Opinion
C/A 3:22-1591-MGL-SVH
04-11-2024
Krystian Singletary and Kelsey Sunde, Plaintiffs, v. King Crab Boiling Seafood and Bar, Inc., John Lin, David Chen, Blake Williams, David Tan, and Wei Long, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this case, two employees sue their former employer, alleging they were subjected to sexual and race-based discrimination and harassment, culminating in their termination after they complained of the relevant behavior.
Krystian Singletary (“Krystian”) and Kelsey Sunde (“Kelsey”)(collectively “Plaintiffs”)originally filed this case against King Crab Boiling Seafood and Bar, Inc. d/b/a Yummi Crab (“Yummi Crab”), John Lin (“Lin”), David Chen (“Chen”), David Tan (“Tan”), and Wei Long (“Long”) (collectively “Defendants”), in Richland County Court of Common Pleas. Defendants removed this case on May 19, 2022. Plaintiffs assert claims for sex and racebased discrimination, including claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”).
Kelsey also goes by her middle name “Shae,” which is occasionally referenced in the record. [See ECF No. 38 at 1 n.1].
Ece Erkek (“Erkek”) originally was a plaintiff in this case, but on June 22, 2023, Plaintiffs' counsel filed a stipulation of dismissal as to her. [ECF No. 25].
Defendants represent that Blake Williams (“Williams”) was another server at Yummi Crab, who was not a member of management is not represented by Defendants' counsel, and Defendants' counsel was advised, upon information and belief, that Williams was never served a copy of this lawsuit. [ECF No. 33-1 at 1 n.1]. Plaintiffs do not address this issue in briefing. [See, e.g., ECF No. 38]. Where there is no indication in the record that Williams has been served with a summons and complaint in these proceedings, nor has appeared in this case, no action ever commenced against Williams.
Plaintiffs additionally asserted a claim brought pursuant to the South Carolina Payment of Wages Act, but concede in briefing that “the record does not contain evidence sufficient to establish a genuine dispute” as to this claim. [ECF No. 38 at 33].
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 Defendants' motion for summary judgment. [ECF No. 33]. The motion has been fully briefed [ECF No. 38, 43, see also ECF Nos. 46-1, 47] and is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant in part and deny in part Defendants' motion for summary judgment, allowing to proceed, against Yummi Crab, Plaintiffs' (1) Title VII race and sex-based discrimination claims concerning Kelsey's failure to promote allegations and (2) Title VII sex-based hostile work environment claims.
I. Factual and Procedural Background
Krystian, a black woman, and Kelsey, a biracial woman, are both former employees of Yummi Crab, a seafood restaurant located in Columbia, South Carolina. [ECF No. ¶¶ 2, 4, 11]. Yummi Crab opened in July 2019 and has approximately ten to eleven investors, including Chen, Long, and perhaps Lin. [ECF No. 38-2 at 22:5-10, 23:5-24:22, 40:21-22, 53:14-16]. After Long opened Yummi Crab, Chen began operating as General Manager, and Lin began as Kitchen Manager. Id. at 22:5-10, 40:1-5.
Plaintiffs began working at Yummi Crab as servers on July 1, 2019. [ECF No. 47-3 ¶ 5, ECF No. 47-4 ¶ 5]. The parties do not dispute that Yummi Crab had no harassment or discrimination policy during the relevant period. [See, e.g., ECF No. 38-2 at 45:5-8].
A. Relevant Incidents as to Krystian
Plaintiffs have submitted evidence that the following incidents occurred during their employment: First, as to Krystian, shortly after she was hired in July 2019, Lin stated to her “I've never been with a black girl before. Will you be my girlfriend?” Krystian responded, “[y]ou have a wife John,” and he responded, “l don't have a girlfriend though.” [ECF No. 47-3 ¶ 7].Lin additionally stated “[y]ou can do me,” in response to women employees asking him if he could do something work related. Id. ¶ 8. Krystian states that she “heard comments like this from John nearly daily for three to four months until at least January or February 2020.” Id.
Defendants originally objected to the admissibility of Plaintiffs' declarations and audio evidence. [See ECF No. 43 (objecting to ECF Nos. 38-3, 38-4, 38-5, 38-6)]. On November 8, 2023, the court ordered Plaintiffs to submit appropriate documentation or otherwise show cause why these exhibits should not be excluded. [ECF No. 45]. Plaintiffs submitted their response on November 10, 2023, including signed declarations addressing the alleged defects Defendants identified. [ECF No. 47, see also ECF Nos. 47-3, 47-4]. Accordingly, the undersigned denies Defendants' request to exclude Plaintiffs' declarations and discusses the admissibility of the audio evidence more below.
In mid-August 2019, during the hiring process for the assistant manager position, Long said “[w]e are actually looking for a male who is really anal for the management position.” [ECF No. 47-3 ¶ 9, see also ECF No. 38-16 at 36:3-38:8]. Notwithstanding, Krystian was promoted to the position. [ECF No. 47-3 ¶ 10].
After she was promoted to assistant manager, Krystian verbally told another employee, Williams, that his employment was terminated after he arrived to work consistently late. [ECF No. 38-16 at 39:22-41:41, see also ECF No. 47-3 ¶ 11]. Immediately thereafter, Williams “walk[ed] out the door, grab[bed] the tire iron, [and approached Krystian] in a threating manner, [dropping] it at the last minute ....” See id. Krystian informed Chen she was uncomfortable working with Williams, but Williams' termination was reversed, and he returned to work. [ECF No. 38-16 at 44:20-45:20, 46:19-20, see also ECF No. 47-3 ¶ 11].
On October 26, 2019, during an after-hours Halloween party, Lin sang karaoke and as stated by Krystian:
Just as karaoke goes, anything can be played. Explicit music with slurs that are okay for a certain group of people to say and inappropriate for others to say. John said the N work several times. I and several other employes expressed our discomfort ....[ECF No. 38-16 at 54:15-55:6; see also id. at 56:18-57:1 (testifying there was another similar karaoke incident as well), ECF No. 47-3 ¶ 12 (stating that “[e]ven after we asked him to stop, on at least two other occasions in November and December 2019, John used the word ‘nigger' while singing karaoke in the restaurant”)].
In November 2019, Chen told Krystian to join him in his office for a chat. [ECF No. 47-3 ¶ 13]. The office is very small, and Chen needlessly locked the door. Id. Chen began touching Krystian's shoulder, something he would “frequently do . . . during conversations.” Id.
Thereafter, an incident occurred concerning Krystian and Lin:
So from that front post desk at the front of the restaurant, which is a good ways away from the kitchen, there was a loud banging noise. I went to the back to see what it was. John's banging on a bucket. I don't know why. I call his name, John. Three feet away,
John. I'm now closer to him, John. He's still banging and stops. He looks up after I call his name the third time and says, suck my dick, and just stares me in the face. I said, excuse me? And then he just looks about like he didn't say anything. So then I say, If you're going to do that, can you please do that outside? To which he makes a remark furthering the suck my dick, which one? So not only did you ask me to perform oral sex on you, but now you're asking if I want to go outside, after I've expressed that I didn't think that was funny. We thought that was just a weak joke again or whatever the case. I was uncomfortable. It was extended and then never said .... And shortly thereafter, you said two weeks, is when I expressed my concern to David Chen and Wei Long. They said I misheard him or it didn't happen, and then he got promoted to the front of house manager and began to hover and focus in on exactly what it is I'm doing, when I'm clocking in, making sure everything is to the T that it needs to be. Just I felt continuously harassed and uncomfortable at work after I expressed did not want to be around this individual.[ECF No. 38-16 at 70:20-72:8, see also ECF No. 47-3 ¶¶ 14-16 (“Instead of disciplining John or otherwise addressing his behavior, the company began training him to be front of the house manager, which would make him my manager.”)].
Krystian also testified that Lin made a general apology, presumably concerning the above incident, during a staff meeting in early 2020. [ECF No. 38-16 at 58:17-59:6, see also ECF No. 47-3 ¶ 17 (stating at the January 25, 2020 weekly meeting, Lin said “Awkwardness is felt. I would just like to apologize for if you misheard me. I don't think I said that though.”), ECF No. 38-2 at 82:21-83:16 (Chen testifying about Lin's apology)].
The precise date of the meeting where Lin made this general apology is unclear based on the current record before the court.
In late January 2020, Krystian noticed Chen making comments, indicating to her that he wanted her to quit, including that Chen told Kelsey that she could receive a promotion after Krystian leaves, and Chen told Kelsey that money she allegedly owed Yummi Crab would no longer be due after she left the company. [ECF No. 47-3 ¶ 18].
On January 28, 2020, there was an additional incident where Lin stormed off after talking to Krystian, stating “he was tired of dealing with the fuckers at the front,” presumably including Krystian. [ECF No. 38-16 at 69:25-70:7, see also ECF No. 47-3 ¶ 19].
On February 10, 2020, a manager's meeting was held with bar manager Braxton Wallace (“Wallace”), Krystian, and Chen, as well as certain other employees who participated intermittently including Kelsey, where Wallace and Krystian repeatedly complained about Lin's behavior to Chen, including him harassing women, touching women, and using the word “nigga” during karaoke. [ECF No. 38-5, ECF No. 33-4 at 48:14-19, see also ECF No. 38-6 (meeting between Krystian and Chen sometime in February 2020 where concerns were reiterated)]. Roughly 30 minutes into the meeting, Lin arrived, and Chen informed Lin that he is not allowed “joke around” or say “anything inappropriate again.” [ECF No. 38-5]. During this meeting, Lin twice said that if Krystian did not want to work around him, she could put in her notice. [ECF No. 38-5, ECF No. 38-16 at 68:25-69:22, see also ECF No. 47-3 ¶ 20].
Chen testified the only complaint he received about Lin concerned the “suck my dick” episode and that he told Lin “don't joke around people, you don't just make bad comments just because you want to.” [ECF No. 38-2 at 70:1325, 74:3-11, see also id. at 82:2-12]. However, Chen also testified he was told about concerns involving Lin, including in the February 10, 2020 meeting that was recorded, discussed above, and from another employee concerning Lin's comments to Erkek, although he indicated that did not think those concerns were about sexual harassment. See id. 85:21-89:16, 92:4-18.
B. Relevant Incidents as to Kelsey
As to Kelsey, who also began her employment around July 1, 2019, as a server, she states as follows:
Ever since my hire, David Chen, the general manager, would touch me on my shoulders and lower back inappropriately. He has, on two occasions, walked behind me, put his arms around me, and tried to “pick me up,” as he proceeded to thrust his private area on me while attempting to pick me up. The first time he did this was in December 2019, and it occurred in the alley way between the dining area and the kitchen. He did it again a couple weeks later, in January 2020, to the best of my recollection. I was so bothered and embarrassed that I turned around and picked him up and told him to never touch me again.[ECF No. 47-4 ¶ 6]. Kelsey further testified regarding these incidents as follows:
I was uncomfortable by him coming up behind me, and yes, he is [a] man of small stature, so it was clear that he wouldn't be able to pick me up. I'm assuming on his end, it was horse play, but resting your pelvis on my backside made me uncomfortable, and that was my reaction.[ECF No. 38-17 at 46:19-47:12 (Kelsey testifying that she told Chen to never try to pick her up again and he did not)]. However, Kelsey also went on to testify that Chen had made physical contact with her other times, for example, “he would just touch my shoulders or put his hand on my lower back ....I previously told him to stop touching me, so I at that point, no. I did not say anything else. I just walked away .... It was multiple occasions [although] he did not touch me in a private area.” [ECF No. 38-17 at 47:1549:2].
Kelsey also alleges that Lin made inappropriate comments as follows:
The Kitchen Manager, John Lin, frequently made extremely inappropriate comments, such as “suck my dick,” “will you be my girlfriend?” and “I have a wife already but I don't have a girlfriend.” He also repeatedly called me “a bitch.” .... They continued for months, unaddressed, until a management meeting in which David Chen told him this behavior was not acceptable.[ECF No. 47-4 ¶ 7]. Kelsey also testified that although she did not consider the “will you be my girlfriend” comment as an invitation to be his girlfriend, “it was just inappropriate, regardless of his intention, and [she] was uncomfortable.” [ECF No. 38-17 at 31:14-23]. Kelsey also testified that after Lin called her a bitch, she called him a “pussy boy” in response. Id. at 32:3 17.
Defendants argue that Kelsey's declaration and testimony are inconsistent, for example that in her declaration she states Lin called her a bitch multiple times but, in her deposition, indicates it only occurred once; Defendants argue because of these inconsistencies the court should only consider her testimony. [See ECF No. 43 at 14-15 (citing ECF No. 38-17 at 49:16-24)]. The Fourth Circuit has instructed that where there is “a bona fide inconsistency between an affiant's averments and his deposition testimony” the sham affidavit doctrine applies to exclude the inconsistent statement in the postdeposition affidavit. Kinser v. United Methodist Agency for the Retarded, 613 Fed.Appx. 209, 210 (4th Cir. 2015). Here, and even assuming the sham affidavit doctrine applies to a predeposition affidavit, the court does not discern a bona fide inconsistency, where Defendants could have asked Kelsey about her statements in her deposition, but did not, and where the Fourth Circuit has held no “inconsistency exists when the affidavit merely detail[s] and lend[s] context to the prior testimony ....” Riggins v. SSC Yanceyville Operating Co., LLC, 800 Fed.Appx. 151, 160 (4th Cir. 2020) (citation omitted).
Kelsey states she asked Chen about a management position multiple times including in October 2019, when he “said that the next to be promoted was going to be ‘one of us,'” presumably an Asian male, and in January 2020, Tan was promoted to a management position Kelsey had sought that Krystian previously held. [ECF No. 47-4 ¶ 8, see also ECF No. 38-17 at 51:12-21, ECF No. 38-16 at 38:6-10, ECF No. 38-2 at 89:17-90:4].
The parties dispute whether Tan replaced Krystian, although they do not dispute that Tan was awarded the front house manager position.
Kelsey states she made multiple complaints to management, including in January 2020, that she felt “management was fully aware of the behavior of David Chen and John Lin, as well as [her] concerns about race and sex discrimination in promotions,” and that on February 10, 2020, she participated in a meeting to discuss the Lin's inappropriate behavior. [ECF No. 47-4 ¶¶ 9-10].
Plaintiffs have also stated that in early February 2020, they began receiving fewer work hours. [ECF No. 47-4 ¶ 11, ECF No. 47-3 ¶ 23]. However, after being shown the relevant documentation, Kelsey testified that it did not look like her hours were cut. [ECF No. 38-17 at 37:7-38:13, see also ECF No. 33-8 at 7 (showing Kelsey's hours in February 2020 were average), ECF No. 33-11 at 7 (showing Krystian's hours in February 2020 were average), ECF No. 43 at 10-11].
C. Plaintiffs' Employment Terminations
As to Krystian, in October 2019, “there [was] an accidental overage on [Krystian's] check” that Krystian assumed was a bonus like those she had previously received. [ECF No. 38-16 at 23:6-27:7]. Chen informed her that she needed to pay back the overage in cash, but Krystian testified that she did not need to pay the money back, as the mistake was her employer's fault. [ECF No. 38-16 at 23:6-27:7, ECF No. 47-3 ¶ 21 (stating Chen insisted she pay the money back in early February 2020, stating “if you don't pay this back, I don't have many options here”)].
Krystian stated there was an addition incident on February 6, 2020, where Chen demanded she pay for an order that was sent back due to supposed error; Krystian refused. [ECF No. 47-3 ¶ 22].
Krystian's last day of work was March 7, 2020, and Defendants state her employment was terminated because of her refusal to return a $258.87 overpayment. [ECF No. 33-11 at 7, ECF No. 33-10, see also ECF No. 38-2 at 61:3-64:16, 101:1-103:5]. Chen testified that initially Krystian inquired about how much money she owed and said she would repay when she could, she then said she did not have the money, and, finally, she took the position that the overpayment was not her fault, and she did not have to repay. [ECF No. 38-2 at 61:3-64:16, 101:1-103:5]. Chen directed Tan to call Krystian and tell her that she was terminated. See id. On March 9, 2020, either Chen or Tan informed Krystian that he did not know why she was being terminated but that “[i]t's not working out.” [ECF No. 38-3 ¶ 24].
As to Kelsey, in March 2020, Yummi Crab closed due to COVID-19. When the restaurant reopened, Chen sent a message on June 5, 2020 through the restaurant's web portal, Home Base, asking who wanted to return to work. [ECF No. 47-4 ¶ 12, ECF No. 33-5]. Kelsey states she saw the June 5, 2020 original message, but then was locked out of Home Base before she saw the follow-up message concerning a June 10, 2020 meeting, but texted Chen to tell him she would like to return to work and needed the job; although she saw he read the message, he never responded. [ECF No. 47-4 ¶ 12, ECF No. 38-17 at 24:25-26:19, 39:12-40:24, see also ECF No. 33-5].
Kelsey's last day of work was March 15, 2020. [ECF No. 33-8 at 7]. Chen testified he viewed her failure to attend the June 10, 2020 meeting and her failure to otherwise alert Yummi Crab as a voluntary resignation or job abandonment situation and administratively terminated the employment relationship on June 14, 2020. [ECF No. 38-2 at 108:2-23, ECF No. 33-7].
D. Additional Allegations
Erkek, a server at Yummi Crab during the relevant period and a female of Turkish descent, has provided a declaration, signed under penalty of perjury, including the following relevant allegations:
In late November 2019, kitchen manager John Lin, manager Braxton Wallace, cook Rakim, and I were having a conversation at the bar. John, who is my supervisor, asked if I would have sexual encounters with him for money. I said, “you're my boss. Why are you asking?” He asked again, thirty seconds later, and I gave the same response. The conversation died down and the topic changed, but I felt very put off and uncomfortable. I was waiting for a friend to get off work and left as soon as I could.
To my knowledge, Braxton reported this comment to her managers. Later that week, David Chen, the general manager, came to me about John's inappropriate comments. He had this conversation with me at the hostess stand at the front of the restaurant. John was nearby, within hearing distance, only a few feet away. He told me he thought the comments were okay because they were funny and because John had said them after hours at the bar. I disagreed. I said that even though it occurred after hours, it is not okay, because it's not a joke if it's my boss making the comments.[ECF No. 38-15 ¶¶ 3, 6-7].
Defendants have challenged the admissibility of declarations signed with electronic signatures. [ECF No. 43 at 3]. However, as discussed more below, the court may consider comments made by Lin as statements made by a party opponent pursuant to Fed.R.Evid. 801(d)(2). Additionally, the only case law offered by Defendants in support of their challenge is inapposite, as discussed by Plaintiffs. [See ECF No. 47 at 3-4 (citing Harris v. Mack, C/A No. 3:20-00565-MR, 2023 WL 6150249, at *1 (W.D. N.C. Sept. 20, 2023))].
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. Admissibility of Audio Recordings
As a preliminary matter, the court addresses Defendants' argument that Plaintiffs' two audio recordings should be excluded where “the recordings meet none of the factors relevant to the admissibility of recordings” under Fed.R.Evid. 901. [ECF No. 43 at 6]. Defendants further argue that the recordings have not been authenticated and that Defendants' counsel objected to Plaintiffs' counsel's reference to the recordings during Chen's deposition on the grounds of failure to authenticate. Id. at 6-7 (citing ECF No. 38-2 at 87:4-88:9).
Under Fed.R.Evid. 901, as explained by the Fourth Circuit, the following are factors relevant to the admissibility of recordings:
The proponent of an audio recording carries the burden of demonstrating that the recording was sufficiently authentic to be admitted into evidence. United States v. Wilson, 115 F.3d 1185, 1188-89 (4th Cir.1997). Under Federal Rule of Evidence 901(a), the requirement for authentication is satisfied when there is “evidence sufficient to support a finding that the item is what the proponent claims it is.” Illustrative examples of such evidence include (1) testimony by a knowledgeable witness that “[the audio recording] is what it is claimed to be,” Fed.R.Evid. 901(b)(1); (2)
“[a]n opinion identifying a person's voice-whether heard firsthand or through mechanical or electronic transmission or recording-based on hearing the voice at any time under circumstances that connect it with the alleged speaker,” id. at (b)(5); or (3) testimony “describing a process or system and showing that it produces an accurate result,” id. at (b)(9).United States v. Spence, 566 Fed.Appx. 240, 243 (4th Cir. 2014).
However, as also stated by the Fourth Circuit, “[t]he court and the parties have great flexibility with regard to the evidence that may be used on a [summary judgment] proceeding.” Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015), as amended (June 24, 2015) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2721 (3d ed. 1998)). As explained by the Fourth Circuit:
The court may consider materials that would themselves be admissible at trial, and the content or substance of otherwise inadmissible materials where the “the party submitting the evidence show[s] that it will be possible to put the information . . . into an admissible form.” 11 James Wm. Moore et al., Moore's Federal Practice § 56.91[2] (3d ed.2015). If the nonmovant objects to the court's consideration of “material cited to support or dispute a fact,” Fed.R.Civ.P. 56(c)(2), the movant has the burden “to show that the material is admissible as presented or to explain the admissible form that is anticipated,” Fed.R.Civ.P. 56 advisory committee's note.Id.
Here, as in Humphreys, “the admissibility . . . is immaterial because [Plaintiffs] explained the admissible form that is anticipated.” Id. (citations and alterations omitted). Plaintiffs have represented that the audio recordings were produced to Defendants during discovery, and Plaintiffs, as participants in the conversations captured in the recordings, can testify “to both the experiences they had that are reflected in the audio recording as well as the statements of Chen, Lin, and Wallace made during the conversations,” pursuant to Fed.R.Evid. 801(d)(2), that provides an exception to the hearsay rule allowing for admissions made by a party opponent. [ECF No. 47 at 10]. Additionally, select statements are not inadmissible hearsay because they are being offered to prove the Chen's state of mind, or, as argued by Plaintiffs, “Defendants' awareness of Krystian and Kelsey's complaints of sexual harassment,” see id., not for the truth of the matter asserted. See Fed.R.Evid. 801(c) (defining hearsay as an out-of-court statement offered “to prove the truth of the matter asserted in the statement”); United States v. Galecki, 932 F.3d 176, 194 (4th Cir. 2019) (finding statements “offered not for their truth, but solely for their effect on Defendants' state of mind” were not hearsay).
The relevant rule provides:
[a] statement is not hearsay if . . . [t]he statement is offered against the party and is . . . (A) was made by the party in an individual or representative capacity . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.Fed. R. Evid. 801(d).
The court finds that because the recordings are materials in the record and to the extent the statements found in the recordings may be put into admissible form as to trial as detailed above, they are proper for the court's consideration and should not be excluded. See, e.g., United States v. Capers, 61 F.3d 1100, 1106 (4th Cir. 1995) (“[S]o long as there is a basis for the [factfinder] to resolve the authenticity question in favor of the party offering a tape recording, arguments on the reliability of identification go to the weight of the evidence, not its admissibility.”); Spence, 566 Fed.Appx. at 244 (characterizing the relevant standard as “Rule 901(a) low threshold for authentication of the conversation ....”). Accordingly, certain statements from these audio recordings have been included in the factual background provided above.
Defendants also seek the court to exclude all allegations concerning incidents prior to November 2019, more than 300 days prior to when Plaintiff filed their charges in mid-September 2020. [ECF No. 43 at 2-3]. Regarding Plaintiffs' discrimination and retaliation claims, any relevant discrete acts that are alleged to have occurred prior to November 2019 are not actionable under Title VII, see Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), although no such acts are asserted here. As to their hostile work environment claims, however, the continuing violation doctrine applies. See, e.g., Guessous v. Fairview Property Invs., LLC, 828 F.3d 208, 223 n.5 (4th Cir. 2016). Therefore, the court may consider applicable allegations in support of Plaintiffs' hostile work environment claims that occurred prior to November 2019.
2. Title VII Discrimination Claims
Plaintiffs have brought Title VII discrimination claims, including hostile work environment claims. [See, eg, ECF No. 1-1 at 16-18].As to the discrimination claims, Title VII prohibits employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Absent evidence of direct discrimination, a plaintiff can proceed under the McDonnell Douglas burden shifting framework. First, to establish a prima facie case, “a plaintiff must show that (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her employer's legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination ” Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649-50 (4th Cir. 2021) (citation omitted). Once a plaintiff makes out a prima facie case, the burden shifts to the employer to put forth a nondiscriminatory explanation for its actions. Id. (citation omitted). If the employer does so, the burden then shifts back to the plaintiff to show that the employer's explanation was actually a pretext for discrimination. Id. (citation omitted).
Defendants argue Plaintiffs have failed to assert discrimination claims and have asserted only harassment claims. [See, eg., ECF No. 43 at 19-20]. However, evidence noted by Defendants excludes allegations discussed by the court regarding Kelsey's failure to promote claims, allegations included in Kelsey's Equal Employment Opportunity Commission (“EEOC”) documentation and complaint. [See ECF Nos. 1-1, 38-4, 47-4, see also ECF Nos. 38-8]. This case stands in contrast to, for example, one where the plaintiff:
did not . . . identify any promotion to which she applied and was denied. Nor did she provide any comparators that were given promotions for which she was more qualified. Her administrative case before the EEOC focused solely on her view that the 2013 realignment felt like a demotion, not that it established a failure to promote. Being excluded from the CPI Team and being denied specific promotions could potentially be discrete adverse actions on which Walton could have based her claims. But she elected not to do so.Walton v. Harker, 33 F.4th 165, 173 (4th Cir. 2022).
Here, and taking evidence in light most favorable to Plaintiffs, when Kelsey asked Chen about receiving a promotion to manager-something Kelsey had asked Chen about previously-Chen informed Kelsey that if anyone was going to be hired or promoted, it would be “one of us.” Four months later, Tan was hired or promoted to a manager position, replacing Krystian, notwithstanding Chen's testimony that Kelsey was never disciplined, he “never had problems” with her, and she was a “good server.” [ECF No. 38-2 at 98:12-17, 110:17-23, 122:13-18].
While allegations outside the 300-day period may not support a standalone charge of discrimination, they may “constitute relevant background evidence for valid claims.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)). Here, the court only accepts allegations within the barred period as background evidence as to Plaintiffs' discrimination claims, including Plaintiffs' evidence that Chen told Kelsey in October 2019 that “the next [person] to be promoted was going to be ‘one of us.'”
Chen's comment, if accurately reported, is direct evidence that either sex or race or both were considerations in making hiring or promoting determinations. Direct evidence of discriminatory intent includes “conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Melendez v. Bd. of Educ. for Montgomery Cty., 711 Fed.Appx. 685, 687 (4th Cir. 2017) (citation omitted). Defendants have not briefed Plaintiffs' harassment claims and therefore have not addressed Chen's comment nor offered a clear nondiscriminatory reason for their actions.
Although not discussed by Defendants, the court considers Chen's testimony that Tan could “stay late . . . and he can open,” spoke English well, went to college, and had a relationship with Long. [ECF No. 38-2 at 89:17-21, 115:25-116:17, see also id. at 36:19-37:18]. These are possible reasons why Tan was hired or promoted. However, Chen's comment he would hire “one of us” casts doubt on the legitimacy of the reasons he offered above, to the extent they are reasons, and a reasonable jury could conclude Chen considered sex or race in hiring Tan and not promoting Kelsey.
Plaintiffs argue they have submitted additional evidence concerning sex and race-based discrimination. This evidence includes Lin's alleged comments and Lin and Chen's alleged touching, discussed more below in the context of Plaintiffs' harassment claims, but also includes, for example, Long's statement, “[w]e are actually looking for a male who is really anal for the management position.” [See ECF No. 38 at 7-8].
Krystian submitted evidence that notwithstanding Long's statement to her, she was thereafter promoted to a management position.
However, a Title VII plaintiff must demonstrate that she suffered an “adverse employment action,” or something that caused “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or . . . a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (citation omitted). Thorough review of Plaintiffs' evidence does not reveal another relevant “adverse employment action” beyond Defendants' failure to promote Kelsey, discussed above. See, e.g., Chapman v. Geithner, C/A No. 1:11-1016-GBL-TRJ, 2012 WL 1533514, at *22 (E.D. Va. Apr. 30, 2012) (concluding that the plaintiff's Title VII claims based on her reassignment to new supervisors failed because the plaintiff “failed to show that these actions had a significant detrimental effect on her or her employment status or were otherwise materially adverse”), aff'd, 507 Fed.Appx. 299 (4th Cir. 2013).
Plaintiffs' dismissals from employment are also adverse employment actions, but are discussed below in the context of Plaintiffs' retaliation claims.
To the extent they argue that Defendants treated male employees better than female employees, beyond what is otherwise discussed by the court, Plaintiffs' evidence is inadequate where they have failed to specifically identify who is being compared, establish the similarity between comparators, 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)).
Plaintiffs state that Chen cut Krystian's hours so that Williams could work without her present. [See ECF No. 38 at 3, 8]. However, “[a] mere change in the hours or shift work may not be enough to show an adverse employment action.” Mills v. Autozone Stores, Inc., C/A No. 307-1477-CMC-JRM, 2008 WL 3010118, at *7 (D.S.C. July 31, 2008). Additionally, Plaintiffs have failed to submit evidence indicating any details concerning the alleged hour reduction. [See, e.g., ECF No. 38-2 at 76:17-77:12].
Accordingly, the undersigned recommends the district judge allow Kelsey's Title VII race and sex-based discrimination claims to proceed concerning her failure-to-promote allegations.
3. Title VII Race-Based Hostile Work Environment Claims
In their Title VII race-based hostile work environment claims, Plaintiffs must show: (1) they experienced unwelcome harassment; (2) the harassment was based on race; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. Evans v. Int'l Paper Co., 936 F.3d 183, 192 (4th Cir. 2019) (citing Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)).
Plaintiffs support this claim with evidence of Lin's repeated use of the n-word. As testified by Krystian: “I was present for at least two slurs that were karaoke related and one just a ‘wassup nigga.'” [ECF No. 38-16 at 55:21-23]. In assessing Plaintiffs' argument that these incidents are sufficiently severe or pervasive, the following guidance from the Fourth Circuit is instructive:
In evaluating severity, we look to the language utilized. On two occasions Peach utilized the N-word, which we have expressly held “is pure anathema to African-Americans.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001). “Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet . . . by a supervisor in the presence of his subordinates.” Id. (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)). We acknowledged even “an isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment, if that incident is extremely serious.” Boyer-Liberto, 786 F.3d at 277 (internal quotation marks omitted). However, we have also recognized that “a single act of harassment may not be actionable on its own.” Id. And the “mere utterance of an . . . epithet which engenders offensive feelings in an employee[ ] does not sufficiently affect the conditions of employment to implicate Title VII.” Id. (quoting Harris, 510 U.S. At 21).
Appellant relies on our decision in Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) in attempt to support his allegation that the unwelcome conduct was severe or pervasive. In Boyer-Liberto, we held a supervisor's two uses of
racially charged language, made to the plaintiff's face, and accompanied by a threat to fire her, were sufficient to support the severe or pervasive element. Id. at 268. In contrast, here, none of the three comments were made directly to Appellant. Indeed, Appellant confirmed he did not hear Peach, a co-worker and not a supervisor, make either of the offensive comments. And Appellant does not suggest Peach's March 9, 2016 comment, or Eastland's 2017 comment, was made about or otherwise directed at him.
While the racially disparaging statements made by Peach and Eastland are reprehensible and abhorrent, they were isolated and remote in time. See Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998) (concluding that to be deemed objectively pervasive, the “harassment must be more than episodic; [it] must be sufficiently continuous and concerted”) (quotation marks omitted). Moreover, Appellant was not threatened with the loss of his employment. And Appellant did not report Eastland's 2017 remark or otherwise adduce evidence to demonstrate this statement interfered with his work performance, despite continuing to work for the County for nearly two years following the last incident of alleged harassment.Brown v. Bratton, No. 21-1998, 2022 WL 17336572, at *10 (4th Cir. Nov. 30, 2022).
The instant case is more akin to Brown than Boyer-Liberto, where the record shows that the racially disparaging statements were made in the context of singing karaoke in addition to Lin saying once “wassup nigga.” See also, e.g., Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1035 (8th Cir. 2006) (“Likewise, as set forth above, when Canady mentioned during the September 24 meeting the “What's up, my nigga?” remark, Smith apologized for having made the comment and thereafter did not repeat it ....Smith's conduct did not give rise to an actionable claim of racial hostility.”).
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiffs' Title VII racebased hostile work environment claims.
4. Title VII Sexual Harassment Claim
Title VII prohibits sex discrimination in employment, including harassment. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). A plaintiff may establish a violation of Title VII by proving that sexual harassment has created a hostile work environment or by proving quid pro quo harassment. See, e.g., Brown v. Perry, 184 F.3d 388, 392-93 (4th Cir. 1999). Plaintiffs advance only a hostile work environment claim. To establish a prima facie case for hostile work environment sexual harassment under Title VII, the plaintiff must prove the relevant conduct was: (1) unwelcome; (2) based on the plaintiff's sex; (3) sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create an abusive work environment; and (4) imputable to the employer. Roberts v. Glenn Industrial Group, Inc., 998 F.3d 111, 117 (4th Cir. 2021). As to the fourth element, an employer is liable “if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end the harassment.” Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014) (citation omitted).
Plaintiffs reference quid pro quo harassment in their complaint [see ECF No. 1-1 at 16], but have failed to advance evidence or argument in support of this claim.
The parties dispute the second and third elements. As to these elements, Defendants portray the conduct at issue as a matter of “petty slights, minor annoyances, and simple lack of good manners,” and as “occasional incidents,” [see ECF No. 33-1 at 6-7] that “were not sexual . . . at all.” [ECF No. 43 at 13]. Defendants' characterization varies drastically from Plaintiffs' account of Lin and Chen's repeated and significant sex-based harassment, precluding grant of summary judgment at this time.
Defendants argue, correctly, that “instead of sporadic [sexual] slurs, there must be a steady barrage of opprobrious [sexual] comments.” Patterson v. Cnty. of Fairfax, No. 99-1738, 2000 WL 655984 (4th Cir. May 18, 2000) (citing Bolden v. P.R. Inc., 43 F.3d 545, 551 (10th Cir. 2000)); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (holding a single, isolated incident of sexual harassment insufficient to support a finding that the plaintiff reasonably believed that the conduct was severe and pervasive).
However, taking evidence in light most favorable to Plaintiffs, the complained-of actions were not sporadic nor were they non-sexual. Instead, Plaintiffs have submitted evidence that Lin made inappropriate sex-based comments “daily for three to four months” that included statements like “you can do me,” and “suck my dick,” as well as a request for sex in exchange for moneyand inquiries about coworkers becoming his “girlfriend.” [ECF No. 47-3 ¶ 8, ECF No. 38-15 ¶ 6]. Plaintiffs have also submitted evidence that both Lin and Chen engaged in “frequent” unwanted touching of female employees. [ECF No. 47-3 ¶ 13, ECF No. 38-17 at 47:15-49:2, ECF No. 38-5].
Although Defendants may be arguing otherwise [see ECF No. 33-1 at 10 n.2], the Fourth Circuit has stated “[t]estimony from other employees describing their own experiences of harassment by the defendant is often relevant to a plaintiff's hostile work environment claim.” King v. McMillan, 594 F.3d 301, 310 (4th Cir. 2010) (citing Fox v. GMC, 247 F.3d 169, 179 (4th Cir.2001) (pointing to testimony of other employees regarding supervisors' treatment in concluding that plaintiff presented sufficient evidence of hostile work environment under the Americans with Disabilities Act)).
This treatment appears “based on [Plaintiffs'] sex,” particularly in that there is no indication in the record that such treatment was directed toward male employees, only exclusively towards female employees. Taking the evidence in the light most favorable to Plaintiffs, as the court is required to do at this time, the court rejects Defendants' argument that because Lin's statements either were not, or were not perceived to be, “sexual invitations,” the comments do not constitute harassment. [See ECF No. 43 at 4]. “In determining whether offensive conduct can be attributed to discrimination against the employee's [sex], courts must view the behavior in light of the social context surrounding the actions.” Strothers v. City of Laurel, Maryland, 895 F.3d 317, 329 (4th Cir. 2018) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Here, Plaintiffs had sufficient reason to believe they were being mistreated based on their sex. See id.
Plaintiffs additionally argue they have established Defendants “engaged in all three types of sex-based harassment” articulated by the Supreme Court in Oncale. [ECF No. 38 at 12]. As described by the Fourth Circuit:
In Oncale, the Supreme Court held that “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex' merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” 523 U.S. at 79, 118 S.Ct. 998. The Court then identified three evidentiary routes by which a plaintiff could prove that he was the victim of same-sex harassment based on his sex: (1) when there is “credible evidence that the harasser [is] homosexual” and the harassing conduct involves “explicit or implicit proposals of sexual activity;” (2) when the “sex-specific and derogatory terms” of the harassment indicate “general hostility to the presence of [the victim's sex] in the workplace”; and (3) when comparative evidence shows that the harasser treated members of one sex worse than members of the other sex in a “mixed-sex workplace.” Id. at 80-81, 118 S.Ct. 998.Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 118 (4th Cir. 2021).
The third element of a hostile environment claim requires that the offending conduct be “sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). This element has both a subjective and objective component: that the employee must both personally and reasonably believe that the conduct rises to the level of a hostile environment. Id. (citation omitted). In assessing whether harassment is objectively abusive, courts must examine the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
Here, there are sufficient facts for a reasonable jury to find that Plaintiffs reasonably believed that Lin and Chen's actions were sufficiently severe or pervasive as to alter the terms or conditions of their employment and create an abusive environment. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998) (“On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character); see also E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 176 (4th Cir. 2009) (“It is beyond dispute that evidence that a woman was subjected to a steady stream of vulgar and offensive epithets because of her gender would be sufficient to establish a claim under Title VII ....”) (citing Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996)).
Additionally, the record indicates the complained of actions caused disruptions in the workplace. [See, e.g., ECF Nos. 38-5, 38-6]. Plaintiffs have also submitted evidence concerning the physical effects the complained of actions had on them. [See ECF No. 38 at 6-7 (citing ECF Nos. 38-11, 38-12, 38-13, 38-14)]. However, Defendants object to this evidence, including Plaintiffs' unsworn interrogatory responses. [See ECF No. 43 at 9-10]. The court need not resolve this issue where the court does not rely on the challenged evidence.
Although “Title VII does not create a general civility code in the workplace,” Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335 (4th Cir. 2010) (citing Oncale, 523 U.S. at 81), and while this circuit has “recognized that plaintiffs must clear a high bar in order to satisfy the severe or pervasive test,” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008), “inappropriate physical touching is certainly a strong indicator of a hostile work environment ....” Langley v. Dolgencorp, LLC, 972 F.Supp.2d 804, 812 n.7 (D.S.C. 2013); see also Okoli v. City of Baltimore, 648 F.3d 216, 221 (4th Cir. 2011) (reversing district court's grant of summary judgment in favor of employer and finding that “repeated propositioning and physical touching” by her supervisor was severe and pervasive harassment).
Accordingly, the undersigned recommends the district judge deny Defendants' motion for summary judgment as to Plaintiffs' Title VII sexbased hostile work environment claims.
5. Title VII Retaliation Claim
Title VII also prohibits an employer from retaliating against an employee for complaining about prior discrimination. Foster v. Univ. of Md. -Eastern Shore, 787 F.3d 243, 249 (4th Cir. 2015) (citing 42 U.S.C. §§ 200e-2(a)(1), 2000e-3(a)). As with the discrimination claims discussed above, a plaintiff may prove a Title VII retaliation claim either through direct evidence of retaliatory animus or via the application of the McDonnell Douglas burden-shifting framework. Roberts, 998 F.3d at 122 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Here, where there is no direct evidence of retaliatory animus, the court proceeds under the McDonnell Douglas framework.
To succeed on such a Title VII retaliation claim, a plaintiff must show that “(1) he engaged in a protected activity; (2) the employer acted adversely against him; and (3) there was a causal connection between the protected activity and the asserted adverse action.” Strothers, 895 F.3d at 327 (quoting Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008)). 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. Roberts, 998 F.3d at 122 (citation omitted). 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.
Here, the court assumes that Plaintiffs have established a prima facie case, but finds that they have failed to demonstrate Defendants' proffered reasons for their termination-Krystian's refusal to return money and Kelsey's failure to communicate concerning returning to work post COVID- are a pretext for unlawful discrimination.
Plaintiffs argue otherwise. As to Krystian, they argue:
[Krystian] can establish that the proffered reasons for her termination were pretext for her raising concerns about Defendants' discrimination. First, while Defendants indicate that she was terminated because of the failure to repay the overpayment from November 2019, Chen directed David Tan to call Krystian and terminate her simply because they “didn't need her anymore,” not because of any issue with an overpayment. (Ex. 1, 102:1-16; Ex. 2, ¶ 24). Second, John Lin-who engaged in discrimination against Krystian and Kelsey-told Krystian to “put in [her] two weeks notice if [she] didn't want to work around him.” (Ex. 2, ¶ 20). Furthermore, in his deposition, David Chen indicated that Defendants terminated Krystian because of her “attitude,” which a jury can infer means her unwillingness to accept the discriminatory treatment by Defendants. (Ex. 1, 101:12). Furthermore, there is evidence indicating that Defendants regularly indicated that female employees had “attitudes” Krystian repeatedly complained about this treatment, including at the February 10, 2020, meeting just several weeks prior to her termination.[ECF No. 38 at 26, see also id. at 31-32].
The Fourth Circuit has established that “[i]n order to show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019) (citing E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001)). However, there is no indication in the record before the court that Chen's proffered reason for Kristian's termination changed over time, was false, or was based on mistakes of fact, notwithstanding Plaintiffs' arguments otherwise.
Chen's relevant testimony is as follows:
A: .... Basically [Tan and I] talked about the attitude she gave me, the mishonor, dishonor, how dishonest she is. Because I tell Tan that she admitted she was going to pay me but now she says she's not going to pay me because it's my fault. So he say yeah, we don't accept this kind of behavior, we're just going to call her and tell her we no longer need her anymore ....
Q: You had mentioned instructing David to say we just don't need you anymore. Is that what you told him?
A: I didn't tell him how to say it. I just told him, I just tell him about the behavior of Ms. Singletary and he agreed that that kind of behavior, we don't need her anymore. I don't know how he said, but he told me he just told her not to come back ....
Q: So you didn't give like a written notice that she is being terminated, right, you didn't send her a letter or anything like that?
A: No. We just told her she was terminated.
Q: So she found out in the phone call between David Tan and Ms. Singletary, right?
A: Yes.
Q: And it's your understanding if I am correct that Mr. Tan was going to basically say we don't need you anymore?
A: I don't know how he want to say it. But we basically agreed, you know, we don't need her anymore ....[ECF No. 38-2 at 101:1-102:12].
Additionally, that Lin told Krystian to turn in her notice if she did not want to work with him does not indicate pretext on Chen's part, particularly where Krystian has submitted a declaration stating Chen spoke with her about the money in January and February 2020, insisting she pay back the money, which she refused. [ECF No. 47-1 ¶¶ 18, 21].
Finally, as this court has held numerous times, “although temporal proximity in certain circumstances can raise an inference of discrimination sufficient to make a prima facie case, it is alone usually insufficient to show pretext.” Beverly Gagne, Plaintiff, v. SAFE Fed. Credit Union, Defendant., C/A No 3:18-208-JMC-PJG, 2020 WL 2476651, at *5 (D.S.C. Jan. 30, 2020) (citing Mercer v. Arc of Prince Georges Cty., Inc., 532 Fed.Appx. 392, 399 (4th Cir. 2013)); see also Staley v. Gruenberg, 575 Fed.Appx. 153 (4th Cir. 2014).
Plaintiffs also argue as follows:
As to Kelsey, she can similarly establish that the proffered reasons for her termination were pretextual. Kelsey has testified that she was locked out of the Home Base communication application before she was able to reply with her interest in returning to work or receive information about the required June 10 meeting. Because she was locked out, she texted David Chen to express her interest in returning. Kelsey could see that Chen had read the message, but he did not respond. Because Kelsey had raised concerns of harassment at a February 10, 2020, staff meeting-shortly before the restaurant closed for the Covid-19 shutdown-there is an inference that Chen locked her out of Home Base and ignored her text because she had complained about Defendants' discrimination.[ECF No. 38 at 26-27, see also id. at 38].
Kelsey also has failed to show pretext. Kelsey testified she was “locked out” of the communications portal, but also testified that she was aware of the need to communicate with Chen if she wanted to return to work. [ECF 38-17 at 24:25-27:11]. She alleges that she sent one text message and never followed up and offers no evidence to dispute Chen's evidence that he did not receive a communication from her. Id.
Chen testified that he had a new phone and did not answer calls unless he could see who the caller was. [ECF No. 38-2 at 107:7-108:6, 110:1-10]. He testified she did not contact him, did not call, and did not go by the restaurant. Id. Chen also testified that he did not receive a text message or a voicemail message from Kelsey. Id. Finally, other employees failed to respond and, similarly, were not put back on the schedule. Id.
As stated above, temporal proximity alone is insufficient to establish pretext, and Kelsey has failed to establish pretext otherwise. The Fourth Circuit has made clear that pretext inquiries under a Title VII framework are focused on determining whether the defendant's proffered reason for termination was pretexual, and “it is not [the court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). While it would certainly be unfortunate if Kelsey attempted unsuccessfully to contact Chen and therefore was “fired for misconduct [she] did not actually engage in . . . a good-faith factual mistake is not the stuff of which Title VII violations are made.” Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017).
The undersigned's recommendation to the district judge that Plaintiffs have failed to establish pretext applies equally to Plaintiffs' arguments their terminations were a result of retaliation and prohibited discrimination. [See ECF No. 38 at 9].
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiffs' Title VII retaliation claims.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendants' motion for summary judgment, allowing to proceed, against Yummi Crab, Plaintiffs' (1) Title VII race and sex-based discrimination claims concerning Kelsey's failure to promote allegations and (2) Title VII sex-based hostile work environment claims. [ECF No. 33].
To the extent Plaintiffs have alleged causes of action against individuals pursuant to Title VII, such individuals are subject to dismissal. See Baird ex rel. Baird v. Rose, 193 F.3d 462, 472 (4th Cir. 1999) (stating “Title VII does not authorize a remedy against individuals for violations of its provisions”); Jones v. Sternheimer, 387 Fed.Appx. 366, 368 (4th Cir. 2010) (finding that Title VII among other statutes do not provide causes of action against defendants in their individual capacities).
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).