Opinion
C. A. 3:20-4090-MGL-PJG
06-13-2022
Cheryl Simpson, Plaintiff, v. CDM Smith Inc., Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Cheryl Simpson filed this employment case in the Richland County Court of Common Pleas, raising claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq.; and the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq. Defendant CDM Smith Inc. removed the action to this court. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on CDM Smith's motion for summary judgment. (ECF No. 46.) Simpson filed a response in opposition to the motion (ECF No. 51), and CDM Smith replied (ECF No. 53). Having reviewed the record presented and the applicable law, the court concludes that CDM Smith's motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Simpson is an African-American woman with a severe allergy disability. Simpson began working for Wilbur Smith Associates in 2006 as a contract administrator. Wilbur Smith Associates was acquired by CDM Smith in 2011. CDM Smith is an engineering and construction firm. Simpson's contract administrator position required her to work on billing and administration of projects across the country, though the work was electronic and did not involve in-person or on-site administration of the projects. Simpson worked in the firm's Columbia, South Carolina office.
On February 2, 2015, CDM Smith moved to a new office space in Columbia that was still under construction. Simpson experienced severe allergy symptoms immediately upon moving into the new office space, including severe headaches, running eyes, physical sickness, and shortness of breath. Simpson went home sick on February 4; the next day, Simpson informed her then-supervisor Morgan Foret, who worked in a different office, about her conditions. On February 6, Simpson's primary care physician told Simpson that she was having an allergy flare up and that she should see an allergy specialist. Simpson's symptoms worsened that week, but she tried to return to the office on February 9. Simpson's symptoms persisted upon her return to the office, so she left and informed her project manager about the problem. Simpson gave her project manager a copy of a note in her personnel file from September 2013 indicating that she cannot be around chemicals and fragrances because of her health. On February 11, 2015 Simpson met with Foret to discuss Simpson's health.
Simpson returned to her physician on February 19, 2015 because her symptoms had not improved. The physician wrote a note stating that Simpson needed a medical accommodation to work from home until February 26. Simpson visited an ear, nose, and throat doctor on February 27 and a pulmonologist on March 3. On March 5, the human resources department approved Simpson to work from home until March 31. On March 17 Simpson again visited a pulmonologist and on March 31, Simpson saw an allergist who recommended that Simpson not go into the office. However, Simpson returned to the office on April 6 at the insistence of human resources and after a meeting with Foret. Simpson had a severe allergic reaction upon returning to the office and had to leave. She took three days of personal time off. Simpson returned to remote work on the fourth day and told Foret that she could not return to the office.
On May 8, 2015, Simpson submitted a second note from her allergist to human resources. On June 16, human resources requested that Simpson begin transitioning back to the office because CDM Smith would not approve an indefinite remote work accommodation. On July 10, Simpson's physicians again wrote a note to human resources recommending that Simpson not return to the office.
In March 10, 2016, Simpson received a pay increase but it was lower than she anticipated in light of her positive annual evaluation. Simpson sent a memorandum to her supervisors and human resources four days later indicating that CDM Smith would have to do more to accommodate her disabilities for her to continue to do her work. In that email, Simpson complained about CDM Smith changing Simpson's “utilization standard” while also decreasing her workload, which made it harder for Simpson to meet CDM Smith's requirements. Plaintiff also stated that “I have recently developed a concern that, because I am one of the only black employees here doing this type of work I may be disparately treated from other white employees who are doing the same or similar work.” (Simpson Ltr., Ex. 10, Pl.'s Resp., ECF No. 51-10 at 2.) In March 2016, Simpson met with Foret to discuss her annual evaluation and asked about a promotion and pay increase.
Simpson also received a lower than anticipated salary increase in 2017. In response to her 2017 annual evaluation, Simpson submitted a letter to her new immediate supervisor, Loretta Donofrio, referencing the company's Affirmative Action and Equal Employment Opportunity Policy and stating, “As an educated African American Woman with disabilities, the company has not acknowledged or considerate [sic] the wealth of knowledge I have, nor my skill set.” (Simpson Ltr., Ex. 11, Pl.'s Resp., ECF No. 51-11 at 2.) Simpson stated that when she questioned her job classification, performance evaluation, and compensation, she was told by Donofrio that there were not opportunities for her in her then-current role and she should seek employment elsewhere. Further, Simpson asked why her salary increases did not reflect the complexity of her projects compared to other employees.
Multiple other employees were promoted in May 2017, but Simpson did not receive a promotion. Simpson had previously been promoted to a “Level 6” contract administrator. According to Simpson, Donofrio stated that Simpson's lack of promotion was because she worked work from home. On another occasion, again according to Simpson, Donofrio made comments that Simpson should seek employment elsewhere when Simpson brought up her lack of promotion and low annual raises. According to Donofrio, changes in “levels” between contract administrators are not new positions but different grades within the same position. Donofrio testified that she told Simpson about what steps she would need to take to be promoted to a higher grade and that she would help Simpson if Simpson took those steps, which would include Simpson correcting performance issues. Donofrio also testified that Simpson never reached back out to Donofrio to take those steps. Donofrio denies telling Simpson that she should seek employment elsewhere, and Donofrio's supervisor stated in an email around that time that though Simpson interpreted the statement as “if you do not like here, leave,” Donofrio clarified to Simpson that her opportunities for advancement may have been limited in the firm because Simpson is not an engineer. (Pidgeon Email, Ex. 5, Def.'s Mot., ECF No. 46-3 at 2.)
In June 2017, Simpson's mother became sick and Simpson applied for intermittent FMLA coverage, which was approved. However, during the course of her mother's illness, Donofrio stated that she knew Simpson's mother was sick but that Simpson's work needed to continue unchanged. Simpson felt that she was being harassed by Donofrio and continued working, even accruing overtime while she should have been on FMLA leave.
In January 2018, Simpson requested time off to make an appointment and Donofrio was reluctant to give Simpson the day off, despite Simpson having accrued plenty of leave time. Donofrio ultimately allowed Simpson to use the accrued leave time and Simpson made her appointment.
In February 2018, Simpson sent a letter to Donofrio and human resources representative Christina Wilson noting her concern about not being paid properly for overtime work and her projects being transferred to other employees without her consent. In March 2018, Simpson again received a salary increase that was-by percentage-less than the previous year's raise. Simpson looked at staff payment disclosures in expenditure reports from CDM projects and noticed that all of her co-employee peers, except for herself and one other African-American woman, received larger raises. In April 2018, Simpson had a conversation with Wilson again noting her concerns with not being paid overtime and her declining annual raises. CDM Smith paid Simpson for the overtime in September 2018.
In April 2018, Senior Director of Project Accounting Sarah Busche began supervising Donofrio and the contract administrators. In June 2018, Busche set billing targets for Simpson that Simpson believed to be excessively high. Simpson complained to Donofrio that the billing target was unattainable. Simpson again raised the concerns in October 2018 in an email to Donofrio. Previously, in late 2017, Simpson's work began to be allocated to others, which reduced Simpson's ability to meet the billing goals.
Simpson was terminated on October 3, 2018 as part of a reduction-in-force. Busche was tasked with choosing the employees to terminate to produce cost savings for CDM Smith. To determine which positions to eliminate, Busche primarily considered the employees' productivity by reviewing the number of billing invoices produced by the contract administrators between June and August 2018. Busche did not consider whether the employees met their billing targets. Busche selected seven employees to include in the reduction-in-force. Simpson and four other employees were selected because they had the lowest billing invoice totals in the three-month period. Two other employees were selected based on other productivity issues, even though they had higher billing invoice totals than the other five employees selected. Of the seven employees selected for a reduction-in-force, four were white, two were African-American, and one was Asian-American.
Simpson now brings this action raising claims of disparate treatment and retaliation based on race and disability pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. Simpson also raises claims of retaliation pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq.; and the Fair Labor Standards Act (“FLSA”) of 1938, 29 U.S.C. §§ 201 et seq.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “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.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (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.
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). 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”).
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, she may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that the McDonnell Douglas framework applies to retaliation claims under Title VII); Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that the McDonnell Douglas framework applies to claims brought under the ADA). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappears], and the sole remaining issue [is] discrimination vel non.” Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred,” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt, 601 F.3d at 294-95.
C. CDM Smith's Motion
1. Claims Pursuant to Title VII and the ADA
Title VII makes it unlawful for an employer to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Ocheltree v. Scollon Prods, Inc., 335 F.3d 325, 331 (4th Cir. 2003). Generally, the elements of a discriminatory disparate treatment claim are: (1) membership in a protected class; (2) adverse employment action; (3) satisfactory job performance; and (4) different treatment from similarly situated employees outside of the protected class. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)).
Similarly, the ADA prohibits employers from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12112. Generally, to establish a claim of disparate treatment under the ADA, the plaintiff must show: (1) she is a qualified individual with a disability, (2) she met the employer's legitimate expectations, (3) the employer took an adverse employment action against her, and (4) the adverse employment action raises a reasonable inference of unlawful discrimination. See Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 418-19 (4th Cir. 2015); Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001).
a. Discriminatory and Retaliatory Discharge
CDM Smith argues that Simpson has not put forth any evidence that she was terminated because of her race or disability, or that she was terminated in retaliation for a protected activity. The court agrees.
To establish a prima facie claim of discriminatory discharge in the context of a reductionin-force under Title VII, the plaintiff must establish that (1) she is a member of a protected class; (2) she was selected for discharge from a larger group of candidates; (3) she was performing at a level substantially equivalent to the lowest level of retained employees; and (4) the process of selection produced a residual workforce that includes unprotected employees who were performing at a lower level than the plaintiff. Corti v. Storage Tech. Corp., 304 F.3d 336, 341 n.6 (4th Cir. 2002) (citing Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315 (4th Cir. 1993) (ADEA)).
To establish a prima facie case of discriminatory discharge under the ADA, the plaintiff must show: that (1) she is a qualified individual with a disability under the ADA; (2) she was discharged; (3) at the time of her discharge, she was performing the job at a level that met her employer's legitimate expectations; and (4) her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. See Haulbrook, 252 F.3d at 702 (citing Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995)).
The court notes that in the context of a reduction-in-force, the third element of the prima facie test for a discriminatory discharge claim is not applicable because the employee would be terminated for reasons other than not meeting the employer's expectations. Thus, the Fourth Circuit adopted a reduction-in-force specific test for ADEA discriminatory discharge claims in Mitchell, 12 F.3d at 1315, modified by Stokes v. Westinghouse Savannah River Co., 206 F.3d 420 (4th Cir. 2000), and for Title VII claims in Corti, 304 F.3d at 341. As to the ADA, the Fourth Circuit has not specifically addressed whether the test enunciated in Mitchell applies to ADA reduction-in-force claims, but the Court has previously noted in an unpublished opinion its “preference” for the test enunciated in Ennis, 53 F.3d at 58-59, rather than the test enunciated in Mitchell. See Fields v. Verizon Servs. Corp., 493 Fed.Appx. 371, 376 n.4 (4th Cir. 2012). For the reasons stated herein, Simpson's claim fails under either test.
Title VII and the ADA also make it unlawful for an employer to retaliate against an employee for engaging in activity protected by the statutes. 42 U.S.C. § 2000e-3(a) (Title VII); 42 U.S.C. § 12203(a) (ADA). The requisite elements for a prima facie case of retaliation typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him or her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (Title VII); Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (ADA).
Here, Simpson proceeds under the McDonnell Douglas burden-shifting framework and argues that CDM Smith's asserted reason for terminating her as part of the reduction-in-force- Simpson's lack of productivity-was mere pretext for discrimination.Specifically, Simpson argues that CDM Smith's own disparate treatment of her resulted in her inability to meet CDM Smith's production goals. Simpson argues that (1) she was never disciplined or counseled for poor performance, (2) Busche did not consult Donofrio before including Simpson in the reduction in force, (3) CDM Smith gave her billing targets that were impossible to meet, and (4) CDM Smith transferred one of Simpson's assignments to another employee because the other employee worked in the office. None of these arguments demonstrate that Busche's stated reason was pretext for discrimination.
The court will collapse its analysis of the prima facie case and pretext inquiries under the McDonnell Douglas framework and consider whether a reasonable jury could conclude that Simpson can meet her ultimate burden of showing that she was subjected to unlawful discrimination. See Lyons v. City of Alexandria, F.4th,n.3, 2022 WL 1739987 at *3 (4th Cir. as amended June 1, 2022); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294-95 (4th Cir. 2010).
In response to CDM Smith's motion for summary judgment, Simpson does not appear to put forth any evidence that her race was a factor in her termination. Therefore, the court considers her Title VII discriminatory and retaliatory discharge claims to be abandoned. 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.”); Sawyers v. United Parcel Serv., Inc., C/A No. 1:18CV1037, 2019 WL 4305771, at *3 (M.D. N.C. Sept. 11, 2019) (collecting cases showing that “[t]his district and others within the Fourth Circuit agree that failing to respond to an argument constitutes an abandonment of a claim”).
Simpson's argument that she was never disciplined or counseled for her performance is irrelevant because CDM Smith did not purport to terminate her for not meeting its expectations or requiring discipline or counseling. Rather, the reduction in force was predicated on the need to save money and Busche choose an objective performance criterion that allowed her to choose employees to terminate even if their performance did not necessitate discipline or counseling. Simpson does not dispute that she was one of the lowest performers under the criterion chosen by Busche, nor does she point to any evidence that the other employees chosen for the reduction in force had performance issues that required discipline or counseling. See Corti, 304 F.3d at 341 n.6 (stating that the prima facie test requires that the plaintiff show she was performing at a level substantially equivalent to the lowest level of retained employees and the process of selection produced a residual workforce that includes unprotected employees who were performing at a lower level than the plaintiff).
As to Simpson's argument that Busche did not consult with Donofrio before including her in the reduction in force, that is plainly contradicted by the record. Busche specifically testified that she spoke with Donofrio five to ten times before deciding whether the elimination of Simpson's job was justified. (Busche Dep. at 39, Def.'s Reply, ECF No. 53-1 at 2.) Similarly, as to Simpson's arguments that her billing targets were impossible to meet and one of her cases was transferred to another employee, the record indisputably shows that Busche did not consider either of those factors in making her decision. Busche testified that she looked at the quantity of invoices each employee produced in a three-month period and accounted for the relative workload of the projects assigned to the employees, but she did not look at the employees' success at meeting billing goals when deciding which positions to eliminate. (Busche Dep. at 21, Def.'s Mot., ECF No. 46-10 at 6.) Simpson fails to forecast evidence from which a reasonable jury could conclude that Busche's stated reason for including Simpson in the reduction in force was false or that Simpson was terminated for unlawful reasons. See Collier v. Charlottesville Sch. Bd., 218 Fed.Appx. 244, 245 (4th Cir. 2007) (stating that the plaintiff's own, unsubstantiated assertions are not sufficient to create a genuine issue of material fact as to pretext).
b. Failure to Promote
CDM Smith argues that Simpson cannot put forth sufficient evidence from which reasonable jury could conclude that she was not promoted because of her race or disability. The court agrees.
Generally, to establish a claim of Title VII or ADA discrimination in the context of a failure to promote, the plaintiff must show that (1) she is a member of a protected group, (2) she applied for the position in question, (3) she was qualified for that position, and (4) the defendants rejected her application under circumstances that give rise to an inference of unlawful discrimination. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005) (Title VII); Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006) (ADA).
Here, Simpson attempts to show direct evidence that she was not promoted because of her disability. Simpson testified that her immediate supervisor, Loretta Donofrio, commented to Simpson in 2018 that Simpson was not promoted because she worked from home. (Simpson Dep. at 45, Def.'s Mot., ECF No. 46-9 at 5.) Donofrio specifically denied in her testimony that she told Simpson that working from home would impact her ability to be promoted. (Donofrio Dep. at 35, Def.'s Mot., ECF No. 46-11 at 7.) Donofrio also recounted specific conversations she had with Simpson about the promotion process and the steps Simpson needed to take to earn a promotion. (Id. at 35, 69-71, ECF No. 46-11 at 7, 10-12.)
In response to CDM Smith's motion for summary judgment, Simpson does not attempt to put forth any evidence that her race was a factor in her not being promoted. Therefore, the court considers her Title VII failure to promote claim to be abandoned. See Eady, 609 F.Supp.2d at 560-61; Sawyers, 2019 WL 4305771, at *3.
Even accepting Simpson's testimony as true, no reasonable jury could conclude that Simpson's disability was the but-for cause of Simpson not being promoted. Donofrio testified that Simpson was not qualified for a promotion, and Simpson fails to forecast any evidence that would refute CDM Smith's evidence that she was unqualified. See Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th Cir. 2005) (“Miss Anderson cannot establish her own criteria for judging her qualifications for the promotion. She must compete for the promotion based on the qualifications established by her employer.”) Donofrio testified that Simpson had not been promoted because Simpson had not taken the steps necessary to earn a promotion at CDM Smith, such as participate in project status meetings and learn how to make revenue adjustments, report revenue adjustments to the corporate level, and discuss projects with project managers. (Donofrio Dep. at 69-70, Def.'s Mot., ECF No. 46-11 at 10-11.) Donofrio testified that she had conversations with Simpson about how to take those steps and how Donofrio could help her, but Simpson never followed through. (Id. at 35, 69-71, ECF No. 46-11 at 7, 10-12.) Simpson presents no evidence disputing this.
Moreover, Simpson points to no evidence that she was in fact qualified for the promotion either because Donofrio's testimony about the qualifications is untrue or because Simpson in fact met those qualifications. Nor does Simpson identify any evidence that less qualified candidates without disabilities were promoted ahead of her. That Simpson felt she should have been promoted is insufficient to create a triable issue of fact. See, e.g., Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) (stating that the plaintiff's “unsubstantiated allegations and bald assertions” concerning her own qualifications for a promotion are not sufficient evidence to defeat summary judgment in an employment discrimination case); Alston v. Boeing Co., Civil Action No. 2:19-02713-RMG-MGB, 2021 WL 5772802, at *5 (D.S.C. Oct. 25, 2021) (stating that a plaintiff in an employment case cannot overcome summary judgment by presenting only selfserving testimony and conclusory statements that are directly refuted by the defendant's specific and corroborated evidence), Report and Recommendation adopted by, 2021 WL 5711288 (D.S.C. Dec. 2, 2021). Therefore, Simpson fails to forecast evidence from which a reasonable jury could conclude that Simpson was not promoted because of her disability rather than her lack of qualification.
c. Disparate Pay
CDM Smith argues that Simpson has not produced any evidence that she was paid differently based on her race or disability. The court agrees.
For a plaintiff to establish a disparate pay claim under Title VII or the ADA, she must show that (1) she is a member of a protected class, (2) she was performing her job satisfactorily, (3) an adverse employment action occurred, (4) the circumstances suggest an unlawful discriminatory motive. Spencer v. Virginia State Univ., 919 F.3d 199, 207 (4th Cir. 2019) (Title VII). Where, as here, the disparate pay claims is based on comparators, the plaintiff must show that she was paid less than employees who were not in a protected class but that had similar jobs. Spencer, 919 F.3d at 207; Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994).
Here, Simpson again attempts to proceed with direct proof of discrimination with her own testimony. Simpson testified that in 2018, she accessed a database showing that her annual pay increase was lower than eight employees who had billed less than her. (Simpson Dep. at 65-66, Def.'s Mot., ECF No. 46-9 at 9-10.) Other than providing the names of the employees who received higher raises than her, Simpson provides no other testimony about the purported disparity in pay raises. Nor does Simpson actually provide the data that she claims shows the pay disparity. Simpson also testified that she did not have any insight into the performance of the employees who received higher raises that year because each project is different. (Simpson Dep. at 66, Def.'s Mot., ECF No. 46-9 at 10.) Thus, like her failure to promote claim, Simpson's unsubstantiated and uncorroborated testimony about evidence of a purported pay disparity (and opinion that it was related to her race or disability) is insufficient evidence from which a reasonable jury could conclude she was paid differently because of unlawful discrimination. See Evans 80 F.3d at 960.
Simpson also points to the testimony of Phyllis Thomas to support her disparate pay claim. Thomas, an African-American co-worker of Simpson, testified, “I didn't get paid the same amount of money to a white counterpart” and explained that, like Simpson, her pay raises got smaller from year to year. (Thomas Dep. at 16, ECF No. 51-1 at 12.) Like Simpson, Thomas did not provide any more detail or specificity about the apparent pay disparity so that her claim could be substantiated. See Evans, 80 F.3d at 960. Nor does Simpson present any evidence that would corroborate Thomas's claim, such as information as to what raises the other employees received and CDM Smith's process for awarding raises. Therefore, Simpson has produced no evidence from which a reasonable jury could conclude that she received unequal pay raises on account of her race or disability.
2. Retaliation Pursuant to the FMLA and FLSA
CDM Smith argues that Simpson's FMLA and FSLA retaliation claims are barred by the applicable statutes of limitations. The court agrees.
Simpson does not address CDM Smith's arguments on the timeliness of these claims in her response to the motion for summary judgment, other than to label the claims as “willful” violations. Therefore, Simpson arguably conceded that her claims are untimely. (See Def.'s Reply, ECF No. 53 at 2.)
The FMLA provides that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter[,]” or to “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(1-2). The FSLA similarly provides that it is unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” 29 U.S.C. § 215(a)(3). A plaintiff bringing a legal action pursuant to the FMLA must file the action no later than two years “after the date of the last event constituting the alleged violation for which the action is brought,” or three years if the alleged violation is “willful.” 29 U.S.C. § 2617(c)(1-2). Similarly, a claim under the FSLA must be brought within two years after the cause of action accrued, or three years if the violation is “willful.” 29 U.S.C. § 255(a).
Simpson's FMLA and FSLA retaliation claims are based on her termination, lack of promotion, and reassignment of projects. At the latest, those claims could have accrued on October 3, 2018-the date of her termination-and Simpson filed this action on October 21, 2020. Thus, Simpson's claims are only timely if the violations are “willful.” 29 U.S.C. § 2617(c)(1-2); 29 U.S.C. § 255(a).
Here, Simpson fails to meet her burden of showing that any purported FMLA or FSLA violation was willful. See Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d 351, 358 (4th Cir. 2011) (“[T]he employee bears the burden of proof when alleging a violation is willful.”) (FLSA). A willful violation occurs when the employer knew or showed reckless disregard for whether its conduct was prohibited by the statute. Id. at 358 (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)); Settle v. S.W. Rodgers Co., 182 F.3d 909 (4th Cir. 1999) (FMLA). Here, Simpson appears to argue that CDM Smith purposely took the actions that form the basis of her FMLA and FSLA retaliation claims. (Pl.'s Resp., ECF No. 51 at 30, 34.) However, this bare allegation is insufficient to permit a reasonable inference of willfulness. See, e.g., Hantz v. Prospect Mortg., LLC, 11 F.Supp.3d 612, 617 (E.D. Va. 2014) (“Courts have found employers willfully violated FLSA where they ignored specific warnings that they were out of compliance, destroyed or withheld records to block investigations into their employment practices, or split employees' hours between two companies' books to conceal their overtime work.”). Simpson fails to forecast evidence that CDM Smith's purported violations were willful. Her FMLA and FLSA claims are therefore untimely.
RECOMMENDATION
Based on the foregoing, the court recommends CDM Smith's motion for summary judgment be granted. (ECF No. 46.)
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).