Opinion
C/A 6:18-3342-TMC-KDW
05-25-2021
Deborah D. Davis, Plaintiff, v. New Penn Financial, LLC, d/b/a Shellpoint Mortgage Servicing, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Plaintiff Deborah D. Davis (“Plaintiff” or “Davis”) filed this action against her former employer, Defendant New Penn Financial, LLC, d/b/a Shellpoint Mortgage Servicing (“SMS, ” “Shellpoint, ” or “Defendant”), alleging Defendant violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., as amended by failing to rehire her; and alleging a state-law-based claim of defamation. Compl., ECF No. 1-1. Defendant seeks summary judgment as to both claims. Mot. Summ. J., ECF No. 52. Plaintiff filed a brief in opposition, ECF No. 59, to which Defendant filed a Reply, ECF No. 63. With the court's permission, Plaintiff then filed a short surreply, ECF No. 72, to which Defendant filed a short sur-sureply, ECF No. 77. 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 (“R&R”) regarding Defendant's Motion for Summary Judgment. Having reviewed the parties' submissions and the applicable law, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 52, be granted and this matter be ended.
The parties entered a stipulation of partial dismissal with prejudice as to claims brought pursuant to the Fair Labor Standards Act and the South Carolina Payment of Wages Act. ECF No. 26.
To the extent supported by the record, the court considers the facts in the light most favorable to Plaintiff, the nonmoving party, and potentially differing accounts of events are noted. This overview is not intended to exhaustively catalog every anecdote or argument made by the parties. The undersigned has reviewed all argument and evidence presented. To the extent necessary, additional facts are set out in the context of Plaintiff's specific causes of action.
A. Plaintiff's employment by SMS
SMS manages residential mortgage loans after they are originated by mortgage lenders. On behalf of SMS's lender and investor clients, SMS collects principal, interest, and escrow payments from homeowners nationwide. Founded and based in Greenville, South Carolina, SMS has offices in Arizona, Florida, Texas, and Pennsylvania. Decl. of Ne'Lee Wilson, SMS Human Resources Dept. Director (“HR Director”) ¶¶ 2-3, ECF No. 52-2. From June 20, 2016 to January 27, 2017, SMS employed Plaintiff in the Foreclosure Litigation Department as a Litigation Foreclosure Specialist II. Id. ¶¶ 6, 8. In that role, Plaintiff was (1) a timeline manager responsible for managing a portfolio of uncontested foreclosures; (2) a custodian of business records to testify in foreclosure trials; and (3) additional support staff for miscellaneous tasks to assist the Foreclosure Litigation Department. Comp. ¶ 12, admitted in Answer, ECF No. 8. Plaintiff reported primarily to Kimberly Harmstad, one of the supervisors for the Foreclosure Litigation Department. Wilson Dep. 61-62, ECF No. 52-5.
Plaintiff's citations to Wilson's deposition identify her as SMS's Federal Rule of Civil Procedure 30(b)(6) designee. Excerpts of that deposition are available at ECF No. 52-5 and ECF No. 59-3.
Plaintiff was diagnosed with hearing loss at 18-months old. Pl. Dep. (Vol. 1) 15, ECF No. 59-1 (excerpts of Pl. Dep. (Vol. 1) also available at ECF No. 52-4). Shortly after beginning her job at SMS, Plaintiff informed Harmstad and others that she had a hearing disability. Comp. ¶ 19; Harmstad Decl. ¶ 7, ECF No. 52-3. While Plaintiff was employed at SMS, she never raised, reported, or complained of disability discrimination during her employment. Pl. Dep. (Vol. 1) 51; Wilson Decl. ¶ 6.
Plaintiff's ADA claim focuses on Defendant's failure to rehire her and does not relate to her period of employment.
As set out by Defendant, Plaintiff received several written and verbal, formal and informal, reprimands for her work performance and violations of company policy during her employment with SMS. On August 11, 2016, Plaintiff received a written “Performance Coaching Form, ” and sat down with Harmstad to discuss Plaintiff's failure to follow instructions, improper and false communications with law firms, inappropriate internal email communications, improper instructions to other departments, and making unnecessary additions to existing processes. Harmstad Decl. ¶ 8 & ex. A thereto, ECF No. 52-3 at 9-12. Plaintiff also received negative feedback in SMS's quality audits for which she received counseling for performance improvement. Harmstad Decl. ¶¶ 8-9 & ex. B thereto, ECF No. 52-3 at 14-16. In the weeks prior to her resignation, Plaintiff was cited for inaccurately reporting her time in violation of SMS's timekeeping policy and for breaching SMS's Clean Desk Policy, which required employees to lock their desks every day. Harmstad Decl. ¶¶ 10-11 & exs. C, D thereto, ECF No. 52-3 at 18-22.
Plaintiff does not dispute these specific instances although she generally disagrees with any negative characterization of her work.
B. Plaintiff's January 2017 resignation and SMS's one-year rehire policy
In a January 16, 2017 letter to Harmstad, Plaintiff tendered her resignation, indicating her last day would be January 27, 2017. Jan. 16, 2017 Letter, ECF No. 52-9. Plaintiff advised that she was resigning from her position with SMS in order to study for the South Carolina February bar examination. Id.; Pl. Dep. (Vol. I.) 50. During Plaintiff's exit interview, Lindsey Wineguard, who worked in Defendant's HR Department, informed Plaintiff that she was eligible for re-hire after one year and that she was resigning in good standing with Defendant. Wineguard referenced SMS's one-year rehire policy for employees who resign from SMS; that policy requires an employee in good standing to wait one year from the date of his or her resignation to be eligible for rehire. Pl. Dep. (Vol. 1) 73-78.
Plaintiff does not dispute having been advised of the one-year rehire policy during her exit interview. However, Plaintiff indicates she had not been aware of the policy before that time and had not been provided a copy of the policy in writing prior to litigation. Plaintiff also points out that the employee handbook does not contain the policy. See Pl. Mem. 4-5; Pl. Surreply 1; Pl. Dep. (Vol. 1) 73-78. This issue is discussed further within.
SMS's one-year rehire policy, which is part of SMS's Hiring Policy and Procedure, provides in relevant part, “If an associate leaves the company in good standing and is eligible for rehire, there is a one year wait period. Any variations to this policy are left to the discretion of executive management of the business line and of Human Resources.” Policy Statement, Recruiting, Internally 4.1.1., ECF No. 52-2 at 13 (ex. to Wilson Decl.); see Wilson Decl. ¶ 9. The policy was available to Plaintiff on SMS's intranet. Wilson Dep. 34, 72.
Plaintiff was informed during her exit interview that there was a chance she could be rehired before the one-year period expired if there was an urgent need. Pl. Dep. (Vol. 1) 74-75. Wilson testified that exceptions to the one-year rehire policy have been made “[v]ery, very rarely, ” and that such exceptions would be reviewed on a case-by-case basis and “dependent on the business need and there would need to be a specific reason or skill set or some other reason that that person would need to rejoin and you couldn't find that elsewhere.” Wilson Dep. 34. Such determinations would be made by the area supervisor and that supervisor's supervisor. Id. at 34-35. In the case of a Foreclosure Specialist II like Plaintiff, supervisor Harmstad and Harmstad's supervisor would be involved in the “channels of approval.” Id. The decision would not be Harmstad's alone. Id. at 34.
C. Plaintiff's 2017 applications for rehire
After completing the February 2017 South Carolina bar examination, Plaintiff applied for several positions with SMS. She was not interviewed or hired for any of the positions. On March 6, 2017, Plaintiff applied for the Foreclosure Litigation Specialist II position (the position from which she had resigned), the TRAIL Rotational Program Position, and the Foreclosure Special Program Coordinator position. Compl. ¶ 40; Pl. Dep. (Vol. 2) 84-85. On March 6, 2017, Plaintiff received a denial email for the TRAIL Rotational Program Position. Mar. 6, 2017 email, ECF No. 59-5 (indicating Defendant “decided another candidate is a better fit for the position”). On March 13, 2017, Plaintiff received a similar denial email for the Foreclosure Special Program Coordinator position. Mar. 13, 2017 email, ECF No. 59-6. As explained by HR Director Wilson, “SMS made the decision to not consider [Plaintiff's] applications for these positions, as SMS did not have the business need and Plaintiff did not have the work record or skillset to warrant a departure from SMS's one-year rehire policy.” Wilson Aff. ¶ 12; see also Wilson Dep. 41.
Plaintiff also references an email she received from SMS regarding Defendant's job fair on April 27, 2017, in which SMS indicated it was hiring in various departments, including the foreclosure department. Apr. 26, 2017 email, ECF No. 59-7. The email, sent from SMS HR and addressed to “All Job Seekers, ” was sent to Plaintiff at her savannahlawschool.org address. Id.
On May 1, 2017, Plaintiff again applied for the Foreclosure Litigation Specialist II position. May 1, 2017 email, ECF No. 59-8. On June 6, 2017, Plaintiff applied for the Attorney Network Manager position. June 6, 2017 email, ECF No. 59-9. On July 11, 2017, Plaintiff received a denial email for the Attorney Network Manager position. July 11, 2017 email, ECF No. 59-10. As noted above, HR Director Wilson explained Plaintiff was not considered for the positions for which she applied because “SMS did not have the business need and Plaintiff did not have the work record or skillset to warrant a departure from SMS's one-year rehire policy.” Wilson Aff. ¶ 12; Wilson Dep. 41. Plaintiff did not receive denial emails for her two applications for the Foreclosure Litigation Specialist II position. Compl. ¶ 47. Wilson indicated the one-year rehire policy was the reason Plaintiff was not rehired for that position, as well. Wilson Aff. ¶ 12.
To SMS's knowledge, no one hired to fill the positions for which Plaintiff applied in 2017 had a hearing disability. Wilson Dep. 29-30, 40, 51-52
None of those hired to fill the positions for which Plaintiff applied in 2017 were subject to the one-year rehire policy. SMS hired six individuals for the Litigation Foreclosure Specialist II position. Four of these individuals were new hires, one was an internal transfer, and one was a rehired employee who had left SMS in 2015 (and therefore was not subject to the one-year rehire policy). Similarly, the employees hired for the Attorney Network Manager, Foreclosure Special Coordinator, and TRAIL Rotational positions were all new hires. Wilson Decl. ¶ 13; Wilson Dep. 28, 30-31, 22.
D. Plaintiff's EEOC Charge and Complaint
Plaintiff filed a Charge of Discrimination with the South Carolina Human Affairs Commission and the Equal Employment Opportunity Commission alleging disability discrimination when Defendant failed to rehire her as a Foreclosure Litigation Support Specialist II on or around July 11, 2017. EEOC Charge (signed by Plaintiff on February 15, 2018), ECF No. 52-8. Plaintiff filed her Complaint in the Greenville County Court of Common Pleas on November 5, 2018. It was removed to this court on December 11, 2018. ECF No. 1.
Administrative exhaustion of remedies is not at issue.
II. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). 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). Further, “self-serving, hearsay [claims are insufficient to create a material question of fact to survive summary judgment.” Duffey v. Wal-Mart Stores E. LP, No. 8:19-CV-665-TMC, 2021 WL 62163, at *4 (D.S.C. Jan. 7, 2021) (citing Farrar & Farrar Farms v. Miller-St. Nazianz, Inc., 477 Fed. App'x 981, 986 (4th Cir. 2012) and Md. Highways Contractors Ass'n v. State of Md., 933 F.2d 1246, 1251 (4th Cir. 1991)).
III. Analysis
A. Plaintiff's ADA cause of action
The ADA provides in part that an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(2), 12112(a). Plaintiff alleges Defendant discriminated against her based on her disability when it failed to rehire her for the various positions for which she applied in 2017.
Generally, there are “two avenues” by which a plaintiff may prove ADA-based discrimination. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). The first is to offer “direct or indirect evidence” of discrimination, under “ordinary principles of proof.” Burns v. AA F-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (internal quotations omitted). The other method of proof is to follow the burden-shifting approach first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ennis, 53 F.3d at 58; Chauncey v. Life Cycle Eng'g, Inc., No. 2:12-CV-968-DCN, 2013 WL 5468237, at *7 (D.S.C. Sept. 30, 2013) (considering ADA claims using burden-shifting analysis).
Here, the parties both analyze the ADA claims using the burden-shifting proof method and look to Hinson v. City of Columbia, No. CIV.A. 3:12-01032-MBS, 2013 WL 5409140, at *5 (D.S.C. Sept. 24, 2013), aff'd, 564 Fed.Appx. 11 (4th Cir. 2014), for the elements of a prima facie failure to rehire case brought pursuant to the ADA. In Hinson, the court adapted the Fourth Circuit's failure to promote framework in considering a failure to rehire claim. To establish a failure to rehire claim under the ADA, a plaintiff must prove that: (1) she is within the ADA's protected class; (2) she applied for the position(s) in question; (3) she was qualified for the position(s); and (4) the defendant rejected her application under circumstances that give rise to an inference of discrimination. Hinson, 2013 WL 5409140, at *5 (internal citations omitted). If the plaintiff establishes a prima facie case, an inference of discrimination is raised and the burden shifts to defendant to produce admissible evidence that the defendant took adverse employment action “for a legitimate, non-discriminatory reason.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the defendant carries its burden, the presumption of discrimination created by the prima facie case disappears from the case, and the plaintiff must then prove by a preponderance of the evidence that the defendant's articulated reason was a pretext for unlawful discrimination. See Id. at 253-55. In order for a plaintiff to demonstrate pretext, he must prove “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Reeves, 530 U.S. at 143. While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Id. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993)). See also Ennis, 53 F.3d at 58 (citing St. Mary's Honor Center and noting the same in ADA context). Plaintiff must establish “but-for” causation in an ADA claim. Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (“The only remaining question is whether the ADA's text calls for a ‘but-for' causation standard. We hold that it does.”).
Although Plaintiff briefly suggests that testimony in Sirmans' affidavit provides “direct evidence, ” Pl. Mem. 16, she does not explain that argument or offer legal analysis to support it.
Defendant does not dispute that Plaintiff is within the ADA's protected class or that she applied for the positions at issue. Defendant argues that Plaintiff cannot satisfy the final prongs of her prima facie case-that she was qualified for the positions or that her rejection took place under an inference of unlawful discrimination. Def. Mem. 13-16. Even if the prima facie case had been established, Defendant argues Plaintiff has not shown pretext. Id. at 16-20. Plaintiff argues she has presented sufficient evidence to survive summary judgment. Pl. Mem. 13-21.
1. Prima facie case
Citing its one-year rehire policy Defendant argues Plaintiff cannot meet the qualified-for-position prong of her prima facie case as to any of the positions for which she applied-the Foreclosure Litigation Specialist II position, the Foreclosure Special Program Coordinator position, the TRAIL Rotational Program position, or the Attorney Network Manager position. Def. Mem. 13 (citing Furgess v. United Parcel Serv., Inc., No. 3:05-1206-CMC-JRM, 2006 WL 3192542, at *8 (D.S.C. Nov. 1, 2006)). In Furgess, the court granted summary judgment in the Title VII failure-to-rehire context, finding plaintiff had not established a prima facie case because he was ineligible for rehire based on his employer's policy against rehiring certain individuals. Furgess, 2006 WL 3192542, at *2. As elaborated in the report and recommendation in that case, the plaintiff had been advised of the policy against rehiring at the time he was terminated. ECF No. 40 at 12-13 in 3:05-1206-CMC-JRM. Further, the court noted Furgess had been unable to provide evidence of a similarly situated individual who was rehired notwithstanding that policy. Id.
As to two of those positions-the Foreclosure Special Program Coordinator position, the TRAIL Rotational Program position, Defendant submits Plaintiff does not satisfy specific requirements: Plaintiff did not have three or more years of mortgage servicing experience, which was a qualification for the Foreclosure Special Program Coordinator position, Pl. Dep. (Vol. 1) 92, nor was she a May 2017 law school graduate, a requisite for the TRAIL Rotational program, Pl. Dep. (Vol. II) 55, Wilson Dep. 54-55. See Def. Mem. 7 n.10. Job Descriptions, ECF Nos. 52-10 and - 11. Plaintiff responds that Defendant “does not cite to anywhere in the record in support” of this argument. Pl. Mem. 14 n.1. Defendant did cite to competent testimonial evidence as to Plaintiff's lack of certain qualifications. In any event, the one-year rehire policy applies to all of the positions.
Although Plaintiff does not deny she was made aware of the policy at her exit interview, she attempts to avoid application of the one-year rehire policy in her case by claiming it was not a written policy in the employee handbook, she had not been advised of it prior to her resignation, and she had not been asked to sign something regarding it. Pl. Mem. 14 (citing Pl. Dep. 73-78). Plaintiff also argues that, “(c)onveniently, this policy's existence has only emerged as an excuse to not rehire Plaintiff.” Pl. Mem. 14 (citing Pl. Dep. (Vol 1) 73-78).
However, Plaintiff has pointed to no competent evidence or legal requirements to support her arguments against the policy. Plaintiff does not explain why she believes a policy must be included in an employee handbook to be valid (it was available to all employees on the intranet, as explained by Wilson) or why she believes that a policy is valid only if an employee signed something acknowledging its existence. Importantly, Plaintiff admits she was aware of the policy in that it was discussed with her during her exit interview when she was planning to resign. Finally, the most liberal construction of Plaintiff's testimony at pages 73 through 78 of Volume I of her deposition do not support her claim that the policy “conveniently . . . only emerged as an excuse not to rehire [her].” Pl. Mem. 14. Rather, that portion of her deposition includes Plaintiff's self-serving testimony and her own opinion that the policy was “a pretextual statement, ” Pl. Dep. (Vol. 1) 74, that exceptions to the policy had been made, and that there had been an “implication that, because [Plaintiff] was in good standing, that there was a high likelihood of being able to come back due to the nature of the position [Foreclosure Litigation Specialist II] always having an opening, or having an opening quite frequently[, ]” Id. at 78. Plaintiff's belief that the policy was “pretextual” and her perception that an out-of-policy rehire had “implicitly” been suggested to her are not competent evidence. See CoreTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th Cir. 2014) (“[I]t is ultimately the nonmovant's burden to persuade us that there is indeed a dispute of material fact. . . . It must provide more than a scintilla of evidence-and not merely conclusory allegations or speculation-upon which a jury could properly find in its favor.” (citation omitted)); Williams v. Giant Food, Inc., 370 F.3d 423, 433 (4th Cir. 2004) (“[The plaintiff's] testimony that she believed her evaluations to be ‘unfair and untrue and incorrect' is merely a self-serving opinion that cannot, absent objective corroboration, defeat summary judgment.”); see Riley v. Honeywell Tech. Sols., Inc., 323 Fed. App'x 276, 278 & n.2 (4th Cir. 2009) (holding that plaintiff's “self-serving contentions” that he was treated unfairly “were properly discounted by the district court as having no viable evidentiary support”); Kemp v. United Parcel Serv., Inc., No. CV 1:14-48440-JMC-KDW, 2016 WL 11397837, at *13 (D.S.C. Apr. 18, 2016) (finding that a plaintiff's general statement, unsupported by the record evidence, that he was known for standing up for racial inequalities was not competent evidence to be considered on summary judgment).
Further, Plaintiff suggests the policy should not be applied for purposes of the prima facie analysis because Defendant has “admitted that exceptions to this policy have been made for other non-disabled former employees in the past.” Pl. Mem. 15 (citing Pl. Dep. (Vol. 1) 82-85, Wilson Dep. 34). In her cited testimony Plaintiff generally indicates that she recalled having met a former co-worker whose last name was also Davis who had resigned from the Foreclosure Litigation Specialist II position for reasons related to her education, and had been rehired into the bankruptcy department within one year. Pl. Dep. (Vol. 1) 82-85. Plaintiff provides no further particulars regarding these prior alleged exceptions or how they effectively require the court to ignore a policy of which Plaintiff admits she was made aware and that was available for Plaintiff and all employees to review on the SMS intranet. Although Plaintiff indicates in her deposition that the HR witness (Wilson) provided more details regarding the exception as applied to the other Ms. Davis, Id. at 83, 84, Wilson testified only that an employee named Kathy Davis had moved from foreclosure to bankruptcy, and back to foreclosure. Wilson testified that she was unsure of the times of those changes. Wilson Dep. 33. Wilson also testified that she was unsure whether Kathy Davis's position changes were related to her need for certain educational-related scheduling. Wilson Dep. 75-76. Construed in the light most favorable to Plaintiff, she has not provided competent evidence that exceptions were made for Kathy Davis (or any non-disabled person) under circumstances similar to her own.
To establish discriminatory treatment by comparing her treatment to others, Plaintiff would need to provide evidence of similarly situated comparators who were rehired within one year of their post-resignation applications. Generally, a plaintiff must establish that the relevant “comparators” were similarly situated “in all relevant respects, ” including evidence that the employee “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” the employee's conduct or the employer's treatment of them for this conduct. Hurst v. D.C., 681 Fed. App'x 186, 191, 193 (4th Cir. 2017); see Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010). This she has not done. Her brief reference to Kathy Davis does not provide sufficient evidence to demonstrate they were similarly situated or even that the same decision-makers rehired her within one year of her resignation.
In opposing summary judgment Plaintiff again urges the court to ignore the issue of the policy and to simply look to those who were hired for the positions for which she applied as the relevant comparators. Pl. Mem. 16. Plaintiff's desire to simply reframe the focus on who her comparators would be does not make it appropriate to do so. Further, Plaintiff has not presented evidence regarding how similarly situated she and the hired applicants were (or were not). Rather, she cites only to testimony that they were hearing individuals. That they were not disabled and she was is but part of the comparator calculus. Even if those individuals were appropriate comparators, she has provided no evidence that they, too, had worked for her former supervisor before, had resigned, and had been rehired within one year. In fact, the only evidence before the court is that the individuals hired for the positions she sought were either new hires, an internal transfer, and a former employee who was rehired after a two-year hiatus (and therefore was not subject to the one-year rehire policy). Wilson Decl. ¶ 13; Wilson Dep. 29-31, 33. Again, none of these employees was a former employee subject to the one-year rehire policy. See, e.g., Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 379 (6th Cir. 2002) (finding, among several reasons, that the employees identified and referenced by plaintiff were not similarly situated to plaintiff insofar as they did not resign and seek to be rehired by the employer). In fact, the only similarity between the identified comparators and Plaintiff was that they applied for the same positions. Plaintiff did not and cannot identify any other similarities. Haywood, 387 Fed.Appx. at 359 (finding plaintiff provided insufficient evidence that the comparators were similarly situated when the only similarities between them and plaintiff were that they all worked for the defendant employer during the early 2000s and all applied for the same promotion). Consequently, Plaintiff has failed to provide any competent evidence that supports an assertion that SMS misapplied the policy or applied it in a discriminatory manner.
Because Plaintiff cannot establish that she was qualified for the positions for which she applied, she cannot establish a prima facie failure-to-rehire case under the ADA. Further consideration of the ADA claim is not required; the district judge could grant summary judgment on the ADA claim without further analysis. In any event, the undersigned considers Plaintiff's remaining arguments regarding the ADA claim.
Plaintiff also attempts to establish her prima facie case based on various comments allegedly made by her former supervisor, Harmstad, which Plaintiff alleges indicate discriminatory animus. Plaintiff submits that, as her former supervisor, Harmstad was a decisionmaker concerning Plaintiff's applications for a Foreclosure Litigation Specialist II position. Pl. Mem. 15 (citing Wilson Dep. 34-35, 66-67). As an initial matter, the undersigned notes that the cited testimony concerns Wilson's responses to general questions regarding whether Harmstad would be consulted regarding the need for an exception of the rehire policy and whether she generally would be consulted as to hires for her team. Wilson did not testify that Harmstad had been involved in determining whether Plaintiff should be rehired. In fact, both Wilson and Harmstad state in their declarations that Harmstad did not have the authority to make an exception to the one-year rehire policy and was not consulted or involved with Plaintiff's applications for rehire. Wilson declared, “Ms. Harmstad was not involved in and was not consulted regarding [the decision not to consider Plaintiff for the positions for which she applied]. My team did inform Ms. Harmstad that Ms. Davis had reapplied for a position with SMS, but only after all the positions for which Plaintiff applied had been filled.” Wilson Decl. ¶ 12. See Harmstad Decl. ¶ 14, ECF No. 52-3 (indicating she was advised of Plaintiff's application after the position had been filled and was not consulted about whether Plaintiff's application warranted a departure from the one-year rehire policy). Disputes of fact are, of course, taken in Plaintiff's favor. In this instance, Wilson's general testimony regarding abstract procedure when someone applies or re-applies for a position is not sufficient to establish a factual issue as to whether Harmstad was involved in the decision not to rehire Plaintiff.
Plaintiff also looks to testimony of her former co-worker, Tracy Sirmans. Pl. Mem. 16. Sirmans' testimony is itself based on conjecture and does not specifically speak to the Defendant's decision to apply to one-year rehire policy and not consider Plaintiff. Rather, concerning Plaintiff's applications for rehire, Sirmans testified as follows:
Defendant has also proffered evidence of written complaints about Plaintiff that Sirmans made to Harmstad. Because credibility of witnesses is not something the court is to consider at the summary judgment stage the undersigned has not considered that evidence herein.
Each time after Ms. Davis applied for her old position on or around March 6, 2017, May 1, 2017, and June 6, 2017, Ms. Harmstad would complain about Ms. Davis again and drag Ms. Davis's name through the mud. Ms. Harmstad referred to Ms. Davis's disability, and claimed that Ms. Davis would use her disability against Shellpoint. Ms. Harmstad admitted “there was no way that I would bring her back into the department.” It was implied by Ms. Harmstad's conduct that Ms. Harmstad would not re-hire Ms. Davis because of Ms. Davis's disability, especially with the number of times Ms. Harmstad disparaged Ms. Davis because of Ms. Davis's hearing disability.
Sirmans Aff. ¶ 21, ECF No. 21-12. Sirmans' general recollections and characterizations of what Harmstad said, taken at face value, do not provide competent evidence that Harmstad was involved in the consideration of Plaintiff's applications. In her deposition Sirmans specifically testified that she had no knowledge of the actual application process of who was involved in considering Plaintiff's applications. Sirmans Dep. 127-28, ECF No. 59-11.
Plaintiff citation to generalized evidence regarding a supervisor's role in hiring decisions at SMS does not create an issue of fact as to what took place when SMS was considering Plaintiff's specific applications for rehire. Plaintiff has not provided competent evidence that can survive summary judgment. Nor can her reliance on Sirmans' affidavit indicating what she believed to be “implied” based on things Sirmans indicated she had heard suffice to present evidence sufficient to defeat summary judgment. See Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (“The nonmoving party cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” (internal citations and quotations omitted)).
Plaintiff's citation of EEOC v. Town & Country Toyota, Inc., 7 Fed.Appx. 226 (4th Cir. 2001), see Pl. Mem. 15-16, does not change this result. In Town & Country, the Fourth Circuit found summary judgment to have been inappropriate based on a manager's statement that he “found it difficult to employ someone who is obviously in such pain and misery in performing their job, especially when one is expected to interface with the public in a cheerful manner.” Id. at 230, 232. In that case, the statement unequivocally had been provided to the EEOC by the employee's manager and was related to a discriminatory discharge claim. The analysis in that case does not suffice to paint as discriminatory the conclusory statements and “inferences” made by a coworker who admittedly had no knowledge of the process involved in considering Plaintiff's applications for rehire. Plaintiff has not demonstrated an inference of discrimination, and summary judgment is appropriate.
As Plaintiff has not established a prima facie case that she was not rehired because of her disability, summary judgment as to her ADA claim is appropriate. Out of an abundance of caution, and acknowledging Plaintiff's burden of establishing a prima facie case is not an onerous one, the undersigned continues the analysis, shifting the burden to SMS to show a legitimate, nondiscriminatory reason for not rehiring Plaintiff.
2. Pretext
The burden of production shifts to Defendant to provide evidence of a legitimate, nondiscriminatory reason for not rehiring Plaintiff. Burdine, 450 U.S. at 254. In considering whether the reasons given are legitimate and nondiscriminatory, the court need not determine the employer's reasons are “wise, fair, or even correct” so long as they were the reasons for Defendant's actions. DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998).
Defendant's legitimate, nondiscriminatory reason for Plaintiff's not being rehired is its one-year rehire policy. The burden then shifts to Plaintiff to rebut the employer's evidence with competent evidence that SMS's refusal to rehire Plaintiff was false, dishonest, or otherwise unworthy of credence. Staley v. Gruenberg, 575 Fed.Appx. 153, 155 (4th Cir. 2014). Instead of disputing the merits of SMS's explanation, Plaintiff must demonstrably show that discriminatory animus-not the one-year rehire policy-was the true reason for her not being rehired. EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001).
At its essence, Plaintiff's pretext argument is that Defendant allegedly “selectively and discriminatorily” applied the policy against Plaintiff but not against other employees. Pl. Mem. 17. However, as discussed above, Plaintiff has proffered no competent evidence that the one-year rehire policy was not applied to her comparators. That witnesses have testified that there could be rare exceptions made to the policy is insufficient to show pretext. Plaintiff has not demonstrated “selective enforcement” of the one-year rehire policy and cannot establish pretext.
Similarly unavailing is Plaintiff's attempt to paint Defendant's reference to Plaintiff's performance issues as “after the fact excuses” for SMS's actions. Pl. Mem. 19-20 (claiming pretext based on Defendant's “shifting inconsistencies” as to why it did not rehire her). SMS has never strayed from its application of the one-year rehire policy in declining to consider Plaintiff's applications. Defendant's discussion of Plaintiff's job performance is presented not as an “alternative” reason for not rehiring her; rather, Defendant looks to Plaintiff's job performance in response to Plaintiff's litigation-based argument that Defendant should have made an exception to this policy in her case. Defendant's reason for not rehiring-the one-year rehire policy-and its notation of Plaintiff's job performance are complementary, not “shifting, ” explanations for why Plaintiff was not considered for the positions for which she applied.
Plaintiff has not demonstrated pretext. Summary judgment as to her disability-discrimination claim based on failure to rehire is appropriate.
B. Plaintiff's defamation claim
If summary judgment is granted as to the ADA claim, no federal claims remain. The District Judge could, in his discretion, opt not to exercise supplemental jurisdiction over the remaining state-law-based claim and remand it to state court.
Defendant also seeks summary judgment as to Plaintiff's defamation cause of action, claiming Plaintiff has presented no actionable defamatory remarks that should be considered by a jury. Def. Mem. 20-35; Reply 7-15; Sur-surreply 3-6. Plaintiff disagrees, arguing hers is a “textbook case of defamation per se.” Pl. Mem. 21; see Id. at 21-31; Surreply 2-4.
1. The allegedly defamatory remarks
Plaintiff's defamation claim relates to various remarks allegedly made by Harmstad, her former supervisor. Plaintiff herself did not hear the remarks; rather, she presents declarations and testimony by former SMS employees James Daughtry and Tracy Sirmans in support of her defamation cause of action. Plaintiff's opposition memorandum includes a bullet-point list of the alleged remarks at issue, which the court looks to in assessing Defendant's Motion. Pl. Mem. 8-10. The court has numbered the listed statements sequentially for ease of reference.
In the Argument section of her memorandum Plaintiff offers more generalized summaries of the allegedly defamatory statements, often citing only to Sirmans' and Daughtry's depositions “generally.” See, e.g., Pl. Mem. 22, 23, 27. In the interest of completeness, this R&R sets out the bullet-point lists of statements as provided in Plaintiff's memorandum. The court's recitation of this list does not automatically indicate the court finds all statements therein to be based on competent, admissible evidence. Only statements supported by citation to competent testimony need be considered by the court in deciding summary judgment. See Duffey v. Wal-Mart Stores E. LP, No. 8:19-CV-665-TMC, 2021 WL 62163, at *4 (D.S.C. Jan. 7, 2021) (finding “self-serving hearsay claim” did not create material question of fact sufficient to survive summary judgment; citing Farrar & Farrar Farms v. Miller-St. Nazianz, Inc., 477 Fed. App'x 981, 986 (4th Cir. 2012); Md. Highways Contractors Ass'n v. State of Md., 933 F.2d 1246, 1251 (4th Cir. 1991) (“[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.”)).
Plaintiff provides the following list of statements by Daughtry regarding things Harmstad allegedly said:
1) “On a couple of occasions she [Harmstad] said things that were not nice about Ms. Davis.” Daughtry Dep. 9, ECF No. 59-4.
2) “What Ms. Harmstad did I felt was totally unprofessional and just nasty.” Id. at 10.
3) “The only disparaging things I heard about Ms. Davis were from Ms. Harmstad.” Id. at 30.
4) “[Harmstad said] ‘She's crazy if she thinks she's going to come back here and work with me.'” Id. at 35.
5) “It had been in no uncertain terms that she was saying that what Ms. Davis had done was wrong.” Id. at 46.
6) “It was ridicule and disbelief that Ms. Davis could think that she could ever come back and work in that position under her ever again.” Id. at 50.
7) “What she did is indefensible.” [no specific citation to record provided]
Pl. Mem. 8 (citing Daughtry Dep.).
Rather than provide specific record citations beside each of the listed statements Plaintiff provided one string citation at the end of the list. The court has taken the time to pair the statements with the corresponding citation to deposition testimony when possible. Plaintiff is reminded that this detailed citation to the record is her job, not the court's. See Local Civ. Rule 7.05(A)(4) (D.S.C.).
Plaintiff also provides a list of statements attributed to former employee Sirmans. Again, Plaintiff provides only a string-citation list of references to Sirmans' deposition transcript and a general citation to “ECF 52.12” in listing the following testimony regarding Harmstad's statements:
“ECF 52.12, ” presumably a citation to ECF No. 52-12, which is Defendant's exhibit that includes a Defendant-prepared Chart of Alleged Defamatory Statements as well as the Affidavits of Daughtry and Sirmans that Plaintiff had presented to the EEOC.
8) “Kim Harmstad had a reputation of making Deborah look bad to her coworkers or other people on our team because she made such a volatile and hostile work environment for Deborah that no one wanted to do anything with Deborah or for Deborah.” Sirmans Dep. 41, ECF No. 59-11.
9) “My concern was built upon the concerns that Kim Harmstad consistently drilled into our team's head, that when we trained with Charlene, Charlene would say the same thing: Anything that Deborah did or instructed you on, do not listen to because it most likely is incorrect. Kim said that if she works on any of your files to make sure you look over everything because most likely it's not done correctly.” Id. at 44.
10) “She would harass and chastise people either to their face or to their back. She targeted Deborah. She targeted anyone who went against her. She would call you out in front of other people, and she was just - she would say horrible things.” Id. at 85 (this page available at ECF No. 52-6).
11) “[Harmstad made] comments that [Plaintiff]'s an idiot or she's a lunatic or she's, you know, she's trying to be somebody that she's not, she doesn't even know what she's doing.” Id. at 118.
12) “[Harmstad said] ‘Guess who passed the bar? Nobody will ever be going to her.'” Id. at 129.
13) “Ms. Harmstad continued to disparage her and her ideas and her findings, calling them wrong, insignificant.” Id. at 140.
14) “Harmstad got on the phone with our main contact [at Kelly Kronenberg's office] . . . and said, you know, that everything that Deborah had said or done during her employment with Shellpoint was to be discarded, disregarded, and not taken into consideration from that point forward, that she incorrect, that she was wrong.” Id. at 142.
15) “She specifically said that Deborah was using - pulling the disability card, and that even if Kim wanted to fire her or have her fired, which she tried, she was told after another supervisor, I guess, reviewed Deborah's work that Deborah was not doing anything wrong.” Id. at 153.
16) “I believed what Ms. Harmstad was stating with regard to Deborah's work was false. A lot of the things she said about Ms. Davis I believe was just being - just being mean and just showing her disdain for Ms. Davis.” Id. at 203.
17) “[Harmstad said of Plaintiff] that she would have to go into her own practice because nobody would hire her because she is a lunatic” Id. at 204.
18) “She pretty much was singled out as, you know, using her disability to her advantage. And when she tried to, you know, discuss things about, you know, some of our procedures there at Shellpoint, she was further, you know, talked about in a negative way.” Id. at 135.
19) “Other co-workers and the Foreclosure Department could easily hear Ms. Harmstad when broadcasting herself about personal issues or work-related issues . . . the absolute worst example was when she did the same to Ms. Davis that was noticeably worse than anyone else. Ms. Harmstad dragged Ms. Davis's name through the mud. Beyond unprofessional, it was awful to listen to on so many accounts.” Sirmans Aff. ¶ 6.
20) “Ms. Harmstad often spoke disparagingly of Ms. Davis to the point that Ms. Harmstad's behavior occurred so frequently in Ms. Davis's absence that the dates were too numerous to count for me to recall every single time such behavior occurred. I could write a book.” Id. ¶ 7.
21) “Ms. Harmstad apprised everyone in the Foreclosure Department that Ms. Harmstad had no choice at that point but to keep Ms. Davis now, not only because Ms. Jones said so, but because Ms. Davis was ‘playing up' the deaf disability.” Id. ¶ 15.
22) “Ms. Harmstad disparaged Ms. Davis so often while Ms. Davis worked at Shellpoint and after Ms. Davis worked at Shellpoint that myself and my co-workers just put in earplugs to listen to music and drown Ms. Harmstad out because we were all tired of Ms. Harmstad complaining about her staff.” Id. ¶ 20.
23) “I even approached upper management to complain about Ms. Harmstad's constant complaining of Ms. Davis as she hadn't been at Shellpoint for months and Ms. Harmstad was still dragging her name through the mud.” Id. ¶ 22.
24) “Overall, I found Ms. Harmstad's behavior abhorrent, awful, and beyond unprofessional. Ms. Harmstad created a toxic working environment, and Ms. Davis was a targeted victim of such cruelty because of her disability.” Id. ¶ 23.
25) Each time after Ms. Davis applied for her old position on or around March 6, 2017, May 1, 2017, and June 6, 2017, Ms. Harmstad would complain about Ms. Davis again and drag Ms. Davis's name through the mud. Ms. Harmstad referred to Ms. Davis's disability, and claimed that Ms. Davis would use her disability against Shellpoint. Ms. Harmstad admitted “there was no way that I would bring her back into the department.” It was implied by Ms. Harmstad's conduct that Ms. Harmstad would not re-hire Ms. Davis because of Ms. Davis's disability, especially with the number of times Ms. Harmstad disparaged Ms. Davis because of Ms. Davis's hearing disability. Id. ¶ 21.
26) “Come to find out Deborah was doing everything correctly.” Sirmans Dep. 46.
Pl. Mem. 9-10 (citing Sirmans Dep. and ECF No. 52-12).
2. South Carolina defamation law
The parties agree that South Carolina law applies to the defamation cause of action. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938). To establish defamation under South Carolina law, Plaintiff must show: “(1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Erickson v. Jones Street Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006) (citation omitted).
South Carolina courts typically include “falsity” in stating the elements of defamation. However, as the court noted in Jeter v. Allstate Insurance Co., No. CV 7:15-1458-TMC, 2016 WL 7115912, at *4 (D.S.C. Aug. 22, 2016), a private individual claiming defamation as to a matter that is not of public concern “has no duty to plead or prove falsity during [her] case-in-chief[.]” Id. at *12, n.4 (quoting Parrish v. Allen, 656 S.E.2d 382, 392 (S.C. Ct. App. 2007)). Truth is an affirmative defense as to which the defendant has the burden of proof unless the statement involves a constitutional issue. Id.
Here the alleged defamatory statements were spoken, making Plaintiff's claim one of slander. “Slander is actionable per se when the defendant's alleged defamatory statements charge the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession.” Goodwin v. Kennedy, 552 S.E.2d 319, 322-23 (S.C. Ct. App. 2001). Whether a statement is actionable per se is a matter for the court to determine. McBride v. Sch. Dist. of Greenville Cnty., 698 S.E.2d 845, 852 (S.C. Ct. App. 2010) (citing Erickson, 629 S.E.2d at 664). When a statement is considered actionable per se, defendant is presumed to have acted with common law malice, and the plaintiff is presumed to have suffered general damages. Id. When the statement is not actionable per se, “the plaintiff must plead and prove both common law malice and special damages.” Id. “Common law malice means the defendant acted with ill will toward the plaintiff, or acted recklessly or wantonly, i.e., with conscious indifference of the plaintiff's rights.” Erickson, 629 S.E.2d at 665.
Defendant challenges all of the allegedly defamatory statements, asserting some are opinion and not “defamatory” at all, some are not pleaded with sufficient particularly to survive summary judgment, some are not actionable because they were stated outside the applicable two-year statute of limitations, some are true, and some are privileged. Def. Mem. 20-35; Reply 7-15; Sur-surreply 3-6.
3. Analysis of defamation arguments
a. Allegations derived from Daughtry's deposition
In its Reply addressing the lists of allegedly defamatory statements Defendant argues that the “quotes attributed to Daughtry can be dispensed with summarily, ” as his statements are not “remotely actionable and Plaintiff cites no cases for the proposition that Daughtry's statements constitute actionable defamation.” Reply 8 & n.10. In Plaintiff's surreply she does not specifically address Defendant's argument concerning the Daughtry statements. The undersigned agrees with Defendant. Most of the seven statements attributed to Daughtry on page 8 of Plaintiff's opposition memorandum do not include actual statements attributed to Harmstad (or anyone else). Rather, most of the Daughtry statements concern Daughtry's own personal beliefs (such as his statements (1) that Harmstad “said things that were not nice about Ms. Davis, ” (2) that Daughtry “felt” what Harmstad did was “totally unprofessional and just nasty, ” and (7) “indefensible”). Similarly, Daughtry's indication that (3) the “only disparaging things” he heard about Plaintiff were from Harmstad does not relate to any specific defamatory statement. Those statements (numbered 1, 2, 3, and 7) could in no way constitute actionable defamation. No. further discussion of those statements is required. Summary judgment is appropriate as to them.
The remaining statements attributed to Daughtry, listed on page 8 of Plaintiff's memorandum-4, 5, and 6-are considered below.
b. Statute of limitations
Plaintiff filed her Complaint on November 5, 2018. Based on South Carolina's two-year statute of limitations for defamation actions, SC Code Ann. § 15-3-550, Defendant seeks dismissal of allegedly defamatory comments made prior to November 5, 2016. Def. Mem. 22-24. Specifically, this includes the statement that Sirmans attributes to Harmstad that Plaintiff was using the “disability card.” See numbered statement 15. Sirmans testified that the statement was made “about three months” after Plaintiff had been hired (in June 2016). Sirmans Dep. 153.
Plaintiff does not dispute the existence of a two-year limitations period; rather, she argues the limitations period is “not of consequence” because she has evidence of defamation that took place after November 5, 2016. Pl. Mem. 30. Plaintiff does not specifically address the testimony by Sirmans that the “disability card” statement was made about three months after Plaintiff was hired.
The undersigned agrees that summary judgment should be granted as to any allegedly defamatory statement made prior to November 5, 2016. This includes the statement Sirmans' attributed to Harmstad about Plaintiff's “pulling the disability card[, ]” which Sirmans heard “about three months after [Plaintiff] had been there.” Sirmans Dep. 153 (statement number 15 in list above).
Sirmans went on to testify she heard Harmstad comment about the “disability card” “five times.” Sirmans Dep. 153. Plaintiff provides no details regarding when those other times may have taken place. As discussed within, claims not tied to specifics should not survive summary judgment. See Williams v. Am. Int'l Grp. Inc., No. 4:17-3396-MGL-KDW, 2019 WL 5856269, at *4-5 (D.S.C. Aug. 6, 2019) (granting defendant's motion for summary judgment on plaintiff's defamation claim where plaintiff filed his claim more than two years from the alleged defamatory letter and plaintiff failed to identify when the other defamatory statements were made), report and recommendation adopted, 2019 WL 5387912 (D.S.C. Oct. 22, 2019), aff'd, 806 Fed. App'x 192 (4th Cir. 2020).
c. Lack of specificity
Presented as a part of the timeliness argument, Defendant submits some allegedly defamatory statements cannot survive summary judgment because they do not include sufficient information to put Defendant or the court on notice as to when they were made. Def. Mem. 24 (citing several cases for the proposition that plaintiff in defamation action must provide specificity as to details such as time, place, and listener).
Defendant's tie between these arguments is that Plaintiff did not provide detail sufficient to indicate any statements allegedly made during Plaintiff's employment were made after November 5, 2016. Defendant concedes that a few statements attributed to the time after Plaintiff had resigned would not be time-barred.
Plaintiff does not respond to Defendant's argument that Plaintiff has not provided sufficient detail as to what was said, when it was said, and who said it to whom. In arguing that her defamation claim survives the statute-of-limitations challenges Plaintiff generally argues that “Harmstad engaged in consistent, overwhelming defamation of Plaintiff beyond the cutoff date listed by Defendant.” Pl. Mem. 30 (citing Daughtry and Sirmans Deps. “generally” and citing “ECF No. 52.12”). More specifically, Plaintiff provides excerpts from five paragraphs of Sirmans Affidavit (ECF No. 52-12) in support of her argument that the claim was timely because it continued. Of the five excerpts four do not offer sufficient specificity to survive summary judgment. For example, Sirmans indicated:
The fifth-cited excerpt is not substantively very specific, either; it could be dismissed on that ground. However, because the fifth excerpt includes specific dates, it is discussed elsewhere. See Sirmans Aff. ¶ 21 (indicating that “[e]ach time” Plaintiff applied for her old position, “on or around March 6, 2017, May 1, 2017, and June 6, 2017, ” Harmstad complained about Plaintiff).
• the “dates were too numerous to count for [her] to recall every single time” Harmstad “spoke disparagingly” of Plaintiff; Sirmans Aff. ¶ 7 (numbered statement 20);
• “Every time” Plaintiff went to lunch or was out for the day Harmstad would “openly discuss all of the terrible things Ms. Davis did and said[, ]” and Ms. Harmstad “constantly” said Plaintiff was “‘crazy,' a lunatic, and off her rocker, and so forth.” Id. ¶ 13; (similar to numbered statement 11);
• Harmstad “disparaged [Plaintiff] so often” when she worked at SMS and after she left that Sirmans and coworkers “just put in earplugs to listen to music” because they were tired of Harmstad's “complaining about her staff.” Id. ¶ 20. (numbered statement 22)
• Harmstad was still “dragging [Plaintiff's] name through the mud” although Plaintiff had not worked at SMS “for months.” Id. ¶ 22. (numbered statement 23)
Comments that Plaintiff was “crazy” or “lunatic” and the like are separately discussed below.
Pl. Mem. 30-31 (citing Sirmans Aff.).
Several other statements provided by Sirmans and relied on by Plaintiff are similarly unspecific and plainly do not provide evidence of defamation but do not necessarily relate to any of the remaining arguments or defenses presented by Defendant. Accordingly, and for the sake of completeness, the undersigned notes that the following statements listed by Plaintiff on pages 8 and 9 of her brief are related to Sirmans' own beliefs or otherwise are not specific enough to merit further consideration as potentially defamatory statements somehow attributable to Defendant:
• “Kim Harmstad had a reputation of making Deborah look bad to her coworkers or other people on our team because she made such a volatile and hostile work environment for Deborah that no one wanted to do anything with Deborah or for Deborah.” Sirmans Dep. 41, ECF No. 59-11 (numbered statement 8);
• “She would harass and chastise people either to their face or to their back. She targeted Deborah. She targeted anyone who went against her. She would call you out in front of other people, and she was just - she would say horrible things.” Id. at 85 (this page available at ECF No. 52-6) (numbered statement 10);
• “Ms. Harmstad continued to disparage her and her ideas and her findings, calling them wrong, insignificant.” Id. at 140 (numbered statement 13).
• “I believed what Ms. Harmstad was stating with regard to Deborah's work was false. A lot of the things she said about Ms. Davis I believe was just being - just being mean and just showing her disdain for Ms. Davis.” Id. at 203 (numbered statement 16);
• “She pretty much was singled out as, you know, using her disability to her advantage. And when she tried to, you know, discuss things about, you know, some of our procedures there at Shellpoint, she was further, you know, talked about in a negative way.” Id. at 135 (numbered statement 18).
• “Other co-workers and the Foreclosure Department could easily hear Ms. Harmstad when broadcasting herself about personal issues or work-related issues . . . the absolute worst example was when she did the same to Ms. Davis that was noticeably worse than anyone else. Ms. Harmstad dragged Ms. Davis's name through the mud. Beyond unprofessional, it was awful to listen to on so many accounts.” Sirmans Aff. ¶ 6 (numbered statement 19);
• “Ms. Harmstad often spoke disparagingly of Ms. Davis to the point that Ms. Harmstad's behavior occurred so frequently in Ms. Davis's absence that the dates were too numerous to count for me to recall every single time such behavior occurred. I could write a book.” Id. ¶ 7 (numbered statement 20).
• “Overall, I found Ms. Harmstad's behavior abhorrent, awful, and beyond unprofessional. Ms. Harmstad created a toxic working environment, and Ms. Davis was a targeted victim of such cruelty because of her disability.” Id. ¶ 23 (numbered statement 24).
• “Come to find out Deborah was doing everything correctly.” Sirmans Dep. 46. (numbered statement 26).
Pl. Mem. 9-10.
None of these statements provides sufficient detail of actionable defamation. Sirmans' generally recollecting the dates Harmstad “spoke disparagingly” were “too numerous to count” does not permit the court to determine whether the alleged remarks were (a) of a potentially defamatory nature; (b) made after November 5, 2016 (so as to be timely); or (c) were made to persons to permit the court to determine whether nonprivileged publication took place. Similarly unavailing are Sirmans' opinions as to the general tenor of the office or how she found Harmstad's behavior to be. Summary judgment as to these statements (or others like it) is appropriate without further analysis. See, e.g., Brailsford v. Wateree Cmty. Action, Inc., 135 F.Supp.3d 433, 448 (D.S.C. 2015) (granting summary judgment as to defamation claim and finding plaintiff's general allegations such as his being “continually reassigned and demoted” in “late 2011 through 2012” and claiming certain actions taken against plaintiff became “known throughout the agency” insufficient to satisfy basic elements of defamation claim as to which plaintiff bore burden of proof); Doe v. Cannon, No. 2:16-cv-00530-RMG, 2017 WL 591121, at *1 (D.S.C. Feb. 14, 2017) (dismissing defamation claim because the plaintiff's allegations fail to “state with specificity the time, place, medium, and listener of the alleged defamatory statements”).
d. Remaining allegedly defamatory statements
The remaining statements from Plaintiff's bullet-point list are considered through the lens of several defenses raised by Defendant and counter-arguments presented by Plaintiff. Broadly, Defendant seeks summary judgment for these statements based on their being subject to the qualified privilege afforded to many workplace discussions and/or being opinion/hyperbole protected by the First Amendment. The remaining statements follow:
Some allegedly defamatory statements could be subject to more than one defense. Similarly, some of these remaining statements arguably remain too indistinct to survive summary judgment.
• “[Harmstad said] ‘She's crazy if she thinks she's going to come back here and work with me.'” Daughtry Dep. 35 (numbered statement 4).
• “It had been in no uncertain terms that she [Harmstad] was saying that what Ms. Davis had done was wrong.” Id. at 46 (numbered statement 5).
• “It was ridicule and disbelief that Ms. Davis could think that she could ever come back and work in that position under her ever again.” Id. at 50 (numbered statement 6).
• “My concern was built upon the concerns that Kim Harmstad consistently drilled into our team's head, that when we trained with Charlene, Charlene would say the same thing: Anything that Deborah did or instructed you on, do not listen to because it most likely is incorrect. Kim said that if she works on any of your files to make sure you look over everything because most likely it's not done correctly.” Sirmans Dep. 44 (numbered statement 9).
• “[Harmstad said] ‘Guess who passed the bar? Nobody will ever be going to her.'” Id. at 129 (numbered statement 12).
• “Harmstad got on the phone with our main contact [at outside attorney Kelly Kronenberg's office] . . . and said, you know, that everything that Deborah had said or done during her employment with Shellpoint was to be discarded, disregarded, and not taken into consideration from that point forward, that she incorrect, that she was wrong.” Id. at 142 (numbered statement 14).
• “[Harmstad said of Plaintiff] that she would have to go into her own practice because nobody would hire her because she is a lunatic” Id. at 204 (numbered statement 17).
• “Ms. Harmstad apprised everyone in the Foreclosure Department that Ms. Harmstad had no choice at that point but to keep Ms. Davis now, not only because Ms. Jones said so, but because Ms. Davis was ‘playing up' the deaf disability.” Id. ¶ 15 (numbered statement 21).
• Each time after Ms. Davis applied for her old position on or around March 6, 2017, May 1, 2017, and June 6, 2017, Ms. Harmstad would complain about Ms. Davis again and drag Ms. Davis's name through the mud. Ms. Harmstad referred to Ms. Davis's disability, and claimed that Ms. Davis would use her disability against Shellpoint. Ms. Harmstad admitted “there was no way that I would bring her back into the department.” It was implied by Ms. Harmstad's conduct that Ms. Harmstad would not re-hire Ms. Davis because of Ms. Davis's disability, especially with the number of times Ms. Harmstad disparaged Ms. Davis because of Ms. Davis's hearing disability. Id. ¶ 21 (numbered statement 25).
The court first considers Defendant's argument that certain of the alleged statements are not “false and defamatory, ” so they are subject to summary judgment because they are vague, rhetorical, or are otherwise the type of opinion speech protected by the First Amendment. Truth is a complete defense to defamation. Boone v. Sunbelt Newspapers, Inc., 556 S.E.2d 732, 737 (S.C. Ct. App. 2001) (citation omitted). Further, a common law defamation claim must also comport with the First Amendment. See Snyder v. Phelps, 580 F.3d 206, 217 (4th Cir. 2009) (“It is well established that tort liability under state law, even in the context of litigation between private parties, is circumscribed by the First Amendment.”) (emphasis added), aff'd, 562 U.S. 443 (2011). First-Amendment protections for speech of purely private concern exist although they are “often less rigorous” than those afforded speech as to matters of public interest. Snyder v. Phelps, 562 U.S. 443, 452 (2011); Garrard v. Charleston Cnty. Sch. Dist., 838 S.E.2d 698, 711 (S.C. Ct. App. 2019 (citing Snyder)). Here, the speech at issue is of a private nature. The First Amendment imposes limitations based on the subject of the alleged defamation as well as the type of speech at issue. Snyder, 562 U.S. at 452. With regard to the type of speech, statements that “cannot ‘reasonably [be] interpreted as stating actual facts' about an individual” are protected by the First Amendment. Id. (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)). As the Fourth Circuit explained in Biospherics, Inc. v. Forbes, Inc., “Milkovich directs that an opinion may constitute actionable defamation, but only if the opinion can be reasonably interpreted to declare or imply untrue facts.” Biospherics, 151 F.3d 180, 184 (4th Cir. 1998) (citing Milkovich, 497 U.S. at 20). Milkovich also discusses protection as to statements that “cannot reasonably [be] interpreted as stating actual facts, ” meaning “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor” negates the impression that actual facts are being asserted. 497 U.S. at 20-21, (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)).
The court makes an initial determination whether the statement is susceptible of having a defamatory meaning. White v. Wilkerson, 493 S.E.2d 345, 347 (S.C. 1997). Many of the defamatory statements allegedly made by Harmstad are either true-such as statements that Harmstad believed Plaintiff's work product was wrong in some respects (numbered facts 5, 6, 9, 14, 21, 25)-or are Harmstad's hyperbolic-laced opinion not based on ascertainable facts that could be shown to be true or false (numbered facts 12, 17, 21, 25). Although Plaintiff may think otherwise of her workplace performance, SMS has presented evidence of performance-based coaching. See generally Cain v. Providence Hosp., LLC, No. 3:18-CV-2120-JFA-SVH, 2020 WL 1149724, at *8 (D.S.C. Mar. 10, 2020) (finding that insinuations that plaintiff was not doing her job properly were not actionable defamation when plaintiff was disciplined for not doing her job properly); see also Nigro v. Va. Commonwealth Univ., 492 Fed.Appx. 347, 356 (4th Cir. 2012) (concluding under Virginia law that supervisor's statements regarding lack of progress were opinions because they were based on supervisor's perceptions of employee's progress and could not be proven false). Further, Harmstad's attributed statements that Plaintiff would never be hired because she was a “lunatic” or because she was “playing up” her hearing disability are hyperbolic and not actionable. Cf. Todd v. S. State Bank, No. 2:15-cv-0708-RMG, 2015 WL 6408121, at *3 (D.S.C. Oct. 22, 2016) (noting assertions that plaintiff was terminated because she was “crazy, ” “unstable, ” and “out of control” are not defamatory per se but could only be defamatory per quod if sufficient additional information were provided).
The court notes Plaintiff does not agree with the negative characterization of her work performance and she has provided evidence of several co-workers who believed Plaintiff was “right.” Those opinions do not create issues of fact that would preclude summary judgment because the issue is whether Harmstad believed the statements to be true.
Statements made regarding Plaintiff's work performance or whether she would be rehired are also subject to analysis of whether they are protected by qualified privilege. See, infra.
Defendant also cites numerous cases from other jurisdictions in support of its argument that statements are not actionable as they are hyperbole or opinion. See Def. Reply 12. In her Surreply Plaintiff generally asserts that all of Defendant's analysis regarding opinion and hyperbole is incorrect because this case concerns private citizens and private concerns. Surreply 3-4. Although Plaintiff is correct that statements of private concern receive less constitutional protection, her blanket argument that no protection exists for hyperbole or opinions is incorrect. The only case Plaintiff cites in support of her argument does not involve defamation; rather, it concerned the government's ability to regulate a government employee's speech, not whether an actionable defamation claim would lie. City of San Diego v. Roe, 543 U.S. 77, 78-85 (2004) (considering employment action brought pursuant to 42 U.S.C. § 1983 and evaluating employee's speech under non-defamation-law jurisprudence). As collected by Defendant in its Sur-surreply other courts considering the issue have applied First Amendment protections to opinion statements about which private employees were raising defamation claims as to private matters. See Sur-surreply 4.
Plaintiff's remaining allegations of defamation attributed to Harmstad concern matters Harmstad believed to be true or that are opinion and not susceptible to a truth or falsity analysis are subject to summary judgment.
The undersigned also considers Defendant's argument that certain statements attributed to Harmstad are not defamatory as a matter of law because they are subject to a qualified privilege that was not abused. The qualified-privilege defense is well-summarized in Jeter v. Allstate:
“One who publishes defamatory matter concerning another is not liable for the publication if (1) the matter is published upon an occasion that makes it conditionally privileged, and (2) the privilege is not abused.” Fountain v. First Reliance Bank, 730 S.E.2d 305, 310 (S.C. 2012).
The essential elements of a qualified (or conditional) privilege defense are: (1) good faith; (2) an interest to be upheld; (3) a statement limited in its scope to this purpose; (3) a proper occasion; and (4) publication in a proper manner and to proper parties only. Manley v. Manley, 353 S.E.2d 312, 315 (S.C. Ct. App. 1987) (citing Conwell v. Spur Oil Co. of W.S.C., 125 S.E.2d 274-75 (S.C. 1962)).
Whether an occasion gives rise to a qualified privilege is a question of law for the court to decide. Murray v. Holnam, Inc., 542 S.E.2d 743, 749 (S.C. Ct. App. 2001) (citation omitted). As a general matter, statements are qualifiedly privileged if the communicator has an interest in the subject matter or duty to convey the information and the recipient has a corresponding interest or duty. McBride v. Sch. Dist. of Greenville Cnty., 698 S.E.2d 845, 853 (S.C. Ct. App. 2010) (citation omitted). This is particularly true when the communicator reasonably seeks to protect the recipient's interests or common interests between the communicator and the recipient. See Abofreka v. Alston Tobacco Co., 341 S.E.2d 622, 624-25 (S.C. 1986). Communications between employees of an organization made in the usual course of business are, therefore, generally regarded as qualifiedly privileged. Murray, 542 S.E.2d at 749 (citing Conwell, 125 S.E.2d at 270).
Where an occasion gives rise to a qualified privilege, the burden shifts to the plaintiff to show the defendant abused its privilege. Harris v. Tietex Int'l Ltd., No. 2014-000902, 2016 WL 3573146, at *4 (S.C. Ct. App. Jun. 29, 2016) (citation omitted). “An abuse of the privilege occurs in one of two situations: (1) a statement made in good faith that goes beyond the scope of what is reasonable under the duties and interests involved or (2) a statement made in reckless disregard of the victim's rights.” Fountain, 730 S.E.2d at 310. Whether an abuse occurred is generally a question for the jury to decide, but “in the absence of controversy as to the facts . . . it is for the court to say in a given instance whether or not the privilege has been abused or exceeded.” Id. (citation omitted) (internal quotation marks omitted). Accordingly, a court may grant summary judgement if an occasion gives rise to a qualified privilege and the plaintiff fails to present evidence of a genuine issue of material fact indicating the defendant abused its privilege. Harris, 2016 WL 3573146, at *4 (citing Wright v. Sparrow, 381 S.E.2d 503, 506-07 (S.C. Ct. App. 1989)).Jeter v. Allstate Ins. Co., 2016 WL 7115912, at *4.
Defendant submits that statements attributed to Harmstad that related to the quality of Plaintiff's work-product when she worked at SMS are subject to the qualified privilege and thus as a matter of law are not defamatory. These include Harmstad's comments that Plaintiff's work product had been “wrong” or “incorrect, ” made both to co-workers at SMS and to outside counsel with whom SMS worked.
Regarding the statement allegedly made by Harmstad to someone at outside counsel's office, the undersigned shares Defendant's concern about the reliability or admissibility of such statement. Sirmans is unable to verify when this alleged phone call took place or to whom Harmstad was speaking. Sirmans Dep. 142.
Plaintiff first counters that the qualified privilege “does not apply in cases of actual malice, ” which Plaintiff submits is “presumed” here because Harmstad “attacked Plaintiff's competence in her profession.” Pl. Mem. 24 (citing Swinton Creek Nursery v. Edisto Farm Credit, ACA, 514 S.E.2d 126, 134 (S.C. 1999) and McBride, 698 S.E.2d at 852). These cases do not support Plaintiff's argument. The issue of whether statements do or do not impugn one's professional competence relates, rather, to the issue of whether something is “actionable per se, ” a concept related to the damages prong of a defamation claim. Even assuming, arguendo, Plaintiff had established that certain remarks could be considered “actionable per se, ” Plaintiff is still required to establish the other prongs of her defamation claim-including that the remark or remarks were published and not subject to qualified privilege. See generally Presley v. Beaufort Cnty. Sch. Dist., No. CV 9:18-1945-BHH, 2021 WL 791206, at *3 (D.S.C. Mar. 2, 2021) (noting that the issue of privilege must be addressed).
Here, Harmstad was Plaintiff's supervisor and had a business need to analyze and critique her work performance. Courts are reluctant to “chill [an employer's] ability to trade essential information with key company employees and undercut the policy reasons behind the qualified privilege doctrine.” Jeter, 2016 WL 7115912, at * 7. This concept applies, too, to outside consultants also involved in work the employee was involved in doing.
Plaintiff suggests the qualified privilege has been overcome based on Harmstad's engaging in speech that was not reasonable under the circumstances. See Pl. Mem. 25-26. However, Plaintiff's argument that Harmstad acted with malice is directed toward her alleged comments that have already been discussed above as being either too vague or protected hyperbole or opinion. To the extent Plaintiff is arguing it was unreasonable for Harmstad to comment on Plaintiff's work performance to others who worked in the same department or to someone at a law firm who worked with the department, her argument is without merit. Plaintiff admits that the Foreclosure Litigation department worked together as a team and would even work on each other's foreclosure files. (Pl. Dep. (Vol. I) 90. Moreover, Sirmans indicated that Harmstad discussed with the team mistakes made by other employees, not just Plaintiff. Sirmans Dep 171. Because Harmstad's communications regarding Plaintiff's work product were within the scope of what was reasonable given the duties and interests involved, the communications were privileged. Summary judgment is appropriate as to such statements. See generally Jeter, 2016 WL 7115912, at **7-8 (finding under South Carolina law that comments regarding employee's performance and reasons for his termination were subject to qualified privilege); Olivares v. NASA, 934 F.Supp. 698, 706 (D. Md. 1996) (finding under Maryland law that the comments as to plaintiff's quality of work were privileged because plaintiff's supervisors had a continuing right to criticize his work performance regardless of whether he agreed with that criticism), aff'd 114 F.3d 1176 (4th Cir. 1997).
In summary, Defendant's Motion for Summary Judgment should be granted as to the defamation cause of action. The undersigned has reviewed the facts and arguments presented by the parties and considered the applicable case law. The allegedly defamatory facts are either true, nonspecific, protected opinion/hyperbole, or protected by the non-waived qualified privilege relating to work performance. Based on the above-recommended findings the undersigned does not consider in detail the remaining arguments related to the defamation claim. IV. Conclusion
In recommending summary judgment, the undersigned has closely reviewed the voluminous briefing and record in this matter. The recommendation that summary judgment be granted extends to Plaintiffs entire defamation claim, including any particular statements or arguments not discussed in detail in this R&R.
For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 52, be granted and that this matter be ended.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
The court further notes Defendant provided a chart listing the statements it expected Plaintiff to pursue as defamatory, listing where in the record information about those statements was located and providing a synopsis of the reasons Defendant believed the statement to be subject to summary judgment. ECF No. 52-12 at 2-3. The court has reviewed the chart and finds it a helpful summary. However, for purposes of the motion seeking to dispose of Plaintiff's defamation cause of action the court finds it appropriate to focus more on the list of allegedly defamatory statements as set out by Plaintiff herself.