Opinion
C. A. 20-2055-MGL-SVH
04-07-2022
Joseph Barry Malasky, Plaintiff, v. Ram Jack of South Carolina, Inc. and Scott Erlewine, individually and as owner of Ram Jack of South Carolina, Inc., Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, South Carolina United States Magistrate Judge
In this case, Joseph Barry Malasky (“Plaintiff”) sues his former employer, alleging in part that the former employer discriminated and retaliated against him based on an alleged disability, in that he was scheduled to have surgery, and that he is owed for unpaid wages and repairs made on his work vehicle.
Plaintiff sues Ram Jack of South Carolina, Inc. (“Ram Jack”), and Scott Erlewine (“Erlewine”), individually and as owner of Ram Jack (collectively, “Defendants”), asserting the following five causes of action: (1) violations of the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq. (“ADA”); (2) violations of the South Carolina Payment of Wages Act, SC Code Ann § 4110-10, et seq.; (3) violations of the Fair Labor Standards Act, as amended, 29 U.S.C. § 201, et seq. (“FLSA”); (4) conversion; and (5) unjust enrichment.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendants' motion for partial summary judgment on Plaintiff's ADA, FLSA, and conversion claims. [ECF No. 51]. The motion has been fully briefed [ECF Nos. 56, 57] and is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendants' motion, dismissing Plaintiff's ADA, FLSA, and conversion claims with prejudice.
The summary of the facts is based on evidence submitted by Defendants and taken in the light most favorable to Plaintiff, where he has submitted no evidence in support of his response to the motion. [See ECF No. 56].
Plaintiff was hired by Ram Jack's Regional Manager, Rodney Garrett (“Garrett”), as a sales consultant in June 2017. [ECF No. 51-2 at 5:25-6:6, see also ECF No. 51-3 at 106-107]. In his role as a sales consultant, Plaintiff was responsible for visiting potential customers, both residential and commercial, evaluating foundation problems, making the appropriate recommendation for solutions, completing necessary documentation, delivering a quote to the customer, and then following through on sales. [ECF No. 51-3 at 33:9-16; see also id. at 84-91 (Ram Jack expectations of sales consultant)].
Plaintiff was supervised by Garrett, and they had a good working relationship for most of Plaintiff's time with Ram Jack. Id. at 33:17-18. During the last several months of his employment, however, Garrett states the quality of Plaintiff's work, his sales numbers, his responsiveness, and his overall job performance declined significantly, and Garrett received multiple customer complaints about Plaintiff on various issues, including his poor customer service, unprofessionalism, unsatisfactory work, and nonresponsiveness. [ECF No. 51-4 ¶¶ 13-25].
More specifically, and overlapping somewhat with the complaints discussed by Garrett, the following events occurred: On April 4, 2018, a potential customer emailed, complaining about Plaintiff's unprofessionalism. [ECF No. 51-3 at 94]. On May 23, 2018, Plaintiff received a verbal warning for not supplying a doctor's excuse for being out of work and received two months' probation. Id. at 98. On June 11, 2019, Plaintiff received another verbal warning for allowing his vehicle to idle for hours, in violation of Ram Jack's procedures, and received one month's probation. Id. at 100. On August 5, 2019, a member of the public called about Plaintiff's driving stating, “he was trailing on other cars and switching lanes being careless.” Id. at 102.
On September 24, 2019, another complaint was received by Ram Jack employee Robert Winter (“Winter”) about Plaintiff's driving, and Winter sent the following email to Plaintiff and Garrett, among others:
A gentleman called in with a driving complaint. He said he was on Hwy 78 and had turned on Ladson road and the driving in one of truck (License Plate XXX) was driving erratically (not using turn signals and cutting people off).
It turns out this was Joe Malasky.
I gave him a call and told him that someone had called in a complaint against him. He said he wasn't driving any differently th[en] he normally does, but he was on his phone trying to figure out where he could place an appointment that he had just gotten a call about. (We did receive an email just before I called him regarding placing an appointment on his Calendar for tomorrow.)
I reminded him that he was driving a Billboard and he needed to be conscience of that when he was driving. He said that he would.Id.; see also id. at 42:1-43:14, 48:14-54:6 (Plaintiff's testimony concerning the driving complaints).
Thereafter, on September 27, 2019, a potential customer emailed complaining he had not received a quote from Plaintiff. Id. at 109. On October 18, 2019, another potential customer called, complaining of Plaintiff's unprofessionalism. Id. at 111.
Plaintiff was given multiple opportunities to correct his performance, and Garrett coached him on his job duties. [ECF No. 51-4 at ¶¶ 14, 20-21, 35-36]. When Plaintiff was hired and throughout his employment, Garrett trained Plaintiff on Ram Jack's standard policies and procedures for its sales consultants, including specific protocols on how to conduct client site visits, engage with customers, produce the quote and necessary paperwork, and how to appropriately approach and evaluate a prospective job to produce an accurate and timely quote for the customer. Id. ¶¶ 12-15. Plaintiff failed to improve, however, and he failed to meet Ram Jack's legitimate expectations for a sales consultant. Id. ¶¶ 14-15, 24.
Over the course of multiple weeks, in early to mid-November 2019, Garrett requested to meet with Plaintiff in person to discuss his poor job performance; however, Plaintiff continuously delayed and would not report to the office to meet with Garrett in person. [ECF No. 51-4 at ¶¶ 35-38; see also ECF No. 51-3 at 98:20-25-104:1-15]. Also during November 2019, multiple email exchanges occurred among Plaintiff and others, discussing concerns a client and Ram Jack employees had about an installation. [ECF No. 51-3 at 114-129, ECF No. 51-4 ¶ 24].
During this time, on November 14, 2019, Plaintiff submitted a request to take unpaid leave from November 29, 2019, through December 4, 2019, stating “[m]y nephew that I raised is coming home from military.” [ECF No. 51-3 at 113].
On November 20, 2019, Garrett spoke with Plaintiff via telephone and discussed Plaintiff's unacceptable and unsatisfactory work performance, his failure to abide by Ram Jack's policies and procedures, his non- responsiveness and customer complaints, and his poor and declining sales numbers. [ECF No. 32 ¶ 22, ECF No. 51-4 at ¶¶ 37-44]. Defendants have submitted evidence from Garrett that Plaintiff “did not take the conversation well, ” and said something similar to, “[w]ell, if you don't like how I'm doing my job, then I'll just go ahead and quit.” [ECF No. 51-4 ¶ 39]. Garrett states that, thereafter, he accepted Plaintiff's resignation. Id. ¶ 40.
Garrett states he was not informed of Plaintiff's final diagnosis, that a surgery had been scheduled, the particular type of surgery was needed, or that he needed time off for medical appointments or procedures. [ECF No. 514 ¶¶ 26-30; see also id. ¶ 28 (“I thought he was still getting everything figured out with his doctors, and that he may not even need any procedure or surgery”)].
Plaintiff testified, however, that he verbally told Garrett at some point that he was having surgery in the middle of December, and that shortly after, although Plaintiff could not remember the exact date, Garrett came to Plaintiff's house and informed him that he was fired. [ECF No. 51-3 at 83:1886:7, 99:17-100:2 but see ECF No. 32 ¶ 22 (Plaintiff alleging in his amended complaint that “Plaintiff's employment ended on or about November 25, 2019, which was the day prior to his required surgery”)].
The records shows that on November 24, 2019, a Sunday evening, Plaintiff sent four emails in the span of just a few minutes, all to Garrett, stating as follows:
1. I have two deals that will close tomorrow if that makes any difference. I will get my numbers up. Also have two or three more expected to close before the end of the month.
2. If you'll notice all of my deals seem to come in at the mid month and the end of the month that is because of my sales pitch is designed to have a sense of urgency involved with the sales price I don't have to tell you the rest
3. Whatever happens thanks for saving my life I will forever grateful to you and RamJack
4. If it helps I will take vacation this week or non-paid whatever works best[ECF No. 51-3 at 120-25, see id. at 74:11-24, 71-77:21].
Plaintiff had previously, in September 2019, thanked and praised Garrett and Ram Jack for saving his life for “allowing [him] to get civilian insurance.” [See ECF No. 51-3 at 54:7-56:21, see also id. at 107 (Sept. 25, 2019 email)].
Garrett subsequently packed up Plaintiff's belongings in the office and personally delivered them to Plaintiff at his residence. [ECF No. 51-4 at ¶ 44, ECF No. 51-3 at 98:20-103:7]. Ram Jack also took possession of Plaintiff's assigned work truck, which was so damaged that it could not be driven. [ECF No. 51-3 at 100:3-102:20, see also id. at 51:18-25 (Plaintiff testifying that he was involved in two or three accidents while driving Ram Jack's company vehicle)].
On March 10, 2020, Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) naming Ram Jack and Garrett, but not Erlewine. [See ECF No. 51-3 at 126-27]. In his charge, Plaintiff claimed, in relevant part, that he was discriminated against beginning November 1, 2019, further stating as follows:
I was discriminated and retaliated against on the basis of my disability by supervisor Rodney Garret beginning approximately November 2019. I informed my supervisor that one of the arteries [was] 90% blocked and I would need surgery which would require me to be out of work. I was fired the day before I was scheduled to have surgery with no notice.[See ECF No. 51-3 at 126-27].
Plaintiff's charge does not reference a request for reasonable accommodation. [See ECF No. 51-3 at 126-27].
When asked in his deposition about his charge, Plaintiff testified that, notwithstanding the statements in the charge, the alleged discrimination began prior to November 1, 2019, although he could not recall specifically when. [ECF No. 51-3 at 80:15-81:5]. Plaintiff testified he had verbally informed Garrett about surgery he needed, although he could not remember if it was by phone or in person or any of the specifics of the conversation, but that Garrett never gave him “a hard time about needing a doctor's appointment or needing surgery.” Id. at 83:7-9, 84:12-85:15.
When asked to clarify the specific discrimination that occurred, Plaintiff testified as follows:
Q: Now, go to paragraph 36 [of the complaint], if you would. Does it say that Ram Jack and Mr. Erlewine discriminated against you based on your disability? .... So how did Mr. Erlewine discriminate against you?
A: Well, I don't know if you consider not paying me discrimination. Basically, you know, giving me a hard time about my money. You know, I think that's discrimination .... [And] I was getting all the crap assignments. That's why my numbers went down because I wasn't getting any customers that were viable.Id. at 111:9-112:14.
Plaintiff additionally was asked to clarify the allegations in his charge after he testified that he did not have surgery until mid-December 2019. Plaintiff testified “I think what happened there was that was like-could have been the day after I told them I had to have surgery is what I think it was.” Id. at 98:2-19. Thus, Plaintiff agrees with Defendants that his employment ended late November 2019, although he did not have surgery, a bifemoral bypass, until mid-December. Id. at 58:6-17.
Finally, Plaintiff testified he never requested a reasonable accommodation regarding his alleged disability, Id. at 114:11-22, and he was not terminated for anything related to his health or disability or complaints about such:
Q: So sticking with paragraph 22 of your complaint, it says your employment ended in response to some of your complaints. Tell me what kind of complaints you're talking about.
A: Just my pay and, you know, complaining about me not being able to find out what I'm getting paid ....
Q: Did you complain about anything else or was it all about,
“I'm not getting paid correctly”?
A: Mostly getting paid correctly . . . and the subversion of my attempts to find out how-how much I was getting paid....
Q: Okay. Did you complain to these people that you've mentioned about anything other than how you were getting paid?
A: No, I don't think so.Id. at 104:16-106:19.
II. Discussion
A. Standard on Motion 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
Although Plaintiff refers to “the Code of Laws of South Carolina, § 43-43350, as amended” in his first cause of action regarding his ADA claim, he has not asserted any claim or cause of action for a violation thereunder. [See ECF No. 32 ¶ 36].
To establish a claim of disability discrimination under the ADA, a plaintiff must prove that (1) he has a disability, (2) he is a “qualified individual” for the employment in question, and (3) [his employer] discharged him (or took other adverse employment action) because of his disability. Smith v. CSRA, 12 F.4th 396, 412 (4th Cir. 2021) (citations omitted); see also Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (holding that the ADA requires that a plaintiff's disability be a but-for cause of the adverse employment action). To establish a prima facie case of retaliation under the ADA, Plaintiff must show that: (1) he engaged in a protected activity; (2) the employer took an adverse employment action against him; and (3) a causal connection exists between the adverse employment action and the protected activity. Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 706 (4th Cir. 2001).
The McDonnell Douglas burden-shifting framework applies to discrimination and retaliation claims under the ADA. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015); Anderson v. Discovery Commc'ns, LLC, 517 Fed.Appx. 190, 196 (4th Cir. 2013), as amended (May 3, 2013). Therefore, absent evidence of discrimination or retaliation and where a prima facie case of ADA discrimination or retaliation is established, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the alleged discrimination or retaliation, and the plaintiff bears the burden of showing that reason is pretext.
As Defendants discuss at length in briefing, and not addressed by Plaintiff, Plaintiff has provided no evidence in support of a prima facie case for either disability discrimination or retaliation, nor has he offered any evidence, or even argument, that Defendants' legitimate, non-discriminatory reason for Plaintiff's alleged termination, was pretext. [See ECF No. 51-1 at 7-21, see also ECF No. 56].
To the extent that Plaintiff asserts a claim for failure to accommodate or an ADA claim against Erlewine, such claims fail in that no allegations concerning a failure to accommodate were included in Plaintiff's EEOC charge, nor was Erlewine named. See, e.g., Allen v. Michelin N. Am., Inc. -USA, C/A No. 6:18-791-TMC-KFM, 2018 WL 4346226, at *2 (D.S.C. Aug. 16, 2018) (ADA failure to accommodate claim barred where “EEOC charge alleges only disability discrimination in violation of the ADA”), report and recommendation adopted sub nom. Allen v. Michelin N. Am., Inc., C/A No. 6:18-00791-TMC, 2018 WL 4334899 (D.S.C. Sept. 11, 2018); Cox v. Nucor Corp., C/A No. 2:16-03073-PMD-MGB, 2017 WL 9250339, at *4 (D.S.C. June 14, 2017), report and recommendation adopted, C/A No. 2:16-3073-PMD, 2017 WL 3599587 (D.S.C. Aug. 22, 2017) (same); Brooks-Mills v. Lexington Med. Ctr., C/A No. 3:17-01849-JMC, 2020 WL 5810518, at *10 (D.S.C. Sept. 30, 2020) (“Specifically, the court observes that any claims against Augsburger alleging violation of Title VII, the ADA, or the ADEA fail because he was not named in the Charge of Discrimination.”).
For efficiency, the court focuses on the issue of pretext. At the time of his alleged termination, Plaintiff was failing to meet the legitimate expectations of his position. His work performance had steadily declined, and he had received several written disciplinary actions, as well as multiple complaints about his driving Ram Jack's truck. Plaintiff had also received several complaints due to his failure to provide appropriate documentation, including quotes to his prospective clients. Several of Plaintiff's potential customers had called to complain about his performance, the job he did at their home, his unprofessional behavior, and his unreliability and unresponsiveness. Plaintiff further testified that he was involved in two to three motor vehicle accidents while driving Ram Jack's company vehicle, rendering it inoperable prior to the end of his employment. Plaintiff offers no evidence or argument that these reasons for his alleged termination are pretext.
Indeed, Plaintiff fails to address any argument made or evidence presented by Defendants as to his ADA claims. [See ECF No. 56]. Based on a review of the record evidence, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's ADA claims, dismissing them with prejudice.
Given the recommendation above, it is unnecessary to address Defendants' additional arguments that (1) Plaintiff's ADA claim fails because the same person both hired and fired him, [see ECF No. 51-1 at 16 (citing Proud v. Stone, 945 F.2d 796 (4th Cir. 1991) (holding that “in cases where the hirer and the firer are the same individual . . . a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer”))], and (2) Plaintiff is not entitled to front pay or back pay for his ADA claim. Id. at 25-27.
2. FLSA Claim
The FLSA “mandates an hourly minimum wage due to all employees and generally requires employers to pay their employees one and one-half times their normal hourly rate for all hours worked in excess of a 40-hour week.” Balducci v. Chesterfield Cty., Virginia, 187 F.3d 628 (4th Cir. 1999) (citing 29 U.S.C. § 206, 29 U.S.C. § 207(a)(1)).
Plaintiff has not alleged, argued, or provided evidence that he was not paid minimum wage or overtime pay. Parker v. Magna Innertech-Spartanburg, C/A No. 609-773-HFF-WMC, 2009 WL 5178016, at *3 (D.S.C. Dec. 8, 2009) (recommending dismissal of FLSA claim where, “other than providing the citation to the statute, ” the plaintiff made “no allegations of a violation of the FLSA in her complaint, ” report and recommendation adopted in relevant part, C/A No. 609-773-HFF-WMC, 2009 WL 5178014 (D.S.C. Dec. 29, 2009).
In addition, Plaintiff fails to assert a prima facie claim of FLSA retaliation, which requires establishing (1) that he engaged in an activity protected by the FLSA; (2) that he suffered an adverse action by the employer subsequent or contemporaneous with his protected activity; and (3) that a causal connection exists between his protected activity and the adverse employment action. Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008).
Plaintiff did not engage in any type of FLSA-protected activity. Generally, a plaintiff engages in such activity when she raises a complaint that is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Minor v. Bostwick Lab'ys, Inc., 669 F.3d 428, 439 (4th Cir. 2012) (citing Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011)).
In his response to the motion for summary judgment, Plaintiff states only as follows as to his FLSA claims:
Plaintiff was only paid commission during his employment with Defendants. There is no evidence that Plaintiff was even paid minimum wage or overtime by Defendants for the jobs in question. How can the Plaintiff allege or produce evidence of payment of minimum wage or overtime when Plaintiff never received anything that showed what he was paid or what he was paid for on the contracts in question?[ECF No. 56 at 3].
Plaintiff's position is unclear. To the extent he is arguing that Defendants have failed to produce relevant documentation regarding Plaintiff's compensation, the undersigned notes that discovery in this case has been protracted, as it was originally ordered to close on March 17, 2021, but instead extended to January 24, 2022, [ECF Nos. 13, 50], and Plaintiff filed no motion to compel during the relevant period.
The only motions to compel on record were both submitted by Defendants and granted by the court directing Plaintiff to respond to Defendants' discovery requests. [See ECF Nos. 43, 44].
Plaintiff has failed to address the arguments made and evidence offered by Defendants as to this claim and has failed to allege, argue, or offer any evidence of an FLSA violation. Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to this claim with prejudice.
3. Conversion Claim
Plaintiff's conversion claim fails as a matter of law. Where a “conversion claim is based on Defendants' alleged failure to pay Plaintiff her wages, . . . absent allegations of affirmative misconduct, ” this failure “is indistinguishable from the mere failure to pay a debt and therefore not actionable as a tort under South Carolina law.” See, e.g., Reed v. GrandSouth Bank, C/A No. 2:21-00348-MBS, 2021 WL 4901688, at *4 (D.S.C. Oct. 21, 2021) (citing Owens v. Andrews Bank & Trust Co., 220 S.E.2d 116, 119-20 (S.C. 1975)).
Plaintiff responds as to this claim as follows:
Plaintiff is claiming conversion, as the Defendants required Plaintiff to pay for the damages to the company vehicle, which they did not have an agreement that Plaintiff would cover any cost for repairs, especially when the vehicle was insured. The Defendants should have filed a claim with their insurance company and had the company vehicle repaired through them, instead of requiring the Plaintiff to pay for damages to the company vehicle, when the incident was not the Plaintiff's fault.[ECF No. 56 at 3-4].
Plaintiff fails to address any argument made or evidence presented by Defendants in their motion for summary judgment as to Plaintiff's conversion claims and argues only that Defendants owe him a debt for vehicle repairs. However, “there can be no conversion where this is a mere obligation to pay a debt.” Owens, 234 S.E.2d at 218.
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's conversion claim with prejudice.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion for partial summary judgment, dismissing Plaintiff's ADA, FLSA, and conversion claims with prejudice. [ECF No. 51].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).