Opinion
Civil Action No. 7:17-1043-DCC-KFM
05-28-2019
Tonda Smith, Plaintiff, v. Palmetto Denture Care, P.A., Defendant.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the defendant's motion for summary judgment (doc. 89). In the three remaining causes of action of the amended complaint, the plaintiff alleges causes of action for sexually hostile work environment, race discrimination, and retaliation, all in violation of Title VII of the Civil Rights Act of 1964, as amended (doc. 38, amend. comp.). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
The plaintiff's state law claims were dismissed by order entered by the district court on July 27, 2018 (doc. 80).
FACTS PRESENTED
Dr. James W. Fields is the owner of defendant Palmetto Denture Care, P.A.. He opened his dental practice in 1974 (doc. 89-2, Fields dep. 19). In 1979, Dr. Fields started Piedmont Dental Center to focus his practice on extractions, dentures, relines, repairs, and partial dentures instead of general dentistry (id. 20-21). Dr. Fields hired Christine Just in 1979 as a receptionist (doc. 89-3, Just dep. 14). As the practice grew and Dr. Fields opened additional offices, Ms. Just became the business manager (id. 16-17). In 2008, Dr. Fields sold his practice and retained only one office in Spartanburg (doc. 89-2, Fields dep. 21). Dr. Fields changed the name of the Spartanburg office to Palmetto Denture Care, and it currently has 28 employees (doc. 89-3, Just dep. 21). Ms. Just has remained the business manager over the Spartanburg office (id. 16-18).
Dr. Fields comes into the office approximately one time per week (doc. 89-3, Just dep. 21). Ms. Just handles human resources issues for the defendant, including handling patient and employee complaints and problems (id. 18). Ms. Just supervises the dental assistants, but Dr. Fields makes all hiring and termination decisions (id. 18-19; doc. 89-2, Fields dep. 24-25, 30-31). Dr. Fields has the ultimate decision making authority in the office for any major employment issues (doc. 89-3, Just dep. 20). If a conflict involves a dentist, Dr. Fields speaks to the dentist directly (doc. 89-2, Fields dep. 30). Ms. Just does not have authority to discipline the dentists (doc. 89-3, Just dep. 19).
The defendant is an equal opportunity employer and maintains policies prohibiting discrimination, harassment, and retaliation in the workplace (doc. 89-2, Fields dep. 25-26 & ex. 25 at 4). Dr. Charles McNutt received a copy of this policy and understood the defendant's policy prohibiting harassment (doc. 89-4, McNutt dep. 38-40, 56 & ex. 3). The plaintiff was also aware of the defendant's policy prohibiting harassment and discrimination and its reporting requirements (doc. 89-5, pl. dep. 233-34).
The plaintiff's allegations center on the actions of Dr. McNutt (see doc. 38, amend. comp. ¶¶ 36-57). In the memorandum in opposition to the motion for summary judgment, the plaintiff alleges that Dr. McNutt has been arrested and convicted of crimes against women and other alleged misconduct (doc. 100 at 3-4). However, the plaintiff does not provide any citations or evidence to support such allegations, as required by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 56(c)(1). Moreover, the defendant argues that, even if the plaintiff had cited evidence, any such evidence cannot be presented in a form that would be admissible in evidence (doc. 102 at 2-3). See Fed. R. Civ. P. 56(c)(2). Accordingly, the plaintiff's unsupported allegations will not be considered.
The defendant hired the plaintiff, who is an African-American woman, in May 1999 as a dental assistant (id. 25-26; doc. 38, amend. comp. ¶ 4). Ms. Just interviewed the plaintiff, and she was hired by Dr. Fields (doc. 89-5, pl. dep. 26-27). Her job was primarily to assist the doctors with impressions for dentures and with tooth extractions (id. 27-28). The plaintiff, like the other dental assistants, was assigned to a specific operatory room. The dentists rotated rooms based on when the patient was ready to see a dentist (doc. 89-3, Just dep. 38-40). The dentists were not assigned to any particular room (id.). The plaintiff worked with several dentists throughout the day (doc. 89-5, pl. dep. 28-29). Dr. McNutt did not like being in an operatory room with a patient without an assistant, and on several occasions, he asked other employees where a dental assistant was if she was not in her operatory room; he did this with all dental assistants and not just with the plaintiff (doc. 89-6, Kennerly, decl. ¶ 3; doc. 89-7, Finley decl. ¶ 3; doc. 89-8, Bobo decl. ¶ 3; doc. 89-9, Wilson decl. ¶ 3; doc. 89-10, Lathan decl. ¶ 3). The defendant generally had three doctors working each day, and the patient schedule was very busy at times (doc. 89-3, Just dep. 32-33).
After the plaintiff began her employment with the defendant, she became close friends with Ms. Just (doc. 89-5, pl. dep. 29-30). They had a good relationship and spent time together outside of work (id. 46). The plaintiff and Ms. Just went shopping together, and the plaintiff had dinner at Ms. Just's house on several occasions (id. 45-46). However, several years later, their personal relationship was impacted based on personal reasons. The plaintiff believes that Ms. Just treated her differently after their personal friendship changed (id. 30-32).
The plaintiff had a good relationship with Dr. Fields throughout her employment with the defendant (id. 33). The plaintiff was comfortable talking to Dr. Fields about personal issues, and he was always responsive (id. 33-34). The plaintiff believes that Dr. Fields is an honest person (id. 38). The plaintiff believes that, with the exception of her alleged issues with Dr. McNutt, Dr. Fields treated her fairly during her 17 years of employment by the defendant (id. 33-34).
Dr. McNutt started practicing with the defendant as a dentist in approximately 2004 (doc. 89-4, McNutt dep. 29). Dr. McNutt was not responsible for supervising any of the dental assistants, including the plaintiff (id. 41, 46, 59). The dentists did not have the authority to discipline the dental assistants (doc. 89-3, Just dep. 41). These functions were handled by Ms. Just and Dr. Fields (doc. 89-4, McNutt dep. 41, 46, 59; doc. 89-3, Just dep. 17-20, 28).
Dr. McNutt complained to Ms. Just that he believed the plaintiff keyed his truck (doc. 89-5, pl. dep. 46-49; doc. 89-4, McNutt dep. 44-46). Prior to this complaint, the plaintiff testified that her relationship with Dr. McNutt "was okay" (doc. 89-5, pl. dep. 45). The plaintiff denied keying his truck (id. 47). Dr. McNutt testified that he recalls the plaintiff getting upset with him that day because he asked her not to park in a handicap parking space so that it would be available for handicapped customers (doc. 89-4, McNutt dep. 44-46). Fellow dental assistant Pam Slater-Hamilton stated in her affidavit that the plaintiff routinely parked in the handicap space even though she was not handicapped, especially if she was running late to work (doc. 89-11, Slater-Hamilton decl. ¶ 5). On the day that Dr. McNutt asked her to move her car, the plaintiff got upset but finally moved her car (doc. 89-4, McNutt dep. 44-46). After she moved her car, Dr. McNutt noticed his truck had been keyed (id.). Dr. McNutt recalled the plaintiff laughing that someone keyed his truck (id.). Dr. McNutt described the plaintiff's conduct as "taunting" him (id.). This was the reason Dr. McNutt complained to Ms. Just that he thought the plaintiff keyed his truck (id.). He wanted to call the police, but Ms. Just encouraged him not to do so (id.). Ms. Slater-Hamilton recalled that Dr. McNutt's truck was keyed, but she did not know who did it (doc. 89-11, Slater-Hamilton decl. ¶ 6).
The plaintiff alleges that in 2012 Dr. McNutt accused her of taking a part from his boat (doc. 38, amend. comp. ¶ 14; doc. 89-5, pl. dep. 46-47). The plaintiff alleges that Dr. McNutt also accused Ms. Slater-Hamilton, who is African-American, of this theft (doc. 38, amend. comp. ¶ 14; doc. 89-11, Slater-Hamilton decl. ¶ 11). Dr. McNutt testified that he does not recall this situation (doc. 89-4, McNutt dep. 44). Ms. Slater-Hamilton stated in her declaration that she recalls that the plaintiff and Dr. McNutt had a disagreement and that later that day something was missing from Dr. McNutt's boat; however, she testified that Dr. McNutt "never accused me of taking anything from his boat" (doc. 89-11, Slater-Hamilton decl. ¶ 4). Ms. Slater-Hamilton further stated that she has never felt discriminated against because of her race while working for the defendant for 17 years (id. ¶ 11).
After these incidents, the plaintiff claims that Dr. McNutt started accusing her of not doing her job, that he got loud when she made a mistake, and that he would look for her when she was missing from the work area (doc. 89-5, pl. dep. 48-51). She alleges that he once knocked on the bathroom door when she was in the bathroom and said that someone was waiting on her (id. 50). She alleges that on one occasion she was eating, and, when she looked up, he was there (id.). She alleges that on one occasion she was outside at her car, and he came outside (id. 50-51). The plaintiff believes that Dr. McNutt was looking for a reason to "try to get [her] in trouble" (id. 51).
On December 14, 2009, the plaintiff complained to Dr. Fields for the first time that Dr. McNutt was singling her out and picking on her (id. 75-78 & ex. 5; doc. 89-3, Just dep. 52; doc. 89-2, Fields dep. 42-43). The plaintiff did not allege that Dr. McNutt was harassing or discriminating against her because of her race or sex (doc. 89-3, Just dep. 49). Ms. Just was a witness to the plaintiff's conversation with Dr. Fields and made notes for the file (doc. 89-12, Just decl. ¶ 4 & attach. 1). The plaintiff testified in her deposition that Ms. Just's notes accurately documented "some of" the incident, but she disagreed that the statement that she "kept getting frustrated and wanted to leave and wouldn't listen" (doc. 89-5, pl. dep. 75-78 & ex. 5). According to Ms. Just's notes, Dr. Fields had her bring in Dr. McNutt, who admitted getting frustrated with the plaintiff because many times when he needed her to assist him, he would find her talking to someone, and she would roll her eyes when he asked her to help him (doc. 89-12, Just decl. ¶ 4 & attach. 1). The plaintiff told Dr. Fields to bring in any other dental assistant, and they would tell him how Dr. McNutt "stay[ed] after her" (id.). Dr. McNutt brought in Linda Wilson, who stated that while she had heard Dr. McNutt say things to the plaintiff, he also treated the other assistants the same (id.). Ms. Just informed Dr. Fields that the other dental assistants had also complained that Dr. McNutt came looking for them when they were not in their room and tried to rush them to work (doc. 89-3, Just dep. 52-53). Ms. Just believed that Dr. McNutt was pushing for efficiency in the office and trying to keep the dental assistants "on task" (id.). Ms. Just believed that the plaintiff's complaint related to what Dr. McNutt was doing correctly, and Dr. Fields believed that Dr. McNutt's actions were with the office's best interests at heart (id. 53; doc. 89-2, Fields dep. 43).
The plaintiff testified that, in May 2011, she and Dr. McNutt had a conflict about the way he spoke to her in front of a patient (doc. 100-3, pl. dep. 54-55, 87-90 & ex. 10). The plaintiff complained to Ms. Just, and Ms. Just called Dr. McNutt into her office (doc. 89-12, Just decl. ¶ 5). After the meeting with Ms. Just, the plaintiff claims that Dr. McNutt stormed out of Ms. Just's office and walked fast around the corner of the hallway (doc. 100-3, pl. dep. 54-55). The plaintiff was on the other side of the hallway, and when he turned the corner, Dr. McNutt bumped into her "so hard . . [she] just basically almost hit the floor" (id.). The plaintiff alleged it was intentional, and Ms. Just investigated this allegation (doc. 89-12, Just decl. ¶ 5). The plaintiff testified that Angie Enscoe witnessed the incident and went to get Ms. Just (doc. 100-3, pl. dep. 55-56). The plaintiff further testified that Ms. Just asked her not to call the police, and she did not call the police since Ms. Just stated that she would call Dr. Fields and tell him what happened and they would take matters from there (id.). The plaintiff then went to the doctor because she "wasn't good at that time" (id. 56). Ms. Just stated in her declaration that she questioned Ms. Enscoe, who stated that it appeared to her that Dr. McNutt bumped into the plaintiff accidentally and that he immediately apologized (doc. 89-12, Just decl. ¶ 5). In her declaration submitted by the defendant in support of the motion for summary judgment, Ms. Enscoe stated that she witnessed the incident, and it appeared to her "that Dr. McNutt came around the corner where [the plaintiff] was standing and did not see her and accidentally bumped into her. It was not a violent bump" (doc. 89-13, Enscoe decl. ¶ 8). She further stated that Dr. McNutt apologized to the plaintiff and said "excuse me," and she told Ms. Just that it looked like an accidental bumping to her (id.).
The plaintiff claims that Dr. McNutt harassed her when he placed his hand on her lower back (doc. 89-5, pl. dep. 52-53, 66, 133-134; doc. 38, amend. comp. ¶ 25a). Dr. McNutt went into the plaintiff's room and offered her Doritos, saying that he wanted them to find a way to work together, at which time he placed his hand on her lower back (doc. 89- 5, pl. dep. 52-53, 66, 133-34). The plaintiff does not recall when this occurred but believes it was during Dr. McNutt's first term of employment with the defendant (id. 53, 74-75). Dr. McNutt's first term of employment with the defendant ended on June 18, 2012, based on a downturn in business (doc. 89-4, McNutt dep. 30-31; doc. 89-3, Just dep. 60).
The defendant's business later increased, and Dr. McNutt was rehired in April 2015 (doc. 89-3, Just dep. 60). The plaintiff was not happy that the defendant rehired Dr. McNutt (doc. 89-15, Williamson decl. ¶ 5). The plaintiff told co-worker Paige Williamson that she was going to get rid of him (id.). The plaintiff testified that Dr. McNutt never made any sexual comment or advance toward her (doc. 89-5, pl. dep. 69). She also testified that she did not think her gender had anything to do with the way Dr. McNutt treated her, but she believed her race did have something to do with it "[b]ecause he didn't treat the other Caucasian workers like that" (id. 73).
The plaintiff alleges that she was walking down a hallway where there was only enough room for one person to comfortably pass, but rather than waiting on her to pass, Dr. McNutt tried to pass her at the same time, and he brushed against her (doc. 89-5, pl. dep. 64-68). The plaintiff asked him why he tried to come through the hallway when he saw her coming through, and Dr. McNutt apologized and said he was not paying attention (id.). The plaintiff thinks this incident occurred during Dr. McNutt's second term of employment (id. 65). The plaintiff recalls that Dr. McNutt brushed the side of her butt, but she does not recall what part of Dr. McNutt's body touched her (id. 68, 214-15). The plaintiff does not recall if she told Dr. Fields about this incident, but she did tell Ms. Just (id. 64- 65).
On February 8, 2016, the plaintiff reported to Dr. Fields that she believed Dr. McNutt was following her (doc. 89-12, Just decl. ¶ 8 & attach. 4). She said that "anyone" on the floor could verify this fact (id.). Thus, Dr. Fields spoke to five other employees, but they all stated they had not witnessed Dr. McNutt following the plaintiff (id.; doc. 89-3, Just dep. 64-65; doc. 89-2, Fields dep. 46-48, 50-53; doc. 89-5, pl. dep. 70). The plaintiff did not mention any form of perceived sexual or racial harassment or discrimination and did not complain of any type of improper touching by Dr. McNutt (doc. 89-2, Fields dep. 35; doc. 89-3, Just dep. 49; doc. 89-12, Just decl. ¶ 10). In her deposition, the plaintiff testified that the "whole office" witnessed Dr. McNutt follow her and mistreat her (doc. 89-5, pl. dep. 70). In their declarations submitted in this case, the plaintiff's co-workers stated that they never witnessed any misconduct by Dr. McNutt toward the plaintiff and never witnessed Dr. McNutt treat the plaintiff differently than the other assistants (doc. 89-17, Gregory decl. ¶ 3; doc. 89-6, Kennerly decl. ¶ 3; doc. 89-14, Harrell decl. ¶ 3; doc. 89-15, Williamson decl. ¶ 3; doc. 89-7, Finley decl. ¶ 3; doc. 89-18, Stark decl. ¶ 3; doc. 89-19, Rutter decl. ¶ 3; doc. 89-20, Bishop decl. ¶ 3; doc. 89-8, Bobo decl. ¶ 3; doc. 89-16, Jones decl. ¶ 3; doc. 89-9, Wilson decl. ¶ 3; doc. 89-11, Slater-Hamilton decl. ¶ 3; doc. 89-10, Lathan decl. ¶ 3; doc. 89-13, Enscoe decl. ¶ 3). Several employees testified that the plaintiff went missing more than any of the other dental assistants (doc. 89-3, Just dep. 58; doc. 89-15, Williamson decl. ¶ 3; doc. 89-7, Finley decl. ¶ 4; doc. 89-8, Bobo decl. ¶ 4; doc. 89-16, Jones decl. ¶ 3; doc. 89-9, Wilson decl. ¶ 4; doc. 89-13, Enscoe decl. ¶ 3). Drs. Stark, Rutter, and Gregory testified that it was common for a dentist to look for an assistant if she was not in her room, and they each had looked for assistants if they needed them (doc. 89-18, Dr. Stark decl. ¶¶ 3-4; doc. 89-19, Dr. Rutter decl. ¶ 3; doc. 89-17, Dr. Gregory decl. ¶ 4). Dr. Stark stated that the plaintiff "went missing more than the other assistants," and Dr. Rutter stated that while the plaintiff "was consistently in her operatory room in the mornings . . . she went missing in the afternoons much more than the other assistants" (doc. 89-18, Dr. Stark decl. ¶ 4; doc. 89-19, Dr. Rutter decl. ¶ 4).
The plaintiff filed a charge of discrimination against the defendant with the Equal Employment Opportunity Commission ("EEOC") on February 19, 2016, alleging race and sex discrimination and retaliation (doc. 89-5, pl. dep., ex. 14). Following the filing of the charge, the defendant closely monitored Dr. McNutt and tried to avoid having him work with the plaintiff (doc. 89-2, Fields dep. 40, 70-71; doc. 89-3, Just dep. 66; doc. 89-12, Just decl. ¶ 11; doc. 89-8, Bobo decl. ¶ 5). The plaintiff's charge was the first time the plaintiff alleged that she was sexually harassed or discriminated against or that Dr. McNutt's conduct was based on her sex or race (doc. 89-2, Fields dep. 35, 42; doc. 89-3, Just dep. 67; doc. 89-12, Just decl. ¶ 10). The plaintiff testified that she did not work with Dr. McNutt after she filed the EEOC charge (doc. 100-3, pl. dep. 130).
This was the first sexual harassment complaint that Ms. Just dealt with in 39 years (doc. 89-3, Just dep. 24). The defendant retained an outside investigator, attorney Grant Close, to investigate the plaintiff's allegations (doc. 89-21, Close decl. ¶ 3). The investigator met with the plaintiff and her attorney at the time (Brian Murphy) regarding the details of the allegations in her charge, and he took notes regarding the plaintiff's allegations (id. ¶ 4 & attach. 1). The investigator also interviewed dental assistants Pam Slater, Angie Enscoe, Linda Wilson, and Paige Williamson, and Drs. Gregory, Rutter, and Stark (id. ¶¶ 5-6 & attach. 3). None of these assistants and dentists observed any inappropriate misconduct by Dr. McNutt (id.). None of the dentists or dental assistants had observed any racist comments or actions by anyone working at the office (id.). The investigator also interviewed Dr. McNutt who denied any wrongdoing (id.).
Ms. Just testified in her deposition that the plaintiff used her charge as a shield as if she was untouchable as it related to her attitude and job related discipline (doc. 89-3, Just dep. 77). Several of the plaintiff's co-workers stated in their declarations that the plaintiff's attitude became more negative and hostile after they were interviewed by the investigator (doc. 89-15, Williamson decl. ¶ 6; doc. 89-16, Jones decl. ¶¶ 4-6; doc. 89-9, Wilson decl. ¶¶ 6-8; doc. 89-13, Enscoe decl. ¶¶ 4-5). Many of the employees considered the plaintiff to be a bully and described her as argumentative, moody, disrespectful, manipulative, loud, and aggressive (doc. 89-20, Bishop decl. ¶ 4; doc. 89-14, Harrell decl. ¶ 4; doc. 89-15, Williamson decl. ¶ 4; doc. 89-7, Finley decl. ¶ 5; doc. 89-16, Jones decl. ¶ 4; doc. 89-9, Wilson decl. ¶ 6; doc. 89-13, Enscoe decl. ¶ 4). Linda Wilson witnessed the plaintiff use profanity towards Ms. Just (doc. 89-9Wilson decl. ¶ 6). Angie Enscoe witnessed the plaintiff "bully" Ms. Just on several occasions, causing Ms. Just to become emotional and cry (doc. 89-13, Enscoe decl. ¶ 4). Dr. Stark also witnessed the plaintiff act in a disrespectful manner toward Dr. McNutt, and he witnessed the plaintiff verbally abuse Ms. Just on several occasions (doc. 89-18, Stark ¶¶ decl. 5-6). Dr. Rutter stated that the plaintiff was a negative force in the office, as she would not comply with work rules and the things they were trying to accomplish in the office (doc. 89-19, Rutter decl. ¶ 5).
On April 13, 2016, the defendant issued the plaintiff a "letter of reprimand," signed by Dr. Fields and Dr. Gregory, for a "heated outburst and blatant disrespect for authority" that occurred on March 31, 2016 (doc. 89-12, Just decl. ¶ 13 & attach. 6; doc. 89-3, Just dep. 79). The plaintiff disagreed with the summary of the incident as set forth in the reprimand and testified that she did not claim that Ms. Just violated HIPAA laws, she did not yell at Ms. Just, and, while she did ask and receive permission to leave following the incident, she never said that she would not be back (doc. 100-3, pl. dep. 152-59). She refused to sign the reprimand because what was written in it "never happened" (id. 152, 159). Prior to the filing of the plaintiff's charge of discrimination, the plaintiff had never received a formal warning/reprimand from the defendant (doc. 100 at 3; doc. 102 at 12).
The parties appear to agree that the plaintiff did not have any formal disciplinary actions prior to filing her charge (doc. 100 at 3; doc. 102 at 12). In the deposition testimony cited by the plaintiff, Ms. Just testified that the plaintiff "got write-ups from the time she came," but the March 2016 reprimand was different than a "write-up" because it was given by Dr. Fields, whereas Ms. Just did write-ups "when anything happens with anybody in the office" (doc. 100-4, Just dep. 68-79).
Ms. Just stated that the plaintiff's negative behavior continued, and several issues did not result in any disciplinary action because "[she] did not want [the plaintiff] to claim [they] were retaliating against her" (doc. 89-12, Just decl. ¶¶ 14-18 & attach. 7-11). Ms. Just testified that, on April 19, 2016, she attempted to address the plaintiff's failure to follow office protocol in patient treatment, but the plaintiff would not accept responsibility for her behavior and displayed an inappropriate attitude, disrespect for authority, and walked away from her as she was trying to address the issues (id. ¶ 17). Ms. Just documented the issue for the file (id. & attach. 9). According to Ms. Just, they were "planning to issue [the plaintiff] a second written reprimand related to this incident," and a written reprimand was prepared (id. & attach. 10). However, the reprimand was not issued prior to the end of the plaintiff's employment because Dr. Fields was out of town (id.).
Ms. Just testified that, on May 10, 2016, the plaintiff came into her office, and the two of them met for over one hour (doc. 89-3, Just dep. 81-84). During the meeting, the plaintiff was apologetic for a remark she made in front of Dr. Gregory (id. 81). She told Ms. Just that she could not "do this anymore" and that she wanted to quit, but her attorney said that if she quit she would not get unemployment (id. 82-83). The plaintiff said it was hard to come into work every day because everyone thought she was a monster and that she could find a job anywhere (id.). Ms. Just said she would speak to Dr. Fields to see if he would "do something for her while she was looking for another job" (id. 84). Ms. Just told the plaintiff to call someone to pick her up and that, as soon as the plaintiff left, she would call Dr. Fields to see what she could do, and then she would call the plaintiff back (id.85). At the end of the meeting, Ms. Just let the plaintiff leave from the side door so that other employees would not see her in an emotional state (id.; doc. 89-8, Bobo decl. ¶ 7; doc. 89-10, Lathan decl. ¶ 5; doc. 89-11, Slater-Hamilton decl. ¶ 9). Following the meeting, Ms. Just was very emotional and told Ms. Bobo that the plaintiff had resigned during the meeting (doc. 89-8, Bobo decl. ¶ 7). Ms. Just documented the details of her conversation with the plaintiff and called Dr. Fields and informed him of the meeting (doc. 89-12, Just decl. ¶¶ 19-20 & attach. 12). She asked Dr. Fields "about a severance, and he said he was happy to help [the plaintiff] while she looked for a new job" (id.; doc. 89-3, Just dep. 85-86; doc. 89-2, Fields dep. 67). When Ms. Just called the plaintiff later that day to tell her what Dr. Fields said, the plaintiff stated that she did not quit (doc. 89-12, Just decl. ¶ 21; doc. 89-3, Just dep. 86).
In her deposition, the plaintiff testified that on May 10, 2016, she went in to Ms. Just's office to tell her that she was not feeling good and wanted to go home (doc. 100-3, pl. dep. 175-76). Ms. Just told her that she could go home and then said, "[W]hy don't you just take the charge down about Dr. McNutt?" (id.). The plaintiff told her that she could not talk about that (id.). The plaintiff and Ms. Just then proceeded to talk about when they used to be close friends, and they both started crying (id.). The plaintiff testified that she did not have her car at work that day, and when Ms. Just walked her out to her father's car when he picked her up, Ms. Just said, "I hope you feel better, I'll see you tomorrow" (id. 177). The plaintiff claims that Ms. Just called her repeatedly that afternoon, "saying, 'I'm gonna see what Dr. Fields can do'" (id. 178). She testified that, in the last call, Ms. Just told the plaintiff, "[Y]ou quit your job. . . . And I said, no, ma'am, I didn't quit my job" (id.). The plaintiff returned to work the next day, and Ms. Just refused to let her sign in, telling the plaintiff that she had quit her job (id.). The plaintiff, whose husband was with her, asked to see Dr. Gregory, and she told Dr. Gregory that she did not quit (id. 179-80). Ms. Just collected the plaintiff's belongings and gave them to her, and the plaintiff and her husband left (id.). The plaintiff admitted that she told Ms. Just that she felt isolated and that everyone was against her (id. 184-86). The plaintiff denied ever stating that she could not "do this anymore" (id. 186). She admitted that Ms. Just stated that she would talk to Dr. Fields to "see what Dr. Fields had to say about what was going on," but she "never had any idea that [Ms. Just\ was saying that I didn't want my job" (id. 187). In her declaration, Ms. Just stated that the plaintiff never mentioned leaving because she was feeling sick that day, and it was clear to her that the plaintiff had resigned (doc. 89-12, Just decl. ¶ 21).
Dr. Fields testified that he ultimately decided that the plaintiff resigned and did not allow her to return to work (doc. 89-2, Fields dep. 67, 75; doc. 89-12, Just decl. ¶ 21). Accordingly, the plaintiff's employment ended on May 10, 2016. Within the last few days or weeks of her employment, the plaintiff told Angie Enscoe that she was "not sure how much longer she could be here" and that "we will see who's side you are on" (doc. 89-13, Enscoe decl. ¶¶ 6-7). She told Dr. Stark that she was "fed up" with working for the defendant and was "sick of this place" (doc. 89-18, Stark decl. ¶ 8). The plaintiff made comments to Amy Jones that she was "going to get out of here" and that she was going to quit (doc. 89-16, Jones decl. ¶ 7). She told Linda Lathan over the last two years of her employment that she was tired of working for the defendant (doc. 89-10, Lathan decl. ¶ 4), and, in the last few months of her employment Paige Williamson heard the plaintiff talking about quitting (doc. 89-15, Williamson decl. ¶ 7).
APPLICABLE LAW AND ANALYSIS
Standard of Review
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
Title VII Burden-Shifting Framework
"A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof." Addison v. CMH Homes, Inc., 47 F. Supp. 3d 404, 416 (D.S.C. 2014). First, a plaintiff may establish his/her claims through direct evidence of the alleged discrimination. Id. (citation omitted). "Such proof includes 'evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.'" Id. at 416-17 (quoting Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995)). "Absent direct evidence of intentional discrimination, Title VII . . . claims are analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973)." Shun-Lung Chao v. Int'l Bus. Machs. Corp., 424 F. App'x 259, 260 (4th Cir. 2011) (citation omitted). In their briefs, both parties analyze the plaintiff's claims under the McDonnell Douglas framework (see docs. 89-1, 100).
The plaintiff must first establish a prima facie case of discrimination. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the plaintiff can establish a prima facie case, the burden then shifts to the defendant to produce a legitimate, nondiscriminatory reason for its actions against the plaintiff. Id. at 253-55 (this is a burden of production, not persuasion). If the defendant meets this burden, the plaintiff must show by a preponderance of the evidence that the proffered reason was a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). The Court of Appeals for the Fourth Circuit recently explained the plaintiff's burden as follows:
For status-based discrimination claims, the employee must "show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision." Univ. of Texas Sw. Med. Ctr. v. Nassar, — U.S. —, 133 S.Ct. 2517, 2523, 186 L.Ed.2d 503 (2013). Retaliation claims, by contrast, 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, 133 S.Ct. at 2533 ("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."). The Supreme Court has recently reiterated that a cause need not work in isolation to be a but-for cause. Burrage v. United States, — U.S. —, 134 S.Ct. 881, 888, 187 L.Ed.2d 715 (2014) ("Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived."). As the district court noted, the plaintiff's burden to show pretext "merges with the plaintiff's ultimate burden of persuading the court that she was a victim of intentional discrimination." Guessous, 2014 WL 7238993, at *9 (citing Burdine, 450 U.S. at 256, 101 S.Ct. 1089).Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216-17 (4th Cir. 2016).
Time-Barred Allegations
Before filing suit under Title VII, a plaintiff must first exhaust his or her administrative remedies by filing a timely charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1). "Only acts occurring within the 300 days prior to the filing of the EEOC charge are actionable under Title VII." Phillips v. Georgetown Cty., C.A. No. 2:16-cv-1612-PMD-MGB, 2018 WL 3119234, at *3 (D.S.C. Jan. 24, 2018) (citation omitted), R&R adopted by 2018 WL 1324502 (D.S.C. Mar. 15, 2018). The plaintiff filed her charge of discrimination with the EEOC on February 19, 2016 (doc. 89-5, pl. dep., ex. 14).
The defendant argues that the following sexual harassment allegations are barred by the statute of limitations: (1) Dr. McNutt falsely alleged that the plaintiff and another African-American employee damaged his boat and that the plaintiff keyed his truck (doc. 38, amend comp. ¶ 14); (2) the plaintiff complained to Dr. Fields on December 14, 2009, that Dr. McNutt was singling her out and picking on her (pl. dep. 89-5, pl. dep. 75-78 & ex. 5; doc. 89-3, Just dep. 52; doc. 89-2, Fields dep. 42-43); (3) Dr. McNutt assaulted her by bumping into her when he stormed out of Ms. Just's office (doc. 38, amend. comp. ¶ 17); and (4) Dr. McNutt entered the plaintiff's office and stated, "We are going to make this work," offered her Doritos, and placed his hand on her lower back (id. ¶ 25a).
In response to the defendant's argument, the plaintiff argues generally that the claims are timely, with no citation to any supporting evidence (see doc. 100 at 4). The defendant argues that even if the plaintiff argued that the continuing violation theory applies, which the plaintiff has not done, such argument should be rejected because Dr. McNutt's break in employment alleviated the plaintiff's contact with the alleged harasser, barring application of the continuing violation theory (doc. 89-1 at 19-20) (citing Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002)). Because the undersigned finds that summary judgment is appropriate even considering all of the allegedly harassing incidents in the analysis of the plaintiff's hostile work environment claim, the defendant's argument regarding the inapplicability of the continuing violation theory will not be further considered here.
The plaintiff argues that "[a]lthough Dr. McNutt began his onslaught of sexual harassment towards [her] prior to . . . 2013, the substantive allegations in this case took place during the course of 2015 up through [the plaintiff's] unlawful termination from employment. The Defendant has no salient argument with regard to the timing of these allegations" (doc. 100 at 4). However, the undisputed evidence in this case shows that the incidents outlined above occurred during Dr. McNutt's initial period of employment with the defendant, which was between 2004 and 2012. Specifically, the plaintiff testified that the "the boat and the truck complaint . . . was during [Dr. McNutt's] first time that he worked [for the defendant]" (doc. 100-3, pl. dep. 49). Further, the plaintiff testified in her deposition that she believes "the Doritos incident" occurred during Dr. McNutt's first term of employment (doc. 89-5, pl. dep. 53, 74-75). With regard to the alleged assault, the plaintiff testified that this incident caused her to go to the doctor and receive a doctor's note to be out of work from May 24, 2011, to June 15, 2011 (id. 87-88; doc. 100-3, pl.. dep. 54-63). She further testified that she knew "for sure" that neither the Doritos incident nor the alleged assault occurred during her last year of employment with the defendant (doc. 89-5, pl. dep. 75).
In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court considered when Title VII claims would be considered to be timely filed and distinguished between "discrete" discriminatory or retaliatory acts such as "termination, failure to promote, denial of transfer, or refusal to hire[,]" id. at 114, and hostile work environment claims, whose "very nature involves repeated conduct," id. at 115. The discrete acts of discrimination and retaliation are considered to have "occurred" the day they "happened." Id. at 110. However, "in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. at 115. Instead, "a hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice." Id. at 117 (internal quotation omitted). Therefore, while discrete discriminatory or retaliatory acts are time-barred if not filed within the statutory time period, a hostile work environment claim is timely "so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id. at 122.
The Fifth Circuit ruled that a majority of the plaintiff's allegations occurred during her first term under the alleged harasser's supervision, between 1985 and 1992. Felton, 315 F.3d at 486. However, the plaintiff was then promoted and placed under another officer's supervision until 1995 -- nearly three years. Id. The plaintiff did not interact with the alleged harasser during this three-year time period. Id. While the plaintiff alleged harassment after this period, the Fifth Circuit ruled that this "very distinct, three-year break defeats any attempt to establish a continuing violation by tying incidents that allegedly occurred prior to [the plaintiff's] second term under [the alleged harasser's] supervision (1995-1997) to incidents that allegedly occurred during that second term." Id. (emphasis in original)
Sexually Hostile Work Environment
In her amended complaint, the plaintiff alleges a cause of action for sexually hostile work environment (doc. 38, amend. comp. ¶¶ 53-57). The undersigned finds that the plaintiff has failed to adduce sufficient evidence to enable a reasonable jury to find in her favor. Accordingly, the district court should grant summary judgment on this claim.
In her response in opposition to the motion for summary judgment, the plaintiff repeatedly references sexual and racial harassment (doc. 100 at 5, 6, 9). However, her amended complaint does not allege a cause of action for hostile work environment based upon race (see generally doc. 38, amend. comp.).
The defendant argues that the plaintiff cannot establish a prima facie case (doc. 89-1 at 20-25). To establish a prima facie case of a sexually hostile work environment, the plaintiff must show: (1) she was subjected to unwelcome conduct; (2) the harassment was based on her sex; (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 to the employer. Guessous, 828 F.3d at 221 (citation omitted).
In her response in opposition to the motion for summary judgment, the plaintiff identifies the following as incidents supporting her claim of a sexually hostile work environment:
• Dr. McNutt yelled at her and spoke to her "in a hostile, accusatory, and derogatory manner in front of other staff and in front of patients" (doc. 100 at 15) (citing doc. 100-2, pl. dep. 48).
• The defendant "reduced her bonuses and made it difficult for her to work with other doctors in the practice to ensure that she was unable to get bonuses from denture sales" (id.) (citing doc. 100-2, pl. dep. 173-74).
• Dr. McNutt stalked her (id.) (citing doc. 100-2, pl. dep. 49).
• Dr. McNutt touching her "in an unwanted and sexually suggestive manner to include touching her lower back" (id. at 16) (citing doc. 100-2, pl. dep. 52).
• Dr. McNutt "physically assault[ed]" her (id.) (citing doc. 100-2, pl. dep. 54-59, 66).
• Dr. McNutt "brush[ed] his hands on [her] buttocks" (id.) (citing doc. 100-2, pl. dep. 64, 68, 74).
The plaintiff has failed to show that the alleged harassment was based on her sex. In her deposition, the plaintiff testified that Dr. McNutt never made a sexual comment or sexual advance to her (doc. 89-5, pl. dep. 69). She further testified that she did not know why he treated her the way he did (id.). While the plaintiff argues in her brief that Dr. McNutt touched her "in an unwanted and sexually suggestive manner" when he touched her lower back while offering her Doritos, in her deposition, she testified that she did not think that her gender had anything to do with the way Dr. McNutt treated her (id. 52-53, 73).
Moreover, the plaintiff testified that her relationship with Dr. McNutt "was okay" prior to his complaint that he believed she took a part from his boat (id. 45, 47). While she argues in her brief that Dr. McNutt "brush[ed] his hands on [her] buttocks" (doc. 100 at 16) when he passed her in a narrow hallway, she testified in her deposition that she did not remember what part of Dr. McNutt's body brushed "the side of [her] butt" (doc. 89-5, pl. dep. 66-68, 214-15). The plaintiff further testified that Dr. McNutt apologized and said he was not paying attention (id. 64-68). With regard to the allegation that Dr. McNutt yelled at the plaintiff and spoke to her "in a hostile, accusatory, and derogatory manner in front of other staff and in front of patients," the plaintiff cites her deposition testimony (doc. 100 at 15) (citing doc. 100-2, pl. dep. 48). However, in the cited testimony, the plaintiff testified only that Dr. McNutt "would say little things, like loud, be loud, in front of patients" and gave the example that, if she made a mistake, Dr. McNutt would "be aggressive and say, that's not done like that" (doc. 100-2, pl. dep. 48). Further, the plaintiff's co-workers testified that they never witnessed any misconduct by Dr. McNutt toward the plaintiff and never witnessed Dr. McNutt treat the plaintiff differently than the other assistants (doc. 89-17, Dr. Gregory decl. ¶ 3; doc. 89-6, Kennerly decl. ¶ 3; doc. 89-14, Harrell decl. ¶ 3; doc. 89-15, Williamson decl. ¶ 3; doc. 89-7, Finley decl. ¶ 3; doc. 89-18, Dr. Stark decl. ¶ 3; doc. 89-19, Dr. Rutter decl. ¶ 3; doc. 89-20, Bishop decl. ¶ 3; doc. 89-8, Bobo decl. ¶ 3; doc. 89-16, Jones decl. ¶ 3; doc. 89-9, Wilson decl. ¶ 3; doc. 89-11, Slater-Hamilton decl. ¶ 3; doc. 89-10, Lathan decl. ¶ 3; doc. 89-13, Enscoe decl. ¶ 3).
With regard to the allegation that Dr. McNutt "stalked" her, the plaintiff complained to Dr. Fields on February 8, 2016, that Dr. McNutt was following her and that "anyone" on the floor could verify this (doc. 89-12, Just decl. ¶ 8 & attach. 4). However, when Dr. Fields spoke to five other employees, they all stated they had not witnessed Dr. McNutt following the plaintiff (id.; doc. 89-3, Just dep. 64-65; doc. 89-2, Fields dep. 46-48, 50-53; doc. 89-5, pl. dep. 70). In her deposition, the plaintiff testified that the "whole office" witnessed Dr. McNutt follow her and mistreat her (doc. 89-5, pl. dep. 70). As noted above, in declarations submitted by the defendant in support of summary judgment, numerous co-workers stated that they never witnessed any misconduct by Dr. McNutt toward the plaintiff and never witnessed Dr. McNutt treat the plaintiff differently than the other assistants, all of whom are female (doc. 89-3, Just dep. 53). Further, several employees testified that the plaintiff went missing more than any of the other dental assistants (doc. 89-3, Just dep. 58; doc. 89-15, Williamson decl. ¶ 3; doc. 89-7, Finley decl. ¶ 4; doc. 89-8, Bobo decl. ¶ 4; doc. 89-16, Jones decl. ¶ 3; doc. 89-9, Wilson decl. ¶ 4; doc. 89-13, Enscoe decl. ¶ 3), Dr. Stark stated that the plaintiff "went missing more than the other assistants," and Dr. Rutter stated that while the plaintiff "was consistently in her operatory room in the mornings . . . she went missing in the afternoons much more than the other assistants" (doc. 89-18, Dr. Stark decl. ¶ 4; doc. 89-19, Dr. Rutter decl. ¶ 4). Drs. Stark, Rutter, and Gregory testified that it was common for a dentist to look for an assistant if she was not in her room, and they each had looked for assistants if they needed them (doc. 89-18, Dr. Stark decl. ¶¶ 3-4; doc. 89-19, Dr. Rutter decl. ¶ 3; doc. 89-17, Dr. Gregory decl. ¶ 4). The plaintiff has failed to provide any evidence to support her opinion that she was treated differently than other dental assistants by Dr. McNutt.
Given her own testimony that she did not think her gender had anything to do with the way Dr. McNutt treated her and the foregoing evidence suggesting other reasons for Dr. McNutt's conduct, the plaintiff has failed to present sufficient evidence to show that the alleged harassment was based upon her sex.
With regard to her allegation that the defendant "reduced her bonuses and made it difficult for her to work with other doctors in the practice to ensure that she was unable to get bonuses from denture sales" (doc. 100 at 15) (citing doc. 100-2, pl. dep. 173-74), the plaintiff cites her deposition testimony that, following the filing of her EEOC charge, her bonuses for impressions "came from a bonus of like maybe $1,600 to $400" because she "had to nearly beg for someone to come and mix a denture for [her] or do any work in [her] room" (doc. 100-2, pl. dep. 173-74). However, the defendant has presented evidence that the plaintiff's history of bonuses showed a significant variance that is not consistent with the plaintiff's testimony or allegations on this issue:
• December 2014 - $985(doc. 102-5, Just decl. ¶¶ 3-4 & attach. 1). The plaintiff has presented no evidence that any variance in her bonus was based upon her sex. To the extent that she claims that her bonuses were reduced in retaliation for the filing of her EEOC charge, which will be further discussed below, she has presented nothing other than her own self-serving opinion. "Although [the court does] not make credibility determinations at the summary judgment phase, [it] should also not find a genuine dispute of material fact based solely on [a plaintiff's] self-serving testimony." Harris v. Home Sales Co., 499 F. App'x 285, 294 (4th Cir. 2012) (citing Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir.2004) ("[A] self-serving opinion ... cannot, absent objective corroboration, defeat summary judgment.")).
• August 2015 - $965
• November 2015 - $935
• December 2015 - $675
• January 2016 - $910
• February 2016 - $665 (did not work 6 working days)
• March 2016 - $1165
Further, even assuming the plaintiff could show that the alleged conduct was based upon her sex, the hostile work environment claim fails because she cannot establish that the alleged harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere. The plaintiff must show that the severity or pervasiveness of any purported harassment was not just offensive to her, but was objectively abusive as measured by a reasonable person. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). To determine if there was an objectively hostile environment, courts consider "'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.'" Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Actionable harassment occurs "'when the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . .'" Id. (quoting Harris, 510 U.S. at 21). Title VII is not a "general civility code." Oncale, 523 U.S. at 80. "Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard." Sunbelt Rentals, Inc., 521 F.3d at 315. "Complaints based on nothing more than rude treatment by coworkers, callous behavior by one's superiors, or a routine difference of opinion and personality conflict with one's supervisor are not actionable under Title VII." Id. at 315-16 (internal citations and quotations omitted). Moreover, "a single offensive utterance - e.g., 'simple teasing' or an 'offhand comment' . . . generally will not create a hostile work environment without significant repetition or an escalation in the harassment's severity." Boyer-Liberto, 786 F.3d at 284 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
The totality of the plaintiff's allegations are that, during Dr. McNutt's first term of employment with the defendant between 2004 and 2012, he falsely alleged that the plaintiff and another African-American employee damaged his boat and that the plaintiff keyed his truck, he singled the plaintiff out and picked on her, he bumped into the plaintiff when he stormed out of Ms. Just's office, and he placed his hand on the plaintiff's lower back when he offered her Doritos and told her that they were "going to make this work," and, between April 2015 (when Dr. McNutt's second term of employment began) and February 2016 (when she filed her EEOC charge), Dr. McNutt frequently followed her in the office and once brushed against the side of her butt when they passed each other in a hallway. A reasonable jury could not determine that the incidents the plaintiff alleges were sufficiently severe and pervasive so as to alter the conditions of her employment and create an abusive atmosphere.
The plaintiff testified that she did not work with Dr. McNutt after she filed the EEOC charge, which is dated February 19, 2016 (doc. 100-3, pl. dep. 130; see doc. 89-5, pl. dep., ex. 14).
As the plaintiff has failed to demonstrate a genuine issue of material fact as to the second and third elements of a prima facie case, the undersigned recommends that summary judgment be granted to the defendant on the cause of action for sexually hostile work environment.
Because the undersigned finds that the plaintiff cannot satisfy the second and third elements of a prima facie case, the fourth element will not be considered.
Race Discrimination
The plaintiff also alleges a cause of action for discrimination based on race (doc. 38, amend. comp. ¶¶ 36-46). The undersigned finds that the plaintiff has failed to adduce sufficient evidence of race discrimination to enable a reasonable jury to find in her favor. Accordingly, the district court should grant summary judgment on this claim.
The defendant argues that the plaintiff cannot establish a prima facie case and cannot show pretext (doc. 89-1 at 25-27). To establish a prima facie case of disparate treatment based on race, a plaintiff must show: 1) she is a member of a protected class, 2) her job performance was satisfactory, 3) she suffered an adverse employment action, and 4) she was treated differently from similarly-situated employees outside her protected class or evidence giving rise to an inference of unlawful discrimination. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010).
The plaintiff is a member of a protected class, and thus satisfies the first element. While the defendant argues that the plaintiff's job performance was not satisfactory, the undersigned will assume for purposes of this motion that she can satisfy that element as well. Further, viewing the evidence in a light most favorable to the plaintiff, she suffered an adverse employment action when the defendant allegedly terminated her employment. See Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (stating that, with regard to a disparate treatment claim, an adverse employment action is "a discriminatory act that 'adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment.' " (quoting James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004))). However, as will be discussed below, the plaintiff has failed to show that she was treated differently from similarly-situated employees outside her protected class or other evidence giving rise to an inference of unlawful discrimination
The plaintiff attempts to prove race discrimination by Dr. McNutt by alleging that he accused her and the defendant's only other African-American employee of damaging his property (doc. 100 at 5). The plaintiff does not cite any evidence supporting her opinion that this incident was based upon race (id.). The defendant, on the other hand, presented the declaration of Ms. Slater-Hamilton, the employee referenced by the plaintiff, who testified that Dr. McNutt never accused her of taking anything from his boat and that she never felt discriminated against while working for the defendant (doc. 89-11, Slater-Hamilton decl. ¶ 11).
The plaintiff also argues that Dr. McNutt "made it a habit to speak down to her as an African American, he would also yell at her and verbally berate her and embarrass her in front of patient all to the exclusion of the Caucasian dental assistants" (doc. 100 at 4). The plaintiff's deposition testimony that is cited in support of this argument states only that Dr. McNutt would "embarrass [her] in front of patients" and provides no support for the allegation that the plaintiff was treated differently than Caucasian dental assistants (doc. 100-3, pl. dep. 54-55). Rather, the other dental assistants submitted declarations stating that Dr. McNutt treated them the same as the plaintiff, as set out in detail above. The plaintiff's self-serving opinion that she was treated differently because of her race, with no factual allegations and evidence to back it up, is insufficient to defeat summary judgment. See Williams, 370 F.3d at 433.
In response to the motion for summary judgment, the plaintiff generally argues that Caucasian employees were treated better by Dr. McNutt (see doc. 100 at 8, 22-24). She further characterizes her treatment by Dr. McNutt as "racially ominous" and "racially disparate" (id. at 5, 8). However, she fails to point to any employee outside the protected class who engaged in the same conduct and was treated more favorably. Moreover, she has failed to show any evidence giving rise to an inference of unlawful discrimination. The plaintiff argues as follows:
Plaintiff has met the burden of showing a prima facie case of race discrimination. Plaintiff was, at all times, the only African American dental assistant within Defendant's organization as all of the other dental assistants are Caucasian females.(Doc. 100 at 23).
Plaintiff has therefore established her personal knowledge of similarly situated Caucasian Comparators who were treated more favorably than she was under the same circumstances. . . . The allegations made by Plaintiff regarding the treatment that she received from Dr. McNutt are unique to herself to include the barrage of yelling and down talking to Plaintiff by McNutt. Moreover, although the Defendant offers a multiplicity of affidavits from Plaintiff's Caucasian employees regarding Plaintiff, these employees are not her employer.
As discussed above, the plaintiff was not, in fact, the only African-American dental assistant who worked for the defendant, and, even if she was, this fact alone does not satisfy the plaintiff's burden of establishing a prima facie case. Moreover, the plaintiff's mere belief that Caucasian employees were treated more favorably by Dr. McNutt is insufficient to survive summary judgment. Further, the fact that many of the declarations submitted by the defendant in support of the motion for summary judgment are from employees who "are not the [plaintiff's] employer" is irrelevant. As set out throughout this report, the defendant has submitted the declarations of numerous employees stating that they never witnessed Dr. McNutt treat the plaintiff differently than the other assistants, that it was common for a dentist to look for an assistant if she was not in her room, and that the plaintiff went missing more than any of the other dental assistants. In order to survive summary judgment, the plaintiff must demonstrate that specific, material facts exist that give rise to a genuine issue. Celotex Corp., 477 U.S. at 324. The plaintiff has failed to do so here.
Ms. Slater-Hamilton testified in her declaration that she has been a dental assistant in the Spartanburg office since 2004, and she never felt discriminated against while working for the defendant (doc. 89-11, Slater-Hamilton decl. ¶¶ 2, 11).
With regard to the written reprimand issued on April 13, 2016, and her separation from employment on May 10, 2016, the plaintiff argues:
Defendant argues that Plaintiff must also point to a Caucasian comparator who was not meeting Defendant's legitimate expectations and yet was not terminated. Plaintiff, however, contends that she was meeting Defendant's legitimate expectations. Defendant had no disciplinary actions on file regarding Ms. Smith until after her EEOC Charge. All of the belated allegations against the Defendant by her co-workers are clearly self-serving and designed solely for this litigation. Defendant's attempts to separate Ms. Smith into a separate category from her similarly situated Caucasian counterparts on account of these affidavits must, therefore, fail. At the very least, it creates genuine issues of material fact as to the veracity of these statements.(Doc. 100 at 23-24). Again, the plaintiff makes only general allegations with no citation to evidence supporting her claim of race discrimination. She has failed to show any evidence that a similarly-situated person outside the protected class engaged in similar conduct and was treated more favorably, and she has failed to point to any evidence giving rise to an inference of unlawful race discrimination.
Even if the plaintiff could show a prima facie case of disparate treatment based upon race, the defendants have set forth legitimate, nondiscriminatory reasons for the written reprimand and the determination that the plaintiff resigned during her meeting with Ms. Just. Texas Dept. of Cmty. Affairs, 450 U.S. at 253-55 (this is a burden of production, not persuasion). Specifically, the defendant states that the plaintiff's attitude and conduct became worse following the filing of the EEOC charge, and she indicated to Ms. Just in the May 10th meeting that she could not work for the defendant any more. Accordingly, the burden shifts to the plaintiff to show that the defendant's reasons were pretext for race discrimination.
In her opposition to the motion for summary judgment, the plaintiff references "the racial animus of Ms. Just and Dr. Fields" (doc. 100 at 5), but she has submitted absolutely no evidence in support of this allegation. The defendant, on the other hand, has submitted evidence showing that Ms. Just interviewed the plaintiff, and she was hired by Dr. Fields (doc. 89-5, pl. dep. 26-27). "[I]n cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer." Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991). Here, Ms. Just interviewed and Dr. Fields hired the plaintiff knowing her race, and approximately 17 years later, Dr. Fields issued the written reprimand and determined that the plaintiff had resigned from employment during the meeting with Ms. Just. While the time lapse between the plaintiff's hiring and firing may prevent application of a "strong inference" that discrimination was not a determining factor as described in Proud v. Stone, it is certainly evidence that weighs against any inference that discrimination was a determining factor in the plaintiff's reprimand and separation from employment. Further, the plaintiff testified that she and Ms. Just were close friends until a personal issue changed their relationship (doc. 89-5, pl. dep. 29-32, 45-46). The plaintiff had a good relationship with Dr. Fields throughout her employment with the defendant, and she believes that, with the exception of her alleged issues with Dr. McNutt, Dr. Fields treated her fairly during her 17 years of employment at the defendant (id. 33-34). The defendant has also submitted evidence that Dr. Fields' daughter is African-American (doc. 89-2, Fields dep. 76).
"Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination." Merritt v. Old Dominion Freight, 601 F.3d 289, 294-95 (4th Cir. 2010) (citations omitted). Here, the plaintiff has failed to present sufficient evidence upon which a reasonable jury could determine that the defendant discriminated against her because of her race. Accordingly, summary judgment should be granted to the defendant on this cause of action.
Retaliation
Lastly, the plaintiff alleges a cause of action for retaliation (doc. 38, amend. comp. ¶¶ 47-52). To establish a prima facie case of retaliation, the plaintiff must show "(I) that [she] engaged in protected activity, (ii) that [her employer] took adverse action against [her], and (iii) that a causal relationship existed between the protected activity and the adverse employment activity." Guessous, 828 F.3d at 217 (citation and internal quotations omitted). To establish an adverse action with respect to a retaliation claim, "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 making or supporting a charge of discrimination.' " Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
The plaintiff sets forth several employment actions that she "deems to be a result of her having filed protected . . . complaints with the EEOC" (doc. 100 at 20). With regard to her allegation that the defendant showed "complete disregard and rebuffing her continued complaints that she was being subjected to sexual harassment and race discrimination," the defendant has presented evidence that the plaintiff did not complain about sexual harassment or race discrimination prior to filing her EEOC charge (doc. 89-2, Fields dep. 35, 42; doc. 89-3, Just dep. 67; doc. 89-12, Just decl. ¶ 10). In the plaintiff's deposition testimony cited in support of this allegation, the plaintiff testified regarding her complaint to Dr. Fields regarding Dr. McNutt following her, and there is no mention in this testimony of a complaint about sexual harassment or race discrimination (doc. 100-3, pl. dep. 114). The same is true for the cited deposition testimony of Ms. Just (doc. 100-4, Just dep. 59). Moreover, as the Court of Appeals for the Fourth Circuit recently discussed in Cooper v. Smithfield Packing Co., Inc., an allegation that an employer failed to investigate complaints and disregarded her concerns "alleges inaction on the part of [the defendant]," which is not an adverse employment action on the employer's part. 724 F. App'x 197, 202 (4th Cir. 2018). With regard to the plaintiff's allegation that Dr. Fields made a statement "that it is easier for him to find another Dental Assistant to replace her than it is to replace a dentist and so she can either go find another job or go back to work" (doc. 100 at 20), while the plaintiff implies that the alleged statement was made in response to her EEOC charge, the cited deposition testimony does not support such a timeline (id.) (citing doc. 100-2, Fields dep. 60, and doc. 100-3, pl. dep. 114). As to the allegation that, following the filing of her EEOC charge, the defendant "reduced her bonuses and made it difficult for her to work with other doctors in the practice to ensure that she was unable to get bonuses from denture sales" (doc. 100 at 9), as discussed above, the plaintiff has failed to support her allegation with any evidence other than her own self-serving opinion. The defendant has submitted evidence that the plaintiff's history of bonuses shows a significant variance that is not consistent with the plaintiff's testimony or allegations on this issue and that she received a significant bonus in the month after she filed her EEOC charge (doc. 100-2, pl. dep. 173-74; doc. 102-5, Just decl. ¶¶ 3-4 & attach. 1). Based upon the foregoing, the undersigned finds that these are not adverse employment actions on the defendant's part.
It is undisputed that the plaintiff engaged in protected activity when she filed the EEOC charge on February 19, 2016 (doc. 89-5, pl. dep., ex. 14). Less than two months later, on April 13, 2016, the defendant issued the plaintiff a letter of reprimand for an incident that occurred on March 31, 2016, and, as discussed above, the plaintiff testified that the summary of the incident as set forth in the reprimand was false (doc. 89-12, Just decl. ¶ 13 & attach. 6; doc. 89-3, Just dep. 79; doc. 100-3, pl. dep. 152-59). Prior to the filing of the plaintiff's charge of discrimination, she had never received a formal warning/reprimand from the defendant (doc. 100 at 3; doc. 102 at 12). The final paragraph of the reprimand states that "[a]ny future incidents may result in further discipline up to and including termination of employment" (doc. 89-12, Just decl., attach. 6). As noted in Hinton v. Virginia Union Univ., "[C]ourts within the Fourth Circuit have reached the . . . conclusion that reprimands, without collateral consequences, are not 'materially adverse.'" 185 F. Supp.3d 807, 832 (E.D. Va. 2016) (citations omitted). However, here, the plaintiff's first written reprimand was followed closely by her separation of employment. As set out at length above, the parties disagree as to whether the plaintiff resigned or the defendant terminated her employment; however, there is no disagreement that the plaintiff's employment ended on May 10, 2016, less than three months after filing the discrimination charge and less than a month after the reprimand. Given the vastly different testimonies regarding the final meeting between the plaintiff and Ms. Just, the undersigned recommends that the district court find that an issue of material fact exists as to whether the defendant took adverse action against the plaintiff by issuing the letter of reprimand and terminating her employment. See Belyakov v. Leavitt, 308 F. App'x 720, 729 (4th Cir. 2009) ("Issuing an official reprimand and declining to renew [the plaintiff's] appointment are adverse employment actions; both would dissuade a reasonable worker from making or supporting a charge of discrimination.") (citation and internal quotations omitted).
The burden of showing a causal nexus is "not onerous." Burdine, 450 U.S. at 253. Although temporal proximity alone is generally insufficient to establish causation, "very close" temporal proximity will give rise to a sufficient inference of causation. Shields v. Fed. Exp. Corp., 120 F. App'x 956, 963 (4th Cir. 2005). Given the close temporal proximity between these events and the fact that the plaintiff worked for the defendant for 17 years prior to her EEOC charge without ever receiving a written reprimand, the undersigned recommends that the district court find that the plaintiff can establish a prima facie case of retaliation. "While this proof far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality." Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).
The defendant has set forth legitimate, nondiscriminatory reasons for the written reprimand and the determination that the plaintiff resigned during her meeting with Ms. Just. Thus, the burden shifts back to the plaintiff to show that the articulated reasons were actually a pretext for retaliation, which the defendant argues the plaintiff has failed to do (doc. 89-1 at 28-31). Viewing the evidence in a light most favorable to the plaintiff, the undersigned disagrees.
"In order to establish pretext, a retaliation plaintiff must prove that his or her protected activity was a but-for cause of the adverse employment action by the employer." Dodson v. Conway Hosp., Inc., C.A. No. 4:17-1846-RBH, 2019 WL 1434153, at *6 (D.S.C. Mar. 31, 2019) (citing Nassar, 570 U.S. at 360; Foster, 787 F.3d at 252). The undersigned finds that the plaintiff has met her burden on this cause of action. Specifically, the plaintiff testified that when she went into Ms. Just's office on May 10, 2016, to tell her that she was not feeling good and wanted to go home, Ms. Just told her that she could go home and then said, "[W]hy don't you just take the charge down about Dr. McNutt?," to which the plaintiff replied that she could not talk about the charge (doc. 100-3, pl. dep. 175-76). According to Ms. Just, the plaintiff told her that she could not "do this anymore" and that she wanted to quit, but her attorney said that if she quit she would not get unemployment (doc. 89-3, Just dep. 82-83). In her deposition, the plaintiff denied ever stating that she could not "do this anymore" (doc. 100-3, pl. dep. 186). She admitted that Ms. Just stated that she would talk to Dr. Fields "see what Dr. Fields had to say about what was going on," but she "never had any idea that [Ms. Just\ was saying that I didn't want my job" (id. 187). The plaintiff further testified that when she left the office that day, Ms. Just said, "I hope you feel better, I'll see you tomorrow;" however, when the plaintiff returned to work the next day, Ms. Just refused to let her sign in, telling the plaintiff that she had quit her job, which the plaintiff disputed (id. 177-78). As noted by the plaintiff, even under Ms. Just's version of the May 10th meeting, there is no testimony that the plaintiff specifically stated that she was resigning or quitting her job.
The defendant argues that the plaintiff has failed to produce any evidence other than her own self-serving denials and beliefs, which are insufficient to establish pretext (doc. 89-1 at 30). However, the plaintiff has testified to specific facts supporting her claim of retaliation, whereas with her race discrimination claim, she simply testified that it was her belief that she was discriminated against because of her race, without any evidence to back up that belief. As noted by the court in Mack v. Detyens Shipyards, Inc.,
It is true that a "self-serving opinion ... cannot, absent objective corroboration, defeat summary judgment." Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004). That, however, is entirely irrelevant here. The relevant allegation here is not Plaintiff's opinion that she was terminated in retaliation for reporting Johnson. Rather, it is her sworn testimony regarding facts of which she has direct, personal knowledge—her behavior in the break room on a certain day at a certain time. If other witnesses dispute her account of the event, that is an issue of credibility issue for a jury to decide."C.A. No. 2:16-1323-RMG, 2017 WL 5952692, at *3 (D.S.C. Nov. 30, 2017).
Given the foregoing testimony, the plaintiff has produced evidence raising an issue of material fact as to whether the filing of the EEOC charge was a but-for cause of the defendant issuing the reprimand and terminating her employment. Accordingly, summary judgment should be denied on the retaliation cause of action.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the defendant's motion for summary judgment (doc. 89) be granted as to the causes of action for sexually hostile work environment and race discrimination and be denied as to the cause of action for retaliation, as set forth above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge May 28, 2019
Greenville, South Carolina
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
300 East Washington Street
Greenville, South Carolina 29601
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).