Opinion
CIVIL NO. 4:20cv63
2021-07-13
Nicole NEWCOMB, Plaintiff, v. CITY OF NEWPORT NEWS, Defendant.
James Richard Theuer, James R. Theuer, PLLC, Norfolk, VA, for Plaintiff. James Arthur Cales, III, Brittany Ashley McGill, Furniss Davis Rashkind & Saunders PC, Norfolk, VA, for Defendant.
James Richard Theuer, James R. Theuer, PLLC, Norfolk, VA, for Plaintiff.
James Arthur Cales, III, Brittany Ashley McGill, Furniss Davis Rashkind & Saunders PC, Norfolk, VA, for Defendant.
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Defendant's Motion for Summary Judgment, filed on January 5, 2021. ECF No. 20. On January 25, 2021, this matter was referred to United States Magistrate Judge Lawrence R. Leonard pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct necessary hearings and to submit to the undersigned district judge proposed findings and recommendations for the disposition of the Motion for Summary Judgment. ECF No. 25.
The magistrate judge filed the Report and Recommendation ("R&R"), on May 24, 2021. ECF No. 27. The R&R recommends granting in part and denying in part the Motion for Summary Judgment. Id. By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the magistrate judge. Id. at 33-34. Both parties submitted objections on June 7, 2021. ECF Nos. 28, 29. The Plaintiff filed a response to the Defendant's objections on June 20, 2021. ECF No. 30. On June 21, 2021, the Defendant filed a response to the Plaintiff's objections. ECF No. 31.
I. FACTUAL BACKGROUND
The Plaintiff was hired by the Defendant as a police officer in 2006. ECF No. 21 at 3 ¶ 2. In 2010, the Plaintiff received an Americans With Disabilities Act ("ADA") waiver to wear black Brooks running shoes instead of footwear that complies with the Defendant's uniform policy. Id. at 3 ¶ 6. The Plaintiff sought this waiver to accommodate her shin splints and adult acquired flatfoot. Id. at 3 ¶¶ 4-5. In March and April of 2018, the Plaintiff served as acting sergeant, and she requested that she be compensated for this work, as provided by the Defendant's policy. ECF No. 21-5. Her request was denied on July 24, 2018. ECF No. 23 at 13 ¶ B. On August 4, 2018, the Plaintiff informed her chain of command that she would file an appeal of the denial, that she believed her request was denied because of her sex, and that male employees had received additional pay in similar circumstances. Id.
On August 13, 2018, the Plaintiff received an email from her sergeant stating that "[e]ffective September 1, 2018, the uniform boot policy shall be strictly enforced by supervision." ECF No. 23-11; see ECF No. 23 at 3 ¶ 8. However, on October 10, 2018, Chief of Police Steve Drew approved an amended uniform policy. ECF No. 21 at 3 ¶ 8. The Plaintiff's Brooks shoes did not meet the specifications set forth in the amended policy. Id. at 3 ¶ 9. On October 18, 2018, the Plaintiff filed a formal ADA accommodation request, asking that she continue to be permitted to wear Brooks running shoes. Id. at 4 ¶ 10; see ECF No. 21-2. The Defendant denied this request on November 19, 2018, although it offered to allow the Plaintiff to wear a different Reebok shoe. ECF No. 21 at 4 ¶ 12. According to the Plaintiff, the Reebok shoe did not accommodate her disability. ECF No. 23 at 3 ¶ 12.
In relevant part, the amended policy states that "[o]nly issued uniform shoes, or plain black leather shoes of a similar brand and style, are authorized to be worn with the police uniform. Shoes or boots worn with the uniform must be all black, lace-up and with plain toes. They will be leather or synthetic leather and shall be kept polished. Reflective or white lettering or striping is not authorized." ECF No. 21-1 at 7.
On December 7, 2018, Captain Francis Hileman, the captain of the Plaintiff's precinct, forbade the Plaintiff from serving as acting sergeant within his precinct. ECF No. 23 at 10 ¶¶ 37-38. This ban persisted until Captain Hileman left the Defendant's employment in November of 2019. Id. at 9-10 ¶¶ 34, 36.
On December 19, 2018, the Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") charge asserting that she had been retaliated against for asserting her rights under the Equal Pay Act ("EPA") and for requesting an accommodation under the ADA. ECF No. 23-26.
On April 2, 2019, the Plaintiff filed a second ADA accommodation request, again asking that the Defendant allow her to wear the Brooks shoe. ECF No. 21 at 7 ¶ 22. On May 29, 2019, the Defendant again refused to allow the Plaintiff to wear the Brooks shoe and recommended the Reebok shoe instead. Id. at 8 ¶ 27.
On May 1, 2019, the Plaintiff received a performance evaluation for the period from May 1, 2018, to April 30, 2019. ECF No. 23 at 11 ¶ 47. The evaluation was scored on a 0.0 to 4.0 scale. Id. The Plaintiff's evaluation was the lowest she had received in the last three (3) years and 0.6 points lower than her previous year's evaluation. Id.
On July 19, 2019, the Plaintiff was involved in an incident at the Riverside Regional Medical Center whereby a person in police custody was able to access a lighter and start a fire. ECF No. 21 at 9 ¶ 29. On December 20, 2019, following an internal affairs investigation, Chief Drew assessed the Plaintiff ten (10) "disciplinary points" toward her employee record. Id.
In her response to the Motion for Summary Judgment, the Plaintiff objected to the facts proffered by the Defendant concerning the Riverside fire incident on the basis that those facts relied on hearsay. ECF No. 23 at 6-7. The magistrate judge did consider these facts, notwithstanding the Plaintiff's objection. See R&R at 25 n.9. The Plaintiff did not object to the magistrate judge's consideration of the facts related to the Riverside incident. However, the Defendant objected to the R&R "to the extent it gives credence ... to the Plaintiff's argument that the information relating to the Riverside fire incident is hearsay." ECF No. 28 at 3. Because the magistrate judge did consider these facts and did not give credence to the Plaintiff's hearsay objection, the Defendant's objection on this matter is OVERRULED .
II. LEGAL STANDARDS
A. Review of Magistrate Judge's R&R
Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the R&R to which the parties have specifically objected. Fed. R. Civ. P. 72(b). For unchallenged portions, the court "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, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 Advisory Committee's Note). The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).
B. Motion for Summary Judgment
Summary judgment is appropriate when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court should grant summary judgment if the nonmoving party has failed to establish, after adequate time for discovery, the existence of an essential element of that party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At a minimum, the nonmoving party must present "evidence on which the [trier of fact] could reasonably find" for the nonmoving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
III. OBJECTIONS
A. Plaintiff's Objections
The Plaintiff objects to the R&R's recommendation that summary judgment be granted as to Count One, which alleges that the Defendant violated the ADA by failing to provide a reasonable accommodation for the Plaintiff's disability. Principally, the Plaintiff asserts that the magistrate judge erred by applying the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Plaintiff argues that the magistrate judge should have limited his analysis to step one of the McDonnell Douglas test, which asks whether the Plaintiff has shown evidence to support a prima facie failure-to-accommodate claim. The magistrate judge found that the Plaintiff had met her burden in this respect, but recommended that the court grant summary judgment as to Count One after considering the second and third steps of the McDonnell Douglas framework. According to the Plaintiff, the magistrate judge should have recommended denying summary judgment after concluding that the Plaintiff had presented evidence to support findings in her favor at step one of the McDonnell Douglas analysis.
Pursuant to McDonnell Douglas, the burden initially rests on the plaintiff to demonstrate a prima facie case of retaliation. 411 U.S. at 802, 93 S.Ct. 1817. The burden then shifts to the defendant to offer a non-retaliatory reason for its actions. Id. Finally, the burden shifts back to the plaintiff to show that the defendant's proffered justification is pretextual. Id. at 804, 93 S.Ct. 1817.
"The McDonnell Douglas test is inapposite in a failure-to-accommodate case because a failure-to-accommodate case does not require proof of the employer's motives." Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954 n.2 (4th Cir. 2021) (quoting Punt v. Kelly Servs., 862 F.3d 1040, 1049 (10th Cir. 2017) ). Therefore, the court must agree that the magistrate judge erred in applying McDonnell Douglas to Count One.
In addressing a failure-to-accommodate claim on an employer's motion for summary judgment, the court instead must decide whether the evidence, viewed in the light most favorable to the employee, is sufficient to support jury findings that (1) the employee was an individual was an individual with a disability within the meaning of the ADA; (2) the employer had notice of the disability; (3) the employee could perform the essential functions of the position with reasonable accommodation; and (4) the employer refused to make such accommodation. See Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 579 (4th Cir. 2015). If the evidence cannot support a finding in favor of the employee as to any of these elements, then the employer is entitled to summary judgment. Id.
Although the magistrate judge erred in applying the McDonnell Douglas burden-shifting framework, the R&R addresses all of the elements of the Plaintiff's failure-to-accommodate case, and the magistrate judge found that the evidence could support jury findings in the Plaintiff's favor as to each element, see R&R at 9-14, and the Defendant did not object to these findings. The court has reviewed this portion of the R&R, and, finding no clear error, adopts the factual reasoning set forth therein as being sufficient to sustain the legal viability of a failure-to-accommodate claim. See Jacobs, 780 F.3d at 579-18 ; Diamond, 416 F.3d at 315. Therefore, summary judgment must be denied as to Count One and the court SUSTAINS the Plaintiff's first objection.
The Plaintiff's remaining objections are MOOT because they also concern Count One, and the court has determined that summary judgment as to Count One must be denied.
B. Defendant's Objections
The magistrate judge recommends denying summary judgment as to Counts Two and Three, which assert retaliation claims under the EPA and the ADA, respectively. R&R at 28, 33. The Defendant objects to much of the R&R's analysis as to Counts Two and Three.
The Defendant does not separate his objections into those concerning Count Two and those concerning Count Three. Because the facts underlying both retaliation claims are so similar, the court finds that it can address the Defendant's objections as to Counts Two and Three together.
To survive an employer's motion for summary judgment on an employee's claim for retaliation under the EPA or ADA, the employee must present sufficient evidence to support findings that the employee engaged in protected activity; that the employer took an adverse employment action against the employee; and that a causal connection existed between the protected activity and the adverse action. See Jacobs, 780 F.3d at 578 (ADA) ; Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989) (EPA). If the employee presents evidence of each element, then the burden shifts to the employer to show a non-retaliatory reason for the adverse employment action. See Jacobs, 780 F.3d at 578. If the employer does so, then the burden shifts back to the employee to present evidence that the employer's proffered justification is pretextual. See id.
Applying the McDonnell Douglas test, the R&R found, with respect to both the EPA and ADA claims, that the Plaintiff had presented sufficient evidence to support a prima facie case; that the Defendant had proffered a plausible non-retaliatory justification for its actions; and that the Plaintiff had shown evidence that could lead a jury to find that the Defendant's justification was pretextual. The Defendant argues that the magistrate judge erred at steps one and three of the McDonnell Douglas analysis.
1. Prima Facie Case
The Defendant first objects that the Plaintiff failed to carry her burden of establishing a prima facie case of EPA or ADA retaliation. ECF No. 28 at 1-9. The Defendant argues that the Plaintiff did not show that she experienced an adverse employment action or that any action taken against her was causally connected to her protected activity. Id.
The Plaintiff claims that the following actions were protected activity: (1) appealing the denial of acting sergeant pay (protected activity under the EPA); (2) requesting an ADA accommodation (protected activity under the ADA); and (3) filing an EEOC charge (protected activity under both the EPA and the ADA). The Plaintiff further alleges that the Defendant retaliated by (1) revoking, and later denying, her ADA accommodation that allowed her to wear Brooks shoes ; (2) prohibiting her from working as an acting sergeant; (3) giving her a lower score on her annual evaluation; and (4) assessing formal disciplinary points on her employee record.
The Defendant does not contest that these actions are protected activity.
This alleged form of retaliation applies to the EPA claim only. To the extent that the Plaintiff would argue that the Defendant revoked and denied her accommodation request in retaliation for making such request in the first place, that contention would be more properly considered in Count One of the complaint, in which the Plaintiff asserts a failure-to-accommodate claim under the ADA.
The Plaintiff alleges many other acts by the Defendant that she considered offensive or unwelcome. See, e.g., ECF No. 23 at 13 ¶¶ B-C. However, the court concludes that the additional actions about which the Plaintiff complains do not show that she experienced a materially adverse employment action in the form of a "pattern of harassment and intimidation." ECF No. 23 at 22. Therefore, the court confines its analysis to the alleged actions by the Defendant described above. The court notes, however, that the remaining allegations by the Plaintiff, although not adverse employment actions in and of themselves, are still relevant to the court's analysis, particularly regarding causation and pretext. See infra Section III.B.1, at 13-14; III.B.3.
The Defendant objects to the R&R on the basis that "there was no adverse employment action" taken by the Defendant against the Plaintiff, ECF No. 30 at 1, although it provides little argument in support of this objection. An adverse employment action is one which "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Hinton v. Va. Union Univ., 185 F. Supp. 3d 807, 829 (E.D. Va. 2016) (Payne, J.) (internal quotation marks omitted). The court has no trouble concluding that a jury could find that the Defendant's actions toward the Plaintiff, as listed above, "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. The court OVERRULES the Defendant's objection to the R&R's finding that the Plaintiff experienced adverse employment actions.
The Defendant also objects to the R&R's characterization of the acting sergeant role as a "temporary promotion." ECF No. 28 at 11-12. The court does not see how this label is material to the issues in this case because it is undisputed that the acting sergeant role provides for additional compensation. Denying the Plaintiff the opportunity to serve in this role, despite her claim that she was qualified, therefore denied her the opportunity to receive such additional compensation. Such a denial could be an adverse employment action under the EPA and ADA. Cf. Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999) (stating that "reduced opportunities for promotion" can be an adverse employment action). This objection is OVERRULED .
Lastly, the Defendant objects to the R&R's finding that the Plaintiff had submitted sufficient evidence of causation. "[C]lose temporal proximity is sufficient to establish a disputed issue of fact as to the causation element of the prima facie case." Jacobs, 780 F.3d at 579. The Fourth Circuit has found a "three- or four-month lapse" between protected activity and averse employment actions to be insufficient to establish causation. Pascual v. Lowe's Home Ctrs., Inc., 193 Fed. App'x 229, 233 (4th Cir. 2006). Apart from temporal proximity, employees can submit other indirect evidence of causation, such as "continuing animus" against the plaintiff or that the employer retaliated at its first opportunity. See Hinton, 185 F. Supp. 3d at 838-39.
Here, the Plaintiff's evidence shows that she was told she would not be able to continue to wear the Brooks running shoes on August 13, 2018, only nine (9) days after she asserted that she had been denied equal pay on account of her sex. This temporal proximity creates an issue of fact as to whether the Defendant revoked, and later denied, her ADA accommodation because of the Plaintiff's assertion of her rights under the EPA.
The court also finds that the Plaintiff has presented sufficient evidence to support a finding of causation between her protected activity and (1) Captain Hileman's decision to prohibit the Plaintiff from serving as acting sergeant, and (2) the lower score on her annual review. The annual review occurred not long after the Plaintiff's second ADA accommodation request. Furthermore, this review was the Plaintiff's first formal evaluation since her protected activity occurred and therefore was the Defendant's "first opportunity" to give the Plaintiff a lower score after she engaged in protected activity. Hinton, 185 F. Supp. 3d at 838-39.
Next, although the December 7, 2018, prohibition on serving as an acting sergeant was somewhat temporally removed from the Plaintiff's protected activity, the record also contains evidence that, when viewed in the light most favorable to the Plaintiff, could create an issue of material fact as to whether there was a "continuing animus" against the Plaintiff during this time period, particularly by Captain Hileman and other supervisors. See, e.g., ECF No. 23 at 13 ¶¶ B-C. Therefore, the court finds that a jury could reasonably conclude that the Plaintiff was prohibited from serving as an acting sergeant because of her assertion of her rights under the EPA and ADA.
Finally, the court agrees with the Defendant that the Plaintiff has not submitted sufficient evidence to establish a causal connection between her protected activity and the assessment of formal discipline by Chief Drew in December of 2019 due to the Riverside fire incident. This discipline was approximately eight (8) months removed from the Plaintiff's last protected activity on April 2, 2019, and involved an isolated incident apart from the other matters of Plaintiff's concerns. The Fourth Circuit has found much shorter periods of time to be insufficient to support a finding of causation. See Pascual, 193 Fed. App'x at 233. The only other evidence that the Plaintiff offers to establish causation is that Chief Drew had knowledge of the Plaintiff's EEOC charge at the time he imposed discipline. An employer's knowledge of the employee's protected activity is a necessary, but not sufficient, condition for a finding of causation. See, e.g., Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998). For these reasons, the court concludes that the Plaintiff has not demonstrated causation as to this alleged form of retaliation, i.e., Chief Drew's imposition of ten (10) disciplinary points in response to the Plaintiff's involvement in the Riverside fire incident. For the foregoing reasons, the court SUSTAINS IN PART and OVERRULES IN PART the Defendant's objection to the R&R's finding that the Plaintiff has shown causation.
2. Non-Retaliatory Justification
The magistrate judge found that the Defendant had submitted sufficient evidence to support a finding that the adverse employment actions about which the Plaintiff complains were based on reasons other than retaliation. R&R at 25-26, 32. Neither party objects to this finding, and the court finds no clear error with the R&R's analysis.
3. Pretext
Pursuant to the McDonnell Douglas framework, the burden now shifts to the Plaintiff to present evidence that could lead a jury to find that the Defendant's proffered justifications were pretextual. First, the Defendant asserts that it revoked the Plaintiff's ADA accommodation, and subsequently denied her later accommodation requests, pursuant to its official uniform policy, the terms of which are dictated by safety concerns. However, the Plaintiff correctly observes that no one took issue with her non-conforming shoes for approximately eight (8) years, until she made an accusation of sex discrimination because of the Defendant's denial of additional compensation for the period the Plaintiff served as acting sergeant. Furthermore, the Plaintiff was told in an email on August 13, 2018, that the uniform boot policy would be strictly enforced, more than a month before Chief Drew's amended policy went into effect in October 2018. From these facts, a jury could find that the Defendant took steps to interfere with the Plaintiff's footwear accommodation not for safety reasons but because the Plaintiff had accused her superior of sex discrimination.
The Defendant also contests the R&R's finding that the Plaintiff had submitted sufficient evidence to show that Captain Hileman offered a pretextual justification for prohibiting the Plaintiff from serving as acting sergeant. Captain Hileman made this decision in December of 2018. He stated, however, that he was motivated in part by the Riverside fire incident that occurred in July of 2019, and so could not possibly have been a basis for his decision. This suggests that his proffered justifications may have been pretextual, particularly given its lack of causal effect for Chief Drew's formal discipline. See Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir. 2002) (stating that an employer's post-hoc explanation for its actions is probative of pretext).
See supra Section III.B.1, at 13-14.
Finally, although the Defendant asserts that the Plaintiff's annual review was not overly negative and was based on an objective evaluation of her performance, the Plaintiff's evidence suggests that Captain Hileman influenced her evaluation by telling the Plaintiff's sergeant that the sergeant had given her too high a score. ECF No. 23 at 11 ¶ 47. According to the Plaintiff, her sergeant would have given her a higher score, if Captain Hileman had not intervened. Id. The court finds that a jury could disbelieve the Defendant's claim that the review was based solely on an objective evaluation.
For the foregoing reasons, the Defendant's objection that the Plaintiff has failed to proffer evidence of pretext is OVERRULED .
IV. CONCLUSION
For the reasons stated herein, having reviewed the record in its entirety and the objections to the R&R, and having made de novo determinations with respect thereto, the court hereby SUSTAINS the Plaintiff's first objection to the R&R and DISMISSES the Plaintiff's remaining objections as MOOT . The court also SUSTAINS IN PART and OVERRULES IN PART the Defendant's first and third objections to the R&R; and OVERRULES the Defendant's second, fourth, and fifth objections. Accordingly, the Motion for Summary Judgment, ECF No. 20, is DENIED as to Count One and GRANTED IN PART and DENIED IN PART with respect to Counts Two and Three, such that summary judgment is GRANTED with respect to the Plaintiff's claim that the December 2019 discipline was retaliatory, and DENIED in all other respects.