Opinion
C. A. 1:21-2802-MGL-SVH
02-01-2024
Dr. Joe Holt, Plaintiff, v. Rural Health Services, Inc., Defendant.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges United States Magistrate Judge
In this case, an employee sues his former employer, alleging that he was discriminated and retaliated against based on his disability and sex, resulting in his wrongful termination. The former employer seeks dismissal.
Dr. Joe Holt (“Plaintiff”) originally filed this case against Rural Health Services, Inc. (“Defendant”), in the Court of Common Pleas for Aiken County, South Carolina.Defendant removed this case on August 30, 2021. Plaintiff asserts claims for disability discrimination, failure to accommodate, and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq., as amended by the ADA Amendments Act of 2008, effective January 1, 2009, 42 U.S.C. §§ 12101, et seq. (“ADA”); claims for sex discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); and the following claims brought pursuant to South Carolina state law: defamation, abuse of process, interference with contractual relationship, negligence, and conversion.
Defendant clarifies as follows: “This matter is styled Dr. Joe Holt. Plaintiff has a Ph.D (Doctor of Philosophy in Psychology) from a seminary, but he prefers that he be referred to as ‘Dr.' Plaintiff was a pediatric therapist for Defendant . . ., Plaintiff is not a medical doctor.” [ECF No. 48-1 at 1 n.1 (emphasis removed)].
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C]., this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 48]. The motion has been fully briefed [ECF Nos. 52, 54] and is ripe for disposition. Also pending before the court is Plaintiff's unopposed motion to seal. [ECF No. 51].
Having carefully considered the parties' submissions and the record in this case, the undersigned grants in part Plaintiff's motion to seal and recommends the district judge grant in full Defendant's motion for summary judgment.
I. Factual and Procedural Background
Defendant is a private, nonprofit federally-qualified health center located in Aiken, South Carolina, that has served the citizens in Aiken and surrounding areas since 1971. [See ECF No. 48-1 at 2-3]. Defendant's chief executive officer of rural health, Carolyn Emanuel-McClain (“Emanuel-McClain” or “McClain”) hired Plaintiff in September 2014 as a director in the behavioral health department, a position he held for approximately two years. [ECF No. 48-2 at 105:19-25, 106:6-9]. Plaintiff's responsibilities included developing programs, supervising staff, and seeing minor patients. Id. at 106:22-107:7.
On February 3, 2015, Plaintiff had a meeting with one of his supervisors, Dr. Tiffany Boyd (“Boyd”),to discuss complaints she had received from patient care coordinator (“PCC”) Angela McCall about Plaintiff frequently being late, causing patients to complain. [ECF No. 48-7, see also ECF No. 48-2 at 107:10-11]. On October 15, 2015, Plaintiff was placed on a provider corrective action plan for failure “to complete tasks in order of their priority often resulting in very low priority work being accomplished, while high priority work remains incomplete.” [ECF No. 48-9]. This corrective action plan required Plaintiff to complete “[t]asks related to completion of patient notes . . . within 24-48 hours of the scheduled visit.” Id.
Plaintiff identifies Boyd as a medical director. [ECF No. 52 at 2].
In 2016, Plaintiff was reassigned to work as a behavioral therapist for the pediatric unit. [ECF No. 48-2 at 106:10-13, 112:23-25].As a behavioral therapist, he was required to assess patients as requested by primary care providers, participate in the diagnosis process for behavioral health issues, and refer individuals for specialty treatment. [See, e.g., ECF No. 48-11].
Plaintiff testified that just before he was reassigned to be a behavioral therapist, Defendant hired a new medical director “to run the department,” Dr. Amanda Salas (“Salas”). [See ECF No. 48-2 at 106:10-19].
At the same time he was reassigned, Plaintiff told Boyd that he was diagnosed with celiac. [ECF No. 48-2 at 124:9-20]. Plaintiff testified that Boyd's “response to me was good, it could have been so much worse than that.” Id. Plaintiff testified that he sometimes has the urgent need to go to the restroom, but that he does not take any medications for celiac and that he controls his celiac with a gluten-free diet. Id. at 120:7-17, 137:10-20.
Plaintiff has submitted evidence concerning two incidents that occurred around this time in 2016. First, Plaintiff testified he asked Dr. Kenneth Jones (“Jones”), who Plaintiff identified as the supervisor over behavioral health, to examine him because abdominal acid was allegedly coming out of his rectum and causing him pain; Plaintiff alleges Jones examined him without lubrication. [ECF No. 48-2 at 69:1-22, see also ECF No. 52 at 2-4]. Plaintiff then yelled “Pull it out,” and he alleges that after the incident, Jones would say “Pull it out, Pull it out” as a joke. [ECF No. 48-2 at 69:20-70:6]. Although Plaintiff alleges that he felt uncomfortable around Jones, he also testified that the last incident during which Jones made him feel uncomfortable was in October or September 2017. Id. at 66:18-67:1.
Also in 2016, an incident occurred in which Plaintiff complained that there was a “ladies only” sign on a unisex restroom; however, after Plaintiff reported the sign, Defendant's chief operating officer, Gigi Lewis, promptly had the sign removed. [ECF No. 48-2 at 138:5-19]. Plaintiff testified that he could always use that restroom and that there were multiple restrooms available for him to use near his office. [ECF No. 48-5 (map of office and bathrooms); ECF No. 48-2 at 137:3-9, 139:19-21, 140:5-7, 143:10-22].
In April and May 2016, Plaintiff was provided the following review:
Chief Medical Officer
Review: Difficult to follow notes. Redundancy in multiple charges noted by peer. Treatment plan not clearly delineated.
Improvement deadline: Corrective Action Plan given at annual review. Minimal improvement in documentation.
Plan: Charting for behavioral health review course asap. Cut/paste will not continue.[ECF No. 48-10].
On August 23, 2016, Plaintiff was provided a provider performance review form that included the following comments:
Charts reviewed . . . all having similar deficits Repeated statements, no documentation of actions performed to reduce issues, testing should be addressed in detail into A/P area. No referral to Psych for children not responding to you[] is noted.[ECF No. 48-11 at 2]. On the same day, a behavior/performance enhancement plan was created, labelled as a final written warning, in which the following was included:
• Copy/paste of previous notes with redundancy must cease immediately
• Attendance to a medical note writing course was not completed ....
• No referral to psychiatry for non-responders were made . . .
• Inadequate feedback to physician/midlevel staff regarding next steps taken
• Leadership role should include adequate updates to LISW
• Attend mental health/medical note writing course approved by CMO
• Written report to CMO monthly on all Updates with LISWId. at 3.
On August 14, 2017, the then-director of nursing, Chairty Capers-Williams, emailed Boyd concerning issues with Plaintiff, including Plaintiff refusing to check-in patients using the standard method, dispersing candy to children when he had been informed not to, failing to address all patient symptoms and consult the applicable medical doctor, particularly regarding medication issues, and having ongoing issues with timeliness. [ECF No. 4815].
As Defendant argued, and Plaintiff has not disputed, Plaintiff's “licensure does not permit him to prescribe or recommend medications to patients and Defendant did not allow him to prescribe or recommend any medications as he is not a medical doctor.” [ECF No. 48-1 at 3 (citing ECF No. 48-2 at 11:1123 (Plaintiff testifying that he has a Doctor of Philosophy in Psychology from Southwestern Baptist Theological Seminary))].
On September 7, 2017, nurse Leah Mitchell (“Mitchell”) emailed Boyd concerning ongoing charting concerns on charts Plaintiff completed. [ECF No. 48-12 (“I have no idea what is going on with my patients when they see Dr. Holt d/t his poor charting and communication.”)].
On September 22, 2017, Mitchell emailed Boyd and others in part as follows:
Hand washing continues to be a major issue on the pediatric floor with Dr. Holt. Just now, he used the employee bathroom on the
pediatric unit (right next to the MA's desk). He flushed the toilet and immediately opened the door afterwards. He then told Katie “I peed all over the floor to make it feel at home.” This is wildly inappropriate and I am very concerned that this continues to be a problem despite the numerous emails that I have sent to management, and the meetings that have addressed this major concern of hygiene and the prevention of disease spread. As I have said before, this is a huge health risk, not only to the pediatric staff, but more importantly, to our patients as well. We have newborn patients that come in contact with him, and it is only a matter of time before one of them gets sick from his blatant lack of hygiene.
He also continues to hand out candy to patients on the unit, despite us discussing this in our unit meeting, and him verbally agreeing not to do this. Both Chairty and LaToya have discussed this with him on numerous occasions. We ask him not to hand out candy for several reasons: 1. We promote a healthy lifestyle and encourage healthy food choices. So when Dr. Holt encounters them, he completely undermines our recommendations. 2. He does not know the patients' allergies and how the candy was prepared. This could be a major liability if a child was to have an allergic reaction to candy that he provided. 3. Because he obviously does not wash his hands after using the bathroom (which has been witnessed countless times by various staff members) he is transferring bacteria from his hands to the candy that he is handing out to our patients.[ECF No. 48-18].
On the same day, Plaintiff was provided a behavior/performance enhancement plan labeled a final written warning that provided the following deficiencies and direction:
1) Inappropriate conduct on the unit with staff with verbal exchanges
2) Hygiene violation of OSHA Regulation/Handwashing Cease the above behavior.[ECF No. 48-17].
On March 15, 2018, Dr. Maya Fields (“Fields”) emailed Boyd concerning charting concerns of charts Plaintiff completed:
I went to view Dr. Holt's notes on this patient so that I could follow her progress. Pt was seen by Dr. Holt yesterday, but the note was completely blank. I looked back at the 3 notes before yesterday, and those 3 notes were cut & paste - exactly the same. The notes even mentioned pt “doing well on the medication” when in fact she had not been taking the medication.[ECF No. 48-13]. On the same day, Fields sent an additional email to Boyd concerning patient complaints about Plaintiff:
I have decided to keep better documentation of such encounters with parents regarding Behavioral Health, as they have been quite frequent. My concern remains the same: that many of our behavioral health patients are not receiving quality, focused care, and many of their behavioral health needs are not being met. This email is not meant to “bash” a provider. It is just difficult for me to knowingly witness poor practice and turn a blind eye to it.[ECF No. 48-14].
On April 24, 2018, Plaintiff and Salas exchanged emails in which Salas indicated that Plaintiff's practice of sometimes checking in patients out of the standard order was understandable and where Plaintiff responded in part as follows:
Thanks for the advocacy. It does feel like I have endured a Hostile Work environment. I have endured a lot of bathroom discrimination on the unit. As well as being told that if I give out “fruit snacks” is a fireable offense, even though there others who distribute candy (those who do it are African American and I am not) ....[ECF No. 52-8].
Plaintiff has submitted a document labeled “hostile workplace complaint” he completed, dated August 20, 2018, detailing alleged offenses committed against him, including “endur[ing] slanderous comments by Drs. Boyd and Fields.” [ECF No. 52-7; see also ECF Nos. 52-6, 52-7]. In this document, Plaintiff discusses the “ladies only” sign incident, disputes concerning timing on seeing patients, and disputes concerning the dispersion of candy, among other concerns. See id.
Plaintiff has submitted a February 7, 2019 email from Salas to Boyd and others about Tijuana Carolina, nursing manager in Defendant's pediatric unit, denying knowledge about Plaintiff's whereabouts, entitled “employee not truthful and forthcoming.” [ECF No. 52-9, see also ECF No. 48-1 at 5].
On December 23, 2019, Plaintiff send an email to director of human resources Stephanie Alford (“Alford”) entitled “[t]hanks for the feedback on how to deal with the Pediatric PCC”:
I do not wish to create conflict nor be petty. In future, I will say “thank you” and move on. Although, I am documenting these events since this is something that she does not do with any other provider. Based on her actions of singling out, I do feel that her pettiness is harassment. Although, I will defer to your guidance.[ECF No. 52-5].
Plaintiff has not clarified in briefing or otherwise who he was complaining about in this email. [See ECF No. 52].
On December 6, 2019, Plaintiff was provided a behavior/performance enhancement plan labeled a final written warning that provided the following deficiencies and direction:
On 11/21/19, Pt left a message inquiring about the over the counter medication magnesium Dr. Holt recommended for her child during the last SH session. I spoke with Dr. Holt on 11/21/19 to address the incident and Dr. Holt denied recommending the medication but recalls suggesting magnesium for anxiety during the session. On 11 /22/19, I contacted the mother about the event and mother indicated that Dr. Holt did recommended magnesium during the session and she was calling to clarify the dosage with provider.
Employee will practice[] within his scope of practice of behavioral health and refrain from suggesting or recommending supplements, vitamins and OTC to patient. Ensure communication with medical provider about the patient[‘]s medical concerns and document providers recommendation.[ECF No. 48-16].
Plaintiff has submitted the following email that is not dated, referencing a January 31, 2020 event, ostensibly from him to Jones, stating in part as follows:
The hostile work place complain[t] still has not been dealt with.
The conflicts have been over such issues as:
1. Does he wash his hands?
(Who is standing outside of the bathroom while I am doing my business?) I am the only staff member who carries around his neck and I uses hand] sanitizer daily. As well as washing this in the lavatory in the room across the hall from my office.
2. I cannot see patients between 12pm to 2pm ....
This constant topic is a Tijuana [Carolina] problem. I do it on rare exception when I have a full schedule and no where to add. If a patient/parent feel it is a crisis then I try to respond ....
In discussing this matter with another provider, they said “Now you know how us BLACKS feel all these years. Welcome to the club.” I can assure that there is a strong feeling of reverse racism in the building. It is sad but my clashes have been with some of the members of our Black leadership within the organization.
3. I cannot add anyone to my schedule without Tijuana's permission.
It appears that Carlos can do this simple task upstairs in Adult medicine. The schedule will read “per Carlos.” It appears that it is not asking permission. So, why is one employee allow to insert that information on the schedule and another one is not?
Is it because he is black that he can add to his schedule? Or is it the lack of professionalism which exists in pediatrics? Because the persons who have been offering me resistance is black. (I believe that it is another form of harassment in the workplace).
4. Based on pediatric policy . . . I could not see a patient when they came late ....
5. I approach Dr. Soto several times daily. brief her on the outcome as well as provide copies of the CPT results to her personally at the conclusion of a session numerous times per day. We are both busy, but I made the effort. It is never done in return
....
6. In discussions with Princess, Stephanie Alford and Dr. Jones, all have indicated the pettiness of Tijuana's emails and complaints. You and Princess has said that Tijuana breeds a unit which does not respect me as a Provider. So, you don't expect that poison to spread without management intervention. I have been promised that intervention would occur and nothing happens, their divisive behavior continues and it is in front of patient.
When I originally filed the initial hostile workplace complaint against Drs. Boyd and Fields through Dr. Salas. I was told that Fields was to go to Clearwater site and I had nothing to worry about (by Ms. McClain). Well that has never changed, when Dr. Fields was moved to Clearwater. She was also promoted to Director of Pediatric services which expanded the harassment. It appears that it continued but by some of her staff at CCPC. The continued harassment and stalking by Tijuana only indicates that it has not ceased or changed.
In the past, I have gotten yelled at in the hallway in front of patients by staff. For example, one morning got yelled at by Taylor for coming in late one morning before 830 am. It was not patient related. She just felt that I should be there (even though I am salary employee and she is an hourly employee ....
Another example, I was harassed by Dr. Boyd on a continuous basis .... Examples: Went to Gigi Walker on several occasions (when she was HR) and she said that she would look in to it. Nothing happened and no one got back to me. During Dr. Boyd's time as Medical Director, I was assigned tasks and provided no leadership of what is the expected outcomes would be. If you were white you did not get along with her ....[ECF No. 52-4 (references omitted)].
On March 16, 2020, Plaintiff received his annual review from Carlos Foster (“Foster”). [ECF No. 52-1]. Plaintiff was assessed as a “3” or as meeting expectations in 7 categories, as a “4” or exceeding expectations in two categories, and as a “2” or as marginal, in 2 categories, quality of work and organization and planning. Id. Comments on these sections and in general are as follow:
Compliance with chart closure policy needs improvement. Employee must close charts within 3 days. I am closely monitoring to ensure that this is corrected ....
As addressed previously, employee's office is subpar but he is making slow improvements in this area. Employees office should be kept tidy ....
Employee has made a lot of improvements this past year. The employee has had a strong therapy count each month for the past 12 months ....
(1) Employee will have all charts closed within the 3day window per RHS policy
(2) Employee will maintain a neat a tidy office
(3) Employee will notify supervisor prior to later arrival or early departure.Id.
On May 29, 2020, Plaintiff sent what appears to be an email to “RHS leadership” concerning a scheduling incident, including the following: “Manipulation of the schedule is a bad habit on our Pediatric unit where the parents are being scapegoated by the PCC and her staff's decisions.” [ECF No. 51-4].
On June 15, 2020, Foster emailed Plaintiff, stating as follows:
Hello Joe, I have been reviewing some of your charts from the past week and I'm seeing in some of the charts you are copying and pasting in the HPI and associated symptoms. For example, in all the charts I have seen all the patients had no psych symptoms. Going forward if you are going to use the template be specific in identifying the client symptoms.[ECF No. 48-14].
On June 29, 2020, at 8:19 a.m., Plaintiff contacted Aiken County Police, concerning an incident he witnessed in Defendant's parking lot, reporting as follows, as recorded by the operator: “Blk truck flew thru parking lot and now they are sitting in the woods occupied by two people [unknown] description.” [ECF No. 52-19 at 1, see also ECF No. 52-21].
As testified by Plaintiff:
I called the police on a reckless driver in the parking lot . . . I did not know whose vehicle it was, so I could not how would you say, do that. So, yeah, so it was a dark truck with tinted windows. You couldn't see in, I couldn't tell who was there. And I just wasn't-I felt like I was-it was an unsafe situation.[ECF No. 48-2 at 221:5-13].
As provided by Defendant:
Defendant's Counsel represents that to the extent Plaintiff alleges he called the police regarding a reckless driver in Rural Health's parking lot on June 29, 2020, this allegation simply has no merit. Defendant's Counsel has visited Rural Health's parking lot on numerous occasions and due to the circular set up of the parking lot, it is nearly impossible for a driver to exceed 15 miles per hour and not hit another car or person in the lot. Recordings of the driving incident on June 29, 2020, which caused Holt to call the police and for which he believes he was terminated, are attached as Exs. T and U, and have been provided via CD-ROM to the Court.[ECF No. 48-1 at 16 n.5]. Review of the video evidence provided by Defendant indicates a circular set up of the relevant parking lot. [See ECF No. 48-22].
The next day, in a letter dated June 30, 2020, signed by Alford, Plaintiff was informed that his employment had been terminated. [ECF No. 52-2].
Defendant has also submitted a five-page document completed by Tijuana Carolina, detailing roughly 60 incidents concerning Plaintiff's problematic behavior, spanning from August 17, 2018, to October 22, 2019. [ECF No. 488].
Plaintiff testified concerning the termination of his employment as follows:
Q: Sir, why do you maintain that you were terminated?
A: Because I was.
Q: For what reason?
A: Well, I was told by a lower staff, not management but lower staff, that the word in the building was I was terminated because I called the police on Ms. Alford's kid ....
Q: Okay, thank you. Retaliation for Title VII, what-when did-so if you claim the Title VII event started in 2016, you were not terminated until, what, 2020?
A: Yeah.
Q: So four years passed? ....
A: I was terminated because of calling the police on Alford's kid .... And I would say ignoring the reports of Dr. Jones' advances.[ECF No. 48-2 at 220:21-221:3, 257:21-258:13].
Defendant, in response to Plaintiff's Fed.R.Civ.P. 30(B)(6) discovery inquiries, provided the following about Plaintiff's termination:
6. Identification of what, if any, job requirements Joe Holt did not meet at the time of termination.
RESPONSE: Defendant terminated Plaintiff because of his performance issues, which included failing to provide patient care within the scope of his license, failing to follow Defendant's policies, and his repeated rude, unprofessional treatment of coworkers. Plaintiff also caused an incident when he called the police reporting two young African American men arriving to work. Plaintiff did this on the heels of the George Floyd incident
and his behavior continued to be antithetical to the mission of Defendant as a community health center.
7. Identification of all reason(s) for termination of Joe Holt
a. Termination Notice-Def 239
i. Identify termination decisionmakers.
ii. Identify who Stephanie Alford conferred with before terminating Plaintiff.
RESPONSE: Defendant terminated Plaintiff because of performance issues, including failure to provide patient care within the scope of his license, failure to follow Defendant's policies, and his repeated rude, unprofessional treatment of coworkers, as well as those reasons identified in response to Topic 6 above. See Defendant's Responses to Plaintiff's Second Interrogatory Request No. 1. Carolyn Emanuel-McClain (Defendant's CEO) and Stephanie Alford (Defendant's Director of Human Resources) were involved in Plaintiff's termination. Ms. Emanuel-McClain advised Ms. Alford to terminate Plaintiff.[ECF No. 52-29 at 3].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
1. ADA Claims
As clarified in briefing, Plaintiff has brought three ADA claims against Defendant: wrongful termination or discrimination claim, failure to accommodate claim, and a retaliation claim.
a. ADA Wrongful Termination Claim
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees, . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To establish a claim of disability discrimination under the ADA, a plaintiff must prove that (1) he has a disability, (2) he is a “qualified individual” for the employment in question, and (3) [his employer] discharged him (or took other adverse employment action) because of his disability. Smith v. CSRA, 12 F.4th 396, 412 (4th Cir. 2021) (citations omitted). The McDonnell Douglas burden-shifting framework applies to discrimination claims under the ADA. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015). Therefore, if a prima facie case of ADA discrimination is established, the burden shifts back to Defendant to produce evidence of a legitimate, nondiscriminatory reason for the alleged discrimination, and Plaintiff bears the burden of showing that reason is pretext. See id.
The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Celiac disease might substantially limit a major life activity of an individual, but here Plaintiff has failed to submit evidence that his impairment does so. This case stands in contrast to those where the plaintiff has, for example:
submitted extensive evidence about the serious consequences to his health when he ingests gluten .... The evidence here . . . is that J.D. and his parents must remain vigilant because the
ingestion of even a small amount of gluten may have serious consequences for J.D.'s health.J.D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 671 (4th Cir. 2019). Here, Plaintiff has declined to produce any medical information or other evidence in support of his argument that he has a disability as defined by the ADA, beyond his own testimony stating he was diagnosed with celiac, he is not on medication, he “manag[es] it by not eating gluten or avoiding gluten as much as possible,” and “when you have celiac, you have to dash to the bathroom.” [ECF No. 48-2 at 120:7-17, 137:10-11].
Additionally, even if the court were to assume Plaintiff had a disability as defined by the ADA and could otherwise make a prima facie showing, there is no indication in the record that Plaintiff was discharged, or otherwise discriminated against, because of his celiac disease or because of any other health concerns.
Defendant states that Plaintiff's employment was terminated because of “his multiple performance-related issues.” [See, e.g., ECF No. 48-1 at 12, see also ECF No. 52-29 at 3]. Plaintiff fails to address Defendant's evidence concerning these issues, but, in rebuttal, offers only his latest March 16, 2020 annual review, where he was generally found to have met expectations, except in the categories of quality of work and organization and planning, and where Plaintiff was informed in part, and not for the first time, that
Compliance with chart closure policy needs improvement. Employee must close charts within 3 days. I am closely monitoring to ensure that this is corrected ....[ECF No. 52-1]. Plaintiff additionally fails to address evidence of performance-related issues that followed this assessment specifically discussed, including Foster's June 15, 2020 email concerning ongoing charting concerns.
More importantly, Plaintiff has offered no evidence, including his own testimony, that he was terminated because of celiac disease or any other health-based reason. Instead, Plaintiff testified that he was terminated because on the day before his termination he called police officers concerning another employee's child allegedly driving recklessly in Defendant's parking lot, a reason Defendant admitted was a factor in Plaintiff's termination.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA wrongful termination or discrimination claim.
b. ADA Failure to Accommodate Claim
The ADA's prohibitions “include[] . . . not making reasonable accommodations.” 42 U.S.C. § 12112(b)(5)(A). To establish a claim for a failure to accommodate, a plaintiff must show that (1) he suffers a disability; (2) his employer had notice of the disability; (3) with reasonable accommodations, he is otherwise qualified to perform the employment position in question; and (4) his employer refuses to make such reasonable accommodations. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (citations omitted).
The plaintiff bears both (1) the burden of identifying an accommodation that would allow a qualified individual to perform the job, and (2) the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable. Maffett v. City of Columbia, C/A No. 3:19-0832-MGL, 2021 WL 4237189, at *7 (D.S.C. Sept. 17, 2021) (citing Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir. 1997) (overruled on other grounds by Baird v. Rose, 192 F.3d 462 (4th Cir. 1999)). “A reasonable accommodation is one that is feasible or plausible.” Id. (citing Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 414 (4th Cir. 2015)).
Here, Plaintiff has failed to carry his burden. As discussed above, Plaintiff has not submitted evidence indicating that he has an ADA-recognized disability. Additionally, Plaintiff has failed to establish that he asked for any reasonable accommodation that was denied.
Plaintiff argues otherwise as follows: “During his employment, Plaintiff needed accommodations in the form of medical care, bathroom availability changes, the availability of PPE, and accommodations to reduce the risk of exposure to COVID-19.” [ECF No. 52 at 23].
First, Plaintiff has failed to submit any evidence that Defendant denied him medical care, particularly where Plaintiff testified that he voluntarily stopped using Defendant's medical services because two doctors had a dispute over who would treat him. [ECF No. 48-2 at 114:22-115:7]. Second, Plaintiff testified that no one prevented him from entering or using any restroom, there were multiple restroom facilities available to him, and the distance between available restrooms was five to six yards. [ECF No. 48-5 (map of office and bathrooms); ECF No. 48-2 at 137:3-9, 139:19-21, 140:5-7, 143:10-22]. Plaintiff has failed to submit evidence that Defendant did not make bathrooms available to him.
As to Plaintiff's arguments concerning the availability of PPE during COVID and other accommodations related to COVID, Plaintiff has failed to submit evidence connecting the need for these accommodations with celiac. Instead, Plaintiff argues that he was at high risk for COVID because of his high blood pressure and diabetes. [ECF No. 48-2 at 165:5-7].However, the record does not indicate that Plaintiff notified Defendant that he needed accommodations for high blood pressure or diabetes. Additionally, neither Plaintiff's discrimination charge nor his complaint specifically mention that he suffered from these conditions, nor do they specifically allege that he experienced any ADA discrimination because of these conditions. [ECF No. 11, ECF No. 52-12 (“I am disabled within the meaning of the ADA. I have celiac disease .... I have high-risk health concerns that I shared with RHS, wherein I requested accommodations during the pandemic .... I emphasized that I needed [PPE] because of my at-risk disability”)].
Plaintiff testified that Defendant provided him with sterilized surgical masks during the relevant time period. [ECF No. 48-2 at 165:25-166:2].
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA failure-to-accommodate claim.
c. ADA Retaliation Claim
As with Plaintiffs ADA discrimination claim, his claim for ADA retaliation also proceeds under the McDonnell Douglas burden-shifting framework. See, e.g., Rhoads v. FDIC, 257 F.3d 373, 391 (4th Cir. 2001). “The plaintiff always bears the ultimate burden of persuading the trier of fact that she was the victim of retaliation.” Id. at 392.
As to this claim, Plaintiff's primary argument is that he engaged in protected activities at different times in his career, but argues that the only retaliatory response by Defendant to these alleged protected activities is as follows: “Defendant willfully retaliated against Plaintiff by denying accommodations, as described above, and terminating Plaintiff because of his protected activities under ADA.” [See ECF No. 52 at 31-33].
First, to the extent that Plaintiff is relying on temporal proximity between any complaints he may have made and his termination, or any other retaliatory act, “temporal proximity, without more, does not support a finding of pretext.” Jones v. UnitedHealth Group, Inc., 19-1728, 2020 WL 2116496, at *2-3 (4th Cir. Apr. 21, 2020) (citing Gibson v. Geithner, 776 F.3d 536, 541 (8th Cir. 2015) (holding that, while proximity can establish a prima facie case of causation, it is insufficient to alone establish pretext)). Second, as discussed above, Plaintiff has failed to establish that he asked for and did not receive reasonable accommodations from Defendant or that his employment was terminated for any reason related to his disability, or his sex, as discussed more below.
For the reasons discussed above, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA retaliation claim.
2. Title VII Claims
As clarified in his briefing, Plaintiff has brought three Title VII claims against Defendant: wrongful termination or discrimination claim, sexual harassment, and a retaliation claim.
a. Title VII Wrongful Termination Claim
Title VII prohibits employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case, “a plaintiff must show that (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her employer's legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination ....” Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649-50 (4th Cir. 2021) (citation omitted). As with Plaintiff's ADA wrongful termination or discrimination claim above, absent direct evidence of discrimination, Plaintiff proceeds under the McDonnell Douglas burdenshifting framework. Once a plaintiff makes out a prima facie case, the burden shifts to the employer to put forth a nondiscriminatory explanation for its actions. Id. (citation omitted). If the employer does so, the burden then shifts back to the plaintiff to show that the employer's explanation was “actually a pretext for discrimination.” Id. (citation omitted).
The parties dispute whether Plaintiff has established a prima facie case, particularly in that the only evidence Plaintiff has submitted in support of his position that he was meeting Defendant's legitimate expectations is his latest annual evaluation [see ECF No. 52 at 28], and where Defendant has submitted extensive evidence of ongoing difficulties between Plaintiff and other employees, including multiple write-ups of Plaintiff for subpar and inappropriate behavior. However, the court need not resolve this issue. Even if he is deemed to have established a prima facie case, Plaintiff fails to offer any evidence that Defendant's nondiscriminatory explanation for his termination was actually pretext for sex discrimination.
Plaintiff disagrees, arguing in full as follows:
Defendant asserts that Plaintiff suffered termination as a result of alleged performance deficiencies. Plaintiff has met his burden to proffer sufficient evidence of pretext to create a genuine issue of material fact. The same pretext arguments articulated above apply here. Both decisionmakers of the termination are female and were on notice of Plaintiff's complaints about Dr. Jones' harassment.[ECF No. 52 at 28-29 (citing ECF No. 52-10, ECF No. 52-12)].
The evidence cited by Plaintiff does not support his argument that the relevant decision makers were aware of any complaints of harassment or that, even if they were, this knowledge evinces pretext. The first exhibit relied on by Plaintiff appears to be an undated text exchange between Plaintiff and another employee identified by Plaintiff in the title to the exhibit as Bruce Wright (“Wright”), with both Plaintiff and Wright complaining about Jones and how Emanuel-McClain did not take the complaints seriously. [ECF No. 52-10]. The second exhibit is Plaintiff's Charge of Discrimination stating that at some point in time he “reported my concerns with Dr. Jones' actions to the CEO.” [ECF No. 52-12]. This evidence is insufficient to show what was said to Emanuel-McClain, or when, or that Alford had any relevant knowledge, particularly where Plaintiff testified the last incident where Jones made him feel uncomfortable was in October or September 2017, over two and a half years before Plaintiff was terminated.
For the reasons stated above, including that Plaintiff also stated he was terminated because he called the police on another employee's child and Defendant's evidence of poor performance, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's Title VII wrongful termination or discrimination claim.
b. Title VII Sexual Harassment Claim
As held by the Fourth Circuit describing a Title VII hostile work environment claim based on protected characteristics, to establish such a claim, a plaintiff must show “she was subjected to (1) unwelcome conduct, (2) based on her race [or national origin] or sex, that was (3) severe or pervasive enough to make her work environment hostile or abusive and (4) imputable to [ ] her employer.” Laurent-Workman v. Wormuth, 54 F.4th 201, 210 (4th Cir. 2022) (citing Bazemore v. Best Buy, 957 F.3d 195, 200 (4th Cir. 2020)).
Plaintiff argues in full as follows:
Plaintiff was subjected to unwelcome sexual harassment and treatment based on sex from Defendant's employee Dr. Kenneth Jones while working at Defendant. Defendant knew or should have known of the harassment and took no effective remedial action. Such unwanted sexual conduct created an intimidating and hostile work environment and was subjectively viewed by Plaintiff to be abusive. The harassment was a continuing act. The conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere.
Plaintiff's complaints about the discriminatory workplace environment were disregarded. Sufficient evidence is put forth for a reasonable jury to find that that harassment prohibited by Title VII occurred.[ECF No. 52 at 29 (citing ECF No. 52-10, ECF No. 52-12)].
The undersigned disagrees. As stated above, Plaintiff has failed to submit evidence that Defendant knew or should have known about the alleged harassment. Additionally, Plaintiff has not cleared the “high bar” necessary to satisfy the severe or pervasive element of this inquiry:
[P]laintiffs must clear a high bar in order to satisfy the severe or pervasive test. Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard. Some rolling with the punches is a fact of workplace life. Thus, complaints premised on nothing more than rude treatment by [coworkers], callous behavior by [one's] superiors, or a routine difference of opinion and personality conflict with [one's] supervisor, are not actionable under Title VII.E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (citations omitted)).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's Title VII sexual harassment claim.
c. Title VII Retaliation Claim
To succeed on his Title VII retaliation claims, Plaintiff must show that “(1) he engaged in a protected activity; (2) the employer acted adversely against him; and (3) there was a causal connection between the protected activity and the asserted adverse action.” Strothers v. City of Laurel, 895 F.3d 317, 327 (4th Cir. 2018) (quoting Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008)).
Plaintiff's Title VII retaliation claim fails for the same reasons as already discussed by the court, where Plaintiff argues only that “Defendant willfully retaliated against Plaintiff and terminated Plaintiff on June 30, 2020 because of his protected activities under Title VII.” [ECF No. 52 at 3031]. Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's Title VII retaliation claim.
3. State-Law Claims
Plaintiff brings the following claims based on South Carolina law: defamation, abuse of process, interference with contractual relationship, negligence, and conversion.
The undersigned addresses Plaintiff's state-law claims, even after recommending dismissal of his federal-law claims, where Plaintiff's state-law claims involve settled principles and are not novel or complex. See Funderburk v. S.C. Elec. & Gas Co., 406 F.Supp.3d 527, 534 n.6 (D.S.C. 2019) (retaining supplemental jurisdiction over state law claims that involved “settled principles” and were “not novel or complex”), aff'd sub nom. Funderburk v. CSX Transportation, Inc., 834 Fed.Appx. 807 (4th Cir. 2021); Hall v. Greystar Mgmt. Servs., L.P., 179 F.Supp.3d 534, 538 (D. Md. 2016) (retaining state law claims after dismissal of the federal claims in part because the state law claims involved the application of “straightforward . . .
a. Defamation
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). Malice and damages are presumed in the case where the defamation is actionable per se. See Holtzscheiter, 506 S.E.2d at 502; see also id. (“In other words, if the trial judge can legally presume, because of the nature of the statement, that the plaintiff's reputation was hurt as a consequence of its publication, then the libel is actionable per se. Essentially, all libel is actionable per se.”) (citations omitted).
Slander is a spoken defamation, while libel is a written defamation or one accomplished by actions or conduct.
Plaintiff identifies two allegedly defamatory events. In the first, Plaintiff has submitted a brief video recording that purports to be of an hornbook tort law” and an “uncomplicated fact pattern,” as opposed to “questions of first impression of unsettled, policy-laden matters” better left to Maryland courts). unknown patient's mother stating, at some unknown time, she was told, by an unknown person at the front desk, that Plaintiff was racist. [See ECF No. 52 at 14 (citing ECF No. 51-5)]. In the video Plaintiff, not the unknown speaker, identifies the person who allegedly makes the comment as “Sheryl Lynn.” See id. Plaintiff has submitted no further evidence as to this alleged employee. Second, Plaintiff has submitted what purports to be a Facebook chat exchange with Gabrielle Gaudette, who worked for Defendant in medical records at some point, and who stated she had heard “that u left bc u called the cops on mrs Alford son.” [ECF No. 52-22].
As to the first alleged statement, even assuming that this statement is admissible in the form submitted by Plaintiff, the statement lacks the necessary specificity to state a claim for defamation. See, e.g., Doe v. Cannon, C/A No. 2:16-00530-RMG, 2017 WL 591121, at *1 (D.S.C. Feb. 14, 2017) (“Plaintiff has failed to state a claim against [Defendants] for defamation because her Complaint does not state with specificity the time, place, medium, and listener of the alleged defamatory statements.”); Colleton v. Charleston Water Sys., 225 F.Supp.3d 362, 369 (D.S.C. 2016) (“Defendants cannot be expected to defend against an allegation that Mr. Clum defamed Plaintiff by making a statement heard by unknown persons at an unknown place at an unknown time.”); Wise v. INVISTA s.a.r.l., C/A No. 3:17-1354-MBS-TER, 2017 WL 9275298, at *3 (D.S.C. Aug. 31, 2017), report and recommendation adopted, C/A No. 3:17-01354-MBS, 2018 WL 525475 (D.S.C. Jan. 23, 2018) (“Without more detailed allegations regarding who made the statements, to whom they were made, and the context in which they were made, Plaintiff has failed to state with plausibility a cause of action for defamation”).
Additionally, in this context, the alleged and apparently isolated statement may not be defamatory. As stated by the South Carolina Supreme Court:
Petitioners correctly contend that calling someone a racist can be defamatory depending on the context. In this regard, we reject any suggestion that calling someone a racist can never be defamatory. See 50 Am. Jur. 2d Libel and Slander § 200 (2017) (“Courts have readily held allegations of racism . . . to constitute libel per se, at least when founded on specific incidents.”); 3 Dan. B. Dobbs et al., The Law of Torts § 572 (2d ed. 2011) (“While ‘racist' is sometimes said to be mere name-calling and not actionable in some contexts, the term can be actionable where it plainly imputes acts based on racial discrimination.” (footnote omitted)); MacElree v. Phila. Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, 1055 (1996) (“Although accusations of racism have been held not to be actionable defamation, it cannot be said that every such accusation is not capable of defamatory meaning as a matter of law.”).Garrard for R.C.G. v. Charleston Cnty. Sch. Dist., No. 2020-000605, 2023 WL 3731173, at *1 (S.C. May 31, 2023); see also id. at n.2 (“La Liberte v. Reid, 966 F.3d 79, 93 (2d Cir. 2020) (‘[The defendant] did not merely accuse [the plaintiff] of being ‘racist' in some abstract sense. Rather, [the defendant's social media post] could be understood as an accusation of concrete, wrongful conduct, which can be proved to be either true or false. That makes it potentially defamatory.' (cleaned up)); Taylor v. Carmouche, 214 F.3d 788, 793 (7th Cir. 2000) (holding a statement that a person is ‘a racist' is defamatory and acknowledging that whether someone is racist or practices racial discrimination in the workplace is a mundane issue of fact that is litigated every day); cf Capps v. Watts, 271 S.C. 276, 281-83, 246 S.E.2d 606, 609-10 (1978) (recognizing that mere name calling and words of abuse are generally not considered defamatory but holding such remarks may be capable of libelous construction by reason of extrinsic facts).”).
Turning to Plaintiff's second statement, he alleges the Facebook exchange shows that “Defendant defamed Plaintiff to unprivileged staff and Plaintiff's patients by accusing him of making a false police report.” [ECF No. 52 at 14]. However, the statement in question states that Plaintiff called the police on another employee's child something Plaintiff has repeatedly admitted. Additionally, Plaintiff has repeatedly testified, as discussed above, this is why he was terminated. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 274 (1964) (holding that truth is an absolute defense to a defamation claim).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's defamation claim.
b. Abuse of Process
Under South Carolina law, “[t]he essential elements of abuse of process are: (1) an ulterior purpose; and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding.” Johnson v. Painter, 307 S.E.2d 860, 860 (S.C. 1983); see also Hainer v. Am. Med. Int'l, Inc., 492 S.E.2d 103, 107 (S.C. 1997) (“There is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.”).
Plaintiff argues as follows:
Defendant's representative(s) called the South Carolina Department of Social Services and made a false report against a family who decided to continue medical care services with Plaintiff rather than Defendant, by falsely alleging that the family was refusing to follow the doctor's recommendation of getting counseling. (Ex. 39-Statement of CB). The parents were contacted by Child Protective Services as a result of this false claim. (Id.).[ECF No. 52 at 16]. Plaintiff argues, but provides no supporting evidence, that Defendant or its representative did this “in retaliation for the family choosing to utilize Plaintiff's counseling services” after Plaintiff was terminated. Id.
Plaintiff has provided insufficient evidence to support this claim. First, there is no evidence from which a reasonable jury could find Defendant acted with an ulterior purpose. As Plaintiff testified in his deposition, the only evidence he has that an unknown person allegedly associated with Defendant called DSS is that the father and mother told him. [ECF No. 48-2 at 225:3227:11]. Although Plaintiff argues in briefing otherwise, there is no evidence in the record, not even Plaintiff's own testimony, that even if a representative of Defendant called DSS, such actions were to retaliate against Plaintiff.
Even if Plaintiff could demonstrate Defendant's representative called DSS to retaliate against Plaintiff, as stated by the South Carolina Court of Appeals:
The essence of the tort of abuse of process centers on events occurring outside the process, and our courts have noted that “[t]he improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club.” Swicegood v. Lott, 379 S.C. 346, 353, 665 S.E.2d 211, 214 (Ct. App. 2008) (quoting Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 209, 153 S.E.2d 693, 694 (1967)). “There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.” Id. (quoting Huggins, 249 S.C. at 209, 153 S.E.2d at 694).D.R. Horton, Inc. v. Westcott Land Co., LLC, 730 S.E.2d 340, 352 (S.C. Ct. App. 2012), cert. denied as to this issue, 764 S.E.2d 701 (S.C. 2014); see also Cosby v. Legal Servs. Corp., C/A No. 6:05-131-GRA, 2006 WL 4781412, at *4 (D.S.C. May 11, 2006) (“There is no evidence that LSC sought to gain a collateral advantage from plaintiff, much less that the sole or paramount reason for LSC in conducting the investigation of the SCCEJ related to obtaining some collateral objective from Ms. Cosby. Because the evidence cannot support a conclusion that the sole or paramount reason for conducting this investigation was to gain a collateral objective from Ms. Cosby, liability for abuse of process cannot exist.”), aff'd sub nom. Cosby v. Legal Servs. Corp., 227 Fed.Appx. 279 (4th Cir. 2007).
Here, too, there is no indication Defendant sought to gain any kind of collateral advantage over Plaintiff. Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiffs abuse-of-process claim.
c. Interference with Contractual Relationship
South Carolina recognizes a claim for intentional interference with contract, also known as tortious interference with contractual relations. A plaintiff must show (1) the existence of a contract; (2) the defendant's knowledge of the contract's existence; (3) the defendant's intentional procurement of the breach of the contract; (4) the absence of justification; and (5) resulting damage. Camp v. Springs Mortgage Corp., 426 S.E.2d 304, 305 (S.C. 1993).
Plaintiff appears to argue he can maintain a claim against Defendant because (1) he set up a business after his termination and has “existing and prospective contractual relationships with patients and their families,” (2) “Defendant has a responsibility to its patients and Plaintiff to truthfully provide the patients who were treated by Plaintiff with the options available to them for ongoing care,” and (3) “Defendant has engaged in intentional conduct to prevent Plaintiff from receiving contract services from his former patients.” [ECF No. 52 at 17-18 (citing ECF Nos. 9-15)].
In support of this claim, Plaintiff has submitted letters from former patient's parents,with (1) one stating her payments from her insurance company were paid to Defendant when they should have gone to Plaintiff, (2) at some unknown time one was sexually harassed by the “front end secretary,” (3) one was informed by Jones that she “could not see Dr. Holt anymore that [she] had to see in house one of their psychologists . . . to be a patient there,” (4) “The RHS pediatric staff made negative, disparaging comments about Dr. Joe Holt ss a professional,” and (5) one family was informed they could not be seen by the practice without using their counselors, the same family that Plaintiff alleges Defendant called DSS on. See id.
The undersigned notes that some of these letters are inadmissible where the documents are neither notarized, nor signed under the penalty of perjury. See Fed.R.Civ.P. 56(c)(1)(A) (permitting either “affidavits” or “declarations”); 28 U.S.C. § 1746 (a litigant may rely on an “unsworn declaration, certificate, verification, or statement” if it is subscribed as true under penalty of perjury).
At the least, Plaintiff has failed to identify the terms of the contract at issue that were allegedly breached, how those terms were breached, how those terms were intentionally breached by Defendant, and the damage that occurred. See e.g., Eldeco, Inc. v. Charleston Cty. Sch. Dist., 642 S.E.2d 726, 732 (S.C. 2007) (“An essential element to the cause of action for tortious interference with contractual relations requires the intentional procurement of the contract's breach. Where there is no breach of the contract, there can be no recovery.”) (citations omitted)).
Likewise, Plaintiff cannot establish a claim for tortious interference with prospective contractual relations under South Carolina law where he has provided no evidence that Defendant intentionally interfered with his potential contractual relations for an improper purpose or by improper methods causing injury to him. See, e.g., BCD LLC v. BMW Mfg. Co., LLC, 360 Fed.Appx. 428, 436 (4th Cir. 2010).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to this claim.
d. Negligence
To maintain an action for negligence, “a plaintiff must show: (1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached that duty by a negligent act or omission; (3) the defendant's breach was the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or damages.” Roddey v. Wal-Mart Stores E., LP, 784 S.E.2d 670, 675 (S.C. 2016) (citation omitted).
Plaintiff argues that after he was terminated, BlueCross BlueShield sent checks to Defendant that should have been sent to Plaintiff and that “Defendant retained money from services he provided, after termination, for an extended period of time,” although it appears that the funds have now been provided to Plaintiff. [ECF No. 52 at 19, ECF No. 48-2 at 36:10-44:20, 48:4-9, 59:5-9].
Plaintiff appears to argue that Defendant retained his money in violation of its own policy [ECF No. 52 at 10-11], but Plaintiff offers only the following policy from Defendant: “Payments received for patient accounts through the mail will be properly reported and safeguarded by deposit with 24 hours of receipts.” [ECF No. 52-27].
Plaintiff has failed to cite, nor is the court aware, of a plaintiff who has maintained a claim for negligent retention of property under these circumstances, particularly where Plaintiff testified that it is common for payments to go to an institution six months to a year after an employee leaves an institution and starts providing services elsewhere [ECF No. 48-2 38:15-22], and where Plaintiff has provided no evidence that Defendant knew the monies were owed solely to him or the existence of any injury.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's claim for negligence.
e. Conversion
Under South Carolina law, a plaintiff asserting the tort of conversion must show that the defendant, without authorization, assumed and exercised the right of ownership over goods or personal chattels belonging to another to the exclusion of the plaintiff's rights. Moore v. Weinberg, 681 S.E.2d 875, 878 (S.C. 2009) (citing SSI Med. Servs., Inc. v. Cox, 392 S.E.2d 789, 792 (S.C. 1990)). The plaintiff must establish either title to or right to the possession of the personal property. Moseley v. Oswald, 656 S.E.2d 380, 382 (S.C. 2008) (citing Crane v. Citicorp Nat'l Servs., Inc., 437 S.E.2d 50, 52 (S.C. 1993)). Money may be the subject of a conversion claim if the money is capable of being identified. Moore, 681 S.E.2d at 878. If the conversion of money is not secured illegally, tortiously, by fraud, or other wrongful conduct, a plaintiff must demonstrate that he made a demand for its return which was refused. See City of Charleston, SC v. Hotels.com, LP, 520 F.Supp.2d 757, 772 (D.S.C. 2007); Mackela v. Bentley, 614 S.E.2d 648, 650 (S.C. Ct. App. 2005).
Plaintiff argues he “is aware of Defendant retaining at least $2,800 owed to Plaintiff.” [ECF No. 52 at 20 (citing ECF No. 51-8)]. However, the documents Plaintiff cites in support do not appear to constitute a sum demonstrating $2,800. See id. Additionally, Plaintiff has provided no evidence showing that Defendant refused a demand for the return of his funds to establish a conversion claim. Instead, Plaintiff testified that the occurrences of delayed payment were due to BlueCross BlueShield sending the money to Defendant instead of to him and that he is “having to talk” to BlueCross BlueShield to resolve the issue of those funds. [ECF No. 48-2 at 60:12-61:9].
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's claim for conversion.
4. Motion to Seal
Local Civ. Rule 5.03 (D.S.C) provides that a party seeking to file documents under seal shall “file and serve a ‘Motion to Seal' accompanied by a memorandum” that must:
(1) identify, with specificity, the documents or portions thereof for which sealing is requested; (2) state the reasons why sealing is necessary; (3) explain (for each document or group of documents) why less drastic alternatives to sealing will not afford adequate protection; and (4) address the factors governing sealing of documents reflected in controlling case law.
The public's common law right to inspect judicial records and documents is not absolute and the district court may, in its discretion, seal documents if the public's right of access is outweighed by competing interests. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978). In deciding whether to exercise such discretion, the court may consider “whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public's understanding of an important historical event; and whether the public has already had access to the information contained in the records.” In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984) (“In re Knight factors”).
By contrast, once documents that are produced in discovery are “made part of a dispositive motion, they [have] lost their status as being ‘raw fruits of discovery.'” Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004) (citation omitted). The “more rigorous First Amendment standard [applies] to documents filed in connection with a summary judgment motion in a civil case.” Id. (citation omitted); see also Hill Holiday Connors Cosmopulos, Inc. v. Greenfield, C/A No. 6:08-03980-GRA, 2010 WL 890067, at *4 (D.S.C. Mar. 8, 2010) (denying motion to seal summary judgment memorandum and exhibits).
Under this First Amendment standard, the movant must demonstrate that the denial of access is necessitated by a compelling government interest or non-governmental interest that implicates similar “higher values.” PressEnter. Co. v. Super Ct. of Cal. For the Cnty. of Riverside, 464 U.S. 501, 510 (1984). “The burden to overcome a First Amendment right of access rests on the party seeking to restrict access, and that party must present specific reasons in support of its position.” Va. Dep't of State Police, 386 F.3d at 575. The court must determine that sealing would constitute a “narrowly tailored” solution designed “to serve that interest.” Press-Enter. Co., 464 U.S. at 510.
Plaintiff has filed a motion to seal documents, arguing
Plaintiff provides confidential therapy services to pediatric patients. The documents and video Plaintiffs seeks to file under seal contain confidential information about third parties, including minors and the parents of minor patients of Plaintiff. Plaintiff makes this request that such Exhibits be filed and reviewed in camera for the protection of third parties' confidential information.[ECF No. 51-1 at 2].
This court's electronic case filing policies and procedures 13.4.3 provides that “medical records, treatment records, or diagnoses . . . must be afforded maximum protection from public dissemination” and “[a] document containing this information shall be filed electronically in a redacted version with all the protected information removed or be presented for ‘in camera review with a motion to seal.” (emphasis in original).
Plaintiff provides the following list of documents he seeks to seal:
Exhibit 29 - 2020-5-29 Holt Report to RHS Leadership
Exhibit 30 - 2020-7-20 Interview with Patient's Mother
Exhibit 31 - Metadata of . . . Interview with Patient's Mother
Exhibit 32 - BCBS Check and Insurance Documents
Exhibit 33 - Documents Supporting Conversion - BCBS Records
Exhibit 34 - Statement of MFOG
Exhibit 35 - Statement of TR
Exhibit 36 - Statement of KS
Exhibit 37 - Statement of KB
Exhibit 38 - Statement of Father
Exhibit 39 - Statement of CB
Exhibit 40 - Texts re DSS Matter
The undersigned undertook an in camera review of the documents that
Plaintiff seeks to seal and notes the names of minor patients and their family members, as well as other identifying information, appears in relevant documents. The undersigned also notes Plaintiff's efforts to narrowly-tailor his request to seal documents where he has filed separately on the public docket evidence not containing this type of sensitive information.
Notwithstanding, Plaintiff's motion to seal these documents is denied in part. Although “Courts have recognized that an interest in protecting the physical and psychological well-being of individuals related to the litigation, including family members and particularly minors, may justify restricting access,” United States v. Harris, 890 F.3d 480, 492 (4th Cir. 2018) (citation omitted)), as also recognized by Plaintiff, the Fourth Circuit has directed that for a district court to seal court documents, the court must (1) provide public notice of the request to seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents, and (3) provide specific reasons and factual findings supporting its decision to seal the documents and for rejecting the alternatives. See Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000); In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984).
Plaintiff has failed to meet the high standard required for sealing and has failed to rebut the presumption in favor of public access, having offered limited reason to seal all of the documents and no reason why the documents containing the confidential information of minors and the parents of minors could not be redacted, particularly in that most of the documents do not discuss any type of treatment and instead concern scheduling and payment issues.
Plaintiff's motion is granted as to the following, where redaction is not an option or would be excessive given the amount redaction needed: Exhibit 29, but only as to the two scheduling attachments found at the end of the exhibit,Exhibit 30, Exhibit 31. As to the remaining exhibits, Plaintiff is directed to redact all names and other identifying information of patients and patients' family members and file the documents on the public docket, retaining the same exhibit titles as provided above for ease of reference.
Within Exhibit 29, Plaintiff refers to these two “attached . . . documents” as follows: Note the schedule on the 5/22 shows two appts schedule and not by me” and “schedule notes on who cancelled the appt.” These documents need not be filed on the public docket. However, the remainder of Exhibit 29 can be redacted and filed publicly.
To the extent necessary, Plaintiff is also directed to redact any sensitive financial information or identifiers about himself these documents may contain.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies in part Plaintiff's motions to seal [ECF No. 51] and recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 48]. Plaintiff is directed to file on the public docket reacted versions, as discussed above, of the following documents, as found at ECF No. 51: Exhibit 29 (except the scheduling attachments as discussed above) and Exhibits 32-40.
IT IS SO ORDERED AND RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”