidence that these employees are valid comparators. The closest appears to be “Corey,” a white employee who was terminated on October 20, 2020, who may have had the same supervisor as Plaintiff. [See ECF No. 43-5 at 18]. However, assuming Corey were a valid comparator, the evidence indicates Defendant treated Corey and Plaintiff similarly, as Defendant terminated both Corey and Plaintiff for reporting to work when their respective family members living in the same house were tested for COVID (in Corey's case) or reported symptoms (in Plaintiff's case), yet both reported to work. Id. Likewise, Defendant terminated the remaining three white employees for reporting to work after one's daughter tested positive for COVID (Stacy), the another had symptoms (Maria), and another's wife tested positive (Timmy). Id.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's Title VII claim.
2. FMLA Claim
The FMLA permits eligible employees to take up to twelve workweeks of leave per year due to a “serious health condition.” 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves-(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Employees who take leave pursuant to the FMLA are generally entitled to return to the same or equivalent position with the same benefits as they had prior to taking the leave. 29 U.S.C. § 2614(a)(1). If an employer interferes with an eligible employee's right to FMLA leave or retaliates against an eligible employee for exercising her right to leave, the employer may be liable for violations of the FMLA. 29 U.S.C. §§ 2615, 2617.
Retaliation claims brought under the FMLA are analogous to those brought under Title VII. Laing v. Federal Express Corp., 703 F.3d 713, 717 (4th Cir. 2013); Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006). Plaintiff must prove three elements to establish a prima facie case of retaliation: (1) he engaged in a protected activity; (2) his employer took an adverse employment action against him; and (3) there was a causal link between the two events. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015). As with Plaintiff's Title VII claim above, if Defendant advances a lawful explanation for the alleged retaliatory action, Plaintiff must demonstrate Defendant's reason for taking the adverse employment action was pretextual. See Laing, 703 F.3d at 717, 719 (citing McDonnell Douglas, 411 U.S. at 802-04).
Even if Plaintiff could establish a prima facie case of FMLA retaliation, here, as above, he has failed to establish that Defendant's lawful explanation for terminating his employment was pretext. Plaintiff relies on the temporal proximity between when he went on leave to care for his family members and when Defendant terminated his employment, as follows:
Pretextual support is . . . supported by temporal proximity. Plaintiff engaged in FMLA protected activity close in time to his termination. Plaintiff was on FMLA protected medical leave for care of his wife and children with COVID-19 at the time of his termination. Also, Defendant falsely accused Plaintiff of breaking COVID-19 safety protocols by not quarantining prior to November 19, 2020. That is a false and pretextual basis for Plaintiff's termination. Plaintiff did not violate COVID-19 safety protocols. Plaintiff puts forth sufficient evidence to deny summary judgment. Both Plaintiff and his wife had tested negative for COVID-19 prior to November 19, 2020. Mrs. Reddick's medical records and testimony confirm that Plaintiff was not breaking quarantine and that Plaintiff did indeed quarantine after he knew his wife was sick with COVID-19.[ECF No. 52 at 11 (citations omitted)].
This showing is insufficient where “temporal proximity, without more, does not support a finding of pretext.” Jones v. UnitedHealth Group, Inc., 191728, 2020 WL 2116496, at *2-3 (4th Cir. Apr. 21, 2020) (citing Gibson v. Geithner, 776 F.3d 536, 541 (8th Cir. 2015) (holding that, while proximity can establish a prima facie case of causation, it is insufficient to alone establish pretext)).
Case law Plaintiff provides does not support a different conclusion. For example, in Bradford v. Molina Healthcare of S.C., LLC, C/A No. 2:18-CV-649-RMG, 2020 WL 373194 (D.S.C. Jan. 23, 2020), the court allowed the plaintiff's claim for FMLA retaliation to proceed where she did not challenge the former employer's proffered reason for her discharge-that certain supervisory positions, including hers, structurally had been eliminated-but where the plaintiff submitted evidence that the former employer offered other supervisors alternative positions, including the offer of a demotion to one of the supervisors who did not require continuous FMLA leave, but whose performance was inferior to that of the plaintiff. See id. at *5.
Although Plaintiff argues his situation is analogous to that found in Bradford-arguing both he and the plaintiff in Bradford “were terminated due to non-performance based reasons” [ECF No. 52 at 11]-Plaintiff was terminated for violating Defendant's COVID rules and has failed to offer sufficient evidence, as discussed above, that another employee who Defendant knew also violated its COVID rules was provided an alternative to termination. Instead, the record indicates that Defendant terminated the employment of those who violated its COVID rules. There is no indication in
the record that Defendant's decision to terminate Plaintiff's employment was pretext for FMLA retaliation.
As noted by Defendant, Plaintiff did not plead an FMLA interference claim in his operative complaint. [ECF No. 56 at 11 n.9, see also ECF No. 23].
For these reasons, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's FMLA claim.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 43].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).