Opinion
C. A. 3:19-3412-MGL-KDW
11-22-2022
Angelo McBride, Plaintiff, v. City of Columbia, Pamela Benjamin, and Melissa Lindler, in their individual capacities, Defendants.
REPORT AND RECOMMENDATION (AS TO MOTIONS FOR SUMMARY JUDGMENT, ECF NOS. 79, 80)
Kaymani D. West United States Magistrate Judge
Plaintiff Angelo McBride (“McBride” or “Plaintiff”), filed this action against his former employer, City of Columbia (“City” or “the City”); and against Pamela Benjamin (“Benjamin”) and Melissa Lindler (“Lindler”) in their individual capacities. The individual Defendants are referred to collectively as “the Individual Defendants,” and individually by surname. ECF No. 1. The United States of America, originally a Defendant, was terminated by Notice of Voluntary Dismissal. ECF No. 22. Plaintiff's Complaint includes several claims against the City, including claims brought pursuant to the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”) and Rehabilitation Act and several state-law-based claims. See Compl. ¶¶ 1-125.
This matter, referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), is now before the court for consideration of two Motions for Summary Judgment: one filed by the City as to all causes of action brought against it (ECF No. 80) and one filed by the Individual Defendants as to the only cause of action brought against them-a civil conspiracy claim based on South Carolina law (ECF No. 79). Having considered the Motions; Plaintiff's Response to both, ECF No. 88; the Replies (City, ECF No. 92; Individual Defendants, ECF No. 91); and applicable law, the undersigned recommends both Motions for Summary Judgment, ECF Nos. 79 and 80, be granted and this matter be ended.
I. Standard of Review
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. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
II. Factual Background
The following facts are either undisputed or are taken in the light most favorable to Plaintiff, to the extent they are supported by the record.
The City provided a numbered “Statement of Undisputed Material Facts,” indicating they are construed in the light most favorable to Plaintiff. City Mem. 2, ECF No. 80-1. The Individual Defendants incorporated the City's statement of facts and indicated they provided some additional facts in their argument. Indiv. Defs. Mem. 1, ECF No. 79-1. In opposing summary judgment Plaintiff indicated his position on the facts as set out by City. This numbered list of facts is taken largely from the City's memorandum, ECF No. 80-1, and specifically notes any disagreement as expressed by Plaintiff in his memorandum, ECF No. 88.
1. The City is a municipality situated in Richland County and Lexington County, South Carolina and organized under the council/manager form of government. The City's Employee Handbook indicates that, “[a]s chief administrator, the City Manager is responsible for the operation of all departments, the performance of all employees, and is the final authority in all personnel matters.” Employee Handbook 6, ECF No. 80-3 at 1; Columbia City Code §§ 2-1, 2-32, ECF No. 80-2; see generally S.C. Code Ann. §§ 5-1380; 8-17-130; 8-17-160 (concerning council/manager form of government).
a. Plaintiff does not dispute that “state law and City policy may, in theory” provide for the City Manager's “ultimate responsibility for employment decisions”; however, he submits there is a “genuine question of material fact” in this case because “the City Manager had no conversations with Plaintiff regarding his employment nor terminated him.” Pl. Mem. 2. Plaintiff submits that a “jury should hear testimony about how the City implements this authority as it relates to the instant case and hear from the Individual Defendants and the City Manager.” Id.
i. Although Plaintiff's point is noted, nothing about the inclusion of the quotation from the City Employee Handbook or citation of applicable City and State law is intended to take the place of appropriate consideration of relevant facts.
2. Plaintiff began working for the City in February 1992 as a police officer in the City's Police Department. New Employee Authorization Form, Feb. 1992, ECF No. 80-4; Pl. Dep. 4344, ECF No. 80-5.
3. Prior to Plaintiff's time working for the City's Police Department, he had been certified by the South Carolina Criminal Justice Academy, had prior experience as a police officer with other South Carolina law enforcement agencies, and had training and experience as a military police officer in the U.S. Army Reserves. Pl. DD-214 (1988), ECF No. 80-6; Application for City Employment, Aug. 8, 1991, ECF No. 80-7.
4. In connection with his military training and experience, Plaintiff received an “Army Service Ribbon//Pistol .45 Cal (Expert).” Pl. DD-214.
5. Initially, Plaintiff worked in a patrol capacity for the City's Police Department. Pl. Dep. 48-49. He received disciplinary reprimands in 1994 for misplacing a traffic citation and turning it in several months after having the matter dismissed and in 1997 for failing to attend scheduled training. Personnel Reports, Aug. 1994 and Mar. 1997, ECF Nos. 80-9 and 80-10.
a. Plaintiff does not dispute these facts but submits they are too remote in time to present material facts in the matter now before the court. Pl. Mem. 2.
i. The court includes this information for completeness but agrees that these decades-old infractions are not material to the pending motions.
6. In the late 1990s, Plaintiff moved into a role within the City's Police Department as a “Community Mobilizer” and “E-Z Master Police Officer” within the City's Empowerment Zone (“E-Z”), while still a police officer with the City's Police Department. Pl. Employee Perf. Appraisal, Feb. 10, 1999, ECF No. 80-11; Employee Payroll Status Change, eff. Nov. 2000, ECF No. 80-12. Plaintiff's February 1999 appraisal indicated he displayed “[e]xcellent performance as a Community Mobilizer [and had] done an outstanding job.” 1999 Perf. Appraisal.
7. In or around 2001, Plaintiff began working as a “Business Executive” in the E-Z as part of an interdepartmental partnership between the City's Police Department and Business, Enterprise and Grants Office. Employee Payroll Status Change, eff. July 2001, ECF No. 80-13.
8. In August 2008, Plaintiff applied for and was promoted to the position of “OBO Administrator” within the City's Office of Business Opportunities. Employee Status Change Form, eff. Sept. 1, 2008, ECF No. 80-14; Pl. Application, Cover Letter, and Resume, dated Aug. 18, 2008, ECF No. 81-1. Plaintiff's supervisor at that time was former Director of Community Development Tony Lawton. Id. In his resume submitted with his 2008 application for the OBO Administrator position, Plaintiff noted his military experience, which included various responsibilities. Plaintiff's description of his 1988 experience with the United States Army Reserve indicated he was “[r]esponsible for providing training initial entry soldiers in basic combat and advance military police skills”; his 1989 responsibilities included “conducting training on marksmanship ranges.” Id. at 8.
a. Plaintiff does not dispute the factual recitation in paragraph 8 but “objects to any negative inference the Defendants attempt to raise solely because Plaintiff honorably served in the armed forces.” Pl. Mem. 3.
9. Although Plaintiff's employment duties no longer focused on law enforcement, Plaintiff testified that he remained a member of the Police Officers Retirement System and retained his law enforcement certification until around 2010. Pl. Dep. 52-54. Plaintiff confirmed that he was required to qualify annually on firearms and attend trainings to maintain his certification. Id. at 54-55.
10. On October 20, 2010, Plaintiff sent an Interoffice Memorandum to his supervisor, Lawton, copying the City Manager; the Senior Assistant City Manager; and the Deputy Director of Community Development, Tina Herbert. The subject line of the memorandum indicated it concerned “Hostile Environment and Mistreatment (Formal Complaint).” Oct. 20, 2010 Interoffice Mem. Memorandum, ECF No. 81-2. The memorandum outlined allegations against Lawton claiming he interfered with the work performance of employees and engaged in intimidating conduct as to select employees in the office, criticized his management style, and accused him of engaging in “antagonistic” conduct, which Plaintiff's memorandum described as “offensive and inappropriate.” Id. at 2. Plaintiff's memorandum also complains that he has endured such conduct for years, noting, “I've put up with it for years now and see that the more I contribute to this department and the load I carried; it's never appreciated by you. With the enormous amounts of work you demanded of me; while providing little time to complete task. I feel this is intentional so that you can later use this as a ground for insubordination and potentially termination.” Id. The memorandum recounts Lawton e-mailing Plaintiff in June 2010, copying the Senior Assistant City Manager, asserting Plaintiff's performance at work had been unacceptable for months leading up to Lawton's June 2010 e-mail. Plaintiff indicates Plaintiff's subordinates “disagreed with the content [of that email] because they knew it was not true.” Id.
11. On October 20, 2010, the Army ordered Plaintiff to report to East Point, Georgia by October 26, 2010, to attend annual training for a period of 14 days. Orders from Army, dated Oct. 20, 2010, ECF No. 31-3. On October 28, 2010, the Army issued orders to Plaintiff requiring him to report to East Point, Georgia for an active duty assignment of approximately 365 days. Orders from Army, dated Oct. 28, 2010, ECF No. 31-4.
12. While Plaintiff was away from work on a military leave of absence, Herbert was promoted to Director of the Office of Business Opportunities.Plaintiff returned to OBO in October 2012 from his military leave of absence. Employee Status Change Form, effective Oct. 22, 2012, ECF No. 81-6. Upon his return, Plaintiff's work in OBO involved him providing technical assistance, education, and advocacy for small businesses as the Program Administrator for small businesses. Dep. of Def. Melissa Linder (“Linder Dep.”) 14, ECF No. 82-1; FMLA Leave Paperwork, completed by Counselor B. Moore on Sept. 25, 2018, ECF No. 82-17; FMLA Leave Paperwork completed by Veterans Administration (“VA”) provider on Oct. 9, 2018, ECF No. 82-21.
Defendant cites its exhibit 18, purportedly a September 29, 2011 letter, as record-support for this status change. However, Defendant's exhibit 18 is a copy of Plaintiff's discovery responses. ECF No. 81-5. In any event, Plaintiff does not object to this fact.
13. In Plaintiff's Annual Performance Evaluation for the report period ending May 23, 2013, Herbert rated Plaintiff's overall performance as a 3 or “Better than Competent (performs at a level above expected” on a scale of 1-5), Performance Evaluation, period ending May 23, 2012, ECF No. 81-7. Herbert rated Plaintiff's Teamwork and Interdepartmental Cooperation” as a 1 or “Less Competent (Needs Improvement),” id. Specifically, Herbert indicated Plaintiff “ha[d] not fully developed good working relationships with the current staff members of the department and often fails to participate in office activities unless they are absolutely required. This has had an impact on the team,” id.; he received a 2 “Competent (Consistently meets major job requirements)” in the areas of Oral and Written Communications, Dealing with the Public, and Working Under Pressure, id. Plaintiff received 3s in the areas of Applying Job Skills and Demonstrates Technical Competence, Using Judgment, Self-Discipline, and Quality and Productivity. Id. He received a 4 (“Exceptional”) in the areas of Initiative; Learning New Skills, Problem-Solving/Planning/Organizing and Time Management; and Following Supervisory Direction. Id. Plaintiff received a 5 (“Outstanding”) in the areas of Working Independently and Planning Work. Id.
14. In March 2015, Plaintiff received a disciplinary written warning from Herbert for “Showing disrespect to supervisor/interference with the work of an employee (and consultant).” Progressive Disciplinary Action Form, signed Mar. 19, 2015, ECF No. 81-8. Around that same time Plaintiff formed a new South Carolina limited liability corporation, Continuity Consulting Management Group, LLC (“Continuity”). Pl. Dep. 151. Plaintiff testified that Continuity's consulting work, which he did on his own without other employees, has included “business development, business writings for business plans development, site locations, get capability statements, loan development packages, and some marketing strategies.” Pl. Dep. 147-48. Plaintiff acknowledged that he did not get approval from the City to engage in secondary employment in connection with his consulting work, and he never informed his supervisor that he was working for himself providing small business consulting services. Id. at 152. The City's Employment Handbook indicated prior approval was required before an employee could engage in outside employment. Employee Handbook 8, ECF No. 80-3.
15. In 2017, Plaintiff applied for the OBO Director position to replace Herbert, but Plaintiff was not selected for the position. Pl. Dep. 155. Individual Defendant Lindler was selected as Herbert's replacement. Plaintiff continued working in OBO as the small business Program Administrator after Linder's selection. Id. at 155. In November 2017, Plaintiff began submitting applications for employment positions outside the City. Pl. Job Search Export, ECF No. 81-9.
16. Lindler began her work as Director of the City's OBO on January 8, 2018. Lindler Dep. 14, ECF No. 82-1. Lindler testified that she had understood when she began in the role that Plaintiff had no faith in her, and she “could tell that.” Id. at 42.
17. Lindler testified that prior to August 31, 2018, Plaintiff had displayed some adverse behavior towards another member of her staff. Lindler Dep. 22-24.
18. On April 6, 2018, Lindler issued an oral reprimand after Plaintiff made negative statements to a coworker that were disparaging and offensive and led to unproductive attitudes/behavior or disrupt the workplace. Lindler Mem. to Pamela Benjamin, City Human Resources (“HR”) Manager, Sept. 5, 2018 and April 6, 2018 Progressive Disciplinary Action Form (Oral Reprimand), ECF No. 82-2 at 4, 13-16.
a. Plaintiff does not dispute that the April 6, 2018 Oral Reprimand took place. However, Plaintiff contends Lindler issued the reprimand “in retaliation” for Plaintiff's having made comments to Lindler about writing some thank-you notes. Pl. Mem. 3-4 (citing Lindler Dep. 47-48).
i. The court notes Plaintiff's objection; however, the context of Lindler's testimony on pages 47-48 of her deposition transcript are difficult to follow. In any event, the pending litigation includes no retaliation claim based on this reprimand.
19. Lindler recollected that, during a conversation with Plaintiff in which she asked him to contact an employee with the City's Parking Department, Plaintiff “was adamant that that was not a good use of his time and he [Plaintiff] raised his voice at [Lindler].” Lindler Dep. 26-27. It appears the conversation at issue took place around August 29, 2018.
a. Plaintiff disputes that he raised his voice at Lindler. Pl. Mem. 4.
20. On the morning of August 31, 2018, Plaintiff called the Veteran's and Military Crisis Line (“Crisis Line”) after he had been at work for two or three hours. Pl. Dep. 87-88; March 12, 2019 Charging Affidavit submitted to federal Equal Employment Opportunity Commission (“EEOC”) and South Carolina Human Affairs Commission (“SHAC”) along with administrative charge (“Charging Aff.”) ¶ 15, ECF No. 82-7. During Plaintiff's telephone call with Crisis Line staff, he entered into a “transportation plan” and was advised he needed to arrive at the Veteran's Affairs Medical Center (“Dorn VA”) by noon and that, if he had not arrived by noon, Crisis Line staff would contact the police to check in on Plaintiff. Charging Aff. ¶¶ 15-16.
21. Plaintiff arrived at Dorn VA around 11:15 a.m. on August 31, 2018, and notified his counselor, in compliance with his facility transport plan. He was treated by his counselor for approximately two or three hours. Pl. Dep. 89, Charging Aff. ¶ 16.
22. Plaintiff's medical provider at Dorn VA, Resident Psychologist Patricia Peruggia, Psy.D., did not issue him any prescriptions; Dr. Peruggia gave Plaintiff an “Absentee form” confirming he was seen at their facility on August 31, 2018, and stating “Patient has been advised not to return to work until: September 17, 2018 for purposes of stress management.” Aug. 31, 2018 VA Absentee Form, ECF No. 82-8; Pl. Dep. 89-90.
23. As set out by Plaintiff in his Charging Affidavit, despite his compliance with the transportation plan, “the VA erroneously contacted City law enforcement who subsequently disclosed an inaccurate diagnosis to the City.” Charging Aff. ¶ 17. The Incident Detail Report of the Crisis Line's call to the City's 911 Communications Center indicates that, at around 1:22 p.m. on August 31, 2018, the 911 Center received a telephone call from “Katherine” at the Crisis Line. The Incident Detail Report's notes of that call indicate Plaintiff had called the Crisis Line that morning stating he was “having homicidal thoughts against his supervisor” but he did not have ammunition. Incident Detail Report 23, ECF No. 82-3. The 911 caller reported that Plaintiff had been due to go into the Dorn VA that morning but “never showed.” Id. at 2. The caller requested that a welfare check be conducted at Plaintiff's home. Id. at 3.
a. Plaintiff takes issue with the detail included in the Incident Report, noting that he “opposes any allegation in this paragraph that alleges that he threatened his supervisor Lindler or that is in violation of his privacy rights under the ADA.” Pl. Mem. 4.
i. The court includes details of the Incident Report for completeness. Inclusion of this information herein does not imply that the court is endorsing one particular version of this disputed fact.
24. Columbia-Richland 911 dispatched a Richland County Sheriff's Deputy to respond to the Crisis Line's request for a welfare check at Plaintiff's home. Incident Detail Report 3. Deputy S. Head responded to Plaintiff's home, where he encountered Plaintiff's spouse. The spouse advised Deputy Head that Plaintiff was at work at the City. Id.; Aug. 31, 2018 email among City employees Rease, Holbrook, Kelly, and Oree regarding “Notification Involving a City of Columbia Employee,” ECF No. 82-4. According to the emailed summary, Plaintiff's spouse indicated to law enforcement that she had text messages from Plaintiff that confirmed he did not like his boss. She also indicated that she had attempted to call Plaintiff while Deputy Head was at the house, but Plaintiff did not answer, and that later Plaintiff sent his spouse a text message indicating he was in a meeting with his boss. Id. The Incident Detail Report indicated law enforcement “found both 10-59's” and contacted the City of Columbia's Police Department to provide further information. Incident Detail Report 3. In its memorandum, the City indicates guns were found at Plaintiff's home. City Mem. 8-9 (citing Incident Detail Report and Aug. 31, 2018 email).
The undersigned notes no specific reference in the Incident Detail Report or the August 31, 2018 email to the finding of guns at Plaintiff's home. In any event, Plaintiff does not dispute the facts in this paragraph.
25. After Deputy Head contacted officers with the City's Police Department regarding the 911 call and welfare check, three officers with the City's Police Department, Sgt. Delage, CID Inv. Hilton, and Officer Crociata, reported to the location of Plaintiff's office at the City (1225 Lady Street) to continue checking into his welfare and that of Lindler, his supervisor. Incident Detail Report 2; Email regarding incident; Columbia Police Department (“CPD”) Incident Report, Aug. 31, 2018 (“CPD Incident Report”), ECF No. 82-5. The officers made contact with Plaintiff and “his boss.” Id. As relayed in the August 31, 2018 email, Plaintiff “was not happy that the officers were there and stated he did not make those comments.” Id. Plaintiff advised the officers that “‘the VA violated their policies if they told anyone about his conversation.'” Id. Plaintiff advised that his boss was out of the office attending a conference in Ohio. Id. Inv. Hilton spoke with Plaintiff and determined there was no threat at that time. Id.
26. Plaintiff testified that his encounter with the officers at his office began in the front hallway near his office at 1225 Lady Street. Pl. Dep. 91-92. He explained that his interaction with the officers was casual, non-confrontational, and that it was not abusive. Id. at 94-97. After two of the three responding officers left, Plaintiff spoke with Investigator Hilton, whom Plaintiff knew from his prior work in the City's Police Department. Inv. Hilton Case Notes 1, ECF No. 82-6. Inv. Hilton's notes indicated that Plaintiff “did say he was not pleased with the chain of command of a recent promotion given to Melissa Lindler and he talked to somebody about it but [did] not have any plans to harm her.” Id. at 1-2.
27. Plaintiff testified that the officers did not tell him to leave the office. Rather, after the officers left Plaintiff stayed at the office about 30 minutes, gathered his things, locked his office door, and left. He then went straight home. Pl. Dep. 95, 97.
28. Around 2:00 or 3:00 p.m. on the afternoon of August 31, 2018, City Police Officers advised Defendant Benjamin, the City HR Director, of the 911 call regarding Plaintiff. Benjamin Dep. 13-15, ECF No. 82-9. Benjamin received an update after the officers concluded their wellness check on Plaintiff at his office at 1225 Lady Street. Id. at 14-15. After receiving the update, Benjamin and the officers discussed next steps regarding Plaintiff and the 911 call. Those next steps included obtaining additional information. Id. at 15-17.
29. On the evening of August 31, 2018, officers from the City's Police Department delivered a letter to Plaintiff's home that informed Plaintiff he was being placed on investigatory suspension, effective immediately, and that he was prohibited from returning to work or City property while the investigation was ongoing. Letter from Benjamin to Plaintiff, Aug. 31, 2018, ECF No. 82-10. The letter also required Plaintiff to surrender his employee identification card, keys, and any other City-issued property. Id. Plaintiff testified his interaction with the officers that evening was casual and nonconfrontational. Pl. Dep. 99100. Plaintiff acknowledged that the letter was putting him on trespass notice-it was the functional equivalent of a no trespassing sign. Id. at 100-101.
30. At 11:15 p.m. that night, Plaintiff sent an email to Benjamin and to City Manager, Teresa Wilson, attaching the VA Work Excuse and referenced a “false alarm that occurred today concerning [him].” Pl. email to Wilson and Benjamin, Aug. 31, 2018, ECF No. 82-12; attaching VA Work Excuse, ECF No. 82-8. Referencing “a system that over[-]reacted based on mis[]communications,” Plaintiff noted the VA had apologized to him and indicated the VA was investigating the failure and would send a retraction as soon as possible. Pl. email. Plaintiff noted he was attaching the VA Work Excuse as he had been unable to provide it to Lindler that day because she was in Cleveland. Plaintiff also noted he had received the memo from Benjamin that had been delivered by police officers. He said he would comply as instructed. Plaintiff closed by indicating he was sure the City's investigation would show this was a misunderstanding. Id.
31. In a letter dated September 4, 2018, South Carolina Retirement Systems advised Plaintiff it had received his application for retirement benefits. PEBA Notification, Sept. 4, 2018, ECF No. 82-13.
32. On Monday, September 3, 2018, which was Labor Day, Plaintiff emailed Benjamin and the City Manager advising them that he had overlooked returning some items that belonged to the City and would have someone deliver them the following day. Pl. email, Sept. 3, 2018, ECF No. 82-14. Plaintiff had some keys returned. Lindler Dep. 45-46.
33. On September 4, 2018, after a telephone call with Plaintiff, Benjamin emailed Plaintiff a copy of a blank FMLA provider certification form and an FMLA Employee Rights and Responsibilities Notice. Email from P. Benjamin to Plaintiff with attachments, Sept. 4, 2018, ECF No. 82-15. Section 2 of the certification form advises the employee that the employer “must give [the employee] at least 15 calendar days to return this form.” ECF No. 82-15 at 3 (citing 29 C.F.R. § 825.305(b)). In his deposition, Plaintiff acknowledged the form's language indicating the City had to give him at least 15 days to return the paperwork. Pl. Dep. 110-11.
a. Although not pointed out by the parties in their factual recitations, the court notes that Plaintiff testified he “immediately went to - the VA and hand-delivered” the FMLA forms, advising the VA that the City required the forms to be completed. Pl. Dep. 108.
34. Benjamin began the investigation into this matter by compiling information. After receiving briefings from officers on August 31, 2018, Benjamin spoke with the Crisis Line's manager, Mr. Judy, and gathered some information from the City's Police Department. Benjamin Dep. 12-13, 17. The officers briefed Benjamin regarding their interactions with Plaintiff on August 31, 2018; Benjamin testified the information she received was similar to the narrative set forth in a portion of one of the officer's notes. Id. at 19-20; Inv. Hilton Notes, ECF No. 82-6. Benjamin testified that she had not seen those notes prior to her deposition. Benjamin Dep. 19-20. Benjamin stated she had not been briefed regarding a statement in the officer's notes detailing the impressions of Plaintiff's doctor regarding whether Plaintiff was a threat. Benjamin Dep. 33-34.
35. Around the time Lindler returned to work on September 4, 2018 after her Ohio business trip, she met with Benjamin and an officer (Melron) to talk about the threat. They did not share particulars with her, other than to tell her a threat had been made, that they had all the keys to the building of which they knew, and that they would keep someone outside her door. Lindler Dep. 17. Benjamin asked that Lindler prepare a memorandum of prior occurrences in OBO with Plaintiff that may have precipitated the threat reported to 911 on August 31, 2018. Id. at 17-18. Lindler, in consultation with OBO staff, prepared a memorandum to Benjamin regarding “Angelo McBride-Report on Week of August 27th & Other.” Sept. 5, 2018 Mem., ECF No. 82-2. Lindler's memorandum cataloged several events from the week of August 27 through August 30, 2018, as well as other interactions from March 27, 2018, April 4, 2018, April 6, 2018, May 19, 2018, and August 3, 2018. Lindler Mem., ECF No. 82-2. In the memorandum, Lindler indicated that she was “surprised by the disparaging and false comments made about [her] to staff,” and was “more concerned by [Plaintiff's] deliberate attempt to disrupt the overall operations of OBO by his divisive and antagonistic nature.” Lindler Mem. 1. The record includes a memorandum from OBO employee Gerry Lynn Hall to Lindler in which Hall told Lindler that Plaintiff had made inappropriate comments about Lindler to her (Hall) on August 31, 2018, and that he had also done so before. Hall Mem. (Sept. 4, 2018), ECF No. 82-2 at 5. Benjamin testified that Lindler's memorandum included reports of issues with Plaintiff's conduct and that “some of the statements in the information . . . Lindler gave [her] . . . [she] was unaware of until [Lindler] provided [her] with that information.” Benjamin Dep. 89.
36. Benjamin testified that the City began implementing “active intruder training” around 2017 and that the City continues to do training throughout its various departments. Benjamin Dep. 89. That training was provided by City personnel in safety and risk management, emergency operations, and the police department. Id. at 89-90. Benjamin testified that such training educated City employees on factors that have previously been associated with active intruder incidents involving workplace threats, such as behavioral changes, outbursts, any threatening communications, and other behavior that is out of the ordinary. Id. Benjamin explained that “we take all threats seriously” and that through the training, the City asks employees to “be aware and make others aware of anything that concerns them.” Id. at 90.
37. Benjamin testified the source of the August 31, 2018 911 call played an important part in her investigation “because it came directly from the crisis hotline, and I - based on the protocol, they wouldn't have made us aware of it if it hadn't have been an actual threat. So it was the basis for moving forward with everything that happened.” Benjamin Dep. 91.
38. On September 13, 2018, Plaintiff emailed a statement to Benjamin. Email Statement from Pl., “Statement to the City of Columbia,” Sept. 13, 2018, ECF No. 82-16. The statement was provided at Benjamin's request that Plaintiff provide a “written statement outlining his accounts of what had occurred.” Benjamin Dep. 23-24. In the statement, Plaintiff notes he was “suffering from a medical condition and decided he needed to seek treatment” on August 31, 2018. Email Statement. Plaintiff states that the VA “wrongly contacted law enforcement and the City and provided confidential medical information.” Id. Plaintiff notes that, as he discussed in a call with Benjamin, the VA has “admitted its wrongdoing and advised that [he] return to work at full capacity.” Id. Plaintiff continues, “[a]s I stated to the VA, I am not a threat and never have been a threat to myself or anyone else at the City. I never have had any intent or a plan to harm anyone at the City, including myself.” Id. Plaintiff states, “[it] would be my hope that I would be able to return to work and that the City would accommodate my medical condition as it now has knowledge.” Id. He also requests that the City issue an internal communication advising employees that the incident was a “mishap due to the actions of a third party and that [he] is not a threat and never have been a threat to anyone.” Id.
39. Plaintiff met with a new provider at BMoore Counseling and Consultation Services on September 25, 2018. Pl. Dep. 111-12; BMoore FMLA form, dated Sept. 25, 2018, ECF No. 82-17. Plaintiff's provider at BMoore completed an FMLA provider certification form and gave it to him on that same day. Pl. Dep. 112. Plaintiff does not recall the exact date, but he indicated he gave the completed form that he received from BMoore to his attorney “as soon as [he] got it back from the professional” because “we were trying to make sure we meet the deadlines so [Plaintiff] didn't delay.” Pl. Dep. 113-14.
a. Plaintiff indicates he does not oppose this factual recitation. However, Plaintiff explains that he did not provide the completed certification form from BMoore Counseling and Consultation Services to the City because it was not from his treating physician at the VA. “Based on the City's arguments and requests for corroboration, Plaintiff wanted to make sure that he was able to provide Benjamin and the City the completed FMLA certification form from the VA.” Pl. Mem. 13.
b. In its reply, the City notes that, although Benjamin advised Plaintiff on September 26, 2018 that the City had not received completed FMLA paperwork, (ECF No. 8218), Plaintiff “concedes that he chose not to turn that completed form in and, instead, decided to wait for the VA to provide him with a separate form-yet, even when he got that, he waited a week (two days after his separation) to turn it in to the City.” City Reply 3.
40. On September 26, 2018, Benjamin sent a follow-up email to Plaintiff noting she “ha[d] not received any additional information from the [Crisis Line] pertaining to the circumstances surrounding [Plaintiff's] investigatory suspension,” and that she had not received anything from the Crisis Line “acknowledging any error or otherwise.” Email from Benjamin, Sept. 26, 2018, 10:24 a.m., ECF No. 82-18. Benjamin asked Plaintiff to contact the Crisis Line “to let them know that [she] would need something in writing to [corroborate Plaintiff's] assertion that they made an error in contacting law enforcement and that you pose no threat to your supervisor or any other individuals at the City of Columbia.” Id. Benjamin informed Plaintiff that he would remain on investigatory suspension until Benjamin received that corroborating information from the Crisis Line. Id.
41. Benjamin's September 26, 2018 e-mail to Plaintiff further stated the following:
The City has allowed you to use sick leave because you submitted a doctor's excuse indicating that you were out due to illness until September 17, 2018. As of today September 26, 2018, the City has not received any official documentation confirming that you have an ongoing medical condition nor have we received any information related to any accommodations that you may need. You were sent FMLA paperwork via email on September 4, 2018 and that paperwork has not been returned. Therefore, you are not on a covered FMLA leave of absence. You will remain on investigatory suspension until additional information is received. You will be allowed to use leave during this period in order to not jeopardize your pending retirement application.
Again, it is your responsibility to send in information related to this incident and your medical condition. Until then, the City has the right to require you to stay out on investigatory suspension or take additional action regarding your employment. Please contact me if you have any questions or need any clarification.Id. (emphasis in original).
42. On the afternoon of September 26, 2018, Plaintiff emailed his contact with the Crisis Line, Mr. Judy, inquiring about a letter that was to be prepared by the Crisis Line and sent to Benjamin and the City to provide the corroboration Benjamin had requested. Pl. emails with VA Crisis Line 4-5, ECF No. 82-22. On the night of September 28, 2018, Judy with the VA Crisis Line forwarded to Plaintiff a draft of the letter the Crisis Line had prepared and intended to send the City so that Plaintiff could review the draft prior to its being finalized. Id. at 2-3.
43. On the afternoon of September 28, 2018, Plaintiff's attorney emailed and faxed a letter to Benjamin, advising her that he represented Plaintiff, providing another absentee form from the VA, and advising that Plaintiff would provide the completed FMLA paperwork as soon as he received it from his providers. Sept. 28, 2018 Letter from Joseph Dickey, Esq. to Benjamin, ECF 82-20. The provided absentee form dated September 27, 2018 indicated Plaintiff had been seen at the Dorn VA Hospital on that date. VA Absentee Form, Sept. 27, 2018, ECF No. 82-19. The absentee form indicated Plaintiff “has been advised not to return to work until October 19, 2018 for purposes of stress management.” Id. The absentee form, signed by Dr. Peruggia, Resident Psychologist, also indicated that “[t]he process to complete FMLA paperwork has been initiated.” Id.
44. The VA sent Plaintiff's completed FMLA provider certification form out to him on October 9, 2018. Oct. 9, 2018 VA Cover Letter to Plaintiff (method of delivery not specified), ECF No. 82-21 at 2; Completed VA FMLA Form (signed on October 9, 2018), ECF No. 82-21 at 3-6. In his deposition, Plaintiff indicates he recalls waiting to pick up the FMLA paperwork at Dorn VA; he indicated it “could have been” on October 9, 2018, but he was not sure. Pl. Dep. 126-27. Plaintiff indicated that he routed the FMLA forms through his attorney's office. Pl. Dep. 129.
45. On the morning of October 12, 2018, Plaintiff sent a follow up email to the Crisis Line inquiring about the status of the Crisis Line's draft letter and whether it had been sent to the City yet. Emails with VA Crisis Line 1. In response, Mr. Judy from the Crisis Line informed Plaintiff that “[t]he VA Privacy Office which has to approve any official communication between the VA and a Veteran will not approve the letter. They are saying that you can get all the information you need for your boss from your medical records which will be more official anyway.” Id.
46. On October 15, 2018, Benjamin sent Plaintiff a letter notifying him that he was “being separated from employment with the City of Columbia effective today October 15, 2018 for ‘showing disrespect to or threatening your supervisor.' This is an offense that carries a sanction up to termination as outlined in the City of Columbia Employee Handbook.” Benjamin Ltr. to Plaintiff, Oct. 15, 2018, ECF No. 82-23. The letter includes a handwritten notation that it was sent by certified mail, return receipt, on October 15, 2018. Id.
a. In its statement of undisputed facts the City indicates that Benjamin sent the termination letter after consulting with the City's attorney. City Mem. 15. Plaintiff notes there is no record evidence of such a consultation. Pl. Mem. 6.
47. In Plaintiff's Charging Party Affidavit he indicated that he received the termination letter from the City on October 15, 2018. Charging Party Aff. ¶ 30.
48. Plaintiff retired from City employment effective October 16, 2018. Pl. email to Benjamin, et al., Oct. 31, 2018, ECF No. 82-24.
49. On Wednesday, October 17, 2018, at 5:29 p.m., Plaintiff's attorney emailed Assistant City Attorney Emma Bennett-Williams, indicating that pursuant to a conversation the two had had, Plaintiff's attorney was forwarding a completed FMLA certification form from a provider at the Dorn VA Medical Center. Email from Dickey, Oct. 17, 2018, ECF No. 8225.
50. On November 1, 2018, Plaintiff requested a grievance hearing in connection with his separation from employment with the City on October 15, 2018. City Employee Handbook 68-70; Pl. Grievance Request, Nov. 1, 2018, ECF No. 82-26. The City's Employee Grievance Committee held a hearing on Plaintiff's grievance on December 11, 2019. Letter to Pl. advising him of hearing, Nov. 20, 2018, ECF No. 82-27. The Committee recommended that the City Manager uphold Plaintiff's separation; the City Manager agreed. Letter to Plaintiff, Dec. 12, 2018, ECF No. 82-28.
51. Benjamin indicated that, during the grievance hearing, Plaintiff did not provide her with any corroborating information that she had requested he provide in September. Benjamin Dep. 91-92. Benjamin also testified, that, to her knowledge, Plaintiff did not provide any information indicating he did not make a threat on his August 31, 2018 911 call. Id. at 9293.
a. In responding to this paragraph, Plaintiff states, “Benjamin's testimony in this matter only provides that Plaintiff did not provide any corroborating information, in her opinion, that demonstrated Plaintiff did not make a threat. Not only did Benjamin speak to Plaintiff's treating physician, VA hotline manager Lee Judy, and Plaintiff, Benjamin also spoke to Lindler who stated and testified that Plaintiff never has threatened her.” Pl. Mem. 7 (not citing to specific portions of the record).
52. On or around March 15, 2019, Plaintiff filed a formal complaint of discrimination on the basis of disability and retaliation (“Charge”) against the City with SCHAC and the EEOC. Charge, ECF No. 82-7 (Charge copy provided is unsigned and undated). The Charge, which expressly incorporates by reference an affidavit from Plaintiff dated March 12, 2019, indicates the dates of discrimination were from August 31, 2018 to October 15, 2018. Id.
53. As set out by the City and not objected to by Plaintiff, in a letter dated March 18, 2019, SCHAC provided Plaintiff with a copy of his “charge of employment discrimination to be processed by [SCHAC].... Your complaint has also been filed with the U.S. Equal Employment Opportunity Commission (EEOC). When [SCHAC] completes the investigation of your complaint, you may ask EEOC to review [SCHAC]'s findings.” Exhibit 7, SCHAC letter to Pl., Mar. 18, 2019; see also Ex. 49, Notice of Charge, Mar. 18, 2018.) The record does not appear to contain these documents, however, Defendant's Exhibit 7 is an Index to the City's Documents Produced (ECF No. 80-8); Defendant's Exhibit 49 is an Index to the City's Exhibits in Support of its Mot. Summ. J. Plaintiff's Charge contains the EEOC Deferral Case number of 14C-2019-00655C. ECF No. 82-7. Documentation from SCHAC contains the SCHAC Complaint Number 1-19-261D,RET. SCHAC Dismissal and Notice of Right to Sue (“RTS”), Sept. 5, 2019, ECF No. 82-30.
The remaining paragraphs (¶¶ 54-57) of the City's Statement of Undisputed Material Facts relate to the issuance of RTSs from SCHAC and the EEOC. Because a portion of the City's substantive argument focuses on the RTS letters and relates to whether administrative remedies have been exhausted and claims timely brought, details regarding same are set forth in evaluating those arguments. See Def. Mem. 20-25, Pl. Mem. 8, 15; see also ex. A to Pl. Mem., EEOC RTS Letter signed and mailed on Sept. 6, 2019, ECF No. 88-1.
III. Analysis
Plaintiff's Complaint includes the following causes of action against the City: FMLA-based causes of action for interference and for retaliation; disability discrimination, failure to accommodate, and retaliation claims, brought pursuant to the ADA/Rehabilitation Act; a hostile work environment claim brought pursuant to the ADA; and a state-law-based abuse of process claim. Plaintiff brings a state-law-based claim of civil conspiracy against the Individual Defendants. Defendants' Motions seek dismissal of all claims.
Although the Complaint includes an invasion of privacy claim against both the City and the now-dismissed United States, Plaintiff indicates he did not intend to bring that claim against the City. Pl. Mem. 21.
A. City of Columbia's Motion
1. Exhaustion and timeliness arguments as to ADA/Rehabilitation Act claims
The City first seeks summary judgment as to all of Plaintiff's ADA-based claims, arguing Plaintiff has not demonstrated that he administratively exhausted these claims. City Mem. 20-23. This argument centers on the record's lack of a Notice of Right to Sue Letter that was issued by the EEOC. Without an EEOC RTS Letter, the City looks to the SCHAC-issued RTS Letter (which the City indicates it produced in discovery), arguing the Complaint was not timely and the SCHAC-issued RTS Letter does not suffice to exhaust federal claims. Id. The City submits that, although Plaintiff referenced an EEOC RTS Letter in his Complaint (Compl. ¶ 12), he failed to attach it as an exhibit to the Complaint as the pleading indicated he would. Further, the City submits Plaintiff failed to produce an EEOC RTS Letter in discovery and objects to any late production of same. City Mem. 20-23.
In his response Plaintiff attaches the EEOC RTS Letter as exhibit A (ECF No. 88-1) and makes short shrift of the City's exhaustion argument, noting that the EEOC RTS Letter indicates it was mailed to both Plaintiff and the City. Pl. Mem. 15. The EEOC RTS Letter indicates it was mailed on September 6, 2019; it also indicates it was mailed to Plaintiff and to Dana M. Thye, Esq., of the City of Columbia. EEOC RTS Letter 1. The Letter also indicates it was copied on Plaintiff's counsel. Id. at 4.
While the undersigned notes the City's various arguments-that the EEOC RTS Letter was referenced in the Complaint but not attached and that the EEOC RTS Letter was not provided by Plaintiff in his discovery responses-the court finds it appropriate to consider the EEOC RTS as it now is plainly before the court and was mailed to the City's counsel at the same time it was mailed to Plaintiff and his counsel. This information notwithstanding, the City makes much of whether the EEOC RTS Letter “even exists.” City Mem. 21 n.9. Although the court agrees in principle with the City's point that Plaintiff is required to turn over documentation that has been requested, under these circumstances, and because Plaintiff has now provided same, the undersigned recommends the EEOC RTS Letter appropriately be considered part of this case's record and the matter considered further on its merits. To be sure, discovery has ended in this matter. Nonetheless, the court retains discretion in discovery-related matters. Cf. Fed.R.Civ.P. 26(b)(2)(C)(i) (noting the court's power regarding discovery “if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.”); Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995) (“The scope and conduct of discovery are within the sound discretion of the district court.”). That the City had access to the very same EEOC RTS Letter whose existence it now questions suggests the document ought to be considered at this time. The merits of Plaintiff's ADA claims have been briefed by the parties. See generally Johnson v. Lexington Cnty. Sch. Dist. 2, C/A 3:15-4807-JMC, ECF No. 77 (D.S.C. Mar. 27, 2019) (in somewhat different procedural circumstances, the court determined it appropriate to consider employee's late-provided EEOC exhaustion documentation and to consider substantive arguments as to the claims at issue). Based on this recommended ruling, further focus on the SCHAC RTS Letter including exhaustion arguments centered only on the SCHAC RTS Letter, is unnecessary.
Alternatively, the City submits Plaintiff's Complaint was not timely filed, focusing on the September 5, 2019 date of the SCHAC RTS Letter, and arguing the Complaint was filed after the 90-day period for filing a Complaint had run. City Mem. 23-24. Plaintiff disagrees, arguing he filed the Complaint within the appropriate 90-day timeframe. Pl. Mem. 15. Plaintiff submits in his memorandum that he received the EEOC RTS Letter on September 13, 2019. Pl. Mem. 15.
After timely filing a charge and receiving a right-to-sue letter from the EEOC, a plaintiff has 90 days to file a lawsuit in federal court. 42 U.S.C. §§ 2000e-5(f)(1), 12117(a). The 90-day period runs from receipt of same. Dunbar v. Food Lion, 542 F.Supp.2d 448 (D.S.C. 2008). As this court has noted, “[w]hen the actual date of plaintiff's receipt of notice is unknown or in dispute, the court presumes receipt three days after mailing.” Dunbar, 542 F.Supp.2d at 450-51 (considering issue in Title VII context). The court notes that Title VII and the ADA claims follow the same administrative-exhaustion framework. See 42 U.S.C. § 12117(a) (indicating that the procedures of the ADA are identical to those provided in Title VII). When this three-day mailing-presumption is added to September 6, 2019, Plaintiff's Complaint was timely filed on December 6, 2019. Accordingly, it is recommended that the City's Motion for Summary Judgment based on failure-to-exhaust or failure-to-timely-file the ADA claims be denied.
Two of Plaintiff's ADA-based causes of action purport to have been brought pursuant to both the ADA and the Rehabilitation Act. Third Cause of Action (disability discrimination, Compl. ¶¶ 71-82); Fifth Cause of Action (failure to accommodate, Compl. ¶¶ 87-98). Defendant asserts the Rehabilitation Act claims should be dismissed as untimely because they were filed more than one year after Plaintiff's October 15, 2018 termination. City Mem. 24-25 (arguing the one-year limitations period applicable to South Carolina Human Affairs Law claims applies by analogy; citing cases). Plaintiff does not discuss the Rehabilitation Act in any manner in his opposition memorandum, let alone the limitations argument. Accordingly, it appears that Plaintiff has abandoned any Rehabilitation-Act-specific claims he may have brought. See Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”). Accordingly, it is recommended that summary judgment be granted to the extent Plaintiff's Third and Fifth Causes of Action purport to have been brought under the Rehabilitation Act.
To recap, the undersigned recommends summary judgment be granted as to Plaintiff's Rehabilitation-Act claims and denied to the extent the City seeks summary judgment of Plaintiff's ADA-based claims on failure-to-exhaust or timeliness grounds. Analysis continues as to the substance of Plaintiff's ADA-based claims.
2. ADA claims
The ADA provides in part that an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(2), 12112(a). Violations of the ADA occur when the employer wrongfully discriminates against a qualified individual with a disability, fails to make reasonable accommodations for him, or retaliates against him for exercising rights under the ADA. See Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001); 42 U.S.C. § 12101, et seq. Plaintiff's Complaint includes ADA-based causes of action for disability discrimination (3d cause of action), hostile work environment (4th cause of action), failure to accommodate (5th cause of action), and retaliation (6th cause of action). The City seeks summary judgment on the merits of all of Plaintiff's ADA-based claims. City Mem. 26-30; Reply 7-10. Plaintiff submits he has presented sufficient evidence to have his claims presented to a jury. Pl. Mem. 15-20.
a) Hostile work environment claim
As an initial matter, the court notes that no party separately discusses the ADA “hostile work environment” claim. Because the City seeks summary judgment as to it and all ADA-based claims, and because Plaintiff does not address it in any manner in opposing summary judgment, the undersigned recommends summary judgment be granted as to the fourth cause of action. See Eady, 609 F.Supp.2d at 560-61. In addition, Plaintiff has not proffered evidence of a “hostile work environment for Plaintiff based on his disability.” Compl. ¶ 84. To establish a hostile work environment claim under the ADA, a plaintiff must prove “(1) he is a qualified individual with a disability; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis exists to impute liability for the harassment to the employer.” Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001). Plaintiff has pointed to no evidence that he was harassed on account of his disability. See generally Rose v. Sumter Cnty. Sch. Dist., No. CV 3:20-01008-MGL, 2022 WL 601858, at *2 (D.S.C. Mar. 1, 2022) (adopting recommendation to grant summary judgment as to ADA-based hostile work environment claim, finding no evidence to tie alleged harassment to employer's potential knowledge of employee's anxiety issues).The court now considers the remaining ADA-based claims in turn.
b) ADA discrimination claim
The ADA prohibits employers from “discriminating] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C. 12112(a). Disability discrimination may be proven through direct and indirect evidence or through the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir. 2015). 780 F.3d at 572; see also Corey v. Aldora Aluminum & Glass Prod., Inc., No. 2:19-CV-1523-SAL-MHC, 2021 WL 4596593, at *3 (D.S.C. July 26, 2021), report and recommendation adopted, No. 2:19-CV-1523-SAL, 2021 WL 4145880 (D.S.C. Sept. 13, 2021). Here, Plaintiff has not proffered direct evidence of discrimination; the parties analyze Plaintiff's claims using the burden-shifting framework. City Mem. 26, Pl. Mem. 15-17, Reply 7-9.
In proceeding under the McDonnell Douglas burden-shifting paradigm, Plaintiff must first set out a prima facie case of disability-based discrimination by proving “evidence sufficient to demonstrate that (1) he ‘was a qualified individual with a disability'; (2) he was ‘discharged'; (3) he ‘was fulfilling his employer's legitimate expectations at the time of discharge'; and (4) ‘the circumstances of his discharge raise a reasonable inference of unlawful discrimination.'” Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 150 (4th Cir. 2012) (quoting Rohan v. Networks Presentations, LLC, 375 F.3d 266, 277 n.9 (4th Cir. 2004)). “Evidence of all four of these elements is necessary to survive summary judgment.” Reynolds, 701 F.3d at 150. If Plaintiff establishes a prima facie case, the burden shifts to Defendant to set forth evidence of a legitimate, nondiscriminatory reason for the adverse action (here, the termination). See McDonnell Douglas Corp., 411 U.S. at 802. The burden then shifts to Plaintiff to provide evidence that Defendant's non-discriminatory justification was merely pretext. See id. at 804. While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with Plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). See also Ennis, 53 F.3d at 58 (citing St. Mary's Honor Center and noting the same in ADA context). Plaintiff must establish “but-for” causation in an ADA claim. Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (“The only remaining question is whether the ADA's text calls for a ‘but-for' causation standard. We hold that it does.”).
The City briefly argues Plaintiff cannot establish his prima facie case because he has offered no record evidence that the City knew he had a disability prior to his October 15, 2018 separation. City Mem. 26. The City acknowledges Plaintiff's two “sick notes” from the VA that indicated Plaintiff had been “advised not to return to work for a period of time ‘for purposes of stress management.'” City Mem. 26; See Aug. 31, 2018 VA Absentee Form, ECF No. 82-8 (indicating Plaintiff had been advised not to return to work until September 17, 2018 “for purposes of stress management”); VA Absentee Form, ECF No. 82-19 (indicating Plaintiff had been advised not to return to work until October 19, 2018 “for purposes of stress management” and further indicating the process to complete FMLA paperwork was “in process”). The City alternatively argues that, even if Plaintiff could establish a prima facie case, he could not show that the City's legitimate, nondiscriminatory reason for terminating him was pretextual. City Mem. 26 (including little legal analysis; the court notes, however, that the City undertakes a more robust pretext analysis in connection with Plaintiff's retaliation claims, see id. at 29-30).
In response, Plaintiff briefly argues that “the evidence in the record would support a reasonable jury determination that Plaintiff has a disability; he was otherwise qualified for his job at the City; he was discharged under circumstances that give rise to an inference of discrimination.” Pl. Mem. 16. He does not specifically point to any evidence of which the City was aware that indicated he had a disability for purposes of an ADA claim. Instead, Plaintiff jumps to other portions of the prima facie analysis, claiming he has shown a strong inference of disability discrimination in that “[o]nce the city learned of Plaintiff's medical condition from the VA and that he was seeking treatment, it appeared that his termination became a requirement that had to happen immediately.” Pl. Mem. 16 (including no record or case citations). Plaintiff also argues it is “notable that Benjamin testif[ied] that the only way Plaintiff could keep his job is if he shared his private conversations about his medical condition with his health provider with Benjamin.” Pl. Mem. 16-17 (citing Benjamin Dep. 72-73). The court notes that Benjamin's actual testimony in that portion of her deposition was that she had indicated she needed a statement from someone other than Plaintiff himself that he did not make a threat against his supervisor. Benj amin Dep. 73.
Neither party provides much detail regarding whether the disability discrimination claim should survive summary judgment. In any event, because the burden of establishing a prima facie case is “not onerous,” see Texas Department of Community affairs v. Burdine, 450 U.S. 248, 253 (1981), and because amendments to the ADA counsel that a party should not have a difficult time establishing he or she has a “disability,” see 42 U.S.C. § 12102(4), the undersigned will assume, without deciding, that Plaintiff has established a prima facie case of disability discrimination and consider in more detail the pretext portion of the analysis.
The City has proffered a legitimate, nondiscriminatory reason for terminating Plaintiff- that he was terminated for “showing disrespect to or threatening [his] supervisor.” Term. Letter, ECF No. 82-23. Benjamin testified that she had listened to the tape of the 911 call that stated that Plaintiff had “expressed homicidal thoughts toward his supervisor.” Benjamin Dep. 29. Plaintiff does not question whether the City has satisfied its burden of persuasion. The burden shifts back to Plaintiff to demonstrate that the City's stated reason was pretextual. “[T]o show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019). Plaintiff must provide evidence that the City “failed to make a reasonably informed and considered decision” before firing him such that “any reliance placed by the employer in such a process cannot be said to be honestly held.” E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 853-54 (4th Cir. 2001) (citation omitted).
At bottom, “it is not [the court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiffs termination.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (citation omitted). While evidence that reasons given for a termination were inconsistent over time, false, or based on mistakes of fact may be relevant to the pretext analysis, see Haynes, 922 F.3d at 225, courts do not act as a “substitute ... for employers as the decisionmakers of last resort in personnel matters.” Huxv. Cnty. of Newport News, Va., 451 F.3d 311, 315 (4th Cir. 2006).
Plaintiff briefly argues he has “pointed to sufficient evidence to create a genuine issue of material fact as to whether City's proffered reasons for his termination, and other materially adverse actions, is pretext[.]” Pl. Mem. 20. In this context, however, he offers no explanation about how “issues of fact” automatically amount to a showing of pretext.
While Plaintiff seems to argue he has created an issue of fact as to whether he did (or did not) threaten his supervisor, the question for the court at this point of the analysis is not whether the City's determination that Plaintiff would be terminated for “showing disrespect or threatening his supervisor” was “‘wise, fair, or even correct.'” See Hawkins v. Pepsico, 203 F.3d 274, 279 (4th Cir. 2000) (quoting DeJarnette, 133 F.3d at 299). As noted in DeJarnette, the court does not sit as a “super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.” 133 F.3d at 299. Instead, the Fourth Circuit has long “recognized the importance of giving an employer the latitude and autonomy to make business decisions” as long as the employer does not violate federal employment statutes. Henson v. Liggett Group, Inc., 61 F.3d 270, 277 (4th Cir. 1995). Plaintiff focuses on his own testimony that he did not threaten his supervisor and information indicating the VA mistakenly contacted law enforcement on August 31, 2018. Arguendo, this evidence could show that Plaintiff did not specifically threaten his supervisor during the August 31, 2018 Crisis Line call. That, however, is not the point at this juncture. Law enforcement agencies had put the City on notice of a specific threat by Plaintiff, giving the City at least a good faith reason to believe it was true. Considering all evidence as a whole, Plaintiff has not demonstrated that City's decision to terminate him in October 2018 after investigating a call he made on August 31, 2018 that prompted law enforcement to enter City offices and Plaintiff's home for a welfare check was pretextual in nature.
Summary judgment is appropriate as to the disability discrimination cause of action.
c) ADA failure-to-accommodate claim
Plaintiff also claims City violated the ADA by failing to make reasonable accommodations for his purported disability. 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. Jacobs, 780 F.3d at 579. Both parties' arguments focus on whether reasonable accommodations were sought and whether the parties appropriately engaged in the interactive process in considering accommodations. See Pl. Mem. 17-18, City Reply 8-9.As recently summarized in another case in this District,
For this purpose of the analysis, neither party focuses on the other portions of the prima facie case in any real detail.
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) (Halperin 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)). . . . 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).Lynch v. Sumter Cnty. Disabilities & Special Needs Bd., Inc., No. CV 3:20-4387-MGL-SVH, 2022 WL 5434250, at *16-17 (D.S.C. Jan. 6, 2022), report and recommendation adopted, No. 3:20-CV-4387-MGL, 2022 WL 3974207 (D.S.C. Sept. 1, 2022).
Here, Plaintiff argues that “at a minimum, the City was aware of Plaintiff's medical condition after the August 31, 2018 incident after communicating with Plaintiff and his medical provider.” Pl. Mem. 17. Plaintiff submits the City had knowledge that Plaintiff “was either seeking treatment or being treated.” Id. Based on that knowledge, Plaintiff submits, the City “failed to take any initiative to engage in an interactive process with Plaintiff in order to accommodate his return to work.” Id. In the memorandum, Plaintiff suggests that “[p]ossible reasonable accommodations could have been reassignment, a change in work location, or a change in Plaintiff's chain of command.” Id. Plaintiff cites several cases, including Jacobs, in support of his argument that the City breached its “good-faith duty” to engage with him “in an interactive process to identify a reasonable accommodation.” Jacobs, 780 F.3d at 581. Plaintiff asserts this is so “even if the employee fails to identify a specific, reasonable accommodation.” Id., see Pl. Mem. 17.
Plaintiff's argument fails. Reviewing Jacobs in more detail, the Fourth Circuit found the duty for the interactive process applicable only “when an employee communicates her disability and desire for an accommodation-even if the employee fails to identify a specific, reasonable accommodation.” Jacobs, 780 F.3d at 581 (citing Wilson v. Dollar Gen. Corp., 717 F.3d 337, 347 (4th Cir. 2013) (emphasis added)). While it is true that, as of August 31, 2018, the City became aware that Plaintiff went to the VA for some treatment, there is no evidence that any information as to a potential “disability” was available to the City at that time. Moreover, nothing in the record suggests that Plaintiff somehow communicated his desire for any sort of accommodation. The only evidence of any reference to accommodations (until counsel's suggested accommodations in the memorandum opposing summary judgment) came from Benjamin's September 26, 2018 email in which she noted that, as of that date, the City “has not received any official documentation confirming that you have an ongoing medical condition nor have we received any information related to any accommodations that you may need.” Sept. 26, 2018 email, ECF No. 82-18.
Plaintiff's failure to communicate a “disability” and, even more to the point, his failure to seek accommodations for such, are fatal to his failure-to-accommodate claim. In addition, even if Plaintiff's now-suggested accommodations had been made known to the City in 2018, there is a presumption that an accommodation requesting to change supervisors or to be reassigned would not be reasonable. Plaintiff has not provided any evidence that any such accommodations would be reasonable in the context of the City's workplace. See Smith v. Haynes Inc., No. CV 2:17-cv-3446-BHH-SVH, 2019 WL 2648549, at *4 (D.S.C. Jan. 18, 2019), (noting employee has burden of rebutting presumption that an accommodation to change supervisors is not reasonable; citing, inter alia, Gaul v. Lucent Techs., Inc., 134 F.3d 576, 579 (3d Cir. 1998)), report and recommendation adopted, 2019 WL 2644022 (D.S.C. June 27, 2019); see also Schneider v. Giant of Md., LLC, 389 Fed.Appx. 263, 271 (4th Cir. 2010) (“[T]he ADA does not require reassignment ‘when it would mandate that the employer bump another employee out of a particular position.'” (citation omitted) (quoting E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 355 (4th Cir. 2001)).
At bottom, Plaintiff has not presented evidence sufficient to demonstrate he actually sought an accommodation, let alone an accommodation that would be reasonable and allow him to perform the essential functions of his job. As a matter of law, that no interactive process took place under these circumstances does not amount to an ADA violation. Plaintiff cannot satisfy his burden of demonstrating the third prong of his prima facie case-that he could perform essential functions of his position with accommodations. Accordingly, further analysis of this cause of action is unnecessary. The City's Motion for Summary Judgment should be granted as to the ADA failure to accommodate cause of action.
d) ADA retaliation claim
The City also seeks summary judgment as to Plaintiff's ADA retaliation claim. Under 42 U.S.C. § 12203, “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” As with the ADA generally, courts typically apply the standards for Title VII retaliation claims to ADA retaliation claims. Lewis-Davis v. Bd. of Educ. of Baltimore Cnty., No. CV ELH-20-0423, 2021 WL 4772918, at *15 (D. Md. Oct. 13, 2021) (citing Laird v. Fairfax Cnty., 978 F.3d 887, 893 n.5 (4th Cir. 2020); S.B. ex rel. A.L. v. Bd. of Educ. of Hartford Cnty., 819 F.3d 69, 78 (4th Cir. 2016); Rhoads, 257 F.3d at 391.) Plaintiff may demonstrate retaliation through either direct evidence of retaliation or through the McDonnell Douglas pretext framework.
The City argues Plaintiff fails to establish a prima facie retaliation claim because he does not provide evidence of any protected activity or causal relationship between any such perceived activity and Plaintiff's termination. The City also argues that, even if Plaintiff could establish a prima facie case, he cannot establish the requisite pretext. City Mem. 26-30. While his position could be more clear, Plaintiff generally references both the direct/indirect method of proof and the prima facie/pretext method. Pl. Mem. 19-20 (setting out general case law discussing these proof schemes). Plaintiff never then explains how he believes he has provided either direct/indirect proof of ADA-based retaliation or, alternatively, how he has shown a prima facie case of discrimination or how the City's stated reasons for his termination were pretextual.
To the extent Plaintiff's argument is construed as one that he has demonstrated sufficient direct/indirect evidence to survive summary judgment, the undersigned disagrees. “Direct evidence encompasses conduct or statements that both (1) reflect directly the alleged [retaliatory] attitude, and (2) bear directly on the contested employment decision.” Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013) (internal quotation marks omitted). However, “in the absence of a clear nexus with the employment decision in question, the materiality of stray or isolated remarks is substantially reduced.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010). As noted by United States District Judge Richard Gergel in Walton v. McPherson, No. CV 2:18-1568-RMG, 2020 WL 7258231, at *4 (D.S.C. Dec. 10, 2020), direct evidence “‘is evidence which, if believed, would prove the existence of a fact without any inference or presumptions.'”) (quoting O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995), rev'd on other grounds, 517 U.S. 308 (1996)). Further, in Bickford v. Denmark Technical College, 479 F.Supp.2d 551 (D.S.C. 2007), the court noted that “[d]irect evidence is evidence that the employer announced, admitted, or otherwise indicated that the forbidden consideration was a determining factor” in the employer's challenged action. Id. at 564 (internal quotation omitted).
Plaintiff simply has pointed to no such evidence, nor will the court make arguments for him. Plaintiff's argument requires one to extrapolate and make inferences or presumptions not applicable to the direct-evidence paradigm. Walton v. McPherson, No. CV 2:18-1568-RMG, 2020 WL 7258231, at *4. Plaintiff has not presented direct evidence of ADA-based retaliation. By way of example, direct evidence may be like that in Robinson v. Brennan, No. CV 3:18-3460-MGL-PJG, 2021 WL 1884041 (D.S.C. Mar. 31, 2021), report and recommendation adopted, No. CV 3:18-3460-MGL, 2021 WL 1863258 (D.S.C. May 10, 2021), in which the court denied summary judgment as to retaliation claim, finding testimony that the decisionmaker voiced displeasure as to the plaintiff's filing of EEO cases and grievances prior to terminating her and that the same decisionmaker said after the fact that he had terminated the plaintiff because he was tired of her filing EEO cases and grievances. Here, the decisionmakers made no such direct admissions or announcements.
Further, to the extent Plaintiff seeks to proceed under the prima facie analysis, the undersigned is of the opinion he cannot succeed. To prevail under the McDonnell Douglas framework as to retaliation, Plaintiff must first establish a prima facie case by showing that: (1) he engaged in a protected activity; (2) his employer took an adverse employment action against him; and (3) a causal connection existed between the protected activity and the asserted adverse action. Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004) (citing Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004)); Rhoads v. F.D.I.C., 257 F.3d 373, 392 (4th Cir. 2001); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997). Protected activities under the ADA include opposing any act or practice made unlawful by the ADA, and making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under the ADA. 42 U.S.C. § 12203(a). A request for an accommodation under the ADA also constitutes a protected activity. See Jacobs, 780 F.3d at 578-79. “Once the plaintiff makes [the prima facie] case, the employer can defend itself by producing ‘evidence of a legitimate, non-discriminatory reason for taking the adverse employment action.'” Id. (quoting Bryant v. Aiken Reg'lMed. Ctrs. Inc., 333 F.3d 536, 543 (4th Cir. 2003)). At that point, the plaintiff has the opportunity to prove that the employer's legitimate, non-discriminatory reason is pretextual. Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 271 (4th Cir. 2001) (citation omitted).
As discussed above in connection with the failure to accommodate claim, Plaintiff did not request an accommodation. Even assuming, arguendo, that Plaintiff participated in an ADA-protected activity and otherwise could establish a prima facie case, he has not provided evidence sufficient to support his burden of showing his termination would not have taken place but for his claimed protected activities. As discussed in more detail in connection with the discrimination claim, the City has provided a legitimate, nondiscriminatory reason for terminating Plaintiff-that he was terminated for “showing disrespect to or threatening [his] supervisor.” Term. Letter, ECF No. 82-23.
Plaintiff again submits he has created a genuine issue of fact as to whether the City's stated reasons are pretextual. Citing E.E.O.C. v. Sears Roebuck & Co., 243, F.3d 846, 852-53 (4th Cir. 2001), Plaintiff claims he can survive summary judgment by showing the City's proffered reasons for termination are “inconsistent over time, false, or based on mistakes of fact.” Pl. Mem. 20. He submits that because he has presented issues of fact summary judgment is inappropriate. However, the court notes that the E.E.O.C. v. Sears Roebuck decision does not stand for the proposition that any “mistake of fact” related to a proffered nondiscriminatory reason automatically is sufficient to demonstrate pretext. In that case, the court looked at the employer's statement that it had taken an adverse employment action based on a belief that an employee previously had been investigated for sexual harassment. 243 F.3d at 853. However, the court emphasized that the employer subsequently noted that belief had been unfounded and had not been “honestly held.” Id.
Here, regardless of whether Plaintiff did or did not make an explicit threat toward his supervisor during the August 31, 2018 call, the evidence is that the employer had reason to believe he had made such threats. Plaintiff has offered no explanation of how he has shown “issues of fact” indicating the City's beliefs were not honestly held. Without such evidence the question for the court at this point of the analysis is not whether the City's determination that Plaintiff would be terminated for “showing disrespect or threatening his supervisor” was “‘wise, fair, or even correct.'” See Hawkins, 203 F.3d at 279 (quoting DeJarnette, 133 F.3d at 299). Plaintiff has not demonstrated pretext as to the City's decision to terminate him in October 2018 after investigating a call he made on August 31, 2018 that prompted law enforcement to enter City offices and Plaintiff's home for a welfare check. Summary judgment is appropriate as to the ADA-based retaliation cause of action.
3. FMLA
Plaintiff's Complaint alleges the City violated the FMLA by interfering with his FMLA rights (1st Cause of Action) and by retaliating against him for exercising such rights (2d Cause of Action). Compl. ¶¶ 56-70. The City seeks summary judgment as to both causes of action.
a) Interference
The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” any right under the FMLA. 29 U.S.C. § 2615(a)(1). “To make out an ‘interference' claim under the FMLA, an employee must . . . demonstrate that (1) he is entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) that [the] interference caused harm.” Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). Plaintiff must show not only the “fact of interference, but also that the violation prejudiced [him] in some way.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002); see 29 U.S.C. § 2617(a)(1).
Once an employer is on notice that an employee has a need for FMLA leave, the employer must provide an individual, written notice to affected employees that an absence qualifies under the FMLA. See 29 C.F.R. § 825.300. The employer must give an employee who may be entitled to FMLA leave two types of individualized notice: a “rights and responsibilities notice,” 29 C.F.R. § 825.300(c); and a “designation notice,” 29 C.F.R. § 825.300(d). As with any interference, if a notice violation took place, “the ‘FMLA's comprehensive remedial mechanism' grants no relief absent a showing that the violation prejudiced [the employee].” Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 301 (4th Cir. 2016) (quoting Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)).
The parties agree Plaintiff was entitled to FMLA leave. In opposing summary judgment Plaintiff first cites generally to his Complaint, framing his interference claim as the City's “‘restraining Plaintiff from taking FMLA leave upon being first notified about his serious health condition, wrongfully requiring Plaintiff to submit FMLA documents based on the HR Director's personal timeline, failing to provide required notices to Plaintiff, failing to approve Plaintiffs FMLA leave, and terminating Plaintiff after he submitted his physician completed documents.” Pl. Mem. 10 (citing and quoting Compl. ¶ 62 (closing internal quotation mark omitted by Plaintiff)). More particularly, Plaintiff's focus is on the City's alleged failure to provide Plaintiff with an FMLA eligibility form until September 26, 2018, “[a]lmost a month after first becoming aware of Plaintiff's medical condition.” Pl. Mem. 12 (generally citing to Benjamin's Dep.). He submits the City, through Benjamin, had knowledge of his serious health conditions after communication with the VA (citing generally to Benjamin's deposition), but “still did not provide FMLA eligibility notice to Plaintiff but instead chastised Plaintiff about not divulging his confidential private health information and threatened his job.” Pl. Mem. 11-12 (citing Benjamin Dep. 72-73). Without further analysis of this point, Plaintiff argues this allegedly delayed notice “impeded Plaintiff's ability to obtain his FMLA leave and prejudiced him from getting his FMLA certification form completed by the VA sooner.” Pl. Mem. 12. Plaintiff continues by noting he had been placed on investigatory suspension while information was gathered. He submits, “Benjamin knew that Plaintiff was having difficulty obtaining his FMLA certification form from the VA but decided to expedite his termination while he was waiting for the facts and forms to be gathered.” Id. (citing Benjamin Dep. 52). This, Plaintiff argues, is sufficient evidence of “interference of Plaintiff's ability to take his FMLA leave” to require denial of summary judgment. Id.
It seems then, that Plaintiff sets out two arguments regarding the interference cause of action, somewhat conflating the issue of whether there was interference at all and whether such interference (if any) caused him prejudice.
As noted in the City's Reply, the first assertion of interference (or prejudice)-that the City waited until late September 2018 to give Plaintiff's his FMLA notice-is belied by the undisputed factual record. To be sure, the court is to construe all facts and inferences in Plaintiff's favor in considering the City's motion. However, Plaintiff has cited to no record evidence to support his factual assertion that he did not receive the FMLA notification paperwork until September 26, 2018. Pl. Mem. 11-12. Other than general citations to Benjamin's deposition, Plaintiff cites to pages 72-73 of that transcript in support of his argument that Benjamin delayed in providing FMLA notice to Plaintiff, thereby interfering with his ability to seek FMLA leave and prejudicing him from obtaining his FMLA form from the VA sooner. Pl. Mem. 12. However, nothing in that portion of her deposition so indicates. Rather, in those pages Benjamin responds to opposing counsel's questioning of whether the City had required Plaintiff to share conversations he had with his medical provider “in order to keep his job[.]” Benjamin Dep. 72-73. Benjamin's response was that Plaintiff was to provide corroborating details that he did not make a threat against his supervisor from whatever source (other than Plaintiff) they derived. Id. Nowhere on those pages is FMLA notice/paperwork discussed. Further, on September 4, 2018, Benjamin and Plaintiff had a telephone call in which FMLA-eligibility was discussed and, also on September 4, 2018, Benjamin forwarded to Plaintiff a blank FMLA form (“Certification of Health Care Provider for Employee's Serious Health Condition (FMLA)”). Sept. 4, 2018 email and form, ECF No. 82-15. Plaintiff discussed having received that form in his deposition. Pl. Dep. 110-112. Further, in opposing summary judgment, Plaintiff “adopt[ed]” as undisputed facts set out by Defendant that the September 4, 2018 phone call took place and the form was sent as an attachment to a September 4, 2018 email. City Mem. 11, Pl. Mem. 5 (fact para. 33). In other words, only counsel's argument in the memorandum opposing summary judgment suggests that the City did not provide the FMLA eligibility form until September 26, 2018. Argument of counsel, unsupported by appropriate record citations, is not evidence. See, e.g., Tate v. S.C. Dep't of Health & Hum. Servs., No. CV 3:21-1804-JMC-PJG, 2022 WL 4125651, at *3, n.1 (D.S.C. Mar. 31, 2022) (finding no issue of fact created as to alleged comparator's race in view of record evidence that comparator was African American, notwithstanding counsel's statement to the contrary in opposing summary judgment), report and recommendation adopted, No. CV 3:21-1804-MGL, 2022 WL 3655245 (D.S.C. Aug. 25, 2022). Further, Plaintiff cannot “adopt” a fact in one place and dispute it elsewhere in hopes of creating a factual issue. Plaintiff has not set out an interference claim or shown prejudice based on the notice issue.
Plaintiff's second interference/prejudice argument is that the City accelerated the investigation process and terminated him although it knew he was in the process of having the paperwork completed. Pl. Mem. 28 (citing to Benjamin Dep 52, 55). Benjamin testified that, as of September 27, 2018, she was aware that Plaintiff was awaiting his FMLA paperwork from the VA. Tr. 52. How this would amount to the City's interfering with FMLA rights is unclear. The undersigned is not convinced this is enough to demonstrate FMLA interference. Even assuming, arguendo, Plaintiff has set out an issue of fact as to interference, the undersigned agrees with the City that undisputed facts prevent Plaintiff from demonstrating prejudice based on the City's timeline. The undisputed evidence is that, unbeknownst to the City at the time, Plaintiff had obtained completed FMLA paperwork from one of his healthcare providers as of September 25, 2018. Benjamin emailed Plaintiff on September 26, 2018, inquiring about the completed FMLA form and noting Benjamin was not considered to be on FMLA leave at that time. ECF No. 82-18. Plaintiff did not provide the City with that completed FMLA form once it was completed but continued to wait on the VA's completed form. The VA FMLA form was completed on October 9, 2018; however, it was not provided to the City until October 17, 2018, two days after Plaintiff was terminated. Plaintiff could have turned in a completed FMLA form well before he (through his counsel) did so. Plaintiff cannot demonstrate he was prejudiced by the City's actions relative to his FMLA leave.
Summary judgment should be granted to the City as to Plaintiff's FMLA interference cause of action.
b) Retaliation
The framework for establishing retaliation under the FMLA mirrors that of ADA-based retaliation, discussed above. That is, an employee may pursue such a claim using direct or indirect evidence or through using the burden-shifting framework of McDonnell Douglas. See Fry v. Rand Constr. Corp., 964 F.3d 239, 245 (4th Cir. 2020); Laing v. Fed. Exp. Corp., 703 F.3d at 717 (“FMLA retaliation claims are analogous to discrimination claims brought under Title VII.” (citing Yashenko v. Harrah's N.C. Casino Co., 446 F.3d 541, 551 (4th Cir. 2006))). Here, although Plaintiff references the direct-evidence standard he focuses on the burden-shifting form of proof. Pl. Mem. 13-15. To establish a prima facie case, Plaintiff must show that (1) he engaged in a protected activity; (2) the employer took an adverse employment action against him; and (3) the adverse action was causally connected to the plaintiff's protected activity. Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016).
Here, the City briefly submits Plaintiff cannot establish a prima facie case because he has not shown he participated in an FMLA-based protected activity and, even if he did, he cannot show his termination was causally connected to such activity. City Mem. 28-29. Further, the City argues, Plaintiff cannot prevail because he cannot establish that the legitimate, nondiscriminatory reason given for his termination was pretextual. Id. at 29-30.
The undersigned is of the opinion that Plaintiff has shown evidence sufficient to establish a protected activity. Plaintiff's September 4, 2018 conversation with Benjamin, followed by her sending him the FMLA paperwork, suffice to do this. Furthermore, Benjamin was aware at least as of September 27, 2018 that the VA was processing Plaintiff's FMLA paperwork. It is far from clear that Plaintiff has provided causal link between the FMLA-protected activity and his termination, however.
In any event, noting the City's reply focuses solely on the pretext prong of the FMLA-based retaliation claim, see City Reply 6-7, the undersigned assumes without deciding that a prima facie case can be established. In any event, considering the pretext analysis, summary judgment for the City remains appropriate.
As discussed above in connection with the ADA claims, the City has set out a legitimate, nondiscriminatory reason for terminating Plaintiff. He was terminated for “showing disrespect to or threatening [his] supervisor.” Term. Letter, ECF No. 82-23. Benjamin testified that she had listened to the tape of the 911 call that stated that Plaintiff had “expressed homicidal thoughts toward his supervisor.” Benjamin Dep. 29. Again, Plaintiff does not question whether the City has satisfied its burden of persuasion.
The burden shifts back to Plaintiff to demonstrate that the City's stated reason was pretextual. Plaintiff again argues the City's stated reason is pretextual because “[n]either Lindler nor Benjamin heard Plaintiff make any threat to his supervisor.” Pl. Mem. 14 (citing generally Lindler and Benjamin Deps.). Plaintiff notes the City police had not deemed Plaintiff a threat. Id. (citing generally Benjamin Dep.). Rather, Plaintiff states, “The true reason for Plaintiff's termination was that his FMLA was going to be approved upon the VA finally completing his certification form and Benjamin had to hastily terminate Plaintiff before he was able to submit the form.” Pl. Mem. 14-15.
As noted above, in considering Plaintiff's pretext argument, the question now is not whether the record includes specific evidence that Benjamin and Lindler themselves heard Plaintiff make threats. Rather, the question for the court at this point of the analysis is not whether the City's determination that Plaintiff would be terminated for “showing disrespect or threatening his supervisor” was “‘wise, fair, or even correct.'” See Hawkins, 203 F.3d at 279 (quoting DeJarnette, 133 F.3d at 299). The court does not sit as a “super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.” 133 F.3d at 299.
Plaintiff's conjecture that the “real reason” he was terminated was because the FMLA paperwork could be provided, requiring FMLA leave to be granted, does not change this conclusion. Here, considering all evidence as a whole, Plaintiff has not demonstrated that City's decision to terminate him in October 2018 after investigating a call he made on August 31, 2018 that prompted law enforcement to enter City offices and Plaintiff's home for a welfare check was pretextual in nature. Summary judgment is appropriate as to the FMLA retaliation cause of action.
4. Abuse of process
Plaintiff's remaining cause of action against the City is one for abuse of process in which Plaintiff avers the City “engaged in a willful act to keep Plaintiff on investigatory suspension and to terminate his employment.” Compl. ¶ 121; see Id. ¶¶ 120-25. As explained by this court:
For abuse of process, the plaintiff must show (1) an ulterior purpose, and (2) a willful act in the use of the process that is not proper in the regular conduct of the proceeding. Pallares v. Seinar, 756 S.E.2d 128, 133 (S.C. 2014). “Process” as used in this context is interpreted to include the entire range of procedures incident to the litigation process, including issuing subpoenas. Id. (citing Food Lion, Inc. v. United Food & Commercial Workers Int'l Union, 567 S.E.2d 251, 253 (S.C. Ct. App. 2002)).Winfrey v. Am. Fire & Cas. Ins. Co., No. CV 3:16-3275-MBS, 2017 WL 11285241, at *7 (D.S.C. Aug. 7, 2017).
The City seeks summary judgment, arguing “internal personnel practices are not ‘process' under this state tort law.” City Mem. 34 (citing Hainer v. Am. Med. Int'l, Inc., 492 S.E.2d 103, 107 (S.C. 1997); Swicegood v. Lott, 665 S.E.2d 211, 214 (S.C. Ct. App. 2008)). In other words, the City submits there was no use of “process” that could support this cause of action.
In response, Plaintiff does not address the issue of whether he has established the City's use of any “process” sufficient to satisfy South Carolina law. Rather, Plaintiff focuses on the investigatory suspension as the process, arguing the City, through placing him on investigatory suspension, had Plaintiff's termination as an “illegitimate ‘collateral aim' of the suspension and rejection of his FMLA documents.” Pl. Mem. 21-22.
The undersigned agrees with the City. Plaintiff has not demonstrated that the City utilized any civil or criminal “process” by placing him on investigatory suspension while it considered its personnel actions in the wake of the August 31, 2018 events. While the term “process” is broadly interpreted to include the entire range of procedures incident to the litigation process, Pallares, 756 S.E.2d at 133, the City's use of its investigative procedures in this matter do not amount to litigation-related “process.” Plaintiff has not demonstrated his termination was an illegitimate collateral aim of the investigation. To find otherwise would suggest any internal investigation related to personnel matters that resulted in termination might result in an abuse of process claim. Summary judgment is appropriate.
B. Individual Defendants' Motion
The Individual Defendants, Benjamin and Lindler, seek summary judgment as to the only cause of action against them: a state-law-based claim of civil conspiracy. Indiv. Defs. Mot., ECF No. 79. Last year, the court considered and denied the Individual Defendants' Motion for Judgment on the Pleadings (“MJOP”) as to this same cause of action. Order, ECF No. 48. In that MJOP, the Individual Defendants argued, inter alia, in the case of an at-will employee such as Plaintiff, no termination-based civil conspiracy claim may lie. See MJOP 4-9, ECF No. 26-1 (citing to various cases, including Angus v. Burroughs & Chapin Co., 596 S.E.2d 67, 70 (S.C. 2004) (“Angus I”) and Faile v. Lancaster Cnty., C. A. No. 0-11-2206-CMC, 2013 WL 786447 (D.S.C. Mar. 1, 2013)). In denying the Rule 12 motion, the court acknowledged the general rule was as set out by the Individual Defendants but noted there were narrow exceptions, particularly that separate allegations other than termination may be actionable in certain circumstances. Order 3, ECF No. 48 (referencing, e.g., Reed v. Aiken Cnty., C. A. No. 1:09-1744-MBS, 2010 WL 2985805, at *3 (D.S.C. July 26, 2010) and noting at-will employment doctrine does not govern actions by employees based on harm other than termination). Plaintiff's Complaint, which then was under consideration at the Rule 12 stage, included several allegations against the Individual Defendants-such as improper use of the investigatory suspension, providing incorrect information to Plaintiff, and failing to provide FMLA paperwork to Plaintiff-that arguably could be wrongs separate from the wrong of termination. Id. (citing Aug. 26, 2020 R&R 8, ECF No. 38). Notably, however, the Order (and the R&R) indicated that, while the court was permitting the matter to proceed beyond the Rule 12 stage, “[I]t is far from a given whether [McBride] will be able to provide evidence (at the summary-judgment stage or beyond) as to specific, independent acts taken by both [the Individual Defendants] in their individual capacities that support the pleaded civil-conspiracy claim.” Order 4 (quoting Aug. 26, 2020 R&R 10).
Now, discovery has been completed, and the Individual Defendants seek summary judgment as to the civil conspiracy claim, arguing Plaintiff has not presented evidence of actions by the Individual Defendants that are separate and apart from his termination. In Plaintiff's deposition, he described his conspiracy claim as follows:
Q....What is the goal of the conspiracy?
A. For me to be separated from the City and not to return back.
Q. Okay, so you believe the goal of the conspiracy was to terminate your employment?
A. Yes, sir. And-further to humiliate me going after my retirement.Pl. Dep. 184-85. Specifically regarding Plaintiff's retirement benefits, Plaintiff indicated he had heard Benjamin wanted to take his retirement benefits from him. Pl. Dep. 185. However, Plaintiff acknowledged that he received his retirement benefits. Pl. Dep. 186. Nothing ties the actions of Benjamin or Lindler to causing harm to Plaintiff other than his termination. In other words, Plaintiff has not discovered and presented evidence that the Individual Defendants undertook actions that caused harm separable from the harm he alleges from his termination. As discussed above, for example, Plaintiff's investigatory suspension related to his eventual termination. Plaintiff's alleged wrongs are not attributable to the Individual Defendants in a way that would permit a civil conspiracy claim against them to be considered by a jury. Plaintiff has not set out genuine issues of material fact as to any wrongs unrelated to his termination. Summary judgment is appropriate as to Plaintiff's civil conspiracy claim against Benjamin and Lindler. E.g., Angus I, 596 S.E.2d at 70; Faile v. Lancaster Cnty., 2013 WL 786447; see also Smith v. Palmetto Dental Care, P.A., C. A. No. 7:17-1043-AMQ-KFM, 2018 WL 3611368 (D.S.C. July 27, 2018) (dismissing as a matter of law individual-capacity civil conspiracy claims against individual defendants, noting allegations that the alleged conspirators cooperated and encouraged each other to isolate the plaintiff from meetings were not actionable because those actions concerned conduct that culminated in termination).
Plaintiff's suggestion that the court may not consider South Carolina law as set out in cases that were ruling on Rule 12 motions, Pl. Mem. 25, is perplexing and unavailing.
In making this recommendation the undersigned notes Plaintiff's argument that he has presented issues of fact that ought to be considered by a jury. Pl. Mem. 24-26. As an initial matter, Plaintiff's suggestion that the “allegations within Plaintiff's Complaint have previously been ruled upon and the issue to address now is whether there is a genuine issue of material fact or note related to Plaintiff's civil conspiracy claim against the Individual Defendants,” Pl. Mem. 25, misapprehends the law at this summary judgment stage. Rather, as made plain in the court's order at the Rule 12 stage, Plaintiff is required to provide evidence of wrongs distinct from the termination. Order 4. See generally Celotex, 477 U.S. at 324 (holding to survive summary judgment the nonmoving party may not rest on the allegations averred in his pleadings). As noted above, Plaintiff has not done this. In fact, his legal argument begins by noting that his claim against the Individual Defendants is premised on their “engaging in wrongful acts not within the scope of their official duties such as violating policies and other laws that resulted in Plaintiff's termination.” Pl. Mem. 24 (emphasis added). That Benjamin and Lindler communicated regarding Plaintiff's workplace behavior and performance is an expected byproduct of any investigation of an employee's conduct. The suggestion in Plaintiff's legal memorandum that such discussion was intended to “ostracize Plaintiff, harm his reputation, and inevitably terminate” him does not transform Plaintiff's claim into one not centered on his termination. In fact, in the words of Plaintiff's memorandum, any intention to ostracize and harm Plaintiff's reputation was “inevitably” tied to his termination. Plaintiff's own testimony focused on his termination being the alleged conspiracy's goal. Plaintiff has not provided evidence otherwise. Summary judgment should be granted as to the civil conspiracy claim against Individual Defendants Benjamin and Linder.
IV. Conclusion and Recommendation
For the reasons set forth above, it is recommended that both pending Motions for Summary Judgment, ECF Nos. 79 and 80, be granted and this matter be ended.
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.”