Opinion
CIVIL ACTION NO. 2:17-3012-DCN-BM
04-03-2019
Joey N. Blythe, Plaintiff, v. Harris Teeter, LLC, Defendant.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff asserting (1) a workers' compensation retaliation claim in violation of S.C. Code Ann. § 41-1-80 (First Cause of Action); (2) retaliatory discharge in violation of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, et. seq. (Second Cause of Action); (3) disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101-12213 (Third Cause of Action); (4) disability retaliation and coercion in violation of the ADA, 42 U.S.C. § 12203 (Fourth Cause of Action); and (5) age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626, et seq. (Fifth Cause of Action). Plaintiff seeks monetary damages and injunctive relief. See generally, Complaint.
The Defendant has filed a motion for summary judgment, asserting that all of Plaintiff's claims are without merit, and Plaintiff has filed a memorandum in opposition to the Defendant's motion. In Plaintiff's response in opposition to summary judgment, he concedes that he cannot establish his workers' compensation retaliation claim (First Cause of Action), his retaliatory discharge in violation of the Family and Medical Leave Act claim (Second Cause of Action); and his disability discrimination in violation of the Americans with Disabilities Act claim (Third Cause of Action). Therefore, those causes of action are no longer before the Court and should be dismissed.
Defendant's motion as to the Plaintiff's remaining two claims is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C. The Defendant has filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background and Evidence
The facts and evidence are considered and discussed in this Report and Recommendation in the light most favorable to the Plaintiff, the party opposing summary judgment. Pittman v. Nelms, 87 F.3d 116, 118 (4th Cir. 1996).
Plaintiff was hired by the Defendant as a dairy clerk in 1978. See Plaintiff's Deposition, pp. 18-19. Over the next ten years, Plaintiff began a meat cutting training program that eventually led to his employment as the market manager in Defendant's meat department. See Plaintiff's Deposition, pp. 20-24. For several years, he worked as a meat manager in the Defendant's stores in the Myrtle Beach area, where he has resided for the last thirty-seven years. See Plaintiff's Deposition, pp. 14, 24, 29. Upon the closure of all of the Harris Teeter stores in Myrtle Beach, Plaintiff was offered a position at one of Defendant's stores in Charleston, South Carolina. See Plaintiff's Deposition, p. 32. Plaintiff accepted the position on July 11, 2001, but did not move to Charleston. Rather, he commuted every day from his home in Myrtle Beach. See Plaintiff's Deposition, pp. 35, 210-211. Plaintiff's most recent and final transfer occurred on August 15, 2001, from the Harris Teeter store on Long Point Road to Store #277 on East Bay Street, where Plaintiff's wife also worked. See Plaintiff's Deposition Exhibit 2. During all times relevant to his Complaint, Sean Bagwell was the store manager at the East Bay store location where Plaintiff worked as his market manager. See Plaintiff's Deposition, p. 36; Bagwell Deposition, p. 11, 17.
On March 23, 2015, Plaintiff injured his back picking up a box of New York strips while he was working. See Plaintiff's Deposition, pp. 72-73. The next morning, Plaintiff went to Doctor's Care in Surfside Beach and was placed on a "no work" status for one week. See Plaintiff's Deposition, pp. 77-78, 83-84; See Plaintiff's Deposition Exhibit 14. Later that day, Plaintiff was informed that he needed to see a workers' compensation doctor in Charleston. See Plaintiff's Deposition, p. 79. Plaintiff saw Dr. Emily Mika at Concentra, and she issued numerous restrictions for him, including no driving for prolonged periods of time (less than 20-30 minutes) and no sitting longer than 20 minutes. See Plaintiff's Deposition Exhibit 15. Dr. Mika also held Plaintiff out of work for a week and referred him to physical therapy near his home. See Plaintiff's Deposition, p. 88. Dr. Mika contacted Bagwell, whom she noted on her report would contact the corporate office to get permission for Plaintiff to do physical therapy closer to his home so he could avoid long periods of time in the car. See Plaintiff's Deposition, pp.88-89; See Plaintiff's Deposition Exhibit 15.
On March 25, 2015, Plaintiff spoke to Bagwell, informed him of his injury, provided him with his doctor's notes, and filed a workers' compensation claim. See Plaintiff's Deposition, pp. 77-78, 87, 216; See Plaintiff's Deposition Exhibit 17. Plaintiff testified that Bagwell threatened him when he discussed filing a workers' compensation claim. See Plaintiff's Deposition, pp. 77-78, 87, 216. Plaintiff also testified that Bagwell asked him to wait to file the workers' compensation claim, explaining that it would come out of their bonuses. See Plaintiff's Deposition, p. 186. Plaintiff testified that he told Bagwell that he wanted to come back to work on "light duty" and would stay with his brother-in-law (who lived in Charleston) a couple of days a week to see how his back reacted to light duty. However, Plaintiff testified that Bagwell told him there was no light duty available. See Plaintiff's Deposition, pp. 208-209, 217.
The Defendant's Risk Management associate, Marie Nichols, informed Gallagher Bassett (the third -party administrator that handled Defendant's worker compensation claims) of Plaintiff's workers' compensation claim and that the Defendant could accommodate Plaintiff's restrictions for lifting, but that there was no store in the area where he lived so he would have a significant drive. See Plaintiff's Deposition, pp. 205-206; Plaintiff's Deposition, Exhibit 18. Since Plaintiff lived in Myrtle Beach, where there are no stores, his drive time would have been around two to two and a half hours to the store where he could work. See Plaintiff's Deposition, pp. 210-211; Plaintiff's Deposition Exhibit 18. Plaintiff testified he then requested a medical leave of absence due to the Defendant's refusal to accommodate his condition - specifically a "light duty" assignment. See Plaintiff's Deposition, p. 113. Plaintiff also alleges that Bagwell continued to tell Plaintiff there were no light duty jobs available for the Plaintiff, despite numerous meat market employees being provided "light duty" status over the years. See Livengood Deposition, p. 19; Bagwell Deposition, p. 27.
Plaintiff argues, however, that the Defendant had a store in Florence that was significantly closer to Plaintiff's home than the Charleston store, but that the Defendant refused to allow him to work there. When Plaintiff was asked exactly what he conveyed to the managers about working in another store such as Florence, Plaintiff testified that he told them that they had a store about an hour and ten minutes from his house in Leland. However, although closer, since Plaintiff also conceded that he could not drive more than twenty or thirty minutes pursuant to his medical restrictions at that time, he would also have been precluded from being able to drive to the Florence store. See Plaintiff's Deposition, pp. 212-213.
Beginning at the end of June through early July 2015, Plaintiff attended several medical appointments wherein he afterwards would always inform Bagwell of his status and continued to request "light duty". Shortly thereafter, Bagwell called Plaintiff to let him know his position was being posted; see Plaintiff's Deposition, pp. 145-146; following which Plaintiff's position was filled by Shannon Wrenn, a younger, market manager trainer. It is undisputed that in this position, Wren was paid more than Plaintiff's last pay rate at that position. See Plaintiff's Deposition Exhibits 2 and 40; see also Plaintiff's Deposition, pp. 47, 171, 338. However, Plaintiff conceded that prior to replacing Plaintiff, Wren had already been earning more in his prior position as a trainer than Plaintiff made at the time he was injured. See Plaintiff's Deposition, p. 339.
Plaintiff refers to Wrenn as a less-qualified "trainee" in his brief. However, Wrenn was a former market manager "trainer". See Plaintiff's Deposition, Exhibit 40
Plaintiff contends that after numerous delays in treatment by the Defendant's workers' compensation company, he was terminated in May 2016 when he reached 52 weeks of leave. See Plaintiff's Deposition, p. 227. After receiving a Right to Sue letter from the EEOC, Plaintiff filed this lawsuit.
Discussion
The Defendant has moved for summary judgment on both of Plaintiff's remaining claims. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, to avoid summary judgment the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992).
Here, after careful review and consideration of the arguments and evidence presented, the undersigned finds and concludes for the reasons set forth hereinbelow that the Defendant is entitled to summary judgment in this case.
(Disparate Treatment Claim)
In his disparate treatment claim, Plaintiff asserts that he was discriminated against on account of his age in violation of the ADEA when he was terminated from his position. See generally, Plaintiff's Fifth Cause of Action. This claim requires proof of intentional discrimination, either by direct evidence or by the structured analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Although McDonnell Douglas is a Title VII case, the standards applicable to lawsuits filed under the ADEA are also evaluated under the same standards as discrimination claims asserted under Title VII. Brennan v. Metropolitan Opera Ass'n Inc., 192 F.3d 310, 316 (2d Cir. 1996) ["The same standards govern disparate treatment claims arising under either Title VII or the ADEA."]; Loveless v. Sherwin-Williams Co., 681 F.2d 230, 238 (4th Cir. 1982).
Plaintiff first contends that he has direct evidence of age discrimination. Specifically, Plaintiff contends that the Defendant's employees made age-related comments regarding the Plaintiff on at least three occasions; i.e. that he was told by three of his co-workers that his supervisor, Sean Bagwell, said he was going to "get rid of [his] old ass." See Plaintiff's Deposition, pp. 46-47, 246-248. However, while Plaintiff contends that Bagwell made this statement to his co-workers, Plaintiff has not submitted any evidence from the three people he contends allegedly heard this remark directly from Bagwell, confirming that they did. Accordingly, this testimony does not support Plaintiff's claim, as it constitutes substantively inadmissible hearsay. See Junfei Li v. Univ. of Texas Rio Grande Valley, No. 15-0534, 2018 WL 706472, at *6 (S.D. Tex. Feb. 2, 2018), appeal dismissed sub nom. Junfei Li v. Bailey, No. 18-40204, 2018 WL 4242264 (5th Cir. Apr. 9, 2018)[Finding that proffered direct evidence of discrimination was not cognizable because it was substantively inadmissible hearsay with no obvious exception.]. Plaintiff concedes that Bagwell never personally said or did anything to him to lead him to believe that he had issues with people over forty. See Plaintiff's Deposition, pp. 47, 62-64. Therefore, Plaintiff has failed to submit any probative direct evidence that Bagwell had an age animus, either as to Plaintiff specifically or in general.
Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact without any inferences or presumptions. O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 548-549 (4th Cir. 1995), rev'd on other grounds, 517 U.S. 308 (1996); Black's Law Dictionary, 460 (6th Ed. 1990) (citing State v. McClure, 504 S.W.2d 664, 668 (Mo.Ct.App. 1974)); see Williams v. General Motors Corp, 656 F.2d 120, 130 (5th Cir. 1981), cert. denied, 455 U.S. 943 (1982).
In contrast, Andrew Livengood (one of the three employees identified by the Plaintiff) testified that Plaintiff was his supervisor at Harris Teeter, and that he never felt like Bagwell or the Defendant were targeting the Plaintiff. See Livengood Deposition, pp. 12, 15. Livengood also testified that he never heard Bagwell or any other employee call Plaintiff old. See Livengood Deposition, pp. 15-16. Moreover, although Plaintiff also testified that he had text messages supporting his claim that the Defendant's employees told him Bagwell made this statement; see Plaintiff's Deposition, pp. 245-248; Plaintiff has failed to identify any text messages in his brief that contain these alleged comments. For his part, Bagwell testified that he never referred to Plaintiff as an "old ass" and was unaware of anyone indicating that he had done so. See Bagwell Deposition, pp. 29, 42, 44-45.
Plaintiff also argues that he has other direct evidence of age discrimination consisting of other employees referring to him as "old", and that Greg Daniels, a former employee of the Defendant, sent him a text message referring to him as "old." However, Plaintiff's text message from Daniels reads, "Good luck at the doctor's office this morning, old man", and while Plaintiff now submits Daniels' comment as evidence of age discrimination, Plaintiff testified in his deposition that he believed Daniels used this phrase just to lighten things up a little bit, that Daniels was one of his former reports who was his friend and like a son. Moreover, Plaintiff testified that was the only time Daniels had called him "old man." See Plaintiff's Deposition, pp. 247, 299-300, 307; see also Monaco v. Fuddruckers, Inc., 1 F.3d 658, 660 (7th Cir. 1993)[supervisor's age-based remarks insufficient to preclude summary judgment for the employer absent a showing that they were "related to the employment decision in question"]. This text message is not direct evidence that Plaintiff was terminated because of age discrimination. As for Plaintiff's remaining claim that other employees called him "old", Plaintiff does not cite the Court to any evidence in the record where other employees called him old or made similar type comments. See Carmen v. San Fran. United Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) [The Court is "not required to comb through the record to find some reason to deny a motion for summary judgment"] (quotation omitted). Therefore, the undersigned does not find that Plaintiff has submitted any direct evidence of age discrimination.
Despite the Court not having a responsibility to comb through the record to find evidence to support Plaintiff's claims, a sua sponte review of the record by the undersigned shows that Plaintiff did testify at one point in his deposition, "I told you they called me 'old' and 'fat' . . . . See Plaintiff's Deposition, p. 299. However, that testimony provides no specifics or context, no indication of who Plaintiff is referring to, or when any such statements allegedly were made. When further searching through Plaintiff's testimony in his deposition on this issue, Plaintiff's deposition index reflects that prior to this testimony on page 299, the word "old" appears on pages 23, 47, 80, 166, 171, 222, 246-247, 261, 267, 282, and 290. However, a review of those pages does not reveal any allegations by the Plaintiff of Defendant's employees calling Plaintiff "old", other than the alleged comment by Bagwell, who Plaintiff alleges said that he wanted to get rid of his "old ass", and Daniels' isolated comment which Plaintiff himself stated was made in jest. See discussion, supra.
In the alternative, Plaintiff argues that he can prove his claim under the McDonnell Douglas standard. To survive summary judgment under this standard, Plaintiff must have circumstantial evidence sufficient to create a genuine issue of fact as to whether his termination occurred because of his age. The United States Supreme Court articulated a three-part formula for analyzing discrimination cases in McDonnell Douglas. First, Plaintiff must establish a prima facie case of discrimination. If a prima facie case is established, a rebuttable presumption is created that the Defendant unlawfully discriminated against him. Second, once this presumption has been established, the burden of production shifts to the Defendant to show a legitimate, non-discriminatory reason for its actions. Third, if the Defendant shows a legitimate, non-discriminatory reason for its actions, the burden is then on the Plaintiff to come forward with evidence that the Defendant's asserted reasons for its actions are a mere pretext for its true discriminatory motives, and that the actions of the Defendant were really based on (in this case) Plaintiff's age. McDonnell Douglas Corp., 411 U.S. at 802-805; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981); Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 234-235 (4th Cir. 1991).
Plaintiff's ADEA claim is not subject to a mixed-motive analysis, which is another way of looking at circumstantial evidence. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 174 (2009) [mixed motive analysis not applicable to age claims under ADEA].
Despite these shifting burdens of production, Plaintiff retains the ultimate burden of persuasion on the issue of discrimination throughout. Texas Dep't of Community Affairs, 450 U.S. at 252-253; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
Prima facie. In order to meet the first prong of the McDonnell Douglas formula and establish his prima facie case of age discrimination, Plaintiff must show (1) that he is a member of a protected class; (2) that he was performing his job satisfactorily; (3) that he was subjected to an adverse employment action; and (4) that he was replaced by someone from outside of his protected class, or there is some other evidence giving rise to an inference of unlawful discrimination. See generally, Austen v. HCA Health Services of Virginia, Inc., No. 00-2359, 2001 WL 242203 at **1 (4th Cir. Mar. 12, 2001); Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995), cert. denied, 516 U.S. 870 (1995). See also Gilbert v. Penn-Wheeling Closure Corp., 917 F.Supp. 1119 (N.D.W.Va. 1996). Here, it is undisputed that Plaintiff is a member of a protected class [over forty years of age], that he was performing his job satisfactorily prior to his accident, that he was subjected to an adverse employment action when he was discharged, and that he was replaced by an individual twelve years younger than him. As such, Defendant does not challenge that Plaintiff has established his prima facie case for purposes of summary judgment. See Defendant's Memorandum in Support of Summary Judgment, p. 24. Therefore, Plaintiff has established his prima facie case.
At the time of his termination, Plaintiff was 57 years old. See Court Docket No. 28-3, p. 2.
Legitimate, non-discriminatory reason. The evidence before the Court reflects that the Defendant has set forth a legitimate, non-discriminatory reason for the action taken. Specifically, the Defendant has submitted evidence to show that Plaintiff was terminated in accordance with its leave of absence policy because he was unable to return to work after being out for more than 12 months due to a continuing disability. See Plaintiff's Deposition Exhibits 2 and 6. Bagwell also testified that Plaintiff was terminated after he exhausted his 52 weeks of leave. See Bagwell Deposition, pp. 20-21.
This evidence is sufficient to establish a legitimate, non-discriminatory reason for the Defendant's actions. See EEOC v. Clay Printing Co., 955 F.2d 936, 941 (4th Cir. 1991) [The Defendant's burden of establishing a legitimate, non-discriminatory reason is only one of production, not of persuasion]. Therefore, Plaintiff must present evidence sufficient to create a genuine issue of fact that this reason is mere pretext offered by the Defendant to hide a true discriminatory motive in order to avoid summary judgment.
Pretext. In order to establish pretext, Plaintiff must show that "but for" the Defendant's intent to discriminate against him because of his age, he would not have been subjected to the employment action at issue. EEOC, 955 F.2d at 941; Conkwright, 933 F.2d at 234. "Direct or indirect evidence of discriminatory motive may do, but 'the evidence as a whole... must be sufficient for a reasonable fact-finder to infer that the employer's decision was motivated by [age animus].'" LeBlanc v. Great American Insurance Co., 6 F.3d 836, 843 (1st Cir. 1993), citing Goldman v. First Nat'l Bank, 985 F.2d 1113, 1117 (1st Cir. 1993)(quoting Connell v. Bank of Boston, 924 F.2d 1169, 1172, n. 3 (1st Cir. 1991), cert. denied, 111 S.Ct. 2828 (1991)); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-143 (2000). Here, even when considered in the light most favorable to the Plaintiff, the evidence fails to provide any inference that the Defendant's decision to terminate Plaintiff's employment was motivated by an anti-age bias or animus.
First, the records shows that, prior to his accident, Plaintiff had received exceptional evaluations from the Defendant. See Court Docket No. 28-3, pp. 15-19. As such, these records show no evidence of age bias, or that the Defendant would have had (or was looking for) a reason to terminate Plaintiff because of his age. Further, while Plaintiff was replaced in his job by a younger individual (even though that individual was also over forty), that fact alone does not establish Plaintiff's discrimination claim, for if it did, then employers would be subject to liability anytime a younger person assumes a job previously held by someone older. See Tusing v. Des Moines Independent Community School Dist., 639 F.3d 507, 517 (8th Cir. 2011)(citing Thomas v. Corwin, 483 F.3d507 (8th Cir. 2007)[Finding that Plaintiff could not show employer's reasons for her termination were a pretext for age discrimination where Plaintiff's only evidence was that she was replaced by someone younger.]); Nichols v. Caroline County Bd. of Educ., 123 F.Supp.2d 320, 327 (D.Md. 2000)[Plaintiff's contention that he was subjected to an adverse employment action "because I am who I am" insufficient to establish claim for discrimination]; Gairola v. Virginia Dep't of General Services, 753 F.2d 1281, 1288, n. 4 (4th Cir. 1985) [a case should be dismissed "...when the only evidence in support of the plaintiff's...case is based on unfounded conjecture...that [his] disfavorable treatment was the result of discrimination...."]. Rather, in order to show pretext, Plaintiff must have some evidence to create an issue of fact that the reason the Defendant decided to terminate him and hire Wrenn was because of Plaintiff's age. There is no such evidence.
Plaintiff's main arguments for pretext in the Defendant's decision making are his assertions that the Defendant offered younger employees light work opportunities, did not allow him to work in the Florence store, and did not accept his willingness to stay with his brother-in-law in Charleston to work. However, none of these allegations constitutes evidence sufficient to establish a genuine issue of fact as to whether Defendant's decision to terminate Plaintiff was based on, or had anything to do with, Plaintiff's age. Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) [A party opposing summary judgment "cannot create a general issue of fact through mere speculation or by the building of one inference upon another."]; see also DiMaso v. Duo-Fast Corp., No. 88- 1661, 1990 WL 165326, at *5 (N.D.Ill. Oct. 25, 1990)["Isolated and ambiguous statements, as a matter of law, are too abstract to support a finding of age discrimination"]; order vacated on reconsideration on other grounds by, 1990 WL 205818 (N.D. Ill. Dec. 4, 1990); O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 548-549 (4th Cir. 1995)["Isolated and ambiguous statements . . . 'are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination . . . .'"], rev'd on other grounds, 517 U.S. 308 (1996) (quoting Gagne v. Northwestern Nat'l. Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989)); Causey v. Balog, 162 F.3d 795, 801-802 (4th Cir. 1998) [conclusory statements, without specific evidentiary support, do not support a claim for discrimination]. Indeed, Plaintiff himself testified that he was not aware of anyone else employed by the Defendant that was unable to return to work within one year and for whom the Defendant made an exception and did not terminate his or her employment. See Plaintiff's Deposition, p. 165.
However, Plaintiff has provided no facts or evidence, such as the names of these younger employees or what accommodations were provided and under what circumstances, to support this general and conclusory statement. In his brief, Plaintiff cites to Bagwell's deposition, at p. 27, and Livengood's deposition, at p. 19, to support this claim. However, Bagwell merely testified that there are certain forms of light work that are available at Harris Teeter stores. See Bagwell Deposition, pp. 27-28. He did not identify any younger employees who had been given such employment opportunities while Plaintiff was not. In fact, he testified that Plaintiff had never indicated to him that he had been cleared for light duty work. Id. As for Livengood, he also testified that there is some light duty work available at the Defendant's stores, and that he had even done some light duty work himself for a while twelve or thirteen years earlier, after he had had some surgery. See Livengood Deposition, pp. 19-20. However, this testimony is not evidence that Bagwell (or anyone else) denied Plaintiff the opportunity to do some light work due to his age in 2015-2016, or that this was the reason he was terminated. House v. New Castle County, 824 F.Supp. 477, 485 (D.Md. 1993) [Plaintiff's conclusory allegations insufficient to maintain claim].
As previously noted, this argument does not support Plaintiff's claim because it has nothing to do with Plaintiff's age, and in any event Plaintiff has not explained how he even would have been able to work in the Florence store since the drive from his home to the Florence store was over double his medical driving restrictions time limit. See Plaintiff's Deposition, pp. 212-213.
There is nothing in the evidence to show that the Defendant exercised any "veto" over where Plaintiff lived. The Defendant's evidence is that Plaintiff could have worked at a light duty job in Charleston (if he had been cleared by his doctors to work), but that Plaintiff did not work this job because he lived in Myrtle Beach. Although Plaintiff's testimony that Bagwell told him the Defendant had no light duty work for him is contested by the Defendant, the undersigned has nonetheless accepted Plaintiff's testimony as to what Bagwell allegedly told him to be true for purposes of summary judgment. Even so, there is no indication in this evidence that Bagwell's alleged statements had anything to do with Plaintiff's age.
In sum, Plaintiff has failed to provide evidence sufficient to give rise to a genuine issue of fact that the reason he was terminated was because of his age. As noted, Plaintiff had previously received exceptional evaluations, and there is no probative evidence that the Defendant's decisionmakers (and/or employees) ever indicated they had any problems with Plaintiff's age or had ever made any comments or given any indication to anyone or in any document that Plaintiff's age was a factor in the decision to terminate Plaintiff when Plaintiff could not return to his duties after a one year leave of absence. As such, other than Plaintiff's own speculation, there is no evidence that the Defendant's decision to terminate Plaintiff's employment (whether justified or not) had any age based motivation whatsoever. Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 680 (7th Cir. 1997) ["Discrimination statutes allow employers to discharge employees for almost any reason whatsoever (even a mistaken but honest belief) as long as the reason is not illegal discrimination. Thus when an employee is discharged because of an employer's honest mistake, federal anti-discrimination laws offer no protection."]; Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998); cf. Rudolph v. Hechinger, 884 F.Supp. 184, 188 (D.Md. 1995) ["Title VII(does) not protect against unfair business decisions - only against decisions motivated by unlawful animus"], citing Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir. 1977). Although Plaintiff may sincerely believe that he was discharged because of his age, Plaintiff's own conclusory and self serving belief, no matter how heartfelt, is simply not sufficient absent any supporting evidence to defeat the Defendant's motion for summary judgment. Cook v. CSK Transp. Corp., 988 F.2d 507, 513 (4th Cir. 1993) ["[U]nsupported allegations do not establish a prima facie case of [ ] discrimination...."]; see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) [there must be evidence on which a jury could reasonably find for the Plaintiff]; Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) ["unsubstantiated allegations" are insufficient to defeat summary judgment]; cf. Boden v. U.S. Amada Ltd., 978 F.Supp. 657, 659 (E.D.N.C. 1997) [former employee's own subjective belief and conclusory statements that he had been discriminated against are not sufficient to raise reasonable inference of unlawful discrimination]; Hawkins v. Pepsico, Inc., 203 F.3d 274, 281 (4th Cir. 2000) [affirming grant of summary judgment to the employer where the employee did not "show that...[the] problems were [age based] in nature"]; Yarnevic v. Brink's Inc., 102 F.3d 753, 757-758 (4th Cir. 1996) [holding that remote inferences and conclusory allegations cannot defeat summary judgment].
As previously discussed with regard to Bagwell's alleged "old ass" comment, Plaintiff's "evidence" is inadmissible hearsay. Moreover, Plaintiff and Bagwell both testified that Bagwell was not the decisionmaker in Plaintiff's termination, and Bagwell further testified that he was also not involved in the decision to terminate the Plaintiff. See Plaintiff's Deposition, p. 234; Bagwell Deposition, p. 46. For the reasons already stated, Plaintiff's testimony about Daniels' text message to him being evidence of age discrimination also fails to support his claim. See discussion, supra.
Therefore, Plaintiff having failed to present evidence sufficient to give rise to a genuine issue of fact with respect to pretext in the Defendant's decision making, the Defendant is entitled to summary judgment on this claim. Gairola, 753 F.2d at 1288, n. 4 [a case should be dismissed "...when the only evidence in support of the plaintiff's...case is based on unfounded conjecture...that [his] disfavorable treatment was the result of discrimination...."].
(ADA Retaliation Claim)
Plaintiff's ADA retaliation claim is asserted under § 503(a) of the ADA, 42 U.S.C. § 12203(a), which provides as follows:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.Retaliation cases under the ADA are subject to the same requirements of proof as are applicable to Title VII disparate treatment claims. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985); see also Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).
Under this proof scheme, the employee is initially required to establish a prima facie case of retaliation by a preponderance of the evidence. This prima facie case consists of three elements: (1) the employee engaged in protected activity; (2) the employer took an adverse employment action against the employee; and (3) a causal connection exists between the protected activity and the adverse action. Reynolds v. American Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012)[ADA claim]; Freilich v. Upper Chesapeake Health, Inc Co., 313 F.3d 205, 216 (4th Cir. 2005); Harmer v. Virginia Elec. and Power Co., 831 F.Supp. 1300, 1308 (E.D.Va. 1993). Once a prima facie case has been presented, the Defendant employer has the burden of producing a legitimate, non-discriminatory reason for its actions. If the employer can produce a legitimate, non-discriminatory reason for its actions, the employee must then demonstrate that the Defendant's proffered reason is pretextural. Harmer, 831 F.Supp. at 1308; see also Graves v. Bank of America, 54 F.Supp.3d 434, 443 (M.D.N.C. 2014).
Prima facie case. Plaintiff argues that he engaged in protected activity by requesting an accommodation for his disability. Solomon v. Vilsack, 763 F.3d 1, 15 n. 6 (D.C.Cir. 2014)[citing rulings from every federal judicial circuit that requests for reasonable accommodations are protected activity]. Specifically, Plaintiff testified that he wanted to work light duty work and that he told Bagwell that he could stay with his brother-in-law in Charleston to alleviate the need for him to drive. See Plaintiff's Deposition, pp. 208-209, 217. Viewed in the light most favorable to the Plaintiff, this evidence is sufficient for purposes of summary judgment to establish that Plaintiff engaged in protected activity by requesting an accommodation for his disability. Plaintiff also suffered an adverse employment action when he was terminated.
However, Defendant argues that even assuming Plaintiff has established the first two prongs of his prima facie case, he has presented no evidence to establish the necessary causal connection between these two events. The undersigned agrees. While the undersigned has given every possible inference from this testimony to Plaintiff's favor (including Plaintiff's testimony that Bagwell told him there was no light work available), the undersigned is nonetheless constrained to note that, when Plaintiff was asked why he did not move to Charleston to work light duty, Plaintiff testified that it was because his doctors would not let him. See Plaintiff's Deposition, pp. 207-209. Hence, Plaintiff's assertion that his termination was a result of the Defendant refusing to accommodate his request to be allowed to work light duty work in Charleston is undermined by his own testimony. In any event, even assuming Plaintiff's testimony that he nonetheless requested light duty work from the Defendant to be true, there is also no evidence to show that Plaintiff having requested some light duty work in 2015 was why he was terminated in 2016. Dowe v. Total Action Against Poverty in Roanoke, 145 F.3d 653, 657 (4th Cir. 1998)[Plaintiff must proffer evidence sufficient to create a genuine issue of fact that his employer "[took] the adverse employment action[s] because [he] engaged in a protected activity."]. Therefore, Plaintiff has failed to establish a prima facie case of retaliation.
Plaintiff's medical records confirm that he had been marked down for "no work" by his medical providers. This evidence also does not show that he was ever cleared by his doctors to return to work. See generally, Plaintiff's Deposition, Exhibits 14-15, 18-22, 27-36.
This is not a failure to accommodate claim, which is evaluated under a different standard. See Reyazuddin v. Montgomery County, Maryland, 789 F.3d 407, 414-416 (4th Cir. 2015); Wilson v. Dollar General Corp., 717 F.3d 337, 345 (4th Cir. 2013); Donaldson v. Clover School District, No. 15-1768, 2017 WL 4173596 at * 3 (D.S.C. Sept. 21, 2017).
Legitimate, non-discriminatory reason. Further, even assuming Plaintiff's testimony and evidence is sufficient to establish (for purposes of summary judgment) the elements of his prima facie case, as previously discussed, the evidence also establishes that the Defendant had a legitimate, non-discriminatory reason for Plaintiff's termination. See discussion, supra; see also EEOC, 955 F.2d at 941 [The defendant's burden of establishing a legitimate, non-discriminatory reason is only one of production, not of persuasion]. Therefore, to survive summary judgment on his retaliation claim, Plaintiff must have evidence of pretext in the Defendant's decision to allegedly terminate him.
Pretext. In order to show pretext, Plaintiff must show that "but for" the Defendant's intent to retaliate against him because he engaged in protected activity, he would not have been terminated. EEOC, 955 F.2d at 941; Melendez v. Board of Education for Montgomery County, ___ Fed.Appx. ___, 2017 WL 4512169 at * 3 (4th Cir. Oct. 10, 2017) [Retaliation claims are proved according to traditional principles of but-for causation.]; Conkwright, 933 F.2d at 234-235. As before, "[d]irect or indirect evidence of discriminatory motive may do, but 'the evidence as a whole... must be sufficient for a reasonable fact-finder to infer that the employer's decision was motivated by [retaliatory animus].'" LeBlanc, 6 F.3d at 843; Reeves, 530 U.S. at 141-143. Indeed, Plaintiff himself acknowledges that his proof of causation ultimately requires proof that his protected activity was "more than a motivating factor", but was instead "the only motivating factor." See Plaintiff's Memorandum in Opposition to Summary Judgment, p. 10, citing Davis v. W. Carolina Univ., 695 Fed.Appx. 686, 688 (4th Cir. 2017).
While Plaintiff contends that he told Bagwell on multiple occasions that he could stay with a relative in Charleston to be near the store to work light work (which Bagwell disputes), Plaintiff has not shown any connection between his conversation with Bagwell about this request and his termination. Both Plaintiff and Bagwell testified that Bagwell was not even the decisionmaker in Plaintiff's 2016 termination. See Plaintiff's Deposition, p. 234; Bagwell Deposition, p. 46. Further, there is ample evidence in the record that the reason Plaintiff was terminated was because he was unable to return to work after over a year of being out on a leave of absence. Plaintiff has not presented any evidence with respect to the question of pretext to show that the Defendant's legitimate, non-discriminatory reason was false, that his termination was not in accord with the Defendant's leave policy, or that the real reason the Defendant terminated him was because he had requested an accommodation for his disability the previous year. See Plaintiff's Deposition, pp. 118, 177-178; Plaintiff's Deposition, Exhibits 2, 6, 26, 34. See also House, 824 F.Supp. at 485 [Plaintiff's conclusory allegations insufficient to maintain claim].
Bagwell testified that Plaintiff never indicated to him that he could perform light work duty, nor did he indicate that he had family in the Charleston area who he could stay with to alleviate the travel concerns. See Bagwell Deposition, pp. 26-27, 36. Bagwell also testified that he did not recall Plaintiff ever requesting to work at the Florence store. See Bagwell Deposition, pp. 54-55. However, viewing the evidence in the light most favorable to the Plaintiff for purposes of summary judgment, the undersigned has assumed that Plaintiff did tell Bagwell this information regarding light duty work and having a relative who lived in the Charleston area.
As with Plaintiff's ADEA claim, even if (as argued by the Plaintiff) the Defendant was wrong to have terminated him because he could not return from his medical leave of absence, treated plaintiff unfairly, or was simply incorrect in its findings and decision, that is not evidence of ADA retaliation discrimination. See Kariotis, 131 F.3d at 680 ["Discrimination statutes allow employers to discharge employees for almost any reason whatsoever (even a mistaken but honest belief) as long as the reason is not illegal discrimination. Thus when an employee is discharged because of an employer's honest mistake, federal anti-discrimination laws offer no protection."]; Dowe, 145 F.3d at 657. Whether this was the right decision for the Defendant to have made under the circumstances is not for this Court to determine, as the only question before this Court is whether there is any evidence sufficient to present a genuine factual issue that Plaintiff's discharge was because of retaliatory conduct due to his request for an accommodation under the ADA. Cf. Rudolph, 884 F.Supp. at 188 ["Title VII (does) not protect against unfair business decisions - only against decisions motivated by unlawful animus"], citing Turner, 555 F.2d at 1257; Colbert v. Tapella, 677 F.Supp. 2d 289, 295 (D.D.C. 2010)(quoting Hairsine v. James, 517 F.Supp.2d 301, 308-309 (D.D.C. 2007) ["[T]he scope of review in employment discrimination cases is more narrow than [Plaintiff] wishes because federal courts are not review boards for local employment decisions . . . . A personnel decision can be silly, it can be unfair, and it can be short-sighted without being illegal; Title VII protects discriminatory decisions, not wrong ones."]). There is no such evidence.
Therefore, Plaintiff having failed to establish a genuine issue of fact with respect to this essential element of his ADA retaliation claim, this claim should be dismissed. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ["Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."]; Baber, 977 F.2d at 574-875 [Once the moving party submits evidence showing entitlement to summary judgment, to avoid summary judgment the party opposing the motion must respond with specific facts showing there is a genuine issue for trial].
Conclusion
As previously discussed, Plaintiff concedes he cannot establish his workers' compensation retaliation claim (First Cause of Action), his retaliatory discharge in violation of the Family Medical Leave Act claim (Second Cause of Action); and his disability discrimination in violation of the Americans with Disabilities Act claim (Third Cause of Action). Therefore, those causes of action are no longer before the Court and should be dismissed.
As for Plaintiff's remaining two claims, based on the foregoing, it is recommended that the Defendant's motion for summary judgment to dismiss Plaintiff's claims under the ADEA (Fourth Cause of Action) and for ADA retaliation (Fifth Cause of Action) be granted, and that this case be dismissed.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge April 3, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).