Opinion
C. A. 2:22-cv-1712-BHH-MHC
01-11-2024
Josia M. Strong, Plaintiff, v. Charleston County School District, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Josia M. Strong (“Plaintiff” or “Strong”) filed this action in state court, alleging employment discrimination. ECF No. 1-1. Charleston County School District (“Defendant” or “CCSD”) removed the case to this Court and filed its Answer on June 1, 2022. ECF No. 1.
By Order dated February 16, 2023, the Court granted Defendant's Motion for Partial Summary Judgment and dismissed Plaintiff's third cause of action for wrongful termination pursuant to the South Carolina Whistleblower Statute, Plaintiff's fourth cause of action for wrongful termination in violation of public policy, and Plaintiff's seventh cause of action for negligent supervision. ECF No. 26.
Before the Court is Defendant's Motion for Summary Judgment (“Motion”), ECF No. 41, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking to dismiss the remaining four causes of action alleged in Plaintiff's Complaint. Plaintiff filed a Response, ECF No. 46, and Defendant filed a Reply, ECF No. 47. The Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
FACTUAL BACKGROUND
From 2003 to 2017, Plaintiff was employed with CCSD as a First Grade Teacher, a Second Grade Teacher, and a Physical Education Teacher. In 2012, Plaintiff won the CCSD Mark Cobb Transformation Award for integrating a health and wellness lifestyle for students and staff. ECF No. 46-2 at 6. During the 2014-15 school year, she received Charleston Promise Neighborhood Schools' “Healthy Life Award” for motivating others through active participation. Id. In 2017, Plaintiff decided to stay at home with her children.
In June 2019, Plaintiff began working for CCSD in a 3-day-a-week position as a Physical Education Teacher at Mitchell Elementary. ECF No. 46-1 at 1, Pl. Aff. ¶ 7. Plaintiff was diagnosed with anxiety in July 2019. ECF No. 41-16, Pl. Dep. at 54:10-12. At the beginning of the 2019-20 school year, Plaintiff told Principal Deborah Smith, Assistant Principal Brian Keough, and School Nurse Blue that she had anxiety and ADHD. Id. at 54:24-55:12, 58:20-23, 61:6-17.
For the first part of the year, Plaintiff received a number of emails from Principal Smith commending her performance during classes. See ECF No. 46-1 at 19-22, 25.
A. March 2020 Meetings and Communications
On March 5, 2020, Principal Smith and Assistant Principal Keough met with Plaintiff to review “issues of student safety and concerning behaviors [Plaintiff] ha[d] demonstrated recently.” Id. at 50, Mar. 6, 2020 e-mail from Smith to Strong (providing examples “of safety with the 4thgrade class having jump ropes on the floor and running around hitting each other with foam pillars” and “of the irrational behavior [Plaintiff exhibited] when explaining how [she] called [Keough] about how to get [a student] home from Burke last week”). They also discussed Plaintiff's concerns that colleagues had given her “mean looks” and had failed to offer condolences after the death of her father, and they talked about how she should manage her relationships with other adults in the building. Id. (noting that her focus should be on the students and not the adults). They reviewed two difficult personal situations Plaintiff was experiencing, including the unexpected death of her father, and Plaintiff stated she felt anxious but anticipated that the anxiety medicine she had recently obtained would help her. Id. Smith told Plaintiff that if she felt she needed time off to deal with her anxiety, CCSD could give her a leave of absence, but it would be unpaid because she only had three hours of paid leave remaining. Id.
The next afternoon, Smith sent Plaintiff an email summarizing the meeting, to which Plaintiff responded the following day. Id. at 50-51. Plaintiff thanked Smith for the recap, stated that the meeting made her feel like a worthless instructor, reiterated her concerns about interactions with other teachers, and provided more details about a recent situation involving a student. Id. at 51. Regarding the safety concerns, Plaintiff stated:
I appreciate this recap and would love to see either of you teach a lesson where a rope on the floor could cause such danger to a student when the space alone could cause so much more danger. I would LOVE to improve my instruction and watch either of you. Any ideas? I would love to improve since your concerns are so so many....
I would appreciate you all doing more observations of me in case you have further doubts as to the safety (none at all actually if you look at how many people I have sent to the nurse). Safety first always and one silly rope not being put up when the kids have been taught to dodge items on the floor for agility purposes is SILLY to me! A P.E. teacher with one injury into March should be commended with no gym space is pretty amazing. Data is important in all aspects of education. I felt very small and unappreciated as I left, but like I have said before, it only matters what God thinks and you all can think whatever you want of me. Heck, I haven't even gotten a teacher of the week when I have received CCSD's WELLNESS TEACHER award for the entire district in 2014. That's not as good as Mia Pace who is 5 days and DISTRICT TEACHER of the year though. She should definitely get the master key as she has the one classroom and not the CIS room to open for yoga instructors, the printer room in case printing is needed, the AMX lab, etc. ALL OF THIS DOES NOT MATTER TO ME. I know I always give 110 percent to everything I do and hold high standards that our kids crave.
ALSO, it's a HUGE DANGER CONCERN to me to have ALL FIFTH GRADERS on FRIDAY in such a small space, so let's go ahead and open up that TIME FOR them to go to the library or computer lab or something. I need that time to plan for
danger precautions and to focus on the kids. I will plan on NOT having them all as it was HORRIBLE last Friday. I handled it fine but I don't need any more “concerns” in my folder. Thank Mr. K and Mr. Terry for coming to my aid. I appreciate you!
I can't wait to see the lesson you both have ready for me to address the safety issues. I want to learn from the best - you two! Just let me know which class you want to teach. We are working on tennis and volleyball with a jump rope review for the Upper grades and locomotor skills, running, walking, jogging, galloping and sliding with the younger ones. We are also receiving underhand and overhead throw. Thanks so much.
Just let me know which class you want to demo better safety to me and I'll be ready to take notes and video. Thanks ya'll!Id. at 51-52.
On March 11, 2020, Principal Smith, together with Director of Employee Relations, Will Suggs, met with Plaintiff to discuss “safety issues in [her] classroom, [her] interactions with colleagues, and concerns [Smith had] about [Plaintiff's] professionalism.” ECF No. 41-1 at 1, April 29, 2020 Letter from Smith to Strong. Plaintiff “mentioned feeling anxious and stressed, and [Smith and Suggs] shared information with [her] for SAVE, Inc., the counseling center that provides [Defendant's] employee assistance program.” Id. at 2.
B. April 29, 2020 Reprimand
On April 29, 2020, Smith sent Plaintiff a letter, via email, stating that since the meeting on March 11, 2020, Plaintiff had “continued to demonstrate unacceptable levels of professionalism that are in violation of District policies,” including the following: (1) Plaintiff's unprofessional conduct when responding to emails and directives received from Smith, including details concerning Plaintiff's most recent threats to bypass the chain of command; and (2) Plaintiff's failure to follow specific directives, such as refusing to follow Smith's directives not to apply for grants. Id. at 2-3. Smith closed by saying that the letter served as a formal reprimand of Plaintiff's unprofessional conduct. Id. at 3. Plaintiff acknowledged receipt of this reprimand and responded to Smith's email, copying a number of CCSD officials, as well as a fellow teacher. ECF No. 46-5 at 5-8; ECF No. 41-16 at 22:3-8. Suggs flagged Plaintiff's email response for Michelle Simmons, the District-level official responsible for elementary schools, and Associate Superintendent Terri Nichols and noted, “This email from Josie Strong is highly inflammatory and is representative of the issues [Principal Smith] has been managing with this employee throughout second semester and possibly even before Winter Break.” ECF No. 46-5 at 5.
C. May 2020 Letter from Nichols and Related Communications
Associate Superintendent Nichols sent Plaintiff a letter, dated May 13, 2020, reviewing Plaintiff's conduct and noting that Plaintiff was “expected to be aware of and to rectify [her] behavior prior to the start of the 2020-2021 school year.” ECF No. 41-2, May 13, 2020 Letter from Nichols to Strong. The letter identified the following areas of concern, among others:
• The letter detailed Plaintiff's unprofessional response to the April 29 reprimand, noting that it was “rambling and off-topic” and that her response was “expressed without using a professional filter.”
• The letter noted that Plaintiff continued to bypass her supervisory chain of command in her communications.
• The letter detailed that Plaintiff gratuitously and unprofessionally denigrated another teacher in another email dated April 29, 2020.
• The letter detailed Plaintiff's bizarre and distracting behavior during a Zoom conference.
• The letter detailed Plaintiff's presence at the school in violation of safety protocols and her Principal's directives to leave.See Id. at 1-2. Nichols further stated:
This letter serves as a formal reprimand for failure to meet expectations of professional conduct and communication after having been specifically warned in the March 11 meeting and the April 29 letter. For assistance in bringing your conduct into compliance with District expectations, you are expected to familiarize yourself with the rules and expectations expressed in both Policy GBE Employee Rights and Responsibilities and Policy GBEB Employee Conduct (attached). You will be held accountable for your behavior. In accordance with Policy GBEBAA Progressive Discipline (attached), a future incident may subject you to further disciplinary consequences, up to and including suspension and dismissal. This letter also serves as a final notice that you are to demonstrate immediate and sustainable
compliance in the areas discussed in Ms. Smith's letter. If you have questions about these expectations or need additional information or clarification, you are welcome to contact me or a member of the Employee Relations staff.Id. at 2.
The next day, on May 14, 2020, Plaintiff sent an email to Suggs informing him that one-third of the students in fifth grade were not receiving the amount of physical education set forth in the Health and Wellness Act of 2005. ECF No. 46-1 at 2 ¶ 12, Pl. Aff.; Id. at 7.
On May 27, 2020, Suggs sent an email to Plaintiff responding to some issues Plaintiff had raised regarding Nichols's letter and recommending that Plaintiff submit a rebuttal to Nichols's letter to “help [him] to understand why [Plaintiff] think[s] Ms. Nichols's letter was incorrect and unwarranted” and to assist him in helping Plaintiff. ECF No. 46-1 at 16. In response, Plaintiff sent a series of emails to Suggs regarding her concerns related to safety, an application to Buist [Academy], and other issues, including the following:
Ms. Nichols also just forwarded protocol or violations of CCSD's code of conduct. She needs to specifically state what CODE of conduct she is referring to. This letter from Ms. Nichols is completely rushed and not adhering to any specific CODES. I have NEVER EVER broken any code of ethics personally or professional and if this continues, we will have a legal matter of racial substance regarding all of it. Having curly black hair and not being black or white in the SOUTH has not been a beneficial situation for me being born in India, coming to America, growing up poor.... I have also told her I WILL NEVER LIE on any STATE document admitting the time of P.E. each student gets and sadly that happened in the past with the excuse (they get recess).Id. at 15-16. On May 31, 2020, Plaintiff emailed Nichols acknowledging receipt of the May 13 letter, denying any wrongdoing, and asking which specific policies she had not followed. Id. at 85.
D. June 2020 Review of Plaintiff's File
On June 5, 2020, CCSD's Employee Relations office conducted a review of Plaintiff's file, including her continuing “pattern of deflecting responsibility for professional and interpersonal problems.” ECF No. 41-3, Employee Relations File Review, dated June 5, 2020. Employee Relations Director Suggs found that Plaintiff “has not presented sufficient misconduct to warrant dismissal, though some of her recent actions could merit a suspension.” Id. at 7. However, Suggs recommended that Plaintiff's conduct justified requiring her to “present a fitness for duty certification from a physician who has been advised of inappropriate behaviors observed by administrators and who has confirmed her ability to manage the normal stresses associated with her position.” Id.
E. June 2020 Communications
On June 6, 2020, Plaintiff sent Suggs and Simmons an email complaining about a meeting notice Smith had sent to all Mitchell teachers. ECF No. 46-1 at 96-97, 104-05. Plaintiff further stated, inter alia, as follows:
I'm exhausted from her actions and the ramifications that they have caused me personally and physically. I'm disturbed that she did not go to her own boss Ms. Simmons and went to [Suggs] instead. Is that legal?
It doesn't matter. I have done NOTHING wrong and if I don't get exactly what I want - a placement at Harbor View Elementary as Ms. Smith's actions have paid a toll on my levels of anxiety at Mitchell and the staff who she is closely intertwined with. She has even asked me to take pictures and faked it to send to you. If Mitchell does not have a gym when it returns downtown, I won't be able to teach there as I now have ANXIETY due to Ms. Smith.
I would have never sent that letter for Ms. Smith if I knew that her reprimand was coming. She must have had that brewing with Ms. Nichols who is a personal friend and you are a personal friend I am assuming too. It doesn't matter. Truth and justice will always prevail. I forgive all of you.
I will not be the victim of any social profiling or anything as all the teachers who are not nice to me are white and friends of Smith[']s. I know she's not a racist but her friends might be especially the CD teacher that yells at the students all the time and that's why I went to Ms. Smith to complain after 5 months of letting it go! I did not want the ramifications of telling her to happen to me. She did not handle it well and went directly to the woman and she lied about it. She continues to give me the cold shoulder when I have always been cordial and kind to her.Id.
Also on June 6, 2020, Plaintiff sent a series of emails to Smith in rapid succession, including one that speculated that a CD teacher's family was racist and thanking Smith for “not judging me for the color of my skin or the lack thereof.” ECF No. 46-5 at 11-12. Smith forwarded the email chain to Suggs, who forwarded it to various District officials with the following note: “Please see the email thread between Josia Strong and Debbie Smith. Ms. Strong's continued erratic behavior demonstrates her concerning mental state. Note the deflection of responsibilities and the references to racial bias.” Id. at 11.
On June 8, 2020, Plaintiff sent Suggs an email rebuttal to Nichols's letter. ECF No. 46-1 at 99. In emails sent to Smith and Nichols on June 16 and June 24, 2020, Plaintiff complained that she had not been told what she had specifically done wrong. ECF No. 46-1 at 49, 107-08.
F. July 2020 Communications
On July 1, 2020, Nichols sent Plaintiff another letter detailing examples of her past misbehavior, including the following:
[Y]ou were told by Ms. Smith not to apply for a grant because 1) she wanted you to focus on instruction and 2) that any grants for future programs should be authorized by the new principal. However, you persisted in applying in contradiction to her instructions. Not only did you justify doing so by referring again to your previous success, but you also told Employee Relations Director Will Suggs that you had Ms. Smith's permission to do so, which was not true.
In another example, you were aggressive in asking a colleague to write a letter to support your child custody position. After he declined, you persisted in asking him to the point that he feels harassed by your actions. In violation of policy GBEB Employee Conduct, you cannot treat colleagues in a disrespectful manner.
A review of your emails shows that you consistently use inappropriate language and tone, sarcasm, and all capital letters. You have included colleagues and district officials on emails in which their inclusion is inappropriate.
You have insisted that SAVE refused to provide you with counseling services to which you are entitled. What the director of SAVE actually told you is that your private provider of counseling services was doing more to help you than SAVE could offer.
You went to school during the District closure without permission from Ms. Smith and remained there for several hours. Although you did have permission on a previous day for a short presence at the school, you were not authorized for a lengthy follow up.
Most recently, I had to send you an email admonishing you for aggressive behavior toward an HR manager regarding your applications for jobs. You redirected the fault at the system when, in fact, the manager reported that you had not properly completed the application. You must take responsibility for your errors.ECF No. 41-4 at 1-2, July 1, 2020 Letter from Nichols to Strong. Nichols concluded, “You must remediate your behavior and sustain compliance with the District's expectations for professional conduct. Failure to meet CCSD's expectations for professional conduct will jeopardize your continued employment with Charleston County School District.” Id. at 2.
On July 8, 2020, CCSD received a report regarding Plaintiff's behavior from CCSD employee Marianne Steele, who had attempted to assist Plaintiff with a District software program used for job applications:
The conversation lasted 57 minutes.... During the conversation, [Plaintiff] continued to speak over me, share personal information, and make inappropriate statements and requests. She would not pause to listen to any explanation of how the system works or any help I tried to provide. She was accusatory from the first moments and that . . . increased as she became more agitated. I felt from very early on that she was trying to trap and/or manipulate me into something.ECF No. 41-5 at 1-2, January 8, 2020 Memo from Steele to Employee Relations. On July 10, 2020, Plaintiff responded to an email from Nichols regarding Steele's report, stating, in part:
Again, allegations and I have NEVER been aggressive to anyone. I think I may look into filing discrimination charges as these allegations are getting ridiculous without any proof.... Maybe removing my picture from the email would help and people can assume I am white? Would this help?ECF No. 46-1 at 61-62.
G. July 2020 Review of Plaintiff's File and Subsequent Termination
By late July 2020, CCSD's Employee Relations office conducted another review of Plaintiff's file. ECF No. 41-6, Addendum to Employee Relations File Review, dated July 27, 2020. In its “Addendum” dated July 27, 2020, the Employee Relations office examined Plaintiff's more recent examples of misconduct, including making disparaging references to Smith's age and Plaintiff's continued interactions with a colleague from whom Plaintiff had requested a statement to use in her custody lawsuit. Id. at 1-2. At the conclusion of the Addendum, Employee Relations Director Suggs made the following recommendation:
[Plaintiff's] resistance to accepting responsibility and to correcting her behavior has compromised the District's trust in her professional judgment. The broad variety of individuals in CCSD whose interactions with [Plaintiff] have been met with aggressive behaviors support[s] the assessment that she is unable at this time to have productive professional relationships. Furthermore, none of the customary approaches taken to address her conduct and establish expectations - which include conferences, email messages, and official letters - has had any effect on [Plaintiff] or her denial about the District's efforts toward her remediation.
[Plaintiff's] behavior reflects evident unfitness for duty. The recommendation from Employee Relations is that the District terminate her employment.Id. at 2 (emphasis in original).
CCSD did not terminate Plaintiff's employment at that time. Rather, by letter dated August 10, 2020, and following an online meeting on August 7, 2020, between Associate Superintendent Nichols and Plaintiff, CCSD placed Plaintiff on paid administrative leave and directed her to obtain a “letter from a healthcare professional certifying that you were fit for duty as a teacher with [CCSD].” ECF No. 41-7, August 10, 2020 Letter from Chief Human Resources Officer Briggman to Strong. Plaintiff was given until September 1, 2020, to meet this requirement. Id. CCSD also required Plaintiff to submit to her health care professional a three-page “To Whom It May Concern” letter, which detailed CCSD's concerns, listed questions that CCSD wanted the health care professional to address, and asked the health care professional to acknowledge receipt of the “To Whom It May Concern” letter. ECF No. 41-8, To Whom It May Concern Letter, dated August 10, 2020; ECF No. 41-16, Pl. Dep. at 40:11-22.
Thereafter, CCSD received a letter concerning Plaintiff from Alexis Jesup, M.D., dated August 11, 2020. ECF No. 41-9, August 11, 2020 Letter from Dr. Jesup; ECF No. 41-16, Pl. Dep. at 43:12-18. Dr. Jesup's letter did not include an acknowledgement that Plaintiff had given her the “To Whom It May Concern” letter. ECF No. 41-8. On August 31, 2020, Employee Relations Director Suggs contacted Dr. Jesup to ask whether Plaintiff had submitted the “To Whom It May Concern” letter to her. ECF No. 41-10, August 31, 2020 Letter from Suggs to Dr. Jesup. In response, Dr. Jesup confirmed that Plaintiff had not provided the letter to her, and, after reading the letter, Dr. Jesup rescinded her initial recommendation that Plaintiff be allowed back to work. ECF No. 41-11, August 31, 2020 Letter from Dr. Jesup to Suggs.
Shortly thereafter, on September 3, 2020, CCSD's Superintendent issued a termination notice to Plaintiff, noting specifically that Plaintiff “demonstrated unprofessional behaviors to such an extent that the District has lost confidence in your ability to carry out your duties.” ECF No. 41-12, Sept. 3, 2020 Letter from Gerrita Postlewait to Strong. The letter referenced CCSD's previous reprimands and directives to Plaintiff, and it noted that Plaintiff's “failure to share Ms. Nichol's letter with Dr. Jesup demonstrates your continued disregard for directives.” Id. at 2.
H. Adjudication of Plaintiff's Grievance
Plaintiff filed a grievance under the Teacher Employment & Dismissal Act, SC Code Ann § 59-25-410, et seq. See ECF No. 41-13 at 1, Report and Recommendation of Hearing Officer. Following a two-day hearing, at which Plaintiff presented arguments, produced documents, and offered and cross-examined witnesses, Hearing Officer Wilber E. Johnson issued a Report & Recommendation on January 29, 2021, recounting the documents, witness testimony, and arguments made during the hearing. Id. Plaintiff acknowledged that she had an opportunity at the hearing to explain the reasons she thought that CCSD's decision to terminate her was inappropriate. ECF No. 41-16, Pl. Dep. at 48:2-24. In his recommendation, Hearing Officer Johnson stated that there was “substantial evidence in the record of this proceeding to support the School District's determination that [Plaintiff] had failed to follow directives given to her by the School District administrators, and had failed to interact in a professional manner” and “to support the School District's conclusion and decision to terminate [Plaintiff's] employment.” ECF No. 41-13 at 14.
On February 10, 2021, CCSD's Board of Trustees considered Hearing Officer Johnson's recommendation and upheld Plaintiff's termination. ECF No. 41-14, Feb. 10, 2021 Order. The Order noted that Plaintiff had thirty days from her receipt of the Order to file an appeal with the Charleston County Court of Common Pleas. Id. at 2. Plaintiff did not file such an appeal. She did, however, send a letter dated March 1, 2021, to the Board of Trustees, in which she stated, inter alia, that “they terminated me based on allegations and the color of my skin.” ECF No. 46-1 at 75.
On April 6, 2022, more than one year after the CCSD Board of Trustees issued its Order, Plaintiff filed the instant lawsuit in state court, which was removed to this Court on June 1, 2022. ECF Nos. 1 & 1-1. By Order dated February 16, 2023, the Court granted summary judgment to CCSD on Plaintiff's state law claims. ECF No. 26. CCSD now moves for summary judgment on Plaintiff's remaining federal claims. ECF No. 41.
LEGAL STANDARD
Summary judgment is appropriate when “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). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). The nonmoving party, however, “must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish an essential element to their case, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial,” thus the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.”).
DISCUSSION
Defendant moves for summary judgment on the remaining four causes of action in Plaintiff's Complaint: (1) the first cause of action for “Discrimination” in violation of the Americans with Disabilities Act (“ADA”); (2) the second cause of action for “Retaliation” in violation of the ADA; (3) the fifth cause of action for a “Hostile Work Environment” in violation of the ADA; and (4) the sixth cause of action pursuant to 42 U.S.C. § 1983 for an alleged retaliatory discharge in violation of Plaintiff's First Amendment rights. ECF No. 41. Plaintiff contends that she has produced sufficient evidence to establish a genuine issue of material fact as to each of these claims, such that summary judgment is inappropriate. ECF No. 46.
For the reasons set forth below, the undersigned finds that Defendant is entitled to judgment as a matter of law on Plaintiff's remaining claims. Accordingly, the undersigned recommends that Defendant's Motion for Summary Judgment be granted.
I. FIRST CAUSE OF ACTION: DISCRIMINATION IN VIOLATION OF THE ADA
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C. § 12112(a). Discrimination can include failing to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A).
In her first cause of action, Plaintiff alleges that “Defendant discriminated against Plaintiff based on her disability, record of disability . . . or perceived disability,” in violation of the ADA. ECF No. 1-1 at ¶ 82. She further alleges that Defendant “failed to accommodate her requests for a reasonable accommodation.” Id. at ¶ 81.
A. Discrimination Claim
“To establish a claim for disability discrimination under the ADA, a plaintiff must prove (1) that she has a disability, (2) that she is a ‘qualified individual' for the employment in question, and (3) that her employer discharged her (or took other adverse employment action) because of her disability.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir. 2015) (citation and internal quotation marks omitted). Disability discrimination may be proven through direct or indirect evidence of a purpose to discriminate or through the burden-shifting framework set forth in McDonell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Id. In her Response, Plaintiff proceeds using the McDonell Douglas framework. See ECF No. 46 at 20-22.
“What is required is evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Jacobs, 780 F.3d at 577-78 (citations and internal quotation marks omitted).
Under the burden-shifting framework, Plaintiff must first establish a prima facie case of discrimination under the ADA by demonstrating that (1) she was a “qualified individual with a disability” as defined by the ADA; (2) she suffered an adverse employment action; (3) she was fulfilling her employer's legitimate expectations at the time of the adverse action; and (4) the circumstances surrounding the adverse action “raise a reasonable inference of unlawful discrimination.” Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 150 (4th Cir. 2012); Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001). “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, then the burden of production shifts to Defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Jacobs, 780 F.3d at 575; Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 258 (4th Cir. 2006). After this showing is made, the burden shifts back to Plaintiff to prove that her employer's asserted justifications are pretextual. Jacobs, 780 F.3d at 575-76 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
Regarding the prima facie case, CCSD assumes, for purposes of summary judgment, that Plaintiff has created a question of fact as to whether she is a “qualified individual with a disability.” ECF No. 41 at 9. Moreover, it is undisputed that Plaintiff suffered an adverse employment action when she was discharged. However, CCSD argues that Plaintiff has failed to show she was fulfilling her employer's legitimate expectations at the time of her discharge, such that she cannot establish a prima facie case of discrimination. Id.
In Response, Plaintiff argues that she “was performing all aspects of her position up and until she informed [Principal] Smith that she was taking medication for Anxiety on March 5, 2020,” at which point “the issues began.” ECF No. 46 at 21. As evidence that she was fulfilling her employer's legitimate expectation, Plaintiff points to “the positive statements from [Principal] Smith in her emails in February 2020 and [an] end of year letter,” as well as to “statements provided by others regarding her character, employment and teaching skills during th[e] time that Nichols, Smith and Suggs [alleged] she had an inability to act professional or get along with her colleagues.” Id. (citing Exhibit 6 to her Response).
For purposes of this motion, the undersigned assumes without deciding that Plaintiff has created a question of material fact as to whether she was fulfilling her employer's legitimate expectations at the time of her discharge and that the circumstances around her discharge raise a reasonable inference of unlawful discrimination. However, as explained below, the undersigned concludes that summary judgment is appropriate as to the discrimination claim because Defendant has set forth a legitimate, non-discriminatory reason for Plaintiff's termination, and Plaintiff has not shown pretext.
Specifically, Defendant has produced evidence showing that Plaintiff was warned repeatedly about unprofessional communications and behavior, including her “resistance to following directives and her deflection of accountability.” See ECF No. 41-12; see also ECF Nos. 41-1 (detailing Plaintiff's failure to follow Smith's directives regarding grant application and the inappropriate tone and language in Plaintiff's emails and texts); 41-2 (detailing unprofessional communications from Plaintiff); 41-4 (detailing examples of Plaintiff's unprofessional behavior, including failure to follow Smith's directives; aggressively asking a colleague to write a letter of support in her child custody case; use of inappropriate language, tone, sarcasm, and all capital letters in her emails; aggressive behavior toward an HR manager regarding job applications; and going to the school building with permission). Her termination letter from the Superintendent noted that Plaintiff's “failure to share Ms. Nichols's letter with Dr. Jesup demonstrates your continued disregard for directives,” and it stated that “the District has lost faith in your ability to meet expectations of professionalism.” ECF No. 41-12 at 2. According to the letter, Plaintiff was dismissed with cause for failure to follow directives and failure to interact in a professional manner. Id. For summary judgment purposes, this evidence is sufficient to satisfy Defendant's “relatively modest” burden of production. Jacobs, 780 F.3d at 575; see Jones v. Am. Postal Workers Union, 192 F.3d 417, 429 (4th Cir. 1999) (“The law is well settled that the ADA is not violated when an employer discharges an individual based upon the employee's misconduct, even if the misconduct is related to a disability.”).
The burden thus shifts back to Plaintiff to show that Defendant's asserted reasons are mere pretext for disability discrimination. See Id. at 576; E.E.O.C. v. Town & Country Toyota, Inc., 7 Fed. App'x 226, 232 (4th Cir. 2001) (“Once the defendant satisfies its burden of production, the presumption created by the prima facie case drops out and the plaintiff bears the ultimate burden of proving that he has been the victim of intentional discrimination”); see also Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (holding that the ADA requires a plaintiff's disability to be a “but-for” cause of the adverse employment action)
Plaintiff does not make any arguments regarding pretext. Rather, she argues only that Defendant's Motion should be denied because “Plaintiff has met all four elements of a prima facie case.” ECF No. 46 at 22. To the extent Plaintiff disagrees with the way CCSD characterized her behavior, “it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000); see DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir.1998) (observing that “this [c]ourt does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination” (internal quotation marks omitted)). And Plaintiff has not produced evidence from which a jury could reasonably find that CCSD's stated reasons for terminating her were not the real reasons for her discharge. See id.
Because Plaintiff bears the burden of proof regarding pretext but has not pointed to any evidence or made any arguments to support a finding of pretext, the undersigned finds that summary judgment on the ADA discrimination claim is appropriate. See Lashley v. Spartanburg Methodist Coll., 66 F.4th 168, 176 (4th Cir. 2023) (finding that because the plaintiff did “not offer evidence beyond mere conjecture to undercut [the defendant's] justifications[, the plaintiff's] claims therefore fail[ed] under the well-established pretext standard”).
B. Failure to Accommodate Claim
Plaintiff also claims that CCSD unlawfully denied her a “reasonable accommodation” in violation of the ADA. ECF No. 1-1 at ¶ 81. In general, “it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” 29 C.F.R. § Pt. 1630, App. “Once an individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation.” Id.; see also Peltier v. Greyhound Lines, Inc., No. C/A2:00-1726-18AJ, 2001 WL 34681748, at *3 (D.S.C. Aug. 6, 2001) (same), aff'd, 25 Fed. App'x 182 (4th Cir. 2002).
To prevail on a failure-to-accommodate claim, a plaintiff must show (i) she was disabled, (ii) the employer had notice of her disability, (iii) she could perform the essential functions of her position with a reasonable accommodation, and (iv) the employer refused to make such accommodation. Lashley, 66 F.4th at 178; Cowgill v. First Data Techs., Inc., 41 F.4th 370, 378 (4th Cir. 2022).
Defendant argues that Plaintiff has failed to identify a reasonable accommodation or to produce evidence that she ever requested one. ECF No. 41 at 11-13. In her Response, Plaintiff argues that she has presented sufficient evidence that Defendant perceived her as disabled and “was aware of her issues but failed and refused to offer her alternatives.” ECF No. 46 at 22-23.
Upon review, the undersigned is constrained to agree with Defendant. Plaintiff testified at her deposition that, at the beginning of the 2019-2020 academic year, she told Principal Smith, Assistant Principal Keough, and Nurse Blue that she suffered from anxiety and ADHD. ECF No. 41-16 at 54:10-55:12, 58:20-23, 61:6-17. However, she also testified that she was free to take her prescribed medication for these conditions and that she did not ask CCSD officials for any specific accommodation related to any disability, including anxiety or ADHD. ECF No. 41-16 at 63:564:4. Moreover, the undisputed record evidence shows that CCSD officials offered various accommodations to Plaintiff, including a leave of absence, extensions of deadlines, and reference to the employee assistance program. See ECF Nos. 41-1; 46-1 at 50; ECF No. 41-1.
On this record, the undersigned finds that Plaintiff has not produced any evidence that she was denied any accommodation she requested. “Before an employer's duty to provide reasonable accommodations-or even to participate in the ‘interactive process'-is triggered under the ADA, the employee must make an adequate request, thereby putting the employer on notice.” Wilson v. Dollar Gen. Corp., 717 F.3d 337, 347 (4th Cir. 2013) (quoting EEOC v. C.R. England, Inc., 644 F.3d 1028, 1049 (10th Cir. 2011)). Plaintiff cannot show that CCSD refused to make an accommodation because she cannot show that she ever properly requested one. See Lashley, 66 F.4th at 179. Thus, Plaintiff has not produced sufficient evidence to establish her failure-to-accommodate claim.
Accordingly, the undersigned recommends that Defendant's Motion for Summary Judgment be granted as to the first cause of action.
II. SECOND CAUSE OF ACTION: RETALIATION IN VIOLATION OF THE ADA
The ADA prohibits retaliation against any individual who “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].” 42 U.S.C. § 12203(a). Plaintiff's second cause of action for retaliation in violation of the ADA is based on her allegation that “Plaintiff was retaliated against for reporting violations of her rights under the ADA.” ECF No. 1-1 at ¶ 90. She also alleges that “Defendant took adverse employment action against the Plaintiff because she had engaged in actions protected by the ADA when she complained of failure to accommodate and disability discrimination.” Id. at ¶ 91.
“In order to prevail on a claim of retaliation, a plaintiff must either offer sufficient direct and indirect evidence of retaliation, or proceed under a burden-shifting method.” Jacobs, 780 F.3d at 577 (quoting Rhoads v. FDIC, 257 F.3d 373, 391 (4th Cir. 2001)). “Whether a plaintiff proceeds by direct evidence or McDonnell Douglas burden-shifting, she must show (i) that she engaged in protected activity and, (ii) because of this, (iii) her employer took an adverse employment action against her.” Id.
Plaintiff again proceeds via the burden-shifting paradigm. See ECF No. 46 at 24-25. Under this method of proof, Plaintiff must first show (1) that she engaged in protected activity; (2) that her employer took an adverse action against her; and (3) that a causal connection existed between the adverse activity and the protected action. Jacobs, 780 F.3d at 578. Defendant “then has the burden to rebut the presumption of retaliation by articulating a legitimate nonretaliatory reason for its actions.” Id. (citation and internal quotation marks omitted). The burden then shifts back to Plaintiff to show that the proffered reason is pretext. Id. “The plaintiff always bears the ultimate burden of persuading the trier of fact that she was the victim of retaliation.” Id.
In its Motion, Defendant argues that Plaintiff has neither produced evidence of protected activity under the ADA nor shown a causal link between any such protected activity and her discharge. ECF No. 41 at 13-14. Defendant further argues that Plaintiff cannot show Defendant's articulated reason for her discharge is pretext. Id. at 14-15. In response, Plaintiff argues that she engaged in protected activity when she informed Smith on March 5, 2020, that she was taking antianxiety medication and through her various emails mentioning anxiety and complaining of racial bias and treatment by colleagues. ECF No. 46 at 24-25. Upon review, the undersigned finds that Plaintiff has failed to establish a prima facie case of retaliation under the ADA.
As an initial matter, it is difficult to determine the “protected activity” in which Plaintiff claims she engaged. Her Complaint simply states that she “was retaliated against for reporting violations of her rights under the ADA.” ECF No. 1-1 at ¶ 90. However, she testified at her deposition that she does not know what protected acts she took under the ADA, ECF No. 41-16, Pl. Dep. 80:7-12, and although she avers in her affidavit that she made a number of complaints, none of them pertain to disability. See ECF No. 46-1 at 5 ¶¶ 25-26 (averring that she complained about other teachers being discriminated against, mistreatment of students by a teacher assistant, of the school failing to teach the students, and safety concerns).
Plaintiff has not produced any evidence showing that she reported or complained of any disability discrimination, failure to accommodate, or any other violation of the ADA. Although she complained in some of her emails about coworkers' treatment towards her, there is no evidence that she ever suggested this treatment was because of any disability. See Chenari v. George Washington Univ., 172 F.Supp.3d 38, 57 (D.D.C. 2016) (finding plaintiff failed to set forth any “protected activity” under the ADA where he alleged he was retaliated against “when he began to advocate for his rights,” but there was no indication that plaintiff ever sought to vindicate his rights under the ADA prior to his dismissal), aff'd, 847 F.3d 740 (D.C. Cir. 2017); Gordon v. Acosta Sales & Mktg., Inc., 622 Fed.Appx. 426, 431 (5th Cir. 2015) (“[W]hen employees make complaints about harassment without connecting the employment practices to their disabilities, these complaints do not constitute protected activity.”).
To the extent she complained about discrimination or bias based on race, color, or national origin, these are not protected categories under the ADA, such that complaints about such discrimination would not give rise to a retaliation claim under the ADA. See Taos Cnty. Magistrate Ct. v. Currier, 625 Fed.Appx. 358, 361 (10th Cir. 2015) (explaining that “the ADA protects against discrimination due to disability, and not due to race”); Reynolds, 701 F.3d at 154 (finding ADA retaliation claim based on worker's compensation request failed because “filing a workers' compensation claim is not something that is covered by the ADA”); see also 42 U.S.C. § 12101(b) (purpose of the ADA is “elimination of discrimination against individuals with disabilities”); Id. § 12101(a)(4) (distinguishing disability discrimination from discrimination based on race, color, or national origin).
Because Plaintiff has not shown that she engaged in a protected activity under the ADA, it follows a fortiori that she has failed to establish a causal link between any protected activity and her discharge.
Finally, even if Plaintiff could establish a prima facie case of retaliation, Defendant has articulated a legitimate, non-retaliatory reason for her discharge, such that Plaintiff has the ultimate burden to show that retaliation was a but-for cause of her termination. However, in her Response, Plaintiff fails to address CCSD's legitimate, non-retaliatory reason for her termination or make any arguments as to pretext. See ECF No. 46 at 24-25. Thus, Plaintiff has failed to produce evidence from which a reasonable jury could conclude that Defendant's proffered reason is pretext or that Plaintiff was the victim of retaliation. See Jacobs, 780 F.3d at 578. Accordingly, for all of these reasons, the undersigned recommends that Defendant's Motion for Summary Judgment be granted as to Plaintiff's second cause of action for retaliation under the ADA.
III. FIFTH CAUSE OF ACTION: HOSTILE WORK ENVIRONMENT
Plaintiff's fifth cause of action is a claim for hostile work environment in violation of the ADA. ECF No. 1-1 at ¶¶ 112-23. To prevail when bringing a “hostile work environment” claims under the ADA, a plaintiff must prove the following: (1) she is a qualified individual with a disability; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her 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).
In its Motion, Defendant argues that Plaintiff has not produced any evidence that she was subjected to any harassment based on her disability, or that any such harassment was sufficiently severe or pervasive to support a claim for hostile work environment. ECF No. 41 at 15-16. In response, Plaintiff argues, “it is clear that [Plaintiff] was subjected to a hostile work environment from March 5, 2020 when she notified Smith that she was on anti-anxiety medication. At that time, Smith enlisted the assistance of her friend Nichols to annihilate the reputation of Mrs. Strong to lead to her termination.” ECF No. 46 at 27.
Upon review, the undersigned finds summary judgment is appropriate. First, Plaintiff has not pointed to any evidence from which to conclude that she was the subject of harassment based on her disability. But even if she had, the evidence in the record does not support a finding of severe or pervasive harassing conduct.
To show that conduct was sufficiently severe or pervasive to support a hostile work environment claim, a plaintiff must also “demonstrate not only that he subjectively perceived his workplace environment as hostile, but also that a reasonable person would so perceive it, i.e., that it was objectively hostile.” Fox, 247 F.3d at 178. To determine whether a reasonable person would perceive an environment as hostile, a court considers the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. (citation and internal quotation marks omitted). “[A]n isolated incident of harassment, if extremely serious,” can suffice to create a hostile work environment. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 268 (4th Cir. 2015) (en banc). But evidence of nothing more than “rude treatment by coworkers, callous behavior by one's superiors, or a routine difference of opinion and personality conflict with one's supervisor” ordinarily will not suffice. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (internal citations and quotation marks omitted).
In her Response, Plaintiff does not identify any specific conduct that she contends created a hostile work environment. See ECF No. 46 at 25-27. Although Plaintiff may have subjectively perceived her workplace as hostile, she has not produced sufficient evidence from which a reasonable jury could conclude that it was objectively hostile. See Sunbelt Rentals, Inc., 521 F.3d at 316 (explaining that “the court's task on summary judgment is to identify situations that a reasonable jury might find to be so out of the ordinary as to meet the severe or pervasive criterion[, i.e.,] . . . instances where the environment was pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere”) (citation and internal quotation marks omitted); see Jessup v. Barnes Grp., Inc., 23 F.4th 360, 368 (4th Cir. 2022) (holding plaintiff failed to establish an objectively hostile work environment under the ADA).
For the foregoing reasons, the undersigned recommends that summary judgment be granted in favor of Defendant as to the fifth cause of action for hostile work environment.
IV. SIXTH CAUSE OF ACTION: RETALIATION IN VIOLATION OF § 1983
Plaintiff's sixth cause of action for retaliation in violation of her civil rights is based on her allegations that Defendant violated Plaintiff's First Amendment right to free speech. Pursuant to the First Amendment, public employees have a right not to have their employment adversely affected because they engage in constitutionally protected speech. Rankin v. McPherson, 483 U.S. 378, 383 (1987); Connick v. Myers, 461 U.S. 138, 147-48 (1983); Hughes v. Bedsole, 48 F.3d 1376, 1385 (4th Cir. 1995); see Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968) (holding that “a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment”).
The Fourth Circuit has developed a three-pronged analysis to determine whether an adverse employment action violates a public employee's First Amendment right to free speech. See McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998); Fields v. Cnty. of Beaufort in S.C., 699 F.Supp.2d 756, 760 (D.S.C. 2010). Specifically, the court must determine:
(1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether the employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public; and (3) whether the employee's speech was a substantial factor in the employee's termination decision.McVey, 257 F.3d at 277-78; see Fields, 699 F.Supp.2d at 760-61 (explaining that “the employee must have spoken out as a citizen, and not as an employee, on a matter of public concern,” that the employee's interest in the expression at issue must have outweighed the employer's “interest in the effective and efficient fulfillment of its responsibilities to the public,” and that “a sufficient causal nexus must have existed between the protected speech and the adverse employment action”).
Plaintiff argues that she engaged in activity protected by the First Amendment when she “challenged the failures of the School District to provide proper PE to children.” ECF No. 46 at 29-30. Defendant contends, however, that Plaintiff has failed to establish that this speech was a matter of public concern because, “even if Plaintiff could produce evidence that she informed the principal and other School District officials about her concerns that the District was failing to provide student with appropriate physical education opportunities, such speech is directly related to her duties as a physical education teacher.” ECF No. 41 at 18-19.
“The first prong of the McVey test, whether the speech addressed a matter of public concern, is ‘the threshold question.'” Brooks v. Arthur, 685 F.3d 367, 371 (4th Cir. 2012) (quoting Rankin, 483 U.S. at 384). If an employee's speech “cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for [the court] to scrutinize the reasons for [the employee's] discharge.” Connick, 461 U.S. at 146. The court looks at the speech's content, form, and context of a given statement to determine if it addresses a matter of public concern. Id. at 147-48.
When asked at her deposition to identify any occasion on which she spoke out on a public matter, Plaintiff testified that sometime between December 2019 and March 2020 she told Principal Smith, school nurses, and CCSD officials Holly Kut and Michelle Simmons that she was not seeing all of her students for their P.E. classes. ECF No. 41-16, Pl. Dep. 91:5-94:8. In a May 2020 email to Employee Relations Director Suggs, Plaintiff expressed her concerns about not seeing all of the fifth-grade students for P.E., as required by the Health and Wellness Act of 2005 ECF No. 46-1 at 2 ¶ 12; Id. at 7. Plaintiff testified that it was her job responsibility to deliver P.E. to the students and to administer state recommended testing to the students, which she could not do if she did not see them. ECF No. 41-16, Pl. Dep. 94:9-17.
Considering the content, form, and context of Plaintiff's statements, the undersigned finds, for purposes of summary judgment, that Plaintiff has produced sufficient evidence to show that her speech regarding the failure to provide P.E. to all students was on a matter of public concern. For speech to implicate a matter of public concern, it must relate to a “matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146. Absent highly unusual circumstances, First Amendment protection is not available when “a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest.” Id. at 147; Fields, 699 F.Supp.2d at 760. Although Plaintiff's statements were relevant to her job as a P.E. teacher, they were not on matters only of personal interest but rather touched on matters of concern to the community, as demonstrated by public standards setting minimum requirements for physical education. See Pickering, 391 U.S. at 569 (finding violation of First Amendment where high school teacher was dismissed for openly criticizing the Board of Education on its allocation of school funds between athletics and education and its methods of informing taxpayers about the need for additional revenue); see also Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (“The First Amendment protects some expressions related to the speaker's job.”).
In Garcetti, the Supreme Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 547 U.S. at 421. The undersigned finds Plaintiff's speech distinguishable from the speech at issue in Garcetti, which concerned statements made in a legal memorandum written by a prosecutor pursuant to his duties as a calendar deputy. See id. (“Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do.... The significant point is that the memo was written pursuant to Ceballos' official duties.”). Although Plaintiff testified that her job duties include administering P.E. and various examinations, there is no evidence that her official duties include raising concerns that students are not receiving the required amount of physical education.
Moreover, although Plaintiff expressed her concerns only to CCSD employees, the Supreme Court has repeatedly found that the First Amendment may apply when a public employee's private speech relates to a matter of public concern. See Connick, 461 U.S. at 148-49 (finding that one of the questions posed by a public employee in an internal survey to her coworkers touched upon a matter of public concern); Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979) (“The First Amendment forbids abridgment of the ‘freedom of speech.' Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.”).
Although Plaintiff's speech may have implicated a matter of public concern, Plaintiff has not established a violation of the First Amendment, as she has not produced evidence that “a sufficient causal nexus . . . existed between the protected speech and the adverse employment action.” Fields, 699 F.Supp.2d at 761. “The causation requirement is ‘rigorous' in that the protected speech must have been the ‘but for' cause of the adverse employment action.” Id. (quoting Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 318 (4th Cir. 2006)). Here, Plaintiff has not pointed to any evidence to support an inference that her expressed concerns regarding students not receiving P.E. contributed to her discharge, let alone that they were the “but for” cause of her termination. See id.; see also ECF No. 46 at 27-30. Accordingly, the undersigned finds that Plaintiff has failed to establish a claim for violation of her First Amendment right to free speech, such that Defendant's Motion for Summary Judgment should be granted as to the sixth cause of action.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion for Summary Judgment (ECF No. 41) be GRANTED and this action be DISMISSED.
The parties are referred to the Notice Page attached hereto.
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 Post Office Box 835 Charleston, South Carolina 29402
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).