Opinion
Civil Action 4:21-cv-3266-JD-TER
02-24-2023
JEFFREY L. HELMS, Plaintiff, v. HILTON RESORTS CORP. d/b/a HILTON GRAND VACATIONS, and HILTON GRAND VACATIONS, LLC, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This action arises from Plaintiff's employment with Defendants. Plaintiff originally filed this action in the Court of Common Pleas, Horry County, South Carolina. Defendants removed it to this court. Plaintiff alleges causes of action for age discrimination, retaliation, and hostile work environment in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., national origin discrimination, sex discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq., retaliation and hostile work environment in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and violation of the South Carolina Payment of Wages Act (SCPWA), SC Code Ann. § 41-10-10, et seq.. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 47). Because Plaintiff is proceeding pro se, Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in the motion being granted and his claims dismissed. Plaintiff filed a Response (ECF No. 51), and Defendants filed a Reply (ECF No. 52). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
Defendants represent that Hilton Resorts Corporation is the proper party to this Action and that “Hilton Grand Vacations/Hilton Grand Vacations, LLC” is incorrect. Nevertheless, Defendants not that throughout discovery, it has commonly been called Hilton Grand Vacations or “HGV,” and Defendants use “HGV” throughout its motion. Thus, for ease of reference, the undersigned will do so as well.
II. FACTS
Plaintiff is a sixty-five year old, white male. He began working for HGV on June 14, 2017, as a Sales Executive on the Action Line. Compl. ¶ 22 (ECF No. 1-1); Pl. Dep. 34:9-11(ECF No. 472). Defendant's business model relies on the sale of vacation ownership at each of its resorts. There are two distinct sales departments at the Ocean Enclave resort where Plaintiff worked: “Action Line” and “In-house.” Pl. Dep. 38:18-23. The Action Line sells to new HGV customers and the In-house line sells to existing HGV owners. Id. An Action Line Sales Executive takes customers on a minimum 90-minute tour of the facility which ends at the Sales Executive's desk on the sales floor. Compl. ¶ 25. When the Sales Executive successfully persuades a customer to make a purchase, they turn the customer over to a Sales Leader, commonly called a “T.O.” (Takeover Manager). Helms Dep. 29:10-23 (ECF No. 47-3). The T.O. has access to the available inventory which they present to the customer for selection, after which the sales contract is prepared and signed. Id.
HGV measures Sales Executives' performance in two ways: volume per guest (VPG) and net closing percentage. VPG is “similar to a baseball batting average. It [is] the amount of volume” measured in dollars “that a Sales Executive has been able to sell, divided by the number of prospects he has seen.” Gorby Dep. 27:16-20 (ECF No. 47-4). Net closing percentage is the number of sales made by the Sales Executive divided by the number of customers the Sales Executive has taken on tours during a prescribed period of time. Gibbs Dep. 13:16-248 (ECF No. 47-5); Riley Dep. 21:18-19 (ECF No. 47-6). During Plaintiff's employment, each Action Line Sales Executive had to maintain a VPG of 90% or greater of the monthly budgeted VPG, or a monthly net closing percentage of 11.5%, to avoid performance counseling. Performance Reports (ECF No. 47-7). Plaintiff asserts in his Response that VPG was always the determining factor for performance, both with HGV and during his entire sales career of twenty years in timeshares and/or vacation ownership sales. He points to Minimum Performance Standards/ Action Line Rules, which states that “Action Line is set up on two metrics: 50%of the weight on a 30-day VPG look back and 50% on a 90-day VPG look back.” Action Line Rules Made Easy (ECF No. 51-1, p. 1). Plaintiff asserts that net closing percentage has never been used to determine performance.
In early 2020, as a result of the COVID-19 pandemic, HGV's timeshare business was substantially impacted as hotels and resorts were forced to close. Ocean Enclave closed as a result of COVID-19 on March 19, 2020. Compl. ¶ 56. Approximately two weeks later, HGV reopened Ocean Enclave with a skeleton crew of 17 Action Line Sales Executives and implemented a furlough for the remaining 53 Sales Executives in the department. Gibbs Dep. 23:12-16. HGV informed the impacted Sales Executives, including Plaintiff, of this furlough via letter dated April 3, 2020. Furlough Letter (ECF No. 47-9). The Furlough Letter states that “seniority will not change as a result of being placed on temporary furlough.” Furlough Letter. Plaintiff notes that he was senior both in age and in years of service. HGV's corporate office made the decision to furlough employees but left it to local management teams to implement the furlough. Gibbs Dep. 20:8-20; Riley Dep. 16:15-17:14.
Throughout 2020, local management teams developed plans for a phased return to work of a percentage of the workforce, based on market conditions, and, later, a selection process for those who would be terminated as part of a nationwide Reduction in Force (RIF) caused by the ongoing economic impact of the pandemic. Gibbs Dep. 20:8-20; Riley Dep. 19:20-20:19. HGV's Vice President of Sales for South Carolina, Mike Riley, prepared a strategy for furloughs and phased reopening with Ocean Enclave's management team, Roger Gorby (then-Senior Director of Sales), John Gibbs (then-Senior Sales Manager), and Woody Dellis (then-Director of Sales) (collectively, the “management team”). Id. For the Action Line at Ocean Enclave, the management team determined the most appropriate metric for ranking and returning the Sales Executives was the individual's net closing percentage. Riley Dep. 20:13-15, 25:11-21, 34:11-35:7, 49:11-23; Gibbs Dep. 20:8-21:15; Gorby Dep. 31:13-23. Riley testified that HGV needed as many new customers to make purchases as possible following the reopening of Ocean Enclave. Riley Dep. 21:1-10. HGV did not use seniority, tenure, or any other criteria for the furloughs or return of employees except net closing percentage. Meldeau Dep. 11:23-25-12:2 (EcF No. 47-10). Plaintiff disputes that net closing percentage was the measure used to determine which Sales Executives would return to work and in what order. Plaintiff asserts that Gibbs confirmed to him in a text message that VPG was the corporate-wide measure for returning to work. However, the only text message included in Plaintiff's exhibits lacks any reference to VPG or how the determination would be made as to which Sales Executives would return to work.
Plaintiff's exhibits include a screenshot of a text message, which appears to be between Plaintiff and “Johnny” in which Plaintiff asks Johnny if he is still with Hilton in MB, if Ace is still working for HGV, and if Johnny is now a showcase presenter. Text Message (ECF No. 51-1, p. 2).
As travel and the hospitality industry continued to partially re-open in 2020, the management team created a plan to bring additional employees back from furlough. Using the available market forecasts of projected tours provided to them, the management team estimated how many Sales Executives would be required. Riley Dep. 22:1-23, 25:11-21. HGV brought back additional Sales Executives in phases, including Plaintiff. Twelve-Month Look-Back Report, Bates No. 623 (ECF No. 47-11); Gibbs Dep. 28:1-29:3; Compl. ¶ 79. The selection criterion for bringing back additional Action Line Sales Executives was the same as was used for Phase 1 (the top Sales Executives by net closing percentage), but the look-back period was extended from 6 months to 12 months. Gibbs Dep. 28:9-17; Riley Dep. 16:19-17:2, 22:19-23:7.
HGV's internal marketing department prepares regular reports forecasting the tour flow (i.e., the number of customers registered for a tour) for HGV properties in consultation with the company's marketing partners. Riley Dep. 17:3-14, 21:20-22:12. The management team uses these reports to ensure proper staffing levels to meet the forecasted demand for tours at Ocean Enclave. Id.
Riley testified that the look-back period was extended from 6 months to 12 months to account for the seasonal fluctuations in South Carolina sales of vacation ownerships. Riley Dep. 22:1-23:7.
Due to ongoing economic challenges presented by COVID-19, HGV was forced to implement a nationwide RIF on October 31, 2020. RIF Notice (ECF No. 47-12). HGV's RIF affected “approximately 1600” employees nationwide. Id. Riley testified that at all times throughout the process, the only factor that determined whether an Action Line Sales Executive was furloughed, returned to work, or terminated pursuant to the RIF was that Sales Executive's relative (“stacked”) rank among all Action Line Sales Executives at Ocean Enclave based on their net closing percentage. Riley Dep. 25:11-21.
When the furlough began, Plaintiff ranked 32nd among Action Line Sales Executives based on his net closing percentage of 9.57% over the preceding six months. Six-Month Look-Back Report (ECF No. 47-13). As noted above, 17 Sales Executives were retained in Phase 1, and the remaining, including Plaintiff, were furloughed on April 2, 2020. Id. When business conditions improved and the projected number of tours increased, the management team expanded the look-back period to 12 months to determine which Sales Executives to recall from furlough as conditions improved. A 12-month net closing percentage look-back was used because it provided the most accurate representation of a team member's effectiveness. Riley Dep. 16:19-17:14, 22:19-23:7. Plaintiff's reported net closing percentage using the 12-month look-back period was 9.63%, and he ranked 37th. Twelve-Month Look-Back Report, Bates No. 620. HGV returned Plaintiff to work on September 2, 2020. Compl. ¶ 79. Gibbs testifies that Plaintiff was returned solely based on his position in the stacked ranking of Action Line Sales Executives using net closing percentage over a 12-month look-back period. Gibbs Dep. 28:9-17.
Plaintiff asserts that he was returned to work only after he sent a letter to corporate on August 23, 2020, complaining that he had not been returned to work, and his return came after the entire summer season had already passed. See Pl. Letter (ECF No. 47-17). He also notes that, upon his return, he learned that his employment status had been changed to “terminated employee,” which the management team described as a mistake. However, Plaintiff argues that HGV never intended to return Plaintiff to work, and based upon VPG, he was ranked number 1 out of 72 sales executives.
Plaintiff submits little, to no, evidence supporting his assertions. Included in his exhibits is an untitled document indicating that, for the week of February 17-23, 2020, he was ranked number 1, though the criterion for the ranking is unclear.
Plaintiff filed two charges of discrimination with the Equal Employment Opportunity Commission (EEOC). The first is dated November 2, 2020. Nov. 2020 Charge (ECF No. 47-15, p. 2). He checked boxes indicating he was discriminated against on the basis of race, national origin, retaliation, age, and disability. In the narrative of his charge he states that following the furlough, he was not returned to work as a result of his age and disability, while younger, less experienced employees were returned to work ahead of him. Id. He filed a second charge on January 7, 2021, in which he also checks boxes for race, retaliation, sex, retaliation, age, and disability. Jan. 2021 Charge (ECF No. 47-15, p. 4). He again complains that younger, females were returned to work following the furlough before he was and notes that he was asked by John Gibbs, “why don't you just retire?” Id. He also states that when he finally did return to work on September 2, 2020, he was subjected to differential treatment by Gorby and Gibbs. Id.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position 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.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. Scope of Administrative Remedies
Before bringing a claim in federal court under Title VII, the ADEA, or the ADA, a plaintiff must file a charge with the EEOC. 42 U.S.C. § 2000e-5(e)(1) (Title VII); 29 U.S.C. § 626(d); 42 U.S.C. § 12117 (ADA); see also Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (“Before a Title VII plaintiff can bring a formal suit, he must file an administrative charge with the [EEOC].”). The “scope of the plaintiff's right to file a federal lawsuit is determined by the charge's contents.” Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012). A plaintiff's claims fails if his “administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in [her] formal suit.” Chacko, 429 F.3d at 506. However, a complaint may contain also claims “reasonably related” to the EEOC charge or claims that would naturally “follow from a reasonable administrative investigation.” Sydnor, 681 F.3d at 594. This exhaustion requirement ensures notice to the employer of a discrimination claim and gives the EEOC the first attempt at resolving employment discrimination disputes. Id. at 593.
In South Carolina, the charge must be filed within 300 days after an “alleged unlawful employment practice” occurred. 42 U.S.C. § 2000e-5(c), (e) (Title VII); 29 U.S.C. § 626(d)(1) (ADEA); 42 U.S.C. § 12117 (ADA). As stated above, Plaintiff signed and filed EEOC charges on November 2, 2020, and January 7, 2021. Therefore, Plaintiff may not rely on any alleged adverse actions that took place before January 7, 2020, which is 300 days before Plaintiff filed his charge. in his first charge, Plaintiff alleged the earliest discrimination took place was May 15, 2020. He later altered this date to April 2, 2020, in his second charge, which is the date the furlough went into effect.
B. Burden-Shifting Framework
As set forth above, Plaintiff alleges gender and national origin discrimination and retaliation in violation of Title VII; age discrimination and retaliation in violation of the ADEA; retaliation in violation of the ADA, and hostile work environment. When, as here, Plaintiff relies on circumstantial evidence in support of her discrimination and retaliation claims rather than direct evidence, the Court analyzes the claims using the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that McDonnell Douglas scheme of proof applies to ADA claims). Under this framework, Plaintiff must first establish a prima facie case of discrimination or retaliation. McDonnel Douglas, 411 U.S. at 802. If Plaintiff establishes a prima facie case, then the burden shifts to HGV to articulate legitimate, nondiscriminatory reasons for the actions challenged. Id. Once HGV articulates a legitimate, nondiscriminatory reason for its actions, the “presumption of discrimination drops out of the picture,” and Plaintiff must prove by a preponderance of the evidence that the legitimate, nondiscriminatory reasons offered are a mere pretext for unlawful discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Throughout this process, Plaintiff retains the burden of proving that HGV was motivated by unlawful discrimination or retaliation. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 286 (4th Cir. 2004) (citing Reeves, 530 U.S. at 153).
The Supreme Court has noted that it “has not definitively decided” whether the McDonnell Douglas framework, first developed in the context of Title VII cases, “is appropriate in the ADEA context.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 n.2, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In the absence of further direction from the Supreme Court, the Fourth Circuit precedent has consistently applied the McDonnell Douglas framework to ADEA claims. See Hill, 354 F.3d at 285; see also Bodkin v. Town of Strasburg, 386 Fed.Appx. 411, 2010 WL 2640461 at *4-5 (4th Cir. June 29, 2010) (continuing to apply the McDonnell Douglas framework to ADEA claims following the Gross opinion); Loose v. CSRA Inc., No. 19-2394, 2021 WL 4452432, at *2 (4th Cir. Sept. 29, 2021) (continuing to apply the McDonnell Douglas framework to ADEA claims).
C. Discrimination
Plaintiff alleges that HGV discriminated against him because of his age, gender, and national origin by returning younger, female employees to work following the furlough prior to returning him and because Gibbs, the Senior Sales Manager, appeared to be of middle-eastern descent and Plaintiff is Caucasian. Title VII makes it “an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....” 42 U.S.C. § 2000e-2(a)(1). The ADEA makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. 29 U.S.C. § 623(a)(1).
Even though Plaintiff was returned to work, rather than let go in a RIF, the prima facie case established for RIF cases is most helpful here. To establish a prima facie case of discrimination in the context of a RIF, Plaintiff must show (1) he was a member of a protected class; (2) he was selected for discharge from a larger group of candidates; (3) he was performing at a level substantially equivalent to the lowest level of those of the group retained; and (4) the process of selection produced a residual work force including some persons in the group who were outside the protected class and who were performing at a level lower than that at which he was performing. Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 430 (4th Cir. 2000) (ADEA); Corti v. Storage Tech. Corp., 304 F.3d 336, 340 n.6 (4th Cir. 2002) (Title VII).
Plaintiff cannot prove he was performing at a level substantially equivalent to the lowest level of the group retained and he cannot prove that employees outside the protected class were retained or returned to work before he was and that those individuals were performing at a lower level (i.e., had a lower net closing percentage than him). At the time of the furlough decision, Plaintiff ranked 32nd among Action Line Sales Executives based on his net closing percentage of 9.57% measured over the previous six months. See Six-Month Look-Back Report. When the management team expanded the look-back period to 12 months when returning Sales Executives from furlough, Plaintiff's rank dropped to 37th based on a 9.63% closing percentage. See Twelve-Month Look-Back Report. Of the top seventeen Sales Executives who were in the first group to return, none had a closing percentage of less than 12%. Id.
Twelve of the top 17 Sales Executives who first returned to work in phase 1 of the reopening were over 40, and 6 were over the age of 60. The highest-ranked Sales Executive was age 68, which was substantially older than Plaintiff at the time. Meldeau Declaration Ex. 1 (ECF No. 47-16). Also, of the top 17 Sales Executives who first returned to work, 12 of them were male and none of them, male or female, had a net closing percentage of less than 12%, compared to Plaintiff's net closing percentage of either 9.57% or 9.63%, depending upon the look-back period. Id. Plaintiff alleged in his deposition that 10 females were brought back to work before him who should not have been. These include: Angel Hinchcliffe (17.65%), Virginia Kacer (13.41%), Ellen Fludgate (11.76%), Brittany Beaudet (11.11%), Rachel Baran (11.11%), and Dawn Elkins (10.46%). Pl. Dep. 140:16-141:25, 143:2-144:24; Twelve-Month Look-Back Report. As the Twelve-Month Look-Back Report reveals, each of these women had net closing percentages higher than Plaintiff. Plaintiff also names Mary Antonuccio (identified by Plaintiff as Mary Ianuncci), but she returned to work after Plaintiff based on her 12-month closing percentage of 9.09%. See Pl. Dep. 140:24-141:8; Twelve-Month Look-Back Report. Plaintiff also named Tabitha Maybaum and Teresa Duffy, Pl. Dep. 143:7-9, 144:20-24, but Defendant represents that those names do not correspond to anyone employed by HGV. Further, Defendant also represents the final female Plaintiff identified, Amber Needham, is employed by HGV as a showcase presenter, not a Sales Executive. She was not compared with Plaintiff.
Plaintiff argues that net closing percentage was not the actual measurement used to determine who would return to work following the furlough and, based on VPG numbers, which were the only numbers used to measure a Sales Executive's performance, he was the top-ranking employee. However, he produces only his own speculation in this regard as well as Minimum Performance Standards/ Action Line Rules, which states that “Action Line is set up on two metrics: 50%of the weight on a 30-day VPG look back and 50% on a 90-day VPG look back.” Action Line Rules Made Easy (ECF No. 51-1, p. 1). However, the performance report form used for Action Line Sales Executives specifically shows that an Action Line Sales Executive had to maintain a VPG of 90% or greater of the monthly budgeted VPG, or a monthly net closing percentage of 11.5%, to avoid performance counseling. See Performance Reports (ECF No. 47-7). Thus, this document reveals that net closing percentage was used along with VPG to measure a Sales Executives performance, even before the furlough. Further, Defendant produces testimony from its management team that net closing percentage was the most appropriate metric to use to make furlough and return-to-work determinations, Riley Dep. 20:13-15, 25:11-21, 34:11-35:7, 49:11-23; Gibbs Dep. 20:8-21:15; Gorby Dep. 31:13-23; Meldeau Dep. 11:23-25-12:2, and Plaintiff fails to present evidence sufficient to create a dispute of fact on this issue. In addition, Plaintiff fails to show that any of the Sales Executives who returned to work prior to him had net closing percentages lower than him.
The Fourth Circuit has recognized that there is no inference of discrimination when an employer adheres to neutral, established policies and procedures for a RIF. Dugan v. Albemarle Cnty. Sch. Bd., 293 F.3d 716, 722 (4th Cir. 2002). “[I]t is within the employer's purview, in implementing a RIF, to analyze its employees' performance and determine, without utilizing any protected characteristic, who must be terminated.” Marshall v. AT&T Mobility Servs., LLC, No. 3:17-CV-1577-CMC, 2019 WL 1274723, at *4 (D.S.C. Mar. 20, 2019), aff'd, 811 Fed.Appx. 849 (4th Cir. 2020) (unpublished); see also Rowe v. Marley Co., 233 F.3d 825, 831 (4th Cir. 2000) (“The decision to discharge [the plaintiff] and retain [others] is the kind of business decision that we are reluctant to second-guess.”). When assessing job performance, “[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996). Here, the evidence in the record fails to show that Defendant considered any protected traits-age, sex, or national origin-when it decided who would return to work following the furlough and when. The evidence in the record shows that Defendant used a neutral metric, net closing percentage, to make this determination. Accordingly, Plaintiff's claims of discrimination under Title VII and the ADEA are without merit and summary judgment is appropriate.
D. Retaliation
Plaintiff also asserts a cause of action for retaliation in violation of Title VII, the ADEA, and the ADA. Title VII makes it an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Likewise, the ADEA prohibits employers from discriminating against an employee who “has opposed any practice made unlawful by this section, or because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). Section 503 of the ADA prohibits retaliation against an employee “because [that] 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 [thereunder].” 42 U.S.C. § 12203(a).
To establish a prima facie case of retaliation under Title VII, the ADEA, of the ADA a plaintiff must show (1) she engaged in protected activity, (2) the employer took adverse employment action against her, and (3) a causal connection existed between the protected activity and the adverse action. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985); Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 258 (4th Cir.1998); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998); Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001) (ADA); Davis v. Durham Mental Health Developmental Disabilities Substance Abuse Area Auth., 320 F.Supp.2d 378, 408 (M.D. N.C. 2004) (noting that in analyzing retaliation claims brought under the ADEA, courts use the same standards as those for retaliation claims brought under Title VII).
Plaintiff alleges that he “made complaints to Defendant regarding Age, Sex, Disability and National Origin discrimination regarding New Management,” and “as a result of those complaints, Plaintiff was furloughed for an extended period of time.” Compl. ¶ 123. However, when Plaintiff was asked during his deposition to point to evidence of retaliation, he testified only that he complained to Serena Patel Kumar, his T.O., about his diabetes and his need to eat and go to the bathroom. Pl. Dep. 115:6-117:9. Plaintiff testified that he made it known to Kumar on a regular basis of his need to have breaks to eat and used the restroom because of his diabetes. Id. Plaintiff also alleges he “further complain[ed] to Corporate, in writing, on August 23, 2020. Compl. ¶ 123. This letter, however, is devoid of any allegations of sex, race/national origin, age, or disability discrimination. Pl. Letter (ECF No. 47-17).
A plaintiff may engage in protected activity by opposing an employment activity that was “actually unlawful under” the relevant discrimination statute or that the plaintiff reasonably believed was unlawful. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005)). Complaints about management activities that would not constitute unlawful discrimination do not count as protected activity. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216-17 (4th Cir. 2002). Plaintiff's August 23, 2020, letter does not constitute protected activity. As stated above, the letter is devoid of any allegations of sex, national origin, age, or disability discrimination. Rather, the letter is a plea that Plaintiff and his wife be returned to work. Pl. Letter. Further, the letter was sent months after the furlough and, thus, no causal connection exists between it and the furlough.
In addition, even assuming Plaintiff's complaints to Kumar about his diabetes and need to eat and use the restroom amount to protected activity, Plaintiff fails to show a causal connection between these comments and his furlough because Kumar was not part of the management team that made the furlough decisions. Riley Dep. 15:3-14; 19:20-20:2; Gorby Dep. 46:12-16. There is no evidence in the record that Plaintiff complained to anyone on the management team who made the furlough decisions or that Kumar relayed Plaintiff's complaints to anyone on the management team. For these reasons, Plaintiff's retaliation claims fail, and summary judgment is appropriate.
E. Hostile Work Environment
“Because ‘an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.'” Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (quoting EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001)); see also Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006) (assuming without deciding that a hostile work environment claim is cognizable under the ADEA); Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001) (ADA). Plaintiff must allege that he suffered from harassment that was (1) unwelcome, (2) based on a protected status, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to the employer. EEOC v. C. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009); Baqir, 434 F.3d at 746; Fox, 247 F.3d at 177.
Though Plaintiff alleges in his complaint that he was subjected to a hostile work environment based on his age, disability, sex, and national origin, his factual allegations and his deposition testimony point only to age and disability. In his complaint, Plaintiff alleges that “John Gibbs question [him] about his plans for retirement . . . repeatedly to create an uncomfortable working environment.” Compl. ¶ 55. Gibbs allegedly made statements such as “why don't you just retire?” and “you're old enough, aren't you?” Id. Second, in his deposition, Plaintiff testified HGV created a hostile environment where he felt like he could not take breaks to eat as required by his diabetes. Pl. Dep. 122:8-13; 124:12-20. However, the facts in the record fail to show that any alleged harassment was sufficiently severe or pervasive to create an abusive work atmosphere.
“Element three of a hostile work environment claim [sufficiently severe or pervasive] requires a showing that ‘the environment would reasonably be perceived, and is perceived, as hostile or abusive.'” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citing Harris v. Forklift Systems. Inc., 510 U.S. 17, 22 (1993)). The conduct must be both subjectively and objectively offensive in order to be cognizable under Title VII. Harris, 510 U.S. at 21-22. To be expected, courts often assume the conduct is subjectively offensive. See Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir.2008). “[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances.' ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Factors to consider include “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance.” Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir.2000). Harassment is severe or pervasive only if the workplace is “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 316 (4th Cir. 2008) (internal quotation marks omitted). Rude treatment, callous behavior, and a routine difference of opinion and personality conflict do not suffice to state a hostile work environment claim. Id. at 315-16. “[S]imple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citations and quotation marks omitted). The Fourth Circuit has “recognized that plaintiffs must clear a high bar in order to satisfy the severe or pervasive test.” Sunbelt Rentals, Inc., 521 F.3d at 315. The facts in this case are simply insufficient to show that Plaintiff suffered any more than possibly rude treatment or callous behavior. As such, summary judgment is appropriate on Plaintiff's hostile work environment claims.
F. State Law Claim
Plaintiff also asserts a state law claim for violation of the South Carolina Payment of Wages Act (SCPWA), SC Code Ann. § 41-10-10, et seq. Title 28 U.S.C. § 1367(c)(3) provides, in pertinent part, “[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction....” The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Revene v. Charles County Comm'rs, 882 F.2d 870, 875 (4th Cir.1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations ofjudicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claims. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand since the remaining claims are quintessential state law questions. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court cautioned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law if the federal law claims are dismissed before trial ... the state claims should be dismissed as well.” Accordingly, should the district judge accept the recommendation with respect to Plaintiff's federal claims, it is recommended that the court decline to exercise jurisdiction over the remaining state law claim and remand this case to the Court of Common Pleas, Horry County, South Carolina.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 47) be granted as to Plaintiff's Title VII, ADEA, and ADA causes of action, and the Court decline to exercise jurisdiction over Plaintiff's state law claim and remand the remaining claim to the Court of Common Pleas, Horry County, South Carolina.
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