Opinion
C. A. 3:22-1657-SAL-SVH
03-04-2024
Donna G. White, Plaintiff, v. Bio-Medical Applications of South Carolina, Inc. doing business as Fresenius Medical Care Sumter, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
In this case, an employee sues her former employer, who she alleges discriminated and retaliated against her based on her disability, resulting in her wrongful termination. The former employer seeks dismissal.
Donna G. White (“Plaintiff”) originally filed this case against BioMedical Applications of South Carolina, Inc., doing business as Fresenius Medical Care Sumter (“Defendant”), in the Court of Common Pleas for Sumter County, South Carolina. Defendant removed this case on May 25, 2022. Plaintiff asserts claims for disability discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq., as amended by the ADA Amendments Act of 2008, effective January 1, 2009, 42 U.S.C. §§ 12101, et seq. (“ADA”), as well as a state law claim for promissory estoppel.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 17]. The motion has been fully briefed [ECF Nos. 18, 20] and is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion for summary judgment.
I. Factual and Procedural Background
A. Plaintiff's Leave for Two Surgeries
Plaintiff began working for Defendant in 2015 as a Certified Clinical Hemodialysis Technician at its Sumter facility and then transferred to the Swan Lake facility in 2019. [ECF No. 18-1 at 29:2-30:22, 32:23-33:2, 40:1320]. While at Swan Lake, Plaintiff worked the third patient shift, or nocturnal shift (“third shift”), on Monday, Wednesday, Friday, and every other Saturday, which ran from 2:00 p.m. until approximately 10:00 p.m. [ECF No. 18-2 at 17:6-18:3].
Susan Lea (“Lea”) was the clinical manager at Swan Lake beginning in October 2020 and was Plaintiff's direct supervisor. Id. at 12:13-17, 13:2014:8. Samontra Carter (“Carter”) was Defendant's director of operations (“DO”) and responsible for overseeing eight clinics, including Swan Lake. [ECF No. 18-2 at 12:18-22, ECF No. 18-3 at 13:24-14:16]. Latoya Robinson (“Robinson”) has been employed as Defendant's senior employee relations manager since August 2021. [ECF No. 18-4 at 13:8-15].
Plaintiff went out on medical leave for her first shoulder surgery in May 2020. [ECF No. 18-1 at 43:18-45:5]. She was to return to work in October 2020, but required a second surgery in November 2020 because the first surgery did not repair all the torn ligaments and she was not healing properly. Id. at 45:6-46:25, ECF No. 18-2 at 15:5-15] Plaintiff asked her doctor if she could return to work while waiting for the second surgery, but he would only clear her to return on light duty. Id. at 47:9-48:2. Plaintiff communicated with Lea about her work release conditions, but she was informed light duty was not available for her position. Id. at 48:24-49:6.
Plaintiff testified she discussed her need for a second surgery with Lea as follows:
[Lea] suggested that I move forward with the surgery. Because during that time you're looking at . . . it's coming up on the holidays .... she assured me, she said go ahead and have the surgery. She said your position will be all right. She said I'll hold it for you .... And she said if anything changes where I can't hold it, then I'll call you.Id. at 53:16-54:6, 54:24-25. Plaintiff spoke with Lea at least once a month thereafter. Id. at 57:21-58:7.
Lea denies that she promised to hold Plaintiff's job and testified she told Plaintiff she would inform her if her job had to be posted. [ECF No. 18-2 at 16:14-16, 16:17-20].
On September 29, 2020, Plaintiff's request an accommodation to remain out of work from July 4, 2020, through November 12, 2020. [ECF No. 18-5]. Defendant approved Plaintiff's request. See id. On February 18, 2021, Defendant was again notified of Plaintiff's request for accommodations. [ECF No. 18-6].
B. Plaintiff's Return to Work
In February or March 2021, Plaintiff called Lea to tell her she would be cleared to return sometime in March 2021 and asked if she could return to the shift she was working before taking leave. [ECF No. 18-1 at 58:8-23, 62:24-63:17]. Plaintiff testified as follows:
Q: ....you had a conversation with [Lea] about what shifts you wanted to work and you requested to go back to your normal schedule that you had before your operation. Is that accurate?
A: I asked her if it was possible and she said yes because she had-they had openings everywhere.See id. Plaintiff also testified that sometime after, Lea informed her that the position was not available, Swan Lake was fully staffed,and Lea “had something else for [Plamtiff].”/d at 59:15-61:10, 64:2-7, see also id. at 70:1013 (“Because she told me she was going to bring me back, she told me she was going-that she had a position for me, and then all of a sudden two weeks later she didn't have one.”).Plaintiff testified that Lea stated “they [were] going to find me somewhere to go and she would get back with me once she [did] that.” Id. at 72:5-18.
Two of Plaintiff's coworkers, Savitria Spann and Shanell Hickson, told Plaintiff that Swan Lake was not fully staffed, although Plaintiff further testified her coworkers were not in charge of staffing and that she felt Swan Lake was always short staffed. [ECF No. 18-1 at 64:8-65:23]. Additionally, when Plaintiff was looking for jobs while receiving unemployment benefits in April 2021, she saw several postings for open positions at Defendant's facilities, although she could not recall which ones. Id. at 91:22-93:12.
Lea testified that during their late February/early March 2021 conversation, she told Plaintiff her shift had been eliminated. [ECF No. 18-2 at 20:4-13]. Lea testified that Defendant began the elimination of Plaintiff's shift in January 2021 because of a decrease in the patient census and that it was fully eliminated by the summer of 2021. Id. at 17:2-18:10, 27:6-17.
After Lea did not call Plaintiff back, Plaintiff contacted human resources. Id. at 72:15-23, 75:2-10. Plaintiff testified she spoke several times with Robinson, as well as Carter, and she believed that Robinson had reached out to Lea and Carter. Id. at 72:24-73:8, 75:13-22. According to her notes, in February 2021, Robinson contacted Lea and Carter about Plaintiff returning to work after unsuccessfully trying to contact Plaintiff twice. [ECF No. 18-7 at 3-4].
Although not clear, Plaintiff may have contacted human resources on February 19, 2021. [ECF No. 18-1 at 59:3-61:1].
Lea, Carter, and Robinson all testified that to their understanding that Plaintiff was informed of other positions available, but that Plaintiff declined those positions. More specifically, Lea testified she told Plaintiff there was a day shift available, but Plaintiff told her she could not get to Swan Lake before 2:00 p.m. because of her other job. [ECF No. 18-2 at 2O:14-18]. Lea also testified that Carter was looking for other positions for Plaintiff, but did not know if she ever found one. Id. at 21:8-23.
Plaintiff testified that she did not have another job during this period. [ECF No. 18-1 at 79:20-25].
Carter testified that she and Lea discussed positions available at other facilities, but Plaintiff would work the third shift only and only at Swan Lake. [ECF No. 18-3 at 17:1-19:3]. She also testified that she told Plaintiff about an opening at the Sumter facility, but that Plaintiff did not want it. Id. at 22:8-16. Robinson testified that she was not present for the conversations where Lea or Carter offered Plaintiff a position, but that Carter informed her that she had offered positions to Plaintiff. [ECF No. 18-4 at 17:7-19:11].
On February 25, 2021, Robinson emailed Lea and Carter stating:
Thank you for connecting with me earlier Susan. So here's the game plan. Susan's accommodation with an estimated return to work date of 03/15/21 will be approved. Although we did not send demand notices, Donna was notified by Sedgwick.
[Carter] given [Lea's] facility [at Swan Lake] is staffed, you would be tasked in locating a PCT II role if available throughout your managed areas. I will also task Donna in researching any
available opportunities and reach out if she locates something of interest. In the event nothing is available, Donna will be notified and we explore other options.[ECF No. 18-8 at 7]. Robinson testified that the “other options” she referenced was an administrative termination and nothing else. [ECF No. 18-4 at 32:815].
In contrast to the above, Plaintiff testified that she was never offered an alternative schedule or a position at a different facility. [ECF No. 18-1 at 75:23-76:11, 78:14-79:3]. Plaintiff understood that she had been out of work for a long time, and it did not matter the shift or location she returned to, she just needed her job back. Id. at 77:19-23. Plaintiff testified that she was informed “they didn't have anyplace for me to go” and that she had been told if there were no positions available, she could be put on administrative leave. Id. at 78:25-79:14.
C. Plaintiff's Termination
Lea testified that human resources and Carter made the decision to terminate Plaintiff and that she was only informed to input the termination into Defendant's computer system. [ECF No. 18-2 at 22:15-17, 24:24-25:7]. Carter testified that she, Robinson, and Lea made the decision to terminate. [ECF No. 18-3 at 15:18-24]. Robinson testified as follows:
I don't believe that there was a conversation to say terminate Donna White. However, that had always been the conversation
since speaking with Donna; if something [a position] had not been located, again, it is our process is to terminate administratively.[ECF No. 18-4 at 25:8-13].
With respect to the reason for termination, Lea testified that Plaintiff was administratively terminated, but that she was not sure what that meant. [ECF No. 18-2 at 22:4-14]. Carter testified that Plaintiff was terminated for not following up about any of the positions offered to her. [ECF No. 18-3 at 22:21-23:3]. Robinson testified as follows:
She did not return because she failed to accept the offers that was provided to her by leadership .... Again, my purpose to facilitate her returning back to work. At that point, Donna was notified that the position which she had prior to her leave of absence was filled based on her status of exhaustion of medical leave, but it was advised for leadership to locate a position and also have Donna facilitate clinics of interest and bring that information back to leadership as well and attempt to have her placed .... She was terminated administratively, which is a term code within our process, due to failure to return from leave of absence .[ECF No. 18-4 at 17:3-13, 18:13-21, 19:12-21].
Carter testified informed Plaintiff of her termination:
Q: Did you tell Ms. White she had been terminated?
A: I did ....She still asked a question about her position, the position that she had I guess before she went out at Swan Lake and the hours. So I told her that I had spoken with Latoya Robinson and per her guidance that she was being terminated and also that she was still eligible for rehire so it she did see something on the website, that she was able to go and apply for those positions.[ECF No. 18-3 at 23:4-19, see also ECF No. 18-2 at 22:18-22, ECF No. 18-4 at 20:4-8 (Lea and Robinson testifying they did not tell Plaintiff she had been terminated and they were not certain if anyone else did)].
Plaintiff testified she was never told that her employment had been terminated. [ECF No. 18-1 at 94:10-16]. Plaintiff also testified that she did not find out that she had been terminated until she noticed a deposit from Defendant into her bank account and received a letter from Wells Fargo about her choices concerning her 401(k) as she was no longer with the company, but Plaintiff has not submitted evidence when this occurred. [ECF No. 18-1 at 80:23-81:16, ECF No. 18-9]. Plaintiff did not look for jobs while she was on leave because she believed that she had a job to return to. [ECF No. 18-1 at 80:13-22].
On April 6, 2021, Robinson sent an email to Carter and Lea, and on April 7, 2021, Plaintiff was administratively terminated. [ECF Nos. 18-10, 18-11]. Regarding the April 6, 2021 email, Robinson stated as follows:
When you have a moment, please give me a call or either connect with Donna. [Employee] is calling looking to learn if we have located a position, from our last conversation it was noted we would place her.[ECF No. 18-10]. Robinson testified as follows concerning the above email:
Q: Sure. So when I read this email from April 6th, it sounds like, at least at this time you sent this email, you weren't aware that Ms. White had been offered a position or had refused the position, because it says it was noted we would place her and she's still calling to learn if you've located a position.
A: That is correct.
Q: Okay. And then based on Exhibit 2, she was terminated the following day, April the 7th, 2021. So my question was this conversation that you said you had with Ms. Carter where she told you that Ms. White had turned down a job offer, would that have been between you sending this email in Exhibit 1 and Ms. White being terminated the following day on the 7th?
A: That was earlier, as I could imagine, given that there were multiple conversations with Donna White in attempt to locate a position.
Q: What do you mean? I think I'm confused.
A: Sure. From what I understand, there were multiple conversations and multiple offers made to Donna White at different clinics. The concern was that Donna was not receptive to the hours or the time frames of the schedule because it did not fit her personal needs.
Q: Okay.
A: But I mean this email says that she was calling to learn if a position had been located.
Q: Correct.
A: So it sounds to me like when she called she had never been told about a position because she's seeing if one has been located yet.
Q: That's correct. But, again, by my account, there had been multiple conversations, multiple phone calls. I was not aware of
the termination being effective April 7th until after the transaction took place.
A: So that was going to be my next question. Did you recommend termination?
Q: No, ma'am.[ECF No. 18-4 at 2i:9-25:5].
The above testimony is confusing, and it appears that the last seven entries may have mislabeled who was speaking, Robinson versus Plaintiff's attorney, as particularly evidenced by the last two entries, where the A is a question and the Q is the response “No, ma'am.” [See ECF No. 18-4 at 21:9-25:5]. Plaintiff argues the above testimony indicates the following:
Robinson was asked about the contradiction between the April 6th email and her prior testimony that Carter had offered Plaintiff positions, and she agreed that the email indicates that as of April 6, 2021, Plaintiff had not been contacted about any positions.[See ECF No. 18 at 6 (citing ECF No. 18-4 at 21:9-24:23)]. However, the cited testimony does not appear to comport with Plaintiff's suggestion, particularly as Robinson testified repeatedly, including after the above exchange, that a “collaborative effort between the employee and leadership” was made “to locate a position within an area of course that's suitable for Donna.” [ECF No. 18-4 at 28:21-29:2].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
1. ADA Wrongful Termination or Discrimination Claim
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees, . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The McDonnell Douglas burden-shifting framework applies to discrimination claims under the ADA where no direct evidence of discrimination is presented. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015). To establish a prima facie claim for disability discrimination under the ADA, Plaintiff must show: (1) she was disabled; (2) she was discharged; (3) she was fulfilling her employer's legitimate expectations when she was discharged; and (4) the circumstances of her discharge raise a reasonable inference of unlawful discrimination. Cowgill v. First Data Technologies, Inc., 41 F.4th 370, 379 (4th Cir. 2022). If a prima facie case of ADA discrimination is established, the burden shifts back to Defendant to produce evidence of a legitimate, nondiscriminatory reason for the alleged discrimination, and Plaintiff bears the burden of showing that reason is pretext. Jacobs, 780 F.3d at 572.
For summary judgment purposes, Defendant does not dispute that Plaintiff had a qualifying disability, that she was discharged, or that she was fulfilling her employer's legitimate expectations. [See ECF No. 20 at 4]. Defendant does dispute that the circumstances of her discharge raise a reasonable inference of unlawful discrimination.
Plaintiff disagrees, arguing it is well established that under the relevant law “close temporal proximity weighs heavily in favor of finding a genuine dispute as to causation,” further arguing that she submitted two requests for accommodations, and that “Plaintiff's second request for accommodations-long term disability leave-was submitted on February 18, 2021, just one day before Lea informed Plaintiff that her position was no longer available, and forty-eight days before Plaintiff's subsequent termination.” [ECF No. 18 at 9-10 (citing Jacobs v N.C Admin. Off of the Cts., 780 F.3d 562, 575 (4th Cir. 2015))].
Although Plaintiff has submitted evidence that she submitted a formal request for accommodations on February 18, 2021 [ECF No. 18-6], the record evidence also shows Plaintiff went out on medical leave in May 2020 and remained on leave for a total of ten months before she was cleared to return to work. Plaintiff's first request for medical leave was in May 2020-nearly a year before she was separated from Defendant. Plaintiff was expected to return to work in October of 2020, but later learned that she could not. She then made her second request for medical leave in October 2020, which extended her first leave beyond the expected initial five months. This second request was five months before she indicated that she was able to return to work and six months before she was separated from her employment with Defendant.
“The passage of time alone cannot provide proof of causation unless the ‘temporal proximity between an employer's knowledge of protected activity and an adverse employment action was ‘very close.'” Pascual v. Lowe's Home Centers, Inc., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam)). A period of five or six months as in this case is not “very close,” as found repeatedly by the courts. See Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 127 (4th Cir. 2021) (“Roberts' termination-three months after his last report of harassment-did not ‘closely follow' a protected activity, and thus does not present a circumstance that courts have characterized as creating a strong inference of retaliation”); Pascual, 193 Fed.Appx. at 233 (span of “at least three to four months” was “too long to establish a causal connection by temporal proximity alone”); Horne v. Reznick Fedder & Silverman, 154 Fed.Appx. 361, 364 (4th Cir. 2005) (holding absent other evidence of a causal relationship a lapse of two months between the protected activity and the adverse action is sufficiently long enough to weaken the inference of causation); Shields v. Fed. Exp. Corp., 120 Fed.Appx. 956, 963 (4th Cir. 2005) (holding that three to four months was insufficient temporal proximity); Griffin v. Am. Credit Acceptance LLC, C. A. No. 7:20-00544-TMC-JDA, 2021 WL 5827222, at *7 n.5 (D.S.C. May 11, 2021) (“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”), report and recommendation adopted, C. A. No. 7:20-CV-544-TMC, 2022 WL 168035 (D.S.C. Jan. 19, 2022).
Additionally, even if Plaintiff were to establish a prima facie case, she has failed to establish pretext. Plaintiff argues she can show pretext that the reason offered for her termination-that her shift was eliminated-is not true because Defendant's reasons offered for her termination allegedly shifted and Defendant lacks documentation. The court addresses each argument in turn below.
Defendant's legitimate, nondiscriminatory reason for terminating Plaintiff's employment was because she had exhausted all available leave and refused to accept an available position upon her release to return to work. [ECF No. 17-1 at 10]. However, Plaintiff has submitted evidence that must be taken in light most favorable to her at this stage of the litigation that she did not refuse to accept any position.
Plaintiff also argues that temporal proximity indicates pretext, an argument already addressed and rejected above.
a. Shifting Reasons
“Contradicting, shifting, and changing reasons are well-established grounds for the finding of pretext.” Shepherd v. Geo. W. Park Seed Co., C. A. No. 807-1184-WMC, 2008 WL 4065775, at *8 (D.S.C. Aug. 26, 2008); see also Alvarado v. Board of Trustees, 928 F.2d 118, 122 (4th Cir. 1991) (finding pretext where the plaintiff was told he was terminated because of a lack of work, but at trial the defendant maintained that the plaintiff was terminated for unsatisfactory job performance); E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001) (“the fact that Sears has offered different justifications at different times . . . is, in and of itself, probative of pretext”).
Plaintiff argues that Lea, Robinson, and Carter “all provide conflicting and shifting reasons for Plaintiff's medical leave of absence and termination and cannot point to a single position that was offered to Plaintiff.” [ECF No. 18 at 11]. However, the record does not support this argument that the reasons offered were conflicting and shifting. Instead, the record shows Lea, Robinson, and Carter each agreed that Plaintiff was administratively terminated [ECF No. 18-2 at 22:4-8, ECF No. 18-3 at 22:24-25, ECF No. 18-4 at 19:18-19] where her shift was eliminated.
Plaintiff argues otherwise, noting that Carter testified that Plaintiff “did not accept any of the-or I guess follow up with any of the openings that were offered to her”; Robinson testified “[s]he did not return because she failed to accept the offers” and “[s]he was terminated administratively, which is a term code within our process, due to failure to return from leave of absence”; and Lea testified that she was “not really sure” what administrative termination meant. [See ECF No. 18 at 11-14].
Although Plaintiff is correct the reasons offered include variances of language, these variances do not indicate contradicting, shifting, or changing reasons sufficient establish pretext. See, e.g., Shepherd, 2008 WL 4065775, at *8 (finding shifting reasons where defendant stated, at different times, plaintiff was terminated because it was “just not working out,” “purely part of an economic-based reorganization . . . which it now admits is false,” and because of performance); Sears Roebuck & Co., 243 F.3d at 850 (“Katsekes admitted that the reasons she gave to Cross, and that he in turn gave to the EEOC in 1997, for refusing to hire Santana in October 1996 were inaccurate”).
Plaintiff also argues that the April 6, 2021 email and Robinson's testimony concerning the email establish that “no position had been offered to Plaintiff” and that “Carter and/or Lea had done nothing to find a position for Plaintiff,” further indicating shifting reasons for Plaintiff's termination. [See ECF No. 18 at 13]. As discussed above, the testimony does not support Plaintiff's position.
Plaintiff additionally argues that “Defendant has provided no evidence to explain why Plaintiff was not able to return to her position in March 2021 when the full dissolution of the third shift was not completed until summer 2021.” [See ECF No. 18 at 14]. However, Lea addressed this issue, testifying as follows:
Q: So could Ms. White have worked that shift, at least for a few months, before all the patients stopped coming?
A: No.
Q: Why?
A: Because I no longer needed two patient care techs because we were under eight patient-eight patients. It was usually just five.
Q: So you only had one patient care tech working that shift?
A: That's correct.[ECF No. 18-2 at 27:23-28:8].
b. Lack of Documentation
Plaintiff also argues that “Defendant has provided no record evidence that alternative positions were offered to Plaintiff that she refused or that her position was actually eliminated other than the self-serving, contradicting testimony of Lea, Carter, and Robinson.” [ECF No. 18 at 15].
The court has addressed Plaintiff's arguments that these witnesses have offered contradictory testimony. In addition, Plaintiff has offered no evidence to dispute Defendant's evidence that her former position was eliminated, as consistently testified to by Defendant's witnesses.
Finally, case law offered to support her argument that additional documentation is needed consists of distinguishable cases from other jurisdictions. For example, Burton v. Freescale Semiconductor, Inc., dealt with a termination in which the employer's reason for termination was ongoing performance issues, yet the employer in that case presented insufficient documentation of the alleged ongoing issues. 798 F.3d 222, 240 (5th Cir. 2015) (“Here, the lack of documentation matters because the defendants charge Burton with a ‘history of performance problems' but can show only a pair of dated, neutral performance reviews, a single mistake, and (maybe) unauthorized use of the internet.”). In Sweat v. Miller Brewing Co., the Eleventh Circuit reversed the lower court's granting of summary judgment for the employer noting that the employee presented testimony from various employees of the company that her supervisor's criticisms were not factually supported, and that there was no evidence that the employee was ever warned, suspended, reprimanded, or relieved of any duties prior to her termination. 708 F.2d 655, 657 (11th Cir. 1983).
Plaintiff has failed to carry her burden to show pretext. Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to this claim.
2. ADA Retaliation Claim
To establish a prima facie ADA retaliation claim using the McDonnell Douglas burden-shifting framework, Plaintiff must show that (1) she engaged in protected conduct, (2) she suffered an adverse action, and (3) a causal link exists between the protected conduct and the adverse action. See Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 150 (4th Cir. 2012); A Soc'y Without a Name v. Commonwealth of Va., 655 F.3d 342, 350 (4th Cir. 2011).
As to this claim, Plaintiff argues her requests for accommodations were protected activities, she was not allowed to return to her position upon her return, and she was terminated instead. [ECF No.18 at 16]. To establish the third element of this claim, Plaintiff relies on temporal proximity, an argument already addressed and rejected by the court. Additionally, as with her discrimination claim, Plaintiff has failed to show pretext.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to this claim.
3. Promissory Estoppel Claim
In South Carolina the elements of promissory estoppel are: (1) the presence of a promise unambiguous on its terms; (2) reasonable reliance upon the promise by the party to whom the promise is made; (3) the reliance is expected and foreseeable by the party who makes the promise; and (4) the party to whom the promise is made must sustain injury in reliance on the promise. Woods v. State, 431 S.E.2d 260, 263 (S.C Ct. App. 1993).
The parties dispute whether South Carolina recognizes a claim for promissory estoppel in the employment context, but the court need not resolve this issue where Plaintiff has failed to present evidence of a promise made to her that was unambiguous on its terms. Although Plaintiff cites to her own testimony indicating that Lea promised her she could return to her position upon her return from medical leave [see ECF No. 18 at 20], Plaintiff fails to address the implication of her testimony that Lea also informed her also “if anything changes where I can't hold it [the position], then I'll call you.” [ECF No. 18-1 at 54:24-25]. Plaintiff further testified that, shortly thereafter, Lea and Plaintiff spoke, and Lea informed her that her position was no longer available. Id. at 59:19-24; see also, e.g., Rushing v. McKinney, 633 S.E.2d 917, 925 (S.C. Ct. App. 2006) (“Rushing's reliance on the alleged promise of McKinney and Block is unreasonable in light of the tension between the parties and the ambiguities of the alleged promise.”).
Defendant also argues:
According to White, she “endured” a second surgery-which she testified her doctor told her was medically necessary (White Dep., 54:7-19)-only because Lea allegedly promised to hold a position for her or told her to have the surgery. (Response, p. 19). A reasonable jury could not conclude that White would only undergo a medically necessary procedure-which was recommended by her doctor-because Lea either told her to get the surgery or because she was told that there would be a job held for her.[ECF No. 20 at 13].
Plaintiff also argues that she can base her claim for promissory estoppel on “Defendant[‘s] promise[ to] Plaintiff that it would try to locate another position for her.” [ECF No. 18 at 20]. However, Plaintiff has failed to offer evidence to dispute Defendant's evidence that efforts were made to locate another position for her.
Accordingly, the undersigned recommends the district judge grant
Defendant's motion for summary judgment as to this claim.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 17].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).