Opinion
Civil Action 2:20-03225-DCN-MGB
09-27-2022
Toni A. Hillman, PLAINTIFF, v. Lloyd J. Austin, III, Secretary of Department of Defense, DEFENDANT.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
Plaintiff, proceeding pro se, filed the instant employment action alleging race-based discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). (Dkt. No. 1.) This matter is now before the Court upon Defendant's Motion for Summary Judgment. (Dkt. No. 69.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that the Court grant Defendant's Motion for Summary Judgment (Dkt. No. 69) and dismiss Plaintiff's case in full.
BACKGROUND
Plaintiff filed this employment action on September 9, 2020. (Dkt. No. 1.) On February 18, 2021, Plaintiff filed an Amended Complaint clarifying her claims of discrimination, retaliation, and hostile work environment in violation of Title VII. (Dkt. No. 22.)
Plaintiff began working at the Defense Commissary Agency (“DeCA”) at the Naval Weapons Station in Charleston, South Carolina on September 26, 2011. (Dkt. No. 22 at 1, 4; Dkt. No. 72 at 1, 8.) Plaintiff worked as a permanent part-time 24-hour Store Worker until she resigned on July 13, 2018. (Dkt. No. 72 at 1, 8.) Plaintiff claims that she was discriminated against, retaliated against, and harassed by Ms. Earlene Mills, her second-level supervisor, throughout her time at DeCA. (Id.) According to Plaintiff, Ms. Mills, who is black, treated black employees more favorably than she treated Plaintiff, who is white. (Dkt. No. 22 at 4-6; Dkt. No. 72 at 1-2.) Plaintiff claims that Ms. Mills retaliated against her for complaining about this favorable treatment. (Dkt. No. 22 at 4-6; Dkt. No. 72 at 1.) More specifically, Plaintiff claims that Ms. Mills harassed her, discriminated against her, and retaliated against her by: “denying [Plaintiff's] requests to work more hours, denying [Plaintiff's] requests for training . . ., denying [Plaintiff] the opportunity to work hours that had been scheduled . . ., singling [Plaintiff] out and intimidating [her] by keeping her under constant surveillance, giving preferential treatment to [Plaintiff's] black co-workers . . ., and, by physically attacking [Plaintiff].” (Dkt. No. 72 at 1-2.)
Plaintiff states that Ms. Mills assaulted her on October 15, 2014, after Plaintiff went to Ms. Mills' office “to provide her with medical documentation in support of [her] workers['] compensation claim for a work-related injury” and confront her about alleged preferential treatment. (Dkt. No. 22 at 7; Dkt. No. 72 at 8-9.) The preferential treatment Plaintiff references includes black employees coming into work late and taking long lunches without being reprimanded. (Dkt. No. 72 at 8-9.) Plaintiff alleges that Ms. Mills assaulted her by “grabb[ing] [her] by the shoulders and trapp[ing] [her] in [the] office.” (Dkt. No. 22 at 7; Dkt. No. 72 at 9.) Plaintiff claims she “had visible scratches and bruising on [her] neck and left shoulder” and that she was “very upset.” (Dkt. No. 22 at 7; Dkt. No. 72 at 9.) Plaintiff claims that she told Ms. Mills “I am going to file an EEO complaint” following this incident. (Dkt. No. 72 at 9.) Plaintiff further claims that she immediately reported the incident to Ms. Mills' supervisor, Bruno Ortiz. (Dkt. No. 22 at 7; Dkt. No. 72 at 10.) She also filed an incident report with the Joint Base Charleston/Naval Weapons Station Security Police on October 19, 2014. (Dkt. No. 22 at 7.) Mr. Ortiz issued a “Letter of Concern” reprimanding Ms. Mills for this incident on November 21, 2014. (Dkt. No. 22 at 7; Dkt. No. 72 at 10.)
Plaintiff has withdrawn and abandoned her claims relating to this workers' compensation issue. (Dkt. No. 72 at 3.) Plaintiff has also withdrawn and abandoned her claims that Ms. Mills negatively influenced her performance evaluations, so allegations relating to such claim have not been repeated here. (Id.)
Plaintiff claims that Ms. Mills “became extremely hostile” to her after the alleged assault and began following her around at work. (Dkt. No. 72 at 10.) Plaintiff claims that Ms. Mills denied her requests to work more hours and denied her requests to complete Computer Assisted Ordering (“CAO”) trainings. (Id.) Plaintiff also claims that Ms. Mills directed Plaintiff's immediate supervisor, Ms. Sandra Flynn, not to schedule Plaintiff for more than forty-eight hours in a pay period, and not to schedule her for CAO trainings. (Id. at 10-11.) Further, Plaintiff claims that Ms. Mills “directed Ms. Flynn and her replacement, Mr. Robert Richardson, to take [Plaintiff] off the work schedule [on] the day that senior DeCA officials were [scheduled] to visit.” (Dkt. No. 22 at 8; Dkt. No. 72 at 12.) As a result, Plaintiff lost: the “opportunity to meet with many of DeCA's senior leaders,” six hours of work, and $96.66 in pay. (Dkt. No. 72 at 13.) Next, Plaintiff claims that Ms. Mills came into the breakroom while Plaintiff was taking a break on one occasion in December 2014 and “did not say anything to anyone else, but to [Plaintiff] said ‘Again, Again?' in a very loud and threatening voice.” (Id.) Plaintiff alleges that this incident caused her co-workers to ridicule her. (Id.)
In March of 2015, Ms. Mills was transferred to a different facility. (Id. at 14.) Plaintiff claims that when Ms. Mills returned in 2016, she “resumed her harassment and bullying.” (Dkt. No. 22 at 9; Dkt. No. 72 at 14.) Plaintiff claims that Ms. Mills assigned her to work solely at the Identification Checker position (“ID desk”) directly in front of Ms. Mills' office for several months in 2016 and 2017. (Dkt. No. 22 at 9; Dkt. No. 72 at 14.) Plaintiff believes Ms. Mills did this in retaliation for a complaint Plaintiff filed with the Equal Employment Opportunity Commission (“EEOC”) on February 12, 2015. (Dkt. No. 22 at 9; Dkt. No. 72 at 14.) Plaintiff claims that this new position made her very uncomfortable. (Dkt. No. 72 at 16.)
In late 2017, Ms. Mills was promoted and again transferred to a different facility. (Dkt. No. 22 at 9; Dkt. No. 72 at 17.) Plaintiff claims that she put in requests to work more hours to Ms. Mills' replacement, Mr. Robert Coulter, and that he was very encouraging. (Dkt. No. 22 at 10; Dkt. No. 72 at 17.) Plaintiff states that “[s]everal permanent 32-hour positions came open . . . [but she] was disqualified from competing for those positions” because they involved working in the freezer. (Dkt. No. 22 at 10; Dkt. No. 72 at 17.)
Plaintiff claims that she could not work in the freezer because of an autoimmune disease. (Dkt. No. 69-1 at 17; Dkt. No. 72 at 17.)
Plaintiff claims that she became anxious and depressed on account of her employment with DeCA and that she “received extensive counseling with a licensed counselor” and “outpatient treatment” for these issues. (Dkt. No. 22 at 9; Dkt. No. 72 at 13, 17.) She states that she “was put out of work due to occupational stress and anxiety” on July 10, 2018, and that she submitted her resignation on July 13, 2018 because she “felt [she] had no choice but to leave.” (Dkt. No. 22 at 10-11; Dkt. No. 72 at 17-18.)
Plaintiff also claims that Defendant failed to preserve material evidence in this matter and therefore requests “adverse findings against the Defendant, both in this Court's deliberations on Defendant's Motion and[] at trial.” (Dkt. No. 72 at 2.) More specifically, Plaintiff requests the following adverse findings: (1) that Plaintiff was denied CAO training, and subsequent promotion to a permanent 40-hour position which she could have obtained after receiving such training; and (2) that Plaintiff was assigned to work at the ID desk from November 1, 2016 to June 7, 2017. (Id.) The undersigned has drawn these requested adverse inferences when considering the instant Motion for Summary Judgment.
Based on the foregoing, Plaintiff filed the instant litigation. Defendant filed a Motion for Summary Judgment on January 31, 2022. (Dkt. No. 69.) On March 7, 2022, Plaintiff filed her response in opposition to the Motion. (Dkt. No. 72.) Defendant filed a reply to Plaintiff's response on April 1, 2022. (Dkt. No. 76.) Thus, the Motion has been fully briefed and is ready for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact, and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In ruling on a motion for summary judgment, “the nonmoving party's evidence ‘is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). “Although the Court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (citing Anderson, 477 U.S. at 252; Stone v. Liberty Mutual Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
Because Plaintiff is representing herself, these standards must be applied while liberally construing her filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (referencing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
DISCUSSION
As noted, Plaintiff brings discrimination, harassment, and retaliation claims under Title VII. Title VII makes it “an unlawful employment practice for an employer to . . . discriminate against any individual with respect to [her] 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). Title VII also makes it unlawful for an employer to retaliate against an employee because that individual opposed any practice made unlawful under Title VII, or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a).
Here, Plaintiff claims that Defendant-through her second-level supervisor, Ms. Earlene Mills-discriminated against her based on her race. (Dkt. Nos. 22, 72.) Plaintiff further claims that Ms. Mills retaliated against her after she complained about the purported discrimination. (Dkt. Nos. 22, 72.) Plaintiff asserts that Ms. Mills subjected her to a hostile work environment “[i]f not based on [her] race, then certainly based on [her reports of race discrimination].” (Dkt. No. 72 at 23.) Plaintiff contends that she was ultimately forced to resign from her position and claims that her resignation constitutes constructive discharge. (Id.) The Court addresses each of these claims, in turn.
In her response to Defendant's Motion for Summary Judgment, Plaintiff clarifies that her constructive discharge claim is based upon “reprisal only, not racial discrimination.” (Dkt. No. 72 at 19.)
I. Discrimination
A. Legal Framework
There are “two potential avenues” of proof through which a plaintiff can establish intentional discrimination under Title VII. Perkins v. Int'l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019) (referencing Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005)); see also Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 171 (4th Cir. 2020), as amended (Oct. 16, 2020) (referencing Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016)). The plaintiff “may, under what has been referred to as the ‘mixed-motive' framework, present direct or circumstantial evidence that creates a genuine issue of material fact as to whether an impermissible factor such as race solely or partially motivated the employer's adverse employment decision.” Perkins, 936 F.3d at 206 n.4 (referencing Diamond, 416 F.3d at 318); see also Ali, 932 Fed.Appx. at 171 (referencing Guessous, 828 F.3d at 216). Absent such evidence, the plaintiff must use the three-part burden-shifting paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), also known as the “pretext framework.” See Perkins, 936 F.3d at 206 n.4 (referencing Diamond, 416 F.3d at 318); see also Ali, 932 Fed.Appx. at 171 (referencing Guessous, 828 F.3d at 216).
Under the McDonnell Douglas paradigm, a plaintiff must first establish the elements of a prima facie discrimination claim. Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649 (4th Cir. 2021). If a plaintiff can establish a prima facie case, the burden shifts to the defendant “to show a legitimate, nondiscriminatory reason” for the adverse employment action. Sempowich, 19 F.4th at 649. If the defendant provides a legitimate, nondiscriminatory reason for the adverse employment action, the burden is then on the plaintiff to demonstrate that the defendant's asserted reasons are a mere pretext for its actual discriminatory motives. Id.
Plaintiff pursues her discrimination claim under both avenues of proof. The legal framework for Plaintiff's discrimination claim is further complicated by her allegations of “reverse discrimination.” See Youmans v. Manna, Inc., 33 F.Supp.2d 462, 464 (D.S.C. 1998) (“Where a member of the majority alleges he is being discriminated against in favor of a member of a minority class, his claim is one for reverse discrimination.”); see also Cole v. Marlboro County Sheriff's Office, No. 4:19-CV-1287-SAL-KDW, 2020 WL 8611026, at *6 n.6 (D.S.C. Oct. 22, 2020), adopted, 2021 WL 638913 (D.S.C. Feb. 18, 2021) (defining reverse discrimination). Plaintiff is a member of the “white majority” and claims she has been discriminated against because she is white. See Lucas v. Dole, 835 F.2d 532 (4th Cir. 1987).
The Supreme Court has expressly held that Title VII protects “whites as well as minorities.” Id. (referencing McDonald v. Santa Fe Transp. Co., 427 U.S. 273 (1975)). However, there is a circuit split on the issue of whether a heightened burden applies to reverse discrimination claims. See Presley v. Beaufort County School District, No. 9:18-CV-1945-BHH, 2021 WL 791206, at *4 (D.S.C. Mar. 2, 2021) (discussing circuit split). The Fourth Circuit has never expressly determined whether reverse discrimination claims place a higher burden on plaintiffs, and courts in this District have evaluated reverse discrimination claims under both the heightened standard and the traditional one. See Moore v. Rural Health Servs., Inc., No. CIV.A. 1:04 376 RBH, 2007 WL 666796, at *9 n.9 (D.S.C. Feb. 27, 2007) (“For the reasons set forth by the District Court in [Stock v. Universal Foods Corporation, 817 F.Supp. 1300 (D. Md. 1993), aff'd, 16 F.3d 411 (4th Cir.1994), cert. denied, 115 S.Ct. 66 (1994)] at 1307, the undersigned has used the traditional McDonnell Douglas framework in analyzing the claims presented in this case.”); Woodall v. Commissioners of Pub. Works of City of Charleston, No. 2:05-CV-2278-DCN, 2007 WL 9735607, at *3 (D.S.C. Mar. 16, 2007) (applying more onerous prima facie burden in reverse discrimination case); Benson v. Savannah River Nuclear Sols. LLC, No. 1:11-CV-02621, 2013 WL 5350805, at *8 n.7 (D.S.C. Sept. 20, 2013) (stating that while the Fourth Circuit has not issued a decision on this issue, the District Court of South Carolina has previously held a plaintiff to the more onerous standard for reverse race discrimination); Hood v. Marlboro County, No. 4:17-CV-03403-DCC-MGB, 2019 WL 9242907, at *4 (D.S.C. Oct. 30, 2019), adopted sub nom. Hood v. Marlboro County Sheriff's Office, No. 4:17-CV-03403-SAL, 2020 WL 1545630 (D.S.C. Apr. 1, 2020) (determining that plaintiff failed “to provide evidence that shows-or, at the very least, raises a genuine question of material fact-that Defendants are ‘among those unusual employers who discriminate against the majority'” (quoting Youmans, 33 F.Supp.2d at 464)); Presley, 2021 WL 791206, at *4 (concluding that Magistrate Judge did not err in applying the traditional McDonnell Douglas framework for reverse discrimination claim). For the reasons set forth herein, Plaintiff's claim fails regardless of the standard applied. Because Plaintiff's reverse discrimination claim fails even under the less burdensome standard, the undersigned need not consider whether Plaintiff can satisfy a heightened standard of proof.
B. Analysis
Plaintiff's discrimination claim is based upon Ms. Mills giving preferential treatment to black employees. (Dkt. No. 72 at 18.) Plaintiff alleges that Ms. Mills favored black employees by (1) “allow[ing] some of them to abuse leave rules by coming in late without a charge to leave”; (2) allowing certain black employees “to take extended lunches, on duty, without charging them leave”; (3) promoting black employees instead of white employees; (4) taking Plaintiff off of the schedule for a “VIP visit” (during which senior DeCA officials visited Plaintiff's workplace), but not taking black employees off the schedule for that day; and (5) not providing Plaintiff CAO training. (Id. at 18-20.)
Plaintiff has provided several declarations and statements to the EEOC in support of these allegations. (Id.) She asserts that testimony from her immediate supervisor, Ms. Flynn, stating: “I have seen Ms. Mills make many employees cry, including myself, all of which were Caucasian,” is direct evidence of her racial discrimination claim. (Id. at 18.) She further asserts that Ms. Mills' alleged conduct should speak for itself as direct evidence of racial discrimination. (Id. at 19.)
Contrary to Plaintiff's assertions, Ms. Flynn's statement and Plaintiff's allegations about Ms. Mills' conduct do not constitute direct evidence of race discrimination. Direct evidence of discrimination exists where the defendant has “announced, admitted, or otherwise unmistakably indicated that [Plaintiff's race] was a determining factor” in the employment decisions at issue. Stover v. Lincoln Publ'g, Inc., 73 F.3d 358, 1995 WL 764180, at *2 (4th Cir. 1995) (unpublished table decision) (alteration in original) (quoting Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982)). In other words, direct evidence is “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006). Such evidence is not present here. Plaintiff cannot rely on her allegations, her personal declarations, and/or her personal statements to the EEOC as direct evidence of discrimination. Nor can she rely on statements and declarations from co-workers who were not responsible for the employment decisions at issue. Indeed, “statements by nondecisionmakers,” and “statements by decisionmakers unrelated to the decisional process itself” do not constitute direct evidence. Martin v. Alumax of S.C., Inc., 380 F.Supp.2d 723, 728 (D.S.C. 2005). The record contains no statements from or conduct by Ms. Mills indicating that Plaintiff's race was a determining factor in the employment decisions at issue. In fact, the record reflects only one statement related to race by Ms. Mills: she asked Plaintiff how she felt about having a black granddaughter. (Dkt. No. 69-1 at 21.) This statement relates in no way to the employment decisions about which Plaintiff complains. As such, Plaintiff has failed to provide the Court with direct evidence of discrimination. See Stover, 1995 WL 764180, at *2.
Plaintiff next contends that “[Ms. Mills'] abusive behavior directed at her white employees and her granting privileges only to black employees certainly constitutes indirect evidence of animus based on race and is more than enough to support [a] prima facie case of discrimination.” (Dkt. No. 72 at 19.) However, the evidence Plaintiff provides in support of her race discrimination claim is insufficient to raise an inference of race-based discrimination. Such evidence certainly depicts that Plaintiff had a contentious relationship with Ms. Mills. (See generally Dkt. Nos. 72-5, 72-6, 72-7, 72-8, 72-9, 72-10, 72-11, 72-12, 72-13, 72-14, 72-15, 72-16, 72-18, 72-19, 72-20.) Nonetheless, Plaintiff admits that her relationship with Ms. Mills became problematic only after Plaintiff made a comment about Ms. Mills' attitude and leadership abilities at a group meeting. (Dkt. No. 69-1 at 58-59.) The fact that Plaintiff and Ms. Mills had no issues prior to Plaintiff making such a statement tends to suggest that the issues between them were not racially motivated. The overall record supports this inference, as nothing in the record indicates that Ms. Mills discriminated against Plaintiff on account of her race.
Further, Plaintiff provides no evidence that Ms. Mills had a negative animus towards Caucasian individuals generally. (See generally Dkt. Nos. 72-5, 72-6, 72-7, 72-8, 72-9, 72-10, 7211, 72-12, 72-13, 72-14, 72-15, 72-16, 72-18, 72-19, 72-20.) Although Plaintiff provides a statement from Ms. Flynn stating that Ms. Mills made several people-all Caucasian-cry, this statement cannot sustain an inference of race discrimination without further corroborating evidence of Ms. Mills' racial animus. (Dkt. No. 72-11 at 18.) Nothing in the record indicates that Ms. Mills made these Caucasian employees cry on account of their race. As such, the undersigned cannot conclude that the record contains sufficient indirect evidence to raise a genuine issue of material fact as to whether Ms. Mills racially discriminated against Plaintiff.
Similarly, Plaintiff's race discrimination claim fails under the McDonnell Douglas paradigm. Under this framework, Plaintiff bears the burden of establishing a prima facie case of race discrimination. See Sempowich, 19 F.4th at 649. To do so, Plaintiff “must show (1) [her] membership in a protected class; (2) [her] satisfactory job performance; (3) an adverse employment action; and (4) similarly situated employees outside the protected class who received more favorable treatment.” Tabb v. Bd. of Educ. of Durham Pub. Sch., 29 F.4th 148, 157 (4th Cir. 2022) (referencing Gerner v. Cnty of Chesterfield, Va., 674 F.3d 264, 266 (4th Cir. 2012)). Defendant does not dispute the first two elements. (See generally Dkt. No. 69.) Thus, the undersigned need only consider whether Plaintiff suffered an adverse employment action and whether similarly situated employees outside of Plaintiff's protected class received more favorable treatment. Plaintiff cannot do so, and her race discrimination claim therefore fails.
As for the third prong, “[an] adverse employment action is ‘an absolute precondition' to an employment discrimination suit.” Batten v. Grand Strand Dermatology, LLC, No. 4:18-cv-0616-MGL-TER, 2019 WL 9667692, at *6 (D.S.C. Dec. 20, 2019) (quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). However, not every personnel decision constitutes an adverse employment action for purposes of a discrimination claim. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 570 (D.S.C. 2013); see also Thorn v. Sebelius, 766 F.Supp.2d 585, 599 (D. Md. 2011), aff'd, 465 Fed.Appx. 274 (4th Cir. 2012) (“[N]ot everything that makes an employee unhappy is actionable adverse action.”). Rather, an adverse employment action is explicitly limited to those actions that affect employment or alter the conditions of the workplace. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006).
In other words, an alleged discriminatory act must “adversely affect[] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation omitted). “Typical examples of adverse employment actions include ‘discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, [and] reduced opportunities for promotion.'” Cole v. Wake Cty. Bd. of Educ., 494 F.Supp.3d 338, 345 (E.D. N.C. 2020), aff'd, 834 Fed.Appx. 820 (4th Cir. 2021), cert. denied sub nom. Cole v. Wake Cty. BD. of ED., No. 20-1373, 2021 WL 2302100 (U.S. June 7, 2021) (quoting Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999)). Less severe employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization” in order to survive summary judgment. Blakney v. N. Carolina A&T State Univ., No. 1:17-cv-874, 2019 WL 1284006, at *15 (M.D. N.C. Mar. 20, 2019) (referencing Boone, 178 F.3d at 256-57). Ultimately, an adverse employment action must have a “significant detrimental effect” on the employee in order to be cognizable. Laird v. Fairfax Cty., Va., 978 F.3d 887, 893 (4th Cir. 2020) (quoting Holland, 487 F.3d at 219).
Here, the purported adverse actions underlying Plaintiff's race discrimination include Ms. Mills': (1) allowing black employees, but not white employees, to come in late and take extended lunches; (2) promoting black employees instead of white employees; (3) allowing black employees to work during the “VIP visit,” but not allowing Plaintiff to do so; and (4) providing black employees training that Plaintiff did not receive. (Dkt. No. 72 at 18-20.)
As noted, Plaintiff's response to Defendant's Motion for Summary Judgment clarifies that her constructive discharge claim is based upon “reprisal only, not racial discrimination.” (Dkt. No. 72 at 19.) Thus, the undersigned has not considered constructive discharge as an alleged adverse action here.
At the outset, Plaintiff cannot demonstrate that she experienced an adverse employment action by alleging that others were allowed to come in late or take longer lunches. Such allegations simply do not establish a “significant detrimental effect” on Plaintiff. Laird, 978 F.3d at 893 (quoting Holland, 487 F.3d at 219). Plaintiff does not allege that other employees coming in late or taking long lunches impacted her personal working conditions. (See generally Dkt. Nos. 22, 72.) Further, Plaintiff does not claim that she ever attempted to come in late and was reprimanded for doing so. (See generally Dkt. Nos. 22, 72.) To the extent Plaintiff claims that she was “called in off [her] 15-minute lunch break to work at the cash register” on “more than one occasion” and therefore was not allowed to take long lunch breaks, this still does not rise to an adverse employment action. As noted, less severe employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization” in order to survive summary judgment. Blakney, 2019 WL 1284006, at *15. Plaintiff being called to help during her break “on more than one occasion” over several years of employment does not impact her pay, potential for continued employment, or likelihood of promotion. Id.; see also Boone, 178 F.3d at 256 (“Congress did not intend Title VII to provide redress for trivial discomforts endemic to employment.”)
Similarly, Plaintiff's contention that she was taken off the schedule on the day of the “VIP visit” does not constitute an adverse employment action. Plaintiff contends that she “lost six hours of work and $96.66 in pay by being taken off the schedule.” (Dkt. No. 72 at 19.) However, she does not argue that she experienced a lasting decrease in pay or hours. (Id.) One isolated instance of Plaintiff being removed from the work schedule cannot be considered an employment action having the “significant detrimental effect” required to sustain a race discrimination claim. Laird, 978 F.3d at 893 (quoting Holland, 487 F.3d at 219). Further, Plaintiff does not assert that she experienced a detrimental impact beyond her lost wages. (Dkt. No. 72 at 19.) Indeed, she does not assert that she lost any specific opportunities as a result of not meeting the senior officials attending the “VIP visit” at issue. (Id.)
With respect to Plaintiff's claims that black employees were promoted over white employees and that Plaintiff did not receive CAO training that her black co-workers received, the undersigned finds that these alleged actions could have had the requisite significant detrimental effect on Plaintiff's conditions of employment. Indeed, Plaintiff claims that she could not progress in her employment with Defendant because she was deprived of these specific opportunities. (See generally Dkt. No. 22, 72.) Thus, Ms. Mills failure to promote and failure to train Plaintiff could be considered adverse employment actions for purposes of Plaintiff's race discrimination claim.
Regardless, the record makes clear that similarly situated employees outside of Plaintiff's protected class were not treated more favorably than Plaintiff. Plaintiff claims that six employees were promoted over her and that two employees received CAO training that she did not receive. (Dkt. No. 69 at 14; Dkt. No. 72 at 18-20.) Although Plaintiff is correct that she is not required as a matter of law to identify a similarly situated comparator to satisfy the fourth prong of her prima facie case, Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003), she bases her allegations of discrimination relating to her failure to be promoted and failure to be trained on the contention that Ms. Mills promoted and trained black employees instead of promoting and training Plaintiff. (Dkt. No. 72 at 18-20.) “When a plaintiff bases her discrimination claim on a similarly situated comparator, it is the plaintiff's ‘task to demonstrate that the comparator is indeed similarly situated.'” Davis v. Centex Homes, No. 4:09-cv-830-RBH-SVH, 2011 WL 1525764, at *3 (D.S.C. Apr. 1, 2011), adopted sub nom. Davis v. Centex Int'l II LLC, 2011 WL 1526928 (D.S.C. Apr. 20, 2011) (internal citations omitted). In doing so, Plaintiff must demonstrate that she is similar in all relevant respects to her alleged comparators. Hurst v. D.C., 681 Fed.Appx. 186, 191 (4th Cir. 2017). Such a showing includes evidence that the individuals 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.” Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992); see also Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o 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.” (internal quotation marks omitted)). Plaintiff fails to make this showing.
First, Plaintiff admits that two of the alleged comparators for her failure to promote claim are in her protected race class (Caucasian). (Dkt. No. 69 at 14; Dkt. No. 72 at 18.) Plaintiff therefore cannot use them to support her discrimination claim. The record reflects that Plaintiff's remaining proffered comparators (for both her failure to promote and failure to train claims) did not hold the same job as Plaintiff. (Dkt. No. 69 at 14, citing to Dkt. No. 69-1 at 6-13, 39-40.) Thus, such comparators are not true comparators and cannot be used to support an inference of discrimination. See Sherman v. Westinghouse Savannah River Co., LLP, No. 1:00-1649-26AJ, 2004 WL 5578724, at *3 (D.S.C. Sept. 29, 2004), aff'd sub nom. Sherman v. Westinghouse Savannah River Co., 263 Fed.Appx. 357 (4th Cir. 2008) (finding no true comparators where the identified employees had different job responsibilities).
Based on the above, Plaintiff cannot make a prima facie case of race discrimination, even when considering Plaintiff's proffered evidence in the light most favorable to her. The undersigned therefore recommends that Defendant is entitled to summary judgment on this claim.
II. Retaliation
A. Legal Framework
A plaintiff may establish unlawful retaliation by her employer under Title VII through either direct evidence of retaliatory animus or the McDonnell Douglas pretext framework. See Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021) (referencing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015)). Direct evidence in this context “encompasses conduct or statements that both (1) reflect directly the alleged [retaliatory] attitude, and (2) bear directly on the contested employment decision.” Johnson v. United Parcel Serv., Inc., 839 Fed.Appx. 781, 783 (4th Cir. 2021) (citing Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th Cir. 2013)). If Plaintiff cannot produce direct evidence of retaliation, she must proceed under the familiar McDonnell Douglas framework. See Roberts, 998 F.3d at 122 (referencing Foster, 787 F.3d at 249). Under this framework, Plaintiff must first make a prima facie showing of retaliation. See Sempowich, 19 F.4th at 653 (referencing Foster, 787 F.3d at 250). If Plaintiff can establish her prima facie case of retaliation, the burden shifts to Defendant to rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. Id. If Defendant can do so, Plaintiff then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id. at 654.
B. Analysis
Plaintiff claims that Ms. Mills retaliated against her by: denying her requests to work more hours; denying her requests for training that would have qualified her for better jobs; denying her the opportunity to work on the day of the “VIP visit”; intimidating and micromanaging her; allowing black co-workers to take long lunches and come in late, but not letting Plaintiff do the same; and assigning her to work at the ID desk. (Dkt. No. 72 at 1-2, 20-23.) As with her discrimination claim, Plaintiff attempts to prove her retaliation claim through direct evidence and the McDonnell Douglas burden-shifting framework. (Id. at 20-23.)
Plaintiff first argues that she has provided direct evidence of retaliation because she told Ms. Mills that she was planning to file an EEOC complaint against her on October 15, 2014 and Ms. Mills retaliated against her “just three days later, on October 18, 2014” by giving Plaintiff's immediate supervisor, Ms. Flynn, “direct orders” not to schedule Plaintiff for CAO training. (Id. at 20.) Plaintiff continues on to state that Ms. Mills directed Ms. Flynn to remove her name from the work schedule for the “upcoming VIP visit” on November 26, 2014. (Id.)
As noted, direct evidence of retaliation is evidence of “conduct or statements that both (1) reflect directly the alleged [retaliatory] attitude, and (2) bear directly on the contested employment decision.” Johnson, 839 Fed.Appx. at 783 (citing Laing, 703 F.3d at 717). The evidence proffered by Plaintiff fails to meet these criteria. Plaintiff does not contend that Ms. Mills told Ms. Flynn not to schedule her for CAO training or to take her off the work schedule for the “VIP visit” because of Plaintiff's threat that she would file an EEOC complaint against Ms. Mills. (Dkt. No. 72 at 20.) Plaintiff also does not state that Ms. Mills said or did anything to indicate that Ms. Mills' purportedly retaliatory actions were at all related to Plaintiff's potential EEOC complaint. (Id.) Thus, the undersigned cannot conclude that Ms. Mills' instructions to Ms. Flynn constitute direct evidence of retaliation.
Plaintiff next argues that she has provided direct evidence of retaliation because “Ms. Mills' actions of: directing Ms. Flynn to deny [Plaintiff] more work hours; following [Plaintiff] around waiting for [her] to make a mistake; [and] asking what [Plaintiff] was doing . . . are without doubt conduct and statements that reflect her intent to retaliate against [Plaintiff].” (Id. at 21.) Again, the undersigned cannot conclude that these actions constitute direct evidence of retaliation. Plaintiff does not provide statements from or conduct by Ms. Mills that reflect directly on Ms. Mills' alleged retaliatory attitude and bear directly on the contested employment decisions. See Johnson, 839 Fed.Appx. at 783 (citing Laing, 703 F.3d at 717). As such, Plaintiff must proceed using the McDonnell Douglas burden-shifting framework.
To do so, Plaintiff must first make a prima facie showing of retaliation by proving that: (1) she engaged in a protected activity; (2) her employer took an adverse action against her; and (3) there was a causal link between the two events. See Sempowich, 19 F.4th at 653 (referencing Foster, 787 F.3d at 250). While it is undisputed that Plaintiff engaged in protected activity, the parties seem to disagree as to when Plaintiff's first act of protected activity occurred. (Dkt. No. 69 at 15; Dkt. No. 72 at 20; Dkt. No. 76 at 7-8.) It is uncontested that Plaintiff filed three complaints with the EEOC: one on February 12, 2015, one on July 5, 2018, and one on May 13, 2019. (Dkt. No. 69 at 3.) Additionally, Plaintiff claims that she “first engaged in protected EEO activity[] on October 15, 2014” when she told Ms. Mills that she planned to file a complaint against her. (Dkt. No. 72 at 4.) Plaintiff further claims that she engaged in protected activity on “October 18, 2014, when [Plaintiff] first contacted the local EEO office about [Ms. Mills] assaulting [her], and other matters.” (Id.)
“Protected activity under Title VII includes complaints of discrimination based upon ‘race, color religion, sex or national origin.'” Roberts, 998 F.3d at 122 (citing Landino v. Sapp, 520 Fed.Appx. 195, 198 (4th Cir. 2013) (quoting Balazs v. Liebenthal, 32 F.3d 151, 159 (4th Cir. 1994))). Courts take an “expansive view of what constitutes oppositional conduct,” DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015), and complaints raised through internal company procedures are recognized as protected activity. Roberts, 998 F.3d at 122. Thus, the undersigned agrees with Plaintiff that her October 2014 conduct can be considered protected activity for purposes of her retaliation claim.
Nonetheless, not all of the conduct about which Plaintiff complains can be considered adverse action for purposes of Plaintiff's retaliation claim. As the Fourth Circuit has explained:
What qualifies as an “adverse action” differs slightly depending on whether the claim is for unlawful discrimination or retaliation. For a discrimination claim, the plaintiff must show that her employer took an action that adversely “affect[ed] employment or alter[ed] the conditions of the workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (emphasis added). But for a retaliation claim, the plaintiff is not so limited since “[t]he scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Id. at 67, 126 S.Ct. 2405. However, although the scope of actions that qualify as an adverse action may differ, the required effect or adversity from such actions is described in very similar language for both claims. An alleged retaliatory action must be “materially adverse,” meaning that the plaintiff must show that the action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68, 126 S.Ct. 2405 (internal citations omitted). In other words, the harm must be a “‘significant' detriment,'” not “relatively insubstantial or ‘trivial.'” Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015) (quoting Burlington, 548 U.S. at 68, 126 S.Ct. 2405) (emphasis added).Laird, 978 F.3d at 893.
As noted, Plaintiff claims that she was retaliated against when she was: denied requests for training; denied requests to work more hours; removed from the work schedule on the day of the “VIP visit”; micromanaged and intimidated; denied long lunches and the ability to come to work late; and assigned to the ID desk. (Dkt. No. 72 at 1-2, 20-23.) At the outset, the undersigned notes that Plaintiff's allegation that she was removed from the work schedule on the day of the “VIP visit” does not constitute an adverse action for purposes of her retaliation claim. Plaintiff claims that she “lost six hours of work and $96.66 in pay by being taken off the schedule.” (Id. at 19.) However, she does not argue that she experienced further detrimental effect from this one instance of being removed from the schedule. (See generally Dkt. Nos. 22, 72.) Considering that Plaintiff worked for Defendant for nearly seven years, the loss of six working hours and $96.66 in pay is simply insufficient to establish a materially adverse action. See Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015) (stating that a retaliatory action must cause a “‘significant' detriment,'” and cannot be “relatively insubstantial or ‘trivial.'” (quoting Burlington, 548 U.S. at 68) (emphasis added)). Similarly, Plaintiff's allegations that she received shorter lunch breaks than her black co-workers and that her black co-workers were allowed to come in late while Plaintiff was not cannot be considered adverse actions for purposes of Plaintiff's retaliation claim because these actions also did not have a sufficiently adverse effect on Plaintiff. See Boone, 178 F.3d at 256 (“Congress did not intend Title VII to provide redress for trivial discomforts endemic to employment.”); see also Adams, 789 F.3d at 431 (stating that a retaliatory action must cause a “‘significant' detriment,'” and cannot be “relatively insubstantial or ‘trivial.'” (quoting Burlington, 548 U.S. at 68) (emphasis added)).
The undersigned finds that Plaintiff's assertions that Ms. Mills “micromanaged” and “intimidated” her are properly construed as claims that Ms. Mills subjected Plaintiff to retaliatory harassment. (Dkt. No. 72 at 21.) However, Plaintiff's claims of retaliatory harassment fail for the reasons set forth in Section III below.
To the extent Plaintiff claims that she suffered an adverse action when Ms. Mills physically assaulted her, the undersigned notes that Plaintiff does not claim to have engaged in protected activity until after this alleged assault. (Dkt. No. 72 at 4.)
To the extent Plaintiff argues that she was deprived of the opportunity to discuss her career goals with the “VIPs” in attendance at this visit, nothing in the record reflects that she would have had such an opportunity. (See generally Dkt. No. 72.)
Further, Plaintiff contends that the disparity in how she was treated versus how her black co-workers were treated began well before her first instance of protected activity. (Dkt. No. 22 at 6.) As such, she cannot establish a link between her protected activity and this purported conduct.
As for Plaintiff's allegations that she was denied requests for training, denied requests to work more hours, and assigned to the ID desk, a reasonable jury could conclude that such actions were materially adverse. The undersigned therefore considers whether these materially adverse actions were causally connected to Plaintiff's protected activity. (Dkt. No. 72 at 1-2, 20-23.)
To establish a causal connection between Plaintiff's protected activity and the remaining allegedly retaliatory acts, Plaintiff must establish that the decisionmaker responsible for each act knew of Plaintiff's protected activity and retaliated against her because of that activity. See Roberts, 998 F.3d at 123; see also Holland, 487 F.3d at 218. “A plaintiff may attempt to demonstrate that a protected activity caused an adverse action through two routes.” Johnson, 839 Fed. App'x at 782-83. First, a plaintiff may establish the existence of facts that “suggest[] that the adverse action occurred because of the protected activity.” Id. (citing Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (recognizing that “relevant evidence may be used to establish causation”)). In the alternative, a plaintiff may establish that “the adverse act bears sufficient temporal proximity to the protected activity.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). The Fourth Circuit has observed that in order for a temporal relationship to support a reasonable inference of retaliatory causation, the temporal relationship must be “very close.” Pascual v. Lowe's Home Ctrs., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Although there is no bright-line rule for determining when a temporal relationship is “very close,” the Fourth Circuit has held that as little as three months between a plaintiff's protected activity and a defendant's retaliatory act is too long to give rise to an inference of causality. Id. (three-to-four-month period too long to establish causation).
Here, Plaintiff cannot make the requisite showing to establish that any of the remaining adverse actions were causally connected to her protected activity. For example, the Plaintiff cannot show that Ms. Mills was the decisionmaker responsible for denying her training and assigning her to work at the ID desk. The record reflects that the Store Director was responsible for assigning Plaintiff to CAO training. (Dkt. No. 69-5 at 7; Dkt. No. 69-6 at 7-8.) Ms. Mills worked as a Store Manager and Assistant Commissary Officer during the relevant periods, not a Store Director. (Dkt. No. 69-6 at 2; Dkt. No. 69-6 at 1.) Thus, even construing the facts in the light most favorable to Plaintiff and assuming that Ms. Mills instructed Ms. Flynn not to schedule Plaintiff for CAO trainings, such instruction would not raise a genuine issue of material fact as to Plaintiff's retaliation claim because neither Ms. Mills nor Ms. Flynn were responsible for assigning Plaintiff's CAO training. (Dkt. No. 69-5 at 7; Dkt. No. 69-6 at 7-8.) As such, Plaintiff cannot show that her failure to receive CAO training was a retaliatory act.
The role of Store Director was superior to Ms. Mills' roles as Store Manager and Assistant Commissary Officer.
Similarly, the record reflects that Ms. Mills was not responsible for assigning Plaintiff to work at the ID desk. (Dkt. No. 69-2 at 2; Dkt. No. 69-7 at 2-3.) Rather, Ms. Sylvia Thomas, a supervisory injury compensation specialist employed by Defendant, Mr. Robert Richardson, Plaintiff's immediate supervisor at the time, and Ms. Cleaster Young, the front-end supervisor of DeCA during the relevant period, assigned Plaintiff to work at the ID desk as an accommodation for Plaintiff's “light duty” status. (Dkt. No. 69-2 at 2; Dkt. No. 69-7 at 2-3.) The record supports that Ms. Mills was not involved in choosing this assignment for Plaintiff. (Dkt. No. 69-2 at 2; Dkt. No. 69-7 at 2-3, responding “None” when asked “What involvement did Ms. Mills have in this assignment?”). Although Plaintiff points to a declaration from Mr. Richardson to connect Ms. Mills to Plaintiff's assignment at the ID desk, the undersigned notes that this evidence does not prove that Ms. Mills was responsible for Plaintiff's work assignment. (See Dkt. No. 72 at 14-15.) While Mr. Richardson does respond that “Ms. Mills” assigned Plaintiff to the ID desk, his remaining statements contradict this assertion. (Dkt. No. 72-15 at 3.) For instance, later in his declaration he indicates that he was involved in choosing the assignment for Plaintiff, stating: “[t]he front end supervisor had to use a cashier to man the ID desk and since we had to find something for Complainant to do within her restrictions we decided that would be best because then a cashier would not have to be pulled off the register.” (Id.) Mr. Richardson states that he “received an explanation of what [Plaintiff] could do and not do from HR” and that he explained the reasons Plaintiff was being assigned to the ID desk to her, further indicating his involvement in the decision. (Id.) Mr. Richardson also states that Plaintiff asked him to transfer her but no positions within her work restrictions were available in his department, further indicating his ability to control Plaintiff's work assignment. (Id. at 4.) Mr. Richardson states that he told Plaintiff to let the “front end manager” know that she wanted to be moved, indicating that the decision as to where Plaintiff worked was also up to the front-end supervisor. Accordingly, Mr. Richardson's declaration as a whole does not create a genuine issue of fact as to Ms. Mills' statement that Plaintiff's “supervisor and the front end supervisor” assigned Plaintiff to work at the ID desk “because she ha[d] [work] restrictions.” (Id.; Dkt. No. 69-2 at 2.) See Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (citing Anderson, 477 U.S. at 252) (“Although the Court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than . . . the mere existence of a scintilla of evidence.”).
Regardless, even assuming that Ms. Mills was responsible for Plaintiff's assignment to the ID desk, Plaintiff was assigned this role more than eighteen months after engaging in protected activity (filing her February 2015 EEOC complaint). (Dkt. No. 69-1 at 26; Dkt. No. 72-15 at 3.) Such temporal proximity is insufficient to establish causation, and Plaintiff does not set forth evidence sufficient to show that but for her protected activity she would not have been assigned to the ID desk. See Pascual, 193 Fed. App'x at 233 (three-to-four-month period too long to establish causation); see also Lettieri, 478 F.3d at 650 (noting that a plaintiff may establish the existence of facts that suggest the adverse action occurred because of the protected activity). Indeed, the record reflects that Plaintiff required a “light duty” work assignment, and the ID desk was the most logical accommodation for her. (Dkt. No. 69 at 18; Dkt. No. 69-2 at 2; Dkt. No. 69-7 at 2-3.)
As for Plaintiff's contention that she was denied the opportunity to work more hours, Plaintiff cannot establish that she was denied any such opportunity on account of her protected complaints. For instance, Plaintiff admits that she began requesting more hours (in the form of a permanent 32-hour part-time position) within the first two months of her employment, which began in 2011. (Dkt. No. 69-1 at 5.) Thus, Plaintiff began requesting-unsuccessfully-to work additional hours approximately three years before engaging in protected activity. (Id.) This timing alone cuts against any inference of retaliation.
To the extent Plaintiff's claim that she was denied additional working hours can be construed as a failure to promote claim, the same conclusion results.
What is more, Plaintiff admits that she was offered a 32-hour position in 2018 but did not accept it because she did not want to work nights. (Id. at 43.) The record also reflects that Plaintiff was encouraged to apply for several positions but declined to do so because those positions required her to work in the freezer. (Dkt. No. 69-1 at 17, 43; Dkt. No. 69-3 at 6.) This evidence further undermines Plaintiff's contention that she was denied additional work hours because of her protected activity. Based on the above, Plaintiff has failed to establish a prima facie case of retaliation.
As noted, Plaintiff claims she could not work in the freezer because of her autoimmune disease. (Dkt. No. 69-1 at 17; Dkt. No. 72 at 17.)
Even if Plaintiff could establish a prima facie case of retaliation, Defendant has proffered legitimate, non-discriminatory reasons for each of the sufficiently adverse employment actions at issue. (See generally Dkt. Nos. 69, 76.) Defendant explains:
The CAO training that Plaintiff was scheduled to attend was cancelled because the trainer was sick. Ex. E, Ortiz 7/29/15 Affidavit. Plaintiff was encouraged to apply for 32-hour positions but did not apply for them when they became available. Ex. A, Hillman Dep. p. 53, l. 2 - p. 54, l. 15; Id. at p. 53, l. 16 - p. 54, l. 14. Plaintiff was temporarily reassigned to the Identification Desk from December 2016 to June 2017 because of work restrictions when she returned to work following her workers' compensation claim. Ex. B, Mills 1/2/19 Statement.(Dkt. No. 69 at 19.) Although Plaintiff contends that these reasons are pretextual, she does not provide sufficient evidence to show pretext. Rather, the record supports the reasons proffered by Defendant. (See generally Dkt. Nos. 69-1; 69-2; 69-3; 69-5; 69-6; 69-7.) Accordingly, the undersigned recommends that Defendant's Motion for Summary Judgment be granted as to Plaintiff's claims of retaliation.
To the extent Plaintiff argues that Ms. Mills retaliated against her by “bad-mouthing” her and tainting other supervisors' views of her, those arguments are futile as Plaintiff has not described any instances in which she was discriminated against, retaliated against, or harassed by an employee of Defendant that was not Ms. Mills. (See generally Dkt. No. 72.)
III. Hostile Work Environment
A. Legal Framework
“A hostile environment that violates Title VII ‘exists 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.'” Holloway v. Maryland, 32 F.4th 293, 300-01 (4th Cir. 2022) (quoting Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (internal quotation marks and brackets omitted)). Thus, to prove a hostile work environment claim, Plaintiff must show that: (1) she “experienced unwelcome harassment”; (2) the harassment was based on her race or protected activity; (3) “the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere”; and (4) “there is some basis for imposing liability on the employer.” See id. (quoting Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)). “Whether the environment is objectively hostile or abusive is judged from the perspective of a reasonable person in the plaintiff's position.” Boyer-Liberto, 786 F.3d at 277 (internal quotation marks omitted). “That determination is made by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. (internal quotation marks omitted). “‘[R]ude treatment,' ‘callous behavior,' or ‘routine difference of opinion and personality conflict,' without more, will not suffice.” See Holloway, 32 F.4th 293 at 301 (quoting E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-316 (4th Cir. 2008) (internal quotation marks omitted)).
B. Analysis
Plaintiff bases her hostile work environment claim on the same actions that underlie her discrimination and retaliation claims. (See generally Dkt. Nos. 22, 72.) More specifically, Plaintiff asserts that Ms. Mills created a hostile work environment by: calling her from her lunch break to assist with the cash register; physically assaulting her in October of 2014; following her around at work; denying her requests to work more hours; denying her requests for training; taking her off of the work schedule for the “VIP visit”; saying “Again, Again?” to Plaintiff in a “very loud and threatening voice” while Plaintiff was on break in December of 2016; and assigning Plaintiff to the ID desk in October of 2016. (Id. at 8-18.)
At the outset, the undersigned notes that Ms. Mills was not actually responsible for denying Plaintiff's requests for training and assigning Plaintiff to the ID desk position. (See supra at 2324.) Further, Plaintiff was not actually denied the opportunity to work more hours; rather, she was offered at least one 32-hour position and declined to accept it. (See supra at 23-24.) Even assuming that Plaintiff was denied the opportunity to work more hours, the record does not reflect that Ms. Mills was solely responsible for any such denials. (Dkt. No. 69-1 at 14-15.) Thus, Plaintiff cannot use her claims that she was denied training, assigned to the ID desk, and denied extra hours to support her claim that Ms. Mills harassed her.
As for the remainder of Plaintiff's assertions, the undersigned cannot conclude that Plaintiff experienced unwelcome harassment that was sufficiently severe or pervasive as to alter the conditions of her employment. See Holloway, 32 F.4th 293 at 300. As noted, the undersigned must look at the totality of the circumstances to determine whether Ms. Mills' purported harassment was so severe and pervasive as to bring it within the purview of Title VII. See id. In doing so, the Court must look at “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. Here, Plaintiff strings together a series of isolated incidents over several years of employment to support her claim. She states that Ms. Mills asked her to return from her lunch break to work the cash register on a few occasions, physically assaulted her on one occasion, took her off the work schedule for one day, and complained that she was taking a break on one occasion. (Dkt. No. 72 at 8-18.) This amounts to a handful of incidents over approximately seven years of employment. (Id.) As such, the undersigned cannot conclude that Ms. Mills' purported harassment was frequent.
Nor can the undersigned conclude that Ms. Mills' alleged harassment, as a whole, was sufficiently severe. The undersigned notes that the physical altercation between Plaintiff and Ms. Mills in October 2014 was obviously a serious, physically threatening encounter. However, the record does not reflect that Plaintiff experienced lasting injuries or distress from this incident. In fact, the record reflects differing perspectives on the level of physical contact that actually occurred between Plaintiff and Ms. Mills. Regardless, one serious, physically threatening encounter over seven years of employment does not necessarily indicate a hostile work environment when considering the totality of the circumstances, as required.
More pertinently, nothing in the record suggests that Ms. Mills' conduct during the alleged physical altercation with Plaintiff was motivated by Plaintiff's race, nor her protected activity. Plaintiff does not allege that Ms. Mills ever mentioned her race during the argument that prompted their physical altercation. Further, Plaintiff does not claim to have engaged in protected activity until after Ms. Mills' purported assault. (Dkt. No. 72 at 4.)
Plaintiff's remaining allegations of harassing conduct are not sufficiently severe to sustain her hostile work environment claim. Indeed, Courts frequently note that micromanaging, nitpicking, and rude treatment do not rise to the level of a hostile work environment. See, e.g., Combs-Burge v. Rumsfeld, 170 Fed.Appx. 856, 862 (4th Cir. 2006) (concluding that employee's criticism, micromanaging, and nitpicking of plaintiff were not sufficient to sustain hostile work environment claim, even where supervisor was more friendly to employees of another race); Sunbelt Rentals, Inc., 521 F.3d at 315 (noting that complaints premised on “rude treatment by coworkers, callous behavior by supervisors, or a routine difference of opinion and personality conflict with one's supervisors” do not establish a hostile work environment); Buchhagen v. ICF Int'l, Inc., 545 Fed. App'x 217, 219 (4th Cir. 2013) (holding that plaintiff failed to allege sufficiently severe and pervasive harassment based on supervisor yelling at plaintiff in one meeting, yelling and pounding the desk in another meeting, harping on mistakes, unfairly criticizing plaintiff, making snide comments, and playing favorites); Bouknight v. S.C. Dep't of Corr., 487 F.Supp.3d 449, 475 (D.S.C. 2020) (“[C]ase law has long held that rudeness, bullying, and harsh management styles generally do not meet the requisite standard to establish a hostile work environment.”).
Based on the above, the undersigned finds no genuine issue of material fact relating to Plaintiff's hostile work environment claim. Even construing the facts in the light most favorable to her, Plaintiff's allegations of harassment fall short. As such, the undersigned recommends that Defendant's Motion for Summary Judgement be granted as to Plaintiff's hostile work environment claim.
IV. Constructive Discharge
A. Legal Framework
“The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that [her] ‘working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign.' When the employee resigns in the face of such circumstances, Title VII treats that resignation as tantamount to an actual discharge.” Green v. Brennan, 578 U.S. 547, 553-55 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141-43 (2004)). The Fourth Circuit has interpreted Green as eliminating the requirement that a plaintiff establish deliberateness or “a subjective intent to force a resignation” in order to show constructive discharge. EEOC v. Consol Energy, Inc., 860 F.3d 131, 144 (4th Cir. 2017) (quoting Green, 578 U.S. at 558-59). In other words, a plaintiff need only show “objective ‘intolerability'-‘circumstances of discrimination so intolerable that a reasonable person would resign'” to prove constructive discharge. Id. (quoting Green, 578 U.S. at 558-59.) Still, “[t]he standard for constructive discharge is a strict one- stricter, in fact, than the one required to establish a hostile work environment under federal employment statutes.” Bouknight, 487 F.Supp.3d at 477 (citing Suders, 542 U.S. at 146-47.)
B. Analysis
As noted above, Plaintiff has failed to establish a genuine issue of material fact as to whether Ms. Mills' alleged harassment was: (1) motivated by Plaintiff's race and/or protected activity, and (2) sufficiently severe or pervasive. (See supra at 27-28.) Accordingly, Plaintiff's hostile work environment claim fails. The allegations underlying Plaintiff's constructive discharge claim are the same as those underlying her hostile work environment claim. Seeing as “[t]he standard for constructive discharge is a strict one-stricter, in fact, than the one required to establish a hostile work environment under federal employment statutes,” Plaintiff's constructive discharge claim must also fail for the reasons set forth above. Bouknight, 487 F.Supp.3d at 477 (citing Suders, 542 U.S. at 146-47.) The undersigned therefore recommends that Defendant's Motion for Summary Judgment be granted as to this claim.
Further, Ms. Mills was transferred to a different facility in September of 2017, but Plaintiff did not resign until July of 2018. (Dkt. No. 69 at 16; Dkt. No. 72 at 1, 14.) Plaintiff does not allege that anyone besides Ms. Mills harassed her. (Dkt. No. 69-1 at 53.) Thus, Plaintiff's continued employment through July of 2018-many months after Ms. Mills stopped working with her- undermines Plaintiff's assertions that Ms. Mills harassment made her work conditions so intolerable as to force her to resign.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment (Dkt. No. 69) be GRANTED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).