Opinion
CIVIL ACTION NO. 3:19-0456-MGL
2020-09-16
Frances S. BOUKNIGHT, Plaintiff, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Defendant.
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Frances S. Bouknight (Bouknight) filed this lawsuit against her former employer, Defendant South Carolina Department of Corrections (SCDOC), alleging Title VII claims of hostile work environment, constructive discharge, sex discrimination, and retaliation. The Court has federal question jurisdiction over this action in accordance with 28 U.S.C. § 1331.
The matter is before the Court for consideration of the Magistrate Judge's Report and Recommendation (Report) suggesting SCDOC's motion for summary judgment be granted in part and denied in part. Specifically, she recommends the Court grant SCDOC's motion for summary judgment as to Bouknight's claims of hostile work environment, constructive discharge, and sexdiscrimination, and deny it as to her retaliation cause of action. The Magistrate Judge submits the Report in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber , 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on May 29, 2020, Bouknight and SCDOC filed their objections on June 26, 2020, and they filed their replies to each others’ objections on July 10, 2020. The Court has reviewed the objections from both parties, but holds them to be without merit. It will therefore enter judgment accordingly.
II. FACTUAL AND PROCEDURAL HISTORY
Bouknight is woman who served as the Adult Education Director for the Palmetto Unified School District (the District) beginning in the fall of 2011. The District operates within the South Carolina Department of Corrections.
Bouknight's supervisor, Randy Reagan (Reagan), was, at all relevant times to this lawsuit, Superintendent of the District. In Bouknight's position as the Adult Education Director, she supervised around fifty percent of the school leaders in the District's correctional facilities. This included hiring, monthly training, in-school observation, annual reviews, and discipline.
Although Bouknight and Reagan's working relationship was initially pleasant, it began to sour in late 2015 to early 2016. The Magistrate Judge provides the following list of events, as Bouknight describes them, that are pertinent to her lawsuit against SCDOC:
Late November 2015 Reagan directs "angry outburst" toward Bouknight in front of other SCDC employees. December 2015 Angry outburst in front of Principal Paul Martin [(Martin)]. Martin expresses concern to Bouknight about Reagan's behavior. Mid-January 2016 Reagan treats Bouknight in an "angry manner" and excludes her from work duties. January 29, 2016 Reagan makes "venomous" comments to Bouknight during weekly staff meeting. March [4-8], 2016 Reagan confronts Bouknight about coworkers' reports that she had said to others that he was a "poor leader." Bouknight denies making this statement, but is issued [a Memorandum of Understanding] for "insubordination." March 21, 2016 Reagan removes two employees from Bouknight's supervision. April 4, 2016 Reagan directs "anger and blame" toward Bouknight at a meeting. Bouknight reports concerns to Human Resources about Reagan's behavior toward her. April 15, 2016 Meeting with Human Resources: Reagan is informed of Bouknight's complaints about his "bullying." April 27, 2016 Reagan gives Bouknight a negative performance evaluation. [May 12, 2016. Reagan learns of Bouknight's purported failure to inform him of her prior relationship with an applicant for a position at the District.]
May 16, 2016 Reagan reassigns duties away from Bouknight. June 7-9, 2016 Bouknight complains of retaliation to Reagan's supervisor and Human Resources. Reagan takes away staff assistant to Bouknight.... July 19-26, 2016 Reagan changes Bouknight's position description to remove supervisory duties. August 1-18, 2016 Bouknight complains to Reagan's supervisor and legal counsel and has several meetings with them. August 19, 2016 Reagan removes all supervisory duties from Bouknight. August 22, 2016 Bouknight files Sexual Harassment/Hostile Work Environment Complaint with [SCDOC]. September 15, 2016 Reagan receives a written warning after investigation of Bouknight's complaint. Early 2017 Reagan summons Bouknight to a meeting with Martin and berates Bouknight. March 28, 2017 Reagan "acts out in anger" toward Bouknight. Bouknight reports the outburst in an Incident Report to Human Resources on May 23, 2017. April 25-26, 2017 Reagan "ridicules and screams at Bouknight" in front of staff. April 26, 2107 Bouknight complains to Reagan's supervisor. May 23, 2017 Bouknight reports the March and April 2017 outbursts in an Incident Report to Human Resources. May 31, 2017 Bouknight is demoted [and reassigned from being the Adult Education Director for the
District to being a teacher at the District's Manning High School.] June 8, 2017 Bouknight grieves her demotion. Grievance is denied [on] June 19, 2017. June 6, 2017 Bouknight begins medical leave. July 13, 2017 Bouknight files an EEOC Charge. August 11, 2017 Bouknight resigns.
Report at 2-3 (punctuation modified).
Bouknight subsequently filed suit against SCDOC in the Richland County Court of Common Pleas. SCDOC removed the case to this Court; and thereafter filed a motion for summary judgment as to all of Bouknight's claims, Bouknight filed a response in opposition, and SCDOC filed a reply.
As the Court noted above, after the Magistrate Judge considered the motion, she suggested the Court grant SCDOC's motion for summary judgment as to Bouknight's claims of hostile work environment, constructive discharge, and sex discrimination, and deny it as to her retaliation cause of action.
III. DISCUSSION AND ANALYSIS
In considering Bouknight's Title VII claims, because hers is a circumstantial case, the Court must employ the familiar burden-shifting scheme set out in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, an employee must first establish a prima facie case of her Title VII claims. Id. at 802, 93 S.Ct. 1817.
Only if the employee successfully demonstrates a prima facie case does the burden shift to the employer to articulate some legitimate, non-retaliatory reason for the adverse employment action. Id. If the employer does so, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. Id. at 804, 93 S.Ct. 1817.
A. Bouknight's Objections
Bouknight lodges fourteen objections to the Magistrate Judge's recommendation the Court grant SCDOC's motion for summary judgment as to her hostile work environment, constructive discharge, and sex discrimination causes of action.
First, she refutes the Magistrate Judge's advice to the Court that she failed to meet the severe and pervasive standard necessary for her hostile work environment and constructive discharge claims. The focus of this objection is on her belief that the Magistrate Judge erred by determining "a reasonable jury could not find that [her] work environment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment based on her sex and her protected activities." Objections at 3.
The Court will first address this objection as it relates to Bouknight's hostile work environment claim. To establish a prima facie Title VII hostile work environment cause of action, the plaintiff must show: "(1) unwelcome conduct; (2) that is based on the plaintiff's [being a woman]; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer." Okoli v. City Of Baltimore , 648 F.3d 216, 220 (4th Cir. 2011) (citation omitted) (internal quotation marks omitted) (alteration marks omitted).
The "severe or pervasive" element of a hostile work environment claim "has both subjective and objective components." Ocheltree v. Scollon Prods., Inc. , 335 F.3d 325, 333 (4th Cir. 2003) (en banc). "First, the plaintiff must show that [she] subjectively perceived the environment to be abusive." E.E.O.C. v. Sunbelt Rentals, Inc. , 521 F.3d 306, 315 (4th Cir. 2008) (citation omitted) (internal quotation marks omitted) (alteration marks omitted). There is no dispute Bouknight "subjectively perceived the environment to be abusive." Id. Thus, the Court turns to the objective element of the test.
"[W]hen determining whether the harassing conduct was objectively severe or pervasive, [the Court] must look at all the circumstances, including 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. (internal quotation marks omitted). "[P]laintiffs must clear a high bar ... to satisfy the [objective] severe or pervasive test." Id.
"[C]onstruing all facts and reasonable inferences therefrom in favor of" Bouknight, Gen'l Ins. Co. of America v. United States Fire Insurance Company , 886 F.3d 346, 353 (4th Cir. 2018), the Court concludes she has demonstrated Reagan was sometimes angry, confrontational, retaliatory, rude, immature, insensitive, insulting, venomous, ridiculing, berating, callous, and difficult to work with.
Nevertheless, the Court also determines Reagan's alleged misconduct toward Bouknight did not start until they had worked together for four years; and, once it commenced, there are eight or so alleged angry outbursts that occurred over an eighteen-month period.
Additionally, as the Magistrate Judge noted, Reagan "apparently was never physically threatening.... [And,] even crediting Bouknight's characterization of Dr. Reagan's treatment as abusive, the record compels the conclusion that he treated everyone he worked with in a similar manner[.]" Report at 10-11.
Therefore, the Court concludes Bouknight has failed to "clear [the] high bar," Sunbelt Rentals, Inc. , 521 F.3d at 315, necessary to show Reagan's conduct was sufficiently severe and pervasive, as it relates to her hostile work environment claim. And, the portion of this objection concerning her constructive discharge claim fares no better.
"The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that [her] working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign." Green v. Brennan , ––– U.S. ––––, 136 S.Ct. 1769, 1776, 195 L.Ed.2d 44 (2016) (citation omitted) (internal quotation marks omitted). "When the employee resigns in the face of such circumstances, Title VII treats that resignation as tantamount to an actual discharge." Id. 1776-77. Thus, one making a "constructive discharge claim entails something more" than one claiming a hostile work environment. Pennsylvania State Police v. Suders , 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
Inasmuch as Bouknight is unable to demonstrate Reagan's conduct was sufficiently severe and pervasive to establish her hostile work environment cause of action, it follows she is unable to show "something more" than that, id. , which is what a constructive discharge claim requires. Accordingly, the Court will overrule this objection as to both Bouknight's hostile work environment and constructive discharge claims.
In Bouknight's second objection, she contends the Magistrate Judge erred in failing to conclude the totality of the circumstances presents a triable issue as to the severity and pervasiveness of Dr. Reagan's conduct.
"Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard." Sunbelt Rentals, Inc. , 521 F.3d at 315. "Some rolling with the punches is a fact of workplace life. Thus, complaints premised on nothing more than ... callous behavior by one's superiors, a routine difference of opinion and personality conflict with one's supervisor, are not actionable under Title VII." Id. at 315-16 (citations omitted) (internal quotation marks omitted) (alteration marks omitted).
"The task then 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." Id. But here, even when the Court assumes Bouknight's allegations of Reagan's misconduct are true, and considers them in their totality, she still misses the mark. In other words, the Court is unpersuaded Bouknight has established her work environment was such "that a reasonable jury might find to be so out of the ordinary as to meet the severe or pervasive criterion." Id. As such, the Court will also overrule this objection.
Third, according to Bouknight, the Magistrate Judge is mistaken in her failure to agree the frequency of Dr. Reagan's conduct failed to meet the requisite standard.
As the Court has already noted, there are around eight alleged angry outbursts from Reagan that occurred over an eighteen-month period, from late November 2015 to April 25-26, 2017. The Court is unable to say that "a reasonable jury might find [this] to be so out of the ordinary as to meet the ... pervasive criterion." Id. Thus, the Court will overrule this objection, too.
In Bouknight's fourth objection, she argues the Magistrate Judge erred when she failed to conclude the severity of Dr. Reagan's conduct satisfies the requisite standard.
Given the Court's discussion above, the Court will overrule this objection, as well.
Fifth, Bouknight maintains the Magistrate Judge erred in making a factual finding about one of Reagan's alleged angry outbursts directed at Bouknight and witnessed by Martin. Bouknight contends the Magistrate Judge "erred in concluding that the event witnessed by Dr. Martin is evidence that Dr. Reagan did not cross the line from an unharmonious workplace to subjecting [her] to an unlawful hostile work environment." Bouknight's Objections at 8.
In Martin's affidavit, he attested to the following:
I personally observed that Dr. Reagan was verbally abusive to [Bouknight]. As an example, one occasion I witnessed that sticks out in my memory is when I
had been to Dr. Reagan's office around the beginning of 2017. I had come from Turbeville and I was letting Dr. Reagan know of what was happening at the school and what support I needed to keep improving the school. Dr. Jay Collins and Mr. John Shipman were also present during that meeting. Dr. Reagan got mad and said it was all Ms. Bouknight's fault, which was not true. Mr. Shipman was over the issues I was identifying at Turbeville. And I confirmed that fact to Dr. Reagan. But he responded, "Ms. Bouknight knew what was going down there. This was her fault. Let me get her up here." So, Dr. Reagan called downstairs for Ms. Bouknight to come upstairs. While we were waiting for Ms. Bouknight to come to the office Dr. Reagan told me, "Mr. Martin I want to let you know something. They cannot call it hostile work environment if you don't use profanity, you don't put your hands on them, and you don't threaten them." I was shocked. I have seen that Dr. Reagan tries to surround himself with folks that are scared to death of him. If you stand up to him, he becomes verbally abusive in an attack mode. When Ms. Bouknight came in, I stepped out into the hallway. The door to Dr. Reagan's office remained cracked open so I could clearly hear how Dr. Reagan was so loud and abusive to Ms. Bouknight. After tearing into Ms. Bouknight, Dr. Reagan finally said, "now you can go." As she left the office, I saw that Ms. Bouknight had tears in her eyes and was red in the face. I was on the steps in front of Ms. Bouknight.
Martin's Aff. ¶ 27.
Although "the question of whether harassment was sufficiently severe or pervasive is quintessentially a question of fact," Hartsell v. Duplex Products, Inc. , 123 F.3d 766, 773 (4th Cir. 1997) (citation omitted) (internal quotation marks omitted), even after assuming the truth of Bouknight's evidence, and viewing all inferences from that evidence in the light most favorable to her, including this affidavit from Martin, the Court states again that it is unable to say Bouknight has "clear[ed] [the] high bar ... [she must clear] to satisfy the [objective] severe or pervasive test." Sunbelt Rentals, Inc., 521 F.3d 306, 315. As the Magistrate Judge explained, such evidence is simply not in the record. Thus, the Court will also overrule this objection.
Sixth, Bouknight states the Magistrate Judge should have concluded Dr. Reagan's physically threatening conduct met the requisite standard. According to Bouknight, "Reagan's volatility and physical signs of anger toward [Bouknight], connected with her knowledge that Dr. Reagan likely kept a gun in the office, made [her] fearful for her physical safety in the workplace." Bouknight's Objections at 11.
Bouknight's reference to "physical signs of anger" appear to refer to her allegations of his alleged volatility, angry demeanor, arm waiving, and table slamming and pounding. But, there are no allegations Reagan ever inappropriately touched Bouknight or threatened to do so. Nor is there any evidence he had ever done so to anyone else. See Hartsell , 123 F.3d at 773 (affirming the granting of summary judgment on the plaintiff's hostile work environment claim while noting "there is no allegation that [the plaintiff] was inappropriately touched[.]"). Consequently, even when viewing the facts of this case in the light most favorable to Bouknight, based on this evidence, the Court is unable to conclude Reagan was physically threatening.
As to Bouknight's suggestion "Reagan likely kept a gun in this office," id. , this appears to be based upon the deposition testimony of Tina Bridgewater, one of Bouknight's co-workers, wherein she testified to the following:
I will tell you there was a common knowledge among people that we all believed he had–well, we knew he had one in his truck. He had talked about it. But that's not illegal. That's, you know, you can do that. There was question did he have one in the office, did he have one in the safe. I mean there's always sort of the whispering scuttlebutt.
Bridgwater's Depo. at 19:10-17.
Of course, such "whispering scuttlebutt," as Bridgewater called it, is not competent evidence on which the Court can rely for purposes of this motion. Hence, for these reasons, the Court will overrule this objection, too.
Seventh, Bouknight insists the Magistrate Judge erred in her assessment that Dr. Reagan's humiliation of her failed to meet the requisite standard.
As the Court noted above, "[w]hen determining whether the harassing conduct was objectively severe or pervasive, [the Court] must look at all the circumstances, including 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." Sunbelt Rentals, Inc. , 521 F.3d 306, 315 (4th Cir. 2008) (internal quotation marks omitted). Thus, the Court considers the humiliation Bouknight allegedly suffered alongside other factors.
"This is not, and by its nature cannot be, a mathematically precise test." Harris v. Forklift Systems, Inc. , 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). "No single factor is dispositive, as the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed[.]" Sunbelt Rentals, Inc. , 521 F.3d at 315 (citations omitted) (internal quotation marks omitted) (internal alteration marks omitted).
According to Bouknight, "Reagan sought to ... humiliate her at staff meetings, yell at her publicly, degrade her publicly, act in such an intimidating manner that he made her cry on several occasions, and ruined her professional career by demoting her from an administrative position to a teacher position for no legitimate reason. This is the epitome of humiliation[.]" Bouknight's Objections at 15.
As the Court has already stated, however, "incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard." Sunbelt Rentals, Inc. , 521 F.3d at 315. "[R]ude treatment by [coworkers], callous behavior by [one's] superiors, or a routine difference of opinion and personality conflict with [one's] supervisor, are not actionable under Title VII." Id. at 315–16 (internal quotation marks and citations omitted).
Those terms almost perfectly sum up Reagan's alleged misconduct. As such, Bouknight's humiliation complaint is insufficient to turn this into a legally valid Title VII claim. Consequently, the Court will overrule this objection, as well.
Eighth, according to Bouknight, the Magistrate Judge was mistaken in stating Dr. Reagan's treatment of Bouknight was merely rude and harsh.
The Court will overrule this objection on a similar basis as to why it overruled her seventh objection: Reagan's purported mistreatment of Bouknight does not amount to a Title VII claim.
Ninth, Bouknight urges the Court to reject the Magistrate Judge's suggestion Dr. Reagan's treatment of her was insufficient to unreasonably interfere with her work performance.
But, as the Magistrate Judge correctly stated, after Reagan's alleged misconduct commenced, "Bouknight continued to do her job well for nearly a year and a half. Accordingly, regardless of how unpleasant Dr. Reagan made the work environment, it does not appear to have unreasonably interfered with Bouknight's work performance." Report at 11.
Bouknight has failed to offer anything in her objections to demonstrate otherwise. Therefore, the Court will also overrule this objection.
Tenth, Bouknight claims the Magistrate Judge erred by not focusing on her medical status as support for a triable issue of hostile work environment and constructive discharge. Bouknight contends that "[t]he harm to [her] health was so severe that [her] physician would not allow her to return to work in that environment .... [Her] medical records speak to the severe and pervasive nature of the work environment causing her constructive discharge." Bouknight's Objections at 17.
Assuming these records are admissable, they do nothing to advance Bouknight's claim. Her physician's opinion as "to the severe and pervasive nature of [her] work environment[,]" id. , is of no consequence here. Whether Reagan's purported misdeeds amount to severe and pervasive is a question of law and, as such, a determination her physician is unequipped and unauthorized to make. Thus, the Court will overrule this objection, too.
Eleventh, Bouknight complains the Magistrate Judge committed error in advising the Court Dr. Reagan's conduct was not premised on Bouknight's protected status as a woman. But, she fails to develop this objection.
Instead, the gist of her argument is that she "objects to the [Magistrate Judge] finding that [her] assertions about Dr. Reagan's treatment of her do not rise to the severe and pervasive standard required for her hostile work environment and constructive discharge claims." Bouknight's Objections at 17.
The Court has already considered and rejected this contention above. It need not repeat the discussion here. Suffice it to say the Court will overrule this objection, as well.
In Bouknight's twelfth objection, she asserts the Magistrate Judge should have advised the Court she has a triable issue of constructive discharge.
But, as the Court concluded above, inasmuch as Bouknight has been unable to establish her hostile work environment claim, her constructive discharge claim fails, too. See Suders , 542 U.S. at 147, 124 S.Ct. 2342 (one making a "constructive discharge claim entails something more" than one claiming a hostile work environment). As such, the Court will also overrule this objection.
Thirteenth, Bouknight stresses to the Court she has not abandoned any of her claims asserted in her Complaint. Here, Bouknight "asserts that [the hostile work environment, constructive discharge and demotion] occurred because of her sex[.]" Bouknight's Objections at 19.
But, the Court has already determined her claims of a hostile work environment and constructive discharge are without merit. Thus, only her sex discrimination claim regarding her demotion remains. Bouknight offers some evidence Reagan treated her differently than he did the men he supervised. For instance, one of her co-workers stated: "Reagan's treatment of women is concerning." Ortmann Aff. ¶ 24. But, Bouknight points to no evidence in the record showing that Reagan demoted her because she was a woman.
In fact, Reagan was the one who interviewed and hired Bouknight. Reagan Aff. ¶ 6. And, "[w]hen the hirer and firer are the same individual, there is a powerful inference relating to the ‘ultimate question’ that discrimination did not motivate the employer, and the early resolution of this question need not be derailed by strict fealty to proof schemes." Proud v. Stone , 945 F.2d 796, 798 (4th Cir. 1991). On these bases, the Court will overrule this objection, too.
Fourteenth, Bouknight objects to the Magistrate Judge's recommendation she is unable to establish the necessary based-on-sex element necessary for her sex discrimination claim for the three adverse employment actions: hostile work environment, demotion, and constructive discharge.
Bouknight's discussion in this objection is limited to her hostile work environment and constructive discharge claims. In light of the Court's conclusions above that she is unable to survive summary judgment on these two claims for other reasons, it need not consider this objection. Consequently, the Court will overrule this objection, as well.
B. SCDOC's Objections
SCDOC offers five objections to the Magistrate Judge's recommendation the Court deny its motion for summary judgment as to Bouknight's retaliation cause of action.
First, SCDOC claims the Magistrate Judge was mistaken in suggesting Bouknight established that she engaged in protected activity. According to SCDOC, the Magistrate Judge "erred in identifying the August 22, 2016[,] Hostile Work Environment complaint as a ‘Sexual Harassment/Hostile Work Environment Complaint.’ [Bouknight] chose not to check the box corresponding to ‘Sexual Harassment’ at the top of the standard complaint form." SCDOC's Objections at 8 (citations omitted) (emphasis omitted). SCDOC further contends that, "[b]ecause [Bouknight] did not complain to SCDOC about being treated differently on account of her sex, the Report erred in finding [she] engaged in protected activity." Id. at 9 (footnote omitted).
To establish a prima facie case of Title VII retaliation, the employee must show: "(1) that [she] 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'l Paper Co. , 936 F.3d 196, 213 (4th Cir. 2019).
"Employees engage in protected ... activity when ... they complain to their superiors about suspected violations of Title VII." Boyer-Liberto v. Fontainebleau Corp. , 786 F.3d 264, 281 (4th Cir. 2015) (citation omitted) (internal quotation marks omitted). "Complaining employees are protected by Title VII once they have an objectively reasonable belief that a Title VII violation has occurred." Jordan v. Alternative Resources Corp. , 467 F.3d 378, 380 (4th Cir. 2006) (emphasis omitted).
As the Court determined above, Bouknight has failed to establish a substantive violation of Title VII. Thus, it follows that she never complained about an actual Title VII violation inasmuch as there was not one. And here, as SCDOC noted, instead of checking the box corresponding to "Sexual Harassment" on the complaint form, Bouknight checked the "Hostile Work Environment" box.
But, "the term[ ] [hostile environment] should be understood, in certain contexts, to encompass sexual harassment[.]" Id. Strothers v. City of Laurel, Maryland , 895 F.3d 317, 336 (4th Cir. 2018). Both require Bouknight show she was being treated differently on account of her being a woman. See Spicer v. Commonwealth of Va. Dep't of Corrections , 66 F.3d 705, 709–10 (4th Cir. 1995) (en banc) (holding that a sexual harassment claim based on a hostile work environment requires the plaintiff to prove unwelcome conduct that was based on the plaintiff's sex).
In the context the Court describes herein, when all the legal jargon is cast aside, it is by no means a stretch to conclude Bouknight's hostile work environment claim includes a claim for sexual harassment. Accordingly, whether she checked the "Sexual Harassment" box or the "Hostile Work Environment" box is of no moment.
Furthermore, the Court easily concludes that Bouknight, a layperson untrained in the law, had "an objectively reasonable belief that a Title VII violation [had] occurred." Id. In other words, she could have reasonably thought Reagan treated her poorly because she was a woman. In fact, in Bouknight's personal contemporaneous notes, she writes: "on a number of occasions, Dr. Reagan has agreed with a male staff member regarding an issue, concern or recommendation, but the same recommendation made by a female (me) a few weeks before had been immediately denied." Bouknight's Notes at 3.
Thus, because the Court concludes Bouknight engaged in protected activity when she complained to her superiors about what she could have reasonably thought to be Reagan's violations of Title VII, it holds she satisfies the "engaged in protected activity" element of her retaliation claim. See Boyer-Liberto , 786 F.3d at 281. As such, the Court will overrule this objection.
In SCDOC's second objection, it proposes the Magistrate Judge erred in concluding Bouknight established an adverse employment action. In support of its argument, SCDOC cites to Fourth Circuit race discrimination caselaw stating that "[a]n adverse employment action is a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiff's employment." James v. Booz–Allen &Hamilton, Inc. , 368 F.3d 371, 375 (4th Cir. 2004). According to SCDOC, "[b]ecause [Bouknight] worked for the state prison system, and working in a prison was a condition of her employment, [her] reassignment to Manning [High School] with the same pay and benefits should not be deemed an adverse employment action." SCDOC's Motion for Summary Judgment at 28.
But, "the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The "standard for establishing an adverse employment action under Title VII's antiretaliation provision is more expansive than the standard for demonstrating a tangible employment action under the statute's antidiscrimination provisions." Ray v. International Paper Company , 909 F.3d 661, 670 (4th Cir. 2018). The Supreme Court has defined an adverse employment action, as it relates to a retaliation claim, this way: something that "well might have dissuaded a reasonable worker from engaging in protected conduct." Burlington , 548 U.S. at 68, 126 S.Ct. 2405 (internal citation omitted) (internal quotation marks omitted).
Accordingly, the issue in Bouknight's retaliation claim is not whether her demotion from Adult Education Director for the District to being a teacher at Manning High School amounts to an adverse employment action because the terms, conditions, or benefits of her employment were adversely affected. Instead, the question is whether the demotion to Manning High School "well might have dissuaded a reasonable worker from engaging in protected conduct." Id. (internal citation omitted) (internal quotation marks omitted). Inasmuch as SCDOC fails to address this question, the Court will also overrule this objection.
In SCDOC's third objection, it complains the Magistrate Judge was wrong in recommending Bouknight established a causal connection between any alleged protected activity and her May 31, 2017, demotion: reassignment to Manning High School.
To establish the necessary causation for a retaliation claim, "the employer must have taken the adverse employment action because the plaintiff engaged in a protected activity." Dowe v. Total Action Against Poverty , 145 F.3d 653, 657 (4th Cir. 1998) (emphasis in original). "[E]stablishing a causal relationship at the prima facie stage is not an onerous burden." Strothers , 895 F.3d at 335 (citation omitted) (internal quotation marks omitted).
Here, the Court asks whether Bouknight has demonstrated that her engaging in protected activity caused her demotion. In the "Factual and Procedural History" section of this opinion, the Court laid out a timeline of Bouknight's evidence concerning her relationship with Reagan. The Court need not reproduce the list here.
Suffice it to say, this is not a close call. A jury, after considering all of the evidence, may well find Reagan demoted Bouknight because of her protected activity of complaining about him. Therefore, the Court will overrule this objection, too.
SCDOC's fourth objection is that the Magistrate Judge erred in advising the Court that Bouknight is able to rebut SCDOC's legitimate, non-retaliatory reason for her May 31, 2017, demotion. SCDOC states that "[t]he undisputed evidence presented in Dr. Reagan's affidavit is that he and Ms. Barrett [(Reagan's supervisor)] assigned [Bouknight] to Manning [High School] at the end of the 2016–2017 academic year because her certifications and experience made her uniquely qualified to address the challenges at Manning High School, and Dr. Reagan had lost trust in her to continue serving as a member of his leadership team." SCDOC's Objections at 16.
According to SCDOC, Reagan lost trust in Bouknight for two reasons. The first concerns her alleged insubordination, for which he issued a write up on March 8, 2016. And, the second is about her purported failure to inform him of her prior relationship with an applicant for a position at the District, which Reagan found out about on May 12, 2016.
As the Magistrate Judge observed, Reagan "did not immediately demote [Bouknight]; the reassignment did not occur until over a year after he first became aware of her alleged insubordination and breach of trust." Report at 17. Nevertheless, SCDOC argues that "[t]he undisputed evidence from Dr. Reagan's affidavit is that Ms. Barrett and Dr. Reagan waited to the end of the academic year to reassign [Bouknight]. [She] fails to offer any evidence to dispute Dr. Reagan's affidavit stating he and Ms. Barrett chose to reassign her at the end of the academic year." SCDOC's Objections at 19.
"[T]he academic year end[s] in May." Id. at 3. "Therefore," according to SCDOC, "decisions regarding schools within the [District] are often made in the May/June time period." Id.
To recap, Reagan says he lost trust in Bouknight because of events that allegedly occurred in March and May of 2016. That was during the 2015-16 school year. But, Reagan demoted Bouknight on May 31, 2017. In other words, instead of demoting Bouknight at the end of the 2015-16 academic year, when Reagan says he lost trust in Bouknight, he waited until the end of the next academic year, 2016-17, to do so.
Thus, the Magistrate Judge is correct: "[a] jury should decide whether it was because [Reagan] had lost confidence in [Bouknight's] loyalty to him based on her actions a year earlier, or whether it was because she repeatedly complained to his supervisor and Human Resources about his hostile treatment toward her." Report at 17. As such, the Court will overrule this objection, as well.
In SCDOC's fifth and final objection, it declares the Magistrate Judge wrongly recommended Bouknight established but-for causation. As per SCDOC, "[e]ven if [Bouknight] had offered evidence to rebut the legitimate, non-retaliatory reasons Ms. Barrett and Dr. Reagan reassigned her to Manning High School, she fails to establish but-for her August 22, 2016[,] Hostile Work Environment complaint, her April 15, 2016[,] complaint, or any other purported protected activity, SCDOC would not have reassigned her to Manning High School on May 31, 2017." SCDOC's Objections at 19.
"[T]he plaintiff may attempt to establish that he was the victim of intentional discrimination by showing that the employer's proffered explanation is unworthy of credence." Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citation omitted) (internal quotation marks omitted). "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id. at 134, 120 S.Ct. 2097.
In addition, "although the presumption of discrimination drops out of the picture once the defendant meets its burden of production, the trier of fact may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom on the issue of whether the defendant's explanation is pretextual." Id. (citation omitted) (internal quotation marks omitted) (internal alteration marks omitted).
Given the reams of evidence of Reagan's alleged misconduct after Bouknight complained of it, and the question as to whether the reason SCDOC gives for demoting Bouknight is worthy of credence, there remains a genuine issue of material fact as to whether, but-for Bouknight's protected activity, SCDOC would have demoted her. Thus, the Court will leave it to a jury to decide this issue. Consequently, the Court will also overrule this objection.
*****
As the Magistrate Judge aptly put it, "[a]lthough the evidence [Bouknight] presents could fairly support the conclusion that Dr. Reagan bullied his co-workers, case law has long held that rudeness, bullying, and harsh management styles generally do not meet the requisite standard to establish a [Title VII claim]." Report at 9. But still, the Court would be remiss if it failed to briefly comment on the profoundly disturbing and troubling allegations and evidence in this case.
Some might be surprised, find it puzzling, or be perplexed, that the Court is granting summary judgment on most of Bouknight's claims. Suffice it to say, the Court applies the law as it is, not as one might think it ought to be.
The Court hastens to add, however, that its decision granting summary judgment on those claims absolves neither Reagan nor SCDOC of responsibility for Reagan's alleged misdeeds, if he, in fact, committed them. Summary judgment is not exoneration. And, just because something does not amount to a colorable claim does not make it acceptable.
Legalities aside, there are mountains of stunning and alarming allegations and evidence in this record which, if true, might bring into question the wisdom of SCDOC having had Reagan in its employ, much less as a supervisor. He has since retired. Reagan's Aff. ¶ 5. But, that is a question for another day and for another venue. See DeJarnette v. Corning Inc. , 133 F.3d 293, 298-99 (4th Cir. 1998) ("Title VII is not a vehicle for substituting the judgment of a [C]ourt for that of the employer.") (citation omitted) (internal quotation marks omitted).
IV. CONCLUSION
After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court overrules both sets of objections, adopts the Report, and incorporates it herein. Accordingly, it is the judgment of this Court SCDOC's motion for summary judgment is GRANTED IN PART AND DENIED IN PART . Specifically, the motion is GRANTED as to Bouknight's hostile work environment, constructive discharge, and sex discrimination claims, and DENIED as to her retaliation claim.
IT IS SO ORDERED .
REPORT AND RECOMMENDATION
Paige J. Gossett, UNITED STATES MAGISTRATE JUDGE
The plaintiff, Frances S. Bouknight, filed this action alleging sex discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. ; against the defendant, the South Carolina Department of Corrections ("the Department"). 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 defendant's motion for summary judgment. (ECF No. 23.) The motion has been fully briefed and is ready for resolution. (See ECF Nos. 23-1, 31, 34.) Having reviewed the parties’ submissions and the applicable law, the court finds that the Department's motion should be granted in part and denied in part.
The defendant removed this matter from the Richland County Court of Common Pleas.
BACKGROUND
The following facts are either undisputed or are viewed in the light most favorable to Bouknight to the extent they find support in the record. Bouknight is female and served, beginning in the fall of 2011, as the Adult Education Director for the Palmetto Unified School District—the school district that operates within the South Carolina Department of Corrections. Her supervisor, Dr. Randy Reagan, who is male, served as Superintendent of the District. As the Adult Education Director, Bouknight supervised approximately fifty percent of the school leaders in the District's correctional facilities, including hiring, monthly training, in-school observation, annual reviews, and discipline.
Although initially pleasant, the working relationship between Bouknight and Dr. Reagan began to sour in late 2015 to early 2016. The following timeline summarizes events as Bouknight describes them. (See generally Pl.’s Mem. Opp'n Summ. J. at 2-14, ECF No. 31 at 2-14.)
| Date | Incident | Notes |
|---|---|---|
| Late November 2015 | Reagan directs "angry outburst" toward Bouknight in front of other SCDOC employees | |
| December 2015 | Angry outburst in front of Principal Paul Martin | Martin expresses concern to Bouknight about Reagan's behavior |
| Mid-January 2016 | Reagan treats Bouknight in an "angry manner" and excludes her from work duties | |
| January 29, 2016 | Reagan makes "venomous" comments to Bouknight" during weekly staff meeting | |
| March 7-8, 2016 | Reagan confronts Bouknight about coworkers’ reports that she had said to others that he was a "poor leader" | Bouknight denies making this statement, but is issued an MOU for "insubordination" |
| March 21, 2016 | Reagan removes two employees from Bouknight's supervision | |
| April 4, 2016 | Reagan directs "anger and blame" toward Bouknight at a meeting | Bouknight reports concerns to Human Resources about Reagan's behavior toward her |
| April 15, 2016 | Meeting with Human Resources: Reagan is informed of Bouknight's complaints about his "bullying" | |
| April 27, 2016 | Reagan gives Bouknight a negative performance evaluation | |
| May 16, 2016 | Reagan reassigns duties away from Bouknight | |
| June 7-9, 2016 | Bouknight complains of retaliation to Reagan's supervisor and Human Resources | Reagan takes away staff assistant to Bouknight for the WorkKeys project |
| July 19-26, 2016 | Reagan changes Bouknight's position description to remove supervisory duties | |
| August 1-18, 2016 | Bouknight complains to Reagan's supervisor and legal counsel and has several meetings with them | |
| August 19, 2016 | Reagan removes all supervisory duties from Bouknight | |
| August 22, 2016 | Bouknight files Sexual Harassment/Hostile Work Environment Complaint with SCDOC | |
| September 15, 2016 | Reagan receives a written warning after investigation of Bouknight's complaint | |
| Early 2017 | Reagan summons Bouknight to a meeting with Martin and berates Bouknight | |
| March 28, 2017 | Reagan "acts out in anger" toward Bouknight | Bouknight reports the outburst in an Incident Report to Human Resources on May 23, 2017 |
| April 25-26, 2017 | Reagan "ridicules and screams at Bouknight" in front of staff | |
| April 26, 2107 | Bouknight complains to Reagan's supervisor | |
| May 23, 2017 | Bouknight reports the March and April 2017 outbursts in an Incident Report to Human Resources | |
| May 31, 2017 | Bouknight is demoted | |
| June 8, 2017 | Bouknight grieves her demotion | Grievance is denied June 19,2017 |
| June 6, 2017 | Bouknight begins medical leave | |
| July 13, 2017 | Bouknight files an EEOC Charge | |
| August 11, 2017 | Bouknight resigns |
A. Summary Judgment Standard
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505.
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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (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, 120 S.Ct. 2097 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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, 120 S.Ct. 2097. 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—disappear[s], 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, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 101 S.Ct. 1089 ) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981 ). To meet this "merged" burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256, 101 S.Ct. 1089.
"[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, 120 S.Ct. 2097. 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, 120 S.Ct. 2097. "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. Plaintiff's Claims
1. Hostile Work Environment (Title VII—Sex)
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, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ; Ocheltree v. Scollon Prods, Inc., 335 F.3d 325, 331 (4th Cir. 2003). Thus, it is unlawful for employers to require individuals to work in a discriminatorily hostile or abusive environment. Harris, 510 U.S. at 21, 114 S.Ct. 367 ; Ocheltree, 335 F.3d at 331. Such an environment exists "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or persuasive to alter the conditions of the victim's employment and create an abusive working environment." Id.
To establish a hostile work environment claim under Title VII, a plaintiff must show that the offending conduct (1) was unwelcome, (2) was based on her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to her employer. Ocheltree, 335 F.3d at 331 ; see also Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006). However, "[w]orkplaces are not always harmonious locales." E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (Title VII). Moreover, federal employment statutes are not "general civility code[s]." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (Title VII); Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335 (4th Cir. 2010) (Title VII).
The Department first argues that Bouknight cannot meet the second element of her hostile work environment claim because she cannot show that any offensive conduct was based on her sex. To meet this element, a plaintiff must show that "but for" one of the protected traits, she would not have been a victim of harassment. See Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007) (citing Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998) (Title VII & ADEA)). The federal anti-discrimination statutes do not protect employees from hostility and abuse from their supervisors unless the objectionable conditions occur because of a protected characteristic. See Graham v. Prince George's Cty., 191 F. App'x 202, 204 (4th Cir. 2006) (finding the district court did not err in determining that "although [the] facts reflected an unpleasant working environment, they did not support a hostile one based on an unlawful characteristic"); see also Oncale, 523 U.S. at 80, 118 S.Ct. 998. Here, Bouknight concedes that she worked closely with Dr. Reagan for over four years without any negative incidents. (See Bouknight's Narrative of "Reagan Concerns," ECF No. 23-22 at 5.) The conduct of which she complains did not begin until late 2015. The defendant investigated her claim and found no support for her contention that she was being treated differently based on her sex. Although Bouknight presents some evidence from co-workers that they perceived Dr. Reagan to treat some women more harshly than men, some of that testimony is from a teacher who retired before the alleged harassing conduct against Bouknight began, and therefore does not appear to be based on his personal knowledge. (See Ortmann Dep. 82:13-16, ECF No. 31-4 at 63.) Mr. Ortmann did offer his opinion that during the time that he worked for the Department Dr. Reagan treated Bouknight and other women in the workplace badly and would try to run them out of their jobs. (Ortmann Aff. ¶¶ 24-25, ECF No. 31-11 at 5.) However, other witnesses opined that he was rude to everyone. (See Glover Dep. 81:12-13, ECF No. 31-5 at 76.) And even if a jury could properly consider and credit Ortmann's opinion on this point, it alone is insufficient to reasonably infer but-for causation. While some evidence from other co-workers supports Bouknight's contention that Dr. Reagan was rude or even abusive to her, nothing in that testimony indicates that his treatment of her was because she is female. (See generally Martin Aff. ¶ 27, ECF No. 31-10 at 5; Glover Dep. 78:5-82:25, ECF No. 31-5 at 73-77.) Finally, Dr. Reagan was the decision maker who hired Bouknight, undermining any inference that his later behavior toward her was based on her sex. (Reagan Aff. ¶ 6, ECF No. 23-3 at 2); see Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (indicating that "because [the supervisor] is the same person who hired [the plaintiff], there is a ‘powerful inference’ that the failure to promote her was not motivated by discriminatory animus") (Title VII gender discrimination); Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (ADEA) ("When the hirer and firer are the same individual, there is a powerful inference relating to the ‘ultimate question’ that discrimination did not motivate the employer, and the early resolution of this question need not be derailed by strict fealty to proof schemes.").
Next, the Department contends that Bouknight cannot show that the alleged offensive conduct meets the requisite "severe and pervasive" standard. In a hostile work environment case, the behavior must rise to the standard of being so "severe" or "pervasive" so as to create an abusive working environment. Harris, 510 U.S. at 21, 114 S.Ct. 367 ; see also Baqir v. Principi, 434 F.3d 733, 746 (4th Cir. 2006). When analyzing this element, courts examine the totality of the circumstances, considering such factors as the frequency of the discriminatory conduct and its severity; whether it is physically threatening or humiliating or merely constitutes offensive verbal statements; and whether it unreasonably interferes with an employee's work performance. See Harris, 510 U.S. at 23, 114 S.Ct. 367 ; Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996).
Bouknight's assertions about Dr. Reagan's negative treatment of her do not rise to this high standard. Although the evidence she presents could fairly support the conclusion that Dr. Reagan bullied his co-workers, case law has long held that rudeness, bullying, and harsh management styles generally do not meet the requisite standard to establish a hostile work environment. See Sunbelt Rentals, Inc., 521 F.3d at 315-16 (stating that complaints that would objectively give rise to bruised or wounded feelings or incidents that are premised on nothing more than rude treatment, callous behavior, or a routine difference of opinion and personality conflict will not satisfy the severe or pervasive standard); Buchhagen v. ICF Int'l, Inc., 545 F. App'x 217, 219 (4th Cir. 2013) (holding that allegations that a supervisor mockingly yelled at the plaintiff in a meeting, yelled and pounded her hands on a desk during another meeting, repeatedly harped on a mistake by the plaintiff, made snide comments to the plaintiff, played favorites with employees and pitted employees against each other, and unfairly scrutinized and criticized the plaintiff's use of leave and lack of compliance with directives fell "far short of being severe or pervasive enough to establish an abusive environment"); cf. Fox v. Gen. Motors Corp., 247 F.3d 169, 179 (4th Cir. 2001) (holding that evidence that supervisors constantly berated and harassed the plaintiff and other disabled workers at least weekly with vulgar and profane language (such as "handicapped MF" and "hospital people"), encouraged other employees to ostracize disabled workers, and required the plaintiff to perform tasks beyond his medical restrictions was sufficient evidence for a jury to find the plaintiff was subjected to harassment based on his disability that was sufficiently severe or pervasive to create a hostile work environment). Dr. Reagan's conduct did not manifest until Bouknight had worked with him for several years, and apparently was never physically threatening, despite Bouknight's assertion that she was afraid of him and her unsupported speculation that he kept a gun in his office or truck. Moreover, although Bouknight describes approximately eight encounters with Dr. Reagan in which she characterizes his behavior as angry, venomous, ridiculing, or berating, these outbursts occurred over an approximate eighteen-month period. Absent egregious incidents, case law suggests that to meet the pervasiveness standard, the hostility must be frequent or nearly constant, not occasional or sporadic—weekly or daily abuse generally is required. Compare Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (observing that a supervisor's two uses of a racial slur "whether viewed as a single incident or as a pair of discreet incidents of harassment were severe enough to engender a hostile work environment") with Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202 (4th Cir. 2014) (reversing district court's grant of summary judgment on a sexual harassment claim but characterizing the determination as a "close question" where the plaintiff was subjected almost daily to sexual comments and actions by co-workers such as a male co-worker regularly grabbing his crotch and saying "these nuts are looking for you"; referring to the plaintiff as "fresh meat"; and suggesting that if another male co-worker "want[ed] a blow job" he should go join the plaintiff where she was working); Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001) (holding that supervisor's constant, even daily, use of racial epithets was sufficiently severe or pervasive to survive summary judgment); Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000) (concluding that "a barrage of threats and gender-based insults" that the plaintiffs supervisor directed at her and that occurred more than thirty times in the first few weeks of the plaintiff's employment was sufficiently severe or pervasive to survive summary judgment); Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (finding the alleged harassment was sufficiently severe and pervasive because an Iranian plaintiff was called "names like ‘the local terrorist,’ a ‘camel jockey’ and ‘the Emir of Waldorf’ " on an almost daily basis); and Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (finding that the fact that the incidents occurred intermittently over a seven-year period, with gaps between incidents as great as a year, "alone suggests the absence of a condition sufficiently pervasive to establish Title VII liability"); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995) ("A handful of comments spread over months is unlikely to have so great an emotional impact as a concentrated or incessant barrage."). Finally, even crediting Bouknight's characterization of Dr. Reagan's treatment as abusive, the record compels the conclusion that he treated everyone he worked with in a similar manner, and that Bouknight continued to do her job well for nearly a year and a half. Accordingly, regardless of how unpleasant Dr. Reagan made the work environment, it does not appear to have unreasonably interfered with Bouknight's work performance.
Evidence suggests, in fact, that Dr. Reagan was well aware of how difficult the legal standard to establish a hostile work environment is to meet and took care not to cross the line. (Martin Dep. 67:3-10, ECF No. 31-3 at 55; Martin Aff. ¶ 27, ECF No. 31-10 at 5.)
For the same reasons, the Department correctly argues that Bouknight cannot meet the more stringent standard to establish a constructive discharge. To show a constructive discharge, a plaintiff must establish that her employer acted unlawfully against her to the point where her "working conditions bec[a]me so intolerable that a reasonable person in the employee's position would have felt compelled to resign." Green v. Brennan, ––– U.S. ––––, 136 S. Ct. 1769, 1776, 195 L.Ed.2d 44 (2016) (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) ). "Whether an employment environment is intolerable is determined from the objective perspective of a reasonable person." Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 262 (4th Cir. 2006) (citing Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) ). As courts have recognized, "[d]issatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign." Williams, 370 F.3d at 434 (quoting Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994) ). The standard for constructive discharge is a strict one—stricter, in fact, than the one required to establish a hostile work environment under federal employment statutes. See Suders, 542 U.S. at 146-47, 124 S.Ct. 2342. Here, although Dr. Reagan's behavior, viewed in the light most favorable to Bouknight, was rude and harsh, it does not rise to the severe and pervasive standard to show a hostile work environment, much less the more stringent standard for constructive discharge.
Under Green, a plaintiff must show the additional element that she in fact resigned. Green, 136 S. Ct. at 1777.
However, contrary to older law cited by the plaintiff, recent precedent has instructed that although the standard for constructive discharge requires "objective ‘intolerability,’ " it does not require " ‘deliberateness,’ or a subjective intent to force a resignation." U.S. Equal Emp't Opportunity Comm'n v. Consol Energy, Inc., 860 F.3d 131, 144 (4th Cir. 2017) (quoting Green, 136 S. Ct. at 1779 ).
2. Discrimination (Title VII—Sex)
Bouknight also alleges that the Department discriminated against her because of her sex when they reassigned her to work at the Manning facility. However, she appears to have abandoned this claim by failing to specifically address the defendant's argument that it was not motivated by her sex. Cf. Coker v. Int'l Paper Co., C/A No. 2:08-1865-DCN-BM, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) ("[P]laintiff can abandon claims by failing to address them in response to a summary judgment motion."). Even if Bouknight has not abandoned this claim, she has presented no evidence to support a finding that her demotion was motivated by her sex.
3. Retaliation (Title VII)
Claims of retaliation are also analyzed under the McDonnell Douglas burden-shifting framework. Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000). Title VII makes it unlawful for an employer to retaliate against an employee for engaging in activity protected by the statute. See 42 U.S.C. § 2000e-3(a). The requisite elements for a prima facie case of retaliation typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him or her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) ; 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, 133 S. Ct. 2517, 2533, 186 L.Ed.2d 503 (2013).
"Protected activity" under the statute falls into one of two categories: opposition or participation. Crawford v. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009). To constitute protected opposition activity, a plaintiff must have conveyed to the employer a reasonable belief that the actions complained of violated federal law. Jordan v. Alt. Res. Corp., 458 F.3d 332, 340-41 (4th Cir. 2006) (stating that "an employee seeking protection from retaliation must have an objectively reasonable belief in light of all the circumstances that a Title VII violation has happened or is in progress") (citing Equal Emp't Comm'n v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005) ); see also Netter v. Barnes, 908 F.3d 932, 937-38 (4th Cir. 2018) (discussing the standards for participation and opposition activity). Moreover, to prove a causal connection, a plaintiff asserting a retaliation claim must be able to show that [her] employer took the adverse action "because the plaintiff engaged in a protected activity." Holland, 487 F.3d at 218 (emphasis in original) (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) ). Thus, to plausibly allege a retaliation claim, a plaintiff must assert facts showing that the employer was aware of the protected activity. See Shields v. Fed. Express Corp., 120 F. App'x 956, 962 (4th Cir. 2005) (citing Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004) ).
To establish an adverse action with respect to a retaliation claim, a plaintiff must show that the adverse action was objectively material. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The United States Supreme Court has held that, unlike the adverse employment action element for a disparate treatment claim, Title VII's prohibition of adverse actions taken in retaliation for protected activity "is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 64, 126 S.Ct. 2405. Rather, "[t]he scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." Id. at 67, 126 S.Ct. 2405. However, the anti-retaliation provision does not shield an employee from all retaliation, but rather only from retaliation that produces injury or harm. Id. Accordingly, to fall within the provision's protection, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ " Id. at 68, 126 S.Ct. 2405 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) ). A plaintiff must show material adversity to separate the significant harms from the trivial, as "Title VII ... does not set forth ‘a general civility code for the American workplace.’ " White, 548 U.S. at 68, 126 S.Ct. 2405 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ). The test is an objective one and considers the reactions of a reasonable employee. White, 548 U.S. at 68, 126 S.Ct. 2405. Further, "[c]ontext matters," and the significance of the adverse action must be analyzed under the circumstances particular to the plaintiff. See id. at 69, 126 S.Ct. 2405. Thus, "an ‘act that would be immaterial in some situations is material in others.’ " Id. (quoting Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 661 (7th Cir. 2005) ). The standard analyzes the challenged retaliatory act, not the underlying conduct that gave rise to the Title VII complaint. White, 548 U.S. at 69, 126 S.Ct. 2405. The question is whether the challenged action was material from the perspective of a reasonable person in the plaintiff's position. Id. at 69-70, 126 S.Ct. 2405.
Here, it is not disputed that Bouknight engaged in protected activity and therefore meets the first required element. Specifically, she repeatedly complained both to Human Resources and to Regan's supervisor that Reagan was bullying her and the nature of her complaints reflected a reasonable belief that his treatment of her was based upon her sex. She also filed an internal hostile work environment complaint. (ECF No. 23-21 at 2-3.)
Case law makes clear that the fact that a plaintiff cannot ultimately prove that the acts complained of were based on a protected characteristic does not mean her belief was unreasonable. See Netter, 908 F.3d at 937-38 (stating that participation activities are protected "even when they are plainly ‘unreasonable’ or ‘irrelevant’ " and opposition activities are protected when "she reasonably believed that the employment action she opposed constituted a Title VII violation" and her opposition conduct was reasonable) (citations omitted); Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002) ("A Plaintiff need not establish that the conduct she opposed actually constituted an ADA violation. But a complainant must allege the predicate for a reasonable, good faith belief that the behavior she is opposing violates the ADA.") (internal citation omitted).
Bouknight also filed a formal charge with the Equal Employment Opportunity Commission, but this protected activity cannot form the basis for her retaliation claim because all of the incidents she relies upon as comprising adverse acts—including those leading to her alleged constructive discharge—occurred before she filed it. See Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006) (affirming summary judgment where the actions that led to plaintiff's termination began before her protected activity). In fact, her Complaint does not even rely on her EEOC Charge as constituting protected activity to support her retaliation claim. (Compare Compl. ¶ 43, ECF No. 1-1 at 7 ("Bouknight engaged in protected activities when she complained to [Human Resources]. Bouknight filed hostile workplace complaints against Dr. Reagan, her supervisor.") with Pl.’s Mem. Opp'n Summ. J. at 23, ECF No. 31 at 23 (discussing the formal EEOC Charge as constituting protected activity connected to her constructive discharge)).
As to the second element, Bouknight identifies three adverse acts in her Complaint: demotion, retaliatory hostile work environment, and constructive discharge. (Compl. ¶ 45, ECF No. 1-1 at 7.) For the reasons discussed above, the conduct of which she complains, though unpleasant, was not sufficiently egregious to meet the requisite standards for a hostile work environment or constructive discharge. See supra part C.1. The court therefore turns to the question whether she can establish a prima facie case by connecting her demotion to her protected activity.
On this record, the court concludes that a reasonable jury could find that Dr. Reagan's reassignment of Bouknight to a lesser position was causally connected to her repeated complaints about Dr. Reagan's hostile behavior, which she believed to be based on her sex. In support of its motion for summary judgment, the Department largely depends on a lack of temporal proximity between these events, since many months passed between her earliest complaints and her reassignment. However, other than the one-month proximity between her April 2017 complaint about Reagan and his decision to reassign her in May, Bouknight does not rely on temporal proximity to establish causation. Rather, she identifies a long pattern of allegedly retaliatory actions that escalated after she first complained about Dr. Reagan in April of 2016. Cf. Lettieri v. Equant Inc., 478 F.3d 640, 650–51 (4th Cir. 2007) (discussing a pattern of retaliatory conduct where regularly occurring intervening events involving two supervisors over a seven-month period included, for example, stripping the plaintiff of job responsibilities which made it easier to later indicate that the plaintiff was not needed and should be terminated, and where evidence suggested their proffered reason for terminating the plaintiff, that her position was redundant, was false).
Further, a genuine issue of material fact exists regarding whether Dr. Reagan's proffered legitimate, nondiscriminatory reason—that she had undermined his authority by complaining to others about his leadership and lost his trust—was pretextual. Bouknight denied the conduct that supposedly drew Reagan's ire. And he did not immediately demote her; the reassignment did not occur until over a year after he first became aware of her alleged insubordination and breach of trust. Her complaints persisted, including a formal hostile work environment claim. When she complained again to Reagan's supervisor in April 2017, Reagan quickly acted to demote her. A jury should decide whether it was because he had lost confidence in her loyalty to him based on her actions a year earlier, or whether it was because she repeatedly complained to his supervisor and Human Resources about his hostile treatment toward her. Cf. Reeves, 530 U.S. at 148, 120 S.Ct. 2097 ("Certainly 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 factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created 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.").
Thus, despite the court's conclusion that Bouknight cannot prove that Dr. Reagan's treatment of her was based on her sex, the forecasted evidence does permit a reasonable inference that he retaliated against her for complaining about it. Bouknight complained of Dr. Reagan's abusive treatment of her to the human resources department following an outburst he made against her in a meeting in his office on April 4, 2016. In August, she reported his ill treatment of her in a formal sexual harassment complaint. This court cannot say that her apparent belief that his hostility was because she was female—although not supported by sufficient evidence to support a reasonable jury's so finding—was unreasonable. See Netter, 908 F.3d at 937-38 (stating that opposition activities are protected when "she reasonably believed that the employment action she opposed constituted a Title VII violation" and her opposition conduct was reasonable) (citations omitted). Dr. Reagan became aware of Bouknight's complaints against him no later than April 15, 2016 at a meeting with human resources staff. Bouknight testified that after that, a pattern of adverse actions taken by Dr. Reagan against Bouknight then ensued and his hostility escalated. After he was reprimanded, the hostile treatment lessened, but when it surfaced again and she again complained to his supervisor for the third time, he demoted her. A jury, though it need not, could reasonably find the demotion was retaliatory. Summary judgment should therefore be denied as to this claim.
RECOMMENDATION
For the foregoing reasons, the court recommends that the defendant's motion for summary judgment be granted as to Bouknight's sex discrimination claim, but denied as to her retaliation claim. (ECF No. 23.)
May 29, 2020
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, ClerkUnited States District Court901 Richland StreetColumbia, 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Wright v. Collins, 766 F.2d 841 (4th Cir. 1985) ; United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).