Opinion
C/A. 8:20-cv-03660-JD-JDA
08-05-2022
Deonta L. Brinston, Plaintiff, v. The City of Easley South Carolina, Lane C. Byers, Jeremy Miller, John Doe Actors, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Defendants' motion for summary judgment. [Doc. 44.] Plaintiff alleges claims of race discrimination and retaliation under 42 U.S.C. §§ 1981 and 1983, a claim for violating the Fair Labor Standards Act (“FLSA”), a claim for violating the South Carolina Payment of Wages Act (“SCPWA”), and claims of interference and retaliation under the Family and Medical Leave Act (“FMLA”). [Doc. 1 at 16-28.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff filed this action on October 19, 2020. [Doc. 1.] On January 3, 2022, Defendants filed a motion for summary judgment. [Doc. 44.] On February 4, 2022, Plaintiff filed a response opposing the motion, and on February 9, 2022, Defendants filed a reply. [Docs. 47; 50.] Accordingly, the motion is now ripe for review.
Plaintiff filed additional attachments to his response on February 4 and 5. [Docs. 48; 49.] The Court notes that, after being granted an extension, Plaintiff's response was due by February 1, 2022. [Doc. 46.] However, the undersigned will consider Plaintiff's untimely response because, as discussed, even when considering it, Defendants are entitled to summary judgment.
BACKGROUND
Plaintiff is an African-American police officer. [Doc. 47-1 ¶ 4.] He was employed with the Easley Police Department (“EPD”) from 2008 to 2011 and then again beginning in 2015. [Docs. 1 ¶¶ 11-12; 44-1 at 12; 44-10 at 3-4; 47-1 ¶ 2; 47-2 at 6.] ¶ 2017, he began working as a K9 officer. [Docs. 44-3 ¶ 4; 47-2 at 6.] Plaintiff kept his K9, Lu, at his home when Plaintiff was not working. [Docs. 44-10 at 56-57; 47-2 at 6.] In November 2017, Plaintiff began to receive additional compensation of $150.00 per two-week pay period for his K9 duties outside of work, including housing, feeding, and caring for Lu. [Docs. 44-3 ¶ 4; 44-10 at 7.] He was also given a one-time credit of additional compensatory time (“comp time”) for his previous work in caring for his K9 up to that time. [Doc. 44-3 ¶ 4.]
Defendants argue that Plaintiff's affidavit is a sham affidavit that contradicts or ignores his sworn deposition testimony. [Doc. 50 at 2 & n.1.] The Court relies primarily on Plaintiff's deposition testimony in this Report and Recommendation, especially in instances where Plaintiff's affidavit is inconsistent with his deposition testimony. See Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“‘If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.' A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.” (internal citation omitted)). However, the Court cites to Plaintiff's affidavit as well because, as discussed, even using the facts taken from Plaintiff's affidavit, Defendants are entitled to summary judgment.
Plaintiff's K9 certification was set to expire in June 2020 but, on June 25, 2020, the South Carolina Criminal Justice Academy (“SCCJA”) granted a 90-day extension of the recertification deadline “from the date that [the] SCCJA Approved K-9 Training Vendor reopens for business [following closures] due to COVID-19.” [Doc. 44-4; see Docs. 44-5; 44-10 at 20-21.] The relevant vendor-Highland Canine Training, LLC (“Highland”)- reopened on June 25, 2020 [Doc. 44-5], and thus the new recertification deadline was September 23, 2020 [see Doc. 1-10 at 1].
Defendant Lane Byers, EPD's chief of police, asked Plaintiff “to prepare and propose to him new K9 policies, structure and equipment,” which Plaintiff did at the end of July 2020. [Docs. 44-10 at 68-69; 47-1 ¶ 5; 47-5.] Plaintiff “was told that [he] was a ‘NPO,' as the K9 Coordinator,” although his compensation did not reflect that status. [Docs. 47-1 ¶¶ 5-6; 47-2 at 7.] Byers promised Plaintiff that he would “make [his] pay situation ‘right.'” [Doc. 47-1 ¶ 5.] Along those lines, Plaintiff proposed that Defendant City of Easley (“the City”) create a canine sergeant position and promote Plaintiff to that position. [Docs. 44-10 at 68-69; 47-1 ¶ 5; 47-5.]
Byers did not give Plaintiff that promotion. [Docs. 44-10 at 69; 47-1 ¶ 6.] Rather, on August 17, 2020, Byers placed Defendant Captain Jeremy Miller, who is Caucasian, in charge of EPD's K9 operations even though Miller had handled a K9 for only a short period of time six years earlier. [Docs. 44-10 at 19; 47-1 ¶ 6; 47-7.] Based on differences that Plaintiff and Miller had had in the past, Byers had previously assured Plaintiff that Miller would not be placed in charge of the K9 program. [Doc. 44-10 at 19.]
In late August, Plaintiff's mother, who lived in Jackson, Mississippi, became very ill, and Plaintiff left South Carolina from August 28, 2020, until September 15, 2020, to be with her. [Docs. 44-3 ¶ 6; 47-1 ¶ 7.] Plaintiff stayed in regular contact with Byers, Miller, and the City's human resources manager, Lisa Chapman, concerning his mother's serious health condition, but none of them provided Plaintiff with written notice about his FMLA rights. [Doc. 47-1 ¶ 7.] Nonetheless, Plaintiff told Chapman that he “needed to activate FMLA because of [his] mom's condition.” [Doc. 44-10 at 11; see Doc. 47-1 ¶ 7.] Chapman told Plaintiff that she would “get the ball rolling,” or words to that effect. [Doc. 44-10 at 12; see Doc. 47-1 ¶ 7.] However, Chapman never sent Plaintiff any FMLA paperwork or informed him that such paperwork was coming. [Docs. 44-10 at 11-12; 47-1 ¶ 7.] Plaintiff also told Miller that he wanted to take FMLA leave, and Miller said that he could. [Doc. 4410 at 13-14.] Plaintiff told Byers that he would be available to return to work on September 16, 2020. [Id. at 15.]
Chapman disputes Plaintiff's account of their communications. [Doc. 44-6 ¶ 4.] She denies that Plaintiff ever stated that he wanted to “‘activate FMLA.'” [Id.] She represents that when Plaintiff asked whether his leave was subject to the FMLA, she “offered to send him paperwork regarding the certifications required to designate leave as FMLA-protected leave, and he said he would get back to [her] about it” but that he never did contact her about it. [Id.] She also confirmed that Plaintiff's time off would be paid insofar as he had sufficient comp time and paid time off (“PTO”) to cover his absence from August 28, 2020, to September 15, 2020. [Id.] In the end, Plaintiff used a combination of PTO and comp time to cover his leave, so he was paid for the entire period. [Docs. 44-3 ¶ 6; 44-10 at 13.]
Miller disputes that Plaintiff asked him if the leave was covered by the FMLA. [Doc. 44-3 ¶ 6.]
While Plaintiff was on leave, Byers and Miller were aware that Plaintiff's K9 certification was nearing expiration. [Doc. 44-3 ¶ 8.] Byers therefore decided to assign Plaintiff to regular patrol duty until he completed the training he needed for recertification. [Id.] He also directed Miller to arrange for the necessary training for Plaintiff and Lu as soon as possible. [Id.] Miller identified a company in Georgia that offered a course beginning on September 21, 2020, and he also knew that Highland had a course available in October 2020. [Id.; Doc. 44-5.]
Plaintiff returned to South Carolina from Mississippi on Monday, September 14, 2020. [Doc. 44-10 at 15.] On that day, Miller called Plaintiff and spoke with him for less than five minutes (“the Telephone Conversation”). [Doc. 44-3 ¶ 7.] Plaintiff placed his phone on speaker during the Telephone Conversation while near his girlfriend, and she recorded the conversation. [Doc. 47-2 at 19.] During the Telephone Conversation, Miller told Plaintiff that EPD was taking Lu out of service and assigning Plaintiff to regular patrol duty until Plaintiff was able to get recertified. [Docs. 44-10 at 46; 47-6 at 2.] Miller asked Plaintiff about his need for a uniform for his upcoming duties as a regular patrol officer. [Docs. 44-3 ¶ 7; 47-6.] Miller also reminded Plaintiff several times of the need to follow chain of command, which Miller indicated Plaintiff had repeatedly failed to do, including with regard to the uniform issue. [Docs. 44-3 ¶ 7; 47-6.] He also told Plaintiff that he had tried to call him multiple times earlier and admonished Plaintiff to answer his calls. [Doc. 47-6 at 1.] Miller sent Plaintiff an email the same day informing him that Plaintiff's recertification training had been scheduled for the following week. [Doc. 47-2 at 25.]
Also the same day, Plaintiff's godmother and then-current lawyer, Candy M. Kern, sent Byers an email (1) criticizing the decision to remove Lu from service, (2) accusing EPD of failing to “get [Plaintiff] lined up for re-certification before September 23, 2020, or to appeal to CJA for more time,” and (3) describing Plaintiff's recent leave as “FMLA” leave and accusing EPD of violating Plaintiff's FMLA rights. [Docs. 1-10; 44-10 at 31.] Two days later, on September 16, 2020, Kern sent an email to the City's attorney, Brian James (“the September 16th Email”). [Docs. 44-10 at 31; 44-7.] In the September 16th Email, Kern outlined several EPD policies that she asserted were violated by the Telephone Conversation and indicated that she would be sending James a recording of that conversation by separate email. [Doc. 44-7.] In the September 16th Email, Kern also made multiple demands, including immediate restoration of Plaintiff's status as a K9 handler with a schedule of 11 a.m. to 11 p.m.; recertification training with Highland to be scheduled for October 2020; removal of Miller as Plaintiff's supervisor due to “his flagrant violations of [EPD] policies”; appropriate discipline of Miller for these alleged violations; and appropriate time for Plaintiff to prepare his K9 for recertification, as Kern contended the EPD allowed its other K9 officer, who is Caucasian. [Id.] Four minutes after sending the September 16th Email, Kern sent James an email attaching a copy of the recording of the Telephone Conversation and requesting an investigation into whether it violated the policies that Kern had identified. [Doc. 1-9.]
Plaintiff maintains that he had been scheduled “to go to weekly K9 training as usual with the other Upstate of S.C. agencies,” but that when he was ordered to report for regular patrol duty, he was effectively blocked from having any meaningful training that day with Lu, from whom he had been separated for several weeks while Plaintiff was out of the state. [Doc. 47-1 ¶ 8.] Plaintiff believed he needed more time to prepare Lu for the recertification process and testified that he was not allowed to train with Lu during the time that the K9 was taken off the road. [Doc. 44-10 at 27.] Plaintiff also avers that the Georgia company was one that Plaintiff and Lu had not used before for recertification and that the Georgia company would apply different standards than he was used to. [Doc. 47-1 ¶ 8.]
The September 16th Email was the first notification to anyone in the City with authority over the matter that Plaintiff did not want to attend the recertification training beginning September 21, 2020, in Georgia. [Doc. 44-10 at 41.]
The City's Employee Policy Manual prohibits the tape recording or videotaping of other employees unless either the employee being recorded has given express permission or the recording has been authorized by the city administrator, the police chief, or an outside law enforcement agency (“the Anti-Recording Policy”). [Doc. 44-9 at 28-29.] Volations of the policy are subject to disciplinary action up to and including discharge. [Id. at 29.] Plaintiff had not told Miller that the Telephone Conversation was being recorded, and Miller had not given his permission for any such recording. [Doc. 44-3 ¶ 7.] Byers therefore decided to terminate Plaintiff for violating the Anti-Recording Policy. [Doc. 44-8.] Accordingly, on September 18, 2020, Byers, Captain Rashad Murray, and Lieutenant Brandon Liner met with Plaintiff to inform him of his termination and the reason for it. [Doc. 44-10 at 42-43; see Doc. 44-1 at 7.]
Plaintiff had his phone on speaker during the Telephone Conversation and his fiance, who was in the room with Plaintiff, made the recording using her phone. [Docs. 4410 at 17, 30; 47-1 ¶ 13.] Nothing in the record indicates that anyone in the EPD was informed that Plaintiff did not actually make the recording himself or that it would have made any difference to Byers that Plaintiff did not actually make the recording.
Plaintiff's Complaint before this Court alleges several causes of action: claims under 42 U.S.C. §§ 1981 and 1983 against all Defendants for race discrimination and retaliation [Doc. 1 ¶¶ 43-62]; a claim under the FLSA against the City for requiring Plaintiff to work “‘off the clock'” while attending K9 seminars, writing administrative reports, planning K9 training, and drafting K9 policies and for failure to pay overtime [id. ¶¶ 63-66]; a claim under the SCPWA against the City, Byers, and the Doe Defendants based on Plaintiff's allegations that he was required to work “‘off the clock'” [id. ¶¶ 67-72]; and claims under the FMLA against the City for interfering with his FMLA rights and retaliating against him for exercising his FMLA rights [id. ¶¶ 73-95]. For his relief, Plaintiff requests injunctive relief; money damages, including treble and punitive damages; and attorneys' fees and costs. [Id. at 27-29.]
The Complaint also asserts a cause of action that is not substantive but instead requests a specific form of relief: Restraining Orders. [Doc. 1 ¶¶ 96-102.] In that cause of action, Plaintiff claims that he is filing a motion for preliminary injunction [id.]; however, a motion for preliminary injunction was never filed in this case. At this procedural posture, no injunction should issue because the undersigned is recommending that Defendants be granted summary judgment on all of Plaintiff's substantive claims.
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) 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
(B) 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). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Race Discrimination Claim
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Section 1983 provides, in relevant part,
Although the heading to Plaintiff's first cause of action lists only § 1983 [Doc. 1 at 16], the assertions under that heading include an allegation that the acts violate § 1981 [id. at 48].
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983.
Absent direct or indirect evidence of discrimination, a plaintiff alleging employment discrimination under §§ 1981 and 1983 may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to establish his claim. Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (“[T]he McDonnell Douglas framework, developed for Title VII, has been used to evaluate race discrimination claims under [§§ 1981 and 1983 as well].”). Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804.
With respect to Plaintiff's race discrimination claim, he alleges that he was subjected to disparate pay and disparate treatment. [Doc. 1 ¶ 46.] The Court addresses these allegations seriatim.
Disparate Pay
Defendants argue that they are entitled to summary judgment on Plaintiff's disparate-pay claim because Plaintiff cannot establish a prima facie case of disparate pay in that he has produced no evidence that his pay was incorrect or that it was affected in any way by his race. [Doc. 44-1 at 12.] Plaintiff's response does not specifically address this argument and instead argues that EPD and/or the City has a policy or custom of treating African-American employees differently from Caucasian employees. [Doc. 47 at 19-23.] The Court agrees that Plaintiff cannot establish a prima facie case of disparate pay.
To prove a prima facie case of pay disparity under Title VII, a plaintiff must establish “(1) []he is a member of a protected class, (2) []he was performing h[is] job satisfactorily, (3) an adverse employment action occurred, and (4) the circumstances suggest an unlawfully discriminatory motive.” Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 2019). “Where . . . the prima facie case of wage discrimination is based on comparators, the plaintiff must show that []he is paid less than [employees outside the protected class] in similar jobs.” Id.
Here, Plaintiff has established neither that he was paid less than non-African-American employees nor that the circumstances surrounding his pay otherwise suggest an unlawfully discriminatory motive. The only references related to discriminatory pay in Plaintiff's response memorandum are that Defendants “failed to pay him in accordance with their own pay tiers,” “he would have become an equivalent of a ‘corporal' in 2017,” and “he should've been at least a ‘Step 2.'” [Doc. 47 at 6.] However, Plaintiff fails to direct the Court to any evidence to support these assertions. The only evidence Plaintiff cites to support them is EPD's 2017/2018 pay scale [Doc. 1-5], but nothing in the pay scale outlines the qualifications for each grade and step. Moreover, even if Plaintiff could establish that he was paid at a lower grade and/or step than he should have been, Plaintiff has failed to establish that any pay decisions were because of his race. To the extent he asserts that John Aguilar, a non-African-American who avers that he was offered “a starting salary of $40,000.00 a year to come to EPD” [Doc. 49 at 2], is a valid comparator, the record does not include any information about Aguilar's training or experience beyond that he previously worked for the Pickens County Sheriff's Office, nor does the record establish when Aguilar was offered a position with EPD or what the pay scale was at that time. Plaintiff has failed to put forth any evidence to suggest that he was paid less because of his race. Accordingly, Defendants' motion for summary judgment should be granted with respect to Plaintiff's disparate-pay claim.
Plaintiff's pay records show that, beginning with the pay period for July 23 through 27, 2017, Plaintiff was paid $15.553 per hour [Doc. 44-2 at 11], which is the range minimum for an Officer I on EPD's pay scale [Doc. 1-5]. Although Plaintiff cites to Chapman's affidavit for the proposition that Plaintiff's pay was “far below the City's pay tier for his experience and time in rank” [Doc. 47 at 7], he has directed the Court to no evidence to support the assertion that he should have been at a higher grade or step.
The Court notes that Plaintiff testified that Lieutenant Cummings told him that he was being paid as an Officer I but should have been being paid as an Officer II. [Doc. 4410 at 53-55.] Plaintiff also testified that Chapman told him that might be correct. [Id.] However, as argued by Defendants, this testimony is “hearsay evidence, which is inadmissible at trial[ and] cannot be considered on a motion for summary judgment.” Md. Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991). Hearsay is “a statement that . . . the declarant does not make while testifying at the current trial or hearing[ that is offered] in evidence to prove the truth of the matter asserted in the statement.” Rule 801(c), Fed.R.Evid. Hearsay is inadmissible, absent a rule of evidence or other statute or rule that renders it admissible. Rule 802, Fed.R.Evid. At the summary judgment stage, a “party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). Plaintiff's testimony about what Cummings and Chapman told him fits within the definition of hearsay, and Plaintiff has not asserted that an exception to the hearsay rule would allow these statements as evidence. Accordingly, this testimony will not be considered. See Bronitsky v. Bladen Healthcare, LLC, No. 7:12-cv-147-BO, 2013 WL 5327447, at *2 (E.D. N.C. Sept. 20, 2013) (“Plaintiff has presented no admissible evidence of the statements made by [defendant] to Dr. Block. Instead he attempts to rely on inadmissible hearsay. Plaintiff only cites his own testimony that Dr. Block told him that [defendant] told Dr. Block certain things about plaintiff. This is plainly inadmissible hearsay.”).
Disparate Treatment
Defendants argue that they are entitled to summary judgment on Plaintiff's disparate-treatment claim because Plaintiff has failed to establish a prima facie case of disparate treatment. [Doc. 44-1 at 12-15.] Again, Plaintiff's response does not specifically address this argument and instead argues that EPD and/or the City has a policy or custom of treating African-American employees differently from Caucasian employees. [Doc. 47 at 19-23.] The Court agrees that Plaintiff cannot establish a prima facie case of disparate treatment.
To establish a prima facie case of disparate treatment, “a plaintiff must show that (1) []he is a member of a protected class; (2) h[is] employer took an adverse action against h[im]; (3) []he had been fulfilling h[is] employer's legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination.” Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649-50 (4th Cir. 2021). With respect to a discrimination claim, “[a]n adverse employment action is a discriminatory act which ‘adversely affect[s] “the terms, conditions, or benefits” of the plaintiff's employment.'” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (second alteration in original) (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001)).
Plaintiff appears to base his disparate treatment claim on his assertions that Defendants did not create a canine sergeant position and promote him to that position and that Defendants did not pour a concrete slab at his home for Lu. [Doc. 47-2 at 42.] Although failure to promote is an adverse action, Plaintiff has not established in this case that a position existed for him to be promoted. Instead, Plaintiff had only proposed that a canine sergeant position be created. [Docs. 44-10 at 68-69; 47-1 ¶ 5; 47-5.] Nor has Plaintiff directed the Court to any evidence tending to show that Defendants ever created a canine sergeant position. Instead, Defendants placed Miller, who was already a captain, in charge of EPD's K9 operations. [Docs. 44-10 at 19; 47-1 ¶ 6; 47-7.] Accordingly, Plaintiff has not shown that the decision not to promote him occurred under circumstances that raise a reasonable inference of unlawful discrimination.
As reflected in EPD's pay scale, captain is a higher rank than sergeant. [Doc. 1-5.] Therefore, EPD did not need to create a sergeant position to be in charge of the K9 operations and instead chose to assign those duties to a higher ranking officer.
With respect to Plaintiff's assertion that Defendants did not pour a concrete slab at his home for Lu but they poured a concrete slab at the other K9 officer's home, Plaintiff has not established that this is an adverse employment action that adversely affected the terms, conditions, or benefits of his employment. Cf. Prince-Garrison v. Md. Dep't of Health & Mental Hygiene, 317 Fed.Appx. 351, 353 (4th Cir. 2009) (concluding that an employer's failure to provide an employee with office supplies did not constitute an adverse employment action). Nor has Plaintiff shown that the failure to pour a concrete slab occurred under circumstances that raise a reasonable inference of unlawful discrimination. To the extent Plaintiff attempts to use the other K9 officer, who Plaintiff asserts is Caucasian, as a comparator [Doc. 47 at 18], nothing in the record establishes that Defendants had a concrete slab poured for the other officer or when Defendants did so [see Doc. 47-2 at 36 (Plaintiff's testimony, when asked, “You just know it[ was] poured?” that the other K9 officer told him the concrete had been poured but that he could not remember when)]. Thus, Defendant's motion for summary judgment should be granted with respect to Plaintiff's disparate treatment claim.
To the extent Plaintiff attempts to raise a hostile work environment claim [Doc. 1 ¶ 46 (alleging that “Plaintiff was subjected to severe and pervasive discriminatory misconduct”), he has not established that the conduct complained of in this case was sufficiently severe or pervasive to create an abusive atmosphere and alter the conditions of his employment. See EEOC v. Sunbelt Rentals, 521 F.3d 306, 315-16 (4th Cir. 2008) (citing cases holding that complaints based on rude treatment, callous behavior by superiors, or a difference of opinion or personality conflict with a supervisor are not actionable under Title VII); Harvey v. Saluda Smiles Family Dentistry, 210 F.Supp.3d 812, 821 (D.S.C. 2016) (finding that the plaintiff had not established she experienced severe or pervasive harassment where the plaintiff alleged “nitpicking” by her superior, being chastised in front of a patient, and ongoing friction with her superior). Plaintiff represents that he “was regularly referred to as ‘Django' by [his] Caucasian supervisors,” Jeff Dalton, Miller, Chad Harrelson, and then-chief Timothy Tollison. [Doc. 47-1 ¶ 11; see Doc. 44-10 at 53.] Plaintiff represents that he “considered this nickname to be racially inappropriate because Django was a movie starring Jamie Foxx as a slave who ultimately won his freedom by being a bounty hunter and ultimately freed his slave wife from an evil Master named Calvin Candie, (played by Leonardo DeCaprio).” [Doc. 47-1 ¶ 11.] Plaintiff adds that “Tollison even regularly called the City of Easley ‘Candie Land.'” [Id.] In his deposition, Plaintiff testified that Miller, Murray, and Tollison called Plaintiff “Django” on “[m]ultiple occasions” after 2018 but before he was terminated, although Plaintiff never reported being called that name as an instance of discrimination or harassment. [Doc. 44-10 at 50-51.] While Plaintiff suggests that this nickname was racially derogatory, Plaintiff testified that he does not remember the context in which it was used, and it is worth noting that Murray is black. [Id. at 51-52.] Plaintiff has not established that his being referred to as Django an unspecified number of times over an unspecified period unrelated to any employment decision is sufficiently severe or pervasive to be actionable. See Irani v. Palmetto Health, 767 Fed.Appx. 399, 416-17 (4th Cir. 2019) (concluding that an employer's infrequent reference to the employee as “Achmed the terrorist” not in connection with any employment decisions or while asserting authority over the employee was insufficient to be actionable and was “more akin to the ‘simple teasing' and ‘offhand comments' that [§§ 1981 and 1983 do] not reach”).
Retaliation Claim
Defendants argue they are entitled to summary judgment on Plaintiff's retaliation claim based on “a theory . . . that Defendants operated under an ‘informal policy of using race, unlawful discrimination, and race-based retaliation to make disparate employment decisions.'” [Doc. 44-1 at 17 (quoting Doc. 1 ¶¶ 55-57).] They also argue that Plaintiff cannot establish a prima facie case or retaliation or that Defendants' proferred reason for terminating Plaintiff is a pretext for unlawful retaliation. [Doc. 50 at 2-6.] Plaintiff's response again focuses on an argument that Defendant EPD and/or the City has a policy or custom of treating African-American employees differently from Caucasian employees. [Doc. 47 at 19-22.] However, it also asserts that after Plaintiff, through counsel, raised questions regarding “numerous policy and legal violations,” Defendants “retaliated by firing Plaintiff.” [Id. at 22.] The Court agrees Defendants are entitled to summary judgment on Plaintiff's retaliation claim under §§ 1981 and 1983.
Plaintiff's Complaint is not entirely clear regarding his retaliation claim. It mentions due process and equal protection [Doc. 1 ¶ 54], but also maintains that Defendants “maintain an informal policy of using race, unlawful discrimination, and race-based retaliation to make disparate employment decisions” [id. ¶ 55]; follow an informal policy of ignoring “the rampant racial harassment and discrimination occurring within” EPD [id. ¶ 56]; and allow “unfettered incidents of harassment and discrimination” [id. ¶ 57]. The Complaint does not seem to include termination as a basis for his second cause of action for retaliation under §§ 1981 and 1983. [Compare id. ¶¶ 53-62 (second cause of action for retaliation under §§ 1981 and 1983, not including any allegation regarding his termination) with id. §§ 85-95 (sixth cause of action for retaliation under the FMLA, including being terminated in retaliation for exercising his rights under the FMLA).] Based on the allegations in the Complaint, Defendants first addressed Plaintiff's retaliation claim as one brought pursuant to Monell v. Department of Social Services of New York, 436 U.S. 658 (1978), which provides that a municipality may be liable under § 1983 for the violation of a plaintiff's constitutional rights “where the constitutionally offensive acts of city employees are taken in furtherance of some municipal ‘policy or custom,'” Milligan v. Newport News, 743 F.2d 227, 229 (4th Cir. 1984). [Doc. 44-1 at 17-20.] However, after Plaintiff filed his response, including a contention that Defendants' “adverse employment actions were and/or are mere pretext for unlawful race discrimination and retaliation for engaging in protected speech by and through his attorney” [Doc. 47 at 9], Defendants contend that Plaintiff has not established a prima facie case of retaliation nor has he established pretext [Doc. 50 at 2-6].
As stated, it is not clear from Plaintiff's Complaint that his §§ 1981 and 1983 retaliation claim is pled as being based on his termination. However, out of an abundance of caution because both parties now seem to address it in this manner, the Court will also analyze Plaintiff's termination as alleged to be in retaliation for his counsel's complaints about race discrimination.
The McDonnell Douglas burden-shifting framework, discussed supra, applies to §§ 1981 and 1983 retaliation claims. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015); Campbell v. School Dist. of Chester Cnty., No. 0:09-411-CMC-PJG, 2010 WL 5600905, at *6 (D.S.C. Dec. 20, 2010), Report and Recommendation adopted by 2011 WL 167464 (D.S.C. Jan. 19, 2011), Kandrac v. Charleston Cnty. School Dist., No. 2:04-cv-23318-DCN, 2007 WL 9735153, at *5 (D.S.C. Mar. 16, 2007); see also CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446 (2008) (holding that § 1981 encompasses retaliation claims). To establish a prima facie case of retaliation, a plaintiff must demonstrate “(1) []he engaged in a protected activity, (2) the employer acted adversely against h[im], and (3) there was a causal connection between the protected activity and the asserted adverse action.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011).
Here, even assuming Plaintiff can establish a prima facie case of retaliation, Defendants have articulated a legitimate, nonretaliatory reason for terminating Plaintiff: Byers decided to terminate Plaintiff for violating the Anti-Recording Policy. [Doc. 44-8.] Because Defendants have articulated a legitimate, nonretaliatory reason for terminating Plaintiff, the Court will consider whether Plaintiff has met his burden of demonstrating that Defendants' proffered reason is merely a pretext for retaliation, which would indicate whether Plaintiff could meet his ultimate burden of persuasion and demonstrate retaliation vel non. See Merritt, 601 F.3d at 294.
As one court within the Fourth Circuit has noted, “[t]he relevance of the McDonnell Douglas scheme outside of the trial context is limited.” Lerner v. Shinseki, No. ELH-10-1109, 2011 WL 2414967, at *14 (D. Md. June 10, 2011). The Fourth Circuit has observed,
Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the same, necessitating resolution of “the ultimate question of discrimination vel non.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983). As the Supreme Court has explained, “[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). Thus, “[c]ourts must . . . resist the temptation to become so entwined in the intricacies of the [McDonnell Douglas] proof scheme that they forget that the scheme exists solely to facilitate determination of ‘the ultimate question of discrimination vel non.'” Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (citation omitted).Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294-95 (4th Cir. 2010). Further, the Supreme Court has stated,
Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether “the defendant intentionally discriminated against the plaintiff.”Aikens, 460 U.S. at 715 (quoting Burdine, 450 U.S. at 253); see Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (“The Aikens principle applies, moreover, to summary judgment as well as trial proceedings.”). In light of this guidance from the Supreme Court and the Fourth Circuit Court of Appeals, the Court agrees with the District of Maryland that where the employer has met its burden of articulating a legitimate, nondiscriminatory reason for its adverse action against the plaintiff, the Court may assume, without deciding, that the plaintiff has established a prima facie case of discrimination. See Lerner, 2011 WL 2414967, at *14.
To survive summary judgment on a retaliation claim, a plaintiff must show that the protected activity was a but-for cause of the adverse action. Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 218 (4th Cir. 2016). The plaintiff must demonstrate ?a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Id. at 217.
Here, Plaintiff has failed to demonstrate a genuine factual dispute on the question of pretext. Plaintiff asserts that his termination was a pretext for unlawful discrimination because neither Byers, Miller, nor the City asked Plaintiff if he was the one who recorded the Telephone Conversation; Plaintiff did not record the Telephone Conversation, but instead his girlfriend did; and Caucasian officers were not disciplined for more egregious policy violations. [Doc. 47 at 7-8.] With respect to Plaintiff's assertion that no one asked him if he recorded the conversation, he “is not entitled to an even, fair, or just investigation. Pretext analysis does not convert [§§ 1981 and 1983] into a vehicle for challenging unfair-but nondiscriminatory-employment decisions.” Bennett v. New Founds. Child. & Fam. Servs., Inc., No. 8:08-557-HFF-BHH, 2010 WL 517900, at *8 (D.S.C. Feb. 10, 2010); see also Bonds v. Leavitt, 629 F.3d 369, 386 (4th Cir. 2011) (“Even if these investigations were improper or substandard, that does little to help [plaintiff] establish that the reasons given for her termination were not the actual reasons, and it certainly does not give rise to a reasonable inference that her race . . . was the real reason for her termination.”); Oglesby v. Itron Elec. Metering, Inc., No. 8:17-cv-00216-TMC, 2018 WL 3853558, at *4 (D.S.C. Aug. 14, 2018) (assuming that the plaintiff was terminated “based on the false statements of co-workers, at most, this establishes that [the defendant] conducted a poor investigation and made a poor decision,” but it does not establish pretext for discrimination). Moreover, when determining whether an articulated reason is pretextual, “[i]t is the perception of the decision maker which is relevant.” Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 444 (4th Cir. 1998) overruled on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002). The record indicates that Plaintiff placed his phone on speaker during the Telephone Conversation while near his girlfriend, which allowed her to record the conversation. [Doc. 47-2 at 19.] Then, after the recording was shared with his counsel, Plaintiff knew his counsel had the recording and was going to use it. [Id. at 19-20.] Plaintiff's counsel then sent the recording to James [Docs. 1-9; 44-7], thus informing Defendants that the Telephone Conversation had been recorded without authorization [see Doc. 44-3 ¶ 7]. Indeed, Plaintiff does not allege that he had authorization to record the conversation. On these facts, the Court cannot see how the fact that Plaintiff's girlfriend, as opposed to Plaintiff, pressed record would make any difference to Byers, as the decision maker.
Finally, although Plaintiff provides a list of non-African-American employees who he contends committed even more egregious policy violations but were not disciplined [Doc. 47 at 15-19], most of his allegations are not supported by record evidence. Moreover, Plaintiff has not directed the Court to any evidence to support a finding that the purported comparators are similarly situated to Plaintiff. See Oglesby v. Itron Electricity Metering, Inc., No. 8:17-cv-00216-TMC, 2018 WL 4519394, at *7 (D.S.C. Jun. 26, 2018) (noting that, when analyzing comparators, courts should consider factors such as whether the employees dealt with the same supervisor, were subject to the same standards, and engaged in the same conduct), Report and Recommendation adopted by 2018 WL 3853558. Indeed, Plaintiff does not assert that any of the purported comparators violated the Anti-Recording Policy.
For all of these reasons, Plaintiff has not demonstrated “a genuine dispute of material fact on the question of pretext sufficient to make [Defendants'] proffered justification a triable issue.” Guessous, 828 F.3d at 217. Accordingly, Defendants' motion for summary judgment should be granted with respect to Plaintiff's §§ 1981 and 1983 retaliation claim.
Thus, to the extent Plaintiff asserts his retaliation claim against the City, summary judgment should be granted as well. See Peters v. Caplan, 672 Fed.Appx. 327, 328 (4th Cir. 2017) (“As discussed above, [the plaintiff] failed to allege a deprivation of [a] constitutional right, so his claim against the City must fail as well.”). Additionally, to the extent Plaintiff alleges he was denied due process, Defendants argue they are entitled to summary judgment because Plaintiff had an opportunity to avail himself of the City's grievance procedure and also because Plaintiff had no property interest. [Doc. 44-1 at 19-20.] Plaintiff fails to respond to that argument and, thus, has waived any argument that the grievance procedure does not afford him due process. Additionally, Defendants argue that Byers and Miller are entitled to qualified immunity on the § 1983 claims asserted against them. [Doc. 44-1 at 15 n.11.] Because the Court concludes that Defendants' motion for summary judgment should be granted on the merits, the Court also concludes that Byers and Miller are entitled to qualified immunity. See Smith v. Gilchrist, 749 F.3d 302, 308 (4th Cir. 2014) (noting that, “[t]o survive a claim of qualified immunity a plaintiff must satisfy the following two-prong test: (1) the allegations underlying the claim, if true, substantiate [a] violation of a federal statutory or constitutional right; and (2) this violation was of a clearly established right of which a reasonable person would have known” (alterations in original) (internal quotation marks omitted).
FLSA Claim
The Court first addresses Defendants' argument that Plaintiff's FLSA claim is barred by the applicable statute of limitations. [Doc. 44-1 at 21-22.] The FLSA provides a tiered statute of limitations, depending on the standard of culpability a plaintiff can prove. 29 U.S.C. § 255(a). A plaintiff must commence an action under the FLSA within two years of the date the cause of action accrued; however, if the plaintiff can prove a “willful violation” of the FLSA, the period to commence a cause of action is extended to three years. Id. Defendants argue that Plaintiff has not forecasted evidence of a willful violation. [Doc. 44-1 at 21 n.13.] In his response in opposition to the motion for summary judgment, Plaintiff does not address Defendants' argument that his FLSA claim is barred by the applicable statute of limitations at all, let alone the argument that Plaintiff has not forecasted evidence of a willful violation. [see Doc. 47.] Thus, Plaintiff has not created a genuine dispute of material fact regarding whether there was a “willful violation,” and the two-year limitations period applies. Accordingly, the statute of limitations bars recovery for any pay Plaintiff claims not to have been paid in violation of the FLSA before October 19, 2018, two years before this action was filed.
As such, Plaintiff's allegation that he was not paid for time spent caring for Lu from January 2017 through November 2017 [Doc. 47 at 6, 9, 12, 23] is barred. Additionally, although Plaintiff argues in his response in opposition to the summary judgment motion that he was not paid for K9 training, he testified that there were no training seminars that he attended for which he was not paid. [Doc. 47-2 at 31.]
At his deposition, Plaintiff testified that he could recall only one incident-on May 24, 2020-when a supervisor under-reported the time he worked and, therefore, he was not paid for working overtime of between six and eight hours. [Doc. 47-2 at 8, 9, 39.] The FLSA requires all employers, including states and their political subdivisions, to provide overtime compensation at a rate of one-and-one-half times the regular rate at which an employee is employed for each hour worked in excess of 40 hours per week. 29 U.S.C. § 207(a)(1). Public employers, though, are allowed to provide overtime compensation in the form of compensatory time at a rate of one-and-a-half hours for every excess hour worked. Id. at § 207(o)(1). Here, Miller attests that Plaintiff was given 12 hours of comp time for working approximately eight hours of overtime on May 24, 2020. [Doc. 44-3 ¶ 5.] Defendants have provided a comp time tracking log that shows Plaintiff was credited for 12 hours of comp time on May 24 for “Late stay.” [Id. at 5.] Plaintiff challenges the log, arguing that it lists the wrong team for Plaintiff and fails to include a year to correspond with the dates listed. [Doc. 47 at 10.] However, the log is accompanied by Miller's sworn testimony that Plaintiff “was awarded twelve (12) hours of ‘comp time'” for May 24, 2020 [Doc. 44-3 ¶ 5], and Plaintiff has put forth no contrary evidence to create a genuine issue of material fact regarding whether he received comp time for the overtime hours worked on May 24, 2020. Accordingly, Defendants' motion should be granted with respect to Plaintiff's FLSA claim.
SCPWA Claim
Defendants argue that Plaintiff's SCPWA claim is preempted by the FLSA. [Doc. 44-1 at 22.] The Court agrees.
Because “Congress prescribed exclusive remedies in the FLSA for violations of its mandates,” state-law claims are “preempted by the FLSA where those claims have merely duplicated FLSA claims.” Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir. 2007). Here, Plaintiff's SCPWA claim merely re-alleges the portion of his FLSA claim asserting that he worked compensable time “off the clock.” [Compare Doc. 1 ¶¶ 64-65 with id. ¶ 71.] As such, his SCPWA claim is preempted by the FLSA. See Batten v. Grand Strand Dermatology, LLC, No. 4:18-cv-0616-MGL-TER, 2019 WL 9667692, at *11 (D.S.C. Dec. 20, 2019) (concluding that a plaintiff's “claim for recovery of overtime wages under the SCWPA is preempted by the FLSA”), Report and Recommendation adopted by 2020 WL 2487534 (D.S.C. May 14, 2020); McMurray v. LRJ Rests., Inc., No. 4:10-cv-01435-JMC, 2011 WL 247906, at *2 (D.S.C. Jan. 26, 2011) (“To the extent that Plaintiff seeks compensation under the [SCPWA] for overtime pay otherwise required by the FLSA or alleges that he received less than the federal minimum wage as a result of Defendants' failure to pay him for all hours worked, Anderson clearly provides that these claims are preempted by the FLSA and must be dismissed.”). Accordingly, Defendants' motion for summary judgment should be granted with respect to Plaintiff's SCPWA claim.
FMLA Claims
The FMLA provides an eligible employee with up to 12 weeks of unpaid leave to deal with a “serious health condition” of himself or a family member and provides for job restoration after using such leave. 29 U.S.C. §§ 2612(a)(1), 2614(a). The FMLA creates two types of claims: (1) interference claims, where an employee asserts that his employer denied or otherwise interfered with his substantive rights under the FMLA, see 29 U.S.C. § 2615(a)(1); and (2) retaliation claims, where an employee asserts that his employer discriminated against him because he engaged in activity protected by the FMLA, see 29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220(c) (stating that employers may not “retaliat[e] against an employee . . . for having exercised or attempted to exercise FMLA rights”). Plaintiff asserts both interference and retaliation claims. [Doc. 1 ¶¶ 73-95.]
The Complaint asserts an interference claim based on (a) failure to notify Plaintiff of his eligibility to take FMLA leave, (b) failure to reinstate Plaintiff to his previous position, and (c) termination [Doc. 1 ¶¶ 79, 81, 82], and a retaliation claim based on (a) failure to reinstate Plaintiff to his previous position and (b) termination [id. ¶¶ 91, 92].
Interference Claim
Defendants argue they are entitled to summary judgment on Plaintiff's FMLA interference claim because Plaintiff has failed to show that he was prejudiced by any purported interference with his FMLA rights. [Doc. 44-1 at 24-26.] In his response, Plaintiff fails to specifically address Defendants' argument regarding prejudice and, instead, restates the allegations of the Complaint-that Defendants failed to notify him of his eligibility to take FMLA leave, failed to reinstate him to his previous position, and terminated him. [Doc. 47 at 24-25.] The Court concludes that Defendants are entitled to summary judgment on Plaintiff's FMLA interference claim.
To make out an interference claim under the FMLA, an employee must establish that “(1) he is entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) that interference caused harm.” Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 427 (4th Cir. 2015). When an employer is on notice “that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances.” 29 C.F.R. § 825.300(b)(1). Here, Defendants seem to concede that they failed to provide Plaintiff with notice of his eligibility to take FMLA leave within five business days. [see Doc. 44-6 ¶ 4 (Chapman's averment that she “offered to send [Plaintiff] paperwork regarding the certifications required to designate leave as FMLA-protected leave, and he said he would get back to [her] about it [but h]e never did contact [her] about it”).] The Court's “inquiry, however, does not end with the determination that a violation of the FMLA notice provisions occurred.” Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 302 (4th Cir. 2016). Instead, Plaintiff must establish that he was prejudiced by Defendant's failure to provide notice. Id. As stated, Plaintiff has failed to address the prejudice prong of the inquiry, and nothing in the record supports a finding that Plaintiff was prejudiced by not receiving proper notice. Instead, Plaintiff testified that he was due to return from his leave on September 16, 2020 [Doc. 47-2 at 40], which is when he returned, see Vannoy, 827 F.3d at 302 (“Prejudice may be gleaned from evidence that had the plaintiff received the required (but omitted) information regarding his FMLA rights, he would have structured his leave differently.”). Additionally, Plaintiff testified that he was paid fully while he was on leave in Mississippi. [Doc. 47-2 at 9.] Accordingly, Plaintiff cannot establish that he was prejudiced by Defendants' failure to provide notice of his eligibility to take FMLA leave.
With respect to Plaintiff's assertion that Defendants failed to reinstate him to his prior position, the FMLA provides that an eligible employee is entitled, on return from FMLA leave, “(A) to be restored . . . to the position of employment held by the employee when leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). However, an employee's right to reinstatement is not absolute because a restored employee is not entitled to ?any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.” 29 U.S.C. § 2614(a)(3)(B); see also Yashenko v. Harrah's N.C. Casino Co., 446 F.3d 541, 547 (4th Cir. 2006) (concluding “that the FMLA does not require an employee to be restored to his prior job after FMLA leave if he would have been discharged had he not taken leave”); 29 C.F.R. § 825.216(a) (?An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”).
Here, in his response in opposition to the summary judgment, Plaintiff fails to address Defendants' argument that, because his reassignment was temporary and did not affect his compensation or benefits, it did not violate the FMLA. Moreover, the record establishes that Plaintiff's K9 recertification deadline was September 23, 2020 [Docs. 44-4; 44-5; see Doc. 1-10 at 1], and he returned from leave on September 16, 2020 [Doc. 47-2 at 40]. Miller had scheduled Plaintiff's recertification training for September 21 through 25, 2020 [id. at 25], but because Plaintiff's K9 certification was nearing expiration, Byers “decided to assign [Plaintiff] to regular patrol duty until he completed recertification training” [Doc. 44-3 ¶ 8]. Plaintiff has directed the Court to no evidence to establish that his temporary reassignment to regular patrol duty was for any reason other than that his K9 certification was expiring or that he was otherwise prejudiced in any way by the temporary reassignment. See Anderson v. Discovery Commc'ns, LLC, 517 Fed.Appx. 190, 198 (4th Cir. 2013) (stating that, to establish prejudice resulting from a violation of the FMLA, a plaintiff must show that he “lost compensation or benefits by reason of the violation; sustains other monetary losses as a direct result of the violation; or suffers some loss in employment status remediable through appropriate equitable relief, such as employment, reinstatement, or promotion” (internal quotation marks and citations omitted)); see also Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 188-89 (4th Cir. 2017) (affirming summary judgment for the defendant where the plaintiff was reinstated to a position where he received the same pay and benefits, continued to work at the same work site, reported to the same supervisor, and his duties remained focused on business development); Csicsmann v. Sallada, 211 Fed.Appx. 163, 165-66 (4th Cir. 2006) (affirming summary judgment for the defendant where the plaintiff had been in a position as a server group manager but was reinstated to a position focused on IT disaster recovery, where his salary, title, bonus eligibility, and benefits remained the same); Anderson v. Lowe's Home Centers, Inc., No. 3:06-3409-CMC-JRM, 2008 WL 11462954, at *21 (D.S.C. May 28, 2008) (citing cases concluding that more physical labor, longer hours, changes in administrative duties, and lessened prestige or visibility are de minimis differences and, therefore, the plaintiffs were restored to equivalent positions), Report and Recommendation adopted by 2008 WL 4177270 (D.S.C. Sept. 4, 2008). Nor has Plaintiff established that he would have been able to continue working as a K9 handler once his certification expired.
Although Plaintiff conclusorily asserts that “K9 Rex and his handler Jason Finley were treated differently” [Doc. 47 at 14] and that Miller “pretextually refused to restore Plaintiff to his previous position as K9 Handler to K9 Lu . . . for patently false reasons that have been resoundingly disproven” [id. at 25], Plaintiff has directed the Court to no evidence to support these assertions.
Finally, with respect to Plaintiff's assertion that Defendants interfered with his FMLA rights by terminating him, as explained with respect to Plaintiff's FMLA retaliation claim below and §§ 1981 and 1983 retaliation claim above, the undersigned finds that violating the Anti-Recording Policy by recording the Telephone Conversation was a legitimate reason for Plaintiff's termination. Therefore, Plaintiff cannot establish an interference claim under the FMLA based on his termination. See Yashenko, 446 F.3d at 549-50 (affirming summary judgment for the defendant where an employee was terminated because of a legitimate reason). For all of these reasons, Defendants' motion for summary judgment should be granted as to Plaintiff's FMLA interference claim.
Additionally, to the extent Plaintiff asserts that the Telephone Conversation amounted to FMLA interference, this less-than-five-minute call does not amount to actionable interference. See Antekeier v. Lab. Corp. of Am., 295 F.Supp.3d 679, 685 (E.D. Va. 2018) (“[A]ctionable interference is not triggered by contacts . . . amounting to no more than de minimis work-related contact.”)
Retaliation Claim
To establish a claim of retaliation under the FMLA, a plaintiff “must show ‘that he engaged in protected activity, that the employer took adverse action against him, and that the adverse action was causally connected to the plaintiff's protected activity.'” Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016). “Unlike . . . interference claims, employer intent [in retaliation claims] is relevant.” Id. “Intent can be established either by direct evidence of retaliation or through the familiar burden shifting framework articulated in McDonnell Douglas.” Id. As to the first method, ?[w]hat is required is evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Rhoads v. F.D.I.C., 257 F.3d 373, 391-92 (4th Cir. 2001) (internal quotation marks omitted). As to the burden-shifting framework, once a prima facie case has been presented, the employer has the burden of producing a legitimate, nonretaliatory reason for its actions. Id. If the employer can produce a nonretaliatory reason for its actions, the presumption of retaliation is dissolved, and the employee must demonstrate that the proffered reason is pretext for FMLA retaliation. Id. The employee may establish pretext ?by showing either that the employer's explanation is not credible, or that the employer's decision was more likely the result of retaliation.” Sharif, 841 F.3d at 203. The employee ?must produce sufficient evidence to create a genuine dispute of material fact such that a reasonable factfinder could conclude the adverse employment action was taken for an impermissible reason, i.e., retaliation.” Id.
Here, even assuming Plaintiff can establish a prima facie case of FMLA retaliation with respect to his termination, see Boone v. Bd. of Governors of Univ. of N.C. , 858 Fed.Appx. 622, 624 (4th Cir. 2021), as stated with respect to Plaintiff's §§ 1981 and 1983 retaliation claim, Defendants have articulated a legitimate, nonretaliatory reason for terminating Plaintiff: Byers decided to terminate Plaintiff for violating the Anti-Recording Policy. [Doc. 44-8.] And for the same reasons discussed with respect to Plaintiff's §§ 1981 and 1983 retaliation claim, supra, Plaintiff has not established a genuine dispute of material fact on the question of pretext sufficient to make Defendants' proffered reason a triable issue.
Moreover, with respect to Plaintiff's FMLA retaliation claim related to the purported failure to reinstate him to his previous position, as discussed with regard to his FMLA interference claim, supra, Byers decided to reassign Plaintiff temporarily to regular patrol duty until he completed recertification training because his K9 certification was nearing expiration. [Doc. 44-3 ¶ 8.] Although Plaintiff conclusorily argues that Miller pretextually refused to restore Plaintiff to his previous position “for patently false reasons that have been resoundingly disproven” [Doc. 47 at 25], he fails to direct the Court to any evidence to support this assertion. Nor does anything in the record support a finding that his temporary reassignment to regular patrol duty was a pretext for FMLA retaliation. The record establishes that his K9 certification was set to expire in June 2020, but because of COVID-19 related closures at the training vendors, the SCCJA extended the recertification by 90 days from the date the vendor reopened. [Doc. 44-4.] Highland reopened on June 25, 2020 [Doc. 44-5]; therefore, Plaintiff's recertification deadline was September 23, 2020. Miller had scheduled Plaintiff's recertification training for the week after he returned [Doc. 47-2 at 25], and as stated, Plaintiff has not established that he would have been able to continue working as a K9 handler once his certification expired. On this record, Plaintiff has not created a genuine dispute of material fact such that a reasonable factfinder could conclude Plaintiff was temporarily reassigned to patrol duty as retaliation for taking FMLA leave. Accordingly, Defendants' summary judgment motion should be granted with respect to Plaintiff's FMLA retaliation claim.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion for summary judgment [Doc. 44] be GRANTED.