Opinion
C. A. 3:20-4387-MGL-SVH
01-06-2022
James Larry Lynch, Plaintiff, v. Sumter County Disabilities and Special Needs Board, Inc., Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
In this case, a white employee sues his former employer, alleging that a black coworker was paid more than he, that he was retaliated against for complaining about it, that he was subject to discrimination following a work-related knee injury, and that he was not properly informed about his rights concerning leave following the injury, all of which led to his wrongful termination.
James Larry Lynch (“Plaintiff”) originally filed this case in the Court of Common Pleas for Sumter County, South Carolina (“state court”), against his former employer, Sumter County Disabilities and Special Needs Board, Inc. (“Defendant” or “SCDSNB”). Defendant removed this case from state court on December 18, 2020.
Plaintiff brings the following 10 causes of action against Defendant: (1) wrongful termination based on race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) wrongful termination based on race in violation of 42 U.S.C. § 1981; (3) disparate pay based on race in violation of Title VII; (4) disparate pay based on race in violation of 42 U.S.C. § 1981; (5) disability discrimination, failure to accommodate, and failure to engage in the interactive process in violation of the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq. (“ADA”); (6) wrongful termination in violation of the ADA; (7) interference with applicable rights in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA “); (8) termination in violation of the FMLA; (9) retaliation in violation of Title VII; and (10) retaliation in violation of 42 U.S.C. § 1981.
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. 22]. The motion has been fully briefed [ECF Nos. 25, 28] and is ripe for disposition.
Plaintiff argues in briefing that “Defendant has not moved for summary judgment on Mr. Lynch's FMLA interference claim.” [ECF No. 25 at 2 n.1]. However, Defendant states it “has moved for Summary Judgment with regard to each and every allegation of the Complaint” [ECF No. 22-1 at 1], discusses facts relevant to this claim, and specifically requests dismissal of Plaintiff's seventh cause of action, Plaintiff's FMLA interference claim. See id. at 18.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion.
I. Factual and Procedural Background
A. Allegations Concerning Disparate Pay
Defendant is a non-profit agency serving persons in Sumter County with developmental disabilities, autism, head and spinal cord injuries, and related lifelong disabilities. [See ECF No. 22-1 at 1]. It oversees and operates 22 houses and an apartment building with 12 individual units. [ECF No. 2224 at 42:12-16].
Defendant hired Plaintiff in November 1999 as a maintenance assistant. [ECF No. 1-1 ¶ 7; ECF No. 4 ¶ 1]. In October 2015, then-executive director Thoyd Warren (“Warren”) hired a new maintenance assistant named Johnny Stone (“Stone”). [See ECF No. 25-6 at 19:21-20:2; ECF No. 25-2 at 62:1-20; ECF No. 22-20 at 2].
Warren was employed by Defendant from June 2015 to April 2018. [ECF No. 25-25].
About a month after he was hired, Stone, who is black, accidentally left his pay stub in Plaintiff's truck, and Plaintiff discovered that Defendant was paying Stone $15.50 per hour compared to paying Plaintiff $11.69, or $3.81 per hour less than Stone. [ECF No. 25-2 at 62:17-23]. Plaintiff approached Warren with a complaint about the pay disparity shortly thereafter. [See ECF No. 25-4 at 33:3-14].
Warren, who had also been recently hired, testified as to hiring Stone as follows:
A: When I came to Sumter, maintenance was an issue, up keep of homes, from the board during my interview, and once I got there received complaints from family members. And the job was already posted when I got there, and so we interviewed candidates, and we hired someone. Even spoke with [Plaintiff] about it, and Larry was adamant about needing someone who can do work, who could get out and help. And so Johnnie was a candidate who had a lot of experience, and we hired him.
Q: And what was Johnnie's performance like after he was hired?
A: He was a good employee. Staff was happy because he was fixing, working in maintenance well, was getting along with people. We didn't have to use a lot of contractors. So he was skilled in HUD processes and all those things that we needed.
Q: And he was experienced with HUD inspection?
A: Yes.
Q: And that was part of the reason why he was being brought in at a higher pay rate than Larry?
A: His experience, yes.
Q: And what made his experience different than the 15 years that Larry had with agency?
A: Well, he had worked at a HUD agency as a maintenance guy, he was someone who can actually do a lot of maintenance and repairs himself, not contracting out on jobs, had a proven
track record, great references, and all of that went into his rate of pay ....
A: When we hired the position, I did not-I don't-for my recollections, I don't even remember what Larry was making. My goal was to hire someone to come into-that didn't need a lot of training, who knew what we needed, who could perform the duties, and to get those houses up to par.
[ECF No. 25-6 at 16:22-18:3, 19:21-20:2; see also id. at 27:4-9 (“In my opinion, I think Johnny's qualifications were definitely higher than Larry's”); ECF No. 25-5 at 111:3-6 (HR director Sandra Strange (“Strange”) testifying that “[t]he only knowledge I have as far as on the rate of the pay is that he was hired at a different rate due to his qualifications for his job. He had HUD experience and REAC experience through HUD.”)].
Warren also testified Stone's salary was set at $15.50 because that was the amount set for the position by the finance department when the position was listed. [ECF No. 25-6 at 18:25-19:16]. Warren further testified that the funds were already allocated for the position when Warren was hired, and “so when we interviewed, they told me what was allocated for the position, and that's what we paid.” Id. at 18:25-19:6.
Facilities manager Eldridge Herrin (“Herrin”) was hired after Stone was hired and was Plaintiff and Stone's direct supervisor. [ECF No. 25-1 at 12:11-13, 42:1-8]. He testified he was in the best position to know their qualifications and ability to perform the essential functions of the job. Id. at 5 12:6-10.
In contrast to Warren's testimony, he testified that Plaintiff had a greater level of experience and ability for the maintenance assistant position. Id. at 45:9-13. More specifically, he testified that:
• For about 5 years Plaintiff was the only employee in the maintenance department and was solely responsible for the 22 houses, 12 apartments, and 3 buildings that the agency owned. Id. at 39:5-21.
• Plaintiff, not Stone, conducted the HUD inspections. Id. at 40:17-41:12.
• Because of his knowledge and experience and long relationship with the Fire Department, Plaintiff, not Stone, handled the fire inspections. Id. at 39:25-40:16.
• Plaintiff knew how to conduct the monthly fire alarm inspections and trained Stone. Id. at 43:1-18.
• Plaintiff had more experience in carpentry. Id. at 41:15-17.
• Plaintiff had more experience in repairing washer/dryers. Id. at 42:15-17.
• Plaintiff was more “nimble” and handled the work that required going in attic or crawl space. Id. at 42:18-25.
• Plaintiff had longstanding and close relationships with the contractors and vendors in the community, which was very important to the work of the facilities department. Id. at 43:3-45:1.
• Other than changing filters and thermostats, HVAC repairs were outsourced and not part of the maintenance assistant job duties, so Stone's alleged HVAC experience was irrelevant. Id. at 31:16-32:18.
• Herrin could not think of any area in which Stone had more ability that Plaintiff. Id. at 43:19-24.
Plaintiff has submitted a document entitled “declaration” from projects manager Anthony Mayfield (“Mayfield”) stating he also thought that Plaintiff was more qualified than Stone and stating under penalty of perjury the declaration to be true and correct. [ECF No. 25-7]. Defendant argues “[r]eferences to Mr. Mayfield's declaration should be discounted as this was not a witnessed document let alone a sworn testimony.” [ECF No. 28 at 2]. However, an unsworn statement is admissible at the summary judgment stage if the witness certifies that the unsworn statement is “true under penalty of perjury.” 28 U.S.C. § 1746; Network Computing Servs. Corp. v. Cisco Sys., Inc., 152 Fed.Appx. 317, 321 (4th Cir. 2005); Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993).
Warren testified that when Plaintiff raised concerns about the disparate pay between him and Stone, he made no formal investigation into the complaint and took no action to correct the issue beyond speaking with Mayfield. [ECF No. 25-6 at 36:5-23]. Warren testified he told Plaintiff's supervisor Mayfield that “if he felt Larry needed an increase on his duties as far as pay is concerned to put in for an increase for Larry.” Id. at 41:24-25. However, Mayfield has submitted a declaration stating he was not Plaintiff's supervisor at the time and that this alleged conversation with Warren did not occur. [ECF No. 25-7].
As to the budget, Warren testified that there was money in the bank that was not allocated, although it was “not reoccurring dollars, that's for reserves.” [ECF No. 25-6 at 39:20-25]. Also, in 2016, Warren “brought back” a quality assurance position that had been frozen, a position that paid may have paid roughly $50,000.00, and was given to a black female, Joyce Jackson, although the record is unclear how the budget allocated the money for this position. [ECF No. 25-2 at 82:14-85:25; ECF No. 25-8].
On April 10, 2016, multiple months after Warren and Plaintiff's conversation, Plaintiff filed a EEOC charge alleging discriminatory pay disparity. [ECF No. 22-2].
Shawn Keith (“Keith”) was hired in February 2018 and replaced Warren as executive director at some point thereafter. [ECF No. 25-3 at 76:325]. Warren informed Keith as to Plaintiff's pay disparity concerns shortly after Keith was first hired. Id.
At some point after Keith became the executive director, Herrin sought performance-based salary increases for those in his department and “was informed of the pay scale between Larry and Johnny, which was shocking to [him].” [ECF No. 25-1 at 30:4-31:1]. Herrin testified that when he learned about Plaintiff's pay issue, he immediately asked finance director Robin Hickman (“Hickman”), Strange, and Keith to bring Plaintiff's pay up to the level of Stone's or higher. He explained why the disparity in pay was unfair, but his request was denied. Id. at 32:19-34:17; 102:9-103:11. Keith told him “[t]hat wasn't going to happen.” Id. at 35:18-21. The response was “completely immediate,” and Keith did not look at the budget before rejecting the request. See id. at 36:13-22. Keith testified that he “looked at the budget regularly to see if any and all employees could have received a raise.” [ECF No. 25-3 at 103:20-21]. Herrin testified that Strange, Hickman, and Keith told him no “because it was not in the budget to raise” either Plaintiff's or other maintenance workers' pay. [ECF No. 25-1 at 33:12-24].
Although Herrin testified he thought he inquired about salary increases in early 2019 [ECF No. 25-1 at 30:4-31:1], this assertion is inaccurate in that Plaintiff's employment was terminated on December 31, 2018.
Herrin also testified that at this time, other staff members outside of the maintenance department received raises, but stated those raises were provided from sources separate from the sources that funded the maintenance department. [ECF No. 25-1 at 33:24-34:8, ECF No. 28-4 at 75:11-77:16].
Hickman testified she could not remember if Warren or Keith consulted with her about whether there was room in the budget to give Plaintiff a raise. [ECF No. 25-2 at 63:19-65:5]. She testified that if the executive director had wanted to raise Plaintiff's pay, he could “look at the big picture” and “determine whether or not he felt like that was something the board could do.” Id. at 51:16-52:15.
Plaintiff has submitted Defendant's pay equity policy that states Defendant “is committed to maintaining fair and equitable compensation for its employees” and “will strive to offer and maintain competitive salaries and recognize outstanding job performance by employees who consistently contribute to the successful accomplishment of the agency's mission.” [ECF No. 25-9]. Defendant also has a policy stating:
Internal equity must be taken into consideration. Salaries and qualifications of current employees in the same level of position within the class should be considered to ensure that new employees with lesser qualifications are not hired with a salary greater than current employees (unless other factors offset this problem). This difference could create morale problems and cause turnover.
a. consider agency average salary.
b. consider the salaries of others in similar positions.
Plaintiff references deposition testimony from Chairman John Watkins (“Watkins”) in support of his allegations concerning disparate pay. [See, e.g., ECF No. 25 at 5]. However, no deposition testimony from Watkins has been submitted to the court.
B. Allegations Concerning Plaintiff's Injury
On October 2, 2018, FastER Care provided Plaintiff with a work excuse “from . . . 10/2, 10/3, 10/4 2018” due to any injury sustained to his right knee.
[ECF No. 22-12]. This excuse further states “seated work only until MRI.” Id.
The next day, Strange addressed a letter to Plaintiff dated October 3, 2018, stating in relevant part as follows:
The medically excused absence that I was made aware of beginning October 2, 2018 for a serious health condition that may qualify for job-protected leave under the Family and Medical Leave Act. I am enclosing a Notice of Eligibility and Right & Responsibilities, and well as an FMLA Fact Sheet for your
information. I have provided you with a Family and Medical Leave Designation Form in response to your request for leave, which explains your responsibilities and ours.
As of the September 28, 2018 pay date, you appear to have 766.44 sick leave hours and 297.02 annual leave hours available. Please know that while in FMLA status, you do not accrue sick and/or annual leave. Should your accrued leave run out while you are in FMLA status, you will be placed in a leave-without-pay status. At that time, you would be responsible for paying the premiums for your benefits and all other deductions you have authorized.
Please be aware that it is your responsibility to submit time sheets and leave forms, indicating any time that is being used for FMLA, to your supervisor or arrange for your supervisor to submit them to the Payroll Office for you.
[ECF No. 22-21 at 1]. Included in the attached notice of eligibility and rights and responsibilities form, Plaintiff was informed he met the eligibility requirements for taking FMLA leave, but was further instructed that “in order for us to determine whether your absence qualifies as FMLA leave,” he must return sufficient certification to Defendant by October 19, 2018. Id. at 8. The form also provides that Plaintiff had “a right under the FMLA for up to 12 weeks of unpaid leave in a 12-month period calculated as “a ‘rolling' 12-month period measured backward from the date of any FMLA leave usage.” Id. at 9.
Strange testified that Plaintiff met with her around the time that he hurt himself. [ECF No. 25-5 at 24:7-25:2]. She informed Plaintiff “who to contact to be able to get his injuries as far as, you know, looked at, and then I also sent him out FMLA documents” referenced above. Id. at 25:3-8. She also informed Plaintiff that she was waiting for him to bring her the documents from his worker's compensation claim. Id. at 157:16-24. Strange testified that she explained to Plaintiff in person as to the necessary timeline for his return from FMLA, but did not provide him with a FMLA designation notice, which would have identified start and end dates for Plaintiff's FMLA, because she “had not received documentation on the health certification.” [ECF No. 28-3 at 83:14-86:10].
Plaintiff testified he never received the October 3, 2018 letter, even though it was addressed correctly to him, never requested to be on FMLA leave, was never told that he was on FMLA leave, and believed his leave was worker's compensation leave. [See ECF No. 22-27 at 60:6-61:2, 90:12-91:6].
Strange testified that Plaintiff's medical records went to a third party that managed Plaintiff's worker's compensation claim for Defendant, the State Accident Fund, and Defendant received periodic emails from a nurse, but not all documentation. [ECF No. 25-5 at 157:6-9; 160:9-17]. “In the beginning” of the process, Plaintiff contacted Strange and informed her that “the Workers' Comp case manager was dragging her feet in getting him treatment,” requesting assistance. Id. at 107:19-25.
On October 15, 2018, Plaintiff had a MRI “showing a focal full thickness articular cartilage defect off the MFC, and an 8 mm loose body in the medial gutter.” [ECF No. 25-12 at 1]. Medical records dated December 18, 2018, provide in part as follows:
The patient is a 64 year old right hand dominant Caucasian/White male . . . seen in referral at the request of patient's Workers Compensation nurse case manager, who presents with a history of intermittent moderate, aching right knee pain. His pain location is usually over the medial knee and under the knee cap. He can sometimes have radiating pain, and giving away sensations. Positive theater sign, and recurrent night awakening. He feels he has some limited active knee ROM with the pain. He reports pain and difficulties when going up and down steps and stairs, having to take one step at a time while holding onto the hand rail. He has positive start up pain and difficulties when arising from a seated or supine position, and states his knee sometimes swells when he walks. The patient works for the Sumter County Disability Board in maintenance for 222 homes, and his job includes climbing ladders, bending, squatting, and carrying heavy objects. His symptoms started 2.5 months after he stepped off of a step at work and his right knee gave away. He had immediate pain and swelling. The patient doesn't remember a pop and had to limp when he walked. No recalled frank locking symptoms. He denies knee problems prior to that recent injury .... He was seen at Fast ER Care the day after his right knee injury and has been out of work since ....
The patient was advised of his right knee x-ray findings. The nature of his right knee maladies and their potential treatment spectrums were discussed with the patient in detail today. This includes both non operative and operative treatment options .... Today the patient elects to pursue nonoperative treatment options ....The patient was given updated work excuse today, a copy of which was faxed to the patient's WC Case Manager.Id. at 1, 3.
The referenced return-to-work recommendation, dated December 18, 2018, states Plaintiff injured himself on October 2, 2018, that he was restricted to “light duty desk type of work,” further providing “pt may return to work if light duty is available.” [ECF No. 22-22].
Plaintiff testified that he had knee surgery around this time, in December 2018 [ECF No. 25-4 at 51:9-14]; however, medical records indicate that he did not have knee surgery until February 13, 2019. [See ECF No. 25-12 at 8].
During this time, Herrin was never told that Plaintiff was being put on FMLA. [ECF No. 25-1 at 54:7-12]. However, he knew that Plaintiff might need knee surgery and that he would need leave for recuperation. Id. at 54:13-19. He did not want Plaintiff to use up whatever leave he had before surgery, especially when there was necessary work in the department that Plaintiff could be doing despite his knee. Id. at 54:13-56:5. He testified he knew that Plaintiff wanted to work. Id. at 57:2-6. Herrin went to HR with a list of tasks that needed to be done in the maintenance department, that Plaintiff could do despite his knee injury, “[d]esk work and some driving.” Id. at 48:10-49:4.
Strange's response was there is “no light duty” in the maintenance department. Id. at 49:14-50:2. Herrin testified he was frustrated that Defendant would not let Plaintiff work because his department was “falling behind.” Id. at 55:15-20. He thought “it was personal vendetta” against Plaintiff. Id. at 49:24-50:7.
Around this time, Keith testified that Defendant accommodated two other employees, including Rochelle Lynch (“Rochelle”), who was not in the maintenance department, by assigning her maintenance department responsibilities of inspecting houses and apartments and writing work orders in preparation for inspections-activities Herring proposed to Strange for Plaintiff to handle. [ECF No. 25-3 at 15:1-23; ECF No. 25-1 at 48:4-19]. Strange testified, in contrast to Keith's testimony, that Rochelle was not inspecting house, but was “inspecting medication,” “buying groceries,” and performing “the same duties that she would do if she was doing her regular job minus not being able to work with the individuals.” [ECF No. 25-5 at 138:1-20]. Although the record is not clear as to Rochelle's duties and part of Plaintiff's deposition was not submitted to the court, at one point, Plaintiff testified as follows concerning Rochelle:
Q. ....was allowed to do light duty inspecting rooms.
A. Yes.
Q. Okay. At that time, with you knee the way it was, was there any reason that you couldn't have done the same work that Ms. Lynch was doing?
A. No, I couldn't have done that.[ECF No. 25-4 at 118:1-6].
Herrin also spoke with Keith about his light work suggestions for Plaintiff; Keith he was “cold and callous[],” and stated “[a]s soon as his Worker's Compensation ends, we're going to phase Larry out.” [ECF No. 25-1 at 50:8-51:7]. Strange told Herrin that Plaintiff would be separated when his “Worker's compensation time is exhausted.” Id. at 51:8-16. Both Keith and Strange stated “it's best that we separate Larry from the company.” Id. at 51:24-25.
Strange testified that towards the end of Plaintiff's FMLA leave, Defendant looked into the possibility of an ADA accommodation. [ECF No. 25-5 at 38:12-22]. She claimed she discussed the possibility of accommodation with Keith. Id. at 53:10-24. Following that conversation, but before December 31, 2018, there was a conversation about accommodation among Strange, Keith, and Defendant's attorney, Arthur Justice. Id. at 53:654:13. Strange testified that they were waiting for the “results of [Plaintiff's] medical,” to provide “[a]ny indication of if he was going to be able to return and what restrictions he was going to have.” Id. at 54:14-21.
On December 31, 2018, Defendant addressed a letter to Plaintiff stating “[t]he FMLA leave that you were approved for expired on December 30, 2018,” and “[d]ue to the need of the agency your position will need to be filled; therefore you are being released” from employment “effective December 31, 2018.” [ECF No. 22-13]. The letter further provides “[b]y being released you are eligible for rehire with a doctor's released to work without restrictions statements.” Id.
On January 7, 2019, Plaintiff's return-to-work recommendation was modified to state he was restricted from ladders and climbing. [See ECF No. 22-4 at 7]. Additionally, “desk type of work” is crossed out although “light duty,” found on the same line, is not crossed out, and the recommendation that was previously listed, stating “pt may return to work if light duty is available,” is also not crossed out. Id.
Although the above modified release-for-work indicates Plaintiff was still limited to light duty, Plaintiff's attorney argues otherwise, stating in briefing that Plaintiff “did not require leave at all-he was able to work.” [ECF No. 25 at 32; Id. at 23-24 (“Had SCDSNB engaged in the good faith interactive process, Mr. Lynch would have bad the opportunity to show the precise limitations of his disability-i.e., he was not limited to desk work.”); see also ECF No. 22-4 at 3 (“On January 7, 2019 Mr. Lynch returned to his doctor. She gave him a release stating that he could return to work with a ladder and climbing restriction.”); ECF No. 25-17 at 1 (“on January 7, 2019, Dr. Storey removed the desk work restriction and released him with only a restriction on using ladders or climbing”); Id. at 4 (“Mr. Lynch was physically able to return to work on December 30th”)]. However, the only record evidence before the court is the above modified release-for-work and Plaintiff's testimony that following his knee surgery, he “just couldn't climb ladders,” although he testified his knee surgery occurred earlier than it did and he therefore informed Strange of this earlier than he could have. [ECF No. 25-4 at 50:17-52:5; see also id. at 118:3-6 (Plaintiff testifying he could not do the work Rochelle was doing “with [his] knee the way it was”)]. Additionally, the modified return-to-work recommendation was characterized in Plaintiff's deposition as “the one where the desk duty had been removed.” [ECF No. 25-4 at 118:13-119:3; see also ECF No. 22-27 at 61:1-7 (Plaintiff testifying that he asked about “light duty” at the meeting where he provided the modified return-to-work recommendation)].
Plaintiff testified that he never received the December 31, 2018 letter by mail, in that when he tried to pick up the letter at the post office, they did not have it, so he went into work and Strange gave him a copy. [ECF No. 25-4 at 60:10-21]. Strange, Keith, and Plaintiff had the following conversation:
I asked her how-how was I on-on F.M.L.A. when I was on Workers' Comp. Shawn Keith had came in. He came in and- well, she called him in. And I-I asked about the-about the light duty and all. I don't remember what all was said, but they said, you know, my F.M.L.A. ran out.
[ECF No. 22-27 at 61:1-7]. Plaintiff also testified that during this meeting, he tried to give Strange the January 7, 2019 modified work recommendation, but she refused it. [ECF No. 25-4 at 51:12-52:12].
In addition to the above testimony concerning this meeting, Plaintiff later testified that he, Strange, and Keith did not discuss that he was “only released to light-duty work,” and only his FMLA status was discussed; however, Plaintiff also testified this meeting was the only meeting besides his initial meeting with Strange. [See ECF No. 22-27 at 61:1-62:25].
Keith testified as follows:
Q: If the board-you know, we mentioned Larry's 19 years of service to the board, and the knee injury was a temporary restriction. If the board wanted to keep Larry employed, what options were there?
A: I think the only options would have been being able to accommodate the light duty.
Q: Could-could he have been given-if he had-well, Larry did have some either sick-sick days or annual leave or both at the time that he was terminated. Could Larry have been allowed to use that time to remain employed?
A: In fact, that probably would-could have been an option.
[ECF No. 25-3 at 63:3-16]. Keith also testified that although “there was precedent to give some extension after FMLA is used up, .... We absolutely had to fill that position. The agency has . . . 23 different locations . . . So you had Johnny, and you had a director. And that's all the maintenance that we had for all of those locations.” [ECF No. 22-24 at 42:3-21].
Strange testified that when an employee exhausts FMLA leave, it is Defendant's policy to consider additional leave as an ADA accommodation. [ECF No. 25-5 at 98:23-99:13; see also id. at 99:23-25 (Strange testifying that “[w]e have accommodated, but they have also provided us information on how long they would be out”); ECF No. 25-14 (list provided by Plaintiff indicating five employees received additional leave, ranging from 2 to 50 days, prior to either returning to or being released from employment)].
When asked about Defendant's ADA policy and procedure manual, Strange testified as follows:
Q: It says, upon re1ceipt of a request for an accommodation, the human resources director and the immediate supervisor will meet with the employee to discuss and identify the precise limitations resulting from a disability and potential accommodations that the agency might make to help overcome
those limitations .... Did this ever happen in Larry Lynch's case?
A: No, sir.
Q: Okay. Why not?
A: It hasn't been in practice.
[ECF No. 25-5 at 42:19-44:8; see also ECF No. 25-15]. Strange testified that he could not be given extended leave because Defendant needed to fill the position because of the needs of the agency. [ECF No. 25-5 at 92:6-15].
On January 10 and 18, 2019, Plaintiff, through counsel, requested reinstatement of his employment without conditions attached. [ECF No. 25 17]. Defendant refused the requests for reinstatement. [ECF No. 25-18]. Internally, there was no discussion about the possibility of accommodating Plaintiff so he could return to work. [ECF No. 25-3 at 92:1-6].
Medical records dated January 23, 2019, provide in part as follows:
The nature of the patient's potential right knee maladies and their potential treatment spectrum were again discussed and reviewed .... The patient wishes to continue non operative measures . . . and continuing PT rehab protocol, as he feels he is showing improvement with this rehab regimen .... If on RTO the patient's symptoms are not adequately resolved, and he still wishes to avoid invasive treatment measures, . . . then this practice would have nothing further to offer regarding any further treatment. The patient was given an updated work status recommendation form today, a copy which was faxed to the patient's WC Case Manager.[ECF No. 25-12 at 4].
The referenced updated work status recommendation form does not appear in the record.
Medical records dated February 12, 2019, state Plaintiff “now feels his right knee symptoms are unacceptably interfering with his quality of life, and he now desires the possibility or more long-term definitive relief via surgical measures.” Id. at 7. The surgery was performed on February 13, 2019. Id. at 8. Medical records dated July 24, 2019, state “no further treatment or intervention is indicated at this time, and no routine follow up visits will be scheduled. The patient can proceed with desired routine activities ad lib as tolerated and within the limits imposed by his other chronic medical infirmities.” Id. at 13.
Regarding this medical record, Plaintiff testified that he had knee surgery, was released in July, and was then “okay to go to work at that point.” [ECF No. 22-27 at 89:9-25, 114:16-19]. He then clarified, however, that he did not seek employment at that time because his other “leg was getting worse.” Id. at 114:20-115:8. He further testified:
Q: Sitting here today, do you think that-that you could do the job similar to the one that you had at the Board? ....
A: No .... Because I have a pinched nerve in my back. And below my knee of my left leg. It's numb .... last year I had a surgery on my back to get a cyst off my spine. And they thought that was the problem. But my leg's getting worse ....Id. at 104:5-22.
Plaintiff also testified that from the date of his termination until the date of his deposition, from December 31, 2018, until June 2, 2021, he could not “perform the work” of his job due to his physical limitations; however, he also testified that if he were still employed by Defendant, he would have been able to do his duties as a maintenance assistance if he had been allowed leave for back surgery. [ECF No. 25-4 at 115:9-116:14].
Plaintiff was replaced with a black male, Marvin McLeod (“McLeod”), [ECF No. 25-5 at 136:21-25], who was originally hired as a direct care worker and had no prior experience related to maintenance. [ECF No. 25-19]. His starting pay was $14. [ECF No. 25-20]. On March 30, 2020, McLeod was suspended for 5 days for failing to secure prior approval before taking leave. [ECF No. 25-21].
Following his termination, Plaintiff filed two additional charges against Defendant, alleging retaliation and discrimination, one signed by Plaintiff on February 12, 2019, and one received by the EEOC on June 3, 2019. [See ECF Nos. 22-3, 22-4].
C. Additional Allegations
Herrin testified that while Plaintiff was still employed by Defendant, Keith forbade him and others from contact with Plaintiff and indicated “there would be some type of disciplinary action if we had any contact with Larry while he was out.” [ECF No. 25-1 at 59:23-60:10].
Keith testified he did this because of the FMLA or discrimination “situation” and because Plaintiff had a “possible lawsuit” against Defendant. [ECF No. 25-3 at 82:1-7]. Keith also sent an e-mail to all employees telling them not to have any contact with Plaintiff. Id. at 81:14-23. Keith further testified that this email may have been sent after February 12, 2019, when he learned that Plaintiff allegedly made threats against him, the HR Director, and the Finance Director. Id. at 81:14-23, 100:1-13. Keith testified that because of this threat, and after Plaintiff had been terminated, Keith barred Plaintiff from Defendant's property and stated it would have been difficult to hire Plaintiff, if he had re-applied after knee surgery. Id. at 79:1417, 83:17-85:15.
Hickman also testified that in 2017, Plaintiff failed to properly document a purchase and that this failure could look like Plaintiff was involved in theft, although he was not, and that in 2018 it was an “ongoing struggle” to get Plaintiff to accurately report his time, an issue of fraud. [ECF No. 25-2 at 35:1-39:40:17].
Herrin testified, however, that Plaintiff “has never made a threat to anyone at the board.” [ECF No. 25-1 at 61:13-23]. The threat was investigated by the Sheriff's department, and Plaintiff denied making threats. [ECF No. 25-4 at 100:3-25].
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. Title VII and 42 U.S.C. § 1981 Claims
Plaintiff argues there are three key disputed facts regarding his claims based on race discrimination that preclude grant of summary judgment to Defendant: (1) whether he made a complaint about discriminatory pay, (2) whether his 2016 EEOC charge was the reason for Defendant's refusal to correct his disparate pay, and (3) whether his 2016 EEOC charge was the reason for his termination. [ECF No. 25 at 16].
a. Disparate Pay
Absent evidence of direct discrimination, Plaintiff may use the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove his claims of race discrimination. To make out a prima facie case of wage discrimination, the plaintiff must show: (1) that he is a member of a protected class and (2) that the job he occupied was similar to higher paying jobs occupied by employees outside the protected class. Siraj v. Hermitage in N VA, 51 Fed.Appx. 102, 112-13 (4th Cir. 2002); see also, e.g., Watts v. S.C. Dep't of Corr., C/A No. 3:17-2376-JMC-TER, 2019 WL 2090789, at *3 (D.S.C. Jan. 29, 2019) (“To establish a prima facie case of wage discrimination under Title VII, the plaintiff must show that: (1) she is a member of a protected class; (2) she was paid less than an employee outside the class; and (3) the higher paid employee was performing a substantially similar job.”) (citations omitted), report and recommendation adopted, C/A No. 3:17-02376-JMC, 2019 WL 1122934 (D.S.C. Mar. 11, 2019)).
Title VII and Section 1981 employment discrimination claims are analyzed with the same requirements. See, e.g., Hamada v. Boeing Co., C/A No. 2:19-02777-DCN-MGB, 2021 WL 4398456, at *3 n.1 (D.S.C. Sept. 27, 2021).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for the pay disparity. Siraj, 51 Fed.Appx. at 112-13; Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 557 (D.S.C. 2013). This is merely a burden of production, not of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Once Defendant meets its burden by producing a legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non.” Reeves, 530 U.S. 133, 143 (2000). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendant is not the true reason, but was pretext for discrimination. Id. Throughout the burden-shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff.
Generally, to prove an employer's articulated reason is a pretext for discrimination or retaliation, a plaintiff “must prove ‘both that the reason was false, and that discrimination was the real reason' for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (emphasis in original) (citing St. Mary's, 509 U.S. at 515. However, “a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. Ultimately, to survive summary judgment, a plaintiff must demonstrate “a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016).
Here, even if Plaintiff is deemed to have established a prima facie case of wage discrimination, he has failed to demonstrate a genuine factual dispute on the question of pretext.
The court need not resolve the parties' dispute as to whether Plaintiff has a heightened burden of proof to establish a prima facie case because he is white. [See, e.g., ECF No. 25 at 24-25].
Warren testified that finance was responsible for setting the salary for Stone, the money was already allocated for Stone's position when Warren was hired, and he did not recall what Plaintiff was making during the process of hiring Stone. Although Plaintiff disputes the accuracy of Warren's testimony that Stone was more qualified than Plaintiff and had important experience Defendant needed, Plaintiff has failed to offer any evidence that the reasons offered by Warren were not true or are pretext for discrimination or that Warren's decision involved any discriminatory intent. In short, there is no evidence that Warren did not, in fact, believe the reasons he provided regarding the salary offered to Stone when he was hired.
Likewise, Plaintiff has failed to offer any evidence to support the conclusion that Warren unlawfully discriminated against him in his response to Plaintiff's complaints about the disparate pay issue, where the evidence indicates that, at most, Warren may have been able to increase Plaintiff's pay [see ECF No. 25-2 at 51:1-52:15], but chose not to and believed Stone to have important experience and to be more qualified than Plaintiff. There is no indication from the testimony provided by either Plaintiff or Warren concerning their interaction on this issue that Warren's failure to increase Plaintiff's salary was pretext for discrimination.
As Plaintiff testified:
A: I told him I found out how much Johnnie Stone made and he wanted to know how. And I told him Johnnie dropped his check stub in the truck and a couple of days later I was cleaning the truck out and I seen it. And I didn't think it was fair for the years that I been there and the years that I worked by myself that you hired somebody in paying them a whole lot more money with the same training.
Q: What was Mr. Warren's response?
A: He said he had to pay for the-you have to pay for the workforce that's out there. And I ask him what about the workforce you already have? He didn't have an answer.
*****
Q: Did-did Mr. Warren refuse to talk to you about a-a raise, or he just said he just-he didn't have the money?
A: Well, he didn't have the money and again, that's-you're paid for the workforce that's out there. And I asked about the workforce you already have.
[ECF No. 22-27 at 33:16-34:4, 70:1-7].
Warren testified as follows:
Q: So when did you first hear about Larry's complaint about pay disparity?
A: I couldn't remember the date, but I know Larry came to see me saying that he knew Johnny's salary was higher than his, and I explained to him I couldn't speak to him about anyone else's salary ....
Q: What was your reaction when you learned about Larry's complaint for disparate pay?
A: I spoke to Larry about it, just like I said earlier, told him I couldn't discuss his salary, and I asked Tony [Mayfield] if-to put
in-if he felt like Larry needed an increase on his duties as far as pay is concerned to put in for an increase for Larry.
[ECF No. 25-6 at 16:7-12, 36:5-12].
The court's analysis is not impacted by Plaintiff's evidence that Warren did not speak to Mayfield because Mayfield was not Plaintiff's supervisor at the relevant time, as Plaintiff's evidence does not establish any of Warren's decisions regarding Plaintiff's compensation were related to race.
Additionally, the record repeatedly shows that Plaintiff was not provided a pay increase because of budgetary concerns. [See ECF No. 25-1 at 33:19-36:25 (Herrin testifying that Strange, Hickman, and Keith did not try to increase Plaintiff's pay and that Keith and Hickman both refused to increase Plaintiff's pay because “it was not in the budget to raise his pay or raise their [other maintenance workers] pay”)]. Although Plaintiff has attempted to offer evidence that there was money in the budget for his pay raise, Plaintiff has failed to show the referenced money could have been allocated to his department. [See ECF No. 25 at 6-7].
Plaintiff has submitted evidence that he was paid less than Stone and that he and his supervisor Herrin believed this to be unfair because Plaintiff had worked longer for Defendant and was more qualified. But Defendant has set forth nondiscriminatory reasons for the salary differential that Plaintiff has failed to show are merely pretextual. The record does not contain sufficient evidence to create a genuine issue of fact that the reason Plaintiff and Stone were not paid the same salary is because Plaintiff is white. See, e.g., Riley v Honeywell Tech. Solutions, Inc., 323 Fed.Appx. 276, 277-78 (4th Cir. 2009) (affirming grant of summary judgment as to employee's failure-to-promote and wage claims because plaintiff had not established reasons proffered by employer for failure to promote or regarding difference in wages were pretextual, finding there was “utterly no evidence of racial animus” and distinctions between employees were “adequate to justify” wage differential); Mack v. S.C. Dep't of Transp., C/A No. 3:12-2960-MGL-KDW, 2015 WL 1297836, at *17 (D.S.C. Jan. 28, 2015) (“In order to survive summary judgment, Plaintiff must demonstrate that her race was a motivating factor in determining her salary, even though other factors may also have motivated her wages .... The evidence Plaintiff sets out . . . does not demonstrate that her race was ‘an impermissible reason' for her pay being set where it was.”) (citing Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 317 (4th Cir. 2005)), report and recommendation adopted, C/A No. 3:12-2960-MGL, 2015 WL 1297876 (D.S.C. Mar. 23, 2015).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's discrimination claims based on disparate pay.
b. Wrongful Termination Based on Race
Plaintiff argues that Defendant terminated his employment for discriminatory reasons. To make a prima facie case to support his claim, he must show that (1) he is a member of a protected class; (2) he suffered adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly-qualified applicants outside the protected class. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004). As with Plaintiff's disparate pay claim, if a prima facie case is presented, the burden shifts back to Defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If Defendant does so, the burden shifts back to Plaintiff to prove by the preponderance of the evidence that Defendant's offered reasons are pretext.
Although both parties agree that Plaintiff brings a claim for race-based wrongful termination, the parties have not analyzed this claim separately in briefing.
Plaintiff has submitted evidence that Defendant hired McLeod, who is black, to replace him. Assuming that he is able to establish a prima facie case, Plaintiff has failed to provide any evidence of discriminatory intent on the part of Defendant in either terminating him or hiring McLeod. Although discussed more below in connection with Plaintiff's ADA and FMLA claims, as relevant here, Plaintiff fails to offer any evidence that Defendant's proffered reasons for his termination-that “his FMLA leave had expired and as of that date, the Plaintiff had produced no documentation from his doctor lifting the ‘light duty desk type' restrictions; a job that was not available then or now” [ECF No. 22-1 at 17]-is pretext for race-based discrimination.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's race-based wrongful termination claim.
c. Retaliation Based on Race
Title VII prohibits an employer from retaliating against an employee on the grounds that the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a). To make a prima facie claim of retaliation, a plaintiff must show: (1) that he engaged in protected activity, (2) that the employer took a materially adverse action against him, and (3) there is a causal connection between the protected activity and the adverse action. See Evans, 936 F.3d at 195 (citing Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)). The Fourth Circuit has stated “[a] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004) (citations omitted).
Plaintiff alleges two adverse employment actions: (1) Defendant's refusal to increase his pay after his complaint (2) and his termination. [See ECF No. 25 at 26]. Plaintiff argues “[t]here are two primary decision makers,” Warren, who denied his request for an increase in his pay, and Keith, “who rejected Mr. Herrin's request for an increase in [Plaintiff's] pay and terminated him.” Id. at 27.
As to Warren, although Plaintiff complained to him directly regarding the pay disparity, there is no evidence in record that Plaintiff was complaining of race discrimination or that Warren was aware that Plaintiff filed an EEOC charge regarding disparate pay. As held by the Fourth Circuit, “we have consistently required proof of a decisionmaker's knowledge of protected activity to support a Title VII retaliation claim. To establish a causal relationship between the protected activity and the termination, a plaintiff must show that the decisionmaker was aware of the protected activity at the time the alleged retaliation occurred.” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124 (4th Cir. 2021); see also, e.g., Wright v. Sw. Airlines, 319 Fed.Appx. 232, 234 (4th Cir. 2009) (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)); Baqir v. Principi, 434 F.3d 733, 748 (4th Cir. 2006) (holding that plaintiff's failure to demonstrate that officials were aware of his contact with the EEO counselor or his filing of administrative complaint at the time the alleged retaliation occurred was fatal to a finding of a prima facie case).
Keith testified that when he became the executive director following Warren, Warren told Keith “the situation” that “Larry claimed that Johnny Stone was being paid more than he was.” [See ECF No. 25-3 at 76:8-25]. However, this testimony does not indicate that Warren knew that Plaintiff had complained of discrimination. Warren testified that he never received a formal EEOC complaint concerning Plaintiff while he was employed by Defendant. [See ECF No. 25-6 at 16:13-18].
As to Keith, Plaintiff cites the following testimony of Keith:
Q: Okay. So Larry's [discrimination] charge-his charges are the only charges that you're aware of?
A: Correct
*****
Q: Okay. You started at the board in February of 2018 ....
Did you-and you knew from the history that Larry claimed that Johnny Stone was being paid more than he was?
A: Correct, yes.
Q: In those eight months, did you ever look at the disparity in pay and consider whether or not Larry's pay should be brought up ....
A: I don't recall those-those eight months when we really started looking at salaries across the board for the organization. I believe that's when Larry was on FMLA.
Q: Okay. But you knew . . . Warren told you that the situation right at the beginning when you were first hired. You told us that earlier, right?
A: Yes.
Q: So why did you not those eight months ever look at whether Larry's claims were-were valid and whether his pay should have been brought up to a fair level?
A: Correct me if I'm wrong, but I believe he had that-the discrimination suit was round that-was during that time. So it was not need for me to-to do anything until even that suit was- had concluded to or-I think he had already set out to sue the agency so .... So it was really no need for me to, unless I was instructed, that we needed to-to do something with his salary . .[ECF No. 25-3 at 32:19-21, 76:3-77:17].
Plaintiff argues that the above “testimony is direct evidence that Mr. Lynch's protected activity was a but-for reason that SCDSNB rejected his and Mr. Herrin's request to increase his pay and remedy the unlawful disparity.” [ECF No. 25 at 30].
Plaintiff's argument fails for multiple reasons. First, Plaintiff fails to show that Keith's refusal to consider Plaintiff's claim of disparate pay, first made years prior, then reasserted by Herrin, is a materially adverse action. As stated by this court, “[a]lthough the failure to obtain a raise can be a retaliatory adverse action in certain circumstances, [the employee] has not shown that she had any expectation or entitlement to a salary increase.” Maher v. Univ. of S.C., C/A No. 3:10-2545-MBS-PJG, 2013 WL 394149, at *4 (D.S.C. Jan. 10, 2013) (collecting cases), report and recommendation adopted, C/A No. 3:10-2545-MBS, 2013 WL 416216 (D.S.C. Jan. 31, 2013); see also Barnett v. Combined Ins. Co. of AM., C/A No. 12-1279-MJR-SCW, 2014 WL 11776966, at *5 (S.D. Ill. Apr. 8, 2014) (“When a Plaintiff complains about suffering adverse action but provides no evidence how the status quo was altered, summary judgment is improper.”).
Additionally, Plaintiff has failed to offer evidence or argument that Keith's failure to reconsider his salary “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68 (citation omitted); see also, e.g., Witt v. Franklin Cty. Bd. of Educ., C/A No. 11-S-1031-NW, 2013 WL 832152, at *27 (N.D. Ala. Feb. 28, 2013) (“It makes little sense to find that an employer took ‘adverse action' against an employee by maintaining the status quo after the employee filed an EEOC charge. In other words, no reasonable employee would be deterred from making or supporting a charge of discrimination on the basis that her job duties remained unchanged.”).
As to his termination, Plaintiff cites to no evidence in the record, nor can the court discern any, that indicates that Plaintiff's employment was terminated because of his complaints concerning racial discrimination. Although Plaintiff argues that in presenting evidence that his termination was pretextual, he proves “race and disability discrimination through McDonnell Douglas” [ECF No. 25 at 30 (emphasis in original)], there is no evidence in record that any protected activity Plaintiff engaged in, such as filing a race discrimination EEOC charge in April 2016, is causally connected to Plaintiff's termination in December 2018.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's race-based retaliation claims.
2. ADA Claims
a. Failure to Accommodate and Engage in the Interactive Process
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). This “includes . . . 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 argues he had a disability-his knee injury-that Defendant was aware of as evidenced by the October 2, 2018 doctor's note releasing him to perform seated work until his MRI and the December 18, 2018 work recommendation limiting him to light duty desk type work, and Defendant could have provided reasonable accommodation, but did not, in the form of “light duty or extended leave.” [ECF No. 25 at 2, 17-21; see also Id. at 12 (“SCDSNB could have accommodated him with light duty or extended leave”); ECF No. 22-27 at 105:7-19 (Plaintiff's testifying he was discriminated against due to his disability because “they wouldn't let me do light work, light-duty work”)]. Plaintiff additionally notes that Herrin testified he made suggestions to human resources as to how to accommodate Plaintiff with light duty. [ECF No. 25 at 21].
Assuming Plaintiff's medical work recommendations or the request from Herrin to HR constitute adequate requests for light work accommodations, Plaintiff has failed to offer evidence indicating a period of light duty, or extended leave, that would have allowed him to perform the essential functions of his position.
Although Plaintiff argues that “[w]hether Mr. Lynch could have performed the essential functions of the position in October-December 2018 with reasonable accommodation” or “if SCDSNB still employed him” [ECF No. 25 at 16], as discussed more above, Plaintiff has failed to offer any evidence that he was able.
When Plaintiff was terminated on December 31, 2018, he had been on leave since October 2, 2018. Plaintiff received three medical work recommendations during this period and thereafter. The first stated Plaintiff could only do seated work until receiving an MRI, the second limited Plaintiff to “desk type work,” and the third dated January 7, 2019, still limited Plaintiff to “light duty.” When Plaintiff met with Strange and Keith and discovered his employment had been terminated, he may have discussed “light duty” with them. It is undisputed Plaintiff had knee surgery on February 13, 2019, and was not told until July 24, 2019, that he could resume “routine activities,” to the extent his other chronic medical conditions so allowed. When asked on June 2, 2021, “[h]ow long after the surgery did it take you to get back to where you needed to be?” Plaintiff stated “I really don't know. I'm not too good on time.” [ECF No. 25-4 at 52:21-24]. Plaintiff also indicated he was still unable to perform the essential functions of his job.
Plaintiff argues it would not have been an undue hardship for Defendant to accommodate him and that “[h]e did not require leave at all-he was able to work. But even so, his knee surgery was in February, so even if SCDSNB kept him on leave, he did not require ‘extended' or even ‘indefinite' leave.” [ECF No. 25 at 21-24, 32]. As stated, however, the record does not support Plaintiff's argument. There is no evidence before the court as to when Plaintiff could have returned to work and performed the essential functions of his position or that any such period was communicated to Defendant. Therefore, Plaintiff has failed to demonstrate that his suggested accommodations were reasonable because both the request for light duty and for extended leave were for indefinite periods of time. See Wilson, 717 F.3d at 345 n.8 (“a leave request will not be unreasonable on its face so long as it (1) is for a limited, finite period of time; (2) consists of accrued paid leave or unpaid leave; and (3) is shown to be likely to achieve a level of success that will enable the individual to perform the essential functions of the job in question”); Halpern v. Wake Forest Univ. Health Sci., 669 F.3d 454, 465 (4th Cir. 2012) (“[T]he Rehabilitation Act and ADA do not require an employer to give a disabled employee an indefinite period of time to correct a disabling condition that renders him unqualified.” (citations omitted)); Boone v. Bd. of Governors of Univ. of N. Carolina, 858 Fed.Appx. 622, 623 (4th Cir. 2021) (“indefinite light duty work is not a reasonable accommodation .... According to uncontroverted evidence in the record, assigning Boone to light duty work would have required other UNC officers to cover Boone's other duties for an unknown period of time. An accommodation is not reasonable if it requires other employees to work harder or the employer to hire additional staff to perform the essential functions of the disabled employee”); Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987) (holding that an employer is not obligated to assign a disabled employee to permanent light duty where that duty differs from the employee's ordinary work).
Additionally, there is no indication in the record that Plaintiff ever requested the accommodation of extended leave. As stated by this court:
To the extent Plaintiff is considered to be arguing he should have received the accommodation of additional leave, he has not demonstrated that he made such a request or that any generalized such request would be considered “reasonable” . . . . Here, Plaintiff has made no request for additional leave that is for a “limited, finite period of time.” Plaintiff has not set out “reasonable accommodation” that would permit him to perform the essential functions of his job.Cole v. Marlboro Cty. Sheriff's Off., C/A No. 4:19-1287-SAL-KDW, 2020 WL 8611026, at *12-13 (D.S.C. Oct. 22, 2020), report and recommendation adopted, C/A No. 4:19-1287-JD, 2021 WL 638913 (D.S.C. Feb. 18, 2021).
Although Plaintiff argues Defendant violated the ADA by not engaging in the interactive process, the Fourth Circuit has specifically noted “an employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 (4th Cir. 2015). Because Plaintiff failed to establish there was a reasonable accommodation, Defendant was not required to participate in an interactive process.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA failure to accommodate and engage in the interactive process, where Plaintiff has failed to demonstrate that light duty or extended leave was a reasonable accommodation.
b. ADA Discrimination and Wrongful Termination
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); see also Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (holding that the ADA requires that a plaintiff's disability be a but-for cause of the adverse employment action). The McDonnell Douglas burdenshifting framework discussed above 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.
Here, the court assume Plaintiff made a prima facie showing, and turns to Defendant's offered reasons for terminating Plaintiff:
SCDSNB has offered a legitimate, non-discriminatory reason for terminating Plaintiff-his FMLA leave had expired and as of that date, the Plaintiff had produced no documentation from his doctor lifting the “light duty desk type” restrictions; a job that was not available then or now.[ECF No. 22-1 at 17].
As with his race-based claims addressed above, Plaintiff has failed to offer any evidence that Defendant terminated his employment or otherwise discriminated against him based on his disability or that Defendant's offered reasons for his termination was pretext for disability-based discrimination.
Plaintiff argues otherwise, characterizing as untenable the following reasons offered by Defendant for his termination: “(1) he was not medically cleared to return to work before that date; (2) he did not seek reasonable accommodation, (3) SCDSN was under no obligation to re-hire him after the date of his termination as a reasonable accommodation, (4) a long term leave of absence cannot be an accommodation under the ADA.” [ECF No. 25 at 3031].
The record supports Defendant. As to whether Plaintiff was medically cleared to return to work before his termination, Plaintiff notes he was provided three releases to work and argues he was not required to provide Defendant with “a release to work without restrictions.” Id. at 31. However, the record indicates, and Plaintiff does not provide evidence otherwise, that as of the date of his termination, he was limited to a “light duty desk type” and, following his termination, he provided a modified release-to-work that still contained a light duty restriction of indefinite duration.
Relatedly, and as discussed above, the court rejects Plaintiff's arguments that he sought reasonable accommodation when the accommodation he allegedly sought was for an indefinite period. That Plaintiff “had accrued annual leave banked when he was terminated” [ECF No. 25 at 32] does not indicate Defendant's reason for Plaintiff's termination was pretext, where Plaintiff sought indefinite light duty or leave.
Finally, Plaintiff argues “an employer cannot free itself from its obligations under the ADA and summarily end the interactive process by discharging the employee rather than considering a request for accommodation.” Id. at 31. Plaintiff argues that he “was effectively reapplying for the position,” presumably during the meeting in which he learned his employment was terminated and he attempted to provide the modified work release, and Defendant “could have accommodated Mr. Lynch.” Id. at 31-32.
As stated, Plaintiff has not shown that Defendant could have reasonably accommodated him, and cases Plaintiff cites do not undermine this conclusion or support his argument that Defendant fired him instead of considering his request for accommodation. See, e.g., Cutrera v. Bd. of Sup'rs of Louisiana State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (denying summary judgment where employer fired employee roughly one week after employing her and after being informed as to her medical difficulties and appointment she had made to discuss potential accommodations, holding “[a]n employer may not stymie the interactive process of identifying a reasonable accommodation for an employee's disability by preemptively terminating the employee before an accommodation can be considered or recommended.”); E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 610-11, 622 (5th Cir. 2009) (denying summary judgment where employer refused to consider requests for accommodations, the first a medical note stating “[r]eleased to return to full-time employment at a sub-station closer to her home” and the second “requesting lunchtime rest and alternation of typing and reading”); Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1282, 1286 (7th Cir. 1996) (denying summary judgment where employer fired mentally ill employee roughly one week after he failed to report to work and where employer refused to consider a letter from the employee's psychiatrist requesting accommodation, provided a few hours after the termination); see also Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 580-82 (4th Cir. 2015) (denying summary judgment and holding a reasonable jury could conclude employers “acted in bad faith by failing to engage in the interactive process” with the employee, where the employee requested a reasonable accommodation that did not require the employer to increase the workload of other employees).
Although Plaintiff provides a list of “other reasons why a reasonable jury could conclude that SCDSNB's conduct was suspicious,” including, for example, that Defendant accommodated employees outside of the maintenance department, and argues “Keith's behavior towards Mr. Lynch is evidence of animus” [ECF No. 25 at 32-34], none of the arguments or evidence provided by Plaintiff indicates that Defendant's proffered reasons for Plaintiff's termination are pretext for disability discrimination or that Defendant otherwise discriminated against Plaintiff because of his disability.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA-based claims.
Given the recommendation above, it is unnecessary to address the parties' arguments as to whether Plaintiff had a disability as defined by the ADA.
3. FMLA Claims
The FMLA permits eligible employees to take up to twelve workweeks of leave per year due to a “serious health condition.” 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves-(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Employees who take leave pursuant to the FMLA are generally entitled to return to the same or equivalent position with the same benefits as they had prior to taking the leave. 29 U.S.C. § 2614(a)(1). If an employer interferes with an eligible employee's right to FMLA leave or retaliates against an eligible employee for exercising her right to leave, the employer may be liable for violations of the FMLA. 29 U.S.C. §§ 2615, 2617.
The Fourth Circuit has held “[t]o make out an ‘interference' claim under the FMLA, an employee must thus demonstrate that (1) he is entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) that interference caused harm.” Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). The Supreme Court has held that failure to provide notice can only constitute interference if the employee shows that she was prejudiced by the lack of notice. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (noting that “§ 2617 provides no relief unless the employee has been prejudiced by the violation”).
Retaliation claims brought under the FMLA are analogous to those brought under Title VII. Laing v. Federal Express Corp., 703 F.3d 713, 717 (4th Cir. 2013); Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006). Plaintiff must prove three elements to establish a prima facie case of retaliation: (1) he engaged in a protected activity; (2) his employer took an adverse employment action against him; and (3) there was a causal link between the two events. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015). If the defendant advances a lawful explanation for the alleged retaliatory action, the plaintiff must demonstrate the defendant's reason for taking the adverse employment action was pretextual. See Laing, 703 F.3d at 717, 719 (citing McDonnell Douglas, 411 U.S. at 802-04).
The record indicates that Plaintiff was provided FMLA leave from October 2, 2018, until his termination on December 31, 2018, or 12 weeks and 6 days. The record indicates also that Plaintiff was unable to perform the essential functions of his position on the date of his termination or thereafter; thus, Plaintiff was not entitled to return to his position or a similar one. Brown v. Kester, C/A No. 3:09-813-CMC, 2011 WL 780174, at *10 (D.S.C. Jan. 26, 2011) (“[T]he FMLA does not mandate that employers reinstate employees who are unable to perform the essential functions of their positions.”) (citing Battle v. United Parcel Serv., Inc., 438 F.3d 856, 864 (8th Cir. 2006)), report and recommendation adopted, C/A No. 3:09-813-CMC-JRM, 2011 WL 780160 (D.S.C. Feb. 28, 2011).
Plaintiff appears to argue this amount of time is insufficient, but offers no evidence or argument in support. [See ECF No. 25 at 33 (“SCDSNB terminated Mr. Lynch while he was on FMLA. His termination date was December 31, 2018. Even if his alleged FMLA started the day of his injury (October 2, 2018), this would have been his 90th day.”)].
Plaintiff argues that “SCDSNB never gave Mr. Lynch FMLA designation notice, informed him of the dates of his leave, warned him that his leave was coming to an end, or that his job was at risk if he did not return to work, in violation of 29 C.F.R. § 825.300.” [ECF No. 25 at 33]. It appears that Plaintiff is arguing that if he had more information regarding his FMLA leave, he would have structured his leave differently or made other, different decisions. See, e.g., Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 302 (4th Cir. 2016) (“Prejudice may be gleaned from evidence that had the plaintiff received the required (but omitted) information regarding his FMLA rights, he would have structured his leave differently.”).
In Vannoy, the plaintiff suffered from severe depression, and his doctors suggested a thirty-day inpatient treatment program. His employer approved leave, but did not supply him with FMLA notice, and he went back to work after a short absence without completing treatment. The plaintiff took unscheduled absences, including during a work trip, and failed to complete a performance improvement plan. His employer terminated him, citing his unscheduled absences and insubordination. The Fourth Circuit found that summary judgment was not appropriate with respect to an interference claim, because notification of the plaintiff's FMLA rights might have led him to take approved leave and obtain treatment that would have prevented the subsequent performance issues. However, the Fourth Circuit concluded that the employer was entitled to summary judgment with respect to the retaliation claim and a related ADA claim, because the evidence in the record overwhelmingly supported the employer's explanation for the termination.
Here, in contrast to Vannoy, Plaintiff has failed to present any evidence that notification of his FMLA rights might have led him to make different choices, particularly because Plaintiff has failed to submit evidence as to when, if ever, he regained the ability to perform the essential functions of his position. See, e.g., Maffett, 2021 WL 4596659, at *14 (“Plaintiff does not point to actual record evidence in support of her prejudice argument. Although her affidavit indicates that she could have scheduled doctor's appointments differently and managed her paid leave differently she never explains what she means by that or how she suffered prejudice.”);Heidger v. Gander Mountain Co., C/A No. 10-13534-BC, 2011 WL 3665155, at *4 (E.D. Mich. Aug. 22, 2011) (“Defendant did not violate Plaintiff's right to medical leave by terminating his employment after providing him the full allotment of leave time.”).
Plaintiff argues Defendant “forced him to go on involuntary leave” by not allowing him light duty. [ECF No. 25 at 1]. Although the Fourth Circuit has not explicitly recognized an “involuntary leave” theory under the FMLA, those circuits which have recognized such a claim permit it only if the employee is later denied leave to which he is entitled. See Leonard v. ElectroMechanical Corp., 36 F.Supp.3d 679, 691 (W.D. Va. 2014) (collecting cases).
Turning to the retaliation claim, and as discussed multiple times above, Plaintiff has failed to demonstrate Defendant's reasons for terminating his employment were pretextual. Plaintiff's employment was terminated because his FMLA leave expired, and he did not submit documentation or otherwise indicating that he could perform the essential functions of his position. Plaintiff has failed to produce any evidence that his termination was motivated by retaliatory animus due to his attempt to exercise his FMLA rights, particularly here where he argues he never attempted to exercise his FMLA rights. See, e.g., Jarjoura v. Ericsson, Inc., 266 F.Supp.2d 519, 52930 (N.D. Tex. 2003) (“Regardless of what Jarjoura's belief was while he was recuperating and working at home, Ericsson had long placed and considered Jarjoura to be on FMLA leave. That he did not know he was on leave or never received notification that he was on FMLA leave is of no moment to the court's decision. As Jarjoura was already on intermittent FMLA leave, the court does not understand the basis for his argument that the termination was because he took FMLA. The nexus is simply not present.”).
For these reasons, the undersigned recommends the district judge grant Defendant's motion as to Plaintiff's FMLA claims.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 22].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).