Opinion
C. A. 20-747-JFA-PJG
05-24-2021
Roger Bradley, Plaintiff, v. Guardian Industries; Guardian Glass, LLC, Defendants.
REPORT AND RECOMMENDATION
Paige J. Gossett, UNITED STATES MAGISTRATE JUDGE
Plaintiff Roger Bradley filed this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., against his current employer and a related entity.This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' motion for summary judgment. (ECF No. 22.) Bradley filed a response in opposition (ECF No. 24), and the defendants replied (ECF No. 25). Having reviewed the parties' submissions and the applicable law, the court finds that the defendants' motion should be granted.
Bradley does not dispute the defendants' assertion that Guardian Industries does not employ Bradley. (Def.'s Mem. Supp. Summ. J., ECF No. 22-1 at 1; Def.'s Answers to Local Rule Interrog. Resps., ECF No. 7.) See Local Civ. Rule 26.02(E) (D.S.C.) (“Responses pursuant to Local Civ. Rules 26.01, 26.03 (D.S.C.) may be relied on and used in the same manner as discovery responses obtained under the Federal Rules of Civil Procedure.”). Therefore, Guardian Industries is entitled to summary judgment on Bradley's Title VII claims. See 42 U.S.C. §§ 2000e-2(a), 2000e(b) (providing that Title VII's prohibition on discrimination applies only to “employers” and defining the term).
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to Bradley, to the extent they find support in the record. Bradley works at Guardian Glass, LLC (“Guardian Glass”) as a maintenance technician at its plant in Richburg, South Carolina. Bradley was originally hired in April 2016 by maintenance supervisor Keith Bertling and assigned to work on one of four crews at the plant-“C-Crew, ” which was supervised by Eddie Oliver. Bradley is African American and Bertling and Oliver are Caucasian.
Guardian Glass maintains a Code of Conduct for employees that forbids unfair treatment by or directed to any employee that is based on or motivated by race, among other protected characteristics. The Code of Conduct also provides avenues for employees to raise concerns about violations of the code and forbids retaliation against employees who raise concerns about discrimination or harassment. Additionally, Guardian Glass maintains a separate Policy Against Discrimination and Harassment that prohibits race discrimination and harassment, explains what harassment is, and provides multiple avenues through which employees can report suspected discrimination or harassment.
Sometime between April and June 2017, Oliver sought to make Bradley a “fill-in supervisor” for C-Crew. As implied in its name, a fill-in supervisor is an informal role wherein a maintenance technician will fill in for supervisors who are absent from work. When Oliver informed Bradley that Oliver wanted Bradley to become a fill-in supervisor, he made a comment that Bradley considered violent and racist. Oliver stated that his grandfather was the grandmaster of the Ku Klux Klan and, back then, “it wasn't nothing to see you people hanging from trees.” (Bradley Dep., ECF No. 22-2 at 26.) Bradley was scared by Oliver's statement and felt threatened. Bradley asked Oliver why he made the statement and Oliver answered, “I want you to know I'm not a racist.” (Id. at 29.)
Fill-in supervisors receive an extra dollar per hour of compensation, but only while they are filling in for an absent supervisor. Fill-in supervisors continue with their same essential maintenance technician duties while filling in.
Bradley reported the comment to fellow employee Matt Hall, who raised the incident to management, including human resources business manager Lance Clarke and assistant plant manager Marcus Wilkes. Clarke addressed the incident with Oliver. Oliver told Clarke that he made the comment but explained that he did so to show that he was not proud of his family's history and did not share his grandfather's views. Clarke counseled Oliver about how such comments are inappropriate in the workplace, reminded him of Guardian Glass's Policy Against Discrimination and Harassment, and informed him that similar behavior would result in disciplinary action, up to and including termination. Clarke documented the counseling and placed it in Oliver's personnel file.
Clarke also spoke to Bradley about Oliver's comment. Clarke asked Bradley how he wanted the company to respond to the incident and whether Bradley wanted to change crews, but Bradley answered that he felt comfortable continuing to work with Oliver on C-Crew. Guardian Glass then considered the issue resolved, Bradley never reported any similar conduct by Oliver, and, shortly thereafter, Bradley became the fill-in supervisor for C-Crew.
On January 31, 2018, Josh Demby transferred from a different crew to C-Crew. Demby is Caucasian and was the fill-in supervisor for his previous crew. In February 2018, Oliver informed Bradley that Demby would replace him as the fill-in supervisor on C-Crew but Oliver did not explain the decision to Bradley. Bradley did not know who made the decision but believed his reporting of Oliver's comment was the cause for the change. The decision to replace Bradley with Demby was made by maintenance supervisor Keith Bertling. Human resources business manager Lance Clark declares under penalty of perjury that Demby was named as the fill-in supervisor for C-Crew because he had more experience with the company and as a fill-in supervisor than Bradley. Demby began working for Guardian Glass approximately four and one half years before Bradley and became a fill-in supervisor approximately two and one half years before Bradley. In July 2018, Demby was promoted, and shortly thereafter, Bradley was again made the fill-in supervisor for C-Crew.
Also in July 2018, Guardian Glass placed Bradley on paid administrative leave while Bradley was investigated for stealing a tool from the plant. Guardian Glass contracts with another company, Northern Packaging, to build shipping boxes in a secluded area of the Richburg Plant. Two Northern Packaging employees noticed that a tool went missing from their area of the plant and informed maintenance supervisor Keith Bertling that the incident was captured on video. Bertling watched the video, which showed Bradley walking into the Northern Packaging part of the plant with nothing in his hands and then leaving with an object in his right hand. Guardian Glass put Bradley on administrative leave pending an investigation. Bradley admitted that he entered the Northern Packaging area with nothing in his hands but left with something in his hand. After investigating the incident, Guardian Glass determined that the video footage was inconclusive as to Bradley's culpability for the missing tool and allowed Bradley to return to work without taking any disciplinary action. Bradley returned to work in mid-August 2018 after requesting a few more days off, which was granted, and Bradley continues to work at Guardian Glass.
Bradley brings this action pursuant to Title VII raising claims of a racially hostile work environment, disparate treatment based on race, and retaliation.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that the McDonnell Douglas framework applies to retaliation claims under Title VII). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappear[s], and the sole remaining issue [is] discrimination vel non.” Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred, ” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt, 601 F.3d at 294-95.
C. Defendants' Motion
1.Hostile Work Environment
The defendants argue that Bradley's hostile work environment claim fails as a matter of law because liability cannot be imputed to Guardian Glass. The court agrees.
In light of the court's conclusion, the court need not address the defendants' argument that Bradley cannot make a prima facie showing of a hostile work environment claim because he failed to provide evidence that the purported discrimination was sufficiently severe and pervasive.
Title VII makes it unlawful for an employer to discriminate against any individual with respect to his 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)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Ocheltree v. Scollon Prods, Inc., 335 F.3d 325, 331 (4th Cir. 2003). To prevail on a hostile work environment claim, a plaintiff must show (1) he experienced unwelcome harassment; (2) based on his race; (3) which was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive atmosphere; and (4) which is imputable to the employer. Perkins v. Int'l Paper Co., 936 F.3d 196, 207-08 (4th Cir. 2019); Okoli v. City Of Balt., 648 F.3d 216, 220 (4th Cir. 2011).
An employer is liable under Title VII for coworkers who create a hostile work environment if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end the harassment. Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003); Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995). The United States Court of Appeals for the Fourth Circuit has held that when an employer's remedial action causes the end of the unlawful harassment, no liability may be imputed to the employer. Bazemore v. Best Buy, 957 F.3d 195 (4th Cir. 2020); Spicer v. Commonwealth of Va. Dep't of Corrs., 66 F.3d 705, 711 (4th Cir. 1995) (“When presented with the existence of illegal conduct, employers can be required to respond promptly and effectively, but when an employer's remedial response results in the cessation of the complained of conduct, liability must cease as well.”); see also Mikels v. City of Durham, N.C. , 183 F.3d 323, 330 (4th Cir. 1999) (stating that the Fourth Circuit has given great weight to the fact that a particular response was demonstrably adequate to cause cessation of the conduct in question.) (citing Spicer, 66 F.3d 705, and Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987)).
Here, Guardian Glass's human resources business partner Lance Clarke counseled Oliver after Bradley reported the incident. Clarke warned Oliver that his comment was inappropriate, reminded him of Guardian Glass's Policy Against Discrimination and Harassment, and informed him that similar behavior would result in disciplinary action, up to and including termination. (Clarke Decl. ¶ 4, ECF No. 22-3 at 3.) Bradley has not identified any other incidents following Clarke's admonition of Oliver that suggest Guardian Glass's remedial action was not effective. See Mikels, 183 F.3d at 330. Despite that, Bradley argues that Guardian Glass took “no remedial action, ” pointing to other disciplinary action the company took against Oliver for unrelated behavior, such as attendance issues. (Pl.'s Resp. Opp'n Summ. J., ECF No. 24 at 9.) The court construes Bradley's argument as asserting that Guardian Glass's remedial action was inadequate. However, Bradley's mere disagreement with Guardian Glass's method of remediation is not sufficient to create a genuine issue of material fact because there is no dispute on this record that the harassment ended. See E.E.O.C. v. Xerxes Corp., 639 F.3d 658, 670 (4th Cir. 2011) (“A remedial action that effectively stops the harassment will be deemed adequate as a matter of law.”) (quoting Knabe v. Boury Corp., 114 F.3d 407, 411-12 n. 8 (3d Cir. 1997)); see also Bazemore, 957 F.3d at 202-03 (finding that the plaintiff failed to state a plausible hostile work environment claim when her complaint made clear that the harasser's conduct ended after the employer took remedial action). Therefore, no reasonable jury could find that Oliver's comment was imputable to Guardian Glass. Consequently, Bradley's hostile work environment claim fails as a matter of law.
Nothing in the record indicates-and Bradley does not argue-that Oliver was his “supervisor” as defined by the United States Supreme Court in the context of imputing liability for harassment to an employer. See Vance v. Ball State Univ., 570 U.S. 421, 431 (2013) (defining a “supervisor” as an employee whom “the employer has empowered . . . to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits' ”); Okoli, 648 F.3d at 222 (holding that the imputation of liability element “is ‘automatically met' when the harassment was alleged to have been perpetrated by a supervisor.”). For instance, Bradley testified that maintenance supervisor Keith Bertling hired him and Lance Clarke declared that Bertling made decisions regarding fill-in supervisors. (Pl.'s Dep., ECF No. 22-2 at 7; Clarke Decl. ¶ 6, ECF No. 22-3 at 3.)
2.Race Discrimination
Bradley cannot establish a prima facie case of race discrimination with respect to his placement on paid administrative leave during the stolen tool investigation. To establish a claim of disparate treatment based on race under Title VII, a plaintiff must show: (1) membership in a protected class; (2) adverse employment action; (3) satisfactory job performance; and (4) different treatment from similarly situated employees outside of the protected class. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)). “An adverse action is one that ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.' ” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
Here, Bradley puts forth no evidence that the paid leave affected his employment status. Bradley was paid while he was on leave and returned to his same job without any changes to his responsibilities or pay, and without any disciplinary action taken against him. See Nzabandora v. Rectors & Visitors of Univ. of Va., 749 Fed.Appx. 173, 175 (4th Cir. 2018) (finding that the plaintiff's placement on paid leave pending an investigation into her alleged misconduct was not an adverse employment action and could not support a disparate treatment claim under Title VII) (citing Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015)); see also Lacasse v. Didlake, Inc., 194 F.Supp.3d 494, 504 (E.D. Va. 2016) (holding, even in the context of a retaliation claim governed by the more lenient standard required to show an adverse act announced in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), that “[p]aid leave is not an adverse employment action”), subsequently aff'd, 712 Fed.Appx. 231 (4th Cir. 2018); Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 786-87 (7th Cir. 2007) (collecting circuit courts of appeal cases finding the same).
Additionally, to the extent Bradley's discrimination claim is based on allegations of disparate discipline, Bradley fails to identify a comparator that was treated differently in a similar situation. See generally Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, were subject to the same standards and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.”) (internal quotation marks and alterations omitted) (quoting Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010)); see also Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993) (stating that to establish a prima facie case of disparate discipline, the plaintiff must show (1) that he is a member of a class protected by Title VII, (2) that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of employees outside the protected class, and (3) that the disciplinary measures enforced against him were more severe than those enforced against those other employees). Accordingly, Bradley fails to make a prima facie case of disparate treatment or discipline based on Guardian Glass's investigation into whether Bradley stole a tool.
Finally, even assuming the temporary replacement of Bradley with Demby as fill-in supervisor could be considered an adverse employment action under the Ellerth test, Guardian Glass produced evidence of a legitimate, non-discriminatory reason for the difference in treatment, and no evidence permits the conclusion that Guardian Glass's proffered reason for doing so was pretextual. Guardian Glass removed Bradley from the fill-in supervisor role on C-Crew, but only while Josh Demby worked on that crew. Demby had more experience not only as a maintenance technician, but also as a fill-in supervisor, a role he held on a different crew at Guardian Glass's Richburg plant. (Clarke Decl. ¶ 6, ECF No. 22-3 at 3-4.) Bradley fails to point to any evidence that Guardian Glass's stated reliance on Demby's experience and tenure was pretextual. Rather, the unrefuted evidence shows that Bradley served as the fill-in supervisor twice while Demby formally held that title, and that Bradley was quickly named the fill-in supervisor again when Demby left C-Crew. (Id.) Nothing suggests that Guardian Glass's decision was motivated by the technicians' race rather than experience level and seniority.
3. Retaliation
As the defendants point out, Bradley makes no argument in opposition to their motion for summary judgment as to his retaliation claim. The court therefore agrees that Bradley has abandoned that claim. (Defs.' Reply, ECF No. 25 at 9); see Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”).
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motion for summary judgment be granted. (ECF No. 22.)
The parties' attention is directed to the important notice on the next page.
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).