Opinion
Civil Action 9:21-01092-RMG-MGB
12-05-2022
Ebony Washington, Plaintiff, v. Sprenger Healthcare of Port Royal, Inc., and Grace Management Services, Inc., Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this action alleging retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Family and Medical Leave Act (“FMLA”). This matter is before the court upon Defendants' Motion for Summary Judgment (Dkt. No. 33). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local 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. For the reasons set forth below, the undersigned recommends that Defendants' Motion for Summary Judgment (Dkt. No. 33) be granted.
FACTUAL SUMMARY
Plaintiff began working for Defendant Sprenger Healthcare of Port Royal, Inc. (“Sprenger”), an assisted living facility in Port Royal, South Carolina, in July of 2018.(Dkt. No. 33-1 at 2; Dkt. No. 33-2 at 22-23; Dkt. No. 36 at 1-2.) Plaintiff was hired as a Transporter. (Dkt. No. 33-2 at 22-23; Dkt. No. 33-4 at 2-3.) In this role, she transported nursing home residents to and from medical appointments. (Dkt. No. 33-1 at 3; Dkt. No. 33-2 at 30.) Plaintiff also assisted with clerical tasks such as putting Sprenger residents' information into the “medical record system.” (Dkt. No. 33-2 at 31; Dkt. No. 36 at 2.)
Defendant Grace Management Services, Inc. owns and operates Defendant Sprenger Healthcare of Port Royal, Inc., and provides employees to the Sprenger facility. (Dkt. No. 33-1 at 2; Dkt. No. 36 at 1.)
This Report and Recommendation reflects the pagination assigned by the court's automated docketing system.
Soon after she began working at Sprenger, Plaintiff informed her supervisor that she was pregnant. (Dkt. No. 33-1 at 2; Dkt. No. 33-2 at 34-35; Dkt. No. 36 at 2.) Plaintiff's supervisor, Patricia McFayden, gave her forms to complete to request maternity leave. (Dkt. No. 33-1 at 2; Dkt. No. 33-2 at 35-36; Dkt. No. 36 at 2.) Plaintiff submitted the completed forms to McFayden on October 30, 2018. (Dkt. No. 33-1 at 3; Dkt. No. 36 at 3.) Plaintiff's maternity leave was approved and was expected to begin in January of 2019. (Dkt. No. 33-1 at 3; Dkt. No. 36 at 3.)
In November of 2018, Plaintiff gave McFayden a form from her obstetrician explaining that Plaintiff needed an assistant to help her perform her duties as Transporter until she was thirty-six weeks pregnant, and that she should then “work in medical records” after hitting thirty-six weeks. (Dkt. No. 33-1 at 3; Dkt. No. 33-4 at 15; Dkt. No. 36 at 3.) Sprenger purportedly could not accommodate this request, so Plaintiff took leave beginning November 19, 2018. (Dkt. No. 33-1 at 4; Dkt. No. 36 at 3.) While on leave, Plaintiff sent a grievance letter to Sprenger's corporate office regarding the facility's inability to accommodate her. (Dkt. No. 33-1 at 4; Dkt. No. 33-4 at 16-18; Dkt. No. 36 at 5.) On November 28, 2018, Plaintiff filed a charge of discrimination with the South Carolina Human Affairs Commission alleging sex discrimination. (Dkt. No. 33-1 at 4; Dkt. No. 33-4 at 22; Dkt. No. 36 at 6.)
The undersigned notes that Plaintiff's Amended Complaint does not bring any claims relating to Defendants' purported failure to accommodate her, so this issue is not before the court. (See generally Dkt. No. 19.)
Plaintiff returned to her position as Transporter on December 6, 2018 and continued to work until her baby was born on January 10, 2019. (Dkt. No. 33-1 at 4; Dkt. No. 36 at 6.) Plaintiff took maternity leave from January 10 to March 14, 2019. (Dkt. No. 33-1 at 4-5; Dkt. No. 36 at 7.) Plaintiff returned to work on March 18, 2019. (Dkt. No. 33-1 at 5; Dkt. No. 33-2 at 52; Dkt. No. 36 at 7.)
On May 14, 2019, Plaintiff “nodded off” at work. (Dkt. No. 33-1 at 5; Dkt. No. 33-4 at 26; Dkt. No. 36 at 9.) She was terminated on May 16, 2019. (Dkt. No. 33-1 at 5; Dkt. No. 36 at 9; Dkt. No. 36-10 at 1.)
On June 4, 2019, Plaintiff filed a second charge of discrimination with the Equal Opportunity Employment Commission (“EEOC”). (Dkt. No. 33-1 at 5; Dkt. No. 33-4 at 34-40.) She alleged retaliation, sex discrimination, and pregnancy discrimination. (Dkt. No. 33-1 at 5; Dkt. No. 33-4 at 34-40.) More specifically, Plaintiff claimed that she was forced to take leave from November 19, 2018 to December 6, 2019 because Sprenger failed to accommodate her request for an assistant. (Dkt. No. 33-1 at 5; Dkt. No. 33-4 at 34-40.) She also claimed that Sprenger failed to follow its progressive disciplinary policy before firing her. (DKt. No. 33-1 at 5-6; Dkt. No. 33-4 at 34-40.) The EEOC issued a notice of right to sue letter to Plaintiff on December 3, 2020. (Dkt. No. 33-1 at 6; Dkt. No. 33-4 at 41.) Plaintiff proceeded to file this civil action.
PROCEDURAL HISTORY
Plaintiff originally filed this lawsuit in the South Carolina Court of Common Pleas, alleging: (1) retaliation in violation of the FMLA; (2) retaliation in violation of Title VII; (3) FMLA interference; and (4) retaliation in violation of the South Carolina Human Affairs Law. (Dkt. No. 1-1.) She filed her initial Complaint on January 27, 2021, and her First Amended Complaint on February 5, 2021. (Id.) On April 14, 2021, Defendants removed this civil action to the United States District Court for the District of South Carolina. (Dkt. No. 1.)
On August 6, 2021, Defendants filed a Motion for Partial Judgment on the Pleadings, seeking dismissal of three of Plaintiff's four claims. (Dkt. No. 10). On August 31, 2021, Plaintiff filed a Motion to Amend her Complaint and submitted a proposed second amended complaint alleging only FMLA and Title VII retaliation claims. (Dkt. No. 14.) In light of Plaintiff's Motion to Amend, the court mooted Defendants' motion. (Dkt. No. 15.) Plaintiff filed her Second Amended Complaint on October 5, 2021. (Dkt. No. 19.) On August 1, 2022, Defendants filed a Motion for Summary Judgment as to Plaintiff's two remaining claims. (Dkt. No. 33.) After requesting and receiving an extension of time to respond, Plaintiff filed her response in opposition to Defendants' motion on September 14, 2022. (Dkt. No. 36.) Defendants replied to Plaintiff's response on October 5, 2022. (Dkt. No. 39.) Accordingly, the motion before the court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In ruling on a motion for summary judgment, “the nonmoving party's evidence ‘is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). “Although the Court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (citing Anderson, 477 U.S. at 252; Stone v. Liberty Mutual Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997)). “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.” Anderson, 477 U.S. at 248.
DISCUSSION
Defendants assert that they are entitled to summary judgment on both of Plaintiff's claims. (See generally Dkt. Nos. 33, 39.) By contrast, Plaintiff contends that genuine issues of material fact exist and that summary judgment is inappropriate. (See generally Dkt. No. 36.) For the reasons set forth below, the undersigned finds that Plaintiff's retaliation claims fail as a matter of law. Accordingly, the undersigned RECOMMENDS that the court GRANT Defendants' Motion for Summary Judgment (Dkt. No. 33).
I. Title VII
Title VII makes it “an unlawful employment practice for an employer to . . . discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ....” 42 U.S.C. § 2000e-2(a). Title VII also makes it unlawful for an employer to retaliate against an employee because that individual opposed any practice made unlawful under Title VII, or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a).
A plaintiff may establish unlawful retaliation by her employer under Title VII through either direct evidence of retaliatory animus or the McDonnell Douglas pretext framework. See Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021) (referencing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015)). Direct evidence in this context “encompasses conduct or statements that both (1) reflect directly the alleged [retaliatory] attitude, and (2) bear directly on the contested employment decision.” Johnson v. United Parcel Serv., Inc., 839 Fed.Appx. 781, 783 (4th Cir. 2021) (citing Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th Cir. 2013)). If Plaintiff cannot produce direct evidence of retaliation, she must proceed under the McDonnell Douglas framework. See Roberts, 998 F.3d at 122 (referencing Foster, 787 F.3d at 249). Under this framework, Plaintiff must first make a prima facie showing of retaliation. See Sempowich v. Tactile Sys. Tech., Inc, 19 F.4th 643, 653 (4th Cir. 2021) (referencing Foster, 787 F.3d at 250). If Plaintiff can establish her prima facie case of retaliation, the burden shifts to Defendants to rebut the presumption of retaliation by articulating a non-retaliatory reason for their actions. Id. If Defendants can do so, Plaintiff then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id. at 654.
Here, it is undisputed that Plaintiff has no direct evidence of discrimination. (See generally Dkt. Nos. 33, 36, 39.) As such, Plaintiff must proceed using the McDonnell Douglas burden-shifting framework. To make a prima facie showing of retaliation, Plaintiff demonstrate that: (1) she engaged in a protected activity; (2) her employer took an adverse action against her; and (3) there was a causal link between the two events. See Sempowich, 19 F.4th at 653 (referencing Foster, 787 F.3d at 250).
A. Protected Activity
“Protected activity under Title VII includes complaints of discrimination based upon ‘race, color religion, sex or national origin.'” Roberts, 998 F.3d at 122 (citing Landino v. Sapp, 520 Fed.Appx. 195, 198 (4th Cir. 2013) (quoting Balazs v. Liebenthal, 32 F.3d 151, 159 (4th Cir. 1994))). Courts take an “expansive view of what constitutes oppositional conduct,” DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015), and complaints raised through internal company procedures are recognized as protected activity. Roberts, 998 F.3d at 122. Here, Plaintiff alleges that she engaged in protected activity when she gave Sprenger a grievance letter on November 26, 2018, and when she filed a sex discrimination charge two days later. (Dkt. No. 36 at 14.) Defendants do not dispute this. (Dkt. No. 33-1 at 7.) Rather, Defendants contend that Plaintiff cannot make a prima facie showing of retaliation because she cannot show that she suffered a materially adverse action that was causally connected to her protected activity. (Id.)
B. Adverse Actions
In defining an adverse action for purposes of a retaliation claim, the Fourth Circuit has explained:
An alleged retaliatory action must be “materially adverse,” meaning that the plaintiff must show that the action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68, 126 S.Ct. 2405 (internal citations omitted). In other words, the harm must be a “‘significant' detriment,'” not “relatively insubstantial or ‘trivial.'” Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015) (quoting Burlington, 548 U.S. at 68, 126 S.Ct. 2405) (emphasis added).Laird v. Fairfax County, 978 F.3d 887, 893 (4th Cir. 2020). Plaintiff claims that she suffered the following materially adverse actions: (1) “her Medical Records Clerk title and duties were taken from her after she returned from maternity leave”; and (2) she was terminated. (Dkt. No. 36 at 15, 17.) Defendants argue that only Plaintiff's termination can be considered a materially adverse action. (Dkt. No. 33-1 at 8; Dkt. No. 39 at 3.) The undersigned agrees.
With respect to Plaintiff's contention that her recording duties were taken away from her when she returned from maternity leave, the record makes clear that these duties were not actually part of Plaintiff's job description and did not make up a significant portion of her work responsibilities. (Dkt. No. 33-4 at 2-3.) Plaintiff provides no evidence, other than her own assertions, that “Medical Records Clerk” was part of her job title, nor that recordkeeping duties were part of her job description. Though Plaintiff points to three exhibits that purportedly support her assertion that she was hired as a Transporter/Medical Records Clerk, all of the exhibits to which she cites are fill-in-the-blank, handwritten documents that appear to have been filled out by Plaintiff herself. (See Dkt. Nos. 36-3, 36-12, 36-13.) By contrast, Plaintiff electronically signed and acknowledged a “Job Description” upon being hired. (See Dkt. No. 33-4.) This signed document shows that Plaintiff was hired solely as a “Transporter,” with duties such as “[t]ransport[ing] residents to and from appointments in a manner conducive to resident safety,” “[a]ssist[ing] with loading and unloading residents from the vehicle,” “[e]nsur[ing] that all proper paperwork has been given prior to leaving [the] facility,” “[e]scort[ing] residents to appointments if necessary,” and “[a]ssist[ing] with the cleaning and maintenance of transportation vehicles.” (Id. at 2.)
Thus, even assuming that Plaintiff had acquired the role of “Medical Records Clerk,” this was not her primary role. (See generally id.) In fact, Plaintiff testified that she helped with medical records only when she was not driving and completing duties for her “Transporter” role. (Dkt. No. 33-2 at 31.)
Most significantly, Plaintiff does not allege that her pay decreased, or that her benefits or schedule changed when she was relieved of her recordkeeping duties. (Id.) The undersigned simply cannot conclude that Plaintiff resuming the job for which she was hired with no change in salary, benefits, or schedule constitutes a materially adverse action that imposed a “significant detriment” upon her. Laird, 978 F.3d at 893; see also McLaughlin v. Barr, No. 1:19-cv-318, 2020 WL 869914, at *11 (M.D. N.C. Feb. 21, 2020) (finding that change in job duties did not constitute a materially adverse action where plaintiff failed to allege any detrimental effect on her employment, other than the reassignment itself).
To the extent Plaintiff argues that she suffered an adverse employment action because she was not given an opportunity to apply for the full time Medical Records Clerk position, Plaintiff provides nothing more than her own assertions as support here. (See generally Dkt. No. 36.) Rather, Plaintiff asks the court to speculate that she would have applied for the job, been hired, and, presumably, advanced her career based on only her self-serving assertion that she expressed interest in the position on one occasion. (Id.) Such speculation is insufficient to overcome summary judgment.
More importantly, Plaintiff does not articulate how this purportedly adverse action negatively impacted her. (Id.) Plaintiff seems to allege that the Medical Records Clerk position was more desirable and provided more opportunity for advancement, but she points to no evidence in the record to support these contentions. (Id.) Indeed, the record does not support an inference that the Medical Records Clerk position was a promotion for Plaintiff, and there is no evidence tending to suggest that Plaintiff would make more money, have better hours, receive increased benefits, obtain additional training, or be more likely to get promoted in the future if she was hired to the Medical Records Clerk position. The undersigned therefore concludes that Plaintiff's inability to apply for the Medical Records Clerk position does not constitute an adverse action.
Accordingly, the only adverse action at issue here is Plaintiff's termination.
C. Causation
“A plaintiff may attempt to demonstrate that a protected activity caused an adverse action through two routes.” Johnson, 839 Fed. App'x at 782-83. First, a plaintiff may establish the existence of facts that “suggest[] that the adverse action occurred because of the protected activity.” Id. (citing Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (recognizing that “relevant evidence may be used to establish causation”)). In the alternative, a plaintiff may establish that “the adverse act bears sufficient temporal proximity to the protected activity.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)).
Here, Plaintiff attempts to show causation through temporal proximity. (Dkt. No. 36 at 17-20.) More specifically, Plaintiff argues that her termination bears a close temporal relationship to her protected activity because she was terminated fifty-nine days after she returned from maternity leave. (Id. at 18.)
The Fourth Circuit has noted that a temporal relationship must be “very close” to support a reasonable inference of retaliatory causation. Pascual v. Lowe's Home Ctrs., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (quoting Clark Cty. Sch. Dist., 532 U.S. at 273). Although there is no bright-line rule for determining when a temporal relationship is “very close,” the Fourth Circuit has held that as little as three months between a plaintiff's protected activity and a defendant's retaliatory act is too long to give rise to an inference of causality. Id. (three-to-four-month period too long to establish causation). The Fourth Circuit has also determined that two months is “sufficiently long so as to weaken significantly the inference of causation between the two events.” King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003); see also Horne v. Reznick Fedder & Silverman, 154 Fed. App'x. 361, 364 (4th Cir. 2005). Though “[a] court may find causation when one or two months have passed between the protected activity and the retaliatory act,” the court may do so “‘only where there are additional facts to establish the causal connection, beyond the timeline of events.'” Hamada v. Boeing Co., No. 2:19-cv-02777-DCN-MGB, 2021 WL 4398456, at *5 (D.S.C. Sept. 27, 2021) (quoting Winston v. Maryland, 2018 WL 5786130, at *10 (D. Md. Nov. 5, 2018)). For instance, “evidence of recurring retaliatory animus during the intervening period can be sufficient to satisfy the element of causation.” Lettieri, 478 F.3d at 650.
As noted, Plaintiff attempts to show causation based on temporal proximity. (Dkt. No. 36 at 17.) Plaintiff must therefore show that her termination “bears sufficient temporal proximity to [her] protected activity.” Johnson, 839 Fed. App'x at 782-83 (citing Clark Cnty. Sch. Dist., 532 U.S. at 273-74). To do so, she explains that she was terminated fifty-nine days after she returned from maternity leave. (Dkt. No. 36 at 18.) The timeline of events in this case is undisputed and confirms that Plaintiff was terminated fifty-nine days after she returned from maternity leave.
However, Plaintiff's November 2018 complaints constitute protected activity for purposes of Plaintiff's Title VII retaliation claim; her maternity leave does not. Roberts, 998 F.3d at 122 (citing Landino, 520 Fed.Appx. at 198) (“Protected activity under Title VII includes complaints of discrimination based upon ‘race, color religion, sex or national origin.'” (quoting Balazs, 32 F.3d at 159)). The record shows that Plaintiff sent Defendants a grievance letter on November 26, 2018 and filed a charge of discrimination on November 28, 2018. (Dkt. No. 33-1 at 4; Dkt. No. 33-4 at 22; Dkt. No. 36 at 6.) She then worked until her baby was born on January 10, 2019 and took maternity leave from January 10 to March 14, 2019. (Dkt. No. 33-1 at 4-5; Dkt. No. 36 at 6-7.) She returned to work on March 18, 2019. (Dkt. No. 33-1 at 5; Dkt. No. 33-2 at 52; Dkt. No. 36 at 7.) On May 14, 2019, Plaintiff “nodded off” at work. (Dkt. No. 33-1 at 5; Dkt. No. 33-4 at 26; Dkt. No. 36 at 9.) She was terminated on May 16, 2019. (Dkt. No. 33-1 at 5; Dkt. No. 36 at 9; Dkt. No. 36-10 at 1.) Thus, Plaintiff was terminated approximately six months after her protected activity. This is far too attenuated a time frame to establish causation based on temporal proximity alone, even when considering that Plaintiff was on maternity leave for two of those six months. See Pascual, 193 Fed.Appx. at 233 (finding three to four months between termination and protected activities “too long to establish a causal connection by temporal proximity alone”); see also Griffin v. Am. Credit Acceptance LLC, No. 7:20-cv-00544-TMC-JDA, 2021 WL 5827222, at *7 n.5 (D.S.C. May 11, 2021), adopted, 2022 WL 168035 (D.S.C. Jan. 19, 2022) (“The more-than-three-month gap between the leave request and her termination would be too large to justify an inference that the termination was retaliatory.”).
Further, Plaintiff does not “put forth a sufficient explanation for the time elapsed between the protected activity and the alleged retaliation,” and the circumstances here do not support an inference of retaliatory animus. See Perry v. Kappos, 489 Fed.Appx. 637, 643 (4th Cir. 2012) (“Where the time between the events is too great to establish causation based solely on temporal proximity, a plaintiff must present ‘other relevant evidence . . . to establish causation,' such as ‘continuing retaliatory conduct and animus' in the intervening period.” (quoting Lettieri, 478 F.3d at 650)).
To the extent Plaintiff argues that Defendants relieving her of her recordkeeping duties supports an inference of causation, this argument is unconvincing for the reasons set forth in Section I.B above.
For example, after Plaintiff engaged in protected activity by filing her November 26 grievance and November 28 charge, Defendants granted her two months of maternity leave to which she was not legally entitled. (See infra at Section II.A.) This does not suggest retaliatory intent, and Plaintiff proffers no explanation as to why Defendants would permit her to take a two-month maternity leave that was not legally required if they intended to retaliate against her by firing her soon after she returned. (See generally Dkt. No. 36.) Plaintiff points to no evidence that would allow the court to infer a causal link between her November 2018 complaint and her May 2019 termination. (Id.) Her prima facie case of Title VII retaliation consequently fails, and the undersigned therefore recommends that Defendants' Motion for Summary Judgment be granted as to this claim.
Plaintiff was not an “eligible employee” under the FMLA at the time she took maternity leave because she had not yet worked for Defendants for twelve months. As such, she was not legally entitled to FMLA leave. See infra at Section II.A.; see also 29 C.F.R. § 2611(2)(A)(i)-(ii).
II. FMLA
A. Eligibility
With respect to Plaintiff's FMLA claim, Defendants first argue that Plaintiff was not an “eligible employee” entitled to the protections of the FMLA and, therefore, her claim must fail. (Dkt. No. 33-1 at 12-14.) In response, Plaintiff argues that “[t]he law does not require her to be eligible for FMLA to assert an FMLA retaliation claim.” (Dkt. No. 36 at 33.) For the reasons set forth below, the undersigned agrees with Defendants.
The FMLA defines an “eligible employee” as an employee who has been employed for at least twelve months by the employer and has worked at least 1,250 “hours of service” with such employer during the previous twelve-month period. 29 C.F.R. § 2611(2)(A)(i)-(ii); see also Babcock v. BellSouth Advert. & Publ'g Corp., 348 F.3d 73, 76-77 (4th Cir. 2003) (citing 29 C.F.R. § 825.110(d)). “The determination whether an employee has been employed by the employer for at least twelve months must be made ‘as of the date leave commences.'” Babcock, 348 F.3d at 77 (citing 29 C.F.R. § 825.110(d)).
As noted, Plaintiff started her employment with Defendants in July 2018 and began her leave in January 2019. (See supra at 1, 3.) Thus, she was not employed by Defendants for twelve months prior to taking leave and was not an “eligible employee” entitled to the protections of the FMLA. See 29 C.F.R. § 2611(2)(A)(i)-(ii).
Plaintiff does not dispute this. (See generally Dkt. No. 36.)
District courts within the Fourth Circuit disagree as to whether an employer can be liable for FMLA retaliation where the employee is not eligible for FMLA leave. Compare Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 628-29 (D.S.C. 2010) (holding that an employee may bring a retaliation claim under the FMLA even if terminated before becoming FMLA eligible under limited circumstances) with Jacobs v. UPS, Inc., No. 3:15-cv-381, 2016 WL 8192993, at *2 (W.D. N.C. Dec. 5, 2016) (holding that a plaintiff who did not satisfy 1,250 hour requirement “cannot maintain a FMLA retaliation claim because he cannot establish the first element of the prima facie claim for FMLA retaliation - that he engaged in ‘protected activity'”); see also Ruddy v. Bluestream Pro. Serv., LLC, 444 F.Supp.3d 697, 715 (E.D. Va. 2020) (citing Bonanno v. Va. Land & Improvement Corp., No. 1:13-cv-710, 2014 WL 5389908, at *1 (E.D. Va. Mar. 12, 2014)) (“[W]here a plaintiff is not an ‘eligible employee' under the FMLA, he has failed to state a claim of retaliation under the FMLA.”).
This court, however, has consistently held that FMLA eligibility is a prerequisite for FMLA retaliation and interference claims. See Noisette v. Holy City Hosp., No. 2:16-cv-2829-RMG, 2017 WL 3314227, at *3 (D.S.C. Aug. 3, 2017) (citing Moore v. Sears Roebuck & Co., No. 3:06-CV-255-RV/MD, 2007 WL 1950405, at *6 (N.D. Fla. July 2, 2007); Gleaton, 719 F.Supp.2d at 634)) (“[T]he weight of authority holds that eligibility for benefits under the FMLA is necessary to state an FMLA retaliation claim.”); see also Yoo v. BMW Mfg. Co. LLC, No. 7:17-cv-3499-TMC, 2020 WL 415897, at *4 (D.S.C. Jan. 27, 2020) (“It is axiomatic that before a Plaintiff can bring a cause of action for interference with or denial of his rights under the FMLA, he must be entitled to those rights in the first place.”). Accordingly, the fact that Plaintiff is not an eligible employee under the FMLA is fatal to her FMLA retaliation claim. The undersigned therefore recommends that Defendants' motion be granted as to this claim, as well.
B. Merits
Even if Plaintiff's status as an ineligible employee does not foreclose her FMLA retaliation claim, such claim fails on the merits. The FMLA makes it unlawful for an employer to discharge or otherwise retaliate against any individual for exercising his or her substantive rights under the Act. 29 U.S.C. § 2615(a)(2). “The FMLA creates two types of claims: (1) interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act; and (2) retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.” Gleaton, 719 F.Supp.2d at 633 n. 3 (D.S.C. 2010) (citation omitted).
Here, Plaintiff brings only a retaliation claim. (See generally Dkt. No. 19.) As with retaliation claims under Title VII, Plaintiff's FMLA retaliation claim is subject to the three-step burden-shifting framework under McDonnell Douglas. See Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006). The elements that Plaintiff must establish to make a prima facie showing of retaliation in violation of the FMLA are the same as those required for a prima facie showing of retaliation in violation of Title VII. Id. at 551.
As with her Title VII claim, Plaintiff's FMLA retaliation claim fails because she cannot establish causation. In arguing her prima facie case of FMLA retaliation, Plaintiff claims she engaged in protected activity when she “object[ed] to Defendants unlawfully forcing her to start her FMLA leave early” when she submitted her November 26, 2018 grievance letter and filed the November 28, 2018 charge of discrimination. (Dkt. No. 36 at 31.) Accordingly, Plaintiff's FMLA retaliation claim fails for the same reasons as her Title VII claim. (See supra at Section I.C.) Most pertinently, the temporal relationship between Plaintiff's protected activity and termination is far too attenuated to establish causation. Because Plaintiff's FMLA retaliation claim also fails on the merits, the undersigned recommends that Defendants' motion be granted as to this claim, even if the District Judge finds that Plaintiff's ineligibility is not fatal.
It is also worth noting that Plaintiff's FMLA retaliation claim is foreclosed by her testimony that she did not think she was treated differently because of her request for FMLA leave. (Dkt. No. 33-3 at 22.)
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment (Dkt. No. 33) be GRANTED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).