Opinion
Civil Action 6:22-884-HMH-KFM
02-10-2023
Lisa Blackman Speach, Plaintiff, v. Bon Secours Health System, Inc., Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the defendant's motion for summary judgment (doc. 32) and the plaintiff's motion to compel (doc. 43). Pursuant to the provisions of 28 U.S.C. § 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.
I. BACKGROUND AND FACTUAL ALLEGATIONS
The plaintiff, who is proceeding pro se, is African American and was employed by the defendant or its predecessors on several occasions, including from October 7, 1996, to November 26, 1996; August 26, 1997, to March 28, 1999; January 1,2002, to February 15, 2002; and March 14, 2008, to November 2021 (doc. 32-1, Speach dep. at exhibit 7). In her most recent employment with the defendant, she was hired as a part-time nurse practitioner for Palmetto Pulmonology, a physician's practice in the Sleep Center in the defendant's main hospital complex in Greenville, South Carolina (id. at 38:10-39:16, exhibit 2; doc. 32-2 at 2). The plaintiff was subsequently promoted to full-time on or about September 12, 2010 (doc. 32-1, Speach dep. at 44:1-45:25, exhibit 4). Upon moving to full-time, Dr. Ahmad Boota ("Dr. Boota") asked the plaintiff to work with him and other physicians in the Sleep Center, which was located in the same building as Palmetto Pulmonology (id. at 44:23-49:18). In that role, the plaintiff would see patients as a provider, order studies and labs for patients, and order continuous positive airway pressure ("CPAP") machines and medicine when needed (id. at 48:18-22).
The plaintiff has set forth numerous allegations from her most recent employment with the defendant. Specifically, the plaintiff alleges that she was a nurse supervisor in 2017, and she was not included on emails or invited to management meetings like a Caucasian nurse supervisor in another office (doc. 36 at 2-3). The plaintiff contends that she complained several times about this, and she was then included in the meetings and on the emails (id.). However, the plaintiff submits that when the Caucasian nurse supervisor resigned from being a supervisor, the plaintiff was again excluded from the meetings and emails (id.). The plaintiff asserts that when she asked an office administrator why she was excluded, he did not provide a response (id.). Moreover, the plaintiff complained to human resources, but nothing was done (id.). The plaintiff also alleges that this Caucasian nurse supervisor was given a lighter patient load to fulfill her supervisory requirements, but the plaintiff was not (id.). The plaintiff additionally claims that she was told that this Caucasian nurse supervisor was paid more, but she has no proof that this was true (id.).
Moreover, the plaintiff alleges that for several weeks in 2018 she did not have a permanent seat in the office where she could work, but the Caucasian nurse practitioners had assigned seating (docs. 32-1, Speach dep. at 130:4-7, 163:8-19; 36 at 6). The plaintiff alleges that she would arrive at the office during that time period and have to wait for a seating assignment (doc. 32-1, Speach dep. at 130:4-7). The plaintiff spoke to Ron Eskew ("Ms. Eskew"), her manager, about this issue and how it created anxiety for her, and Mr. Eskew said that he would take care of it (id. at 130:8-15). When the plaintiff returned to work following her discussion with Mr. Eskew, she did not have a permanent seat (id. at 130:16-21). The plaintiff told Mr. Eskew that she had to leave work because she was having an anxiety attack, and Mr. Eskew provided her with a permanent seat (id. at 130:21-131:4, 163:19-23).
Also in 2018, the plaintiff alleges that there were not enough providers seeing patients in the Sleep Center and that other providers should have been moved from the hospital or the practice to the Sleep Center (doc. 32-1, Speach dep. at 116:11-118:21). However, the plaintiff submitted in her deposition that this situation was not brought about because of her race (id. at 130:23-25). Further, in that same year, the plaintiff submits that Mr. Eskew did not allow her to change her patient schedule without clearing it with the practice schedulers, but this was not required of the Caucasian nurse practitioners (id. at 98:8-102:11). The plaintiff told Mr. Eskew that she "wasn't going to be micromanaged that way, and [she] didn't know why he was treating [her] differently" (id.). Following the plaintiff's discussion with Mr. Eskew, the plaintiff asserts that this never happened again (id.).
Further, the plaintiff alleges that she was written up in 2020 for voicing her opinion during a staff meeting (doc. 1 at 6, 9). The plaintiff submits that Mr. Eskew told her that the organization only values the opinions of physicians (id. at 9). Mr. Eskew allegedly stated that while that may change in the future, "for now that is the way things are" (id.). However, the plaintiff alleges that Caucasian nurse practitioners spoke freely during staff meetings without repercussions (id.). The defendant has produced statements from three doctors who detailed that the plaintiff was rude and aggressive during the meeting (doc. 32-1 at exhibits 35, 36, 37).
Additionally, the plaintiff alleges that "sometime in 2020," she parked her car in a parking lot for providers and administration staff, and a security guard watched her swipe her identification badge to access the lot and park (doc. 32-1, Speach dep. at 305:11-306:18, 310:23-311:2). However, the security guard asked her if she was authorized to park in that lot (id.). The plaintiff informed the security guard that she was authorized to park there, and she went into work (id.). Later, the plaintiff posted about the incident on Facebook, noting that "[t]his is what it is like to be black in America" (id. at 307:12-22). The plaintiff contends that someone informed human resources about her Facebook post, that she refused to show the security guard her badge, and "said something in regards to . . . black power" (id. at 308:21-309:3). Laura Smith ("Ms. Smith") from human resources spoke with the plaintiff about the incident, and the plaintiff explained that she never refused to show the security guard her badge and did not say "black power" (id. at 309:4-22). The plaintiff was not disciplined for this (id. at 311:3-4). However, the plaintiff submits that Ms. Smith was accusatory during the investigation, and the plaintiff therefore spoke with Carol Alcorn ("Ms. Alcorn") from human resources about how Ms. Smith handled the investigation (id. at 311:25-312:23).
The plaintiff further contends that she was hired to work in the office full-time, but the defendant required her to work in the hospital on some occasions (docs. 36 at 5; 47 at 2). The plaintiff asserts that two Caucasian nurse practitioners were also hired to work in the office, and they were not required to work in the hospital (doc. 47 at 2). The plaintiff submits that she told Mr. Eskew that she did not feel comfortable working in the hospital (id.). Moreover, the plaintiff alleges that she had to obtain leave pursuant to the Family and Medical Leave Act (“FMLA”) from her psychiatrist so that she would not have to work in the hospital (id.; doc. 47-3). When her FMLA leave expired, the plaintiff was told that her FMLA leave would need to be renewed or she would be scheduled to work in the hospital (doc. 36 at 5). The plaintiff contacted Ms. Alcorn about this, and Ms. Alcorn stated that she would investigate the matter (doc. 47 at 2). Later that day, Suchita Nair ("Ms. Nair"), an office administrator, informed the plaintiff that the Caucasian nurse practitioners were being required to work in the hospital as well (id.). The plaintiff attached to her sur-reply documentation reflecting that she was granted intermittent FMLA leave during various times from 2017 to 2022 (doc. 47-3).
The plaintiff further alleges that Ms. Nair discouraged her from signing up to cover extra night shifts, while a Caucasian employee signed up for more night shifts than her (doc. 47 at 2; doc. 32-1, Speach dep. at 206:4-207:23). The plaintiff contacted Ms. Alcorn on January 22, 2021, to let Ms. Alcorn know that she was being treated differently, and the plaintiff was then allowed to sign up for additional night shifts (id.; doc. 47-2 at 2-4).
The plaintiff also claims that a new nurse practitioner was hired, but she was not asked to train her (docs. 1 at 6; 36 at 5). Rather, a Caucasian nurse practitioner with less experience than the plaintiff was asked to do the training (id.). When the plaintiff asked why she was not asked to train the new nurse practitioner, she was given conflicting excuses (id.). Additionally, the plaintiff asserts that she was denied various transfers during her employment, but she also acknowledged that she did not believe that this was based on her race (doc. 32-1, Speach dep. at 34:2-37:20).
Further, the plaintiff alleges that Ms. Nair sent an email to the plaintiff's medical assistant to keep the plaintiff's calendar full by calling in another patient when one cancelled (doc. 32-1, Speach dep. at 203:3-204:14). The plaintiff asked Ms. Nair why she was singling her out compared to the Caucasian nurse practitioners, and Ms. Nair said that she was going to tell the other medical assistants the same message (id.). Ms. Nair ultimately sent that message to the other medical assistants the following day (id.).
In addition, the plaintiff submits that she was denied an alternate work schedule to care for her mom who was ill, even though she demonstrated that the schedule would allow her to see more patients (doc. 36 at 5). In contrast, she claims a Caucasian nurse practitioner was allowed to work an alternate work schedule to care for her family (id.).
The plaintiff also asserts that on two occasions, physicians she worked with made racially derogatory comments to her (doc. 32-1, Speach dep. at 77:5-78:21). The plaintiff alleges that Dr. Nasir Awan ("Dr. Awan") told her that if she "would lose some weight, [she] would be hot" (id. at 77:6-10). Dr. Awan also purportedly stated that he "couldn't talk to those white nurse practitioners like that because . . . they would run and cry" (id.). On another occasion, the plaintiff commented to Dr. Boota that she was concerned that she had light spots on her legs (id. at 78:13-21). Dr. Boota allegedly responded that "[she] should be happy [she's] turning white" (id.). The plaintiff could not recall at her deposition any other racially derogatory jokes, comments, statements, text messages, or emails that were ever shared with her during her employment with the defendant (id. at 80:6-16).
However, despite all of these allegations, the plaintiff acknowledges that the "facts giving rise to the litigation . . . revolve[] primarily around a written warning that [she] received in November 2021" (doc. 36 at 2). The plaintiff submits that on or about October 20, 2021, she complained to Ms. Nair that Cid Arroyo ("Mr. Arroyo"), a medical assistant, did not provide her with a copy of a requested checklist that she needed before he left the office for the day (doc. 32-1, Speach dep. at 281:2-282:23, exhibit 50). Ms. Nair involved human resources, and an investigation ensued (id.). Ms. Smith then interviewed the plaintiff, Sherena Nichols ("Ms. Nichols"), Mr. Arroyo, and Karen Smith (“Ms. Karen Smith”) (id. at exhibits 52, 53, 54, 55). The employees reported numerous areas of concern related to how the plaintiff treated them (id. at exhibits 50, 52, 53, 54). After the investigation, the plaintiff was issued a written warning for “unprofessional behavior within the workplace on several occasions” (id. at exhibit 59). The plaintiff acknowledged in her deposition that she did not believe that Mr. Arroyo or Ms. Nichols complained about her because of her race but rather because of the "toxic" atmosphere within the office (doc. 32-1, Speach dep. at 285:8-15). Moreover, in her interview during the human resources investigation, the plaintiff did not complain that she was being treated negatively because of her race but claimed that she was being investigated because Roberto Torres ("Mr. Torres"), a corporate compliance investigator, told staff about her making previous complaints (id. at exhibit 55). In her complaint and response in opposition to the defendant's motion for summary judgment, the plaintiff elaborated on this, claiming that in 2020, Mr. Torres interviewed staff on her day off and informed them that she had "reported Stark Law and Anti-Kickback Violations that were occurring in the office" in 2017 (docs. 1 at 7; 36 at 4-5). Mr. Torres then asked the staff about the plaintiff's personal life and her activities outside of work, and he "instructed [the staff] to not notify [the plaintiff] of this" (id.). The plaintiff contends that she reported these violations to the administration (id.). Following this meeting with Mr. Torres, the plaintiff contends that the staff began treating her differently (id.).
The plaintiff submits that when she received the written warning in November 2021, the harassment became "unbearable" (doc. 1 at 7-8). The plaintiff alleges that the harassment and discrimination that she experienced led to her suffering anxiety, panic attacks, post traumatic stress disorder, depression, and insomnia (doc. 36 at 6). Accordingly, the plaintiff quit her job because she "felt like [she] had no other choice" and she "had to either leave or suffer a complete mental breakdown" (id. at 6-7).
The plaintiff filed an initial inquiry with the Equal Employment Opportunity Commission ("EEOC") on November 16, 2021, and a charge of discrimination on January 24, 2022 (docs. 1-1 at 4-5; 47-1 at 3). After receiving a right to sue letter, the plaintiff filed a complaint in the instant matter on March 17, 2022, alleging race discrimination, retaliation, harassment, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII") against the defendant (doc. 1). The defendant filed a motion for summary judgment on November 3, 2022 (doc. 32). By order filed November 4, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if she failed to respond adequately to the defendant's motion (doc. 34). The plaintiff filed a response on December 8, 2022 (doc. 36). The defendant filed a reply on December 27, 2022 (doc. 44), and the plaintiff filed a sur-reply on January 11, 2023 (doc. 47). Additionally, on December 16, 2022, the plaintiff filed a motion to compel (doc. 43), to which the defendant filed a response on January 3, 2023 (doc. 45). Accordingly, these matters are now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Motion for Summary Judgment
1. 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.
2. Title VII
i. Exhaustion
The defendant argues that the plaintiff failed to exhaust her administrative remedies regarding many of her allegations, as she did not file her charge with the EEOC in a timely manner (doc. 32-2 at 7-9). In "deferral states" such as South Carolina, a plaintiff must exhaust her administrative remedies by filing a charge of discrimination with the EEOC (or an equivalent state or local agency) within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e)(1), (f)(1). Next, if a charge is filed with the EEOC, on receipt of a charge, the EEOC is to notify the employer and investigate the allegations. Id. § 2000e-5(b). The Commission may "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of . . . conciliation." Id. The EEOC also has first option to bring a civil action against the employer in court. Id. § 2000e-5(f)(1). If the EEOC chooses not to sue, and whether or not the EEOC otherwise acts on the charge, a complainant is finally entitled to a "right-to-sue" notice 180 days after the charge is filed. Id. Within 90 days of the right-to-sue notice, the complainant may commence a civil action against his employer. Id. "Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts." Fort Bend Cty. v. Davis, 139 S.Ct. 1843, 1851 (2019).
The defendant asserts that the plaintiff filed her charge with the EEOC on or about January 24, 2022, and therefore any allegations occurring before March 31, 2021, are untimely (doc. 32-2 at 9). Moreover, the defendant asserts that the only discrete act of alleged discrimination that the plaintiff has asserted was the issuance of the written warning in November 2021 (id. at 9). Accordingly, the defendant submits that the only disparate treatment claim before this court is the plaintiff's constructive discharge claim predicated on this written warning (id.). The defendant argues that the time-barred claims would include the written warning that the plaintiff received in 2020, Mr. Torres informing staff in 2020 that the plaintiff had raised complaints in the office in 2017, and "the myriad of slights which Plaintiff asserts happened sometime during 2017, 2018, and 2020" (id.). The plaintiff, however, submits that she filed her charge on November 16, 2021 (doc. 47 at 2). The record reflects that the plaintiff appears to have filed an initial inquiry with the EEOC on November 16, 2021, but that she did not file her formal charge until January 24, 2022 (docs. 1-1 at 4-5; 47-1 at 3). Although not argued by the parties, the undersigned notes that there are some instances in which an initial inquiry or an intake questionnaire filed with the EEOC may constitute a charge. See, e.g., Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). Nevertheless, even if the plaintiff's initial inquiry constitutes a charge, all but two of the allegations that the defendant argues are time-barred are still outside of the 300-day time frame before November 16, 2021. Specifically, 300 days prior to November 16, 2021, is January 20, 2021, and the plaintiff has therefore failed to exhaust her administrative remedies regarding her allegations that occurred prior to that date. Out of an abundance of caution, however, the undersigned has considered the two allegations occurring after January 20, 2021, herein. Specifically, in her sur-reply, the plaintiff attached a copy of emails that she sent to Ms. Alcorn on January 22, 2021, reporting that she was being discouraged from signing up for extra night shifts and documentation reflecting that she was granted intermittent FMLA leave at various points from 2017 through 2022 (docs. 47-2; 47-3).
However, the plaintiff argues that the court should nevertheless consider her untimely allegations under a continuing violation theory (docs. 36 at 6; 47 at 2-4). The continuing violation theory, which is limited to hostile work environment claims, constitutes an exception to the 300-day limitations period and provides that a claim "may appropriately extend ... to acts that occurred before the relevant limitations period [if] the hostile work environment continued within the limitations period as well." White v. BFI Waste Servs., LLC, 375 F.3d 288, 293 (4th Cir. 2004); see Repasky v. Pfizer, Inc., C/A No. 2:12-cv-03331-RMG-BHH, 2013 WL 6054461, at *3 (D.S.C. Nov. 15, 2013) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002); Gilliam v. S.C. Dep't of Juv. Just., 474 F.3d 134, 140-41 (4th Cir. 2007)). By their nature, hostile work environment claims are based upon the “cumulative affect of individual acts that may not themselves be actionable.” Repasky, 2013 WL 6054461, at *3 (citations omitted). Consequently, when a plaintiff alleges discrete acts, which are actionable, she may not benefit from the continuing violations theory, even when the time-barred discrete acts are related to acts alleged in timely filed charges. Id. at *4 (citing Holland v. Wash. Homes, Inc., 487 F.3d 208, 220 (4th Cir. 2007); Morgan, 536 U.S. at 113); see also Hill v. Hampstead Lester Morton Ct. Partners LP, 581 Fed.Appx. 178, 181 (4th Cir. 2014) ("The continuing-violation doctrine applies to claims based upon a defendant's ongoing policy or pattern of discrimination rather than discrete acts of discrimination."). Examples of recognized discrete acts include termination, failure to promote, denial of transfer, and refusal to hire. Morgan, 536 U.S. at 114.
Because the continuing violation theory only applies to hostile work environment claims, the undersigned declines to consider the plaintiff's untimely allegations in her constructive discharge, race discrimination, and retaliation claims. Further, with regard to the plaintiff's hostile work environment claim, only the plaintiff's untimely allegations that are not discrete acts will be considered as part of her hostile work environment claim. Nevertheless, the undersigned finds that all of the plaintiff's untimely allegations, which are set forth in detail above, are not discrete acts and will be considered solely in her hostile work environment claim.
ii. Avenues under Title VII
All of the plaintiff's claims are based on Title VII, which prohibits employers from “discriminating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race ... [,]” 42 U.S.C. § 2000e-2 (“the anti-discrimination provision”), as well as "discriminating] against [their] employees ... because [the employees] ha[ve] opposed any practice made an unlawful employment practice by [Title VII] ..." Id. § 2000e-3(a) (“the anti-retaliation provision”). The plaintiff's claims for hostile work environment and constructive discharge fall under § 2000e-2, and her retaliation claim falls under § 2000e-3(a). Perkins v. Int'l Paper Co., 936 F.3d 196, 206 (4th Cir. 2019).
A plaintiff has two avenues to avoid summary judgment in a Title VII discrimination or retaliation claim. Id. at 206 n.4. The plaintiff may present direct and indirect evidence or proceed under the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Id.; Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). There are three steps under the McDonnell Douglas framework:
(1) the plaintiff must establish a prima facie case of discrimination or retaliation; (2) if the plaintiff presents a prima facie case, then the burden shifts to the defendant to show a legitimate, non-discriminatory or non-retaliatory reason for the adverse employment action; and (3) if the defendant shows such a reason, then the burden shifts to the plaintiff to prove that the reason is pretextual.Sanders v. Tikras Tech. Sols. Corp., 725 Fed.Appx. 228, 229 (4th Cir. 2018). "It is left to the plaintiff's discretion whether to proceed by direct and indirect evidence or by mean of the McDonnell Douglas burden-shifting framework." Foster, 787 F.3d at 249 (citation omitted).
The plaintiff does not specify under which avenue of proof she wishes to proceed. However, because she has presented no direct evidence of discrimination or retaliation, the undersigned will consider her claims under the McDonnell Douglas framework herein. See Walton v. Harker, 33 F.4th 165, 177 (4th Cir. 2022) (noting that the district court correctly proceeded to the McDonnell Douglas framework when the plaintiff presented no direct evidence of retaliation).
iii. Harassment/Hostile Work Environment
"To demonstrate . . . a racially hostile work environment, a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer." Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011) (citations and internal quotation marks omitted).
The defendant argues that summary judgment should be granted on the plaintiff's hostile work environment claim because the plaintiff has not shown that any unwelcome conduct was sufficiently severe or pervasive. The undersigned agrees. "A hostile-work-environment claim will only succeed when 'the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" McIver v. Bridgestone Ams., Inc., 42 F.4th 398, 407 (4th Cir. 2022) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The severe or pervasive element has both a subjective and objective component. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). The plaintiff must show that she "subjectively perceive[d] the environment to be abusive," and that "a reasonable person in the plaintiff's position would have found the environment objectively hostile or abusive." Id. (internal citations and quotation marks omitted). When considering whether unwelcome conduct was objectively severe or pervasive, the court "must look at all 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.” Id. (citations and internal quotation marks omitted). Title VII is not intended to become "a general civility code," Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998), and "[t]he bar for demonstrating conduct was objectively severe or pervasive is a high one." Brown v. Bratton, C/A No. 21-1998, 2022 WL 17336572, at *9 (4th Cir. Nov. 30, 2022) (citing Perkins, 936 F.3d at 208 ("[R]ude 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.")).
As set out above, the plaintiff sets forth numerous allegations regarding Caucasian employees being treated more favorably than her, including that she was not given a lighter patient load when she was a supervisor; not being included in certain emails and meetings; not having a permanent seating assignment for a few weeks; having to obtain clearance to change her schedule; receiving a write-up for voicing her opinion in a staff meeting; not being asked to train a new nurse practitioner; being required to keep a full schedule when a patient cancelled; being denied an alternate work schedule to care for her mother; being discouraged from signing up for extra night shifts; and being required to work in the hospital, as opposed to the office, or obtain FMLA leave. However, the plaintiff's filings and deposition testimony reflect that her superiors promptly remedied many of these issues when she submitted complaints about them. For example, when the plaintiff complained about not being included in the emails and meetings, she was then included. When she reported that she did not have a permanent seat in the office, she was provided one. After she informed Mr. Eskew that she should not have to obtain clearance to change her schedule, it never happened again. When she discussed with Ms. Nair the message to her medical assistant regarding keeping her schedule full, the same message was sent to the other medical assistants. After she reported that she was required to work in the hospital unlike two Caucasian nurses, the Caucasian nurses were then required to work in the hospital. When she reported that Ms. Nair was discouraging her from signing up for extra night shifts, she was then allowed to sign up for those shifts.
Further, while the plaintiff attached to her sur-reply a copy of emails that she sent to Ms. Alcorn reporting that she was being discouraged from signing up for extra night shifts and documentation reflecting that she received FMLA leave, she has failed to point to any other corroborating evidence that might show how Caucasian employees were treated more favorably. For instance, the plaintiff does not identify documents reflecting the Caucasian nurse supervisor's lighter patient load or testimony from that supervisor; any schedules purporting to show favoritism in patient loads; emails reflecting the messages to the different medical assistants about keeping the providers' schedules full when a patient cancelled; documents reflecting that she was denied an alternate work schedule to care for her mother; or even evidence reflecting dates for many of these allegations. See CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020) ("[A] party's self-serving opinion ... cannot, absent objective corroboration, defeat summary judgment.") (citations and internal quotation marks omitted); Harris v. Home Sales Co., 499 Fed.Appx. 285, 294 (4th Cir. 2012) ("Although we do not make credibility determinations at the summary judgment phase, we should also not find a genuine dispute of material fact based solely on [a plaintiff's] self-serving testimony.") (citation omitted); Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient[.]"); e.g., Wandji v. Wilkie, C/A No. 2:18-cv-03036-RMG-MGB, 2020 WL 7647552, at *30 (D.S.C. Nov. 9, 2020) ("These allegations of discriminatory animus, however, are based strictly on Plaintiff's personal opinion and conjecture, neither of which are sufficient to establish a hostile work environment"), R&R adopted by 2020 WL 7237922 (D.S.C. Dec. 9, 2020); Holley v. Great Atl. & Pac. Tea Co., Inc., C/A No. RDB-05-1324, 2006 WL 306595, at *6 (D. Md. Feb. 8, 2006) (finding that a plaintiff had failed to produce sufficient evidence that would permit a reasonable jury to find that he had satisfied the severe or pervasive element of a hostile work environment claim when he only presented a self-serving affidavit and there were only a handful of racially charged comments that were not made in the presence of any other employees and there was no evidence that the comments altered the conditions of the plaintiff's employment).
Regarding the write-up that the plaintiff alleges that she received for voicing her opinion in a staff meeting, the defendant has produced notes from interviews with three doctors about the incident, who provided that the plaintiff was "heated," "angry," "combative," "aggressive," "insulting," "really rude," and "disrespectful," "she had outbursts," she "was frustrated and her comments made it sound like the doctors in the hospital were lazy," there was "concern about [her] tone and tenor during the meeting," she "stormed out of the meeting," and she subsequently "sent a text message to the physicians thanking [them] for getting her written up" (doc. 32-1 at exhibits 35, 36, 37). Further, the plaintiff has failed to produce any evidence that she behaved differently or that Caucasian nurse practitioners were not disciplined for similar conduct.
The plaintiff also alleges that she was not paid more when she was a nurse supervisor, unlike a Caucasian nurse supervisor. Again, the plaintiff has failed to produce any evidence, other than her conclusory deposition testimony, that a Caucasian nurse supervisor was actually provided these benefits. In fact, the plaintiff acknowledged that she was told that this Caucasian nurse supervisor was paid more, but she has no proof that this was true. Such allegations - without any supporting evidence - are insufficient at this stage of the litigation.
Regarding the incident with the security guard, the plaintiff asserts that Ms. Smith was accusatory during the investigation and asked her about whether she refused to show the security guard her identification badge and said something about "black power." However, the plaintiff denied doing this, and she was not disciplined. The undersigned finds that a reasonable person would not find this objectively hostile or abusive.
The plaintiff further alleges that two physicians each made a racially derogatory comment to her. First, Dr. Awan purportedly told the plaintiff that if she "would lose some weight, [she] would be hot" and he "couldn't talk to those white nurse practitioners like that because . . . they would run and cry." Second, Dr. Boota allegedly told the plaintiff that "[she] should be happy [she's] turning white" when she told him that she was concerned about light spots on her legs. While these comments were certainly racially derogatory, the undersigned finds that they are insufficient to satisfy the high bar of showing the severe or pervasive element. These comments were isolated and infrequent, and the plaintiff could not recall at her deposition any other racially derogatory jokes, comments, statements, text messages, or emails that were ever shared with her in the over 13 years that she worked for the defendant. The plaintiff does not allege that either of these physicians were her supervisor or that these comments were made in the presence of any other employees. Further, there is no evidence that the comments altered the conditions of the plaintiff's employment or that the comments were made in relation to an employment decision. Notably, the plaintiff has failed to allege when these comments were made in relation to when she ultimately quit. As such, the undersigned finds that the plaintiff has failed to show that a reasonable jury could conclude that these comments rose to the level of being objectively severe or pervasive. See Sunbelt, 521 F.3d at 315 ("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."); Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1, 788 (1998) (noting that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment" and that that to be deemed objectively pervasive, the "harassment must be more than episodic; [it] must be sufficiently continuous and concerted"); Harris, 510 U.S. at 21 ("mere utterance of an ... epithet which engenders offensive feelings in a[n] employee does not sufficiently affect the conditions of employment to implicate Title VII.") (citation and internal quotation marks omitted); e.g., McIver, 42 F.4th at 407-10 (finding that co-workers' alleged racial harassment, which was not directed specifically at the plaintiff but included hanging a noose on a machine of two black workers, racist caricatures, and a co-worker stating in the plaintiff's presence that "[w]e were doing fine without Black people on this crew," was not sufficiently severe or pervasive so as to constitute a hostile work environment under Title VII); Perkins, 936 F.3d at 209-10 (finding that a white employee making and wearing a KKK hat at work and another white employee complaining "that he was being asked to work like a n*****," both of which the plaintiff was aware of, were too remote in time relative to each other and to employee's decision to retire to be sufficiently pervasive to create a hostile work environment); Irani v. Palmetto Health, 767 Fed.Appx. 399, 415-17 (4th Cir. 2019) (finding that a supervisor's alleged use of racial slurs and offensive language, including calling a medical resident of Indian descent "Achmed the terrorist," were not sufficiently severe or pervasive to create a racially hostile work environment and noting that "while the comments made in this case are odious, there is no evidence to suggest that the infrequent comments -- two comments over an 18 month period -- were so severe or pervasive as to be actionable"); compare Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 279-80 (4th Cir. 2015) (finding that a genuine issue of material fact existed as to whether conduct was severe or pervasive when a supervisor "employed racial epithets to cap explicit, angry threats that she was on the verge of utilizing her supervisory powers to terminate" the employee, had berated the employee's job performance before threatening and directing racial epithets at her, and, when the employee attempted to report the harassment, threatened her again.)
The plaintiff also sets forth many allegations that she acknowledges were not based on her race, the second element of a hostile work environment claim. The plaintiff alleges there were not enough providers seeing patients in the Sleep Center and that other providers should have been moved from the hospital or the practice to the Sleep Center to assist her, as well as that she was denied various transfers during her employment. However, as set out above, the plaintiff acknowledged in her deposition that she did not think that these events occurred because of her race. In addition, in regards to the written warning that the plaintiff received after the incident with Mr. Arroryo, the plaintiff again acknowledged in her deposition that she did not believe that Mr. Arroyo or Ms. Nichols complained about her because of her race but rather because of the "toxic" atmosphere within the office. Moreover, in her interview during the human resources investigation, the plaintiff did not complain that she was being treated negatively because of her race but that she was being investigated because Mr. Torres told staff about her making previous complaints. While the plaintiff asserts in her response to the defendant's motion for summary judgment that Mr. Torres told staff about her former complaints after she complained of race discrimination, she did not allege this in her interview during the investigation and has provided no evidence, other than her own assertion in this filing, that Mr. Torres told staff about her making these complaints, let alone told staff because of her complaint of race discrimination.
In sum, considering the totality and cumulative effect of this conduct over time and viewing the evidence in the light most favorable to the plaintiff, the undersigned finds that a reasonable jury could not conclude that the unwelcome conduct of which the plaintiff complains was sufficiently severe or pervasive to create an abusive work environment. Accordingly, the undersigned recommends that the district court grant the defendant's motion for summary judgment on the plaintiff's hostile work environment claim.
iv. Constructive Discharge
To establish a prima facie claim for constructive discharge, a plaintiff must show that (1) her "working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign," and (2) she "actually resign[ed] because of those conditions." Perkins, 936 F.3d at 211-12. Here, only the first element is at issue. "'Intolerability is not established by showing merely that a reasonable person, confronted with the same choices as the employee, would have viewed resignation as the wisest or best decision, or even that the employee subjectively felt compelled to resign." Id. "Instead, intolerability is assessed by the objective standard of whether a reasonable person in the employee's position would have felt compelled to resign, ... that is, whether he would have had no choice but to resign." Id. "Critically, difficult or unpleasant working conditions . . ., without more, are not so intolerable as to compel a reasonable person to resign." Id. (citing Williams v. Giant Food, Inc., 370 F.3d 423, 434 (4th Cir. 2004) (being yelled at, told you are a poor manager, required to work with an injured back and chastised in front of customers is not so intolerable as to compel a reasonable person to resign); Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 273 (4th Cir. 2001) (co-worker ostracism, denial of a management position and mandatory counseling for turning in an inaccurate time card would not have compelled a reasonable person to resign); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 244 (4th Cir. 1997) (being ignored by co-workers and top management was insufficient to establish constructive discharge); Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994) (dissatisfaction with work assignments, perceived unfair criticism, and difficult and unpleasant working conditions are not so intolerable as to compel a reasonable person to resign)).
Although not argued by the defendant, "[p]roof of constructive discharge requires a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment." Perkins, 936 F.3d at 212 (citations and internal quotation marks omitted). Because the undersigned has found that the plaintiff failed to show that a reasonable jury could conclude that she was subjected to a hostile work environment, the undersigned also finds that she has similarly failed to make such showing with regard to her constructive discharge claim. See id. ("Because we have already concluded that Perkins failed to show he was subjected to a hostile work environment, it necessarily follows that he cannot show constructive discharge."); Bouknight v. S.C. Dep't of Corr., 487 F.Supp.3d 449, 462 (D.S.C. Sept. 16, 2020) ("Inasmuch as Bouknight is unable to demonstrate Reagan's conduct was sufficiently severe and pervasive to establish her hostile work environment cause of action, it follows she is unable to show something more than that, which is what a constructive discharge claim requires.") (internal citation and quotation marks omitted). Therefore, the undersigned recommends that the district court grant the defendant's motion for summary judgment on the plaintiff's constructive discharge claim.
v. Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff must show "(1) that [s]he engaged in protected activity, (2) that the employer took a materially adverse action against h[er] and (3) there is a causal connection between the protected activity and the adverse action." Sanders v. Tikras Tech. Sols. Corp., 725 Fed.Appx. 228, 229 (4th Cir. 2018); Perkins, 936 F.3d at 213. As discussed above, once a prima facie case has been established, the burden then shifts to the employer "to show its purportedly retaliatory action was in fact the result of a legitimate non-retaliatory reason." Foster, 787 at 250. If the employer makes this showing, the burden shifts back to the plaintiff to present sufficient evidence to rebut the employer's purported nonretaliatory reasons by demonstrating they "were not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (citations and internal quotation marks omitted); see also Foster, 787 F.3d at 250. "To satisfy the pretext of a Title VII retaliation claim, the plaintiff bears the ultimate burden of establishing that [his] protected activity was a but-for cause of the adverse action." Jones v. UnitedHealth Grp., Inc., 802 Fed.Appx. 780, 781-82 (4th Cir. 2020) (citation and internal quotation marks omitted).
The defendant submits that the only timely adverse employment action that may be considered for the plaintiff's retaliation claim is the issuance of the written warning to her in November 2021, but that the plaintiff has failed to show that retaliation was the but-for cause of this written warning (doc. 32-2 at 13-15). The undersigned agrees. The plaintiff has failed to show that her allegations of not being able to sign up for additional night shifts or that Caucasian nurses were not required to work in the hospital like her, which she submits were promptly remedied, were adverse actions. See Perkins, 936 F.3d at 213-14 (noting that an adverse material action under a retaliation claim requires a plaintiff to show that the adverse action “might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” a requirement that ensures “only significant harms would be actionable.”) (citations omitted). Further, with regard to the written warning, the plaintiff has failed to show any evidence that she received this warning because she engaged in a protected activity or that she would not have received this written warning but-for her protected activity.
The plaintiff alleges that Ms. Smith investigated the incident with Mr. Arroyo and that the results of Ms. Smith's investigation were "clearly biased, retaliatory in nature[,] and inaccurate," because she has reported Ms. Smith "for her accusatory tone and the inappropriate way she was approached me in the past" (doc. 36 at 4). However, as set out above, the defendant has produced documents regarding this investigation, which reflect that three of the plaintiff's co-workers, Ms. Nichols, Mr. Arroyo, and Ms. Karen Smith, submitted complaints about how the plaintiff treated them. Specifically, Mr. Arroyo reported as follows:
I work a lot with Lisa. When we work with the providers, we prep for the next day. We put info in for the next day. Each provider has different requests. Lisa requires quite a bit. . . . If we have a patient that has had a sleep study, we print out a copy of the sleep study. It was close to the end of the day, Lisa came to us and said I need my sleep study for the next day. I
asked her if she was going to stand over me, she asked if it bothered me, I said yes. She walked off. I gave the sleep study to the other [medical assistant]. *Sherena Nicholas* The next day she kept going on about where the checklist was. I asked, how. He said she tried to call. There have been other incidents, I blocked her number. I've told her to lync me or call her. She called S[h]erena. I think she called her once. What was the said checklist? It's a questionnaire that the patient fills out prior to the sleep study. Lisa kept saying she wanted the checklist and we didn't know what she was wanting. . . . Makes me feel that she thinks she is superior and we are to jump and do whatever she wants. Instead of coming and asking us for stuff, she yells out our name while with a patient. She is not hesitant to tell us that she is the NP and they work for her.(Doc. 32-1, Speach dep. at exhibit 53). Ms. Nichols witnessed this incident and reported similarly when she was interviewed as part of the investigation (id. at exhibit 52). Moreover, Ms. Nichols and Ms. Karen Smith reported issues with the way the plaintiff treated them, including that "you never know what to expect if she is coming in in a bad mood or a good mood”; when she is in a bad mood, she "will come in frustrated, and she will knit pick us about everything”; "she will talk to me like I am stupid in front of a patient”; "[s]he speaks to me like I am a child”; "[s]he doesn't trust us”; "[s]he talks to us like she is better than us”; and "[s]he's very harsh when she comes at someone. It makes you cringe. It makes you feel like you are doing something wrong. She changes daily. I feel like it's like walking on eggshells. When one thing goes wrong, you know the day is going to be that. How do we know what she wants on a daily basis. She's at you the rest of the day" (id. at exhibits 52, 54). The written warning that the plaintiff received provided, in pertinent part, as follows:
BSMH Leadership received reports of unprofessional behavior within the workplace on separate occasions. The incidents include directing others when to work and creating a negative work environment. Bon Secours investigated these actions and substantiated that they took place. These actions are direct violations of the Corrective Action Policy and Code of Conduct and Core Values. During the interview process you were advised not to share any information with others. You violated direction by confronting the practice manager and reaching out to your colleague[s] concerning the investigation.
This letter serves as a Written Warning for your behavior and actions. . . .(Doc. 32-1, Speach dep. at exhibit 59). Comparatively, the plaintiff has not presented any evidence, other than her own assertions and deposition testimony, that she acted differently or that this was done in retaliation for her engaging in a protected activity. Rather, the plaintiff acknowledged in her deposition that she did not believe that Mr. Arroyo or Ms. Nichols complained about her because of her race but rather because of the "toxic" atmosphere within the office. Additionally, in her interview during the human resources investigation, the plaintiff did not complain that she was being treated negatively because of her race but claimed that she was being investigated because Mr. Torres told staff about her making previous complaints. As set out above, while the plaintiff asserts that Mr. Torres told staff about her previous complaints after she complained of race discrimination, she did not allege this in her interview during the investigation and has provided no evidence, other than her own assertions, that Mr. Torres told staff about her making these complaints, let alone told staff in retaliation for her complaint of race discrimination. In light of this, the undersigned cannot conclude that a reasonable jury could find that the plaintiff would not have received this written warning but for the defendant's retaliation. Accordingly, the undersigned recommends that the district court grant the defendant's motion for summary judgment on the plaintiff's retaliation claim.
vi. Race Discrimination some FMLA leave to avoid working in the hospital were also timely. Accordingly, out of an abundance of caution, the undersigned will address this claim separately herein.
To establish a prima facie case of race discrimination, a plaintiff must show (1) membership in a protected class, (2) satisfactory job performance, (3) adverse employment action, and (4) different treatment from similarly situated employees outside the protected class, or there is some other evidence giving rise to an inference of unlawful discrimination. See Swaso v. Onslow Cnty. Bd. of Educ., 698 Fed.Appx. 745, 748 (4th Cir. 2017); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). Similar to her retaliation claim, the undersigned finds that plaintiff has failed to show that the plaintiff's claims that she was discouraged from signing up for extra night shifts or being required to work in the hospital, actions which she acknowledged were promptly remedied after she made complaints, were adverse actions. See Thomas v. City of Annapolis, Md., 851 Fed.Appx. 341, 345 (4th Cir. 2021) (“[A]n adverse action is one that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”) (citations and internal quotation marks omitted). Moreover, regarding her allegations of the incident with Mr. Arroyo and the written warning she received, the plaintiff has failed to show any evidence of a similarly-situated employee who was not a member of her protected class having a more favorable outcome in similar circumstances, or some other evidence giving rise to an inference of unlawful discrimination. Therefore, the undersigned recommends that the district court grant the defendant's motion for summary judgment.
In her complaint, the plaintiff also listed “negligent infliction of emotional distress” as “relevant state law” (doc. 1 at 4). However, she did not attempt to state such claim in her complaint (id. at 1-11). Nevertheless, to the extent that the plaintiff was attempting to bring a claim for negligent infliction of emotional distress, the undersigned recommends that, should the district court adopt this recommendation and grant the defendant's motion for summary judgment on the plaintiff's federal claims, the court should decline to exercise supplemental jurisdiction over this state law claim. See 28 U.S.C. § 1367(c)(3); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995).
B. Motion to Compel
After the filing of the defendant's motion for summary judgment and the plaintiff's response thereto, the plaintiff filed a motion to compel, requesting that the defendant produce documents related to this litigation (doc. 43). Should the district court adopt the undersigned's recommendation regarding the defendant's motion for summary judgment, the plaintiff's motion to compel should be denied as moot.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the district court grant the defendant's motion for summary judgment (doc. 32). Should the district court adopt this recommendation, the plaintiff's motion to compel (doc. 43) should be denied as moot.
IT IS SO RECOMMENDED.
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
250 East North Street, Suite 2300
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).