Opinion
Civil Action No. 7:17-cv-02337-TMC-JDA
10-16-2018
Morgan Simmons, Plaintiff, v. Spartanburg County, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Defendant's motion for summary judgment. [Doc. 44.] Plaintiff alleges race discrimination and retaliation claims pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). [Doc. 1.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff, proceeding pro se, filed this action on August 31, 2017. [Doc. 1.] On June 25, 2018, Defendant filed a motion for summary judgment. [Doc. 44.] Plaintiff filed a response in opposition on July 24, 2018 [Doc. 53], and Defendant filed a reply on July 31, 2018 [Doc. 55]. Accordingly, the motion for summary judgment is ripe for review.
BACKGROUND
Defendant hired Plaintiff to work as a Technical Support Technician in the IT department July 2013. [Doc. 44-2 at 2-3.] Plaintiff's direct supervisor was Wyatt Shennan ("Shennan"), Client Services Manager, and Shennan's supervisor was Kim Danner ("Danner"), Director of Information Technology. [Id. at 3, 4; Doc. 55-2 ¶ 1.] On June 28, 2014, Plaintiff was promoted to work in the Communications/911 department. [Docs. 44-2 at 3; 55-2 ¶ 2.] Danner; Mike Flynn ("Flynn"), Director of Spartanburg County Communications/911; and Kevin White ("White"), IT Infrastructure Manager, selected Plaintiff for the position in the Communications/911 department. [Doc. 44-2 at 4.] Although Plaintiff's physical workplace changed, he never relinquished responsibilities in the IT department. [Doc. 55-2 ¶ 2; see Doc. 44-2 at 4, 10.] After Plaintiff was promoted to the Communications/911 department, Flynn was his director, and he could attend training with White. [Doc. 44-2 at 4.]
Plaintiff, who is African American, alleges that he was discriminated against on October 2, 2014, when he was told he was not supposed to disable user accounts but white males were allowed to disable accounts. [Docs. 1-1 at 3; 53 at 3 (citing Doc. 53-1 at 1-4).] On May 8, 2015, he was not allowed to order cell phones even though his white, male co-worker was allowed to order cell phones without any cell phone experience. [Docs. 1 at 5, 6; 53 at 2 (citing Doc. 53-1 at 18, 20, 30-31).] Plaintiff contends that he was threatened with disciplinary action on December 22, 2015, for suggesting to a white male with 30 years of technology experience that he use new technology. [Docs. 1 at 5, 7; 53 at 1 (citing Doc. 53-1 at 11-14).]
On February 10, 2016, Plaintiff completed an intake questionnaire with the United States Equal Employment Opportunity Commission ("EEOC"), asserting that Defendant had discriminated against him on the basis of race. [Docs. 1 at 5; 1-1 at 3-6.] Plaintiff contends that he was subsequently retaliated against when his name was removed from an electronic mail distribution list that received help desk tickets from 911 [Doc. 53 at 3 (citing Doc. 53-1 at 8)], he was moved to a new office in March 2016 [Docs. 1 at 5, 7; 53 at 1], he was not invited to a recognition meeting [Doc. 53 at 2 (citing Doc. 53-1 at 15-16)], his yearly evaluation was changed [Docs. 1 at 5, 7; 53 at 3 (citing Doc. 53-1 at 63-64)], and he was denied training [Doc. 53 at 2 (citing Doc. 53-1 at 38-41)]. Further, Plaintiff was told to move on and that he was trying to set up another employee when he reported the employee for tampering with the network. [Id. at 3 (citing Doc. 53-1 at 54-57).] The EEOC issued a Dismissal and Notice of Rights on June 12, 2017 [Doc. 1-1 at 1; see id. at 2], and Plaintiff filed this action on August 31, 2017, asserting race discrimination and retaliation in violation of Title VII [Doc. 1].
Although Defendant addresses a hostile work environment claim in its memorandum in support of the motion for summary judgment [Doc. 44-1 at 8-9], neither Plaintiff's Complaint nor his response in opposition to the motion assert a hostile work environment claim [see Docs. 1; 53].
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.(A) 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
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
DISCUSSION
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either "opposed any practice made an unlawful employment practice by this subchapter" or has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The purpose of this antiretaliation provision is to prevent "an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006).
Through the two clauses of the antiretaliation provision, Title VII protects activities that "fall into two distinct categories: participation or opposition." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). Here, Plaintiff alleges he engaged in participation activity by filing a charge of discrimination with the EEOC.
Absent direct or indirect evidence of discrimination or retaliation, a Title VII plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to establish a claim of employment discrimination or retaliation. Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 249 (4th Cir. 2015); Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory and nonretaliatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination or retaliation created by the prima facie case, and "[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). If the employer articulates a legitimate, nondiscriminatory and nonretaliatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination or retaliation. McDonnell Douglas, 411 U.S. at 804.
The briefing by the parties addresses only the McDonnell Douglas burden-shifting framework. [Docs. 44-1; 53; 55.]
To establish a prima facie case of discrimination under Title VII, a plaintiff must demonstrate (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was performing his job duties at a level that met the employer's legitimate expectations at the time of the adverse employment action; and (4) other employees who are not members of the protected class did not suffer the adverse employment action under similar circumstances. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002); see also EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n.2 (4th Cir. 2001) ("What is critical with respect to the fourth element is that the plaintiff demonstrate he was not hired (or fired or not promoted, etc.) 'under circumstances which give rise to an inference of unlawful discrimination.'" (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981))). To establish a prima facie case of retaliation, a plaintiff must demonstrate "(1) []he engaged in a protected activity, (2) the employer acted adversely against h[im], and (3) there was a causal connection between the protected activity and the asserted adverse action." Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (citing Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007)).
With respect to both Plaintiff's discrimination and retaliation claims, Defendant contends Plaintiff cannot establish a prima facie case. [Doc. 44-1 at 7-8, 9-10.] The Court agrees Plaintiff cannot establish a prima facie case of discrimination or retaliation because Plaintiff has not established that he suffered an adverse employment action.
Not every personnel decision amounts to an actionable adverse employment action under Title VII. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (noting that "there are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within . . . Title VII"). Instead, in the context of a Title VII discrimination claim, "[a]n adverse employment action is a discriminatory act which 'adversely affect[s] "the terms, conditions, or benefits" of the plaintiff's employment.'" James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001)) (second alteration in original). In the context of a Title VII retaliation claim, however, the Supreme Court has clarified that a different and less strenuous standard is used to define adverse employment actions: "[T]he antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Burlington N. & Santa Fe Ry., 548 U.S. at 64. However, the anti-retaliation provision "protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Id. at 67. Thus, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68 (quotation marks omitted).
It appears Plaintiff contends the following allegedly adverse employment actions were discriminatory: he was told he was not supposed to disable user accounts [Doc. 53 at 3 (citing Doc. 53-1 at 1-4)], he was not allowed to order cell phones [Docs. 1 at 5, 6; 53 at 2 (citing Doc. 53-1 at 18, 20, 30-31)], Danner threatened Plaintiff with disciplinary action [Docs. 1 at 5, 7; 53 at 1 (citing Doc. 53-1 at 11-14)], and he was told to move on and that he was trying to set up another employee when he reported the employee for tampering with the network [Doc. 53 at 3 (citing Doc. 53-1 at 54-57)]. He appears to contend the following actions were retaliatory: his name was removed from an electronic mail distribution list that received help desk tickets from 911 [id. (citing Doc. 53-1 at 8)], White was coerced into lying about Plaintiff's returning to work after taking his son to the doctor [id. at 2 (citing Doc. 53-1 at 48-53)], White sent Plaintiff an email about not being available when Plaintiff thought he did not need to be on call [id. (citing Doc. 53-1 at 61-62)], and all traces of Plaintiff's position with 911 were removed from his file [id. (citing Doc. 53-1 at 22)]. Finally, Plaintiff appears to contend the following actions were both discriminatory and retaliatory: he was removed from 911 and placed back in the Administration Building [Docs. 1 at 5, 7; 53 at 1], Danner did not invite Plaintiff to a recognition meeting even though he worked on the same projects as employees who were invited [Doc. 53 at 2 (citing Doc. 53-1 at 15-16)], Danner coerced White to change Plaintiff's yearly evaluation [Docs. 1 at 5, 7; 53 at 3 (citing Doc. 53-1 at 63-64)], and he was denied training even though money was in the budget [Doc. 53 at 2 (citing Doc. 53-1 at 38-41)]. Even under the less stringent standard set forth in Burlington Northern, Plaintiff's allegations do not rise to the level of materially adverse employment actions. See, e.g., Parsons v. Wynne, 221 F. App'x 197, 199 (4th Cir. 2007) (adverse performance evaluation and change in work schedule are not materially adverse actions); Washington v. Norton, No. 3:04-CV-104, 2007 WL 1417290, at *4 (N.D. W. Va. May 11, 2007) ("Reprimanding an employee for unprofessional conduct or warning an employee about poor performance by letter . . . would not dissuade a worker from filing protected complaints."); Gordon v. Gutierrez, No. 1:06-cv-861, 2007 WL 30324, at *9 (E.D. Va. Jan. 4, 2007) ("circumstances of verbal counseling . . . would not discourage a reasonable employee"). Because Plaintiff has failed to offer any evidence from which a reasonable juror could conclude he was subjected to actions by Defendant that would dissuade a reasonable employee from making a charge of discrimination, and none of the alleged actions meet the more stringent standard of adversely affecting the terms, conditions, or benefits of his employment, Plaintiff's discrimination and retaliation claims fail to establish a prima facie case of race discrimination or retaliation under Title VII. Accordingly, Defendant's motion for summary judgment should be granted.
The Court notes that Plaintiff's score on the evaluation in question was a 5.125 on a scale of 0 to 10. [Doc. 55-3 at 1.] A score of 5.125 equates to meeting expectations on the performance scale of below expectations to outstanding. [Id.]
Moreover, Plaintiff has failed to create a genuine factual dispute regarding whether any of these actions occurred under circumstances giving rise to an inference of unlawful discrimination to meet the fourth element of a prima facie case of discrimination under Title VII. Plaintiff has offered nothing to support his conclusory allegation that any of these actions were taken because of Plaintiff's race. With respect to his retaliation claims, Plaintiff has failed to create a genuine factual dispute regarding whether there was a causal connection between his filing a charge of discrimination with the EEOC and any of these actions, as required to meet the third element of a prima facie case. --------
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's motion for summary judgment [Doc. 44] be GRANTED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge October 16, 2018
Greenville, South Carolina