Opinion
C. A. 2:23-cv-00275-BHH-MHC
07-29-2024
Za'Vari'A Sherer, Plaintiff, v. Publix Super Markets, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Za'Vari'A Sherer (“Plaintiff” or “Sherer”), proceeding pro se, brings this employment action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). ECF No. 21.
Before the Court is a Motion for Summary Judgment (“Motion”), filed by Defendant Publix Super Markets (“Defendant” or “Publix”) pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 36. Plaintiff filed a Response, ECF No. 73, and Defendant filed a Reply, ECF No. 77. The Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
BACKGROUND FACTS
I. Plaintiff's Employment with Publix
Publix hired Plaintiff as a Part-Time Pharmacy Technician at Store 1120 in Summerville, South Carolina, in September 2021. ECF No. 36-2, Pl. Dep. 59. Plaintiff wanted to work part-time because he was in school. Id., Pl. Dep. 53.
The store's Pharmacy Manager, Laura Outlaw, hired Plaintiff. Id., Pl. Dep. 50. Plaintiff testified that Outlaw wrote Plaintiff a letter of recommendation for pharmacy school and treated him fairly from the beginning of his employment through May 2022. Id., Pl. Dep. 58-59, 63.
Plaintiff testified that beginning in June 2022, Outlaw started addressing his behavior but did not address other employees when they were similarly rude to Plaintiff. Id., Pl. Dep. 64-66. Plaintiff testified that when he believed someone was rude to him, he would respond in kind, and Outlaw would subsequently make a comment such as, “Let's all be respectful.” Id. Plaintiff does not recall Outlaw specifically addressing his behavior; rather, she would make comments to all employees in the department about being respectful. Id., Pl. Dep. 67.
On June 30, 2022, Outlaw issued Plaintiff a Counseling Statement for a work quality issue, which was his first Counseling Statement while employed at Publix. Id., Pl. Dep. 103-04. Plaintiff admitted to making the mistake and signed the Counseling Statement. Id.
On July 24, 2022, Outlaw issued Plaintiff his first performance evaluation. ECF No. 36-2, Pl. Dep. 114-18, 120-25; ECF No. 36-2 at 105-07. Plaintiff received an overall meets expectation rating and a raise in his hourly compensation, but the evaluation also noted that he needed to improve his attitude, teamwork, and communication with his co-workers. ECF No. 36-2 at 105 06. Specifically, Outlaw wrote:
It should also be considered whether or not the topic of jokes is appropriate and to listen to feedback when told it is not. Lastly and most importantly, it is imperative that Zay keep in mind that it is never appropriate to lash out or be disrespectful to any coworker, regardless of the reason.... It has been previously discussed with Zay that he has an opportunity to work on his communication to prevent misunderstandings-specifically when it comes to sarcasm or not being serious when asking for days off or calling out....Id. at 106.
Plaintiff testified that this evaluation was not intended to be a disciplinary action and that some of Outlaw's comments were constructive. ECF No. 36-2, Pl. Dep. 120, 123-24. Nonetheless, Plaintiff disagreed with this evaluation and refused to sign it. Id., Pl. Dep. 114-15.
II. August 16, 2022 Incident
On August 16, 2022, Plaintiff assisted a customer over the phone. ECF No. 36-2, Pl. 13437. The customer normally got two prescriptions filled at the pharmacy, and in the past, she was able to pick them up at the same time. Id. However, the refills had gotten out of sync, and the customer asked Plaintiff if there was any way they could get synced up again. Id. Plaintiff came up with a solution wherein one prescription would get re-filled with a 30-day supply, and then a month later, both prescriptions could be re-filled with a 90-day supply. Id. Plaintiff entered that fix into the system, and the customer was happy. Id.
Later that day, the customer arrived at the Pharmacy to pick up her prescription. Id. Somer Fulton (a Lead Pharmacy Technician with a state-certified pharmacy technician license) assisted the customer. Id.; ECF No. 36-6 at 2, Outlaw Dec. ¶ 6. Fulton reviewed the patient's information and determined that Plaintiff's resolution was not the proper resolution and changed the refill back to a 90-day supply of medicine. Id. Plaintiff tried to tell Fulton that he had handled the customer's request, but Fulton just kept shaking her head and saying that he did it wrong. ECF No. 36-2, Pl. Dep. 136-37. In her declaration, Outlaw averred that Plaintiff was upset and spoke to Fulton in an unacceptable manner before becoming quiet and unapproachable. ECF No. 36-6 at 2, Outlaw Dec. ¶ 6. Plaintiff testified that he was not upset but that he decided he was not going to say anything else the rest of the day unless it was related to work. No. 36-2, Pl. Dep. 136-37, 143.
Around 2:59 p.m. that day, Plaintiff left the Pharmacy Department and clocked out for his break. ECF No. 36-2, Pl. Dep. 140; ECF No. 36-6 at 2, Outlaw Dec. ¶ 7. Outlaw texted Plaintiff while he was on his break and said, “Not sure if you clocked out for lunch or just left. But if you need to cut hours anyway, I think today would be a good day to go ahead and just head home and try to have a reset.” ECF No. 36-6 at 2, Outlaw Dec. ¶¶ 7-8.
After Plaintiff returned from break, Outlaw discretely asked Plaintiff if he received her text message about going home early. Id. at 2, Outlaw Dec. ¶ 9. Plaintiff responded that Outlaw could not just send him home. Id. Outlaw explained the Pharmacy was sufficiently staffed that day and Plaintiff needed to cut hours to ensure he did not reach overtime. Id.; ECF No. 36-2, Pl. Dep. 140. Plaintiff responded that Outlaw should have let him leave the prior day when he asked to leave early and repeated that Outlaw could not just send him home. Id.
Plaintiff approached Assistant Store Manager Lee Looney and asked if he could continue working until 5:00 p.m., the end of his scheduled shift. ECF No. 36-2, Pl. Dep. 141; ECF No. 368 at 2, Looney Dec. ¶ 3. Not knowing the situation with overtime, Looney responded, “Yes, why wouldn't you be able to work your shift?” ECF No. 36-8 at 2, Looney Dec. ¶ 3. Plaintiff responded, “Exactly.” Id. Plaintiff then walked over to Outlaw and told her that Looney said he could work the rest of his shift. ECF No. 36-2, Pl. Dep. 141.
Immediately thereafter, Looney, Outlaw, and Plaintiff went to the Manager's office to discuss Outlaw's request for Plaintiff to go home. Id., Pl. Dep. 141-42; ECF No. 36-8 at 2, Looney Dec. ¶ 4. Outlaw again explained Plaintiff needed to be sent home to avoid any overtime, because she did not receive authorization for overtime. Id. Plaintiff responded that Assistant Pharmacy Manager James Schultz called him into work on Saturday to assist, which caused his overtime for the week, and Plaintiff reminded Outlaw that he requested to go home the prior day to manage his overtime hours. Id. Outlaw explained that the department was short staffed on Monday, but they had the coverage to send him home early that day. ECF No. 36-8 at 2, Looney Dec. ¶ 4.
Looney informed Plaintiff that if Outlaw had an opportunity to reduce overtime hours, she had a right to ask Plaintiff to leave. ECF No. 36-2, Pl. Dep. 142-43; ECF No. 36-8 at 2, Looney Dec. ¶ 5. Plaintiff then said that if overtime is optional, then coming to work moving forward is optional. ECF No. 36-8 at 2, Looney Dec. ¶ 5. Looney responded that Plaintiff was correct, that working is always optional, and that Publix could not force Plaintiff to work. Id.
During this conversation, Outlaw also addressed Plaintiff's attitude and explained that his behavior towards Fulton earlier that day was uncalled for. Id.; ECF No. 36-2, Pl. Dep. 141-42. In addition, she pointed out that Plaintiff ignored others in the department and had an unapproachable demeanor after the outburst toward Fulton. Id. Plaintiff explained that Fulton had an attitude with him first and would not listen to him so he believed he just matched her demeanor. Id. He also told Outlaw that when Outlaw did not intervene during his interaction with Fulton, he just “shut down” and “stopped talking” because he “didn't have anything to say.” ECF No. 36-2, Pl. Dep. 142.
Following this meeting, Plaintiff was upset, walked back to the Pharmacy, took his technician's license off the wall (with the intention to quit and giving the impression he was quitting) and clocked out at 3:33 p.m. ECF No. 36-2, Pl. Dep. 143, 146; ECF No. 36-8 at 2, Looney Dec. ¶ 6.
At 4:44 p.m., Looney emailed the Store Manager at Store No. 1120, Christy Pfuntner, and informed her about Plaintiff's conduct. ECF No. 36-8 at 2 & 4, Looney Dec. ¶ 7; ECF No. 36-7 at 2 & 4, Pfuntner Dec. ¶ 3. Looney also informed Pfuntner that Outlaw was relieved to see Plaintiff leave that day and that everyone in the Pharmacy was scared of Plaintiff and that he caused “drama” in the department. Id.
III. Plaintiff's Informal Complaints Regarding Discrimination
At 4:36 p.m. that same afternoon, Plaintiff texted Outlaw and requested Pharmacy Supervisor Aaron Lanning's phone number and email address. ECF No. 36-2, Pl. Dep. 146-47; ECF No. 73-12; ECF No. 36-4 at 92. He also asked, “[C]an you tell me who I need to speak with to make a HR complaint[?]” ECF No. 36-2, Pl. Dep. 146-47; ECF No. 73-12; ECF No. 36-4 at 92. Outlaw provided Plaintiff with the requested information and also said, “For your sake, I would encourage you to take the time to think about things and maybe cool off before you burn any bridges in the pharmacy world. I genuinely do not want that for you.” Id. Plaintiff testified that he believed Outlaw worded this text message to sound nice, but he “read between the lines” and believes she tried to intimidate him or discourage him from making a complaint about her. ECF No. 36-2, Pl. Dep. 146-148.
Plaintiff responded to Outlaw's text as follows:
I'm not emailing [Lanning] about the situation with my hours. I understood why I was sent home even though I don't agree with it. If you must know, I'm emailing [Lanning] about the ongoing racial profiling and discrimination I've continued to receive from you. I understand that our job can be stressful and that everyone has those days, but every time I'm upset it's always an issue with you. When Sommer, Shannon and Paige have those days I NEVER hear you say anything to them. But when I'm upset you say I'm being disrespectful, or I have an attitude. I only see two differences between me and them. They are all women, and they are white. While, I'm a man and I'm black. Other than that we all work for the same company, we all should follow the same rules, and we all should be treated equally. But that's never the case with you. For example, look at today. I wasn't even mad and I didn't have a[n] attitude as you claimed. I honestly just didn't have anything to say. In the office with Lee you told me that I had a[n] attitude and that I was just being disrespectful which I absolutely was not. Like I said I just didn't have anything to say to you or Sommer. I was never rude, or disrespectful. In fact, when I needed to get past Sommer today I said “excuse me” and she moved. I didn't say it rudely or with an attitude. If I was rude or had a[n] attitude I'm pretty sure that interaction would've went differently. Also, me and Danielle talked all day. She would ask me questions and I would answer. Then you also claimed I ignored you. WHEN??? When you asked me about lunch [I] responded. Anyway, I refuse to allow you to label me and tell me how I'm feeling or how I'm acting when what you are saying is not true. Not only is this not true but parts of the stuff you wrote in evaluation
were not true as well. I will be emailing [Lanning] and if nothing changes my next step is to contact a lawyer to see what criminal and/or civil legal action can be taken. I'M DONE!!! HAVE A GOOD ONE.ECF No. 36-4 at 92.
Plaintiff testified that this long text message was the first time that he complained about any form of discrimination. ECF No. 36-2, Pl. Dep. 149, 154. Plaintiff further testified that Outlaw's communication did not deter him from filing a complaint. Id. at Pl. Dep. 153.
Having received information from Looney on August 16, 2022, about Plaintiff's conduct, Store Manager Pfuntner met with Plaintiff on the morning of August 17, 2022, to discuss the incident from the prior day. ECF No. 36-7 at 2, Pfuntner Dec. ¶ 4. Plaintiff expressed that he felt he was being “racially profiled” by Outlaw. Id. Plaintiff recalls that Pfuntner recommended having a department meeting to try to get everyone on the same page and he was “perfectly fine with that.” ECF No. 36-2, Pl. Dep. 119. Pfuntner also spoke to Outlaw, who said that she had difficulty managing Plaintiff and that he was creating a hostile environment within the Pharmacy Department. ECF No. 36-7 at 2, Pfuntner Dec. ¶ 4.
IV. Publix's Investigation
Pfuntner decided to send an email to Publix's Retail Associate Relations Specialist, Emilee Hooper, for advice on how to handle the situation. ECF No. 36-7 at 2, Pfuntner Dec. ¶¶ 4-5. Hooper responded on August 22, 2022, and recommended that Pfuntner to investigate the issues occurring within the department. Id., Pfuntner Dec. ¶ 5.
Pfuntner received statements from Outlaw, Fulton, Shannon Henning, Constance Shelton, and Plaintiff. ECF No. 36-7 at 2, 5-14, Pfuntner Dec. ¶ 6. According to the statements of everyone other than Plaintiff, no one witnessed any form of discrimination against Plaintiff. Id. These statements reported that Plaintiff engaged in unprofessional and inappropriate conduct at work, including calling coworkers alpacas and bimbos and making comments that he would cut an associate's brakes and slash her tires. ECF No. 36-7 at 2, Pfuntner Dec. ¶ 7. At his deposition, Plaintiff admitted to making jokes, jokingly calling coworkers alpacas and bimbos, repeatedly joking about cutting an employee's brakes (at least once in response to an employee telling him that she had keyed his car and popped his tires), and joking about discrimination and about calling the NAACP. ECF No. 36-2, Pl. Dep. 71-79, 224; ECF No. 77-1, Pl. Dep. 82-84.
Pfuntner forwarded these employee statements to Publix's Divisional Associate Relations Manager, Christopher Tissot, on September 1, 2022. ECF No. 36-7, Pfuntner Dec. ¶ 8; ECF No. 36-12, Tissot Dec. ¶ 3. As a result, on September 2, 2022, Tissot asked Aaron Lanning (Pharmacy Supervisor for the Charlotte Division) to investigate these issues. ECF No. 36-12, Tissot Dec. ¶ 4; ECF No. 36-9, Lanning Dec. ¶ 3. Lanning then conducted his own interviews of the associates in the Pharmacy Department at Store No. 1120. ECF No. 36-9, Lanning Dec. ¶ 3.
Given the nature of some of the allegations against Plaintiff, Tissot recommended that Plaintiff be temporarily transferred to a nearby store pending the investigation. ECF No. 36-12, Tissot Dec. ¶ 5; ECF No. 36-9, Lanning Dec. ¶ 4. Lanning agreed with the recommendation and decided to temporarily transfer Plaintiff. Id. Lanning spoke to Plaintiff on September 6, 2022, and informed Plaintiff that Publix was investigating his complaint. ECF No. 36-2, Pl. Dep. 167, 172; ECF No. 36-9, Lanning Dec. ¶ 4. Lanning asked Plaintiff to work at Store No. 483 pending the investigation. Id. Plaintiff initially agreed but then later refused to transfer. Id. Plaintiff remained on a leave of absence pending the investigation. Id.
On September 7, 2022, Plaintiff sent Lanning an email stating that he wanted to withdraw his complaint about Outlaw. ECF No. 36-2, Pl. Dep. 172; ECF No. 36-9, Lanning Dec. ¶ 5. However, because of the nature of the allegations Plaintiff made and the allegations made against him, Publix was committed to fully investigating these issues. ECF No. 36-9, Lanning Dec. ¶ 5; ECF No. 36-12, Tissot Dec. ¶ 5. The following day Lanning spoke to Plaintiff and Store Manager Pfuntner about the transfer. ECF No. 36-9, Lanning Dec. ¶ 5. Lanning also explained to Plaintiff that he was investigating broader issues in the department and concerns that were raised regarding Plaintiff's conduct. Id. Also on September 7, 2022, Lanning sent his interview notes to Tissot. ECF No. 36-12, Tissot Dec. ¶ 6; ECF No. 36-9, Lanning Dec. ¶ 6.
Tissot decided to ask Publix's Senior Retail Associate Relations Specialist, Michele Crum, to assist with these issues and she spoke to both Tissot and Lanning. ECF No. 36-12, Tissot Dec. ¶ 7; ECF No. 36-9, Lanning Dec. ¶ 7; ECF No. 36-10, Crum Dec. ¶ 3. On September 11, 2022, after reviewing the statements and interview notes, Crum sent Tissot her recommendations. ECF No. 36-12, Tissot Dec. ¶ 8; ECF No. 36-10, Crum Dec. ¶ 4. These recommendations included counseling Plaintiff for his inappropriate behavior and permanently transferring him to another store. Id. She also recommended issuing a counseling statement to Outlaw for failing to address issues with Plaintiff that she was aware of prior to the August 16 incident. Id. Tissot agreed with the recommendations, and Lanning decided to accept and proceed with these recommendations. ECF No. 36-12, Tissot Dec. ¶ 8; ECF No. 36-9, Lanning Dec. ¶ 8.
However, the next day, on September 12, 2022, Plaintiff filed a complaint using Publix's formal complaint process. ECF No. 36-3 at 74-81; see 36-11 at 3-10 (same). Publix's Senior Employment Law Investigator Claudia Hernandez was assigned to this complaint. ECF No. 3612, Tissot Dec. ¶ 9; ECF No. 36-10, Crum Dec. ¶ 6; ECF No. 36-11, Hernandez Dec. ¶ 4. Crum, Lanning, and Tissot decided to hold off on administering the counseling and transfer to Plaintiff until they could consult with Hernandez. ECF No. 36-12, Tissot Dec. ¶ 10; ECF No. 36-9, Lanning Dec. ¶ 10; ECF No. 36-10, Crum Dec. ¶ 7. Hernandez subsequently agreed with proceeding with the counseling and transfer of Plaintiff. Id. Lanning issued the counseling and transfer to Plaintiff on September 26, 2022. ECF No. 36-9, Lanning Dec. ¶ 10. Plaintiff again refused the transfer and remained out of work. ECF No. 36-2, Pl. Dep. 172-73; ECF No. 36-9, Lanning Dec. ¶ 10.
Lanning also issued the Counseling Statement to Outlaw on September 26, 2022. ECF No. 36-9, Lanning Dec. ¶ 13.
V. Plaintiff's Formal Complaint and Publix's Additional Investigation
As stated above, on September 12, 2022, the day after Crum made her recommendations, Plaintiff filed a formal Complaint of discrimination and retaliation, in which he complained that after he reported mistreatment by Outlaw to Pfuntner, Lanning retaliated against him by transferring him to another location. ECF No. 36-3 at 74-81; see 36-11 at 3-10, 28. He further claimed that Lanning and others failed to address his complaints of mistreatment due to his race and gender and instead focused on the alleged concerns of others. Id.
Hernandez conducted her own investigation of the issues. ECF No. 36-11, Hernandez Dec. ¶ 5. She interviewed Plaintiff, Pfuntner, Lanning, Schultz, Outlaw, Fulton, Taylor Smalls (a pharmacy employee at Store 1120), and Henning; issued a Report of Findings on November 10, 2022; and sent this Report to Plaintiff. ECF No. 36-2, Pl. Dep. 210; ECF No. 36-3 at 82-87; ECF No. 36-11 at 11-30, Hernandez Dec. ¶¶ 5-7. Hernandez did not find any evidence of discrimination or retaliation against Plaintiff. Id. Based on the information she received during her investigation, Hernandez supported the decision to counsel and transfer Plaintiff. Id. Accordingly, there were no changes to the decision to counsel and transfer Plaintiff. Id.
VI. Plaintiff's Transfer, Subsequent Charge, and Later Termination
Plaintiff eventually requested to work at Publix Store No. 824, instead of Store No. 483 where Publix previously asked him to transfer. ECF No. 36-2, Pl. Dep. 174-77. Publix approved this request and transferred Plaintiff to Store No. 824. Id.
On November 15, 2022, Plaintiff returned to work at Publix Store No. 824. Id. However, that same day, Plaintiff also submitted his resignation. Id. The Pharmacy Manager at Store No. 824 encouraged Plaintiff not to resign, and Plaintiff subsequently withdrew his resignation and continued working at Store No. 824. Id.
On December 14, 2022, Plaintiff filed his Charge of Discrimination with the EEOC alleging discrimination based on race and gender and alleging retaliation. Id., Pl. Dep. 230; ECF No. 36-4 at 7. After he received his dismissal and notice of rights he filed this lawsuit on January 20, 2023. ECF No. 36-2, Pl. Dep. 235; ECF No. 36-4 at 9; see ECF No. 1.
On March 10, 2023, Publix terminated Plaintiff's employment at Store No. 824. Plaintiff testified that his termination is not the subject of this lawsuit and that his lawsuit does not include, or seek any damages based on, any events that occurred after his transfer from Store 1120 to Store No. 824 on November 15, 2022. ECF No. 36-2, Pl. Dep. 33-37, 253-55.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). The nonmoving party, however, “must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish an essential element to their case, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial,” thus the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.”).
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
DISCUSSION
Defendant moves for summary judgment on Plaintiff's sole cause of action-a claim of retaliation in violation of Title VII claim. ECF No. 36.
Although Plaintiff originally asserted Title VII claims for race discrimination, gender discrimination, and retaliation in his original Complaint filed on January 20, 2023, see ECF No. 1, he subsequently amended his Complaint, removing many of the allegations and the two discrimination claims from his original Complaint, see ECF No. 21. During Plaintiff's deposition, he testified that the reason he amended his Complaint was he wanted this case to focus solely on the events that occurred at Publix Store No. 1120 and not on events that occurred after he transferred to Store No. 824. ECF No. 36-2, Pl. Dep. 253-55. He further testified that he is no longer pursuing any claims of discrimination against Publix and that the only claim he is pursuing is a claim for retaliation. Id., Pl. 237:9-16; 238:11-14. Therefore, the only claim Plaintiff is pursuing in this lawsuit is a claim for retaliation under Title VII. See id.
Title VII forbids an employer from taking action that discriminates against an employee because that employee either has “opposed any practice made an unlawful employment practice” by Title VII or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a); see Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021) (“Title VII prohibits an employer from retaliating against an employee for complaining about prior discrimination.”). “Protected activity under Title VII includes complaints of discrimination based upon race, color, religion, sex or national origin.” Roberts, 998 F.3d at 122 (citation and internal quotation marks omitted); see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (explaining that “utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities” are protected activities).
Employees may prove that their employer retaliated against them for engaging in opposition activity through one of two ways: by direct evidence of retaliatory animus, or through the McDonnell Douglas burden-shifting framework. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). Because Plaintiff has not proffered direct evidence of retaliatory animus, he must establish a prima facie case of retaliation and produce evidence of pretext.
To succeed on a retaliation claim under the burden-shifting framework, Plaintiff must first establish that (1) he engaged in a protected activity, (2) his employer acted adversely against him, and (3) there was a causal connection between the protected activity and the asserted adverse action. Id. at 250. After a prima facie case is made, the burden shifts to the employer to show that it took adverse action for a legitimate non-retaliatory reason. Id. If the employer makes this showing, the burden shifts back to the plaintiff to rebut the employer's evidence by demonstrating the employer's purported non-retaliatory reasons were pretext for discrimination. Id. Proof of but-for causation is required. See Univ. of Tex. SW. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (holding that “Title VII retaliation claims must be proved according to traditional principles of but-for causation”).
In its Motion, Defendant argues that Plaintiff cannot establish his prima facie claim and, even if he could, he cannot show that Defendant's legitimate, non-retaliatory reason is pretext. ECF No. 36-1. In his Response, Plaintiff maintains that he has produced sufficient evidence to establish a viable retaliation claim. ECF No. 73-2 at 8-15.
A. Prima Facie Case of Retaliation
For purposes of its Motion, Defendant does not contest that Plaintiff engaged in protected activity, such that the first prong of Plaintiff's prima facie case of retaliation is established for purposes of summary judgment. ECF No. 36-1 at 17. Indeed, there is evidence in the record that Plaintiff complained to Outlaw via August 16 text message that he felt she treated him differently because of his gender and race, that he verbally complained about discrimination to Pfuntner on August 17, and that he made a formal written complaint of discrimination and retaliation on September 12, 2022. The parties dispute, however, whether Plaintiff can show that he suffered an adverse action or any causal connection between the protected activity and an adverse action.
To establish an adverse action, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from” engaging in the protected activity. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (cleaned up). To establish causation, the employee must show “that (1) the employer either understood or should have understood the employee to be engaged in protected activity and (2) the employer took adverse action against the employee soon after becoming aware of such activity.” Strothers v. City of Laurel, 895 F.3d 317, 335-36 (4th Cir. 2018) (citations omitted).
“Fourth Circuit precedent addressing the causation prong of a prima facie case of retaliation requires that a plaintiff demonstrate that the decisionmaker imposing the adverse action have actual knowledge of the protected activity.” Roberts, 998 F.3d at 124-25. Once a plaintiff establishes the decisionmaker's knowledge of the protected activity, causation can be established through the existence of relevant facts that “suggest that the adverse action occurred because of the protected activity,” Id. at 123, or by showing the decisionmaker took adverse action against the plaintiff “soon after learning of her complaint, as temporal proximity is sufficient to establish a causal connection at the prima facie stage,” Strothers, 895 F.3d at 336-37. See Roberts, 998 F.3d at 123 (“The existence of relevant facts alone, or together with temporal proximity, may be used to establish a causal connection between the protected activity and the adverse action.”). Although courts have declined to articulate a definitive rule as to what time periods qualify as close temporal proximity, the Fourth Circuit has held that two-and-a-half and one-month gaps are sufficiently narrow to satisfy causation for a plaintiff's prima facie case. See Foster, 787 F.3d at 253; King v. Rumsfeld, 328 F.3d 145, 151 & n.5 (4th Cir. 2003).
Defendant contends that the only two actions taken by Publix against Plaintiff were a written counseling statement and a transfer to a nearby store and that neither were adverse. ECF No. 36-1 at 16. In his Response, Plaintiff asserts that the following actions were adverse: (1) Outlaw attempted to intimidate and discourage Plaintiff from making a complaint in her text message; (2) Outlaw influenced employees to come forward and make complaints about Plaintiff; (3) the written counseling statement; and (4) the transfer to another store. ECF No. 73-2 at 10-11.
As an initial matter, Plaintiff has not produced any evidence showing that Outlaw influenced employees to come forward and make complaints about Plaintiff, such that he cannot establish an adverse action on that basis. See Graves v. Lioi, 930 F.3d 307, 324 (4th Cir. 2019) (explaining that surviving summary judgment “requires evidence, not unsupported conjecture”) (citing Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 320 (4th Cir. 2012) (rejecting plaintiff's “attempt[ ] to build his case through pure inference”); Hinkle v. City of Clarksburg, 81 F.3d 416, 423 (4th Cir. 1996) (holding a claim was “ripe for an adverse summary judgment determination” when “it was based upon a theory without proof” and dependent on “speculation and the piling of inferences”); Barwick v. Celotex Corp., 736 F.2d 946, 962 (4th Cir. 1984) (rejecting plaintiff's “attempt[ ] to build one vague inference upon another vague inference to produce a factual issue”)).
Moreover, as to his first asserted adverse action-Outlaw's alleged attempt to discourage Plaintiff from making a complaint after Plaintiff requested information regarding how to make a complaint to HR-the undersigned finds that this action cannot form the basis of a Title VII retaliation claim because Plaintiff cannot establish a causal connection to any protected activity under Title VII. Specifically, it is undisputed that, at the time Plaintiff texted regarding an HR complaint, Plaintiff had not made any complaint about discrimination, and the initial text regarding the HR complaint does not mention discrimination. It was only after Outlaw responded to Plaintiff's text with the requested information and her suggestion that he “take the time to think about things and maybe cool off before [he] burn[s] any bridges in the pharmacy world,” which Plaintiff now argues was adverse action, that Plaintiff explained in a subsequent text message that he was not going to complain about the overtime issue but, instead, that he felt she treated him differently because of his race and gender. ECF No. 36-4 at 92; ECF No. 36-2, Pl. Dep. 149, 154. Thus, Outlaw's text message, which preceded Plaintiff's initial discrimination complaint, cannot be adverse action under Title VII.
As for the remaining alleged adverse actions, both occurred shortly after Plaintiff made his discrimination complaints. This close temporally proximity is sufficient to establish a causal connection to his protected activity for purposes of his prima facie case. See Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 654 (4th Cir. 2021) (finding temporal proximity where adverse action was taken one month after internal complaint). However, Plaintiff has not produced sufficient evidence to show that either action was materially adverse, such that he cannot establish his prima facie case of retaliation.
Defendant argues that Plaintiff cannot show that he suffered an adverse action because “Publix's only action in response to Plaintiff's misconduct was to transfer him to a nearby store (working in the same positions, the same hours and the same pay) and to issue him a written counseling statement.” ECF No. 36-1 at 16. Defendant further contends that had Plaintiff accepted the transfer, the transfer would not have negatively impacted his pay, working hours, or working conditions. Id. In his Response, Plaintiff reiterates that he believes that both the counseling and transfer were adverse actions, but he does not provide any evidence or argument explaining how either action adversely affected him. ECF No. 73- 2 at 11.
Upon review, the undersigned agrees with Defendant that Plaintiff's Counseling Statement does not qualify as a sufficiently adverse action to establish his prima facie case. “Courts in the Fourth Circuit have generally found that actions which essentially amount to criticism of an employee such as performance evaluations, reprimands or warnings, and counseling are alone insufficient to constitute materially adverse employment actions under the White standard.” Cornelius v. McHugh, No. CA 3:13-1018-CMC-PJG, 2015 WL 5012843, at *8 (D.S.C. Aug. 21, 2015) (collecting cases), aff'd, 654 Fed.Appx. 141 (4th Cir. 2016); see Parsons v. Wynne, 221 Fed.Appx. 197, 198 (4th Cir. 2007) (affirming district court's grant of summary judgment to the defendant on a retaliation claim where “neither [plaintiff's] performance evaluation nor her removal from the alternate work schedule would have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination'” (quoting White, 548 U.S. at 68)); see also Rease v. Zax, Inc., C/A No. 3:07-3601, 2009 WL 2998977, *7 (D.S.C. Sept. 17, 2009) (finding that warning notices and a poor performance review did not constitute a materially adverse action under Title VII where they would not “deter a reasonable employee from initiating a charge of discrimination”). Plaintiff has not pointed to any evidence to show that the Counseling Statement would have deterred a reasonable employee from making a discrimination complaint.
In addition, Plaintiff has failed to produce evidence sufficient to show that a reasonable employee would have found the transfer to a nearby store to be materially adverse. The undisputed evidence shows that the new store was five miles closer to his residence than his original store, and there is no evidence that Plaintiff's pay, hours, or duties would have changed. See ECF No. 36-2, Pl. Dep. 242-43 (testifying that Store No. 483 was closer to his residence (10 miles away) compared to Store No. 1120 (15 miles away)). Plaintiff does not dispute this evidence in his Response nor offer any explanation or argument for why the transfer would constitute an adverse action. See ECF No. 73- 2 at 11. Accordingly, the undersigned finds that Plaintiff has failed to forecast sufficient evidence from which a reasonable jury could find an adverse action causally connected to his protected activity. See Cherry v. Elizabeth City State Univ., 147 F.Supp.3d 414, 426 (E.D. N.C. 2015) (finding that where plaintiff failed to cite evidence showing that a reasonable employee would find a transfer to the midnight shift to be materially adverse, plaintiff's transfer to that shift was not materially adverse under the White standard because while it “may have been annoying, it falls well short of conduct that would dissuade a reasonable worker from engaging in protected activity”).
B. Defendant's Legitimate, Non-Retaliatory Reason
Assuming, arguendo, that Plaintiff can establish a prima facie case of retaliation, the burden then shifts to Defendant to produce evidence that it had legitimate, non-retaliatory reasons for taking the actions it took against Plaintiff. Defendant proffers the following legitimate, non-retaliatory reasons:
Publix took all the[] complaints and issues very serious. These issues were investigated by Pfuntner, Lanning, and Hernandez. Publix obtained multiple statements from Plaintiff's co-workers and extensive interview notes. No employee corroborated any of Plaintiff's allegations of discrimination. Multiple employees corroborated Plaintiff['s] misconduct[,] and Plaintiff even admitted to some of the conduct. Plaintiff's conduct violated multiple Publix policies, including its EEO Policy, and its policies prohibiting any form of intimidation, making others feel unsafe, from creating a disturbance and from having offensive verbal communications.... In addition, the investigation statements and interview notes were reviewed by Tissot, Lanning, Crum, and Hernandez, all of whom agreed that the proper response was to transfer Plaintiff to a nearby store and issue him a Counseling Statement.ECF No. 36-1 at 20 (internal citations omitted). Because Defendant has met its burden of production, the burden shifts back to Plaintiff to show pretext. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (“This burden is one of production, not persuasion; it can involve no credibility assessment.”) (internal quotation marks omitted).
C. Pretext
Retaliation claims require the employee to show “that retaliation was a but-for cause of a challenged adverse employment action.” Foster, 787 F.3d at 252; see Nassar, 570 U.S. at 360 (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”). To do so, a plaintiff must present evidence that (1) the defendant's reason for the adverse action was false and (2) retaliation for his protected activity was the real reason for the adverse action. Foster, 787 F.3d at 252 (citing Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Under appropriate circumstances, “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.
Here, Plaintiff must ultimately prove that the transfer or Counseling Statement would not have occurred “but for” a retaliatory motive. In his Response, Plaintiff makes six arguments in support of a finding of pretext: (1) that Publix did not have reason to believe the complaints about Plaintiff were true because “Publix made its mind up that everyone else was telling the truth prior to interviewing anyone”; (2) that Publix's investigation was “subpar” and that Publix failed to “initial[ly]” interview certain associates; (3) that Publix posted a job ad on Indeed to “find a replacement” for Plaintiff five days prior to the conclusion of the investigation; (4) that Plaintiff's performance evaluation shows pretext given that Outlaw did not “escalate” concerns with his jokes at that time; (5) that his June 2022 counseling statement proves pretext; and (6) that James Schultz's termination proves pretext because he, according to Plaintiff, “engaged in the same behavior” and was terminated only to “prevent the Plaintiff from having a claim of discrimination.” ECF No. 73-2 at 11-14. Upon review, the undersigned finds that Plaintiff has failed to forecast sufficient evidence from which a reasonable jury could find that retaliation for Plaintiff's complaints was the real reason for the transfer or Counseling Statement, such that summary judgment for Defendant is appropriate.
Regarding Plaintiff's first and second arguments above, Plaintiff has not pointed to any evidence establishing that “Publix did not have reason to believe the complaints [about Plaintiff were] true” or that the investigations were “subpar.” See ECF No. 73-2 at 11-12. The evidence before the Court indicates that the investigations of Plaintiff's complaints and of the complaints about Plaintiff were thorough and included written statements and multiple interviews of the pharmacy employees, and that there were multiple corporate employees from outside of Store 1120 involved in the investigations and decision-making process. See, e.g., ECF No. 36-7 (written statements from Outlaw, Fulton, Henning, Shelton, and Plaintiff); ECF No. 36-9 (Lanning interview notes); ECF No. 36-11 (Hernandez notes from interviews with Pfuntner, Lanning, Schultz, Outlaw, Fulton, Smalls, Henning); ECF No. 36-3 at 82-87 (Hernandez notes from interview with Plaintiff). The evidence further shows that the investigations not only resulted in Plaintiff's Counseling Statement and transfer, but also in a Counseling Statement issued to Outlaw and the termination of Schultz. Though Plaintiff points to evidence that at least one former coworker told him she “misses” him and that work is “no fun” without him and that another coworker indicated that she did not witness Plaintiff making inappropriate comments, this evidence does not undermine Publix's findings, based on multiple employee written statements and interviews conducted by multiple corporate investigators, that Plaintiff engaged in inappropriate conduct. See ECF No. 73-2 at 12; see ECF No. 73-16 at 2; ECF No. 80.
The undersigned finds the Fifth Circuit cases cited by Plaintiff are factually distinguishable from this case and not binding authority supporting Plaintiff's case. See ECF No. 73-2 at 12-13 (citing Deffenbaugh vs. Wal-Mart Stores Inc., 156 F.3d 581, 589-90 (5th Cir. 1998) (cursory investigation into allegations that Plaintiff was “shopping on the clock”); Rachid v. Jack In The Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004) (flawed investigation into Plaintiff's time card alterations).
To demonstrate pretext, Plaintiff must show that his employer's assessment of his conduct was dishonest or not the real reason for the adverse action, rather than merely dispute the merits of the decision. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000). Such a showing is required because “it is the perception of the decision maker which is relevant, not the selfassessment of the plaintiff.” Id. (internal citations omitted). Plaintiff has failed to provide any evidence to support an argument that Publix had reason to believe that any of the individuals who gave statements during the investigation were lying. To the contrary, Plaintiff testified that he jokingly made most of the comments other employees complained about, such that he has not pointed to any evidence to support an inference that Publix should not have found the witnesses believable. See ECF 36-7 at 2, Pfuntner Dec. ¶ 7; ECF 36-2 at Pl. Dep. 71-81, 224; ECF No. 771, Pl. Dep. 82-84. Accordingly, Plaintiff has not shown pretext on this basis.
In support of his third assertion of pretext-that Publix posted a job ad to find his replacement five days before the conclusion of the investigation--Plaintiff produces a video purportedly showing a job opening from September 29, 2022. ECF No. 73-2 at 13; see ECF No. 73-16 at 2; ECF No. 80. Plaintiff does not provide any testimony or other evidence that would support an inference that the purported ad was for his replacement. There is no evidence in the record regarding how many pharmacy technicians are needed or why management posted the job position. Moreover, even if he had produced such evidence, the evidence shows that the recommendation to permanently transfer Plaintiff was made on September 11, 2022, weeks prior to the job posting. See, e.g., ECF No. 36-10 at 2 ¶¶ 4-7. Accordingly, this job posting does not support a finding of pretext.
Regarding Plaintiff's fourth and fifth arguments above, Plaintiff asserts that his evaluation dated July 24, 2022, is evidence of pretext because although Outlaw referenced his “jokes” in his July 2022 evaluation, neither Outlaw nor Pfuntner (who signed his evaluation) “escalated” concerns regarding his “jokes” until after he made his initial informal complaint. ECF No. 73-2 at 13. He also claims that the fact that Outlaw issued a counseling statement to him in June 2022 regarding a work quality issue but did not address other misconduct suggests Plaintiff was not engaging in any other misconduct. However, there is no evidence in the record related to the jokes Outlaw was referencing in the evaluation, and Plaintiff has not pointed to any evidence that, at the time of the evaluation (or the earlier June counseling statement), either she or Pfuntner was aware of the statements other employees ultimately complained about in August 2022. Moreover, neither of these women were involved in the decision to issue the September Counseling Statement or transfer Plaintiff. Accordingly, neither the July performance evaluation nor the June counseling statement supports a finding of pretext.
Finally, the undersigned does not find any merit in Plaintiff's sixth argument that the termination of Schultz in November 2022-after Plaintiff specifically complained during the investigation about Schultz's conduct-supports a finding that the Counseling Statement and transfer of Plaintiff was pretext for retaliation. See ECF No. 73-2 at 14-15.
For the foregoing reasons, the undersigned concludes that Plaintiff has failed to meet his evidentiary burden of demonstrating that, but for an intent to retaliate against Plaintiff for engaging in protected activity, Plaintiff would not have received the September 2022 Counseling Statement or been transferred to a different store. See Foster, 787 F.3d at 252. Accordingly, the undersigned recommends that Defendant's Motion for Summary Judgment be granted.
Because the undersigned concludes that summary judgment is appropriate, the undersigned does not reach Defendant's alternative arguments regarding damages. See ECF No. 36-1 at 22-25.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion for Summary Judgment, ECF No. 36, be GRANTED and the case be dismissed.
The parties are referred to the Notice Page attached hereto.