Opinion
Civil Action 9:21-03879-RMG-MGB
04-25-2023
Johnnie Millen, Plaintiff, v. AMIkids Beaufort, Inc., Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this action alleging retaliation and interference in violation of the Family and Medical Leave Act (“FMLA”), and retaliatory discharge in violation of the South Carolina Workers' Compensation Law (“SCWCL”). (Dkt. No. 1-1 at 3-6.)This matter is before the Court upon Defendant's Motion for Summary Judgment (Dkt. No. 18). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that Defendant's Motion for Summary Judgment (Dkt. No. 18) be granted.
This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.
FACTUAL SUMMARY
This action arises from the termination of Plaintiff's employment with Defendant. (Dkt. No. 1-1 at 3-6.) Plaintiff began working for Defendant, a non-profit organization serving at-risk youth, as an instructor in July of 2017. (Dkt. No. 1-1 at 3; Dkt. No. 18-1 at 2; Dkt. No. 21 at 1.) In this role, Plaintiff was responsible for teaching classes and facilitating activities for students. (Dkt. No. 18-1 at 3; Dkt. No. 18-2 at 4.)
On September 4, 2020, Plaintiff was overseeing a group of students during their recreational time. (Dkt. No. 1-1 at 3; Dkt. No. 18-1 at 4; Dkt. No. 21 at 2.) According to Plaintiff, he was supposed to have another staff member-Guy Henry-watching the students with him; however, Guy was not there. (Dkt. No. 18-2 at 10.) Because he was alone with the students, the students could not participate in certain activities. (Id.) One of the students became frustrated by this and began “popping” Plaintiff with a towel. (Id.) Plaintiff claims that this student “got up in [his] face” and “was saying a few things.” (Id. at 11.) By that time, Guy had come to help Plaintiff supervise his group. (Id.) Plaintiff states that Guy “took [the student who was in Plaintiff's face] off” and Plaintiff thought Guy “was going to keep up with him.” (Id.) According to Plaintiff, “the next thing [he knew] the kid ha[d] charged up behind [him] . . . and when [Plaintiff] turned around he cold-cocked [Plaintiff] in [the] eye.” (Id. at 11-12.) Plaintiff suffered injuries and was treated at the hospital. (Dkt. No. 1-1 at 3; Dkt. No. 18-1 at 8; Dkt. No. 21 at 2.)
The incident was investigated by the Beaufort County Sheriff's Office (the “Sheriff's Office”), Defendant, and the South Carolina Department of Social Services (“DSS”). (Dkt. No. 18-1 at 4; Dkt. No. 18-5; Dkt. No. 18-7; Dkt. No. 18-10; Dkt. No. 21 at 4.) The investigative reports from all three organizations indicate that Plaintiff cursed at the student who attacked him. (Dkt. Nos. 18-5, 18-7, 18-10.) The reports also describe that Plaintiff verbally threatened the student who punched him, with one witness describing that Plaintiff told the student he would “beat his ass.” (Dkt. No. 18-1 at 5-8; Dkt. No. 18-5; Dkt. No. 18-7; Dkt. No. 18-10.)
Plaintiff initiated a workers' compensation claim related to the September 4 incident, which Defendant denied. (Dkt. No. 1-1 at 4; Dkt. No. 18-1 at 8; Dkt. No. 21 at 2.) On or about October 1, 2020, Plaintiff was diagnosed with Atrial Fibrillation and was told that he needed surgery.(Dkt. No. 1-1 at 4; Dkt. No. 21 at 2.) As such, he requested FMLA paperwork to begin the process of having his leave approved. (Dkt. No. 1-1 at 4; Dkt. No. 18-1 at 8; Dkt. No. 21 at 2.) Plaintiff's FMLA paperwork is dated October 7, 2020, and indicates that he informed Defendant of his condition and need for FMLA leave on October 5, 2020. (Dkt. No. 21-3 at 1.)
Plaintiff's Atrial Fibrillation is not related to the September 4 incident. (See Dkt. No. 18-2 at 39-40.)
On October 13, 2020, Defendant informed Plaintiff by letter that his employment would be terminated effective that same day. (Dkt. No. 1-1 at 4; Dkt. No. 18-1 at 8; Dkt. No. 21 at 2.) Plaintiff's termination letter explained that he was terminated for two reasons. (Dkt. No. 18-2 at 147.) First, the letter stated that Plaintiff “responded inappropriately to the Regional Director of Education regarding coaching on providing required student documentation” on August 28, 2020. (Id.) The letter also stated that “[j]ust over a week later, on September 4, 2020, the police determined that [Plaintiff] instigated a physical altercation with a youth.” (Id.) The letter concluded by explaining that Plaintiff's “actions were in violation of the Standards of Conduct [of Defendant] as it pertains to interactions with program youth.” (Id.)
Plaintiff believes that he was actually terminated “in direct retaliation for initiating a workers' compensation claim and for attempting to take leave to which he was entitled under the [FMLA].” (Dkt. No. 1-1 at 4.) As such, he filed the instant lawsuit alleging retaliatory discharge in violation of the SCWCL, and retaliation in violation of the FMLA. (Dkt. No. 1-1 at 4-5.)
PROCEDURAL HISTORY
Plaintiff originally filed this civil action in the South Carolina Court of Common Pleas on August 26, 2021. (Dkt. No. 1.) Defendant removed the case to the United States District Court for the District of South Carolina on November 30, 2021. (Id.) On October 7, 2022, Defendant filed a Motion for Summary Judgment. (Dkt. No. 18.) Plaintiff requested and received an extension of time to file his response to Defendant's motion. (Dkt. Nos. 19, 20.) On October 28, 2022, Plaintiff filed his response. (Dkt. No. 21.) Defendant then requested and received an extension of time to file its reply. (Dkt. Nos. 22, 23.) On November 14, 2022, Defendant replied to Plaintiff's response. (Dkt. No. 26.) As such, the motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact, and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In ruling on a motion for summary judgment, “the nonmoving party's evidence ‘is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). “Although the Court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (citing Anderson, 477 U.S. at 252; Stone v. Liberty Mutual Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
DISCUSSION
I. FMLA Claims
The FMLA prohibits an employer from interfering with, restraining, or denying an employee's exercise or attempt to exercise his rights under the act. 29 U.S.C. § 2615(a)(1). It also prohibits employers from discharging or otherwise discriminating or retaliating against any individual in response to that individual's opposition of a practice made unlawful by the act. Id. § 2615(a)(2). The FMLA thus creates two types of claims: (1) interference claims and (2) retaliation claims. See Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 633 n. 3 (D.S.C. 2010). Here, Plaintiff's Complaint alleges only an FMLA retaliation claim. (Dkt. No. 1-1 at 3-6.) However, both parties addressed an FMLA interference claim in their briefings. (See generally Dkt. Nos. 18-1, 21.) The undersigned has therefore considered both types of claims, in an abundance of caution.
For the reasons set forth below, the undersigned finds that no genuine issue of material fact exists with respect to Plaintiff's FMLA interference and retaliation claims, and that such claims fail as a matter of law. The undersigned therefore recommends that Defendant's Motion for Summary Judgment (Dkt. No. 18) be GRANTED.
A. Retaliation
To establish an FMLA retaliation claim, the plaintiff must show that: (1) he engaged in protected activity; (2) his employer took an adverse action against him; and (3) the adverse action was causally connected to his protected activity. Hannah P. v. Coats, 916 F.3d 327, 347 (4th Cir. 2019); see also Yashenko, 446 F.3d at 551. FMLA retaliation claims are subject to the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973). See Roberts v. Gestamp W. Virginia, LLC, 45 F.4th 726, 738 (4th Cir. 2022). In other words, a plaintiff who lacks direct evidence of retaliatory intent must produce “sufficient evidence to establish a prima facie case that the elements of retaliation are satisfied.” Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016) (referencing McDonnell Douglas, 411 U.S. at 802). If the plaintiff can so establish, the defendant then bears the burden to rebut the prima facie presumption of retaliation and provide a legitimate, nonretaliatory reason for the alleged adverse action. See Hannah P., 916 F.3d at 347 (referencing Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 429 (4th Cir. 2015); see also Sharif, 841 F.3d at 203 (referencing McDonnell Douglas, 411 U.S. at 802; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-55 (1981)). “If the employer meets this burden, the presumption of retaliation is dissolved and the plaintiff resumes the burden of persuading the factfinder that the employer's proffered explanation is merely a pretext for [retaliation].” Sharif, 841 F.3d at 203.
The first two elements of Plaintiff's prima facie case of retaliation are undisputed. (See generally Dkt. Nos. 18-1, 21, 26.) However, Defendant argues that it is entitled to summary judgment on such claim because Plaintiff cannot establish causation. (Dkt. No. 18-1 at 11.) Defendant argues that, even if Plaintiff could establish causation, he also cannot show that Defendant's legitimate, nonretaliatory reason for terminating him is pretextual. (Id. at 12.) In response, Plaintiff contends that the close temporal relationship between his request for FMLA paperwork and his termination can, on its own, establish causation. (Dkt. No. 21 at 4.) Plaintiff further contends that Defendant's legitimate, nonretaliatory reason for terminating him is contradicted by the testimony of Matthew Kingdom, Defendant's Executive Director, and record evidence indicating that Plaintiff did not instigate the September 4, 2020 altercation. (Id. at 4-5.) As such, Plaintiff contends that genuine issues of material fact exist as to whether Defendant's reason for terminating him was pretextual, and that Defendant's Motion for Summary Judgment on his FMLA retaliation claim should therefore be denied. (Id. at 5.) The undersigned considers these arguments, below.
1. Causation
Plaintiff is correct that temporal proximity alone may support a reasonable inference of causation for purposes of his prima facie case of retaliation. (Id. at 4.) Indeed, “while evidence as to [] closeness in time ‘far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality.'” Yashenko, 446 F.3d at 551 (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)). Here, Plaintiff applied for FMLA leave on October 7, 2020, and was terminated on October 13, 2020-just five days later. (Dkt. No. 21 at 4.) This timing is undisputed. (See generally Dkt. Nos. 18-1, 21, 21-3, 26.) Thus, the record clearly shows that Plaintiff's termination closely followed his application for FMLA leave. Plaintiff has therefore established the third prong of his prima facie case. See Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 192 (4th Cir. 2017) (finding that termination of plaintiff's employment less than six weeks after he returned from leave satisfied the causation requirement of his prima facie case).
2. Pretext
Nonetheless, Defendant is entitled to summary judgment on this claim because Plaintiff cannot show pretext. Defendant has proffered a legitimate, nonretaliatory reason for terminating Plaintiff, explaining that he was terminated “because of his misconduct during both an August 28, 2020 meeting with upper management and his misconduct relating to the September 4, 2020 incident.” (Dkt. No. 18-1 at 11.) Defendant further clarifies that Plaintiff “did not simply instigate an altercation and curse at an AMIkids minor and fail to de-escalate the altercation with the minor.... [i]nstead, he doubled down on his misbehavior, treating law enforcement disrespectfully when the Sheriff's Office performed its investigation.” (Id.) As for the August 28, 2020 incident, Defendant contends that Plaintiff “was meeting with Director of Education Margie Valy, became upset, used profanity towards her.” (Id. at 4.) Defendant claims that Plaintiff's pattern of “troubling behavior” led to his discharge, not his request for FMLA leave. (Id. at 1; Dkt. No. 26 at 3.)
In support of his contention that Defendant's reason for terminating him was pretextual, Plaintiff asserts that record evidence contradicts Defendant's arguments. (Dkt. No. 21 at 4.) Specifically, Plaintiff asserts that Defendant's argument relating to the August 28, 2020 incident “should be given no weight” because Defendant's Executive Director, Matthew Kingdom, “testified that he did not intend to terminate Mr. Millen's employment as a result of the August 28[] ‘incident' and that as of September 3, 2020, Mr. Millen was not being considered for termination.” (Id.)
The undersigned finds this argument unconvincing. Indeed, the referenced testimony does not actually contradict Defendant's proffered reason for firing Plaintiff. (Dkt. No. 21 at 4; Dkt. No. 21-7 at 5.) As noted, Defendant contends that Plaintiff's pattern of inappropriate behavior, as evidenced by the August 28, 2020 incident and the September 4, 2020 incident, led to his termination. (Dkt. Nos. 18-1, 26.) The fact that Defendant had not planned to terminate Plaintiff after the first instance in which he displayed poor behavior does not negate that Defendant later concluded that Plaintiff's repeated displays of poor behavior warranted termination.
Plaintiff also asserts that Defendant's contention that he was terminated because of his behavior during the September 4, 2020 incident is unsupported by the record because: (1) “there was not enough evidence to charge Mr. Millen with a crime after consideration of all statements collected by the Sheriff's Office”; (2) DSS ultimately found that Plaintiff did not abuse or neglect a minor child; and (3) Plaintiff's co-worker, Olatunji Adejola, provided an affidavit stating that Plaintiff did not use profanity or instigate the altercation. (Id. at 5.) However, this evidence fails to raise a genuine issue of material fact as to whether Defendant believed that Plaintiff's conduct during the September 4, 2020 incident was a sufficient reason for termination. (Dkt. No. 21 at 4-5; Dkt. Nos. 21-2, 21-4, 21-6, 21-8.)
The evidence to which Plaintiff points shows that Plaintiff was not charged with a crime and that he was initially placed on, but then removed from, the South Carolina Central Registry of Child Abuse and Neglect (the “Registry”) by DSS. (See generally Dkt. Nos. 21-4, 21-6, 21-8.) The affidavit from Plaintiff's co-worker, Olatunji Adejola, states, in relevant part, that Adejola worked the same shift as Plaintiff on September 4, 2020 and was “communicating with him over the company's Walkie Talkie at the time of the incident.” (Dkt. No. 21-2 at 1.) The affidavit further states:
I heard Mr. Millen call for help over the Walkie Talkie .... Once the student hit Mr. Millen, I lost communication with him. At no point did I hear Mr. Millen use profanity toward the student or anyone else and, based on my observations over the Walkie Talkie, he did not instigate the altercation.(Id.)
First, the fact that Plaintiff was not charged with a crime and that Plaintiff was ultimately removed from the Registry do not indicate that Plaintiff was absolved of wrongdoing, as Plaintiff contends. (Dkt. No. 21 at 4.) In fact, the Sheriff's Office concluded “Millen instigated the assault. Due to several independent interviews saying Millen was aggressive towards [the student] it was determined [the student] feared for his safety and acted in self-defense.” (Dkt. No. 21-8 at 6.) Nonetheless, no charges were brought. (Id.)
As for Plaintiff's placement on the Registry, the record reflects that Plaintiff was removed only after he appealed DSS's decision. (Dkt. No. 21-6 at 1.) DSS then reviewed its investigation of the September 4 incident and concluded that “the case decision is not supported by a preponderance of the evidence and the decision is overturned.” (Id.) (emphasis added.) Again, this evidence does not show that Plaintiff was cleared of any wrongdoing; rather, it shows that there was not a preponderance of evidence proving that Plaintiff abused or neglected a child. (Id.)
Regardless, Defendant was not required to retain Plaintiff simply because he had not violated the law and had not abused or neglected a minor. Indeed, these are bare minimum standards. The record reflects that Defendant has its own code of conduct, which outlines higher expectations of its employees. (Dkt. No. 18-2 at 55-147.) Plaintiff does not dispute that he violated this code of conduct. (See generally Dkt. No. 21.)
Turning to the affidavit from Plaintiff's co-worker, this evidence also does not raise a genuine issue of material fact as to pretext. (Dkt. No. 21-2 at 1.) It is clear that Plaintiff disagrees with Defendant's finding that his actions on September 4, 2020 were inappropriate, and he attempts to use this affidavit to support his theory that they were not. (See generally Dkt. Nos. 21, 21-2.) However, a plain reading of the affidavit shows that the affiant was not present during the September 4 altercation. (Dkt. No. 21-2 at 1.) The affidavit specifically states that the affiant “lost communication with Plaintiff” and then states that he “did [not] hear Mr. Millen use profanity.” (Id.) The affiant states that his conclusion that Plaintiff did not instigate the altercation arises from his “observations over the Walkie Talkie.” (Id.) Thus, this affidavit-which is based on Walkie Talkie communications that Plaintiff could initiate and terminate at his discretion-does not establish that Plaintiff certainly refrained from using profanity and/or was not the instigator on September 4. (Id.) Even construing this evidence in the light most favorable to Plaintiff, his Walkie Talkie communications with Adejola do not paint a definitive picture of the events underlying the September 4 incident such that Defendant's interpretation of Plaintiff's conduct is unreasonable. (Id.)
Further, the observations of Plaintiff's co-worker have no bearing on whether Defendant reasonably believed that Plaintiff's conduct on September 4 warranted termination. In analyzing Plaintiff's FMLA retaliation claim, the Court is tasked with determining whether Defendant's reason for firing Plaintiff-his pattern of inappropriate behavior-was pretext for retaliation. To make this determination, the Court must look to Defendant's reasonable beliefs about Plaintiff's conduct. See Holland v. Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007) (“It is the perception of the decisionmaker which is relevant.”); see also Azimi v. Jordan's Meats, Inc., 456 F.3d 228, 246 (1st Cir. 2006) (“In assessing pretext, a court's focus must be on the perception of the decisionmaker, that is, whether the employer believed its stated reason to be credible.” (internal quotation marks omitted)).
Here, undisputed evidence establishes that Defendant honestly believed Plaintiff's actions were inappropriate and warranted discharge. (Dkt. Nos. 18-3, 18-5, 18-6, 18-7, 18-8.) Indeed, Defendant's depiction of Plaintiff's conduct resulted from multiple investigations into the incident. (Dkt. Nos. 18-3, 18-5, 18-6, 18-7, 18-8.) Defendant not only conducted its own investigation, but also reviewed findings from the Sheriff's Office before concluding that the September 4 incident supported a pattern of troubling behavior from Plaintiff. (Dkt. No. 18-1 at 9, 11; Dkt. No. 21-5 at 1); see Sharif, 841 F.3d at 206 (explaining that “‘the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.'” (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998))).
The undersigned also notes that Defendant's interpretation of Plaintiff's conduct is consistent throughout the record, Defendant's briefs, and Plaintiff's termination letter, which tends to suggest that Defendant's reason for terminating Plaintiff is not pretextual. (Dkt. Nos. 18, 18-3, 18-7, 18-8, 21-5.)
Moreover, the record is devoid of any evidence beyond temporal proximity and Plaintiff's own speculative beliefs connecting Plaintiff's request for FMLA leave to his termination. See Dockins v. Benchmark Commc'ns, 176 F.3d 745, 749 (4th Cir. 1999) (“[A] plaintiff's own assertions of discrimination in and of themselves are insufficient to counter substantial evidence of legitimate non-discriminatory reasons for a discharge.”); see also Yashenko, 446 F.3d at 551 (explaining that evidence of close temporal proximity does not conclusively establish a causation). In fact, Plaintiff admits that no one employed by Defendant ever made negative comments to him about his FMLA request. (Dkt. No. 18-1 at 47-48.) As such, no reasonable juror could conclude that Defendant's reasons for terminating Plaintiff were pretextual. See, e.g., Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 304 (4th Cir. 2016) (“The FMLA does not prevent an employer from terminating an employee for poor performance, misconduct, or insubordinate behavior.”); Calhoun v. Dep't. of Labor, 576 F.3d 201, 214 (4th Cir. 2009) (holding failure to follow supervisor's instructions was insubordinate behavior that amounted to a legitimate, nonretaliatory reason for adverse employment action); Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972, 977 (8th Cir. 2005) (“The FMLA simply does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had the employee not been on FMLA leave.”).
Based on the foregoing, the undersigned recommends that Defendant's Motion for Summary Judgment be GRANTED as to Plaintiff's FMLA retaliation claim.
B. Interference
To establish an FMLA interference claim, the plaintiff must show that: (1) he was entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) the interference caused harm. See Roberts, 45 F.4th at 732. If the plaintiff cannot show he was prejudiced by the employer's interference, the FMLA does not provide relief. Id. In other words, “an employer may avoid liability if it shows it would have taken the contested adverse employment action regardless of the employee's FMLA leave” or leave request. Id. (referencing Yashenko, 446 F.3d at 546).
Here, Plaintiff's FMLA interference claim fails because he cannot show that he was prejudiced by Defendant's interference. It is undisputed that Plaintiff requested FMLA leave to which he was entitled, and that he was fired before he could exhaust that leave. (See generally Dkt. Nos. 18-1, 21, 26.) However, as described in greater detail above, Defendant has proffered a legitimate reason for terminating Plaintiff exclusive of his request for leave. (See supra at 8-13.) Specifically, Plaintiff exhibited a pattern of troubling behavior that violated Defendant's standards of conduct. (Id.)
Plaintiff does not raise a genuine issue of material fact with respect to whether Defendant's reason for terminating him was untrue or pretextual, and he has provided the Court with no evidence connecting his FMLA leave request to his termination. As noted, Plaintiff admits that no one employed by Defendant ever made negative comments about his FMLA request. (Dkt. No. 18-1 at 47-48.) To the extent Plaintiff alleges that the affidavit from his co-worker, Olatunji Adejola, provides “circumstantial evidence of Defendant's interference with employees' FMLA rights,” this evidence-even when construed in the light most favorable to Plaintiff-does not raise a genuine issue of material fact precluding summary judgment on Plaintiff's interference claim. (Dkt. No. 21 at 6.) The affidavit states, in relevant part:
I have a serious medical condition that required me to be out of work for a period of time. I asked to take FMLA three times and all three times it was denied, even though I was eligible.... Based on my experience and observations as an employee, AMIKids has a pattern of not providing FMLA leave to employees who need and should be allowed to take it.(Dkt. No. 21-1 at 1.)
First, this affidavit is based solely upon Adejola's speculative belief that he was eligible for FMLA leave and does not contain factual support for such belief. (Id.) For example, the affidavit does not address whether Adejola worked the requisite amount of time to be eligible for FMLA leave, nor whether he submitted proper paperwork and/or completed it correctly. (Id.) Regardless, even assuming that Adejola was improperly denied FMLA leave, Defendant's denial of Adejola's leave has no bearing on whether Defendant unlawfully interfered with Plaintiff's FMLA leave. Indeed, evidence that Defendant denied one other employee's leave requests does not allow the Court to reasonably infer that Defendant would have continued to employ Plaintiff if he had not requested or taken leave-especially when considering the plethora of record evidence demonstrating that Defendant terminated Plaintiff for a legitimate, nonretaliatory reason. (See supra at 8-13.) Further, Adejola's speculative belief that Defendant has a pattern of denying FMLA leave, without more, is simply insufficient to establish a genuine issue of material fact. See Dash, 731 F.3d at 311 (“Although the Court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.”). Thus, Plaintiff has failed to raise a genuine issue of material fact as to whether he was prejudiced by Defendant's interference, and the undersigned therefore recommends that Defendant's Motion for Summary Judgment be GRANTED as to Plaintiff's FMLA interference claim.
II. Workers' Compensation Retaliation
In South Carolina, employers are prohibited from discharging or demoting an employee because that employee has “instituted or caused to be instituted, in good faith, any proceeding under the South Carolina Workers' Compensation Law.” S.C. Code § 411-80. “In order to prove a claim under § 41-1-80, a plaintiff must establish three elements: 1) institution of workers' compensation proceedings, 2) discharge or demotion, and 3) a causal connection between the first two elements.” Hinton v. Designer Ensembles, Inc., 540 S.E.2d 94, 97 (S.C. 2000) (citing Hines v. United Parcel Serv., Inc., 736 F.Supp. 675 (D.S.C. 1990)). The employee bears the burden of proof for each element. S.C. Code Ann. § 41-1-80.
Only the third element of Plaintiff's workers' compensation retaliation claim is at issue here. (See generally Dkt. Nos. 18-1, 21, 26.) Specifically, Defendant argues that it is entitled to summary judgment on this claim because Plaintiff has failed to raise a genuine issue of material fact as to whether his workers' compensation claim was the cause of his termination. (Dkt. No. 18-1 at 14-15.) In response, Plaintiff asserts that the record contains: “(1) evidence of [a] close connection in time between the institution of his workers' compensation claim and his termination; (2) evidence that his workers' compensation claim was unjustifiably denied; (3) evidence that Defendant [] terminated other individuals shortly after instituting a workers' compensation claim; and (4) testimony from [Defendant's] Executive Director suggesting that but for Plaintiff's workers' compensation injury he would not have been terminated.” (Dkt. No. 21 at 7-8.) Plaintiff asserts that this evidence “[a]t the very least [] has created a genuine issue of material fact as to whether Plaintiff's institution of his workers' compensation claim is causally linked to his termination.” (Id. at 8.) For the reasons set forth below, the undersigned disagrees.
To establish causation under the SCWCL, Plaintiff must show that he would not have been terminated but for the filing of his workers' compensation claim. Hinton, 540 S.E.2d at 97. “If the employer articulates a legitimate, nonretaliatory reason for the termination, the proximity in time between the work-related injury and the termination is not sufficient evidence to carry the employee's burden of proving a causal connection.” Id. As the Supreme Court of South Carolina has explained,
[T]he ultimate burden of persuading the trier of fact that employer retaliatorily discharged the employee for exercising statutory rights under the Act remains at all times with the employee. The burden of persuasion never shifts, and the employee bears the burden of persuasion that the reason given for termination was pretextual.... The employee may succeed in this, either directly by persuading the court that the discharge was significantly motivated by retaliation for her exercise of statutory rights, or indirectly by showing that the employer's proffered explanation is unworthy of credence.Wallace v. Milliken & Co., 406 S.E.2d 358, 360 (S.C. 1991) (emphasis in original) (citation omitted).
Here, Defendant has proffered a legitimate, nonretaliatory reason for terminating Plaintiff and Plaintiff has failed to show that this reason is pretextual or unworthy of credence. (See supra at 8-13.) The evidence to which Plaintiff points in support of his workers' compensation retaliation claim does not change this finding. For example, Plaintiff asserts that the record contains evidence that his workers' compensation claim was unjustifiably denied. (Dkt. No. 21 at 7.) However, the evidence to which Plaintiff refers reflects only Plaintiff's speculation as to why Defendant denied his workers' compensation claim. (See Dkt. No. 21-1 at 6.)
Similarly, the evidence “that Defendant has terminated other individuals shortly after instituting a workers' compensation claim” is insufficient to create a genuine issue of fact. (Dkt. No. 21 at 7; Dkt. No. 21-2 at 1.) First, this evidence-the affidavit from Adejola-is based upon unsupported assertions and conclusions. (Dkt. No. 21-2 at 1.) Regardless, even when construing the affidavit in the light most favorable to Plaintiff, it shows only that Adejola filed his own workers' compensation claim and was fired “shortly thereafter.” (Id.) Contrary to Plaintiff's assertions, one other instance of an employee being terminated after he filed a workers' compensation claim does not raise a reasonable inference of a pattern or practice of denying workers' compensation claims. (Dkt. No. 21 at 7.) Further, the record reflects that Adejola was terminated for “stealing time” after his dishonest conduct was confirmed through an internal investigation. (Dkt. No. 26-1 at 3.)
Plaintiff's contention that he was retaliatorily discharged after filing his workers' compensation claim is further undermined by the fact that he previously filed workers' compensation claims in 2018 and 2019 without any negative or retaliatory consequences. (Dkt. No. 18-1 at 3-4.) Indeed, a plaintiff's history of filing workers' compensation claims “weakens any inference of retaliation.” Allen v. Michelin N. Am., Inc., No. 6:18-cv-791-TMC-KFM, 2020 WL 7647539, at *17 (D.S.C. Oct. 22, 2020), adopted in relevant part, 2020 WL 7332907 (D.S.C. Dec. 14, 2020); see also Aughtry v. Richland/Lexington Sch. Dist. 5, No. 3:07-cv-1892-CMC-PJG, 2009 WL 2257 615 (D.S.C. July 29, 2009) (finding that the absence of any negative repercussions for her earlier filing of one or more workers' compensation claims weakened any link between the plaintiff's latest claim and her termination from employment).
Plaintiff also admitted that no one employed by Defendant made negative comments about his 2020 workers' compensation claim. (Dkt. No. 21-1 at 6.)
As for Plaintiff's contention that Defendant's Executive Director, Matthew Kingdom, testified that Plaintiff would not have been terminated if not for his workers' compensation injury, this contention is simply incorrect. (Dkt. No. 21 at 7-8.) Kingdom was asked whether Plaintiff would still be employed if the September 4, 2020 incident had not occurred. (Dkt. No. 21-7 at 8.) Based on the testimony in the record, Kingdom said nothing about Plaintiff's injury leading to his termination. (See generally Dkt. Nos. 18-3, 21-7, 26-1.) Finally, the proximity between Plaintiff's workers' compensation claim and termination is insufficient to carry his burden of proving a causal connection where, as here, the defendant has articulated a legitimate, nonretaliatory reason for terminating the plaintiff's employment. Hinton, 540 S.E.2d at 97.
In light of the foregoing, Plaintiff has failed to raise a genuine issue of material fact as to whether his workers' compensation claim was the but for cause of his termination. As such, Defendant is entitled to summary judgment on this claim and its Motion for Summary Judgment should be GRANTED.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment (Dkt. No. 18.) be GRANTED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).