Opinion
C. A. 3:23-2061-MGL-SVH
05-23-2024
Raymond Garcia, Plaintiff, v. Richland County Recreation Commission, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE.
In this employment discrimination case, a Hispanic employee over the age of 40 alleges he was subjected to a discriminatory and hostile work environment and that he was retaliated against, eventually resulting in being terminated at the consensus of three black employees: executive director Lakita Watson (“Watson”), deputy director Tameka Williams (“Williams”), and director of human resources Diana McCoy (“McCoy”). His former employer seeks dismissal of all claims.
Raymond Garcia (“Plaintiff”) originally filed his complaint in the Richland County Court of Common Pleas. Plaintiff's former employer, Recreation District of Richland County (“Defendant”),removed the case to this court on May 15, 2023. Plaintiff alleges claims of discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”).
Defendant states it has been incorrectly identified as Richland County Recreation Commission instead of Recreation District of Richland County. [See ECF No. 18 at 1 n.1]. The court employs the correct label and directs the clerk of court to correct the caption accordingly.
This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 18]. The motion is fully briefed [see ECF Nos. 24, 25] and ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion for summary judgment.
I. Factual and Procedural Background
Plaintiff previously served as Defendant's chief technology officer. Initially, he was hired as a temporary employee, but was promoted to a fulltime introductory employee on August 19, 2020. [ECF No. 18-1, see also ECF No. 18-11 at 132:9-12].
Defendant has submitted evidence that it was policy that during a new employee's first year there is an introductory period and, during this period, “[i]f a department head concludes . . . that the new employee is not well-suited for his position, the employee may be terminated . . . without having the right to appeal the action through the agency's grievance procedure.” [ECF No. 18-6]. Defendant terminated Plaintiff's employment on August 4, 2021. [ECF No. 24-1 at 7, see also ECF No. 25 at 6 (“there is no dispute that Plaintiff was still in his ‘Introductory Period' of employment when he was terminated”)].
On October 8, 2020, staff members reported multiple complaints concerning the disrespectful and disparaging tone that Plaintiff used towards them. [ECF No. 18-4]. The staff members reported their concerns to the parks superintendent who subsequently reported the same to Williams. Id. In doing so, staff reported that they would rather not work with Plaintiff. Id. After receiving the report, Williams met with Plaintiff to discuss his communications with property management staff. Id. Williams referred Plaintiff to his objectives in his performance management tool and that one of his goals was to improve his communication and interactions with staff. [ECF No. 18-4, see also ECF No. 18-3, ECF No. 24-1 at 5 (Plaintiff's affidavit evidence that he informed Williams that he was not sure what the staff were complaining about)].
Also on October 8, 2020, Plaintiff placed one of his employees, William Daugherty (“Daugherty”), an IT manager, on a performance improvement plan (“PIP”) for failing to meet the appropriate standards for productivity, efficiency, and conduct. As explained by Plaintiff:
William returned to the office after being allegedly cleared of COVID. We talked about the tasks he was assigned, going all the way back to April of 2020. He informed me he would work on them. By the time we got to the second staff meeting since his return,
very little had changed; only a couple of tasks had been accomplished. I brought up these questions during our meeting, and then I sent William a follow-up email after our staff meeting and CC Diana. Diana and I spoke about drafting a performance improvement plan (PIP) for William. I also spoke with Tameka about this matter, and she fully supported the action.[ECF No. 24-1 at 4, see also ECF No. 18-8].
Plaintiff has submitted evidence of ongoing problems, both before and after October 2020, with both Daugherty and another employee who worked for Plaintiff, Josh Fulmer (“Fulmer”). [See, e.g., ECF No. 24-1, ECF No. 24-7].
On October 23, 2020, the following occurred as summarized by Plaintiff via affidavit evidence:
Late October while in Matt Parker's office. We were discussing security cameras for the golf course, and Darien [Alston (“Alston”)] mentioned that we should head over and that I could ride in the back of the truck or maybe hang off the roof of the truck. He was laughing, but everyone in the office was not laughing. I felt very uncomfortable and left the office. After much thinking about what took place and some other comments, I spoke with McCoy regarding my concerns. We had a meeting with myself, Darien, and [McCoy]. He apologized for the comments and informed me that they weren't racist as he was a man of color.[ECF No. 24-1 at 5]. An investigation occurred, and it was recommended that Alston attend diversity training and receive a verbal warning. [ECF No. 1810].
Plaintiff testified repeatedly this October 2020 incident is the key event in the instant case. [See ECF No. 18-11 at 124:25-125:3, 132:18-25, see also ECF No. 24-1 at 4, 5, 8 (“Until the incident concerning Darion Alston in October 2020, my working relationship with senior management was very positive. However, after the incident, I was treated unfairly, spoken to in a rude manner, excluded from the decision-making for my department, not provided adequate staff, and refused the hiring of any replacement staff.”)].
In late February or early March 2021, Williams verbally counseled Plaintiff based on the following incident, as she recounted:
A few weeks ago (around the end of Feb or beginning of March 2021), Ray was coming down the hall to my office and I heard him speaking to a couple staff. He came to my door and was waiting to come in and I noticed he did not speak to my Executive Assistant. Later, I told him that I noticed he spoke to other people but when he got to my office, he did not speak to her. He stated he did not see her. I told him she was in the office and it just shows courtesy to speak to all of us, especially when you see people for the 1st time during the day. He said he would do better.[ECF No. 18-4, see also ECF No. 24-1 at 5 (Plaintiff's affidavit evidence stating he simply did not see the assistant)].
On March 31, 2021, Plaintiff received a written warning for disruptive behavior as follows:
Description of Violation(s): Failure To Show Immediate And Sustained Improvement Will Result In Further Disciplinary Action up to and including termination.
On March 16th & 23rd, Raymond's written communication via email correspondences between himself and subordinate staff was unprofessional. On March 24th, a staff member spoke to Raymond about getting the IT vehicle moved. He responded with a rude tone and addressed the staff sarcastically and unprofessional. Raymond's immediate supervisor has addressed communication issues with Raymond on separate occasions (verbally and written) and advised him about being mindful of his communication (what & how he says things, tone, etc.) to staff. As a result of his actions, it creates an unpleasant working relationship with staff.
Corrective Action Plan:
This behavior will not be tolerated. Raymond needs to improve his internal customer service (verbally & written) when dealing with other co-workers and subordinate staff. Failure to do so will result in further disciplinary action.[ECF No. 18-5, see also ECF No. 24-1 at 6].
On July 30, 2021, Plaintiff sent the following letter of complaint to McCoy about her, Williams, and Watson:
RE: Complaint against HR Director, Deputy Director and Executive Director
Dear Richland Country Recreation Commission
I am writing this letter regarding the behavior of the HR Director (Diana McCoy), Deputy Director (Tameka Williams) and Executive Director (Lakita Watson). I am referring to the lack of respect, failure to support me with staff issues with Joshua Fulmer and William Daugherty (former employees who reported to me), a formal written consult that I received based on incomplete and inaccurate information and reprisal for a complaint I wrote against an employee in October 2020.
I have tried to bring these issues, as well as others, regarding my staff members Joshua Fulmer and William Daugherty to the HR Director on many occasions and included the HR Director in many emails and nothing changed. The attitude and lack of professionalism by Joshua Fulmer and William Daugherty were clear from the beginning .... In summary, the HR Director,
Deputy Director and Executive Director should have reprimanded Joshua Fulmer and William Daugherty from the beginning and maybe their performance would have improved. Instead, they were allowed to speak to me in any manner they liked and the HR Director, being listed on the emails, said nothing.
In October 2020, the Property Management Director (Darien Alston) made some comments that I considered totally
inappropriate and racist in front of two other staff members (I am Hispanic and the Property Management Director is African American). I thought long and hard regarding the incident and decided that no one, regardless of their color has the right to speak to someone in this manner. I reported the incident to the HR Director and she informed me that this was serious and would look into the matter. Later that day I spoke with the Deputy Director about what had transpired and the look on her face told me that I did the wrong thing. From that day forward, my working relationship with the Deputy Director was not good as she is a friend of the Property Management Director as well as the Executive Director ....
In April 2021, I received a phone call from Cornelia Watts which I answered using the speaker on my office phone. She stated, “Ray move your vehicle”. No introduction or anything else. I assumed she was speaking about my personal vehicle parked in the parking lot up front. I replied “Why do I need to move my vehicle”. She responded, now yelling “You cannot park your vehicle there!” I replied “But I have always parked my vehicle there”. She responded even louder “You cannot park it there anymore”. At this point, Chas Setlock who is in the office next to my office (who reports to me) puts his head into the office and informed me that Cornelia Watts is talking about the department vehicle and not my personal vehicle ....
Each day I go into the office with the feeling of dread and feeling sick to my stomach as I do not know what will be next allegation, threat, or mandate. I am not included in IT departmental matters or discussions. Communication does not exist between the Deputy Director and myself. I am bullied, harassed, monitored, isolated and made to feel unwanted. I do not have the staff to adequately support my department and with William Daugherty departure (he resigned in early June 2021) my request for a replacement has still gone unanswered. I can only think this is intentional and to make my job extremely difficult so that I will simply resign. I recently attended a meeting and was informed that email will be outsourced and that I will work with Xerox to get it completed. I asked, why I was not involved and was told by the Deputy Director, that I just wasn't included ....[ECF No. 24-5 at 36, ECF No. 24-5].
Defendant terminated Plaintiff's employment on August 4, 2021. [ECF No. 24-1 at 7]. McCoy testified that she, Williams, and Watson were the ones who decided to terminated Plaintiff's employment, although she was the one to inform Plaintiff of his termination. [ECF No. 25-2 at 24:5-18]. She also testified as follows as to why Plaintiff's employment was terminated:
Watson, who it appears now goes by Lakita Watson Frazier, testified that she did not recall who terminated Plaintiff or if a termination occurred, further testifying that “[i]f I recall I though the termination was a result of us restructuring towards contracting services,” noting “I do apologize, it was a while ago.” [ECF No. 24-7]. Watson also asked her attorney, who was unable to respond, “if you can remind me, I have not looked at any of the documentation. Was he terminated?” Id.
I had a list. I told him that the e-mail communications-not only were we having issues sending e-mails outside of the agency, one time I was having an e-mail conversation with somebody and when they tried to respond back to the e-mail within a five-minute time frame they received an e-mail that the e-mail account was no longer in service. I also told him that new hires-we were constantly having to tell them to please check their spam folders to receive any type of communication from us. I also let him know about the feedback that I was receiving from employees about his personality and work ethic-not work ethic but his personality and how he was being rude to staff. We had two employees [William Daugherty and Josh Fulmer] that were senior-well, they had been with the agency at least ten years each and they ended up leaving the organization because of his leadership as a supervisor. So I just listed all of that out for him.Id. at 25:4-18. Plaintiff confirms that he was informed he was terminated because “my performance did not meet RCRC expectations, and [McCoy] referenced issues with email and the employee disciplinary action that I received.” [ECF No. 24-1 at 7].
On November 10, 2021, Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”), asserting claims for national origin discrimination, age discrimination, retaliation, and hostile work environment, stating as follows:
That I was hired as the Chief Information Officer. That I was terminated from my employment on August 4, 2021. During my employment I was treated differently than younger Caucasian and African American employees. In October 2020, I reported an incident to Human Resources regarding a Property Management Director making several inappropriate racist comments. Immediately after the report to Human Resources I began to suffer a hostile work environment at the hands of the Deputy Director and Executive Director. The Executive Director and Deputy Director in retaliation for my complaint began to harass me regarding issues with my performance and employment creating a severe and pervasive hostile work environment. In March 2021, I was directed to install software on the servers. As a result of this direction, I drafted and sent a letter of concern to the Human Resources Director in the beginning of April. After drafting and sending the letter of concern in late April of 2021, I received a formal written warning. That I was terminated from my employment after filing a formal complaint regarding differential treatment and hostile work environment. That younger, non-Hispanic employees who are Caucasian and African Americans were permitted to harass, degrade and treat others with disrespect with no discipline and or termination. That other less qualified, younger, underperforming individuals, who had not made previously complaints regarding discrimination were allowed to
continue in their employment. That the employer's reasons for terminating my employment were pretextual. That I was treated differently based on my national origin (Hispanic), Age (over 40) and in retaliation for my complaints regarding discrimination and differential treatment in violation of Title VII and Age Discrimination in Employment Act.[ECF No. 18-7]. On April 15, 2023, Plaintiff filed this action against Defendant. [ECF No. 1-1].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
As a preliminary matter, Defendant argues Plaintiff has made many allegations in this case that are not properly before the court because they are untimely. [See ECF No. 18 at 6].
The parties agree that in South Carolina, an individual who alleges a violation of Title VII or other discrimination statutes must file an administrative charge with the EEOC within 300 days of the alleged discriminatory act(s). See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005); 42 U.S.C. § 2000e-5(e)(1). Further, the United States Supreme Court has held that a plaintiff asserting a violation of Title VII is barred from recovering for discrete unlawful employment practices that precede the filing of a charge of discrimination with the EEOC by more than 300 days, regardless of whether the plaintiff alleges in the charge of discrimination that other discriminatory acts occurred within 300 days of the filing. See Nat'l. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111-15 (2002). Each discrete act of discrimination “starts a new clock for filing charges alleging that act,” meaning that only incidents that occur within the timely filing period are actionable. Id. at 113-14; see also Williams v. Giant Food Inc., 370 F.3d 423, 428-29 (4th Cir. 2004) (each failure to promote claim constitutes a discrete act of discrimination even if it is part of a broader discriminatory practice).
Defendant argues that any alleged act of discrimination occurring before January 14, 2021, is time-barred and improperly before this court. [See ECF No. 18 at 7]. In response, Plaintiff has submitted extensive evidence as to events occurring prior to January 2021. [See, e.g., ECF No. 24-1]. Plaintiff does, however, appear to concede that claims based on allegations prior to January 14, 2021, are time-barred and improperly before this court. [See ECF No. 24 at 26 (“The Plaintiff's claims begin in January of 2021, however, the actions before the 300 day time frame can be considered as evidence of differential treatment and submit examples even though not recoverable.”)].
The undersigned recommends that any claims asserted by Plaintiff prior to January 14, 2021 are time-barred and not properly before this court.
1. Title VII Discrimination Claim
Title VII prohibits employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case, “a plaintiff must show that (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her 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) (citation omitted).
Absent direct evidence of discrimination, Plaintiff may proceed under the McDonnell Douglas burden-shifting framework. Under this framework, once a plaintiff makes out a prima facie case, the burden shifts to the employer to put forth a nondiscriminatory explanation for its actions. Id. at 649-50 (citation omitted). If the employer does so, the burden then shifts back to the plaintiff to show that the employer's explanation was “actually a pretext for discrimination.” Id. (citation omitted).
Even assuming Plaintiff were able to establish a prima facie case-which Defendant disputes-he has failed to prove that the legitimate reasons offered by Defendant for his termination are pretext for discrimination. Plaintiff disagrees, arguing that pretext can be demonstrated through Defendant's allegedly shifting and inconsistent reasons for his termination.
Plaintiff is correct that an employer's inconsistent explanations may be probative of pretext. See EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001); see also Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir. 2006) (noting that pretext is not established “by focusing on minor discrepancies that do not cast doubt on the explanation's validity, or by raising points that are wholly irrelevant to it”).
In support of this argument, Plaintiff argues in full as follows:
The Pretextual reasons presented by the Defendant establish an issue of fact for the set forth that the reason the Plaintiff was terminated from his employment was either the fact that his performance was questionable as presented at his termination meeting or the reason that was presented in depositions of the Defendant's witnesses that the job was outsourced. Looking at Mr. Garcia's overall performance the question of his ability to perform his position was not raised until October of 2020. The Defendant has presented an issue for a jury by changing the reason for the Plaintiff's termination.[ECF No. 24 at 30].
Plaintiff makes the above context argument in the context of his ADEA discrimination claim, but the argument is applicable to his Title VII discrimination claim as well and therefore is addressed here.
The relevant testimony Plaintiff references is from Watson, Defendant's former executive director who left in 2022, and provides as follows:
Q: Okay who made the decision to terminate him?
A: If I recall-and I do apologize, it was a while ago. If I recall
I though the termination was a result of us restructuring towards contracting services. I don't recall a termination. My apologies.
The Witness: Mr. Dickey, if you can remind me, I have not looked at any of the documentation. Was he terminated?
Mr. Dickey: I cannot speak to you. Not ....[ECF No. 24-7].
The parties have not submitted to the court the rest of Watson's testimony.
McCoy, who testified that although she would have made the decision to terminate Plaintiff with input from Williams and Watson, she “was the one to actually let him go on his last day,” and she provided Plaintiff with the following reasons why his employment was terminated:
I had a list. I told him that the e-mail communications-not only were we having issues sending e-mails outside of the agency, one time I was having an e-mail conversation with somebody and when they tried to respond back to the e-mail within a five-minute time frame they received an e-mail that the e-mail account was no longer in service. I also told him that new hires-we were constantly having to tell them to please check their spam folders to receive any type of communication from us. I also let him know about the feedback that I was receiving from employees about his personality and work ethic-not work ethic but his personality and how he was being rude to staff. We had two employees [William Daugherty and Josh Fulmer] that were senior-well, they had been with the agency at least ten years each and they ended up leaving the organization because of his leadership as a supervisor.
So I just listed all of that out for him.[ECF No. 25-2 at 24:5-25:18]. Additionally, Plaintiff has submitted affidavit evidence that he was informed he was terminated because “my performance did not meet RCRC expectations, and [McCoy] referenced issues with email and the employee disciplinary action that I received.” [ECF No. 24-1 at 7].
Here, the court does not discern that Plaintiff has submitted “evidence of discrimination [] sufficiently strong to ensure that the employer is held liable for unlawful discrimination and not merely for inconsistent statements.” Lyons v. City of Alexandria, 35 F.4th 285, 292 (4th Cir. 2022). In this case, Watson's testimony is not even a definitive inconsistent statement in the record regarding the reason for his termination.
Plaintiff additionally argues that he has established national origin discrimination in that “[e]ach and every time that the employees in the IT department were treated more favorably than him is evidence of National Origin Discrimination,” specifically identifying Daugherty and Fulmer as having been treated more favorably. [ECF No. 24 at 30-31].
This argument fails, however, because Plaintiff has not identified similarly-situated employees who received more favorable treatment than he did. “To “establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (citations omitted).
Here, Plaintiff has made no argument nor submitted any evidence establishing that any other employee, including Daugherty and Fulmer, are valid comparators. As to Daugherty and Fulmer, Plaintiff was their supervisor, which reveals them to not be valid comparators.
Finally, Plaintiff testified as to his Title VII and ADEA discrimination claims as follows:
Q. That's fine. So who you have identified is Darien Alston, Jaimi Russell, and Brandy James, and in regards to them being treated differently than you, your testimony is that Darien Alston got a bigger office, had more help than you because he had a secretary and-two secretaries; Jaimi Russell was able to buy T-shirts and other things to promote the agency and was able to execute some contracts; and Brandy James was able to make decisions regarding purchases of IT equipment or software. Correct?
A: That is correct.
Q: What does any of that have to do with you being discriminated against because of your national origin?
A: I don't have any evidence.
Q: What does any of those things you listed about those individuals have to do with you being discriminated against because of your age?
A: I don't have any.[ECF No. 25-1 at 121:6-25].
It appears that Plaintiff generally argues that he was terminated unfairly. However, as stated by the Fourth Circuit, “[i]f [plaintiff] was fired for misconduct [ ]he did not actually engage in, that is unfortunate, but a goodfaith factual mistake is not the stuff of which Title VII violations are made.” Powell v. Biscuitville, Inc., C/A No. 20-2378, 2021 WL 2434011, at *2 (4th Cir. June 15, 2021) (citing Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017)). The court does not “sit as a super-personnel department, weighing the prudence of employment decisions made by the defendants.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998). The court need not decide “whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted).
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's Title VII discrimination claim.
2. Retaliation Claim
Title VII also prohibits an employer from retaliating against an employee on the grounds that the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a). Because Plaintiff has no direct evidence of retaliation in support of his retaliation claims arising under Title VII, he proceeds through the McDonnell Douglas burden-shifting framework. See, e.g., Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006); see also, e.g., Bandy v. City of Salem, Virginia, 59 F.4th 705, 712 (4th Cir. 2023) (“When a plaintiff relies on circumstantial evidence to prove an ADEA claim, courts apply the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).”). To succeed on such a Title VII retaliation claim, a plaintiff must show that “(1) he engaged in a protected activity; (2) the employer acted adversely against him; and (3) there was a causal connection between the protected activity and the asserted adverse action.” Strothers v. City of Laurel, 895 F.3d 317, 327 (4th Cir. 2018) (quoting Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008)).
Plaintiff argues in full as to his retaliation claim as follows:
As presented above in the timeline, Mr. Garcia In October 2020, Mr. Garcia made a complaint, another in January of 2021, and a final in July 29, 2021. After the complaint in October 2020, Mr. Garcia suffered hostile work environment and in January 2021, the Defendant's witnesses testified that Mr. Garcia's position would be eliminated as they were considering to contract out the email and IT department.
Mr. Garcia further complained to the Board on July 30, 2021 and on August 4, 2021, was terminated [from] his position. The facts
as set forth in the time line above present a genuine issue of material fact that should be presented to a jury. The Defendant is not entitled to judgment as a matter of law as they Defendant changed the reason from termination from performance to his job was eliminated when they decided to contract out the IT department and Email.[ECF No. 24 at 33].
Defendant argues Plaintiff's July 2021 “complaint”-the alleged complaint closest in time to Plaintiff's termination-was not a protected activity in that it did not include any allegation that Plaintiff was suffering from discrimination due to his age or national origin. [See ECF No. 25 at 4-5, see also ECF No. 24-6]. As stated by the Fourth Circuit in rejecting a plaintiff's attempt “to take a statute aimed at discrete forms of discrimination and turn it into a general whistleblower statute”:
Title VII prohibits discrimination on the basis of specifically enumerated grounds: “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2000). Its purpose to eliminate these invidious forms of discrimination is clear. It would vitiate Congress's decision to single out these grounds as particularly deserving of protection if Title VII were interpreted as a general employment statute that protects employees from any wrongful discharge.Lightner v. City of Wilmington, N.C. , 545 F.3d 260, 264 (4th Cir. 2008).
The court need not resolve this issue. For purposes of resolution of Defendant's motion, the court assumes, without deciding, that Plaintiff has established a prima facie case of retaliation, but his claim fails for the same reasons stated above, where he has failed to show Defendant's proffered reason for his termination is pretext for discrimination. See, e.g., Ketteler v. Serco, Inc., No. C/A No. 2:11-2864-RMG-BHH, 2013 WL 566625, at *5 (D.S.C. Jan. 24, 2013) (collecting cases that while temporal proximity may be sufficient at the prima face case stage, “it is not enough, on its own, to establish pretext”), report and recommendation adopted, C/A No. 2:11-2864-RMG, 2013 WL 557234 (D.S.C. Feb. 13, 2013).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's retaliation claims.
3. Hostile Work Environment Claim
“To demonstrate . . . [a] hostile work environment, a plaintiff must show that there is ‘(1) unwelcome conduct; (2) that is based on the plaintiff's . . . [race]; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.'” Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (citing Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334 (4th Cir. 2010)). A work environment is hostile when “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted).
To make out a hostile work environment claim under the ADEA, a plaintiff must submit evidence that “(1) he experienced unwelcome harassment; (2) the harassment was based on his age; (3) the harassment was sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer.” Baqir v. Principi, 434 F.3d 733, 746 (4th Cir. 2006).
Plaintiff testified regarding his hostile work environment claim as follows:
Q: [H]ow did those issues and those things create a hostile work environment for you based on your national origin or age?
A: I don't have any evidence-to basically support that.[ECF No. 25-1 at 100:1-19]. In briefing, after identifying the relevant case law, Plaintiff argues only that his “work environment was severe and pervasive.” [ECF No. 24 at 32].
Plaintiff has failed to demonstrate he experienced a hostile work environment based on his national origin, and to the extent he so asserts, his age. As stated by the Fourth Circuit, a plaintiff asserting a hostile work environment claim faces “a high bar,” and “[u]ndesirable work assignments, a boss who plays favorites and criticizes one's work, colleagues who give the cold shoulder, and ‘the sporadic use of abusive language' are ‘ordinary tribulations of the workplace' that, while unfair and hurtful, do not implicate Title VII.” Roesinger v. Pohanka of Salisbury, Inc., No. 21-1617, 2024 WL 701776, at *3 (4th Cir. Feb. 21, 2024) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
Accordingly, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's hostile work environment claim.
4. ADEA Discrimination Claim
To establish a prima facie case of age discrimination, Plaintiff must show that: (1) at the time of his termination, he was at least 40 years of age; (2) he was qualified for the job and performing in accordance with his employer's legitimate expectations; (3) his employer nonetheless discharged him; and (4) a substantially younger individual with comparable qualifications replaced him. See Westmoreland v. TWC Administration LLC, 924 F.3d 718, 725 (4th Cir. 2019). As with his Title VII discrimination and retaliation claims above, absent evidence of direct discrimination, Plaintiff proceeds under the McDonnell Douglas burden-shifting framework.
For the reasons already stated, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's ADEA claim.
Given the recommendation above, it is unnecessary for the court to address the parties' argument that Plaintiff's ADEA claim precludes any and all other discrimination claims. [See, e.g., ECF No. 18 at 7].
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 18].
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).