Opinion
6:20-cv-00759-JD-JDA
04-21-2021
Robert Lang, Plaintiff, v. Furman University, Robert Bierly, Lisa Knight, Alex Francis-Ratte, Katherine Palmer Kaup, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' motion for summary judgment. [Doc. 42.] Plaintiff alleges violations under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), based on sex discrimination and retaliation, as well as a state law claim for defamation. [Doc. 10.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil 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.
Plaintiff also alleged a state law claim for civil conspiracy. [Doc. 10.] However, on May 7, 2020, the Honorable Bruce Howe Hendricks dismissed the civil conspiracy claim. [Doc. 25; see also Doc. 22.]
Plaintiff brought suit in the Greenville County Court of Common Pleas on January 2, 2020. [Doc. 1-1.] Defendants removed the case to this Court on February 18, 2020 [Doc. 1], and Plaintiff filed an Amended Complaint on March 11, 2020 [Doc. 10]. On January 22, 2021, Defendants filed a motion for summary judgment. [Doc. 42.] Plaintiff filed a response on February 15, 2021, and Defendants filed a reply on February 22, 2021. [Docs. 45; 47.] Accordingly, the motion is ripe for review.
BACKGROUND
Viewing the summary judgment record in the light most favorable to Plaintiff, as is appropriate on consideration of Defendants' summary judgment motion, the undersigned gleans the following facts.
The Parties and Key Witnesses
Defendant Furman University (“Furman”) is a private university located in Greenville, South Carolina. [Doc. 10 ¶¶ 3, 8.] Furman hired Plaintiff as its Program Coordinator for the Asian Studies Department (“Asian Studies”) in April 2017. [Doc. 42-7 at 58.] His primary responsibility in this position was to coordinate programs for Asian Studies, which included study-abroad programs as well as various on-campus programs. [Doc. 42-9 at 4-6.] He also was responsible for providing administrative support to Asian Studies faculty. [Doc. 42-7 at 70.]
At the time of the events at issue in this case, Defendant Robert Bierly was Furman's Assistant Vice-President for Human Resources, and Dr. Kenneth Peterson was Furman's Dean of Faculty. [Docs. 42-1 at 5; 42-6 ¶ 2.] Additionally, Maggie Milat is the Director of Fiscal Operations for the Office of Academic Affairs. [Doc. 42-1 at 5.] Defendant Dr. Lisa Knight was a Professor of Religion, Asian Studies, and Anthropology, and she became Department Chair of Furman's Department for Asian Studies on or about August 1, 2018, and continued in that role through the end of Plaintiff's employment at Furman. [Doc. 42-5 ¶ 2; Doc. 42-10 at 4.] Defendants Dr. Katherine Kaup and Dr. Alex Francis-Ratte are both James B. Duke Professors of Asian Studies and Politics and International Affairs. [Docs. 42-2 ¶ 2; 42-4 ¶ 2.] Dr. Kaup was on the committee that interviewed and suggested that Plaintiff be hired. [Doc. 42-9 at 7.]
Two other professors who criticized Plaintiff's performance deficiencies, but who Plaintiff did not name as Defendants in this action, are Dr. Shusuke Yagi and Dr. Dongming Zhang. [Doc. 42-8 at 16-17, 34.] Dr. Yagi is a professor of Asian Studies and Japanese Studies. [Doc. 42-1 at 5.] He was serving as Asian Studies chair when Plaintiff was hired, and he continued in that role until Dr. Knight transitioned into the position in the summer of 2018. [Doc. 42-7 at 62-63, 70-71.] Dr. Zhang is an associate professor of Asian Studies who teaches Chinese language and literature. [Doc. 42-3 ¶ 2.]
Plaintiff's Job Performance Problems
Furman has identified a number of significant deficiencies in Plaintiff's performance during his time there. His troubles began on the first day of the semester in January 2018. Dr. Francis-Ratte was planning to be off campus that day and had asked Plaintiff to play a video for his class. [Doc. 42-12 at 7-8.] Although Dr. Francis-Ratte reminded Plaintiff at least twice, Plaintiff forgot and never played the video. [Id.] The same month, Dr. Francis-Ratte asked Plaintiff to print a flyer for him, but Plaintiff failed to do so for two weeks, resulting in Dr. Francis-Ratte having to ask him again to print the flyer. [Id. at 9-10.]
In late March 2018, Plaintiff made significant errors for two different faculty members in connection with study-abroad trips to China. First, Dr. Zhang discovered that Plaintiff had entered Dr. Zhang's passport number incorrectly on a spreadsheet to be used to book visas. [Doc. 42-8 at 34.] As a result, Dr. Zhang told Dr. Yagi that they would have to check the rest of Plaintiff's work. [Id.] Plaintiff then made a similar mistake when he was booking flights for a trip to be led by Dr. Kaup, as Plaintiff made errors with several of the students' names. [Id. at 38.] Dr. Kaup sent Plaintiff an email dated March 30 expressing her displeasure:
Robert-
I am SUPER FRUSTRATED. This spreadsheet is quite different than the one you originally sent to [the travel agent] for bookings - your original sheet, from which she was making our reservations, had . . . Santana's last name spelled incorrectly, Jennifer's official name listed incorrectly, [one student is] listed by his nickname instead of his full name . . . . We would have been in serious trouble had I not asked you to check the names again carefully....
These details are the ESSENCE of your job, and we cannot function with errors like this.[Id.] Working on this same trip, Plaintiff also frustrated Dr. Kaup by scheduling flights with 6- to 7-hour layovers and failing to obtain tickets for the two faculty members when he was booking the flights. [Id. at 47-48.]
On April 18, regarding another student trip to China, Dr. Kaup requested that Plaintiff “please compile the list of students needing to stay in the dorm . . . and compile a second list for me about who does and does not need a ride to the airport.” [Id. at 58.] Rather than compile a complete list, however, Plaintiff simply reported to Dr. Kaup that no student needed a ride to the airport and only one needed to stay in the dorm “out of all of the students who responded.” [Id. at 57.] Dr. Kaup then asked Plaintiff to “confirm that all of the students responded and indicate that in our spreadsheet” to make sure that no one ended up missing the flight by their carelessness in failing to respond to the inquiry. [Id.] However, when Plaintiff eventually provided Dr. Kaup with a list, the list still failed to account for all of the students. [Id. at 55-56.] Again, Dr. Kaup expressed her displeasure and attempted to coach Plaintiff: “For a spreadsheet like this, the Program Director needs you to please review the names and logistics carefully (the Programs Coordinator can save the Program Directors lots of time by paying careful attention to these type[s] of details) to make sure each student is properly accounted for.... You really can't hand over a spreadsheet with multiple students' plans unaccounted for ....” [Id. at 55.] Dr. Kaup reported Plaintiff's poor performance to Dr. Yagi in an email questioning what benefit it was to Asian Studies to even have a program coordinator at this level of performance. [Id. at 54.]
The next incident occurred when Dr. Kaup asked Plaintiff on May 4 to create a spreadsheet with emergency-contact information for students who would be taking one of her foreign-study trips. [Id. at 69.] In response, Plaintiff produced a spreadsheet that listed only the emergency contacts' names and did not include any information about how to contact the individuals. [Id. at 67.] Dr. Kaup's response again revealed her frustration: “What on earth??? You simply put the name of the person under emergency contact?? How do you think I'm going to contact them??” [Id. at 67.] She discovered additional errors in Plaintiff's spreadsheet, as she explained to Plaintiff in an email dated May 7: “Not only did you not supply me any way to contact these ‘emergency contacts' that you listed in the spreadsheet, but you didn't even copy the names correctly ....” [Id.] Dr. Kaup added that she was “baffled why [Plaintiff had] not even replied to [her] concern about this.” [Id.]
Plaintiff's Annual Performance Evaluation and Subsequent Performance
Dr. Yagi completed Plaintiff's first-and only-annual performance evaluation and emailed it to him on May 8, 2018. [Id. at 5-14.] Plaintiff received a rating of 99 on a scale of 44 to 132. [Id. at 13.] Dr. Yagi noted that Plaintiff had been hired in the middle of the year and Dr. Yagi expected Plaintiff to substantially improve his performance. [Id. at 14.] On the same day Dr. Yagi sent Plaintiff the evaluation, he also sent him a list of seven specific areas in which his performance needed to improve. [Id. at 16-17.] Those included:
Plaintiff characterizes the review as “glowing” [Doc. 45 at 17], but he offers no basis for such an extreme characterization. The performance evaluation form categorizes scores as follows: 44-74 Needs improvement, 75-114 Accomplished Performance, and 115-132 Exemplary Performance. [Doc. 42-8 at 7.]
• “Always exactly do what the faculty member asks you to do. Do not make an assumption nor a judgment on your own.”
• “[M]ake sure to pay attention to the whole message and details.”
• “You are the face of our department to others. So, be polite and respectful whether those others are other staff members of diverse capacities and jobs or outsiders.”
• “Always keep open your office door fully so that . . . people especially students and faculty feel welcome to your office and you are willing to help.”
• “Always ask the chair when you spend departmental budget money on non-regular items and supplies.”
• “Avoid to make the impression that you do not recognize mistakes, do not apologize, and give excuses.”[Id.] Plaintiff responded to this feedback by criticizing Dr. Kaup, describing her treatment of him as unfair and describing her communication with him as poor but stating that he would “continue [t]o try to be patient with her” because he knew she was “going through a lot in both her family and work.” [Id. at 16.]
Plaintiff's performance problems continued following his evaluation. On May 4, 2018, Ms. Milat emailed Plaintiff and Dr. Yagi notifying them that one of the departmental accounts was already almost $2,900 over budget. [Id. at 21.] In response, Dr. Yagi directed Plaintiff to itemize the charges and move the items to the proper account. [Id.] Six weeks later, however, on June 20, the problem remained unaddressed and Ms. Milat notified Plaintiff that the budget excess had grown to $4,430, and she told him to fix the problem “ASAP.” [Id. at 25.] On June 22, Dr. Yagi questioned why Plaintiff had not corrected the problem when he was first directed to do so in early May and told Plaintiff to send him the itemized list “today.” [Id. at 24.] Plaintiff finally itemized the charges five days later. [Id. at 23.]
On June 4, Dr. Francis-Ratte directed Plaintiff to print flyers to be distributed to prospective students to promote Asian Studies. [Doc. 42-12 at 10.] However, the color quality of the flyers Plaintiff produced was so poor that they were “nearly illegible and well below the standards of wanting to look good for prospective students.” [Id.]
On July 7, 2018, Dr. Yagi emailed Plaintiff, with a copy to incoming Asian Studies chair Dr. Knight, to highlight several outstanding problems with Plaintiff's work. [Doc. 42-8 at 31.] The context for the email was that Plaintiff had stated the following in response to Dr. Yagi's May 8 email setting out how he needed to improve his performance, including by keeping the door open when he was present in the office:
The custodian came and ask[ed] me to close the doors when I step away from my desk. I always leave the door open as you asked[]. But in the last few weeks, the doors of [the] History and Philosophy department[s] are locked all the time and the assistants are not even there.
I am open to constructive criticism, but when you see this kind of double standard, it . . . feel[s] unfair. While you asked me to open the door fully open[, ] other departments['] doors are closed all the time. When you asked me to be cheerful, the other departments don't even have the assistants working in the summer in their departments.
When people are being critical about the typos, the other department doesn't even get the task done when you ask them or they don't even return emails. They can get by with something much worse while I am being criticized harshly. I hope you can understand from my perspective as well. Thank you![Id. at 32.] Dr. Yagi's frustration with Plaintiff was apparent from his lengthy response:
I am very concerned with the tone used, accusing me about this situation you caused because you forget things, and this happened after we went through in detail orally on each item I wrote for you that you need to improve which I shared with Dr. Nair when she was the Acting Chair and now with Dr. Knight.
One of the things I pointed out was that you tend to forget things. For instance, I told you not to spend the departmental money to purchase other than regular supplies such as copy paper without asking me. You did it anyway and I asked [you] not to repeat [that], but you did it again. So, three times you forgot I told you not to. A more recent example is itemizing the expenditure. I asked you to do it as soon as I received the overspending report from Ms. Milat at the beginning of May. As you saw, you yourself acknowledged you were going to do that in you[r] [May 4] message, but you forgot about it until I came back[.] Look [at] the mess you caused.
As for the door, I understand that you intended to follow exactly what I said. For, in the past, you got into trouble when you did not do exactly what we asked you to do and rather interpreted in your own way. Then we had to do [it] ourselves and wast[e] time not only by that but [by] explaining to you what should have been done. Then you explained what you thought . . . should have been done, and on and on. But, you forgot what I told you and remember only a part of it.
The original thing I told you was to keep your office door open when you are in your office to [make] the student and the visitor feel welcome (while you are there, of course). I told you that the reason was you often closed or only slightly opened your office door when I came to my office in the morning even though you were there. I never mentioned about keeping your office door nor the suite door open after you leave (of course, there are no students or visitors welcome after 5:00).
You only remembered the underlined part.
You should never uses that kind of tone to your supervisor (or for that matter to anyone) using such [a] word as “doublestandard.” I should have been angrier especially [because] this matter [was] caused by your mistake and involved the Facility Service and Ms. Milat, and I had to deal with yet another consequence you created.
There are times I had to redo what I asked you to do such as copying and scanning. Since it was your first year, I did not tell you[, ] but you have made the same mistakes even in the second or third time. It was much quicker for me to do it myself.
Because of the time constraint, I mentioned only some of the examples I myself experienced. But, there are other incidents other faculty members experienced.
I will no longer be the chair. If you repeat mistakes again, I am not quite sure your job is safe at Furman.[Id. at 31-32.]
Plaintiff Complains of Gender Discrimination
The foundation of the present action is a statement that Plaintiff alleges he heard Dr. Francis-Ratte make to another person on January 18, 2018, concerning Furman's selection of a Japanese-language-house assistant. The Japanese-language house is an apartment wherein students living there agree to immerse themselves in the Japanese language in order to develop their ability to speak Japanese. [Docs. 42-2 ¶ 4; 42-7 at 184-85.] The language-house assistant would be a native speaker of Japanese from Japan who would live in the house to help the students develop their language skills. [Docs. 42-2 ¶ 4; 42-7 at 184-85.]
Plaintiff first referenced the alleged January 2018 comment it in an email to Ms. Milat on June 20, 2018. On that afternoon at 2:45 p.m. Ms. Milat had emailed Plaintiff asking:
Robert, are you on campus? I have had faculty looking for you and emailing you since last week for assistance and they have not been able to locate you in your office. You have also not answered the email requests. There is not an out of office message tagged to your email. Can you update me on your location so that I may get these faculty the help they need?[Doc. 42-8 at 25.] Plaintiff concluded that the faculty member looking for him was Dr. Francis-Ratte, who was dissatisfied with flyers that Plaintiff had produced for him. [Doc. 42-7 at 138-39.] Plaintiff responded to Ms. Milat with an email stating, “I have helped Alex [Francis-Ratte] with many many tasks including making copies in this instance, but he seems to find fault [with] everything I do for him....There was one time when we were discussing about having [a] new Japanese language house assistant, he said that's more of a female type position and I thought that was inapprop[]riate.” [Doc. 42- 8 at 77; see also Doc. 42-7 at 290 (Plaintiff's deposition testimony that “the very first complaint [he] mentioned to Dr. Yagi [about Dr. Francis-Ratte] was around June 2018").] Plaintiff again referenced the comment in an August 14, 2018, email to Furman President Elizabeth Davis, on which he copied Furman's Title IX Coordinator, Melissa Nichols. [Doc. 42-8 at 97.] He wrote, “I have experienced unfair treatment at my work. It has been a peaceful and enjoyable working experience at Furman until one assistant professor (Dr. Alex Francis-Ratte) made [a] prejudicial and inappropriate comment about gender and job title in my presence on Jan. 18, 2018 [at] approximately 2:30.” [Id.] In this email, Plaintiff also mentioned that Dr. Francis-Ratte had complained to Ms. Milat on June 20 about a flyer Plaintiff had printed for him. [Id.]
Although Dr. Francis-Ratte does not recall Plaintiff being present for the conversation, he remembers a conversation he had with Dr. Zhang in January 2018 regarding selecting the Japanese-language-house assistant in which he referenced gender. [Doc. 42-12 at 5-6.] In his deposition, he explained the statement he recalled making as well as its context:
The context is that [student] language house applications come in in January, and the deadline is at the end of January, but we oftentimes don't know who the actual assistant is going to be who is going to be from Japan who is going to live with the students until much later. So sometimes we have to make difficult decisions about . . . which students to reject and which students to accept.
If the language house assistant is female, then that impacts the number of female students we can accept into the program.... I opined that it would be a safe bet to assume that the language house assistant would be female based on two reasons: one, history. Ever since I came to Furman, the language house assistants that have been recommended to us by the university have all been female, and second, I told Dr. Zhang that gender norms in Japan are quite strong, which he knew, and certain professions in Japan skew heavily towards female or male, and so in the context of a comment about Japanese society, I said that it's likely that the language house assistant will be female. I did not make a statement that the language house assistant should be female.[Id.]
Plaintiff also alleges that around the same time as his email to President Davis, he made a similar complaint to Dean Peterson and delivered a “stack of documents” to the Dean's assistant. [Doc. 42-7 at 211-13.] Plaintiff further stated in his deposition that he thought he had sent an email to Dr. Yagi in June 2018 complaining about Dr. Francis-Ratte's January 2018 comment. [Id. at 144-49.] However, as Defendants note [Doc. 42-1 at 13 n.5], Plaintiff has not forecasted any evidence of such an email.
On August 15, 2018, Plaintiff submitted a formal Title IX Complaint. [Id. at 99.] Ms. Nichols subsequently undertook a formal investigation and summarized her findings in a letter dated August 17, 2018. [Id. at 101-03.] She found that “no reasonable grounds exist to believe that Dr. Francis-Ratte violated the Sexual Misconduct Policy” because “the single comment about a position different than [Plaintiff's] position does not rise to the level of Gender based Harassment” under Furman's policy. [Id. at 103.] Plaintiff appealed Ms. Nichols' decision to the Vice President for Student Life, Connie Carson, but Carson found no basis to justify overruling the decision. [Id. at 105.]
“Title IX prohibits federally-supported educational institutions from practicing discrimination on the basis of sex.” Sheppard v. Visitors of Va. State Univ., No. 19-2452, 2021 WL 1227809, at *3 (4th Cir. Apr. 2, 2021). The statute provides, with certain exceptions, that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
Furman Places Plaintiff on a PIP
On August 13, 2018, the day before Plaintiff emailed President Davis, Plaintiff received the following email from Dr. Knight, who had recently become Asian Studies chair: “Dear Robert, I hope this email finds you well. I need to meet with you on Wednesday Aug[ust] 15, at 11:00 a.m. in the Human Resources Office to discuss new ways to improve your performance.” [Doc. 42-5 at 5.] At the ensuing meeting, Dr. Knight and Mr. Bierly presented Plaintiff with a formal performance improvement plan (“PIP”), which they had been working on developing for several weeks. [Docs. 42-5 at 4; 42-7 at 163-64; see also Doc. 42-8 at 80-82.] The PIP identified a number of deficiencies in Plaintiff's work, including:
• Failure to demonstrate consistent clerical aptitude in performing job-related responsibilities
• Inability to demonstrate consistent attention to detail in completing assigned tasks. Critical details include misspelled names for important travel documents including tickets, visas, errors and incomplete emergency contact information. This includes following up with tasks to ensure their final completion.
• Failure to demonstrate ongoing professionalism in communications and interactions with departmental members and other institutional constituents
• Inability to accurately maintain the departmental budget[Doc. 42-8 at 80.] The PIP specified improvements that Plaintiff would be expected to make and outlined a detailed plan of action that encompassed Plaintiff's focusing on spelling names correctly, following the department chair's directions, displaying attention to detail in his work, and interacting professionally with staff and students. [Id. at 80-82.] The PIP set a target date of November 13 and warned that Plaintiff's “[f]ailure to demonstrate substantial improvement [would] result in termination of employment.” [Id. at 82.]
Furman Extends Plaintiff's PIP
On September 21, 2018, Dr. Knight met with Plaintiff and Mr. Bierly for nearly three hours to review the progress Plaintiff was making under the PIP. [Doc. 42-5 at 9-10.] Plaintiff then was absent from Furman from the second week of December through the second week of January as he took a leave of absence to travel to China to visit his ailing brother. [Doc. 42-7 at 171-72.] As of January 2019, Dr. Knight concluded that Plaintiff had not demonstrated “sustained and significant improvement” over the course of the PIP and had “not . . . completed [the PIP] to any satisfaction.” [Doc. 42-10 at 7-8.] On that basis, Plaintiff's PIP was extended to include a target date of March 31, 2019. [Doc. 42-8 at 84-87.] The extended PIP detailed several particular examples of Plaintiff's deficient performance during the prior few months, including:
Dr. Knight's notes reflect that she reviewed particular recent incidents regarding lack of attention to detail, blame shifting, rudeness and lack of self-control. [Doc. 42-5 at 9.] Plaintiff testified, however, that Dr. Knight “didn't raise any concerns during that meeting” regarding his performance. [Doc. 42-7 at 170.] In his memorandum opposing summary judgment, he asserts that “Dr. Knight never met with Plaintiff to discuss his improvement.” [Doc. 45 at 17.]
Furman was not able to meet with Plaintiff to discuss the extension prior to the end of the fall semester because of his leave of absence. [Doc. 42-7 at 173.]
• Failure to submit the department budget on January 14 and 21 as directed on the original PIP
• Submission of budgets that were incomplete in that they did not show all expenses charged to accounts and did not give sufficient detail about each expense
• Failure to show initiative and complete tasks in a timely manner
• Failure to demonstrate the ability to do quality work independently
• Failure to demonstrate attention to detail and follow through accurately on department member's request
• Failure to demonstrate proficiency in Word and Excel software[Id. at 87.]
The PIP identified two examples of Plaintiff's failure to show initiative and timely complete tasks. [Id.] The first related to a request Dr. Kaup made of Plaintiff on January 13 to create a photo biography. [Id.; Doc. 42-4 at 4.] On February 1, 2019, Dr. Kaup resent her request because it still had not been completed. [Id.] In fact, two weeks later, Plaintiff still had not successfully completed the assignment. [Id. at 6-12.] On February 13, 2019, Dr. Kaup had a different assistant in the department complete the assignment. [Id.] Frustrated with Plaintiff, Dr. Kaup emailed Dr. Knight, stating, “After today, I am no longer going to work with [Plaintiff]. It will be a waste of university resources to continue to pay him and to pay me at my salary level to do secretarial work, but I am no longer willing to endure the extra stress of working with him.” [Id. at 13.] The second example related to a request Dr. Zhang made of Plaintiff on January 28, 2019, to rename the files of applications for an open position for a professor of Chinese and to create an Excel spreadsheet that would help keep track of the information that had been provided for each applicant. [Docs. 42-3 at 6; 42-8 at 87.] Plaintiff responded that he had “heard from one [Asian Studies faculty member] that faculty is supposed to download the documents from Workday directly, but [he was] willing to go extra miles to help out.” [Doc. 42-3 at 6.] Dr. Zhang forwarded Plaintiff's response to Dr. Knight and copied Dr. Kaup, noting that he thought that instead of Plaintiff listening to some other faculty member, Plaintiff “should follow his job descriptions and the chair's instructions to understand what ‘extra miles' mean to his job responsibilities'” and observing that Plaintiff “doesn't say whether he is willing to rename the files, prepare an excel sheet, and document the files.” [Id. at 5.]
The extended PIP also cited an example of Plaintiff's inability to demonstrate attention to detail and follow through accurately. [Doc. 42-8 at 87.] Dr. Knight wrote Plaintiff on January 31 asking for “a list of all the rising seniors in the three majors - those who will be seniors during the 2019-20 year.” [Doc. 42-5 at 7.] Plaintiff provided her with a list that included both seniors scheduled to graduate in May 2019 and those who were scheduled to graduate in 2020. [Id. at 6-7.] When Dr. Knight told him that she needed only those seniors who would be graduating in May 2020, Plaintiff responded that he also included those who were to graduate in May 2019 because her earlier email had asked for students who would be “seniors during the 2019-20 year[, ] which includes” 2019 as well as 2020. [Id. at 6.] Dr. Knight then responded simply, “In our academic context, 2019-20 refers to the academic year - just like it does when we do the course planning, which you submitted yesterday.” [Id.]
Dr. Knight and Mr. Bierly discussed the PIP extension in a meeting with Plaintiff on February 5. [Doc. 42-7 at 174.] As the prior PIP had, the extended PIP warned that “[f]ailure to demonstrate substantial improvement will result in termination of employment.” [Doc. 42-8 at 86.]
Plaintiff Again Complains about Dr. Francis-Ratte's Comment
As Dr. Knight and Mr. Bierly were planning to meet with Plaintiff to extend his PIP, Plaintiff had again claimed that he was being subjected to discrimination. On January 31, 2019, Plaintiff sent an email to President Davis alleging that after Dr. Francis-Ratte's allegedly discriminatory comment in January 2018, Dr. Francis-Ratte “tried to get other people to frame [Plaintiff] with ‘performance' issue[s] while [he] had tremendous records to show that [he] was a competent worker, ” a course of action Plaintiff described as “evil and unethical.” [Doc. 42-8 at 111.] Plaintiff made similar allegations in a letter to President Davis that was dated the same date as his email. [Id. at 114-15.]
Plaintiff's Troubles Continue and He is Terminated
After Furman extended Plaintiff's PIP on February 5, several different faculty members continued to criticize Plaintiff's job performance. On February 11, Dr. Knight emailed Plaintiff regarding such concerns, including (1) her own concerns about errors in the application folders for candidates for a Chinese-language teaching position, some of which “nearly caused [Furman] to miss potential candidates”; (2) concerns Dr. Zhang and Dr. Kaup had expressed about misleading emails sent to students concerning the need to get passport photos; (3) concerns Dr. Yagi voiced that Plaintiff had failed to order DVDs on time; (4) concerns about Plaintiff's not ordering socks for docents; and (5) concerns regarding Plaintiff's failure to respond to an inquiry from Anderson University about setting up a visit to Furman's Place of Peace. [Id. at 89.]
Plaintiff's troubles culminated with his role in setting up a faculty dinner held at Furman's Shi Center on February 13 (“the Shi Center Event”). [Doc. 42-7 at 220-21.] Dr. Kaup asked Plaintiff to present her with menu options for the event, secure the alcohol, and any make other needed preparations. [Id. at 220-21.] Dr. Kaup told Plaintiff that he was “in charge of making sure that EVERYTHING [was] in place” and that “[i]t need[ed] to be professionally done.” [Doc. 42-8 at 118.]
Regarding alcohol, considering the type of event and the number of people expected, it was recommended that Plaintiff purchase four bottles of wine and four craft beer growlers. [Id. at 119.] Dr. Kaup confirmed with Plaintiff that he should follow that recommendation and instructed him to purchase four growlers from a particular vendor on “the afternoon of the event.” [Id. at 118.] However, despite Dr. Kaup's instruction that Plaintiff buy the alcohol on the afternoon of the event, Plaintiff went with one of the Asian Studies' student workers to purchase the beer one week before the event, and Plaintiff and the student worker stored the growlers in a refrigerator across from the Asian Studies' office suite. [Doc. 42-7 at 226, 230-31.] Two days before the event, Dr. Kaup emailed Plaintiff, telling him that she would be headed to the event straight from a class and asking him to make sure the alcohol was delivered to the Shi Center by 2:00 p.m. [Doc. 42-8 at 122.] She asked him to email her Wednesday before 2:30 p.m. “confirming that everything is properly in place.” [Id.] On Wednesday, February 13, Plaintiff and the same student worker who had accompanied Plaintiff to purchase the beer loaded the beer into the student worker's car. [Doc. 42-7 at 227.] The student worker then drove the beer in her car by herself to the Shi Center, where she unloaded it herself despite the fact that Plaintiff had never asked the student whether she was at least 21. [Id. at 224, 226-27.] In fact, Plaintiff never went to the Shi Center on the day of the event to ensure that things were properly set up. [Id. at 229.]
The Monday following the event, February 18, Mr. Bierly notified Plaintiff by hand-delivered letter that he was being placed on administrative leave pending an investigation of the events of February 13. [Doc. 42-8 at 124.] The letter stated that Plaintiff was not to return to campus or otherwise perform any work-related duties. [Id.] A Furman University police officer also came to Plaintiff's home sometime around March 1 and requested that he sign an order requiring him to refrain from contacting anyone at Furman. [Doc. 42-7 at 241-42.] Then, on March 8, 2019, Mr. Bierly met with Plaintiff and informed him that his employment had been terminated because he had exercised very poor judgment in allowing a student worker under his supervision to transport alcohol in violation of the state law prohibiting possession of beer and wine by a minor and because he had failed to meet the expectations that his February 5 PIP had set out. [Doc. 42-8 at 126.] Mr. Bierly, himself, made the decision to terminate Plaintiff's employment, along with then-Dean Ken Peterson. [Doc. 42-6 ¶ 6.]
Following Plaintiff's meeting with Mr. Bierly, two Furman police officers asked Plaintiff to return the keys that he had for Furman. [Doc. 42-7 at 245.] Plaintiff told them that he did not have the keys, but the officers told him that if he did not turn over the keys, Furman would have to make new keys at his expense. [Id.] As a result, the officers drove Plaintiff to his home in their police vehicle and waited outside while he went to get the keys, then they drove him back to his vehicle. [Id. at 246-47.]
A week before Plaintiff was terminated, Plaintiff had filed a charge of discrimination with the U.S. Department of Education's Office for Civil Rights. [Doc. 42-8 at 135-40.] Furman received notice of the charge on April 1 via a letter dated March 27, which indicated that it would be transferred to the Equal Employment Opportunity Commission for handling. [Doc. 42-6 at 3 ¶ 10, 5-6.] Plaintiff subsequently received a Notice of Right to Sue. [Doc. 10 ¶ 29.]
Plaintiff subsequently filed this action and seeks compensatory and punitive damages, attorneys' fees, and reinstatement. [Id. at 13-15 ¶¶ A-M.]
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in her pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “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. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Plaintiff's Title VII Discrimination Claim
Defendants maintain that Plaintiff cannot establish a prima facie case of gender discrimination based on a hostile work environment or for being placed on PIPs or being terminated. [Doc. 42-1 at 23-27.] In response, Plaintiff clarifies that he asserts a hostile work environment discrimination claim and argues that his claim survives summary judgment because there is a genuine factual dispute regarding whether Dr. Francis-Ratte's January 2018 comment created a hostile work environment. [Doc. 45 at 12-13.] The Court disagrees.
Title VII prohibits creating or allowing a hostile work environment based on race, color, religion, sex, or national origin. See Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006). To prove a hostile work environment, a plaintiff must show that: (1) he experienced unwelcome harassment; (2) the harassment was based on his sex; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) some basis exists for imputing liability to the employer. See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc). In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court reaffirmed the standard for determining when a plaintiff has established a hostile work environment, stating that a plaintiff must establish that the environment was “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787. Actionable harassment occurs when the workplace is “permeated with discriminatory intimidation, ridicule, and insult.'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). Title VII is not a “general civility code.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). “Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). Complaints based on nothing more than rude treatment by co-workers, callous behavior by supervisors, or a routine difference of opinion and personality conflict with supervisors are not actionable under Title VII. Id. When considering a plaintiff's claim that he was subjected to a hostile work environment, courts must consider the totality of the circumstances. Harris, 510 U.S. at 23. Relevant factors “may include the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id.
Here, the single comment allegedly made by Dr. Francis-Ratte was not sufficiently severe or pervasive to create a hostile work environment. See Sunbelt Rentals, Inc., 521 F.3d at 315-16 (collecting cases holding that complaints of rude treatment, callous behavior by superiors, or differences of opinion or personality conflicts with superiors are not actionable under Title VII). Accordingly, the Court recommends that Defendants' summary judgment motion be granted as to Plaintiff's gender/sex discrimination claim.
Plaintiff's Title VII Retaliation Claim
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . 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). Additionally, Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or 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). “Employees engage in protected oppositional activity when, inter alia, they complain to their superiors about suspected violations of Title VII.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (internal quotation marks omitted).
Through the two clauses of the antiretaliation provision, Title VII protects activities that “fall into two distinct categories: participation or opposition.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). The purpose of this antiretaliation provision is to prevent “an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006).
Absent direct or indirect evidence of discrimination or retaliation, a Title VII plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to establish a claim of employment retaliation. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015); Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Under the burden-shifting framework, an employee must first prove a prima facie case of retaliation. McDonnell Douglas, 411 U.S. at 802.
The briefing by the parties addresses only the McDonnell Douglas framework. [Docs. 42-1; 45; 47.]
To establish a prima facie case of retaliation, a plaintiff must demonstrate “(1) that [he] engaged in protected activity, (2) that the employer took a materially adverse action against [him] and (3) there is a causal connection between the protected activity and the adverse action.” Evans v. International Paper Co., 936 F.3d 183, 195 (4th Cir. 2019).
If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory and nonretaliatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 804. By providing such an explanation, the employer rebuts the presumption of retaliation created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). If the employer articulates a legitimate, nondiscriminatory and nonretaliatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for retaliation. McDonnell Douglas, 411 U.S. at 804.
Furman argues that Plaintiff cannot establish a prima facie case of retaliation. [Doc. 42-1 at 29-31.] Plaintiff argues to the contrary. [Doc. 45 at 13-19.] The Court declines to address this issue, however, because, even assuming that Plaintiff can establish a prima facie case of retaliation, Furman has articulated legitimate, nonretaliatory reasons for the actions Plaintiff challenges, which appear to include his placement under two PIPs and his termination. Specifically, Furman asserts that Plaintiff's poor performance motivated its actions and it has been very specific in identifying the areas in which Plaintiff's performance was deficient. Because Furman has articulated legitimate, nonretaliatory reasons for its actions, the Court will consider whether Plaintiff has forecasted admissible evidence that could meet his burden of demonstrating that Furman's proffered reason is merely a pretext for retaliation. See Merritt, 601 F.3d at 294; see also Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016) (explaining that ultimately, to survive summary judgment, a plaintiff must demonstrate “a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue”).
As one court within the Fourth Circuit has noted, “[t]he relevance of the McDonnell Douglas scheme outside of the trial context is limited.” Lerner v. Shinseki, No. ELH-10-1109, 2011 WL 2414967, at *14 (D. Md. June 10, 2011). The Fourth Circuit has observed,
Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the same, necessitating resolution of “the ultimate question of discrimination vel non.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983). As the Supreme Court has explained, “[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). Thus, “[c]ourts 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.'” Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (citation omitted).Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294-95 (4th Cir. 2010). Further, the Supreme Court has stated,
Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether “the defendant intentionally discriminated against the plaintiff.”Aikens, 460 U.S. at 715 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)); see Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (“The Aikens principle applies, moreover, to summary judgment as well as trial proceedings.”). In light of this guidance from the Supreme Court and the Fourth Circuit Court of Appeals, the Court agrees with the District of Maryland that where the employer has met its burden of articulating a legitimate, nondiscriminatory reason for its adverse action against the plaintiff, the Court may assume, without deciding, that the plaintiff has established a prima facie case of discrimination. See Lerner, 2011 WL 2414967, at *14.
Plaintiff points to no direct evidence connecting the conduct of any Furman employees to Plaintiff's discrimination complaints, and, for the most part, he does not even deny most of the mistakes and conduct for which he was criticized. However, Plaintiff argues that the temporal proximity of some of the faculty's criticisms and actions with his complaints of the January 2018 comment and retaliation therefrom amount to circumstantial evidence from which it could be reasonably inferred that the true motivation for the actions taken against him was retaliatory animus. [Doc. 45 at 15-19.] He also argues that the Shi Center Event was a “set-up” and that there was no violation of state law because under S.C. Code Ann. § 63-19-2440(D) it is not illegal for a minor to knowingly possess beer and wine if the minor is “an employee lawfully engaged in the . . . delivery of these beverages in an unopened container.” [Doc. 45 at 6-7, 18.] He contends that Furman's claim that Plaintiff violated state law by having the student worker deliver the alcohol was evidence that Furman was attempting to cover up its true retaliatory motive for the termination. [Id. at 19.] He also argues that Furman's having its police officers order Plaintiff not to contact other Furman employees at a time when he was only suspended and not yet terminated was an attempt to prevent him from supporting his Title VII claims. [Id. at 18.]
The Court concludes that, Plaintiff's arguments notwithstanding, Plaintiff has not forecasted evidence that gives rise to a reasonable inference that any Furman faculty member, or other Furman employee, harbored any animus whatsoever toward him as a result of his discrimination complaints. That is not to deny that Plaintiff has forecasted evidence that several faculty members harbored significant animosity toward him; he certainly did. Furman pointed to a sea of evidence that Plaintiff repeatedly made significant errors and that when faculty members deigned to bring these errors to his attention, he often responded without remorse or respect, and even sometimes retaliated with disingenuous complaints about the faculty member who had criticized him. That faculty and others would find such behavior wholly unacceptable and even work together to have him terminated is entirely foreseeable and understandable. Thus, any conclusion that any action taken toward him was based on his engaging in protected conduct or any other improper motive could only be based on conjecture and speculation.
That Plaintiff disagreed with the assessment of the faculty members criticizing him is immaterial. See, e.g., King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (stating that ?[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff”); Hemphill v. UPS, 975 F.Supp.2d 548, 559 (D.S.C. Sept. 27, 2013) (finding that the plaintiff's testimony disputing the validity of the underlying attendance issues that may have contributed to her reassignment did not support a finding of pretext). Nor is it the role of this Court to second-guess Furman's judgment regarding how to conduct its business. See Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir. 2005) (explaining that courts “do not sit as a ‘super-personnel department weighing the prudence of employment decisions' made by [employers]”).
The temporal proximity between any of Furman's challenged actions and any of Plaintiff's discrimination complaints does not give rise to a reasonable inference that Plaintiff's termination was the result of his discrimination complaints. To prove a causal connection, a plaintiff asserting a retaliation claim must be able to show that his employer took the adverse action “‘because the plaintiff engaged in a protected activity.'” Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (quoting Dowe v. Total Action Against Poverty in Roanoake Valley, 145 F.3d 653, 657 (4th Cir. 1998)). Where courts have accepted mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality, they have held that temporal proximity ?must be <very close.'” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (collecting cases).
Here, by the time Plaintiff first complained on June 20, 2018, about Dr. Francis-Ratte's comment, Plaintiff had already forgotten to play the video for Dr. Francis-Ratte's class; failed to print a flyer for Dr. Francis-Ratte for two weeks, requiring Dr. Francis-Ratte to repeat his request; entered Dr. Zhang's passport number incorrectly on a spreadsheet; made multiple mistakes with student names booking another trip and made other errors in purchasing tickets for that trip; failed to properly compile a list of students needing to stay in a dorm and needing a ride to the airport in another trip; failed to compile a list of emergency contact information; allowed a departmental account to go nearly $3,000 over budget and had been instructed to fix the situation; and Dr. Frances-Ratte had already sought to find Plaintiff to have him correct the poor-quality flyers that Plaintiff had printed out for him. [Docs. 42-8 at 16-17, 21-25, 34, 38, 47-48, 54-55, 65-67, 69; 42-12 at 7-10.] By that point, Dr. Kaup had specifically told Plaintiff that she was “SUPER FRUSTRATED” with him; Dr. Zhang had determined that he would need to go behind Plaintiff to check his work; and Dr. Yagi had sent an email to Plaintiff outlining several areas in which he would be expected to make significant improvement in the coming year. [Doc. 42-8 at 16-17, 34, 38.] Additionally, in the very email in which Plaintiff made his first complaint, Plaintiff himself observed that Dr. Frances-Ratte “seem[ed] to find fault [with] everything [Plaintiff did] for him.” [Id. at 77.] All of these events and statements occurred before Plaintiff ever complained of discrimination.
There is no basis for finding that any significant change occurred on the part of the faculty members' responses to Plaintiff after his June 20, 2018, complaint. Plaintiff continued to regularly anger and frustrate the Furman faculty, and faculty members continued to express their displeasure to him, to the point that he was placed on a PIP, the PIP was extended, and Plaintiff was suspended and then terminated. That Plaintiff made multiple complaints, some of which bore some temporal proximity to some of the several actions Furman took against him, does not give rise to the inference that Furman's actions were causally related to Plaintiff's complaints. See Duffey v. Wal-Mart Stores E. LP, No. 8:19-cv-00665-TMC-JDA, 2020 WL 8455086, at *9 (D.S.C. Sept. 4, 2020) (granting summary judgment against the plaintiff, noting that he pointed to ?nothing to suggest that these actions on his part, so late in the process, did anything to affect the trajectory of his situation or the attitude of . . . Defendant's employees who were attempting to manage him”), Report and Recommendation adopted by 2021 WL 62163 (D.S.C. Jan. 7, 2021). Nor did Plaintiff's engaging in this continued protected activity somehow preclude Furman from taking the steps it believed were appropriate to address Plaintiff's performance issues. Id.
On the issue of temporal proximity, Furman observes that Plaintiff's first documented complaint concerning Dr. Francis-Ratte occurred less than two hours after Ms. Milat sent Plaintiff an email attempting to locate him and that Plaintiff believed (correctly) that Dr. Francis-Ratte was the faculty member who had been looking for him; that Plaintiff's complaint to President Davis and to Furman's Title IX Coordinator on August 15, 2018, was made only two days after Dr. Knight had emailed Plaintiff to arrange a meeting to discuss his job performance with her and human resources; and that Plaintiff's March 6, 2019, complaint to the U.S. Department of Education's Office for Civil Rights was made while he was on suspension for conduct that had occurred on February 13. [Doc. 47 at 11 (citing Docs. 42-5 at 5; 42-7 at 139; 42-8 at 19-25, 77-78, 128-40).]
Plaintiff's argument that his student helper fit under the exception to the state law prohibiting possession by minors because she was “an employee lawfully engaged in the sale or delivery of [alcoholic] beverages in an unopened container” is a clever one, but raises an issue the Court need not address. It suffices to say that Mr. Bierly's position that Plaintiff had allowed a violation of the law was sufficiently colorable that there would be no reasonable basis for finding that he did not genuinely believe the law had been violated. And, as for the argument that Plaintiff's involvement in the Shi Center Event was a “set-up, ” there simply has not been any evidence forecasted that would support that theory.
Plaintiff contends that Furman's Employee Relations Manager, Kristen Davis, testified at Plaintiff's unemployment hearing that Plaintiff's conduct regarding the Shi Center Event was the sole basis for his termination. [Doc. 45 at 6-7 (citing Doc. 45-14 at 27:00, 49:33).] Plaintiff maintains that to the extent Furman now argues that his poor performance in other aspects of his job contributed to his termination, Furman is shifting its story. [Id. at 6-7, 19.] However, Mr. Bierly's letter informing Plaintiff of his termination plainly states that his termination was not based only on his conduct relating to the Shi Center Event but was also based on his ?fail[ure] to meet the expectations detailed in” his extended PIP, and that letter indeed was admitted in Plaintiff's unemployment proceedings. [Docs. 42-8 at 126; 45-14 at 29:45.] Regardless of how Davis characterized the reason for the termination at the unemployment hearing, there is no reasonable basis for concluding that the actual decision makers harbored any improper animus toward Plaintiff or that any other faculty member did.
Simply put, Plaintiff offers no reason in the summary judgment record to believe that any action Furman took against him was the result of any retaliatory animus. The Court thus concludes that Plaintiff has not forecasted evidence that gives rise to a reasonable inference that any action taken toward Plaintiff was in retaliation for any activity protected by Title VII. Accordingly, the undersigned recommends granting Defendants' motion for summary judgment on Plaintiff's retaliation claim.
To the extent that Plaintiff alleges that the treatment he received from Furman University police was somehow retaliatory, he fails to identify forecasted evidence that would support such a theory. For example, he does not identify any evidence suggesting that the police treated him any differently than they treated other terminated Furman employees.
Plaintiff's Defamation Claim
To prove a cause of action for defamation in South Carolina, a plaintiff must show: “(1) a false and defamatory statement was made; (2) the unprivileged statement was published to a third party; (3) the publisher was at fault; and (4) either the statement was actionable irrespective of harm or the publication of the statement caused special harm.” Fleming v. Rose, 567 S.E.2d 857, 860 (S.C. 2002).
Defendants argue that Plaintiff has not identified any defamatory statements made by any Defendant to a third party, let alone forecasted evidence of such statements. [Doc. 42-1 at 32-33.] Defendants also contend that any statements made between agents and associates of Furman were protected by intra-corporate privilege. [Id. at 33-34.] And Defendants maintain that Plaintiff has failed to forecast evidence of any special damages caused by any specific defamatory statement. [Id. at 34-35.]
In opposing summary judgment, Plaintiff appears not to dispute that the individual Defendants Bierly, Knight, Francis-Ratte, and Kaup are entitled to summary judgment, as Plaintiff does not identify any defamatory statement made by them. Accordingly, the Court recommends that summary judgment be granted to the individual Defendants on this cause of action.
Plaintiff opposes summary judgment on the defamation claim as to Furman, however. As possible defamatory statements, Plaintiff identifies the presentation by Furman University police to him of a no-trespass-and-no-contact order and the officers' requirement that he ride in the back of their police vehicle to his home to retrieve Furman's keys and their requiring him to go into his home and retrieve the keys while they waited outside his home before driving him back to his car. [Doc. 45 at 20-21.]
The Court concludes that Plaintiff cannot avoid summary judgment via either of these theories. Regarding the no-trespass-and-no-contact order, Plaintiff has not forecasted any evidence that any false statement was made or that it was published to a third party. As for Plaintiff riding with the campus police and the police waiting outside his home while he retrieved Furman's keys, there also is no evidence of a false and defamatory statement. Plaintiff argues that the actions of the campus police “implied to Plaintiff's neighbors that he had been arrested for the commission of some crime.” [Id. at 21.] While it is true that a mere insinuation may be defamatory, to be so, it must be false and malicious, and the meaning must be plain. Conway v. S.C. Voc. Rehab. Dep't, No. 2:16-cv-3656-DCN-MGB, 2018 WL 2301849, at *5 (D.S.C. Jan. 31, 2018) (granting summary judgment against a plaintiff on a defamation claim when the plaintiff argued that posting his picture at a reception desk with a note to call a manager if he entered the premises was defamatory), Report and Recommendation adopted by 2018 WL 2301848 (D.S.C. Feb. 26, 2018). There has been no forecasted evidence that could give rise to any plain, defamatory meaning from the officers' actions here. Cf. Boykin v. Van Buren Twp., No. 04-72387, 2006 WL 305751 at *14 (E.D. Mich. Feb. 9, 2006) (“Plaintiff cites no authority for the proposition that the mere act of having [p]laintiff in the back of a police car in full view of customers constitutes a defamatory statement.”). The Court therefore recommends that summary judgment be granted to Defendants on Plaintiff's defamation claim.
Professional Misconduct by Plaintiff's Counsel
This Court's Local Civil Rules provide that
“[w]hen misconduct or allegations of misconduct that, as substantiated, would warrant discipline on the part of an attorney admitted to practice before this court shall come to the attention of a judge of this court, . . . and the applicable procedure is not otherwise mandated by these rules, that judge shall petition the chief judge of the district court to (1) refer the matter to the appropriate state disciplinary authority for investigation or prosecution or (2) refer the matter to the United States Attorney or other selected counsel for investigation and the prosecution of a formal disciplinary proceeding or the formulation of such other recommendation as may be appropriate.
Local Civ. Rule 83.I.08 (D.S.C.), RDE Rule V(A); see also Code of Judicial Conduct, Canon 3(B)(6) (“A judge should take appropriate action upon receipt of reliable information indicating the likelihood . . . that a lawyer violated applicable rules of professional conduct.”).
Defendants note in their reply brief that “[r]ecognizing the weaknesses of his arguments, ” Plaintiff's counsel “resorted to grade-school name calling” in his memorandum opposing summary judgment. [Doc. 47 at 2.] Unfortunately, Defendants appear to be correct. Plaintiff's memorandum opposing summary judgment displays a shocking level of unprofessionalism. Throughout the memorandum, counsel engages in name-calling of one male and three female Furman faculty members who criticized Plaintiff, including three of the individual Defendants, dubbing them “Dr. Petty Passive Aggressive Diva, ” “Dr. OCD Controlling Diva, ” “Dr. Clueless Diva, ” and “Dr. Double Agent Mata Hari Diva.” [Doc. 45 at 2.] Incredibly, counsel repeats his use of these unprofessional monikers throughout the memorandum, using the word “diva” more than 40 times, to distracting effect. It appears to the Court that counsel's conduct, at a minimum, violates Rule 4.4 of the Rules of Professional Conduct of Rule 407, SCACR, providing that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” See In re White, 707 S.E.2d 411, 413-14 (S.C. 2011) (holding that lawyer violated Rule 4.4 when he sent a letter “questioning whether [the town manager] has a soul, saying that he has no brain, [and] calling the leadership of the Town pagans and insane and pigheaded” and further noting that “an attorney may not, as a means of gaining a strategic advantage, engage in degrading and insulting conduct that departs from the standards of civility and professionalism required of all attorneys”); see also Local Civ. Rule 83.I.08 (D.S.C.), RDE Rule IV(B) (“The Code of Professional Responsibility adopted by this court is the South Carolina Rules of Professional Conduct (Rule 407 of the South Carolina Appellate Court Rules) adopted by the South Carolina Supreme Court.”). On this basis, the undersigned recommends that the district judge petition the chief judge of this Court to refer the matter of Plaintiff's counsel's possible misconduct to the appropriate state disciplinary authority for investigation or prosecution or (2) refer the matter to the United States Attorney or other selected counsel for investigation and the prosecution of a formal disciplinary proceeding or the formulation of such other recommendation as may be appropriate. See Local Civ. Rule 83.I.08 (D.S.C.), RDE Rule V(A).
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion for summary judgment [Doc. 42] be GRANTED. The undersigned further recommends that the district judge petition the chief judge of this Court to (1) refer the matter of Plaintiff's possible misconduct, discussed herein, to the appropriate state disciplinary authority for investigation or prosecution or (2) refer the matter to the United States Attorney or other selected counsel for investigation and the prosecution of a formal disciplinary proceeding or the formulation of such other recommendation as may be appropriate.
IT IS SO RECOMMENDED.