Opinion
Civil Action 2:19-02777-DCN-MGB
04-23-2021
Mahmoud Hamada, Plaintiff, v. The Boeing Company, [1] Defendant.
REPORT AND RECOMMENDATION
MARY GORODAN BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Mahmoud Hamada (“Plaintiff”), through counsel, has filed this lawsuit alleging: wrongful termination in violation of public policy; violations of the Family Medical Leave Act (“FMLA”); slander; and discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act (“Title VII”) and 42 U.S.C. § 1981 (“Section 1981”). (Dkt. No. 1-1; Dkt. No. 19.) Plaintiff originally filed this action in the Charleston County Court of Common Pleas on August 30, 2019. (Dkt. No. 1; Dkt. No. 11.) The case was removed to federal court on September 30, 2019. (Dkt. No. 1.)
Currently before the Court is Defendant's Motion for Summary Judgment. (Dkt. No. 54.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons stated below, the undersigned recommends that Defendant's Motion for Summary Judgment (Dkt. No. 54) be granted.
FACTUAL SUMMARY
This action arises out of Plaintiff's employment with Defendant from 2014 through 2018. (Dkt. No. 19 at 3-9.) Plaintiff is Egyptian/Middle Eastern. (Id. at 2.) He began working for Defendant on April 18, 2014, as an FRT Mechanic on the Flight Line. (Id.) Plaintiff contends that in 2015 he was accused of being a terrorist by his coworkers. (Id. at 4; Dkt. No. 54 at 2.) He states that the FBI investigated the incident and determined after four days that “he was not a terrorist”. (Dkt. No. 19 at 4.) Even so, Plaintiff alleges that Boeing refused to allow him to return to work for three weeks. (Id.)
In 2016, Plaintiff was assigned to work on the 787 Dash-10 Test Plane Build project assisting in the installation of a full test interior of the airplanes and testing equipment both inside and outside of the airplanes. (Id.) In 2017, he was assigned to work on the Test Plane Refurbishment Project, converting Test Planes to commercial aircraft. (Id.) Plaintiff states that from December 2017 to July 2018, Keith McDonald was one of his supervisors. (Id.) He explains that he made a complaint against McDonald for his differential treatment of employees based on race, religion, color, and national origin. (Id. at 6.)
Plaintiff states that his mother suffered heart-related medical conditions during his employment with Defendant. (Id.) As a result, he applied for intermittent leave under the FMLA from May 11, 2018 to June 6, 2018, which was approved. (Id.) Plaintiff alleges that his father, who had traveled to Egypt with Plaintiff's mother, called him on September 6 or 7, 2018 to tell him that his mother was in the hospital and “not doing well at all.” (Id.) Plaintiff's father insisted that Plaintiff travel to Egypt and bring some of his mother's medications with him. (Id.) Plaintiff contends that he called Boeing TotalAccess (Defendant's “Leave Service Center”) on September 8, 2018 and received preliminary approval for FMLA leave to travel to Egypt to see his mother. (Id. at 6-7.) Plaintiff says that he told Defendant that he wanted to use two weeks of vacation time, and that Defendant told him he would have to provide paperwork from his mother's physician via fax or email. (Id. at 7.) Plaintiff explains that he left for Egypt shortly thereafter (September 8 or 9), and that he submitted paperwork from his mother's physician to Defendant via email on September 17, 2018. (Id.) Plaintiff states that Defendant sent him a letter the day after he submitted his paperwork (September 18, 2018), stating that the paperwork was insufficient. (Id.)
Plaintiff contends that he received another email from Defendant on October 8, 2018, explaining that his request for leave was denied due to insufficient paperwork. (Id.) Plaintiff states that he stayed in Egypt with his mother and that a coworker informed him that he had been terminated on October 24 or 25. (Id.) Plaintiff alleges that he received a voicemail from McDonald when he returned to the United States from Egypt on November 1, 2018. (Id.) According to Plaintiff, McDonald informed him that he had been terminated. (Id.) Plaintiff says that he received his termination notice (dated October 30, 2018) by mail on November 15, 2018. (Id. at 8.) Plaintiff alleges that his termination was wrongful and unlawful. (Id. at 8-9.)
PROCEDURAL HISTORY
As noted, Plaintiff filed this action in the Charleston County Court of Common Pleas on August 30, 2019, (Dkt. No. 1-1), and the case was removed to federal court on September 30, 2019 (Dkt. No. 1). Plaintiff's original complaint brought claims against Defendant for: wrongful termination in violation of public policy (First Cause of Action); violations of the FMLA (Second Cause of Action); and slander (Third Cause of Action). (Dkt. No. 1-1.) Plaintiff subsequently amended his complaint to include causes of action for: race, national origin, and religious discrimination in violation of Title VII and Section 1981 (Fourth Cause of Action); retaliation for his complaints about race discrimination under Title VII and Section 1981 (Fifth Cause of Action); and hostile work environment based on his race, national origin, and religion in violation of Title VII and Section 1981 (Sixth Cause of Action). (Dkt. No. 19.) On January 24, 2020, Defendant filed a partial Motion to Dismiss and Motion to Strike. (Dkt. No. 20.) On May 20, 2020, the Court granted the motion in full and dismissed Plaintiff's causes of action for wrongful termination in violation of public policy, slander, and hostile work environment. (Dkt. No. 34; Dkt. No. 40.) Accordingly, Plaintiff's remaining causes of action are:
• Second Cause of Action for Violations of the FMLA;
• Fourth Cause of Action for Discrimination in Violation of Title VII and Section 1981; and
• Fifth Cause of Action for Retaliation under Title VII and Section 1981.(Dkt. No. 19; Dkt. No. 40.)
Now before the Court is Defendant's Motion for Summary Judgment on all remaining causes of action, which was filed on September 3, 2020. (Dkt. No. 54.) After requesting and receiving an extension of time to respond, Plaintiff filed a Response in Opposition to Defendant's Motion on September 28, 2020. (Dkt. No. 57.) Defendant filed its Reply to Plaintiff's Response in Opposition on October 5, 2020. (Dkt. No. 58.) As such, the motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“As the moving party, Defendant[] [is] required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which [it] believe[s] demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 317). “Plaintiff[] may not rest on mere allegations or denials; [he] must produce ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.” Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2 (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Sandlands C & D LLC v. Cnty. of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). “Only 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.” Anderson, 477 U.S. at 248.
DISCUSSION
I. Violations of Title VII and Section 1981 (Fourth and Fifth Causes of Action)
The standards applicable to suits for discrimination and retaliation under Title VII are also applicable to such suits brought under § 1981. Irani v. Palmetto Health, 767 Fed.Appx. 399, 418 (4th Cir. 2019) (“The McDonnell Douglas framework was initially developed for Title VII discrimination cases but has since been expanded to apply to both discrimination cases pursuant to § 1981 and retaliation cases pursuant to both Title VII and § 1981.”).
Section 1981 states that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. Title VII makes it “an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his 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). Title VII also makes it unlawful for an employer to retaliate against an employee because that individual opposed any practice made unlawful under Title VII, or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Here, Plaintiff brings discrimination and retaliation claims under both statutes. With respect to his discrimination claims, Plaintiff alleges:
73. That the Plaintiff has been treated differently based on his race, color, religion, and national origin by the Defendant.
74. That the Defendant allowed the Plaintiff to be discriminated against based on his race, national origin, religion and color in violation of their own policies and procedures.
75. That the Plaintiff was not disciplined as other employees.
76. That other Caucasian employees committed the same acts or worse and were not terminated from their employment.
77. That the Plaintiff reported the discrimination based on his race, [c]olor, [r]eligion and [n]ational [o]rigin but nothing was done.
78. That the Defendant allowed the Plaintiff's supervisor to treat Caucasian employees more favorably without repercussions.
79. That the Plaintiff was subjected to differential treatment based on his national origin, Egyptian where other non-Egyptians received better overall treatment in the work environment.
80. That the Plaintiff was subjected to ridicule and differential treatment based on his religion, Musli[m]. Other non-Muslim employees were not subjected to [the] same ridicule or differential treatment.
81. That the Defendant[] discriminated against the plaintiff based on his race.
82. That the Defendant[] took adverse employment action against the Plaintiff....
83. That the Defendant[] subjected the Plaintiff to discrimination in violation of the law.
84. That, as a direct and proximate result of the Defendant[‘s] intentional, unlawful and retaliatory actions, . . . Plaintiff is entitled to an award of damages in the amount of actual damages,
compensatory damages, consequential damages, punitive damages, attorney's fees, costs of this action, and other damages such as this Honorable Court deems appropriate and just.(Dkt. No. 19 at 12-13.) In stating his claims for retaliation, Plaintiff alleges:
88. That the Plaintiff has [] made complaints regarding [] discrimination to management.
89. As a result of those complaints the [P]laintiff has been treated differently and subjected to retaliation.
90. That the Plaintiff has made continuous complaints of discrimination ....
91. That the Defendant retaliated against the Plaintiff by terminating his employment.
92. That as a result of the Plaintiff's complaints the Plaintiff suffered retaliation for each of [his] complaints.
93. That the Plaintiff was considered an exemplary employee.
94. As a result of the Plaintiff's complaints regarding discrimination . . . the Defendant retaliated against the Plaintiff by terminating [him] from his employment and subjecting him to a hostile work environment.
95. The Defendant's actions described herein were intentional and inflicted upon Plaintiff to insure severe mental and emotional distress.
96. As a result of Defendant's actions, Plaintiff has suffered irreparable injuries, including but not limited to loss of pay, benefits and other economic losses, emotional pain and suffering, mental anguish, humiliation, embarrassment, personal indignity and other intangible injuries for all of which [he] should be compensated. Including, future losses related to refusals to provide appropriate raises and positions.
97. That the Defendant is the direct and proximate cause of injury to the Plaintiff.
98. That the Plaintiff is entitled to an award of damages from the Defendant....(Id. at 14-15.) Defendant asserts that Plaintiff's claims fail as a matter of law. (See generally Dkt. No. 54.)
A. Discrimination (Fourth Cause of Action)
“Under Title VII and either § 1981 or § 1983, the elements of the required prima facie case [for employment discrimination] are the same.” Gairola v. Commonwealth of Va. Dep't of Gen. Servs., 753 F.2d 1281 (4th Cir. 1985); see also Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (extending Title VII requirements to § 1981 discrimination claim).
There are “two potential avenues” of proof through which a plaintiff can establish intentional discrimination under Title VII and Section 1981. See Perkins v. Int'l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019) (referencing Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005)). The plaintiff “may, under what has been referred to as the ‘mixed-motive' framework, present direct or circumstantial evidence that creates a genuine issue of material fact as to whether an impermissible factor such as race solely or partially motivated the employer's adverse employment decision.” See Id. (referencing Diamond, 416 F.3d at 318). Absent such evidence, the plaintiff must use the three-part burden-shifting paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), also known as the “pretext framework.” Id. Here, Plaintiff has not presented any direct evidence of discrimination based on his race, color, religion, or national origin. Accordingly, the undersigned analyzes Plaintiff's discrimination claims pursuant to the McDonnell Douglas pretext framework.
Under the pretext framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 719 (D.S.C. 2014). Specifically, the plaintiff must show: (1) membership in a protected class; (2) satisfactory work performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class, or some other evidence giving rise to an inference of unlawful discrimination. Id.; see also Perkins, 936 F.3d at 207 (referencing Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)).
If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant “to show a legitimate, nondiscriminatory reason” for the adverse employment action. Ferguson, 18 F.Supp.3d at 719. If the defendant provides a legitimate, nondiscriminatory reason for the adverse employment action, the burden is then on the plaintiff to demonstrate that the defendant's asserted reasons “are a mere pretext for its true discriminatory motives.” See id. (referencing McDonnell Douglas Corp., 411 U.S. at 802-05). In order to do that, the plaintiff must come forward with evidence showing that the employer's reason for the adverse employment action was false, and that discrimination was the real reason. See Collins v. Charleston Place, LLC, No. 2:15-cv-4465-PMD-BM, 2017 WL 3167330, at *2 (D.S.C. July 26, 2017), aff'd, 720 Fed.Appx. 701 (4th Cir. 2018). “[The plaintiff] must prove both because ‘[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.'” See id. (referencing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993)) (emphasis in original).
It is important to understand that the McDonell Douglas framework “is a means to an end, not the end itself. Such a formula is intended to foster judicial analysis, not be a substitute for it.” Malina v. Baltimore Gas & Elec. Co., 18 F.Supp.2d 596, 606 (D. Md. 1998). The Fourth Circuit has therefore cautioned that, “courts must . . . resist the temptation to become so entwined in the intricacies of the McDonnell Douglas proof scheme that they forget that the scheme exists solely to facilitate determination of the ultimate question of discrimination vel non.” Merritt v. Old Dominion Freight, 601 F.3d 289, 294-95 (4th Cir. 2010) (internal quotation marks and citation omitted).
As an initial matter, Defendant asserts that “Plaintiff has improperly asserted a claim of national origin discrimination under Section 1981” because Section 1981 does not cover discrimination based upon national origin and therefore does not allow such claims. (Dkt. No. 54 at 15.) Defendant also argues that “Plaintiff's claims of discrimination under Title VII based on the 2015 FBI Investigation [that ensued after Plaintiff's coworkers accused him of being a terrorist] should be dismissed for failure to exhaust administrative remedies.” (Id. at 16-18.) In response, Plaintiff explains that he “is not pursuing a cause of action for National Origin Discrimination pursuant to Section 1981, ” but rather is “pursuing a race complaint due to his brown complexion.” (Dkt. No. 57 at 21.) Plaintiff also concedes that he is “well aware” that his claims of discrimination under Title VII based on the 2015 FBI investigation are out of time. (Id. at 22.) As such, the undersigned recommends that Defendant be granted summary judgment as to any Section 1981 discrimination claims based on Plaintiff's national origin, and as to Plaintiff's Title VII discrimination claims premised upon the 2015 FBI investigation.
In responding to Defendant's arguments on these two issues, Plaintiff clarifies that his discrimination claims “are specifically related to how he was treated differently by his supervisor[, Keith McDonald].” (Id.) In clarifying this argument, Plaintiff explains that his discrimination claims “are based on actual observations of others and how they treated him.” (Id.) He further explains that “Defendant could have placed the Plaintiff on [leave without pay] which is at the discretion of the supervisor.” (Id.) As such, Plaintiff seems to argue that McDonald discriminated against him by terminating him instead of placing him on leave without pay. Plaintiff contends that “[]o]ther individuals were not treated like the Plaintiff, ” and that “the actions of McDonald present a genuine issue of material fact . . . regarding [his] motivations [for terminating Plaintiff].” (Id. at 22-23.)
For purposes of this report and recommendation, the undersigned assumes that Plaintiff has met his burden with respect to the first three elements of his discrimination claims. However, Plaintiff has failed to provide any evidence whatsoever of “different treatment from similarly situated employees outside the protected class, ” and has failed to set forth any evidence that could give rise to “an inference of unlawful discrimination.” Ferguson, 18 F.Supp.3d at 719. The undersigned therefore recommends that Defendant be granted summary judgment as to all of Plaintiff's discrimination claims under Section 1981 and Title VII.
Defendant does not contest that Plaintiff was a member of a protected class as a practicing Muslim of Egyptian/Middle Eastern descent, nor does Defendant contest that Plaintiff experienced an adverse employment action when he was terminated in October of 2018. (See generally Dkt. No. 54; Dkt. No. 58.) Defendant does argue that Plaintiff cannot establish satisfactory job performance due to his record of excessive absences. (Id.) However, Plaintiff cannot establish that his termination was the result of religious, racial, or national origin discrimination for the reasons described herein, so Plaintiff's ability to show satisfactory job performance is immaterial and need not be analyzed for purposes of Plaintiff's discrimination claims.
As an initial matter, Plaintiff fails to identify any similarly situated employees who were treated differently than Plaintiff. Although Plaintiff is not required as a matter of law to identify similarly situated comparators to satisfy the fourth prong of his prima facie case, see Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003), Plaintiff bases his allegations of discrimination largely on the contention that he was treated differently than other employees because other employees “committed the same acts or worse and were not terminated from their employment.” (See supra at 7-8, 11-12; Dkt. No. 19 at 12-13.). When a plaintiff relies on comparators to demonstrate that he suffered discrimination, as Plaintiff does here, he must demonstrate that he is similar in all relevant respects to the alleged comparators and that he was treated differently. Hurst v. D.C., 681 Fed.Appx. 186, 191 (4th Cir. 2017). Plaintiff fails to make any such showing. In fact, Plaintiff's own testimony states that his supervisor “uniformly mistreated” everyone. (Dkt. No. 54-1 at 23.) When Plaintiff was asked if he contended that “others were treated differently than [him], ” he replied “[n]o.” (Id. at 15.) Most pertinently, Plaintiff was unable to name any other employee who “committed the same acts or worse and [was] not terminated from [his or her] employment.” (See generally Dkt. No. 54-1.)
Plaintiff also fails to provide non-comparator evidence that might suggest Defendant's decision to terminate him was discriminatory. Plaintiff does not reference specific instances of discriminatory conduct, nor does he describe discriminatory practices or procedures used by Defendant. (See generally id.) When asked if he was “treated differently because of [his] race, color, and national origin, ” he responded that “[i]t was a feeling. That's all. . . . [i]t was just a feeling.” (Id. at 15.) He conceded that Defendant granted all of his requests for religious accommodations, including changing Plaintiff's shift during Ramadan to accommodate his fast and allowing Plaintiff to adjust his hours on Fridays so that he could go to mosque. (Id. at 10.) Plaintiff explained that several of his coworkers are Muslim and receive these same accommodations. (Id.) He did not state that he (or any of his fellow Muslim coworkers) received backlash after requesting and receiving these accommodations. (See generally id.) Ultimately, nothing in the record-including Plaintiff's own testimony-indicates that Plaintiff received less favorable treatment than his coworkers or gives rise to an inference of unlawful discrimination. (See generally Dkt. No. 54-1; Dkt. No. 54-4; Dkt. No. 54-5; Dkt. No. 54- 6; Dkt. No. 54-7; Dkt. No. 57-3; Dkt. No. 57-5; Dkt. No. 57-6; Dkt. No. 57-10; Dkt. No. 57-11; Dkt. No. 57-12.)
Finally, Plaintiff's claims for discrimination in violation of Title VII and Section 1981 are exclusively based on McDonald's decision to terminate him rather than provide him discretionary leave without pay. (See supra at 11-12; Dkt. No. 57 at 22.) However, the record reflects that McDonald was not responsible for the decision to terminate Plaintiff. (Dkt. No. 54-5 at 7; Dkt. No. 54-13 at 3-5.) The record also reflects that McDonald had never provided discretionary leave to any employee, for any reason, at the time of Plaintiff's termination. (Dkt. No. 57-11 at 4.) Accordingly, Plaintiff cannot demonstrate “different treatment from similarly situated employees outside the protected class, ” nor can he raise “an inference of unlawful discrimination” with respect to McDonald's actions. Ferguson, 18 F.Supp.3d at 719. Thus, Plaintiff's claims for discrimination in violation of Title VII and Section 1981 must fail and the undersigned recommends that Defendant's Motion be granted with respect to these claims.
B. Retaliation (Fifth Cause of Action)
“A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements [as a Title VII retaliation claim].” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015).
As with his discrimination claims, Plaintiff may establish unlawful retaliation under Title VII or Section 1983 through either the mixed-motive framework or the McDonnell Douglas pretext framework. See Perkins, 936 F.3d at 206 n.4 (referencing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015)). Because Plaintiff has not presented any direct or circumstantial evidence of retaliation here, the undersigned again analyzes Plaintiff's claims pursuant to the familiar burden-shifting pretext framework.
Under this framework, the plaintiff must first make a prima facie showing of retaliation by proving that: (1) he engaged in a protected activity; (2) his employer took a materially adverse action against him; and (3) there was a causal link between the two events. Perkins, 936 F.3d at 213. In order to establish a causal connection between the protected activity and alleged retaliation, the plaintiff must establish that the decisionmaker had knowledge that he engaged in the protected activity and retaliated against him because of that protected activity. Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007); see also Lambert v. Centerra Grp., Inc., No. 1:18-cv-520-TLW-PJG, 2019 WL 8164782, at *4 (D.S.C. Aug. 19, 2019), adopted, 2020 WL 1082244 (D.S.C. Mar. 6, 2020) (referencing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 362 (2013)) (“A plaintiff must show that but for the protected activity, he would not have experienced the alleged adverse act.”).
If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. Marzett v. Charleston Cty. Sch. Dist., No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at *10 (D.S.C. Jan. 27, 2017), adopted, 2017 WL 589110 (D.S.C. Feb. 14, 2017), aff'd, 697 Fed.Appx. 186 (4th Cir. 2017) (referencing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998)). The plaintiff then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id.
Plaintiff alleges that he engaged in protected activity by filing a complaint with Defendant's human resources department for religious discrimination by his supervisor, Keith McDonald. (Dkt. No. 57 at 23-24.) He contends that he experienced an adverse action when he was terminated approximately three months later. (Id. at 24.) He further contends that the close temporal proximity between his complaint and his termination establishes the requisite causal connection and suggests that his termination was retaliatory. (Id.) In response, Defendant asserts that “temporal proximity alone is inadequate to defeat summary judgment and fails to create a genuine issue of material fact.” (Dkt. No. 58 at 6.) The undersigned agrees.
This complaint stated that Plaintiff had instant messaged McDonald to confirm that he would continue to receive his religious accommodation of coming in and leaving early on Fridays (which allowed him to attend worship services on Friday afternoons). (Dkt. No. 57-6.) Plaintiff reported that “since he didn't get a response back he wasn't sure if McDonald would abide by it.” (Id.; Dkt. No. 54-7 at 2.) Plaintiff later reported that he received confirmation that his accommodation would continue and had no further concerns. (Dkt. No. 54-7 at 2.)
For purposes of this report and recommendation, the undersigned assumes that this complaint suffices as protected activity.
The Fourth Circuit has observed that in order for a temporal relationship to support to a reasonable inference of retaliatory causation, the temporal relationship must be “very close.” Pascual v. Lowe's Home Ctrs., 193 Fed. App'x 229, 233 (4th Cir. 2006) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Here, Plaintiff filed his complaint in August of 2018 and was terminated in October of 2018. (Dkt. No. 57 at 23-24.) As such, three months elapsed before Plaintiff was terminated, which is “sufficiently long so as to weaken significantly the inference of causation between the two events.” See King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003). Nonetheless, the inference still may be sufficient to establish a prima facie case of retaliation depending on the facts. Id.; see also Winston v. Maryland, No. PWG-17-2477, 2018 WL 5786130, at *10 (D. Md. Nov. 5, 2018) (“[C]ausation may be present when more than one or two months have passed, but only where there are additional facts to establish the causal connection, beyond the timeline of events.” (citations omitted)). For example, “evidence of recurring retaliatory animus during the intervening period can be sufficient to satisfy the element of causation.” Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007).
In this case, however, the facts do not support an inference of causation between Plaintiff's complaint and his termination. For example, Plaintiff's retaliation claim is seriously undermined by the fact that McDonald was not actually responsible for the decision to terminate Plaintiff, as Plaintiff suggests. (See supra at 14; Dkt. No. 54-5 at 7; Dkt. No. 54-13 at 3-5.) Rather, the record reflects that Defendant's human resources department made the decision to terminate him due to his excessive absences in violation of Defendant's Leaves of Absence Policy. (Dkt. No. 54-13 at 3-5.) McDonald testified that he was not aware of who made the decision to terminate Plaintiff and that he merely received instructions to “[c]ontact Mr. Hamada at the phone number given and read [his termination notice to him] verbatim with another manager present.” (Dkt. No. 54-5 at 7.) He testified that he was instructed to leave a voicemail if Plaintiff did not answer his call, and to sign the termination notice and send it back to human resources after he had called Plaintiff. (Id. at 7-8.) The record as a whole confirms that this was the extent of McDonald's involvement in Plaintiff's termination. (See generally Dkt. No. 54-5; Dkt. No. 54-13; Dkt. No. 57-6; Dkt. No. 57-10; Dkt. No. 57-11.)
McDonald also testified that he did not know about Plaintiff's complaint to human resources regarding his religious accommodation. (Dkt. No. 54-5 at 5.) As such, even if McDonald had been responsible for Plaintiff's termination, the termination could not have been retaliatory because McDonald was entirely unaware of Plaintiff's alleged protected activity. (Id.)
Moreover, Plaintiff has provided no evidence that would allow a reasonable jury to infer that Defendant's human resources department had retaliatory intent. Plaintiff's complaint of religious discrimination was resolved as soon as Plaintiff's supervisors confirmed that they would continue to provide Plaintiff's requested accommodations. (Dkt. No. 54-7 at 3.) In fact, the EEO Inquiry Form relating to Plaintiff's religious discrimination complaint states: “at this time, [Plaintiff] has no concerns.” (Id.) Thus, the record indicates that Defendant's human resources department resolved Plaintiff's complaint efficiently and effectively, which does not suggest that the human resources department had negative animus or retaliatory intent towards Plaintiff.
The EEO Inquiry Form does not indicate the “date closed.” (Dkt. No. 54-7 at 3.) The “date received” is marked as August 3, 2018 and the date of referral from/to human resources appears to be August 24, 2018. (Id.)
Based on these facts, the temporal proximity between Plaintiff's religious discrimination complaint and his termination, without more, is insufficient to overcome summary judgment. See Pascual, 193 Fed.Appx. at 233 (finding three to four months between termination and protected activities “too long to establish a causal connection by temporal proximity alone”); see also Middleton v. Menlo Logistics, Inc., No. 5:11-cv-3215-JMC-PJG, 2013 WL 787832, at *6 (D.S.C. Jan. 24, 2013), adopted, 2013 WL 787897 (D.S.C. Mar. 4, 2013) (referencing Merritt, 601 F.3d at 294-95) (reiterating that the core of every Title VII retaliation case remains the same, regardless of the proof scheme, necessitating resolution of the ultimate question of whether the plaintiff was “the victim of intentional retaliation”). The undersigned therefore recommends that Defendant's Motion for Summary Judgment be granted with respect to these claims.
II. Violations of FMLA (Second Cause of Action)
The FMLA makes it unlawful for an employer to discharge or otherwise retaliate against any individual for exercising his or her substantive rights under the Act. 29 U.S.C. § 2615(a)(2). “The FMLA creates two types of claims: (1) interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act; and (2) retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.” Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 633 n. 3 (D.S.C. 2010) (citation omitted). Plaintiff's allegations with respect to his claim for FMLA violations state:
To establish an interference claim under the FMLA, Plaintiff must show that: (1) he was an eligible employee; (2) his employer was covered by the FMLA; (3) he was entitled to FMLA leave; (4) he gave his employer adequate notice of his intention to take leave; and (5) his employer denied him the benefits to which he was entitled. Floyd v. Mgmt. Analysis & Utilization, Inc., No. 7:13-cv-01971-JM, 2014 WL 971937, at *3 (D.S.C. Mar. 12, 2014) (citing Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d 508, 516 (D.Md. 2008)).
61. That the Defendant, Boeing, terminated the Plaintiff while he was on approved Family Medical Leave Act [leave].
62. That the Defendant violated the law by terminating the [P]laintiff on approved leave.
63. That the Defendant is the proximate and direct cause of damages to the Plaintiff.
64. That the Plaintiff is entitled to an award of damages from the Defendant for [its] termination of the Plaintiff in violation of the Family Medical Leave Act.(Dkt. No. 19 at 11.) Here, Plaintiff does not allege that Defendant denied him benefits to which he was entitled under the FMLA or interfered with his ability to take FMLA leave, as is required for a FMLA interference claim. (Id.) The undersigned therefore construes Plaintiff's second cause of action for “Family Medical Leave Act Violations” as a claim of retaliation in violation of the FMLA.
Further, the parties' briefings only address a FMLA retaliation claim. (See generally Dkt. No. 54; Dkt. No. 57; Dkt. No. 58.) Regardless, any FMLA interference claim brought by Plaintiff would also fail because Plaintiff's duty to provide FMLA benefits was never triggered. See Ahmed v. Salvation Army, No. CIV. CCB 12-707, 2012 WL 6761596, at *8 (D. Md. Dec. 28, 2012) (finding that the employer's duty to provide FMLA leave was never triggered because employee did not submit a completed certification form from her doctor despite multiple requests), aff'd, 549 Fed.Appx. 196 (4th Cir. 2013).
As with retaliation claims under Title VII and Section 1981, Plaintiff's FMLA retaliation claim is subject to the three-step burden-shifting framework under McDonnell Douglas. Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006). The elements that Plaintiff must establish to make a prima facie showing of retaliation in violation of the FMLA are the same as those required for a prima facie showing of retaliation in violation of Title VII and Section 1981. Id. at 551; Perkins, 936 F.3d at 213 (outlining the elements of a prima facie case for retaliation in violation of Title VII); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (explaining that the elements for a prima facie retaliation claim under Section 1981 are the same as a Title VII retaliation claim). Accordingly, Plaintiff must show “that he engaged in protected activity, that the employer took adverse action against him, and that the adverse action was causally connected to the plaintiff's protected activity.” Yashenko, 446 F.3d at 551 (4th Cir. 2006) (quoting Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998). As noted above, plaintiff bears the “ultimate burden” of persuading the trier of fact that he was the victim of intentional retaliation in violation of the FMLA. See Bradford v. Molina Healthcare of S.C., LLC, No. 2:18-cv-649-RMG-MGB, 2019 WL 7882148, at *7 (D.S.C. Dec. 17, 2019), adopted, 2020 WL 373194 (D.S.C. Jan. 23, 2020).
As a threshold issue, Plaintiff's September 2018 request for FMLA leave was never approved because Plaintiff failed to provide an appropriate certification from his mother's doctor. (Dkt. No. 54 at 12; Dkt. No. 54-8 at 7; Dkt. No. 54-13 at 4; Dkt. No. 57- 1 at 40; Dkt. No. 57-12 at 2.) The undersigned therefore assumes that Plaintiff considers his request for FMLA leave to be the relevant protected activity. The parties do not contest that Plaintiff's request for leave constitutes protected activity. (See generally Dkt. No. 54; Dkt. No. 57; Dkt. No. 58.) Further, the parties do not dispute that Plaintiff was terminated and that his termination was an adverse action sufficient to meet the second prong of Plaintiff's retaliation claim. (See generally Dkt. No. 54; Dkt. No. 57; Dkt. No. 58.)
Thus, at issue here is whether Plaintiff can demonstrate that his termination was causally connected to his request for leave. Yashenko, 446 F.3d at 551. Plaintiff submitted his request for FMLA leave on September 6, 2018 and was terminated on October 31, 2018. (Dkt. No. 19 at 6, 8; Dkt. No. 54-8 at 3; Dkt. No. 54-13 at 5.) As with his retaliation claims under Title VII and Section 1981, Plaintiff argues that the temporal proximity between his FMLA leave request and his termination is enough to establish causation. (Dkt. No. 57 at 19.)
As noted above, temporal proximity alone may support a reasonable inference of retaliatory causation if the temporal relationship is “very close.” See Clark County Sch. Dist., 532 U.S. at 273; Pascual, 193 Fed. App'x at 233. Two months is “sufficiently long so as to weaken significantly the inference of causation between the two events, ” King, 328 F.3d at 151 n.5, and the Fourth Circuit has rejected two-month gaps on this basis. See id.; Horne v. Reznick Fedder & Silverman, 154 Fed. App'x. 361, 364 (4th Cir. 2005). However, temporal proximity is not a bright line determination and courts in the Fourth Circuit have also found that two months is sufficiently close to state the causation element of a retaliation claim under some circumstances. See Hines v. Blue Cross & Blue Shield of N. Carolina, No. 1:19-cv-754, 2020 WL 3452155, at *4 (M.D. N.C. June 24, 2020) (finding, in the FMLA retaliation context, “[t]he Court has previously held that a plaintiff satisfies the third element of a retaliation claim by alleging a gap of approximately two months between the end of her FMLA leave and her termination. The Court holds the same here.” (internal citation omitted)); Cox v. U.S. Postal Serv. Fed. Credit Union, No. GJH-14-3702, 2015 WL 3795926, at *4 (D. Md. June 17, 2015) (“Viewing the facts in the light most favorable to Cox, the Court finds that the temporal proximity between the February meeting and the April termination are close enough in time and circumstance to establish a causal connection.”)
Indeed, “causation may be present when more than one or two months have passed, but only where there are additional facts to establish the causal connection, beyond the timeline of events.” Winston, 2018 WL 5786130, at *10 (citing Lettieri, 478 F.3d at 650; Pike v. Osborne, 301 F.3d 182, 185 (4th Cir. 2002)) (emphasis added). Here, the record reflects no additional facts to suggest a causal connection. Rather, the record shows that Plaintiff applied for FMLA leave and submitted paperwork with incorrect dates. (See generally Dkt. No. 54-1; Dkt. No. 54-8; Dkt. No. 54-13; Dkt. No. 57-1; Dkt. No. 57-6; Dkt. No. 57-9; Dkt. No. 57-12.) He received notice of the issue with his paperwork but did not fix it within the requested timeframe, so his leave was denied. (See generally Dkt. No. 54-1; Dkt. No. 54-8; Dkt. No. 54-13; Dkt. No. 57-1; Dkt. No. 57-6; Dkt. No. 57-9; Dkt. No. 57-12.) Upon his leave being denied, his absences were unexcused and, because he had accrued many unexcused absences in violation of Defendant's Leaves of Absence policy, he was terminated. (See generally Dkt. No. 54-1; Dkt. No. 54-8; Dkt. No. 54-13; Dkt. No. 57-1; Dkt. No. 57-6; Dkt. No. 57-9; Dkt. No. 5712.)
Moreover, the record indicates that Plaintiff's previous requests for FMLA leave were consistently granted when he provided the appropriate paperwork in the appropriate timeframe, which does not support an inference that Defendant retaliated against Plaintiff on account of his FMLA leave request. (See generally Dkt. No. 54-8; Dkt. No. 54-9; Dkt. No. 54-10; Dkt. No. 54-11.) Thus, even considering the facts in the light most favorable to Plaintiff, the record does not support a finding that Plaintiff's request for FMLA leave and his termination happened in such close proximity as to raise an inference of causal connection. See Clark County Sch. Dist., 532 U.S. at 273 (2001) (“The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close[.]”) (internal quotation marks and citation omitted); see also Winston, 2018 WL 5786130, at *10 (explaining that additional supporting facts are necessary to establish a causal connection where more than one or two months have passed between protected activity and adverse action). The undersigned therefore recommends that Defendant's Motion be granted as to Plaintiff's FMLA retaliation claim.
III. Pretext
Even assuming that Plaintiff could establish a prima facie case as to any of his discrimination or retaliation claims, Plaintiff cannot show pretext. Defendant has proffered a legitimate, non-discriminatory reason for terminating Plaintiff, explaining that Plaintiff was terminated because he accrued excessive, unexcused absences in violation of Defendant's Leaves of Absence policy. (Dkt. No. 54 at 12; Dkt. No. 54-13 at 3-5, 18.) Plaintiff must therefore set forth evidence showing that Defendant's reason is false, and that discrimination was the real reason Defendant terminated him in order to overcome summary judgment. See Collins v. Charleston Place, LLC, No. 2:15-cv-4465-PMD-BM, 2017 WL 3167330, at *2 (D.S.C. July 26, 2017), aff'd, 720 Fed.Appx. 701 (4th Cir. 2018). Plaintiff sets forth no such evidence.
Although Plaintiff seems to argue that Defendant could not have terminated him based on a policy violation because he followed all of Defendant's policies and procedures, (Dkt. No. 57 at 20), the record indicates otherwise. For example, Plaintiff testified that he knew by at least October 8, 2018 that his request for FMLA leave had been denied, but that he did not return to work until three weeks later. (Dkt. No. 54-1 at 50.) He also testified that he did not provide the necessary paperwork to Defendant until well after his request for FMLA leave had been denied. (Id. at 52.) Further, while Plaintiff seems to argue that Defendant's proffered reason is pretextual because Defendant “failed to communicate with [Plaintiff]” regarding his absence and request for leave, (Dkt. No. 57 at 21), the record reflects that Plaintiff received multiple communications from Defendant's “Leave Service Center, ” including an email on September 19, 2018 and a follow up email on September 26, 2018. (Dkt. No. 57-1 at 89.)
Plaintiff also seems to argue that Defendant's reason for terminating him is pretextual because Defendant could have placed Plaintiff on leave without pay instead of terminating him. (Dkt. No. 57 at 21-22.) However, Plaintiff has provided no evidence to support this contention, whereas Defendant has provided evidence that it terminated seventeen employees between April 2018 and February 2019 for the very same reason it terminated Plaintiff. (Dkt. No. 54-13 at 5; see generally Dkt. No. 57.)
In sum, Plaintiff offers no evidence to suggest that Defendant's proffered reason for terminating him is pretextual and summary judgment is therefore appropriate regardless of Plaintiff's ability to make a prima facie showing of his claims.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Motion for Summary Judgment (Dkt. No. 54) be granted.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).