Opinion
4:21-cv-02527-JD-KDW
01-30-2023
Keisha Louise Waiters, Plaintiff, v. Housing Authority of Florence, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Plaintiff Keisha Louise Waiters (“Plaintiff” or “Waiters”), proceeding pro se, filed this employment action against Defendant Housing Authority of Florence (“Defendant” or “HAF”), alleging race-based retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended. Compl., ECF No. 1.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 (“Report”) regarding Defendant's Motion for Summary Judgment, ECF No. 36, to which Plaintiff submitted several responses, ECF Nos. 43, 48, and Defendant replied, ECF No. 57; and Plaintiff's pending Motion for Contempt, ECF No. 35, to which Defendant responded, ECF No. 37. Having considered the parties' relevantsubmissions and the applicable law, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 36, be granted; Plaintiff's Motion for Contempt, ECF No. 35, be denied; and this matter be ended.
Although Plaintiff's Complaint also cites “Privacy Act of 1974 5 U.S.C. § 552a(g)(1)” as a “Basis for Jurisdiction,” Compl., ECF No. 1 at 3, nothing in her Complaint or anything filed with the court suggests she is pursuing any claim based on that statute. To the extent Plaintiff is considered to be pursuing a Privacy-Act-based claim it is subject to dismissal.
As explained below, much of Plaintiff's second response, ECF No. 48, includes documentation unrelated to the issues currently before the court.
I. Factual overview
To the extent supported by the record and potentially relevant to the issues before the court, the following overview sets out the facts in the light most favorable to Plaintiff, the nonmoving party, and potentially differing accounts of events are noted. The court notes that Plaintiff has not endeavored to comply with Local Civil Rule 7.05(A)(4) by referring to her proffered exhibits in setting out her version of the facts. In any event, the undersigned has reviewed Plaintiff's filings in setting out this factual overview.
A. Plaintiff's employment with Defendant and her prior EEO activity
HAF administrates Department of Housing and Urban Development programs in Florence, Chesterfield, Dillon, and Marlboro counties in South Carolina. HAF manages the Housing Authority of Cheraw and includes its employees within Defendant's personnel policies. During the relevant time period, there were 10 employees assigned to the Cheraw office.
Plaintiff began her employment with HAF in December 2010.
This litigation concerns Plaintiff's Charge of Discrimination signed on April 5, 2021 and marked “received” on behalf of the United States Equal Employment Opportunity Commission (“EEOC”) and the South Carolina Human Affairs Commission (“SCAC”) on April 7, 2021. (Charge 14C-2021-00534). Apr. 2021 Charge, ECF No. 1-1. In the Charge, Plaintiff alleges her February 25, 2021 demotion from Program Administrator at HAF's Cheraw office to Special Project Coordinator (her prior position in the Florence office) was in retaliation for her “filing a complaint with the South Carolina Human Affairs Commission back in 2016.” Id.
Prior to the April 2021 Charge now at issue, Plaintiff had filed three charges of discrimination against Defendant:
• On August 21, 2015, Plaintiff filed a Charge alleging sex and race discrimination on June 29, 2015. Plaintiff's allegations relate to her having been denied certain leave requests. Aug. 11, 2015 Charge, ECF No. 36-3. Both the EEOC and SCHAC
issued No Cause Findings. See ECF No. 36-3 at 3-4 (SCHAC's No Cause Finding dated October 28, 2015; EEOC Dismissal dated December 11, 2015).
• On March 15, 2016, Plaintiff filed a retaliation charge alleging that her housing manager at the time was subjecting her to a different standard of performance. March 15, 2016 Charge, ECF No. 36-4. SCHAC issued a No Cause Finding on the second charge on June 21, 2016. Id. at 3. The EEOC dismissed the Charge on July 15, 2015. Id. at 4.
• On January 22, 2017, Plaintiff filed a third charge alleging disparate treatment based on her sex. Plaintiff's allegations relate to her having been denied certain leave requests. Jan. 22, 2017 Charge, ECF No. 36-5. On April 5, 2017, a mediation conference was held at the SCHAC Headquarters in Columbia. The mediation resulted in a successful negotiated settlement during which the Housing Authority agreed to modify its procedures for requesting vacation days. EEOC Letter regarding agreement, ECF No. 36-6; Aff. of HAF Executive Director Clamentine Elmore ¶ 4, ECF No. 36-9.
While these three Charges were pending, Plaintiff was the Property Manager of the Cheraw office and earned an annual salary of $30,179. On June 12, 2017, two months after the third Charge had been resolved, Elmore promoted Plaintiff to the position of Housing Programs Assistant in the Florence office. Plaintiff was placed in a newly created position with an annual salary of $35,000. Elmore Aff. ¶ 5.
Effective September 28, 2020, Plaintiff was again promoted with no competition to the position of Special Projects Coordinator. Oct. 1, 2020 Letter from Elmore to Plaintiff offering Plaintiff the position, ECF No. 36-14. Plaintiff's salary in the position would be $43,500. Id.; Aff. of Human Resources Head Diane Garris ¶ 5, ECF No. 36-12. As indicated in the letter, the appointment was “probationary in nature, as are all promotions.” Oct. 1, 2020 Letter. The probation period was to be six months. Id. Garris testified that this promotion was part of an organizational restructuring and that she supported Plaintiff's promotion. Garris Aff. ¶ 5; see also Elmore Aff. ¶ 6 (noting Plaintiff's promotion).
Plaintiff indicates she met with Garris on October 6, 2020 to “address a concern of constantly being moved laterally in the agency and not upwardly.” Pl. Mem. 1, ECF No. 43. Plaintiff indicated Garris told her, “[N]o employer likes it when an employee goes to the South Carolina Human Affairs Commission.” Id.; see also Apr. 5, 2021 Charge (referencing this comment); Undated 1 hour-18-minute-45-second audio file provided by Plaintiff at 1:02:381:02:40, Flash drive provided as part of Pl. Resp. in Opp'n Summ. J., ECF No. 44(in context of long discussion about careers, a voice that apparently is that of Garris says to Plaintiff, “In a company, nobody likes to be taken to Human Affairs.”).
As discussed more fully below, Plaintiff submitted to the court a flash drive along with her June 6, 2022 response to summary judgment. ECF No. 43. In addition to documents on that drive that now have been included in the docket, see ECF No. 55, the now-docketed exhibits, the flash drive contained two audio recordings labeled as “E Pine St” and “E Pine St 3.” Although nothing in Plaintiff's filing provides information as to whose voices are on the audio recordings, the 1:18:45-length audio recording apparently is of a conversation between Plaintiff and Garris. Offering no opinion on the admissibility of the audio evidence, the undersigned provides information about the contents of this audio file in the interest of completeness, noting it seems to support Plaintiff's statement in her Charge, Complaint, and memorandum as to what Garris said to her on October 6, 2020. The other audio file is 44-minutes and 2-seconds long and is labeled “E Pine St 3” The undersigned has listened to this recording and notes it seems a meeting between Plaintiff and someone with HAF (possibly Elmore) regarding the contents of Plaintiff's April 2021 Charge. However, Plaintiff has laid no foundation regarding this recording, nor has she explained how she believes it furthers her arguments.
Defendant's memoranda do not dispute the Garris comment. On Reply, Defendant submits Plaintiff never entered a formal complaint about the comment and Elmore was unaware of such comment. Reply 5.
“Shortly” after Plaintiff's promotion to the Special Projects Coordinator position, the position of Program Administrator in the Cheraw office became open. Elmore Aff. ¶ 6. After discussions with the management team Elmore offered Plaintiff the position on a probationary basis. The annual salary for the Program Administrator position was $47,500 with a stipend that increased the salary to approximately $54,000. Elmore Aff. ¶¶ 6-7. Plaintiff's promotion to the Cheraw Office Program Administrator position took effect on January 4, 2021. This promotion, too, was subject to a probationary period. See id.; see also Garris Aff. ¶ 6; Promotions, Demotions, Transfers, Reclassifications Policy, ECF No. 36-13 at 1-3 (indicating promotions are probationary in nature). In the Cheraw position Plaintiff was the supervisor in charge of a remote office of approximately 10 employees. Garris Aff. ¶ 6.
As part of the probationary status, HAF “strive[s] to regularly evaluate all probationary employees. [Plaintiff] was scheduled for monthly evaluations for three (3) months followed by an evaluation at the conclusion of the probationary period.” Garris Aff. ¶ 7. Plaintiff's initial evaluation in the Cheraw position “was within expectations, although with limited direct evaluation from her supervisor in Florence.” Id. ¶ 8.
On the evening of February 22, 2021, Garris was advised that three-year-employee Melinda Haire, the Cheraw Office's Property Manager Assistant, had “filed a complaint of ‘bullying' and/or ‘discrimination' based on race regarding her interactions with [Plaintiff].” Garris Aff. ¶ 9. Haire abruptly resigned on the morning of February 23, 2021. Haire Statement, ECF No. 36-8. In her four-and-a-half-page Statement Haire stated she had been “verbally abused/bullied,” “yelled at, always wrong no matter the situation, and spoke to like a child.” Id. at 1. Haire included several specific examples. Id. at 1-5. In closing, Haire said, “I didn't want to resign my job, I enjoyed my job dearly before [Plaintiff] was the supervisor, but I could no longer work for someone like [Plaintiff].” Id. at 5.
On February 23, 2021, Garris and Plaintiff's direct supervisor, Chief Operations Officer Pamela Stevens, went to the Cheraw office to investigate the matter. Garris Aff. ¶ 9. Garris and Stevens interviewed each of the employees of the Cheraw office, including Plaintiff and Haire. A full copy of their investigative report, including memoranda as to their interviews with the individual employees and typewritten statements from Plaintiff and Haire, is available at ECF No. 36-10 (attached to Elmore Aff.). Copies of the interview file are also available at ECF No. 36-16 at 11-28 (attached to Garris Aff.).
B. Plaintiff's demotion
Based on information obtained in the investigation, “along with the personal observation of the work environment,” Stevens and Garris were concerned that there was “reason to believe that Ms. Haire has been subjected to verbal abuse[,] but not subjected to race discrimination.” Investigative Report, ECF No. 36-10 at 2. Stevens and Garris found that Plaintiff's leadership was “creating an intimidating and hostile environment which [was] not allowing growth for a productive workforce.” Id. Stevens and Garris indicated it was “apparent to [them],” based on their interviews, that Plaintiff “requires additional training in leadership skills before she can successfully manage a stand-alone office.” Id.
After reviewing the results of the investigation Elmore “determined that it was not in the best interest of the Agency to allow [Plaintiff] to continue as a supervisor of the Cheraw office.” Elmore Aff. ¶ 8. Elmore met with Plaintiff on February 25, 2021, and delivered Plaintiff's “Promotion Review” of her position in the Cheraw Office. Elmore Aff. ¶ 8; Promotion Review Mem. from Elmore to Plaintiff, ECF No. 36-11 at 1-2. In the letter Elmore advised Plaintiff that the investigative results revealed there was “reason to believe [Plaintiff']s lack of adequate leadership skills has created an intimidating and hostile environment[.]” Id. at 1. Plaintiff's trial period as a Program Administrator ended at the close of business on February 25, 2021. Id. at 2. Plaintiff was offered and accepted a return to her prior Special Projects Coordinator position in Florence at the previous salary of $43,500. Id. The Promotion Review memorandum was signed by Elmore and Plaintiff. Id.
C. Plaintiff's April 5, 2021 Charge
Plaintiff filed her Charge that is the basis of this litigation in April 2021. April 2021 Charge, ECF No. 36-2. Plaintiff alleges her February 25, 2021 demotion was retaliatory. Plaintiff says she was told one of the employees she supervised had made a complaint against her. However, Plaintiff indicates she believes this to be pretext. She indicates the Director of Human Resources previously had commented to her, “‘An employer does not like it when an employee goes to the S.C. Human Affairs.'” Id. Plaintiff submits she was “subjected to such treatment in retaliation for filing a complaint with the South Carolina Human Affairs Commission back in 2016.” Id. Plaintiff was sent a Dismissal and Notice of Right to Sue from SCHAC dated May 28, 2021. ECF No. 1-1 at 2. Plaintiff filed this litigation on August 10, 2021. Compl., ECF No. 1.
No issues regarding administrative exhaustion of remedies as to the April 2021 Charge have been raised.
II. Motion for Summary Judgment
A. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A party asserting that a fact “cannot be or is genuinely disputed must support the assertion by [] “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1) (emphasis added).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See Id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
In reviewing this motion, the court considers Plaintiff's pro se status. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting that writings by self-represented complainants are held to “less stringent standards than formal pleadings drafted by lawyers”). Although the court applies that more liberal standard in reviewing a pro se plaintiff's response to a defendant's summary judgment motion, the plaintiff “may not rest on [her] pleadings, but must demonstrate that specific, material facts exist that give rise to a genuine issue” to be tried before a jury. Harleysville Mut. Ins. Co. v. Packer, 60 F.3d 1116, 1120 (4th Cir. 1995) (citations omitted); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
B. Analysis
1. Plaintiff's provision of two flash drives: what evidence will be considered?
Plaintiff's June 6, 2022 flash drive: Defendant filed its Motion for Summary Judgment on April 20, 2022. As is appropriate for audio and visual media, Plaintiff provided a flash drive to the court along with her Response to Summary Judgment memorandum submitted on June 6, 2022. See ECF No. 44. The court recently became aware that, in addition to audio files that appropriately were provided by way of the flash drive, the flash drive Plaintiff provided on June 6, 2022 also included several document-type attachments that should have been filed on ECF along with her response. See ECF No. 55. Plaintiff was reminded of her responsibility to submit paper documents for filing. Id. In any event, in the interest of judicial economy the undersigned instructed the Clerk of Court to add the documents from the June 6, 2022 flash drive to ECF and permitted Defendant the opportunity to submit a reply. Id. Other than generally suggesting evidence from this and another flash drive may not properly be in the record, Defendant's reply does not focus on the now-filed exhibits to the June 6, 2022 filings. Defendant acknowledges the audio recording that “[o]ne must assume” is the conversation with Garris referred to by Plaintiff. Reply 4. As noted above, the court has reviewed the audio recordings.
The other June 6, 2022 exhibits appear to relate to Plaintiff's internal June 2021 complaint about what she terms “dress attire harassment.” E.g., ECF No. 43-1. Plaintiff also includes an unsigned Charge concerning alleged retaliation around June 2, 2021 regarding Plaintiff's having been disciplined concerning her attire. Unsigned Charge, ECF No. 43-5. The court is unaware whether this Charge was ever signed, filed, and processed; it post-dates the demotion at issue and is not part of the litigation before the court. Moreover, Plaintiff's memorandum offers virtually no discussion of the alleged dress-code issues other than to state that Defendant “began finding issues with the Plaintiff['s] attire worn to work and frivolous faults.” Pl. Mem. 3. As Plaintiff's subsequent dress-attire-related internal complaint and draft Charge post-date the only adverse action before the court [the February 2021 demotion], this evidence need not be considered herein.
Even to the extent Plaintiff's exhibits concerning her dress-attire-harassment allegations are considered, they do not alter the undersigned's recommendation that summary judgment should be granted in this case.
Plaintiff's August 9, 2022 flash drive: On August 9, 2022, after briefing of the instant Motion for Summary Judgment had been completed, Plaintiff submitted a supplemental response, as well as another flash drive that contained items that she improperly failed to file with the court. ECF Nos. 48, 49, 55. Plaintiff's late-filed memorandum is identical to her June 2022 memorandum, other than the concluding paragraph that states, “While complying with the requests of the Courts, additional fact findings were recently produced by the Defendant and affirmed by the SCDEW which supports the Plaintiff's Statement of Claim.” Aug. 9, 2022 Resp. 3, ECF No. 48. Plaintiff's responsive memorandum does not identify the “additional fact[s]” to which she refers, nor does she explain how such information appropriately should be considered or how it furthers her litigation related to her February 2021 demotion and the April 2021 Charge. Brief review of the late-provided documents indicates they include what appears to be Plaintiff's HAF Personnel File, ECF Nos. 48-18 through -21, and various documents relating to Plaintiff's May 2022 termination by Defendant.
Defendant has indicated on Reply that Plaintiff was terminated in May 2022 and subsequently filed another Charge with SCHAC and the EEOC. SCHAC entered its Dismissal and Notice of Right to Sue on December 1, 2020. Def. Reply 6, ECF No. 57 & ECF No. 57-1 (copy of SCHAC Dismissal).
The materials provided in August 2020 will not be considered in ruling on Defendant's Motion for Summary Judgment. First, the court agrees with Defendant that these documents were provided too late and need not be considered at all. See Reply 5-6. Second, the court is not required to make arguments for any party, including those proceeding pro se, nor is it required to review documents submitted with no context. The court is not charged with combing through the record to make arguments for any party. Judges “are not like pigs, hunting for truffles buried in briefs. Similarly, it is not our job to wade through the record and make arguments for either party.” Hensley on behalf of N.C. v. Price, 876 F.3d 573, 581 n.5 (4th Cir. 2017).
Finally, issues regarding Plaintiff's May 2022 termination are not properly before the court, nor are documents relating to same. As noted above, this litigation relates to her April 2021 Charge's allegation that her February 25, 2021 demotion was retaliation for her having filed a complaint with SCHAC “back in 2016.” April 5, 2021 Charge. Only claims addressed in the Charge itself or “developed in the course of a reasonable investigation of that charge” may properly be considered part of Plaintiff's Complaint and subsequent litigation. EEOC v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)). Plaintiff's Complaint is based on her April 5, 2021 Charge. See Compl. 5 (referencing the April 5, 2021 Charge and alleging her February 25, 2021 demotion was retaliatory). Plaintiff's termination is the subject of a subsequent charge with SCHAC and the EEOC, is not a part of Plaintiff's Complaint, and is not considered herein.
2. Title VII retaliation
Plaintiff's sole cause of action is one for Title VII retaliation. Title VII protects individuals from retaliation. See 42 U.S.C. § 2000e-3(a). More specifically, “Title VII proscribes discrimination against an employee because, in relevant part, []he ‘has opposed any practice made an unlawful employment practice by this subchapter, '” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (quoting 42 U.S.C. § 2000e-3(a)). Plaintiff bears the burden of establishing that 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). When pursuing any Title VII claim, a plaintiff can prove her case either “through direct and indirect evidence of retaliatory animus,” or through a burden-shifting “pretext” framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). “In the context of a retaliatory discharge [or demotion], this means an employee may proceed by showing directly that she was fired [or demoted] in retaliation for protected activity, or by proving that any non-retaliatory justification for the firing was pretextual.” Netter v. Barnes, 908 F.3d 932, 938 (4th Cir. 2018).
Here, Defendant analyzes Plaintiff's claim using the burden-shifting framework. Plaintiff's brief cites no case law and is devoid of any legal analysis. Nonetheless, in liberally construing Plaintiff's arguments, the court notes Plaintiff's focus on the October 6, 2020 statement by HR Director Garris that “in a company, nobody likes to be taken to Human Affairs” and first considers whether it is direct evidence of retaliatory demotion. Because the statement, considered as true for purposes of this motion, does not relate to Plaintiff's February 25, 2021 demotion, the undersigned finds Plaintiff cannot survive summary judgment based on that statement.
In considering how a plaintiff may prove a Title VII retaliation claim using the directevidence path of proof, the following synopsis is instructive:
Direct evidence “is evidence which, if believed, would prove the existence of a fact without any inference or presumptions.” O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995) (internal quotation marks omitted), rev'd on other grounds, 517 U.S. 308 (1996). “Direct evidence is evidence that the employer announced, admitted, or otherwise indicated that the forbidden consideration was a determining factor” in the employer's challenged action. Bickford v. Denmark Tech. Coll., 479 F.Supp.2d 551, 564 (D.S.C. 2007) (internal quotation marks omitted) (citing Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982)). “In other words, direct evidence is ‘evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.'” Id. (quoting Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)).Walton v. McPherson, No. 2:18-CV-1568-RMG-MHC, 2020 WL 7647451, at *11 (D.S.C. Nov. 10, 2020), report and recommendation adopted, No. CV 2:18-1568-RMG, 2020 WL 7258231 (D.S.C. Dec. 10, 2020), aff'dsub nom. Walton v. Harker, 33 F.4th 165 (4th Cir. 2022).
Plaintiff has pointed to no evidence that Garris's October 2020 statement bore directly on her February 2021 demotion, nor will the court make arguments for her. Plaintiff's argument requires one to extrapolate and make inferences or presumptions not applicable to the directevidence paradigm. Walton v. McPherson, No. CV 2:18-1568-RMG, 2020 WL 7258231, at *4. Plaintiff has not presented direct evidence of retaliation. By way of example, direct evidence may be like that in Robinson v. Brennan, No. CV 3:18-3460-MGL-PJG, 2021 WL 1884041 (D.S.C. Mar. 31, 2021), report and recommendation adopted, No. CV 3:18-3460-MGL, 2021 WL 1863258 (D.S.C. May 10, 2021), in which the court denied summary judgment as to retaliation claim, finding testimony that the decisionmaker voiced displeasure as to the plaintiff's filing of EEO cases and grievances prior to terminating her and that the same decisionmaker said after the fact that he had terminated the plaintiff because he was tired of her filing EEO cases and grievances. Here, there is no evidence of such direct admissions or announcements.
Rather, subsequent to Garris's October 6, 2020 statement Defendant promoted Plaintiff. Plaintiff has offered no direct evidence somehow linking the pre-promotion statement to the subsequent demotion. Plaintiff's indication in her memorandum that she “shared concern when she was sought after for [the Cheraw] position” because she had participated in protected activity while working for Defendant, Pl. Mem. 1, is nothing more than speculation and does not tie the remark to the subsequent demotion. See Cline, 689 F.2d at 485 (indicating direct evidence must both reflect on “the alleged discriminatory attitude” and “bear directly on the contested employment decision.”). “‘Mere speculation by the plaintiff that the defendant had a discriminatory motive is not enough to withstand a motion for summary judgment.'” Reedv. Town of Williston, No. CA 1: 08-cv-02451-MBS, 2010 WL 1409425, at *12 (D.S.C. Mar. 31, 2010) (quoting Autry v. N.C. Dep't of Human Res., 820 F.2d 1384, 1386 (4th Cir. 1987)). In sum, Garris's October 6, 2020 statement is not direct evidence of Plaintiff's claim of retaliatory demotion.
The court also considers whether Plaintiff can survive summary judgment using the burden-shifting format. To set out a prima facie claim of retaliation under Title VII, Plaintiff must demonstrate “(1) that [s]he engaged in protected activity, (2) that the employer took a materially adverse action against [her] and (3) there is a causal connection between the protected activity and the adverse action.” Perkins v. Int'lPaper Co., 936 F.3d 196, 213 (4th Cir. 2019). Causation can be shown in two ways: by “show[ing] that the adverse act bears sufficient temporal proximity to the protected activity,” or by showing “the existence of facts that suggest that the adverse action occurred because of the protected activity,” or a combination of the two. Smith v. CSRA, 12 F.4th 396, 417 (4th Cir. 2021) (internal citations and quotations omitted). Once a prima facie case is established, the burden shifts to Defendant to articulate a legitimate, non-retaliatory justification for the adverse employment action, and if it does so, the burden shifts back to Plaintiff to demonstrate that the reason is pretextual. EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). In the retaliation context, Plaintiff must prove 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, 362 (2013).
Defendant does not contest that Plaintiff could establish the first two elements. She participated in protected activity by filing charges in 2015, 2016, and 2017. Her February 2021 demotion was a materially adverse action. The Fourth Circuit has found that “discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion” are examples of adverse actions. Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999). Defendant submits Plaintiff cannot establish prima facie causation because the time-gap between her previous protected activity (her prior Charges) and her February 2021 demotion is too long. Def. Mem. 6 (citing cases). In Plaintiff's Charge, she avers that she was demoted on February 25, 2021 “in retaliation for filing a complaint with the South Carolina Human Affairs Commission back in 2016.” Apr. 5, 2021 Charge. Plaintiff also filed a Charge in 2017. Defendant's prima facie causation argument focuses on the several-year gap between Plaintiff's Charges and her demotion. “[T]emporal proximity between an employer's knowledge of protected activity and an adverse employment action” may establish causation only if it is “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). To be sure, a five-year [or four-year if considering the 2017 Charge] alone is insufficient to establish causation. See Laurent-Workman v. Wormuth, 54 F.4th 201, 218-19 (4th Cir. 2022) (finding even a two-month gap between a protected activity and an adverse action to be insufficient to establish prima facie causation). Further, Plaintiff received several promotions after filing her 2015, 2016, and 2017 Charges. Based on temporal proximity alone, Plaintiff cannot establish prima facie causation. Summary judgment is appropriate, and the analysis could end here.
However, the undersigned notes the burden for establishing a prima facie case is “not an onerous burden.” Smith, 121 F.4th at 417 (quoting Strothers v. City of Laurel, 895 F.3d 317, 225 (4th Cir. 2018)). Assuming, arguendo, that Plaintiff could establish a prima facie case, she cannot establish that the legitimate, nonretaliatory reason for her demotion was pretext.
Defendant has provided evidence that it had a legitimate non-retaliatory reason for Plaintiff's demotion. Upon receiving a complaint about Plaintiff's handling of certain matters with Haire, one of her subordinates, Defendant undertook an investigation. Defendant interviewed Plaintiff, Haire, and all Cheraw office employees. Investigative notes included Haire's detailed statement recounting several instances in which Plaintiff “yelled at her,” and “lectured her,” ECF No. 36-10 at 23-28; as well as statements from other of Plaintiff's direct reports concerning, inter alia, Plaintiff's “aggressive nature,” (Cedrick Pinder Stmt., id. at 11); and the “tension in the workplace” since Plaintiff had become supervisor, (Bran McCray Stmt., id. at 13). Based on the investigation and the findings, Elmore determined it was appropriate to remove Plaintiff from the probationary supervisory position. Elmore Aff ¶ 8; see also id. ¶ 9 (Elmore indicating she was the “ultimate decision maker regarding all promotions and demotions within the [HAF] and she had “approved all of [Plaintiff's] employment decisions” referenced in her affidavit).
The burden then returns to Plaintiff to demonstrate Defendant's legitimate reason for her demotion was pretext for retaliatory behavior. To do so, Plaintiff would be required to demonstrate that, but for Defendant's desire to retaliate against her for her protected activities, she would not have been demoted. Nassar, 570 U.S. at 362. As the Fourth Circuit has noted, Plaintiff “must establish ‘both that the [employer's] reason was false and that [retaliation] was the real reason for the challenged conduct.'” Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015) (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995)).
Plaintiff makes no legal argument, and nothing in her memorandum persuades the court that she would not have been demoted “but for” HAF's desire to retaliate against her. In Plaintiff's Charge, she “was told that one of my employees that I supervised made a complaint against me. I believe this was a pretext.” Apr. 5, 2021 Charge. Plaintiff then references Garris's statement. Id. In Plaintiff's memorandum, she indicates Garris “emphatically denied ever making that statement.” Pl. Mem. 2. Plaintiff has provided no record evidence to this effect. In any event, for purposes of this motion the court accepts that Garris did make that statement. The statement alone is not sufficient to establish pretext. Plaintiff has offered no evidence that the stated reason for the demotion-issues with her management style-were false or pretextual.
In considering whether Plaintiff can establish pretext, the undersigned has also considered Plaintiff's other somewhat random arguments set out in her memorandum. Plaintiff states- without citing to any record evidence-that SCHAC documents indicate “[D]efendant ‘acknowledges' the ongoing harassment as defined by the SCHAC by recognizing the move the agency made when transferring the Plaintiff to Florence, SC to work at the central office of the Housing Authority of Florence.” Id. at 2-3. Plaintiff then includes several sentences complaining about her commute to Florence and issues with her “attire and frivolous faults.” Id. at 3. Again, Plaintiff provides no context for these statements/arguments, nor does she explain how they bolster her legal position. To the extent she is trying to demonstrate her being demoted/moved to the Florence office was a hardship, the demotion is being considered a “materially adverse action” as that term is defined under the law. Boone, 178 F.3d at 255. That she was unhappy with her demotion does not suggest pretext. Additionally, as noted above, complaints about actions subsequent to the demotion are not properly before the court.
At bottom, Plaintiff has not set out evidence sufficient to survive summary judgment. The well-documented investigation undertaken during Plaintiff's probationary period included various comments from her direct-reports to show that it was Plaintiff's job-performance-not Defendant's retaliatory animus-that occasioned her demotion. Defendant's Motion for Summary Judgment should be granted.
III. Plaintiff's Motion for Contempt
Also pending before the court is Plaintiff's Motion for Contempt in which Plaintiff seeks the court's order holding Defendant in contempt of the Conference and Scheduling Order. Mot. Contempt, ECF No. 35. Without providing much detail, Plaintiff complains that Defendant “did not provide Plaintiff with their initial disclosures” or “schedule a mediation” by the “Court's April 4, 2022 deadline.” Id. April 4, 2022 was the discovery and mediation deadline in this case. Conference and Scheduling Order, ECF No. 21.
In response, Defendant advises the court that it has responded to Plaintiff's discovery requests and that the case was mediated on May 4, 2022. Def. Resp. 1-2, ECF No. 37.
The discovery- and mediation-deadline had passed at the time Plaintiff filed her Motion for Contempt. Plaintiff never made any timely motion regarding any particular discovery requests, nor has she ever provided details of particular discovery deficiencies. The case has been mediated, albeit subsequent to the deadline found in the Scheduling Order. Plaintiff's concerns about discovery and about mediation are now moot. No contemptable action or inaction has been established. Plaintiff's Motion for Contempt, ECF No. 35, should be denied. Plaintiffs request for costs and fees should also be denied.
IV. Conclusion
For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 36, be granted. It is further recommended that Plaintiff's Motion for Contempt, ECF No. 35, be denied. As it is recommended that all of Plaintiff's claims are subject to summary judgment, this matter should be ended.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”