Opinion
C/A 3:21-2816-MGL-PJG
05-02-2024
Antonio E. Goodwin, Plaintiff, v. Christine E. Wormuth, in her official capacity as Secretary, Department of the Army, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Antonio E. Goodwin filed this employment discrimination case pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq., against the defendant, Christine E. Wormuth, in her official capacity as Secretary of the United States Department of the Army (“the Army”). This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the Army's motion for summary judgment. The motion has been fully briefed and is ready for resolution. (See ECF Nos. 67, 72, 75.) Having reviewed the parties' submissions and the applicable law, the court recommends that the Army's motion be granted in part and denied in part.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to Goodwin, to the extent they find support in the record. Goodwin was formerly employed as an electrician at the Department of the Army Installation Management Command at Fort Jackson, South Carolina. Goodwin was hired on December 10, 2018, and his position was subject to a two-year probationary period. Around the time he was hired, Goodwin told his supervisor, Marcus Leslie, that he had disabilities. Goodwin survived esophageal cancer, but it required surgery that altered the size of his stomach, making it necessary for Goodwin to eat small, frequent meals throughout the day to sustain his energy. Goodwin told Leslie that he needed short breaks to eat between five or six times a day. Goodwin also told Leslie that he needed to avoid extreme heat and lying on his stomach. Goodwin did not formally request those accommodations until months later in July 2019 by submitting an accommodations request through the Equal Employment Opportunity Office (“EEO”), though Goodwin claims he emailed Leslie a request for those accommodations before that in April 2019.
On July 8, 2019, Jason Brown, an electrical work leader, asked Goodwin and another electrician to repair exposed wires in the ceiling of a building on base. Goodwin and the other electrician went to the building and determined that the repair would require work on a smoke detector. Goodwin emailed Brown later that day to explain that he was not trained or certified to work on the smoke detector system. Goodwin left the work order for the job on Brown's desk.
This resulted in a three-day incident during which Leslie and Goodwin repeatedly were at odds. On July 17 Leslie gave Goodwin a Letter of Warning to put Goodwin on notice of misconduct. The letter stated that Goodwin's “lack of initiative to attempt any repairs is unprofessional and unacceptable.” (Def.s' Mot. Summ. J. Ex. G, ECF No. 67-7 at 1.) The letter stated that Goodwin should have used his “professional experience and knowledge to figure it out” or he should have “communicated with your work leader . . . while . . . still at the job site” to receive training or direction. (Id.) Goodwin signed the letter, acknowledging its receipt, but Goodwin wrote under his signature, “I signed this document under duress and discrimination due to my disability, age, and race. This document is full of lies.” (Id. at 2.) Both Goodwin and Leslie are African American. The electrician who accompanied Goodwin to repair the exposed wires is Caucasian and was not disciplined.
The next morning, July 18, Goodwin emailed two supervisors above Leslie-Bill Thiel and Gregg Winegar-stating that Leslie's Letter of Warning from the previous day was biased and that Goodwin felt he was being discriminated against due to his color, age, and disability. Goodwin noted that the Army and his supervisor were aware of his disabilities, mentioning his asthma and “other disabilities.” (Def.'s Mot. Summ. J. Ex. I, ECF No. 67-9 at 1-2.) Goodwin further claimed that Leslie and Brown conspired against him with “acts of discrimination.” (Id.) In a text message later that day, Winegar gave Goodwin permission to go to the EEO and the Union offices. Later that morning, Goodwin emailed Leslie asking to work inside due to excessive heat and noting that he was making the request by email because Leslie and Brown created a hostile work environment for him.
That afternoon, Leslie emailed Goodwin stating that Goodwin failed to provide Leslie with the original copy of the signed Letter of Warning. Leslie also stated that he made a memorandum of Goodwin's insubordination from the day before, noting that Goodwin left Leslie's office before Leslie finished their meeting. Goodwin quickly replied to the email noting that he came back to Leslie's office with a witness to support his side of the story and that he gave the original copy of the letter back to Leslie. Goodwin also stated that Leslie was now harassing him, that the harassment was unwanted and affecting his disability, and that he has a right to be free from harassment and discrimination. Goodwin also asked for permission to go to the EEO, to which Leslie replied that Goodwin had permission to go to the EEO and Union offices after lunch that day.
Later that day, Goodwin sent another email to Leslie again asking for permission to go to the EEO and Union offices, but requesting a response in writing because he did not trust Leslie's verbal responses. Goodwin stated that Leslie's Letter of Warning and memorandum of insubordination were lies to cover up Leslie's harassment and discrimination. Goodwin also requested “reasonable accommodations” that all communication between supervisory officials, including Brown, be through email. Leslie responded that Goodwin's request to have all communication by email was unreasonable, noting that all employees were to communicate through government-issued radios. However, after Goodwin replied the next morning that he would provide medical evidence to support his request for accommodation, Leslie provided Goodwin the contact information for the reasonable accommodation coordinator.
At some point on July 18 and July 19, Leslie drafted memoranda about his interactions with Goodwin on those days. The July 18 memorandum notes that Goodwin failed to give Leslie the original Letter of Warning back to him. It also detailed how Goodwin demanded that he and Leslie communicate only by email rather than through their government-issued radios. Leslie wrote in the memorandum that Goodwin requested to go to the EEO office that morning, and when Leslie told him he could go in the afternoon, Goodwin began complaining by email, from the office, about the excessive heat at the worksite and not being able to go to the EEO office, showing that Goodwin was not at the worksite. The July 19 memorandum notes that Goodwin continued sending emails that morning instead of being at the worksite. It noted that the emails concerned Goodwin's request for accommodations for his disability, for which Leslie provided the contact information for the reasonable accommodation coordinator. It also noted that Goodwin continued to express his desire to protest the Letter of Warning received on July 17.
Goodwin submitted an accommodation request through the EEO on July 22, 2019. Goodwin sought work orders and instructions in writing, such as text and email. Goodwin also sought the opportunity to take three to four breaks of no longer than ten minutes per break, as needed. Goodwin included a doctor's note recommending, but not requiring, that Goodwin eat five to six times per day and suggesting that Goodwin may need additional breaks. Goodwin did not include medical documentation for his expressed need to have work orders and instructions in writing.
Leslie approved Goodwin's accommodations request, with modifications, on August 14, 2019. The approval noted that all work orders were provided in printed form and employees were provided note pads and pens to write things down. Leslie approved Goodwin to take two more breaks per day to eat, in addition to a lunch break, assuming Goodwin ate once before work and once after work, to accommodate his need to eat five to six times per day. Goodwin told the EEO that he disagreed with Leslie's response and refused to sign the agreement. He asked the EEO if he could appeal Leslie's decision or add it to an EEO complaint. The parties did not engage in any further interactive process thereafter.
Throughout September 2019, Goodwin began taking more sick leave and eventually, on September 30, exhausted his annual leave, sick leave, and disabled veterans leave. Leslie discussed with Goodwin that he would be marked absent without leave (“AWOL”) for any further sick leave he took unless Goodwin provided medical documentation. On September 17, Goodwin emailed Leslie complaining that Leslie failed to notify Goodwin about training that Goodwin missed and that Leslie was refusing to email Goodwin with work-related information. Goodwin stated that Leslie's actions were discriminatory, harassing, and aggravating Goodwin's service-connected disabilities. On September 25, Goodwin emailed Leslie that he was too sick to work and that he needed to take sick leave or leave without pay, adding that he would try to get a doctor's note. On the same day, Leslie drafted a second memorandum documenting Goodwin's purported misconduct from July 18 to July 19. This memorandum was not presented to Goodwin until after Goodwin's termination in October.
On the morning of October 17, 2019, the Director of the Directorate of Public Works informed Goodwin that his employment was being terminated based on his failure to demonstrate fitness for continued employment during his probationary period. The letter cited the instances between July 18-19, 2019 where Goodwin purportedly failed to follow his supervisor's instructions, including by reporting to a place of duty one hour late on July 18, departing a work area without authority to check email on July 18, and failing to report to a place of duty on July 19. The letter also cited the misconduct allegations related to Goodwin's failure to work on a smoke detector on July 8, for which he was disciplined on July 17. Goodwin's termination was effective the next day, October 18. Goodwin walked out of the meeting and, that afternoon on October 17, filed a formal EEO complaint of discrimination. The complaint claimed discrimination and retaliation because of Goodwin's disability, race, and age.
Goodwin filed this action on August 31, 2021. The Amended Complaint raises the following causes of action: failure to accommodate and retaliation pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq.; and discrimination and retaliation based on race or color pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that the McDonnell Douglas framework applies to retaliation claims under Title VII); see also Hannah P. v. Coats, 916 F.3d 327, 342 (4th Cir. 2019) (“Rehabilitation Act claims for discrimination are reviewed under the McDonnell Douglas burden-shifting framework.”). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappears], and the sole remaining issue [is] discrimination vel non.” Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred,” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt, 601 F.3d at 294-95.
C. The Army's Motion
1. Rehabilitation Act-Failure to Accommodate
The Army argues that Goodwin cannot show that the Army failed to provide him a reasonable accommodation. Specifically, the Army argues that Goodwin fails to put forth evidence that his request for accommodation was reasonable or that the Army refused to make a reasonable accommodation. The court concludes that, on the latter point, no reasonable jury could conclude on this record that the Army refused to make a reasonable accommodation for Goodwin's disabilities.
To establish a failure-to-accommodate claim, a plaintiff must show that (1) he qualifies as an “individual with a disability” as defined in 29 U.S.C.A. § 705(20); (2) the employer had notice of his disability; (3) he could perform the essential functions of his job with a reasonable accommodation; and (4) the employer refused to make any reasonable accommodation. Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 414 (4th Cir. 2015) (citing 29 U.S.C. § 794(a)).
The McDonnell Douglas burden-shifting framework does not apply to failure-to-accommodate claims, which do not require evidence of discriminatory intent. See Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 959 n.2 (4th Cir. 2021).
The record is undisputed that Goodwin's accommodation request was “to assign work orders and instructions via writing (text, email, etc....) and be afforded the opportunity to take 34 break [sic] as needed” for no longer than ten minutes per break. (Def.'s Mot. Summ. J. Ex. L., ECF No. 67-12.) It is also undisputed that Leslie's response was to approve a modified accommodation. Leslie wrote:
To the extent Goodwin argues that he made a verbal request for accommodation to Leslie prior to his formal request for accommodation, the court concludes that for the reasons explained in the Army's reply brief, (ECF No. 75 at 4-8), there is no evidence in the record of what that request entailed or how Leslie responded. Goodwin has failed to forecast any evidence from which a jury could reasonably find that the Army failed to accommodate an earlier request.
All work orders are provided in a printed form from the computer. All of our electrical shop employees were given note pads and ink pens to take notes and are asked if they have any questions before dismissal from our daily morning meetings. Mr. Goodwin will be permitted two additional breaks (one in the morning and one in the afternoon). The medical documentation provided says that it is “recommended that Mr. Goodwin eats 5-6 times a day.” Assuming Mr. Goodwin eats breakfast before coming to work and eats dinner at home after leaving work, an additional morning break, existing normal lunch break, and an additional afternoon break would be sufficient time for 5 meals. If a 6th meal is necessary, it could be consumed at home in the late evening hours. It should also be understood that these additional breaks (2 each) would not be in addition to any other breaks already provided by the service, such as additional breaks given throughout the day due to weather and heat (safety).(Def.'s Mot. Summ. J. Ex. O, ECF No. 67-15 at 2.) Goodwin, however, argues that the “modifications made by Leslie were to stop providing the accommodations and modify them unilaterally.” (Pl.'s Resp. Opp'n Summ. J., ECF No. 72 at 22.) Goodwin argues that because “the Defendant never engaged in an interactive process with Plaintiff or otherwise had any productive communication to justify the cessation of accommodating Plaintiff,” there are material facts in dispute. (Id.)
Goodwin's argument ignores the undisputed fact that he rejected Leslie's proposed modifications and instead inquired to the EEO about appealing Leslie's decision or adding it as a basis for a complaint of discrimination. See Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 323 (4th Cir. 2011) (“[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary.”) (quoting Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135-36 (7th Cir.1996)). Therefore, Goodwin is the party who refused to engage in the interactive process and no reasonable jury could find otherwise on this record. Goodwin's description of Leslie's modification as ending the accommodations is unsupported in the record: no evidence supports a conclusion that Goodwin was already receiving any accommodations. Even accepting Goodwin's assertion that he orally requested accommodations before filing a formal request, there is no evidence in the record that such accommodations were in place before July. Also, Goodwin fails to provide any explanation as to why Leslie's modification was not sufficient to allow Goodwin to perform the essential functions of his job. See Reyazuddin, 789 F.3d at 415 (“An employer may reasonably accommodate an employee without providing the exact accommodation that the employee requested.”); see also Jacobs v. N.C. Admin. Off, of the Cts., 780 F.3d 562, 581 (4th Cir. 2015) (“However, an employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position.”) (ADA). Consequently, Goodwin fails to identify evidence from which a reasonable jury could conclude that the Army failed to provide him with a reasonable accommodation.
2. Rehabilitation Act-Disability Discrimination
Goodwin's Amended Complaint does not raise a separate cause of action for disability discrimination, although the parties brief that claim as if it had. Thus, the court considers the Amended Complaint to have been constructively amended to add a disability discrimination claim by the implied consent of the parties. See generally Interstate Petroleum Corp. v. Morgan, 249 F.3d 215, 227 (4th Cir. 2001) (Wilkins, J., dissenting) (“It is well-settled that the parties may constructively amend the complaint by agreeing, even implicitly, to litigate fully an issue not raised in the original pleadings.”); United States v. Cochran, 79 F.Supp.3d 578, 583 (E.D. N.C. 2015) (“Rather, a party must amend the complaint, or the parties must constructively amend the complaint by, for example, agreeing to litigate fully an issue not raised in the original pleadings, or by addressing a theory of liability in their summary judgment briefs.”). The court therefore addresses this claim.
The Army argues that to the extent Goodwin raises a disability discrimination claim, he puts forth no direct evidence to support the claim, he fails to meet the prima facie elements to support the claim, and he fails to put forth evidence showing that Army's legitimate, nondiscriminatory reasons for reprimanding and terminating him were mere pretext for discrimination. (Def.'s Mot. Summ. J., ECF No. 67 at 8-14.) Goodwin's response summarily argues that he was reprimanded and terminated because the Army's failure to accommodate him resulted in increased disciplinary actions. (Pl.'s Resp. Opp'n, ECF No. 72 at 24.) Goodwin does not cite to evidence or explain whether evidence in the record can directly prove disability discrimination, nor does he address the Army's thorough argument that Goodwin cannot support his claim under the burden-shifting framework. (Def.'s Mot. Summ. J., ECF No. 67 at 8-14.)
Goodwin cross-references his briefing on the failure-to-accommodate claim to support his discrimination claim, noting that he addressed the prima facie elements there and cited facts in the record to support it. (Pl.'s Resp. Opp'n, ECF No. 72 at 24-25.) But the prima facie test for disability discrimination differs from that of failure to accommodate. Compare Hannah P. v. Coats, 916 F.3d 327, 342 (4th Cir. 2019) (stating that to establish aprima facie case of disability discrimination under the Rehabilitation Act, the plaintiff must show that: (1) he is disabled; (2) he was otherwise qualified for the position; and (3) he suffered an adverse employment action solely on the basis of his disability); with Reyazuddin, 789 F.3d 407, 414 (4th Cir. 2015) (listing the requisite elements for a claim based on a failure to accommodate). Thus, the evidence for one is not necessarily germane to the other. Goodwin has failed to forecast evidence refuting the defendant's motion.
The rest of Goodwin's argument argues that the third element of the prima facie test for disability discrimination claims is unsettled. See, e.g., Jennings v. Frostburg State Univ., 679 F.Supp.3d 240, 273 (D. Md. 2023) (noting disagreement with the third element of the prima facie test used by the Fourth Circuit). Whatever the merits of that argument may be, Hannah P. remains precedential. And Goodwin fails to address how the test applies to his claim, or on what basis the court should deny the Army's motion as to this claim. (Pl.'s Resp. Opp'n, ECF No. 72 at 24-25.) Goodwin's briefing is plainly insufficient to rebut the Army's well-supported argument that Goodwin fails to meet the prima facie elements of disability discrimination. Consequently, the defendant's motion for summary judgment as to any disability discrimination claim asserted by Goodwin should be granted.
3. Rehabilitation Act-Retaliation
The defendant argues that Goodwin cannot establish a prima facie case of retaliation under the Rehabilitation Act, and even if he could, Goodwin fails to show that the reasons the Army gave for terminating him were mere pretext for retaliation.
The Rehabilitation Act provides: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). A plaintiff asserting a retaliation claim under the Rehabilitation Act may proceed by either showing direct or indirect evidence of discrimination, or he may proceed under the McDonnell Douglas burden shifting method. Smith v. CSRA, 12 F.4th 396, 416 (4th Cir. 2021). Under the McDonnell Douglas framework, a plaintiff must first show: (1) he engaged in a protected activity; (2) his employer acted adversely against him; and (3) his protected activity was causally connected to the employer's adverse action. Id. (citing Rhoads v. F.D.I.C., 257 F.3d 373, 392 (4th Cir. 2001)).
As to protected activities, the parties' briefing fails to define the precise conduct at issue. Goodwin provides a list of purported protected activities, (Pl.'s Resp. Opp'n, ECF No. 72 at 2627), but some of the items are vague and do not include precise dates. The Army appears to concede that Goodwin engaged in some protected activities, but quibbles with the factual bases for some of the activities. (Def.'s Reply, ECF No. 75 at 10-11.) Neither party provides legal analysis as to whether the activities discussed are protected by the Rehabilitation Act. Thus, for purposes of resolving the Army's summary judgment motion and viewing the facts in the light most favorable to Goodwin, the court addresses the following purported protected activities by Goodwin: Goodwin's protestations that Leslie was discriminating against him and harassing him, beginning on July 17 in response to the Letter of Warning; Goodwin's requests to go to the EEO office; Goodwin's accommodation request; and Goodwin's participation in EEO activities. See generally Jacobs v. N.C. Admin. Off, of the Cts., 780 F.3d 562, 577 (4th Cir. 2015) (holding that submitting a request for accommodation is a protected activity under the ADA); Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (stating that under Title VII, an employer may not retaliate against an employee for participating in an ongoing investigation or proceeding, including assisting or participating in the investigation, or for opposing discrimination by utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities).
See generally Duerr v. Richland Cnty., C/A No. 3:22-111-SAL-PJG, 2023 WL 5779419, at *3 (D.S.C. Mar. 31, 2023) (discussing authorities to aid in determining the line between opposition activity that is protected by federal anti-discrimination laws versus unacceptable employee conduct warranting termination), report and recommendation adopted, 2023 WL 5271835 (D.S.C. Aug. 15, 2023).
Goodwin's filing of a formal EEO Complaint is not relevant here because he filed the Complaint only after his termination on the morning of October 17. See, e.g., Durkin v. City of Chicago, 341 F.3d 606, 614-15 (7th Cir. 2003) (“It is axiomatic that a plaintiff engage in statutorily protected activity before an employer can retaliate against her for engaging in statutorily protected activity.”).
Case law on the anti-retaliation provisions of the ADA and Title VII are relevant to interpreting the anti-retaliation provision under the Rehabilitation Act. Brady v. Bd. of Educ. of Prince George's Cnty., 222 F.Supp.3d 459, 474 (D. Md. 2016), aff'd, 707 Fed.Appx. 780 (4th Cir. 2018).
As to adverse actions, the parties again fail to clearly define the material events for the court. The Army combines its analysis for the Title VII and Rehabilitation Act retaliation claims, and it is unclear which claims are being analyzed throughout and what facts are relied upon. The Army identifies three acts that it argues were not materially adverse: (1) the Letter of Warning, (2) Leslie's modification of the request for accommodation, and (3) requiring Goodwin provide doctor's excuses. The Army argues that Goodwin cannot make a prima facie case for retaliation based on those acts. As to the more obvious adverse act-Goodwin's termination-the Army argues it provided legitimate, non-discriminatory reasons to terminate Goodwin, who fails to identify any evidence that those reasons were pretext for discrimination. For his part, Goodwin identified three more potential adverse actions-“disciplining Plaintiff for taking lawfully requested and approved leave from his supervisor Winegar to engage EEO,” “disciplining Plaintiff multiple times so that a record could be created to terminate Plaintiff's employment,” and “violating safety law by requiring Plaintiff to work in extreme heat without water.” (Pl.'s Resp. Opp'n, ECF No. 72.) But Goodwin does not address the Army's argument that three of the purported adverse acts are not material; nor does he provide legal analysis to support the sufficiency of his three additional purported adverse actions.
The court concludes that the only plausible materially adverse act listed by Goodwin is his termination. First, the Letter of Warning was issued before he protested his treatment based on race or disability. Second, no reasonable jury could conclude that Leslie's acceptance of Goodwin's accommodation request with minor modifications (as previously discussed) was a retaliatory act that would have dissuaded a reasonable worker from engaging in protected activity. See Strothers v. City of Laurel, Maryland, 895 F.3d 317, 327 (4th Cir. 2018) (Title VII) (defining “materially adverse” actions). Third, as explained in the Army's brief, (ECF No. 67 at 33), requiring Goodwin to provide doctor's excuses also cannot count as a materially adverse action; on this record no reasonable jury could conclude that Goodwin would not have been granted leave if he had any leave available. Similarly, the only permissible inference on this record is that the doctor's notes were requested only to aid Goodwin from being marked AWOL. As to Goodwin's three additional purported adverse acts, (Pl.'s Resp. Opp'n, ECF No. 72 at 28), Goodwin does not explain to what incidents he is referring-the record does not appear to mention other instances of Goodwin being disciplined outside of the July 17 Letter of Warning and October 18 termination. Nor does the record appear to support any contention that Leslie violated a safety law, and the citations provided by Goodwin in his brief to support these assertions provide no clarity. See Fed.R.Civ.P. 56(c)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion 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[.]”)
Therefore, the issue here appears to be whether a reasonable jury could conclude that Goodwin was terminated in retaliation for complaining about disability discrimination, requesting a reasonable accommodation, and participating in EEO activities. As stated before, the Army argues that it provided legitimate, non-discriminatory reasons for Goodwin's termination. The termination letter relies on instances from July 18-19, 2019 where Goodwin purportedly failed to follow his supervisor's instructions, including by reporting to a place of duty one hour late on July 18, departing a work area without authority to check email on July 18, and failing to report to a place of duty on July 19. The letter also cited the misconduct allegations related to Goodwin's failure to work on a smoke alarm for which he was disciplined on July 17.
The Army appears to concede that Goodwin can make out a prima facie case of retaliatory discharge.
Having identified the appropriate protected activities and materially adverse action, the court concludes that on this record, a jury could reasonably find that the Army's stated reasons for terminating Goodwin were pretextual, and that the real reason he was terminated was in retaliation for opposing disability discrimination and participating in the EEO process. Goodwin was terminated on October 18 for purported misconduct that occurred in July. The only discipline Goodwin received for that misconduct was a Letter of Warning for the July 8 conduct. Goodwin was not contemporaneously disciplined for the July 17-18 conduct. Goodwin's termination letter stated that the July conduct was “just one example of [Goodwin's] repeated unsatisfactory conduct.” (ECF No. 67-18 at 1.) But the letter does not actually cite to any other “unsatisfactory conduct.” Cf. Smith v. CSRA, 12 F.4th 396, 421 (4th Cir. 2021) (finding a reasonable jury could conclude that an employer's post hoc rationale for terminating the plaintiff was not legitimate because, in part, the employer did not contemporaneously document the alleged misconduct that was the basis for terminating the plaintiff).
Crucially, the very activities that Goodwin claims are protected-accusing Leslie of discrimination and requesting to go to the EEO and Union offices-are the activities that Leslie cited as “unsatisfactory conduct” that justified Goodwin's termination. See generally Duerr, C/A 2023 WL 5779419, at *3 (discussed supra note 3, at 15); see, e.g., Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260 (4th Cir. 1998) (applying a balancing test to determine what constitutes a protected activity). Goodwin accused Leslie of race and disability discrimination in response to the July 17 Letter of Warning and requested to go to the EEO and Union offices. Over the next two days, Goodwin sent emails requesting to go to the EEO and Union offices, which Leslie found to be a dereliction of duty because Goodwin was not at a worksite. It was this very conduct-for which Goodwin was not disciplined at the time-that Leslie used to justify Goodwin's dismissal nearly three months later. And notably, during the intervening period, Goodwin further accused Leslie of discrimination, went to the EEO office to complain about Leslie, and requested accommodations for his disabilities. In September, when Leslie and Goodwin were again disagreeing over Goodwin's leave, his disability, and his further accusations of discrimination and harassment, Leslie drafted a second memorandum recording Goodwin's July misconduct but listed no new misconduct. Goodwin was fired less than one month later. That memorandum's language was repeated in the termination letter, which also failed to identify any misconduct after mid-July.
On these facts, a jury could reasonably question whether Leslie legitimately found Goodwin's conduct to be worthy of termination, or whether Leslie's used that conduct as a post hoc justification to retaliate against Goodwin for his accusations against Leslie. See, e.g., Mohammed v. Cent. Driving Mini Storage, Inc., 128 F.Supp.3d 932, 955 (E.D. Va. 2015) (“In determining whether an employer's performance-related rationale for terminating plaintiff's employment was genuine, the Court should consider ‘whether the performance-related problems were longstanding such that the employer had tolerated them for a long time, and suspiciously ceased tolerating the performance deficits around the time the employee engaged in protected activity. These factors help courts distinguish cases where performance concerns are genuine from those in which they are a mere pretext for retaliation.' ”) (internal alterations omitted) (quoting Louis v. Sun Edison, LLC, 797 F.Supp.2d 691, 705 (D. Md. 2011)). In other words, viewing the facts in the light most favorable to Goodwin, a reasonable jury could conclude that Leslie did not actually believe that Goodwin's purported misconduct in July justified dismissal, and that the Army terminated Goodwin in retaliation for Goodwin's accusations against Leslie and increasing requests for accommodations. Summary judgment is therefore not warranted on this claim.
4. Title VII-Retaliation
Title VII also makes it unlawful for an employer to retaliate against an employee for engaging in activity protected by the statute. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”). The requisite elements for a prima facie case of retaliation typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him or her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Further, “Title VII retaliation claims must be proved according to traditional principles of but-for causation,” which “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
Here, the Army argues that Goodwin fails to establish a prima facie case of retaliation under Title VII, but even if he could, Goodwin fails to show that the reasons offered for his termination were mere pretext for retaliation. The court agrees. Although the legal analysis for retaliation claims under Title VII and the Rehabilitation Act are generally the same, see Brady, 222 F.Supp.3d at 474, application of the controlling law to the facts compels different conclusions as to the two types of retaliation claims raised here.
Unlike the factual timeline surrounding Goodwin's disability-related protected activity, the facts viewed in the light most favorable to Goodwin do not support a reasonable finding that he was fired in retaliation for any race-based protected activity. The temporal proximity between Goodwin's complaint about race discrimination and his termination is much longer. In response to Leslie's July 17 Letter of Warning, Goodwin accused Leslie of discriminating against him based on race, disability, and age-both in emails to Leslie and in an email to Leslie's supervisors. Goodwin's complaints about his treatment based on his disability would become the subject of much disagreement between Goodwin and Leslie in the coming months, which is well-documented in the record. But there is a corresponding lack of any evidence that Goodwin expressed a reasonable belief that he was being discriminated against based on race. See Strothers v. City of Laurel, Maryland, 895 F.3d 317, 328 (4th Cir. 2018) (“To warrant protection, the employee's perception of a violation must be ‘objectively reasonable' under the circumstances known to [him].”). And while Goodwin accused Leslie of “discrimination” in multiple emails thereafter, he did not specify-or even intimate-that the alleged discrimination was based on race. See id. at 336 (discussing the importance of the factual context known to the employer). Rather, the substance of those emails (and their disagreements) concerned Goodwin's disability, need for accommodation, and desire to go to the EEO office regarding his disability issues. Further, Goodwin never contemporaneously identified any reason supporting a belief that Leslie's actions were motivated by racial animus, and he fails to point to any such evidence in the record now.Therefore, whereas Goodwin's termination happened mere weeks after Goodwin's persistent disability-related protected activities, there is a nearly three-month gap between Goodwin's single, vague complaint about race discrimination and his termination. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (stating temporal proximity must be “very close” to establish causality, and in juxtaposition, citing cases finding that three- and four-month periods were insufficient to establish causality); Pascual v. Lowe's Home Centers, Inc., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (finding that a three-to-four-month gap between the plaintiff's protected activities and termination was too long to establish causality by temporal proximity alone); King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003) (finding a two-month-and-two-week between the protected activity and termination “is sufficiently long so as to weaken significantly the inference of causation” but ultimately concluding the temporal proximity was not a persuasive factor in that case). Consequently, no reasonable jury could conclude on this record that the Army retaliated against Goodwin for accusing Leslie of race discrimination.
Perhaps Goodwin's accusation was based on Goodwin's being disciplined for not repairing the smoke detector on July 8, when the white electrician who accompanied him was not disciplined, but that is speculative. Nothing in the record shows that Goodwin expressed that reasoning to the Army. See generally Strothers, 895 F.3d at 336 (“An employer is aware of an employee's protected activity when he learns of an employee action that he understood or should have understood to be opposition against a Title VII violation. When determining whether the employer should have understood the nature of the employee's action, courts examine not just the employee's complaint but also the factual context that is known to the employer.”) (internal citations omitted). Instead, Goodwin made a single, sweeping accusation that Leslie issued the Letter of Warning because of “discrimination due to my disability, age[,] and race.” (Def.'s Mot. Summ. J. Ex. G, ECF No. 67-7 at 1.) Moreover, the fact that Leslie and Goodwin are the same race weakens any inference that Leslie was motivated by racial animus. See generally Coggins v. Gov't of D.C., 173 F.3d 424; 1999 WL 94655, at *4 (4th Cir. 1999) (unpublished table decision) (stating, in a Title VII case, that the fact that the ultimate decision-makers were of the same race as the plaintiff made it unlikely that their decision was motivated by racial animus); Demesme v. Montgomery Cnty. Gov't, 63 F.Supp.2d 678, 683 (D. Md. 1999) (“The fact that the decision makers were of the same protected class suggests no discriminatory motivation.”), aff'd, 208 F.3d 208 (4th Cir. 2000); Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 711 (D.S.C. 2014) (“[T]he fact that some of the individuals who allegedly discriminated against the Plaintiff are the same race as the Plaintiff is not a dispositive fact when determining whether discrimination occurred. Nevertheless, . . . it is a relevant consideration in light of all of the evidence....”).
5. Title VII-Discrimination/Disparate Treatment
The court concludes that Goodwin has abandoned his Title VII disparate treatment claim. In response to the Army's thorough briefing on this claim, Goodwin responds with a bulleted list of discrete acts that Goodwin argues shows race discrimination. This conclusory list of allegations provides no citation to the law or appropriate legal standards, lacks legal analysis, and is unresponsive to the Army's thorough arguments. Consequently, Goodwin's failure to offer any substantive response to the Army's motion constitutes a concession of the validity of the Army's argument. See United Supreme Council, 33 Degree v. United Supreme Council of Ancient Accepted Scot. Rite, 329 F.Supp.3d 283, 292 (E.D. Va. 2018) (“Failure to respond to an argument made in a dispositive pleading results in a concession of that claim.”); see also Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Liberty Corp. Cap. Ltd. v. Palmetto Bluff Shooting Club, LLC, C/A No. 9:19-cv-00521-SAL, 2021 WL 3828682, at *4 n.3 (D.S.C. Aug. 24, 2021) (stating that conclusory, nonsubstantive arguments in response to a summary judgment motion may constitute a waiver or abandonment of the claim).
Also, in response to the Army's motion, Goodwin attempts to resurrect a failure-to-promote claim under Title VII and the Rehabilitation Act, despite the court's having already dismissed that claim based on a failure to timely exhaust administrative remedies. (See Order, ECF No. 34, adopting Report and Recommendation, ECF No. 29.) That claim is no longer before the court.
RECOMMENDATION
Based on the foregoing, the court recommends that the Army's motion for summary judgment (ECF No. 67) be denied as to Goodwin's retaliation claim pursuant to the Rehabilitation Act and granted as to Goodwin's other claims.
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).