Opinion
C. A. 3:18-3460-MGL-PJG
03-31-2021
Kanzora Robinson, Plaintiff, v. Megan J. Brennan, Postmaster General, United States Postal Service, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT COLUMBIA, SOUTH CAROLINA UNITED STATES MAGISTRATE JUDGE
Plaintiff Kanzora Robinson filed this employment discrimination action against her former employer. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion to dismiss or, in the alternative, for summary judgment. (ECFNo. 114.) Robinson filed a response in opposition to the motion. (ECFNo. 149.) Having reviewed the record presented and the applicable law, the court concludes that the defendant's motion should be denied.
Robinson filed the action pro se but she has since retained counsel.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Robinson began working for the United States Postal Service as a rural mail carrier in 1999. Robinson was a union representative during her employment and in that capacity participated in multiple equal employment opportunity complaints and grievances against the United States Postal Service. Robinson also filed her own grievances, equal employment office charges of discrimination, and a federal discrimination and retaliation lawsuit against the United States Postal Service. Robinson's participation in equal employment opportunity complaints and lawsuits on behalf of herself and others occurred between 2006 and 2012.
In 2012, Kertina Epps was hired as the Postmaster of the Eastover Post Office and became Robinson's supervisor. Epps and Robinson are both African-American females. Epps testified she was unaware of Plaintiff s discrimination grievances and lawsuits. However, Robinson and others testified that Epps was aware of Robinson's history. Robinson felt that Epps wanted to fire her and treated her differently than other employees who were white, were male, or had not engaged in protected activities.
Following an incident in October 2013 where Robinson complained about a decision from Epps, Robinson asked another postmaster, Larry Jourdain, for the phone number to the Office of the Inspector General. Jourdain emailed Epps, "Just wanted to give you a heads up in case there's trouble? Kanzora just called me for the phone # to the OIG. She also wanted to know if the District Manager's # was public ... I don't know what's up just her history and thought I should warn you." (PL's Resp. Opp'n Summ. J., ECF No. 149-3 at 1.) Epps responded that Robinson was facing possible termination based on an unspecified recent occurrence and that Robinson had "been a thorn in everyone's side for a long time." (Id.)
Additionally, Candis Barber, the substitute driver for Robinson's mail route, testified that Epps shortened Robinson's mail route to lower Robinson's compensation. Candis Barber testified that Epps bragged to her about it and indicated that once Robinson was gone, DeMario Simmons would take over the route and Epps would restore the route to its original length. Candis Barber testified that Epps told her that she (Epps) was sent to the Eastover Post Office to replace older, more experienced employees with younger, less experienced employees who would make less money. Candis Barber also testified that Epps was aware of Robinson's previous grievances and lawsuits because Epps would talk about them and mention that Robinson had a bad reputation, and that Epps showed other employees Robinson's case files online.
Gregory Barber was also a rural mail carrier at the Eastover Post Office. Gregory Barber similarly swore that Epps had a vendetta against Robinson, and that Epps shortened Robinson's mail route to provoke Robinson into anger so that Epps could discipline or terminate Robinson. Gregory Barber also swore that Epps told him that she was upset about Robinson's filing EEO cases and grievances.
In January 2014, five employees at the Eastover Post Office submitted a joint letter to Epps indicating that they feared Robinson's irrational behavior, including unwarranted verbal assaults that risked the employees' personal safety. The employees also indicated that Robinson exhibited potentially violent behavior by slamming tubs and unnecessarily forcing mail into her work area.
On February 25, 2014, Epps and Robinson had a confrontation that led to Robinson's termination. Earlier in the day, Epps found "unidentified" mail in Robinson's work area, which Epps believed to be against postal regulations. Epps left Robinson a note to remind her that mail had to be properly identified. Later that day, Epps asked Robinson if she was ready to have her mail counted. Robinson told Epps that she wanted to talk about the note Epps left her earlier that day. Epps explained why she left the note and why unidentified mail could not be left behind, but Robinson responded that Epps actually told her to leave the unidentified mail in her work area. Epps's and Robinson's versions of the confrontation differ greatly. Epps testified that Robinson was yelling, aggressive, and threatening. Specifically, Epps claimed that Robinson approached her while yelling with veins protruding out of her neck and forehead. Thus, Epps testified that she had to ask Robinson to calm down. Epps also testified that she had to put her hands up to keep Robinson from getting too close and instructed Robinson to stop her behavior because it was insubordinate. Epps further claims that she had to walk to her office to defuse the situation after Robinson claimed that she (Robinson) was recording Epps because she (Robinson) was being "railroaded." (ECF No. 114-5 at 87-88.) A witness to the confrontation described Epps as visibly shaken. Robinson, on the other hand, testified she was not loud, aggressive, or threatening at any point, though she was upset because she believed she was following Epps's instructions. Candis Barber, also a witness to the incident, testified that Robinson was defensive and non-threatening, and that Epps was talking to Robinson crazily. In testimony to a Postal Service inspector, Epps testified that Robinson did not make any threatening statements or gestures toward her.
On March 11, 2014, based on the confrontation, Epps charged Robinson with disciplinary violations, including disciplinary codes for Discharge of Duties, Obedience to Others, and Behavior and Personal Habits. Epps sought Robinson's removal. Epps did not charge Robinson with the code governing violent or threatening behavior. Robinson filed a grievance, arguing the United States Postal Service did not have just cause for her removal, but an arbitrator found that Robinson's conduct was sufficient to sustain the notice of removal.
Epps had previously filed a notice of removal against Epps based on performance issues.
Gregory Barber swore that Epps told him that she terminated Robinson for Robinson's filing EEO cases and grievances. He also swore that Epps would approach him without prompting to tell him about the status of Robinson's termination, which Barber found to be unprofessional. For instance, Gregory Barber swore that Epps read an arbitration award letter indicating that Robinson would not get her job back, which he perceived as Epps bragging about terminating Robinson. Further, Gregory Barber swore that labor relations manager Sharon Keel approached Epps and asked Epps not to terminate Robinson, but Epps told Barber that Keel only advocated for Robinson because Keel and Robinson were engaged in a sexual relationship. Gregory Barber testified that Epps described-in vulgar detail-sex acts in which Epps believed Keel and Robinson were engaged.
Robinson filed this action on December 14, 2018 after her complaint of discrimination was dismissed by the agency and her appeals denied. Robinson brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq,, claiming that she was discriminated against based on her race and sex, and retaliated against for her previous grievances and complaints of discrimination.
Robinson indicates in her response to the motion for summary judgment that she also raised a Title VII discrimination claim based on her age. However, age is not a protected characteristic under Title VII and she did not raise a claim pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq,, in her Complaint.
DISCUSSION
While the defendant styles its motion as first seeking dismissal of the Complaint, the motion relies on extensive evidence in the record rather than the pleadings. Therefore, the motion is more appropriately addressed in the alternative as one for summary judgment.
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact'' Ballingerv. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is "material" if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (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.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that "[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory").
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, she may attempt directly to prove discrimination with direct or circumstantial evidence. "This evidence must both display a 'discriminatory attitude' and bear a causal relationship with the adverse employment action." Ousley v. McDonald, 648 Fed.Appx. 346, 349 (4th Cir. 2016) (quoting Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)). "Even if there is a statement that reflects a discriminatory attitude, it must have a nexus with the adverse employment action." Warch, 435 F.3d at 520 (citing Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999)).
Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that the McDonnell Douglas framework applies to retaliation claims under Title VII). Pursuant to this framework, once the plaintiff establishes aprimafacie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden "is a burden of production, not persuasion." Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, "the McDonnell Douglas framework-with its presumptions and burdens-disappears], and the sole remaining issue [is] discrimination vel non" Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was "not its true reason[], but [was] a pretext for discrimination." Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiffs burden of demonstrating pretext "merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination." Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this "merged" burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
"[A] plaintiffs 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. However, "if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred," summary judgment is appropriate. Id. Accordingly, the court must evaluate "the strength of the plaintiffs prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Id. at 148-49. "Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination." Merritt, 601 F.3d at 294-95.
C. Defendant's Motion
The defendant argues Robinson fails to establish a prima facie case of discrimination and retaliation. Specifically, as to the discrimination claims, the defendant argues Robinson fails to identify a comparator who engaged in the misconduct for which Robinson was removed. As to the retaliation claim, the defendant argues Robinson fails to point to any evidence that Epps was aware of Robinson's discrimination grievances and lawsuits. On both counts, the court disagrees.
1. Discrimination Claims
Title VII makes it unlawful for an employer to discriminate against any individual with respect to her 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); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Ocheltree v. Scollon Prods, Inc., 335 F.3d 325, 331 (4th Cir. 2003). To establish a, prima facie case of Title VII discrimination based on disparate discipline, a plaintiff must show: (1) that she engaged in prohibited conduct similar to that of a person of another race, color, sex, religion, or national origin; and (2) that disciplinary measures enforced against her were more severe than those enforced against the other person. Lightner v. City of Wilmington, 545 F.3d 260, 264-65 (4th Cir. 2008). Similarly, to establish a. prima facie case of Title VII discrimination with regard to a disciplinary discharge, a plaintiff must show: (1) that she is a member of a protected class; (2) that she was qualified for the job and that her job performance was satisfactory; (3) that she was discharged; and (4) that other employees outside the protected class were retained under similar circumstances. Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002); Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995). To prevail on either theory, Robinson must show that an employee outside the protected class who was similarly situated to her was treated more favorably. See Lightner, 545 F.3d at 264-65 (requiring a plaintiff to show that he engaged in prohibited conduct similar to that of a person of another race, color, sex, religion, or national origin); Bryant, 288 F.3d at 133 (requiring a plaintiff to demonstrate that other employees outside the protected class were retained under similar circumstances).
Here, the defendant argues that Robinson cannot point to a comparator who engaged in behavior similar to that for which Robinson was terminated. See generally Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) ("[T]o establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, were subject to the same standards and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.") (internal quotation marks and alterations omitted) (quoting Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010)).
In response, Robinson points to Richard Dye, a contemporary co-employee of Robinson. In 2014, Dye, a white male, had a confrontation with Epps wherein Dye questioned Epps about work instructions Epps had given him and Dye angrily, loudly, and profanely responded to Epps's criticism of his failure to follow those instructions. When Epps asked Dye to calm down, Dye refused. Dye then slammed keys on Epps's desk and stormed out of Epps's office. Epps charged Dye with the same disciplinary offenses with which Robinson was charged-Discharge of Duties, Obedience to Others, and Behavior and Personal Habits. However, Dye was not terminated. Therefore, Robinson makes a prima facie showing that she engaged in conduct similar to an employee of a different race and sex but was subjected to more severe discipline.
Also, Robinson argues that a reasonable jury could conclude that Epps's reason was a pretext for race and sex discrimination. Viewing the evidence in the light most favorable to Robinson, a reasonable jury could conclude that Epps falsely claimed that Robinson was insubordinate and threatening, and instead sought her removal for discriminatory reasons. Robinson's comparator evidence alone is highly probative of pretext because the comparator employee is similarly situated to Robinson but for the protected characteristic. See Laing v. Fed. Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013) (explaining that comparator evidence is "especially relevant" to showing pretext under the McDonnell Douglas framework). While Epps testified that she perceived Dye's conduct as less threatening, a reasonable jury could conclude that Robinson's and Dye's conduct was similar, especially considering that Dye's confrontation with Epps was profane and included Dye slamming keys on Epps's desk. See Haynes, 922 F.3d at 223 (stating that a valid comparator exists where a reasonable factfinder could conclude that the employees were similar in all relevant respects but were treated differently).
Robinson testified that she was not overly loud or insubordinate when she confronted Epps, and also that Epps was loud, aggressive, and attempted to provoke her during the confrontation. Robinson testified she was merely confused by Epps's admonishment of her for work that she felt complied with Epps's previous instructions. Robinson's account is supported by Candis Barber, who also testified that Epps was yelling at Robinson and being aggressive whereas Robinson was defensive and non-threatening. Candis Barber and Gregory Barber also testified that Epps frequently lied and attempted to provoke Robinson into an angry response so that Epps could discipline her. Further, another witness to the incident, John Ball, provided a written account of the incident but did not indicate that Robinson threatened Epps or that Epps had to retreat to avoid attack by Robinson. Similarly, Epps admitted to the inspector general that Robinson did not make any threatening statements or gestures toward her, nor did Epps charge Robinson with the disciplinary offense governing violent or threatening behavior.
Additionally, Candis Barber and Gregory Barber testified that Epps shortened Robinson's mail route so that Robinson would be paid less. Candis Barber testified that this was Epps's agenda-to remove Robinson from the route so that she could give the route to Simmons, a younger male employee, and restore the route's length. Similarly, Gregory Barber attested that Epps shortened the route to provoke Robinson into anger so that Epps could discipline or terminate Robinson. Also, Robinson testified that Epps singled her out by sabotaging her work when Epps created incorrect new labels for Robinson's workspace and instructed her to use the incorrect labels, while instructing other employees to use the correct labels. Robinson testified that Epps disciplined her for using the incorrect labels.
Further, Robinson relies on Epps's email to Jourdain, in which Epps told Jourdain that Robinson had been a thorn in everyone's side in response to Jourdain's reference to Robinson's "history." Viewing the evidence in the light most favorable to Robinson, a reasonable jury could conclude on this record that Epps's purported reason for terminating Robinson was a pretext for unlawful discrimination.
2. Retaliation
The defendant argues Robinson fails to establish a, prima facie retaliation claim because she does not present any evidence that Epps was aware of Robinson's discrimination grievances and lawsuits. Robinson, on the other hand, argues that she can produce direct evidence that Epps retaliated against her for filing EEO grievances and cases. The court agrees with Robinson.
Title VII makes it unlawful for an employer to retaliate against an employee for engaging in activity protected by the statute. See 42 U.S.C. § 2000e-3(a). The requisite elements for aprima facie case of retaliation typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him or her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). The plaintiff must show that the retaliatory animus was the but-for cause of the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013); see also Johnson v. United Parcel Serv., Inc., ____F. App'x____, No. 20-1313, 2021 WL 31914, at *1 (4th Cir. Jan. 5, 2021) ("Direct evidence encompasses conduct or statements that both (1) reflect directly the alleged retaliatory attitude, and (2) bear directly on the contested employment decision.") (quoting Laing, 703 F.3d at 717).
Robinson relies on the testimony of Gregory Barber to show direct evidence of retaliation.Gregory Barber swears that prior to terminating Robinson, Epps told Barber that she was upset about Robinson's filing EEO cases and grievances. Gregory Barber swears Epps changed Robinson's mail route to provoke Robinson into anger so that Epps could discipline or terminate Robinson. Gregory Barber also swears that after Robinson was terminated, Epps told Barber that Epps terminated Robinson because Epps was tired of Robinson filing EEO grievances and cases. Gregory Barber further swears that Epps read an arbitration award letter indicating that Robinson would not get her job back, which Barber perceived as Epps bragging about terminating Robinson. Thus, Robinson presents direct evidence that Epps had a retaliatory animus that was the but-for cause of her termination. See Nassar, 570 U.S. at 360; Warch, 435 F.3d at 520. Consequently, viewing the evidence in the light most favorable to Robinson, a reasonable jury could conclude that Robinson was terminated in retaliation for filing EEO grievances and cases.
The defendant argues that Robinson relies on a statement by Gregory Barber that is not sworn. However, Robinson presents an affidavit from Barber that is sworn and notarized. (Barber Aff, ECF No. 149-2.)
RECOMMENDATION
Based on the foregoing, the court recommends the defendant's motion to dismiss or, in the alternative, for summary judgment, be denied. (ECF No. 114.)
The parties' attention is directed to the important notice on the next page.
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 & Ace. 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).