Opinion
C. A. 3:21-1804-JMC-PJG
03-31-2022
Tawanaka Tate, Plaintiff, v. South Carolina Department of Health and Human Services, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Tawanaka Tate, through counsel, filed this employment action raising claims of race discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. 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 the motion of Defendant South Carolina Department of Health and Human Services (“DHHS”) for summary judgment. (ECF No. 22.) Tate filed a response in opposition to the motion (ECF No. 26), and DHHS filed a reply (ECF No. 28). Having reviewed the record presented and the applicable law, the court concludes that DHHS'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. Tate worked for DHHS from 2007 to 2021, originally holding the title of Human Services Specialist II. In 2008, Tate was promoted to Human Services Coordinator I, the position she held until she separated from employment in 2021. Tate, who is African American, claims that she was subjected to race discrimination and retaliation because she was denied twelve promotions from March 25, 2020 to January 7, 2021, as well as other promotions since 2017. Prior to being denied the promotions, Tate received positive or satisfactory performance reviews, participated in a pilot program for a Quality Assurance Team, and obtained a master's degree.
In 2015, Tate filed a charge of discrimination with the South Carolina Human Affairs Commission alleging race discrimination because she had been denied several promotions. Tate did not file a lawsuit after receiving a right-to-sue letter. On February 28, 2019, Tate filed an internal grievance with DHHS's human resources department over the denial of promotions for various positions. DHHS responded that the denial of promotions is not a grievable action under state policy. On September 21, 2020, Tate again filed a charge of discrimination with the South Carolina Human Affairs Commission. Tate claimed that she was subjected to race discrimination and retaliated against because she was denied a promotion to a Program Manager I position in June 2020 and was denied other unspecified promotions since 2017. Tate was issued a right-to-sue letter.
Tate filed this action on June 15, 2021, around the time she resigned from DHHS. Tate raises claims of race discrimination based on failure to promote and retaliation pursuant to Title VII. Tate alleges that the discrimination and retaliation began in “at least 2017, when she began applying for promoted positions.” (Compl. ¶ 7, ECF No. 1 at 2.) Tate also alleges the discrimination and retaliation occurred when she was denied a promotion for twelve specific positions from May 19, 2020 to July 23, 2020, for which the titles were either Program Manager II, Program Manager I, or Program Coordinator II.
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). 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). 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. DHHS's Motion
1. Race Discrimination-Failure to Promote
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). To establish a prima facie case of failure to promote under Title VII, the plaintiff must show that: (1) she is a member of a protected class; (2) she applied for the position in question; (3) she was qualified for that position; and (4) the defendant rejected her application under circumstances that give rise to an inference of discrimination. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 189 (4th Cir. 2004).
DHHS argues that Tate cannot meet the third and fourth elements of this prima facie test. DHHS argues that Tate cannot produce evidence that she was qualified for the positions to which she applied. DHHS also argues Tate cannot produce evidence that the circumstances under which it denied Tate the promotions give rise to an inference of discrimination. The court agrees.
Tate worked as a Human Services Coordinator I during the relevant period. Mark Scanlan, DHHS Regional Director and Tate's supervisor, testified that the natural progression for a Human Services Coordinator I would be a promotion to Human Services Coordinator II. (Scanlan Dep., ECF No. 22-5 at 6-7.) Instead, Tate applied to other positions that are beyond the level of a Human Services Coordinator II position. Tate puts forth no evidence that she was qualified for the positions. Tate fails to forecast evidence of what the qualifications for those positions were and how she satisfied them. Instead, Tate just argues generally that because she has satisfactory performance reviews, took on the pilot program, and obtained a master's degree, she should have been promoted. See Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th Cir. 2005) (stating that a plaintiff cannot establish her own criteria for judging her qualifications for a promotion; rather, she must establish the claim based on the qualifications established by her employer). Tate does not provide any evidence about the minimum qualifications for the jobs to which she applied. Nor does she supply any information about her former job beyond its title, any specific information about the master's degree (such as the school or field of study), or her relevant experience. Consequently, Tate has failed to forecast evidence permitting a reasonable inference that she was qualified for the positions to which she applied.
Tate also fails to present evidence that the circumstances surrounding the denial of the promotions give rise to an inference of discrimination. Tate argues that she was treated differently than other similarly situated employees. (Pl.'s Resp., ECF No. 26 at 8.) For instance, Tate argues that Angie Reames held the same position as her, but despite Tate having a master's degree and Reames having only a high school diploma, Reames was promoted to a position over Tate. However, Reames is not an appropriate comparator to establish a race discrimination claim because both Tate and Reames are African American. See Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010) (stating that the purpose of comparator evidence is to compare the plaintiff to an employee from a non-protected class). Also, the record shows individuals inside and outside Tate's protected class were hired for the positions to which Tate was not promoted. To the extent Tate relies on instances of white individuals being hired over her to support her claims, Tate fails to provide any evidence that those employees were otherwise similarly situated such that they could serve as valid comparators. See generally Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, were subject to the same standards and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.”) (internal quotation marks and alterations omitted) (quoting Haywood, 387 Fed.Appx. at 359).
In the briefing, Tate's counsel asserts that Reames is white, (Tate Dep., ECF No. 22-2 at 22), but provides no support for that assertion, and Tate herself testified in her deposition that Reames is African American. See Harrelson v. Stride Rite Children's Grp., LLC, C. A. No. 4:1002048, 2012 WL 694033, at *2 (D.S.C. Mar. 5, 2012) (“Legal memoranda, in the summary judgment context, are not evidence and do not support a finding that there is no genuine issue for trial.”)
Therefore, DHHS is entitled to summary judgment on Tate's claims based on the failure to promote her because she fails to forecast evidence to support a prima facie case of race discrimination.
2. Retaliation
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 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); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Further, “Title VII retaliation claims must be proved according to traditional principles of but-for causation,” which “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
DHHS argues that Tate cannot show that her lack of promotion was caused by her protected activities. The court agrees.
Tate points to no evidence in the record that any DHHS official responsible for making promotion decisions was aware that Tate filed charges of discrimination or an internal grievance. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (“Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case.”). Tate argues that a human resources employee, Kim Backman, who was the hiring manager for one of the positions Tate sought “would also be aware of any grievances filed” by Tate and worked in human resources when Tate filed her first charge of discrimination. (Pl.'s Resp. ECF No. 26 at 12.) But Tate points to no evidence in the record that Backman was aware of Tate's grievance, and even if she did, Backman was on the hiring panel for only one of the promotions sought by Tate. Regardless, Tate's speculation that Backman could have known about the grievance due to her position in human resources is not sufficient to establish the causation element of a retaliation claim. See generally Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 125 (4th Cir. 2021) (stating that the plaintiff in a retaliation claim must show that the decisionmaker had actual knowledge of a protected activity, rather than just constructive knowledge). Accordingly, DHHS is entitled to summary judgment because Tate fails to forecast evidence to establish the requisite causation for a retaliation claim.
RECOMMENDATION
Based on the foregoing, the court recommends DHHS's motion for summary judgment be granted. (ECF No. 22.)
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).