Opinion
Civil Action 4:21-cv-0754-SAL-TER
07-27-2022
DWANE HEYWARD, Plaintiff, v. CARETEAM PLUS, INC., Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
I. INTRODUCTION
This action arises out of Plaintiff's employment with Defendant. Plaintiff alleges that she suffered discrimination and retaliation in violation Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1981. Presently before the Court is Defendant's Motion for Summary Judgment (ECF No. 50). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
Plaintiff's other causes of action have already been dismissed. See Order (ECF No. 47).
II. FACTS
Defendant Careteam is a primary and specialty care provider ensuring access to comprehensive healthcare services regardless of patients' ability to pay. Pl. Dep. 32 (ECF No. 50-2); Haynes Dep. 14, 21 (ECF No. 50-3). Careteam hired Plaintiff on August 9, 2018, as the Prevention Coordinator. Offer Letter (ECF No. 50-1); Pl. Dep. 32. Johanna Haynes, Chief Executive Officer (CEO), interviewed Plaintiff and ultimately made the decision to hire her. Pl. Dep. 32; Haynes Dep. 14, 21. Plaintiff reported to Haynes until Cheryl Johnson was hired as Chief Programs Officer (CPO) in October 2018 and subsequently became Plaintiff's supervisor. Pl. Dep. 34; Johnson Dep. 6 (ECF No. 50-4). Johnson remained Plaintiff's supervisor until September 2019, at which time Haynes became Plaintiff's supervisor again. (Pl. Dep., p. 34, ll. 5-8).
Plaintiff was primarily responsible for coordinating and providing “HIV testing, recruitment and outreach activities for [the] identified population[s] for counseling, treating, and referrals” under the South Carolina Department of Health and Environmental Control (SC DHEC) guidelines. Pl. Dep. 32-33; Prevention Coordinator Job Description (ECF No. 50-5). An essential part of Plaintiff's job was developing and maintaining positive relationships with organization leaders and venue owners that would “ensure access to high[-]risk HIV [positive] population[s]” for purposes of providing sexually transmitted infection (“STI”) education and other prevention services. Prevention Coordinator Job Description. Haynes felt that developing a working relationship with the owners of the “gay bars” in the area was of particular importance to Plaintiff's position because the “highest number of new infections to date” occur within the “gay community.” Pl. Dep. 224; Haynes Dep. 32. The quality of these relationships determined the extent to which Plaintiff could effectively accomplish her other requisite duties, such as scheduling testing and outreach events; providing HIV prevention and other health related education sessions; and distributing condoms to the gay bars. Pl. Dep. 32-33, 268; Prevention Coordinator Job Description. Plaintiff avers that she had a fundamental problem with this perception that placed a priority on the gay community because gay people are not the only people who contract HIV. Pl. Aff. ¶ 5 (ECF No. 56-2).
In connection with a grant that S.C. DHEC provided to Careteam, SC DHEC implemented a requirement that HIV test results had to be provided to the individual at the time the test was taken. Ms. Haynes and Plaintiff directed Careteam employees in December 2018 to discontinue HIV testing in bars and other venues that did not allow for privacy to give immediate results to individuals who underwent testing. Pl. Email dated December 13, 2018 (ECF No. 50-6); Haynes Email dated December 27, 2018 (ECF No. 50-7) (“I instructed [Careteam employees] not to perform testing at all in any bar setting until a solution that complies with our grants and protects individual privacy can be agreed upon.”).
Without the ability to test in the gay bars, Careteam would lose access to a large portion of the high-risk population. Haynes Dep.32, 61; Haynes Email dated December 27, 2018 (“I am deeply concerned about the ‘missed' opportunities that we have in bar settings to test individuals who may not otherwise come in for testing.”). Haynes felt that Plaintiff repeatedly failed to engage the gay community in Careteam's prevention efforts though she repeatedly asked Plaintiff to do so. Pl. Dep. 224, 267-268, 270; Haynes Dep. 32, 61. Plaintiff did not directly inform the owners of the gay bars or their patrons about Careteam's testing events scheduled at various other locations. Pl. Dep. 135. However, she utilized social media to spread awareness of testing events. Pl. Aff. ¶ 12. For almost five months, between December 2018 and May 2019, Plaintiff did not make any contact with the owners of the gay bars regarding condom deliveries, an essential duty in her job description. Pl. Dep. 133-135; Haynes Dep., 49-50; Prevention Coordinator Job Description; Haynes Email dated May 2, 2019 (ECF No. 50-8). Plaintiff failed to coordinate Careteam's participation in the June 2019 Pride in the Park event, the largest LGBTQ+ community event that took place outside of the gay bars in the area, and neither Plaintiff nor any other member of the Prevention Department attended. Pl. Dep. 226; Emails dated December 10, 2019 (ECF No. 50-9). Plaintiff asserts that she had personal plans for the day of the Pride in the Park event and she was advised that if the Prevention department could not participate it would be ok. Pl. Aff. ¶ 13; Emails dated December 10, 2019.
Haynes discussed the issue with Plaintiff on at least seven occasions, including: May 2, 2019; August 13, 2019; October 10, 2019; October 28, 2019; November 18, 2019; December 9, 2019; and December 16, 2019. Pl. Dep. 138-39, 155-56, 167, 172-73, 195-97, 219-20, 223; Haynes Dep. 60-61; Email from Johanna Haynes dated May 2, 2019 (ECF No. 50-8); Emails dated December 10, 2019 (ECF No. 50-9).
On October 22, 2019, Careteam's administrative staff, executive staff, and the head of each department attended a leadership meeting. Pl. Dep. 162-163. During this meeting, Haynes asked Plaintiff about the new Prevention Specialists, Armondo Alford and Jessica Pittman, and questioned whether they had “settled down” from the stress of preparing for the S.C. DHEC Prevention Grantee Site Visit scheduled for November 13, 2019. October 22, 2019 Recording, at 21:54 - 22:18 (ECF No. 50-10). Plaintiff responded, “I told them you were crazy.” October 22, 2019 Recording; Pl. Dep. 165. When Haynes questioned Plaintiff's response, Plaintiff repeated, “I said she's crazy but she'll temper down and calm down and just do what she asks you to do, keep it moving.” October 22, 2019, Recording at 21:54 - 22:18. Plaintiff later clarified herself at the end of the meeting and said that she told her staff that Haynes was crazy due to stress from the upcoming S.C. DHEC Site Visit. Pl. Dep. 166; October 22, 2019, Recording at 28:03 - 28:13.
On October 28, 2019, Haynes met with Plaintiff to discuss Plaintiff's order of three boxes of sex toys, specifically vibrating rings for males, that she paid for with Careteam funds. Pl. Dep. 167-168. Following receipt of the boxes, Plaintiff had walked around the office handing the vibrating rings out to her co-workers, which resulted in Haynes receiving a complaint from Kathleen Gregory, Human Resources Administrator, who was offended by Plaintiff's unprofessional conduct and inappropriate purchase. Pl. Dep. 171; Gregory Notes p. 7 (ECF No. 50-11). Haynes questioned Plaintiff on the order's relevance to preventing the spread of STIs. Pl. Dep. 171; Gregory Notes p. 7. Plaintiff stated that “using them with condoms would make sex fun.” Pl. Dep. 168. Plaintiff admits, however, that the vibrating rings she purchased do not serve a purely preventative purpose because they can be used without condoms. Pl. Dep. 171.
During this same conversation, Haynes asked Plaintiff about testing in the gay bars again, but she refused to engage in conversation with Haynes. Pl. Dep. 172-73. Haynes stated to Plaintiff that she was unaware that Plaintiff was the type to follow rules. Pl. Dep. 173. When Plaintiff questioned what she meant, Haynes clarified that Plaintiff always followed the rules during her employment, but that she just did not seem like the type of person to do so. Pl. Dep. 173.
After this conversation with Haynes, Plaintiff called Gregory and told her that she believed Haynes was harassing her by “questioning [her] job performance, . . . questioning if [she] needed to do anything over again, calling, making statements about [her], slanderizing [her] name . . . Making these type of statements about [she's] not a rule follower.” Pl. Dep. 176-77. Plaintiff also told Gregory that she was aware that Haynes had contacted a former employee, Tiffany Joyner, to ask whether she knew that Plaintiff lived with her supervisor, Cheryl Johnson. Pl. Dep. 176. Plaintiff told Gregory that she believed Haynes was “creating and cultivating a toxic and racially charged work environment” and her action of calling Joyner was “in direct relation” to an investigation that occurred in February 2019. Pl. Dep. 180, 183, 185; Timeline Notes (ECF No. 50-12). On October 31, 2019, Gregory met with Plaintiff to follow up on their October 28, 2019, discussion. Pl. Dep. 183. During this conversation, Plaintiff reiterated that she believed Haynes was harassing her and that it related to her race. Pl. Dep. 185.
The investigation from February 2019 was requested by Johnson after she heard that Careteam employees believed that she, as an African American, treated African American employees, including Plaintiff, more favorably than Caucasian employees. Johnson Dep.,12-13; Gregory Dep. 17-18 (ECF No. 50-13). The allegations of the investigation did not accuse Plaintiff of any wrongdoing; rather she was simply listed as an employee who may have been treated more favorably due to her race, and the outside legal counsel who investigated the claims ultimately concluded that Johnson had not treated Caucasian employees differently than African American employees. Pl. Dep. 146; Report of Investigation by Burnette, Shutt & McDaniel, PA (ECF No. 50-14).
On November 18, 2019, Haynes and Plaintiff met with Plaintiff's new supervisor, Kim Sinkway, Chief Operations Officer (COO). Pl. Dep. 187; Sinkway Dep.8 (ECF No. 50-15). During this meeting, Haynes asked Plaintiff about the future and development of the Prevention Department to include her plans for educational activities in the area, outreach to the gay community, and scheduling of her two staff members between the Georgetown and Conway offices. Pl. Dep. 187. Haynes also asked Plaintiff if she was facilitating a program to educate the community on HIV prevention by means of using pre-exposure prophylaxis (PrEP) and Plaintiff admitted she had not done so, despite being asked by Haynes on several occasions. November 18, 2019 Recording (ECF No. 50-16) at 30:20 - 31:45. Plaintiff became agitated and either would not answer or would only provide a short and unhelpful response. November 18, 2019, Recording at 35:30 - 36:45. At that point, Haynes asked Plaintiff about her attitude. November 18, 2019, Recording at 36:45 - 39:10. Plaintiff responded to Haynes that she did not have an attitude. November 18, 2019, Recording at 36:45-39:10.
Consequently, Sinkway, who was also present at the October 22, 2019, leadership meeting, reprimanded Plaintiff on her “disrespectful” conduct that she exhibited during the meeting and during the prior meeting where Plaintiff called Haynes crazy. Pl. Dep. 188-91. Plaintiff began expressing instances when she felt like Haynes had disrespected her too, including when Haynes inquired whether Plaintiff lived with her supervisor, Johnson. Pl. Dep. 192-194. Plaintiff then accused Haynes of having an issue with Plaintiff hanging out with Johnson outside of work because they are “black folks.” Pl. Dep. 199-200; November 18, 2019, Recording at 1:03:06 - 1:03:45. Plaintiff stated that there was no issue when Haynes spent time outside of work with Mathias Thorpe, an African American former Careteam employee. Pl. Dep. 199-200; November 18, 2019, Recording at 1:07:37 - 1:08:15. Haynes assured Plaintiff that it had nothing to do with race; rather, Haynes was concerned that Plaintiff's relationship with Johnson could be construed as favoritism given that Johnson was her supervisor and in light of the prior complaint that Johnson was favoring African-American employees. November 18, 2019, Recording at 1:04:14 - 1:09:44; Pl. Dep. 146. The meeting between Plaintiff, Haynes, and Sinkway resumed the following day, November 19, 2019, wherein Haynes addressed condom deliveries with Plaintiff. Pl. Dep. 201; Timeline.
On December 9, 2019, Sinkway, Haynes, Plaintiff, and Kiasha Stinson, CPO and Plaintiff's new supervisor, met to discuss the Prevention Department. Pl. Dep. 219-20, 223. During this meeting, Haynes counseled Plaintiff again on her failure to engage and make connections with the gay community in the area, and requested that Plaintiff reach out to specific organizations. Pl. Dep. 220-23. Haynes gave specific directions and detailed guidance to Plaintiff:
I need a relationship developed with those bar owners. I need your face and presence in the [gay] bars regularly. I need them to know you. When you walk in the door, they need to know who [you] are and that you're there from Careteam.... The [LGBTQ+] community still represents over half the infections of HIV and with absolutely no outreach to that community, and there's so few ins to the community. The bars are certainly it. I know that there were issues with testing at the bar, but just stopping communication and relationship particularly with those two bars.... There need[s] to be some programs there. It would have been a great place to be advertising your referral event this month. Going and passing out flyers for that would have been a really great way to reach that community, talking with the bar owners about doing special events maybe around PrEP. Initiative to get people educated on PrEP. But there has to be an ongoing relationship. Them calling you when they need condoms is not a relationship. So what I'm hearing is that that's pretty much it this year. So y'all want to talk about a plan and some initiatives and what you plan to do with the gay bars this year. I would like to hear about that.Pl. Dep. 220-23.
When Haynes followed up with Plaintiff about her outreach efforts to the gay community at the next Prevention Department meeting on December 16, 2019, Plaintiff refused to participate in the conversation and began speaking in a disrespectful tone to Ms. Haynes. Pl. Dep. 230-31; December 16, 2019, Recording (ECF No. 50-17). Sinkway counseled Plaintiff again on the inappropriate tone she used when speaking with Haynes and provided guidance to Plaintiff throughout the rest of the meeting. Pl. Dep.231-32; Sinkway Dep.19-22. During the meeting, Plaintiff began “slouching . . . looking uninterested [and] annoyed,” then continued to speak to Haynes in a “disrespectful manner,” at which point Haynes said: “I'm not going to have any more meetings like this. I'm not going to sit here and have to pull teeth to get information from you or to get your attitude back when I ask you a question.” Stinson Dep. 14; December 16, 2019, Recording.
After Haynes exited the room, Plaintiff asked Stinson and Sinkway whether they saw harassment. Pl. Dep. 233; December 16, 2019, Recording. Plaintiff accused Haynes of being a “liar” and questioned why the CEO was even present for the meeting. December 16, 2019, Recording (“But again, why are you in here with this? . . . Isn't there some bill or something else you have to do?”); Stinson Dep.13-14. Stinson counseled Plaintiff on her behavior and informed her that she had received complaints from employees that Plaintiff was “not being very friendly and some people are uncomfortable.” Pl. Dep. 232. Sinkway and Stinson met with Plaintiff for almost an hour talking through how to effectively communicate, as well as resolve any issues, with Haynes. December 16, 2019, Recording; Pl. Dep. 231.
Also on December 16, 2019, Plaintiff approached Gregory and requested her personnel file. Pl. Dep. 233-34; Gregory Notes (ECF No. 50-19). Plaintiff told Gregory that she felt she was being harassed, however, she did not give Gregory any details at that time. Pl. Dep. 234; Gregory Notes. Plaintiff avers that she did not receive her personnel file until after this litigation began. Pl. Aff. ¶ 21. Gregory contacted Careteam's external human resources consultant to discuss Plaintiff's complaint. Gregory Notes. The consultant recommended that Gregory provide Plaintiff with a complaint form to complete, then begin an internal investigation. Gregory Notes.
Defendant maintains a Respectful Workplace policy in its Employee Handbook, which provides, in pertinent part:
In addition to our commitment to equal employment opportunity, Careteam+ strives to foster harmonious, productive working relationships. The provider believes in
going beyond what is required by law and expects our employees to treat each other with respect and courtesy.... Careteam+ prohibits any behavior that is discourteous or demeaning toward other individuals....
Appropriate corrective action, up to and including termination, if necessary, will be taken against any employee engaging in disrespectful behavior. Careteam+ reserves the right to determine whether any type of behavior is disrespectful and injurious to the morale of the provider.Respectful Workplace Policy (ECF No. 50-34).
The day after the meeting, on December 17, 2019, Stinson, Haynes, Sinkway, and Gregory participated in a conference call with Careteam's external human resources consultant. Sinkway Notes dated December 17, 2019 (ECF No. 50-20). Based on Plaintiff's pattern of behavior that was first addressed on November 18, 2019, then again on December 16, 2019, the consultant recommended that Careteam issue Plaintiff a written warning documenting her unacceptable and disrespectful conduct, as well as her insubordination and failure to follow direction. Sinkway Notes dated December 17, 2019.
On December 18, 2019, Plaintiff received a written warning for insubordinate and disrespectful behavior, specifically her behavior towards Haynes in prior meetings on November 18, 2019, and December 16, 2019. Pl. Dep. 235; Sinkway Dep. 13-p. 14; Gregory Dep. 49; Written Warning (ECF No. 50-21); Redlined Notes of Kathleen Gregory (ECF No. 50-22). Sinkway, Stinson and Gregory reviewed the written warning with Plaintiff who stated that she would provide her response by December 20, 2019. Pl. Dep. 235. While reviewing the written warning, Plaintiff asked Gregory if she had informed Sinkway or Stinson about her complaint that Haynes was harassing her, and Gregory responded that she had not informed anyone. Gregory Dep. 52.
On December 19, 2019, Plaintiff informed Sinkway and Gregory that she would like to submit a written complaint regarding the harassment and retaliation she was experiencing at Careteam. Pl. Letter to Gregory dated December 19, 2019. Gregory provided Plaintiff with a form to fill out pursuant to the recommendation of the external human resources consultant, but rather than filling out the form, Plaintiff wrote a letter to Gregory complaining about the form itself. Pl. Letter to Gregory dated December 19, 2019. In this letter, Plaintiff also alleged that she had complained of retaliation and harassment in the past. Pl. Letter to Gregory dated December 19, 2019.
Later that day, Gregory and Sinkway met with Plaintiff to discuss the contents of Plaintiff's letter and address her allegations of harassment and retaliation. Gregory Dep. 26; Emails between Pl. and Gregory dated December 19, 2019 (ECF No. 50-24). Plaintiff informed Gregory and Sinkway that she did not have time to write everything down yet, and provided generalized allegations from months' prior. Gregory Dep. 26. Plaintiff informed Gregory that Haynes was creating a racially charged work environment. Pl. Aff. ¶ 27 (ECF No. 56-2). Gregory sent an e-mail to Plaintiff later that day reminding Plaintiff to provide her response to the written warning and other alleged documentation by the agreed upon date of December 20, 2019. Emails between Pl. and Gregory dated December 19 and 20, 2019 (ECF No. 50-25). Gregory also informed Plaintiff that she had given her the form as a tool so that Careteam could move forward with an investigation into Plaintiff's allegations but Plaintiff was not required to use the form. Emails between Pl. and Gregory dated December 19 and 20, 2019.
Plaintiff went on vacation on December 20, 2019, and returned January 6, 2020. Pl. Aff. ¶ 23. Plaintiff provided her response to the written warning on January 2, 2020. Pl. Dep. 235, 243; Redlined Notes of Gregory; Response to Written Warning (ECF No. 50-26).
On January 5, 2020, Plaintiff submitted an e-mail and timeline detailing her claims of harassment and retaliation. Timeline; Pl. Letter to Gregory dated January 5, 2020 (ECF No. 56-2 pp. 73-74). She asserted that she has been subjected harassment and continual retaliatory behaviors ever since the February 2019 racial investigation. Pl. Letter to Gregory dated January 5, 2020. Gregory received this e-mail on January 6, 2020, and consequently, Careteam began a preliminary investigation into Plaintiff's allegations and consulted with their outside legal counsel. Gregory Dep. 43; Redlined Notes of Gregory; E-mail from Gregory to Pl. dated January 6, 2020 (ECF No. 50-27). Careteam placed Plaintiff on a paid administrative leave with full benefits beginning January 8, 2020, while the matter was investigated. Pl. Dep. 254; Gregory Dep. 29-30; Administrative Leave Letter (ECF No. 50-28). On January 9, 2020, Plaintiff sent an e-mail to the Careteam Board of Directors, copying Stinson, Gregory, and Haynes, requesting an external investigation into her allegations of harassment. Pl. Dep. 254; Pl. Email to Board of Directors dated January 9, 2020 (ECF No. 50-29). She admitted in the same e-mail, however, that she had already been informed that an investigation into her allegations was in progress. Pl. Email to Board of Directors dated January 9, 2020. Plaintiff also mentioned that she filed with the Equal Employment Opportunity Commission (EEOC). Haynes Dep. 72; Stinson Dep. 19; Pl. Email to Board of Directors dated January 9, 2020.
Based upon Plaintiff's response to the written warning, Plaintiff's supervisors felt she did not take any responsibility for her actions with respect to the performance of her department, indicate any remorse for her disrespectful statements, or show any intention of correcting the insufficiencies in her work performance, and, thus, the decision was made, with input from Haynes, Sinkway, Stinson, Defendant's external human resources consultant, and Defendant's outside legal counsel, to terminate Plaintiff's employment. Sinkway Dep. 22; Gregory Dep. 25; Stinson Dep. 11, 13.Gregory spoke with Plaintiff on the phone on January 29, 2020, to schedule a meeting for purposes of informing Plaintiff of Careteam's decision to terminate her employment. Pl. Email to Gregory and Sinkway dated January 30, 2020 (ECF No. 50-30). Gregory, Plaintiff, and Sinkway scheduled the meeting for 5:00 p.m. on January 30, 2020, however, that morning, Plaintiff informed Sinkway and Gregory via e-mail that she would not be attending. Pl. Email to Gregory and Sinkway dated January 30, 2020. As a result, Careteam sent a termination letter to Plaintiff the next day, January 31, 2020. Pl. Dep. 261; Termination Letter (ECF No. 50-31).
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position 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.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. Discrimination
Plaintiff alleges that her employment was terminated because of her race in violation of Title VII and 42 U.S.C. § 1981. Title VII makes it “an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise 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)(1). Section 1981 states, in relevant part, that “[a]ll persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens.” 42 U.S.C § 1981. The standards applicable to lawsuits under § 1981 are the same as the standards applicable to lawsuits under Title VII, with the same case law being used to evaluate a claim under either statute. See Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1050 (8th Cir.2002) (“In analyzing a claim ... under section 1981, we apply the same standards as in a similar Title VII claim.”); Long v. First Union Corp. of Virginia, 894 F.Supp. 933, 945 (E.D.Va.1995); Kim v. Nash Finch Co., 123 F.3d 1046,1063 (8th Cir.1997).
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may establish through direct or circumstantial proof that a protected characteristic such as race was a motivating factor in the employer's adverse decision. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir.2005); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir.2004) (en banc). When direct evidence is lacking, a plaintiff may proceed under the burden-shifting proof scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff proceeds under the McDonnell Douglas burden-shifting scheme.
Under this burden-shifting scheme, Plaintiff has the initial burden of establishing a prima facie case of discrimination, which “var[ies] depending on the nature of the case.” Briggs v. Waters, 484 F.Supp.2d 466, 477 (E.D. Va. 2007). To establish a prima facie claim for wrongful termination, Plaintiff must present evidence that (1) that she was a member of a protected class; (2) that she was performing at a level that met her employer's legitimate job expectations at the time of the adverse employment action; (3) that she suffered an adverse employment action; and (4) that the position remained open or was filled by a similarly qualified applicant outside the protected class. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003). The fourth element can also be established by presenting other evidence raising an inference of discrimination. See EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n. 2 (4th Cir.2001) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
If Plaintiff establishes a prima facie case, “a presumption of illegal discrimination arises, and the burden of production shifts to the employer” to produce evidence of a legitimate, non-discriminatory reason for its adverse employment action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Hurst v. District of Columbia, 681 Fed.Appx. 186, 190, 2017 WL 908208, at *3 (4th Cir. Mar. 7, 2017) (per curiam).This is merely a burden of production, not of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
Once Defendant has met its burden of production by producing a legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non.” Reeves v. Sanderson Plumbing Products, Inc., 5 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). 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 its 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 that Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff. Plaintiff has the ultimate burden of presenting evidence from which a reasonable jury could conclude Defendant intentionally discriminated against her.
Defendant argues that Plaintiff fails to present sufficient evidence to establish a prima facie case of discrimination with respect to her termination because she fails to show that she was performing at a level that met her employer's legitimate job expectations at the time of her termination or that her position remained open or was filled by a similarly qualified applicant outside the protected class.
Plaintiff asserts that she was performing at a level that met Defendant's legitimate expectations based on her October 29, 2018, and April 10, 2019, evaluations. In both evaluations, Plaintiff received a “meets” or “exceeds” rating in each category. Pl. Evaluations (ECF No. 56-2, pp. 40-66). However, the relevant time to evaluate an employee's performance is at the time of the adverse action. See, e.g., Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005). Further, it is clear from the record that Plaintiff and Haynes had a difference of opinion with respect to how Plaintiff should perform her job responsibilities. Though Plaintiff believed that she was properly handling her responsibilities, the record reveals that in Haynes' opinion she was not successfully engaging the gay community in Defendant's prevention efforts through testing and other HIV awareness events as specifically requested by Haynes. Haynes believed the quality of the relationship between the Prevention Coordinator and the gay community determined the extent to which Plaintiff could effectively accomplish essential duties, such as scheduling testing and outreach events; providing HIV prevention and other health related education sessions; and distributing condoms to the gay bars. Plaintiff repeatedly failed to engage the gay community in Careteam's prevention efforts though Haynes asked Plaintiff to do so on numerous occasions as discussed above. It is the perception of the decisionmaker, and not the plaintiff's self-assessment, that is the relevant inquiry when determining whether the plaintiff was meeting her employer's legitimate expectations. King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.2003). Further, Plaintiff does not dispute that she exhibited unprofessional behavior, including calling Haynes crazy, and accepted that her statement was disrespectful. Pl. Dep. 189 -90. Plaintiff also took responsibility for other inappropriate statements, such as calling Haynes a liar and questioning her authority as CEO to sit in on Plaintiff's department's meetings. Response to Written Warning. Therefore, she fails to present sufficient evidence to meet this prima facie requirement.
Plaintiff only tangentially addresses the fourth required element to establish a prima facie case of wrongful termination based on race. She states that the meets the fourth requirement-that her position was filled with someone outside her protected class-by stating “her position remained open and was fulfilled by Armando and other employee Jessica.” However, she fails to point to any evidence in the record to support this assertion or identify whether either of these individuals was outside her protected class. To the contrary, the record reflects that after Plaintiff was terminated, Haynes hired Stephen Batts, who is African-American, as Prevention Coordinator and, thereafter, promoted Brandon Brown, who is also African-American, to the position. Pl. Dep. 265-66; Haynes Dep. 79-80; Alford Dep. 30-31 (ECF No. 50-37). Plaintiff also argues that it is not necessary for her to show that she was replaced by someone outside her protected class, citing law outside the Fourth Circuit. See Pl. Resp. p. 31 (citing George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)). In EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n. 2 (4th Cir.2001), the Fourth Circuit noted that the prima facie formula necessarily will vary at times based on the facts of each case. Id. (citing McDonnell Douglas, 411 U.S. at 802, n. 13). “What is critical with respect to the fourth element is that the plaintiff demonstrate he was not hired (or fired or not promoted, etc.) ‘under circumstances which give rise to an inference of unlawful discrimination.'” Id. (citing Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Thus, while Plaintiff is correct that she does not necessarily have to show that her position was filled by someone outside her protected class, she has failed to present any other, sufficient evidence that would give rise to an inference of unlawful discrimination. That is, she has failed to present any evidence to give rise to an inference that she was terminated because of her race. As such, she fails to establish a prima facie case of discrimination, and, thus, summary judgment is appropriate on this claim.
In George, the District of Columbia Circuit held that one method of showing unfavorable action that gives rise to an inference of discrimination is to show that the adverse action “is not attributable to the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.” George, 407 F.3d at 412 (citing Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002)) (internal quotations omitted). However, as set forth above, that is not the law in this Circuit.
Plaintiff also alleges in her complaint that she was disciplined because of her race. To establish a prima facie case of disparate treatment on the basis of her race, Plaintiff must show: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action . . .; and (4) that similarly-situated employees outside the protected class received more favorable treatment.” White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004). Defendant argues that Plaintiff fails to present evidence sufficient to meet any of the required prima facie elements other than membership in a protected class. Plaintiff was disciplined with a written warning on December 18, 2019. Written Warning (ECF No. 50-21). However, this warning does not amount to an adverse employment action for Title VII purposes.
For the purposes of a Title VII discrimination claim, an “adverse employment action” is one that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321,337 (4th Cir. 2011) (internal quotation marks omitted). In other words, Plaintiff must show that the action “adversely affect[ed] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation marks omitted). To qualify as an adverse employment action, the harm alleged must “work a ‘significant' detriment” on a plaintiff. Adams v. Ann Arundel Cty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015). A written warning does not constitute an adverse employment action because it does not affect the terms, conditions, or benefits of employment. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 651-52 (4th Cir. 2002); Jesnsen-Graf v. Chesapeake Emp's' Ins. Co., 616 Fed.Appx. 596, 598 (4th Cir. 2015) (explaining that “[a]n adverse employment action is an action that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” and holding that the plaintiff's complaint failed to state a plausible claim for discriminatory issuance of a PIP because it did not “allege that she received lower pay, was demoted, was passed over for a promotion, failed to receive a bonus, or given significantly different responsibilities because she was placed on the PIP”). There is no evidence in the record that the written warning Plaintiff received caused any change in the terms, conditions, or benefits of her employment or that it otherwise worked a “significant detriment” on her. Therefore, she fails to show that she suffered an adverse employment action with respect to the written warning and summary judgment is appropriate as to that claim.
B. Retaliation
Plaintiff also alleges that her termination was in retaliation for her complaints of discrimination based on her race. Title VII makes it an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case ofretaliation under Title VII, a plaintiff must show (1) he engaged in protected activity, (2) the employer took adverse employment action against him, and (3) a causal connection existed between the protected activity and the adverse action. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985); Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 258 (4th Cir.1998); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998). If Plaintiff establishes a prima facie case, Defendants can rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. At that point, Plaintiff must present evidence sufficient to create a genuine issue of material fact that Defendants' legitimate, non-retaliatory reason is pretextual. See Matvia v. Bald Head Island Management, 259 F.3d 261, 271 (4th Cir.2001).
Protected activity involves opposing an unlawful employment practice which the plaintiff reasonably believed had occurred or was occurring. Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003). Title VII protects an employee who opposes “any practice made an unlawful employment practice,” 42 U.S.C. § 2000e-3(a), or who “reasonably believes” she is opposing a practice made an unlawful practice by Title VII. E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005). The Fourth Circuit has “articulated an expansive view of what constitutes oppositional conduct, recognizing that it encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities.” DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (internal quotation marks omitted). Filing an EEOC charge is also a protected activity. 42 U.S.C. § 2000e-3(a).
Defendant argues that Plaintiff's internal complaints regarding Haynes do not amount to protected activity because Plaintiff did not complain that the harassment she was suffering from Haynes was because of her race. However, there is evidence in the record that Plaintiff did make complaints based on race. Plaintiff first complained about Haynes to Gregory on October 28, 2019, following a meeting she had with Haynes. Plaintiff called Gregory and told her that she believed Haynes was harassing her by “questioning [her] job performance, . . . questioning if [she] needed to do anything over again, calling, making statements about [her], slanderizing [her] name . . . Making these type of statements about [she's] not a rule follower.” Pl. Dep. 176--177. Plaintiff also told Gregory that she was aware that Haynes had contacted a former employee, Tiffany Joyner, to ask whether she knew that Plaintiff lived with her supervisor, Cheryl Johnson. Pl. Dep. 176. Plaintiff told Gregory that she believed Haynes was “creating and cultivating a toxic and racially charged work environment” and her action of calling Joyner was “in direct relation” to an investigation that occurred in February 2019 regarding race relations in the office. Pl. Dep. 180, 183, 185; Timeline Notes (ECF No. 50-12). On October 31, 2019, Gregory met with Plaintiff to follow up on their October 28, 2019, discussion. Pl. Dep. 183. During this conversation, Plaintiff reiterated that she believed Haynes was harassing her and that it related to her race. Pl. Dep. 185. During a November 18, 2019, meeting, Plaintiff complained that Haynes had an issue with Plaintiff hanging out with Johnson outside of work because they are “black folks.” Pl. Dep. 199-200; November 18, 2019, Recording at 1:03:06 - 1:03:45. Again, in a meeting with Gregory and Sinkway on December 19, 2019, Plaintiff informed Gregory that Haynes was creating a racially charged work environment. Pl. Aff. ¶ 27. In her letter to Gregory dated January 5, 2020, Plaintiff mentioned that she'd been subjected to harassment since her participation in the February 2019 racial investigation. Pl. Letter to Gregory dated January 5,2020. This evidence is sufficient to show that Plaintiff engaged in protected activity under Title VII.
As stated above, the investigation from February 2019 was requested by Johnson after she heard that Careteam employees believed that she, as an African American, treated African American employees, including Plaintiff, more favorably than Caucasian employees. Johnson Dep.,12-13; Gregory Dep. 17-18 (ECF No. 50-13).
Though Defendant does not dispute that Plaintiff's termination was an adverse action, it argues, as it did with respect to Plaintiff's discrimination claim, the written warning Plaintiff received on December 18, 2019, is not an adverse action. However, a less strenuous standard applies with respect to adverse actions in the retaliation context. Strothers v. City of Laurel, Maryland, 895 F.3d 317, 327 (4th Cir. 2018). The adverse action “need not be employment or workplace-related in order to sustain a retaliation claim.” Id.; see also Burlington Northern, 548 U.S. at 64, 126 S.Ct. 2405 (“[T]he antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.”); Barnes v. Charles Cty. Pub. Schools, 747 Fed.Appx. 115, 119 (4th Cir. 2018) (per curiam) (“An adverse action need not affect the terms and conditions of employment” in a retaliation claim.) Thus, “[t]he scope of Title VII's anti-retaliation provision ... is broader than the anti-discrimination provision.” Strothers, 895 F.3d at 327. The Fourth Circuit has ruled that “a letter of warning did amount to an adverse action because [plaintiff's supervisor] warned [plaintiff] that future disciplinary actions could result in further discipline, including termination.” Barnes, 747 Fed.Appx. at 119. Plaintiff's written warning contained a statement that “”[f]ailure to improve may result in further disciplinary action up to and including termination.” Written Warning. Therefore, it constitutes an adverse action in the retaliation context.
Plaintiff must also present sufficient evidence of a causal connection between her protected activity and the adverse actions. “[A] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir.2004). However, the temporal nexus between two events cannot provide proof of causation unless the “temporal proximity between an employer's knowledge of protected activity and an adverse employment action” was “very close.” Clark County School District. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotation marks omitted). A“‘lengthy time lapse between the [defendant's] becoming aware of the protected activity and the alleged adverse ... action' ” often “ ‘negates any inference that a causal connection exists between the two.'” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005) (citation omitted). Here, the record reflects that Plaintiff made complaints regarding racial discrimination or retaliation on October 28, 2019, October 31, 2019, November 18, 2019, December 19, 2019, and January 5, 2020. Plaintiff received the written warning on December 18, 2019, and she was notified of her termination on January 30, 2020. While there is no bright line time frame to establish causation for a prima facie case, the Fourth Circuit has held that a one-month period between the protected activity and an adverse employment action is sufficient to create a jury question regarding the causation prong of a prima facie case. See Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 247 (4th Cir. 2015). Here, one month passed between Plaintiff's November 18, 2019, complaint and the written warning she received on December 18, 2019. Less than two months passed between Plaintiff's December 18, 2019, complaint and her termination on January 30, 2020. “[E]stablishing a ‘causal relationship' at the prima facie stage is not an onerous burden.” Strothers, 895 F.3d at 335 (citing Foster, 787 F.3d at 251; Burgess v. Bowen, 466 Fed.Appx. 272, 283 (4th Cir. 2012) (“[V]ery little evidence of a causal connection is required to establish a prima facie case of retaliation.”) (citation omitted)). Accordingly, Plaintiff has presented sufficient evidence of a causal connection between her protected activity and her adverse actions to create a prima facie case of retaliation. Therefore, the burden shifts to Defendant to produce a legitimate, non-retaliatory reason for the adverse actions.
Defendant asserts that Plaintiff was given a written warning for insubordinate and disrespectful behavior, specifically her behavior towards Haynes in meetings on November 18, 2019, and December 16, 2019. Pl. Dep. 235; Sinkway Dep. 13-p. 14; Gregory Dep. 49; Written Warning (ECF No. 50-21); Redlined Notes of Kathleen Gregory (ECF No. 50-22). Further, based on Plaintiff's written response to her warning, Plaintiff's supervisors felt she did not take any responsibility for her actions with respect to the performance of her department, indicate any remorse for her disrespectful statements, or show any intention of correcting the insufficiencies in her work performance, and, thus, the decision was made, with input from Haynes, Sinkway, Stinson, Careteam's external human resources consultant, and Careteam's outside legal counsel, to terminate Plaintiff's employment. Pl. Dep. 235, 243; Redlined Notes of Gregory; Response to Written Warning; Sinkway Dep. 22; Gregory Dep. 25; Stinson Dep. 11, 13; Sinkway Notes dated December 17, 2019. Both of these actions were in accordance with Defendant's Respectful Workplace Policy. These are legitimate, non-retaliatory reasons for the written warning and the termination. See, e.g., Calhoun v. U.S. Dep't of Labor, 576 F.3d 201, 214 (4th Cir. 2009) (holding an employee's “continued failure to follow supervisors' instructions” was a legitimate non-retaliatory reason); Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989) (holding an “insubordinate attitude” and “difficulty in working with fellow employees” were legitimate non-discriminatory reasons). Thus, the burden returns to Plaintiff to present evidence sufficient to show that the reasons given were not the true reasons for the adverse action, but pretext for a retaliatory reason.
In her response, Plaintiff does not address how the reasons given for her written warning and termination are pretext for a retaliatory reason. Rather, she rests her retaliation discussion on the temporal proximity between her protected activity and the adverse actions. See Pl. Resp. p. 33. However, “the causation standard Plaintiff must meet at this stage of McDonnell Douglas is a demanding one.” Williams v. Fairfax Cnty., No. 121CV598RDAIDD, 2022 WL 2346615, at *12 (E.D. Va. June 29, 2022); Foster, 787 F.3d at 251 (noting the causation standards for establishing a prima facie case of retaliation and proving pretext are not identical, and the prima facie causation burden is “less onerous”). Whereas mere temporal proximity might be enough to sufficiently make a prima facie showing of causation, “temporal proximity alone ... cannot create a sufficient inference of pretext.” Nathan v. Takeda Pharms. Am, Inc., 890 F.Supp.2d 629, 648 (E.D. Va. 2012) (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)); Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 192 (4th Cir. 2017) (agreeing that “for purposes of establishing a prima facie case, close temporal proximity between activity protected by the statute and an adverse employment action may suffice to demonstrate causation,” but noting the plaintiff “still ‘bears the burden of establishing that the employer's proffered explanation is pretext for ... retaliation.'”). Plaintiff admitted to her unprofessional conduct, including calling Haynes crazy, and even accepted that her statement was disrespectful. Pl. Dep. 189 -90. Plaintiff also took responsibility for other inappropriate statements, such as calling Haynes a liar and questioning her authority as CEO to sit in on Plaintiff's department's meetings. Response to Written Warning. She was aware of Careteam's Respectful Workplace policy and understood that any conduct in violation of this policy could lead to disciplinary action including termination. Pl. Dep. 95-96. She fails to present sufficient evidence to show that these reasons were not the true reasons for her written warning and subsequent termination but were pretext for a retaliatory reason.
In sum, it is clear from the record, and Plaintiff explicitly states in her affidavit, that she had a “fundamental problem” with Haynes' perception of the Prevention Coordinator position and her focus on maintaining a connection with the gay community. Pl. Aff. ¶ 5. While she disagrees with Haynes' assessment of whether she was adequately performing her job duties, Plaintiff does not disagree that she was disrespectful towards Haynes during her communications with her about her job responsibilities and performance. The Court's assessment of pretext depends upon the “perception of the decisionmaker.” See Holland, 487 F.3d at 217; see also Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (“[W]hen an employer gives a legitimate, non-discriminatory reason for discharging the plaintiff, it is not [the court's] province to decide whether the reason was wise, fair, or even correct ... so long as it truly was the reason for the plaintiff's termination.”) Plaintiff fails to present sufficient evidence that would call Defendant's stated reasons for its decision to issue a written warning and terminate her position into doubt or that would create a genuine issue of material fact as to whether Defendant's decision was worthy of credence. Accordingly, summary judgment is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion for Summary Judgment (ECF No. 50) be granted and this case be dismissed in its entirety.