Opinion
C/A No.: 3:19-1045-SAL-SVH
05-07-2020
Amanda Donald, Plaintiff, v. South Carolina Department of Probation Parole and Pardon Services; Jerry Adger; and Mike Nichols, Defendants.
REPORT AND RECOMMENDATION
In this employment discrimination case, Amanda Donald ("Plaintiff") sues her former employer, South Carolina Department of Probation, Parole and Pardon Services ("SCDPPP"), and two of its employees Jerry Adger ("Adger") and Mike Nichols ("Nichols") (together "Individual Defendants") (all collectively "Defendants"). Plaintiff brings claims of (1) discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") against SCDPPP; (2) discrimination pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA") against SCDPPP; (3) violation of 42 U.S.C. § 1983 against Individual Defendants; and (4) civil conspiracy against Defendants. [ECF No. 1-1]. This matter comes before the court on Defendants' motion for summary judgment. [ECF No. 16]. The motion having been fully briefed [ECF Nos. 21-25], it is ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Because the motion is dispositive, this report and recommendation is entered for the district judge's consideration. For the following reasons, the undersigned recommends the district court grant Defendants' motion for summary judgment. I. Factual and Procedural Background
Plaintiff worked at the SCDPPP beginning in April 1994 until she resigned and took early retirement in November 2017. Pl. Dep. 13:21-25. During the time relevant to this case, Adger was the Director of SCDPPP and Nichols was the Deputy Director. Plaintiff was the agent in charge (AIC) of Pickens County during the time relevant to this complaint.
In an August 13, 2016 email, Plaintiff advised SCDPPP of concerns about staffing due to recent departure and two pregnant female officers. [ECF No. 21-3]. Plaintiff testified that when other AICs requested an extra staff person, they received it, but she was not provided additional staff. Pl. Dep. 48:11-16. She did not provide any specific example.
On January 25, 2017, pursuant to Regional Director Jeff Harmon's request Plaintiff provided him with a list of ten items she believed were the Pickens office's biggest priorities. [ECF No. 21-4]. On February 8, 2017, Nichols developed and provided Plaintiff with a "Pickens County Assistance Plan" to address the resignation of an agent and pending maternity leave of two agents. [ECF No. 21-5]. The plan included the temporary reassignment of investigations, identification of two agents in an adjoining county to conduct after hours home visits to be compensated with overtime, and utilization of external staff to assist with court. Id.
On March 7, 2017, Plaintiff emailed Adger again complaining about the personnel shortages in her office and her concerns the staff shortage may present a community safety risk. [ECF No. 23]. In response, Adger directed Risk Management to conduct an assessment ("Assessment"). [ECF No. 22-1]. The Assessment, dated March 15, 2017, found possible public safety risk due to failure to conduct home visits pursuant to policy; lack of trust between Plaintiff and upper management; Plaintiff had poor time-management skills and was not managing the office effectively; and a staff member on maternity leave was "stated as working from home, creating cashier transactions" without authorization. Id. at 2. The report further noted lack of sufficient staff and Plaintiff's lack of training and time-management were impacting processes. Id. at 5. The Assessment recommended Plaintiff receive training on running reports and time-management and that another AIC in a similar county be appointed as a mentor. Id.
Adger testified the Pickens County Sheriff, Rick Clark, made an appointment to see him sometime in 2017. Adger Dep. 26:2-12. Sheriff Clark represented that the sheriff's office and the solicitor's office were concerned with the Pickens County SCDPPP office. Id. at 28:14-29:8. Sheriff Clark expressed that detainees were not being processed correctly, causing delays in the courts and ultimately creating crowding in the jails. Id.
Adger believes the meeting with Sheriff Clark took place after the Assessment, but could not recall exactly. Adger Dep. 36:7-16.
Plaintiff's annual performance review was conducted between the end of April and beginning of May. [ECF No. 22-3]. While Plaintiff was rated as successful overall, she was rated as failing in the areas of delegating and developing and was provided a "Summary and Plan for Improvement" that identified requirements and suggestions for better management. Id. at 6-8.
Adger testified that following the Assessment results, the meeting with Sheriff Clark, and after a telephone call with Plaintiff in which she seemed very anxious and stressed, he determined he needed to make a change in Pickens County. Adger Dep. 37:18-24. Adger stated time did not allow to first provide Plaintiff the training recommended in the Assessement. Id. at 40:1-8. Adger testified he found a position for Plaintiff in the Greenville County office, so she would not have a loss in compensation, because his intent was not to punish Plaintiff. Id. at 50:15-51:17. He tasked Nichols with implementing the change. Id. at 44:16-45:1.
According to Plaintiff, in June 2017, Nichols advised her she had "to either transfer or voluntarily transfer." Pl. Dep. 47:4-7. She testified he told her on the telephone the following day she would not have any supervisory duties because of her health. Id. at 47:7-13. On June 20, 2017, Plaintiff provided a written request to transfer to the Greenville office "due to [her health and a significant amount of stress." [ECF No. 16-5]. SCDPPP replaced Plaintiff with another female. Adger Dep. 52:15-25. Donald submitted her resignation/early retirement from the agency in December 2017. Pl. Dep. 58:3-6. II. Discussion
A. Legal Standard
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 judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts a fact cannot be disputed, it must support that assertion either 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).
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.
B. Analysis
1. Title VII Sex Discrimination
Absent evidence of direct discrimination, Plaintiff may use the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove her claims of sex discrimination. Plaintiff must show: (1) she is a member of a protected class; (2) she was performing her duties in a satisfactory manner; (3) she was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 F. App'x 466, 468 (4th Cir. 2015). If she satisfies this initial burden, then a presumption of discrimination arises, and the burden shifts to defendant to produce a legitimate, non-discriminatory reason for any alleged adverse employment action. Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997). This is merely a burden of production, not of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Once defendant meets its burden by producing a legitimate, nondiscriminatory reason, the sole remaining issue is "discrimination vel non." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by defendant is not the true reason, but was pretext for discrimination. Reeves, 530 U.S. at 143. Throughout the burden-shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff.
SCDPPP argues Plaintiff has not made a prima facie case of sex discrimination because she has not shown her alleged adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. The undersigned agrees. Plaintiff has provided no comparators to show men were treated more favorably under similar circumstances. Additionally, Plaintiff was replaced by a woman. Pl. Dep. 45:13-15. Plaintiff provides no arguments regarding her prima facie case in her brief, but instead argues only pretext. The undersigned recommends SCDPPP be granted summary judgment for Plaintiff's failure to make a prima facie case of sex discrimination.
Assuming arguendo, Plaintiff had made a prima facie case, the burden shifts to SCDPPP to produce a non-discriminatory reason for the alleged adverse employment action. SCDPPP alleges Adger made the decision to replace Plaintiff as AIC based on the results of the Assessment and the concerns shared by Sheriff Clark. [ECF No. 16-1 at 12]. Plaintiff must then show SCDPPP's reason is pretext for discrimination.
Plaintiff incorrectly refers to Defendants' burden as a burden of persuasion, but the law is clear that it is a burden of production. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
Plaintiff argues SCDPPP's proffered reason is pretext for discrimination because she received a positive performance evaluation prior to her transfer to Greenville. [ECF No. 21 at 14]. While Plaintiff's performance evaluation was overall successful, the evaluation memorialized perceived issues with Plaintiff's performance. [ECF No. 22-3]. Attached to the Evaluation is a "Summary and Plan for Improvement," which detailed how Plaintiff could improve her leadership and management. Id. at 7-8. Plaintiff argues the "Summary and Plan for Improvement" is not an indication of poor performance, as it was not entitled a "Performance Improvement Plan" under SCDPPP's progressive disciplinary plan. [ECF No. 21 at 15]. Regardless of whether the document constitutes a formal improvement plan, it shows Plaintiff's supervisors had sufficiently serious concerns about her performance to warrant an attached plan for improvement, regardless of the name.
Plaintiff also argues SCDPPP's proffered reason is pretext because the Assessment contained no allegations of misconduct. [ECF No. 21 at 14; Adger Dep. 32:13-15]. An absence of misconduct allegations does not refute that the Assessment revealed performance problems and management issues.
Plaintiff further argues SCDPPP did not follow its own disciplinary policy with regard to Plaintiff. Regardless of whether the correct procedure was followed, Plaintiff has not provided any evidence showing Defendant's proffered reason was pretext for discrimination.
Such argument may be relevant to show Plaintiff's performance met Defendants' reasonable expectations, an element of a prima facie case that Plaintiff does not address, but is insufficient to show Defendants' reason for transferring her was pretext for unlawful discrimination.
Plaintiff also argues SCDPPP failed to respond to Plaintiff's request for help from August 2016 until February 2017. There is little evidence in the record before the court about SCDPPP's efforts to provide Plaintiff more support prior to February 2017 or the reason for the alleged failure to provide more support. However, failure to respond to Plaintiff's requests, without more, is insufficient to show SCDPPP's reason for transferring her is pretext for discrimination. The court does not "sit as a super-personnel department, weighing the prudence of employment decisions made by the defendants." DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998) (holding that pretext is not a vehicle for substituting the court's judgment for that of the employer). The court need not decide "whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination." Hawkins v. Pepsico, 203 F.3d 274, 279 (4th Cir. 2000) (citing DeJarnette, 133 F.3d at 299).
Because Plaintiff has failed to provide any evidence of discrimination based on her sex, the undersigned recommends SCDPPP be granted summary judgment as to Plaintiff's Title VII claim.
2. ADA Claim
Under the ADA, a "disability" includes: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being "regarded as" having such an impairment. 42 U.S.C. § 12102(1). The majority of courts have found whether an employee had an impairment and whether the conduct affected is a major life activity are questions of law for the court, but whether the impairment substantially limits the major life activity is a question of fact. See Williams v. U.S. Services, Inc., 2012 WL 590049 *3, (D.S.C. Jan. 21, 2012), accepted in relevant part by Williams v. United Parcel Services, Inc., 2012 WL 601867, (D.S.C. Feb. 23, 2012) (reconciling opinions of the Fourth Circuit and demonstrating that they collectively agree with the view of other Circuits). "[A]n individual is 'regarded as having such an impairment' if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity." 29 C.F.R. § 1630.2(l).
SCDPPP argues Plaintiff cannot show she is disabled under the ADA. [ECF No. 16-1 at 16-18]. SCDPPP's argument concentrates on a thyroid issue because of the following testimony from Plaintiff's deposition:
Q: Prior to your retirement, did you provide any information to anybody at the agency that you believe you were suffering from a disability?Pl. Dep. 63:11-24; see also ECF No. 16-1 at 16-18. Plaintiff failed to respond to SCDPPP's arguments regarding her ADA claim. Instead, her only argument regarding her ADA claim is to note her testimony that Nichols told her she would not be supervising anyone upon transferring to Greenville because of her "health." Pl. Dep. 47:4-13.
A: I had, yeah. Because I went to the hospital. And I had to provide documentation of leave for when I was in the hospital dealing with my thyroid. So I was out of work for two weeks. So this was years back. And I had to turn in all of my documentation.
Q: When did you have the thyroid, Ma'am?
A: I believe it was - it's in our disclosure. It was 2011 or something like that. I can't remember specific dates. Yeah, because I was hospitalized. And I was out of work for two weeks.
Plaintiff has failed to show she is a qualified individual with a disability. Plaintiff has not provided any argument she has a disability and fails to show SCDPPP "regarded" her as having a disabling impairment. Sullivan v. River Valley School District, 197 F.3d 804, 810 (6th Cir.1999), cert. denied, 530 U.S. 1262 (2000) ("[A] defendant employer's perception that health problems are adversely affecting an employee's job performance is not tantamount to regarding that employee as disabled"); Rohan v. Networks Presentations LLC, 375 F.3d 266, 277 n. 19 (4th Cir. 2004) ("That [the employer] regarded [the plaintiff] as unable to perform 'the specific role for which she was hired' is, standing alone, insufficient to establish a disability."); Haulbrook v. Michelin North America, Inc., 252 F.3d 696, 703-704 (4th Cir. 2001) ("The fact that an employer is aware of an employee's impairment, without more, is 'insufficient to demonstrate either that the employer regarded the employee as disabled or that perception caused the adverse employment action.").
Because Plaintiff has failed to provide any argument showing she is a qualified individual with a disability, the undersigned recommends SCDPPP be granted summary judgment on her ADA claim.
3. Claim Pursuant to 42 U.S.C. § 1983
Plaintiff alleges Individual Defendants violated her Fourteenth Amendment due process rights. [ECF No. 21 at 19]. Plaintiff has failed to establish she had a protected property interest in her management position or continued employment. The United States Court of Appeals for the Fourth Circuit has recognized that even when a public employer fails to follow procedures established by state law, a § 1983 due process claim is not viable where the plaintiffs are at-will employees with no constitutionally protected property interest in their employment. See Bunting v. City of Columbia, 639 F.2d 1090, 1093-94 (4th Cir. 1981). Similarly, a public employer's violation of its own policies and procedures does not alone give rise to a due process claim. See Kilcoyne v. Morgan, 664 F.2d 940 (4th Cir. 1981) (holding a university's violation of procedural safeguards that are gratuitously or even contractually provided to tenure candidates does not support a claim for violation of the Due Process Clause); see also Henry-Davenport v. Sch. Dist. of Fairfield Cnty., 832 F.Supp.2d 602, 610-11 (D.S.C. 2011) (finding a public employer's failure to comply with its own hearing procedure did not support a due process claim under the Fourteenth Amendment when the employee had no enforceable expectation of continued assignment in her current position), aff'd, 2012 WL 5898082 (4th Cir. 2012). Therefore, the undersigned recommends Individual Defendants be granted summary judgment on Plaintiff's § 1983 claim.
Although Plaintiff's complaint also alleged Defendants violated her free speech rights, Plaintiff has abandoned this allegation by failing to address it.
Plaintiff cites Board of Regents v. Roth, 408 U.S. 564, 573-75 (1972) for the proposition that a public employer who, in refusing to rehire an employee, makes charges against him that might damage his standing in the community or otherwise imposes a stigma on the employee that forecloses his freedom to take advantage of other employment opportunities, an employee's interest in liberty may be implicated, and he should be granted a hearing to clear his name. This liberty interest was qualified further by the Supreme Court in Bishop v. Wood, 426 U.S. 341, 348 (1976), where the Court noted when there is no public disclosure of the reasons for discharging a public employee whose job is terminable at the will of the employer, no liberty interest is implicated. Neither case applies to Plaintiff who was not terminated and who has provided no evidence that her freedom to take advantage of other employment opportunities was damaged.
4. Civil Conspiracy Claim
"A civil conspiracy is a combination of two or more persons joining for the purpose of injuring and causing special damage to the plaintiff." McMillan v. Oconee Mem'l Hosp., Inc., 626 S.E.2d 884, 886 (S.C. 2006); see also Todd v. S.C. Farm Bureau Mut. Ins. Co., 278 S.E.2d 607, 611 (S.C. 1981) ("Conspiracy is the conspiring or combining together to do an unlawful act to the detriment of another or the doing of a lawful act in an unlawful way to the detriment of another."); Vaught v. Waites, 387 S.E.2d 91, 95 (S.C. Ct. App. 1989) ("Civil conspiracy consists of three elements: (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, (3) which causes him special damage."). The gravamen of the tort of civil conspiracy is the damage resulting to the plaintiff from an overt act done pursuant to a common design. Vaught, 387 S.E.2d at 95.
Defendants argue Plaintiff's civil conspiracy claim must fail because Plaintiff cannot sue her employer for civil conspiracy and because pursuant to the intracorporate conspiracy doctrine, an employer cannot conspire with itself. See ECF No. 16-1 at 21 (citing McLain v. Pactiv Corp., 602 S.E.2d 87 (S.C. App. 2004) (a corporation cannot conspire with itself and the acts of agents of the corporation are the acts of the corporation). State and federal courts have considered the doctrine when defendants are governmental agencies and their employees. See e.g., Anthony v. Ward, 336 F. App'x. 311 (4th Cir. 2009); Pridgen v. Ward, 705 S.E.2d 58 (S.C. Ct. App. 2010). Plaintiff has not addressed Defendants' argument regarding the intracorporate conspiracy doctrine.
Plaintiff's brief contains a few references to Sheriff Clark as a co-conspirator. [ECF No. 21 at 18]. To the extent Plaintiff alleges a nonparty was involved in the alleged conspiracy, she failed to allege the same in her complaint.
In considering the application of the intracorporate conspiracy doctrine, the undersigned notes courts have found the doctrine does not apply when individual defendants acted outside of their official capacities as employees. McMillan 626 S.E.2d at 887. However, because Plaintiff has failed to allege or provide evidence that Individual Defendants were acting outside the scope of their employment, the intracoporate conspiracy doctrine applies. Id. ("[W]e believe that it is well settled that a corporation cannot conspire with itself. See 16 Am.Jur.2d Conspiracy § 56 (2005) (stating that a corporation cannot be a party to a conspiracy consisting of the corporation and the persons engaged in the management, direction, and control of the corporate affairs, where the individuals are acting only for the corporation and not for any personal purpose of their own).").
Defendants also argue Plaintiff has failed to allege special damages. A review of Plaintiff's complaint reveals the damages sought for her civil conspiracy claim are nearly identical to the damages sought for her other claims. [ECF No. 1-1]. Civil conspiracy allegations cannot be "simply an embellishment" of the underlying claims. Vaught, 387 S.E.2d at 95. "That is, the damages allegedly resulting from the conspiracy must not overlap with or be subsumed by the damages allegedly resulting from the other claims." Parkman v. Univ. of S.C., 44 F. App'x 606, 520 (4th Cir. 2002) (unpublished). Although Plaintiff argues she "alleged the loss of her career as a consequence of Defendants' conspiracy," she did not list this as a type of damage in her complaint. [ECF No. 1 at 12]. Further, Plaintiff remained an employee of SCDPPP until she voluntarily retired over six months later. Plaintiff has not pled and provided evidence she suffered special damages.
Based on the foregoing, the undersigned recommends Defendants be granted summary judgment on Plaintiff's civil conspiracy claim. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Defendants' motion for summary judgment [ECF No. 16] be granted.
IT IS SO RECOMMENDED. May 7, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).