Opinion
C/A 2:21-cv-04077-BHH-JDA
03-03-2022
Alton Owen, Plaintiff, v. The Boeing Company, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant's motion to dismiss or, in the alternative, for summary judgment. [Doc. 5.] Plaintiff alleges a claim of employment discrimination under 42 U.S.C. § 1981. [Doc. 1-1.] 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 brought suit in the Charleston County Court of Common Pleas on October 5, 2021. [Doc. 1-1.] Defendant removed the action to this Court on December 17, 2021, on the basis of federal-question jurisdiction. [Doc. 1.] Defendant filed its motion to dismiss or, in the alternative, for summary judgment on December 20, 2021. [Doc. 5.] On January 11, 2022, Plaintiff filed a response, and on January 18, 2022, Defendant filed a reply. [Docs. 10; 11.]
As the Court will discuss, Defendant argues that Plaintiff's case should be dismissed for failure to state a claim on the basis of judicial estoppel and, alternatively, that Defendant is entitled to summary judgment. [Docs. 5; 11.] The facts in this Background Section are from the pleadings and forecasted admissible evidence. As will be discussed, in analyzing Defendant's argument that it is entitled to dismissal on the basis of judicial estoppel, because of the inconsistency between Plaintiff's positions in this case and in a prior case, the Court may take judicial notice of court records and filings in the prior case that is the basis for Defendant's judicial-estoppel argument.
Plaintiff was hired by Defendant in April 2011. [Doc. 10-3 ¶ 6.] He was the first Flight Readiness Technician B hired for the Flight Line. [Id.] He performed his job well and was eventually promoted to Flight Line Ops Manager K on October 20, 2013. [Id. ¶¶ 6, 8.]
Central to this case is Defendant's Policy BPI-2917, “Field Operations Tool Control and Accountability.” [Doc. 5-3.] That policy describes the process for tool control and accountability across Field Operations areas within the Puget Sound region and the South Carolina Delivery Center (SCDC). Among the requirements, is that each stall on the BSC Flightline conduct beginning-of-shift and end-of-shift audits of all tool containers on a daily basis for each shift. Management may appoint a “Tool Focal” to assume this responsibility. The Tool Focal will resolve discrepancies involving the tools on the shift and inform the first-level manager of the discrepancies. The first-level manager for each shift and stall is ultimately responsible to ensure the process is being performed, regardless of whether s/he assigns the Tool Focal role to an employee. After the audit is complete, the individual who performed the audit must record the audit on form X33981 (“Tool Control Box Inventory Sheet” . . .) by placing his/her physical stamp in the corresponding date box for his/her shift.[Doc. 5-17 at 3.]
A June 2018 audit revealed that Plaintiff's assigned stalls had not conducted proper tool inventories beginning May 26 or 27, 2018, until June 15, 2018. [Doc. 5-10.] This discovery resulted in further investigations by Defendant. [Docs. 5-13; 5-16; 5-17.] In the course of these investigations, Plaintiff provided a statement, the substance of which was as follows:
I am a Flightline Operations Manager K, reporting to [L Level Senior Manager] John Wilson. My Boeing service date is April 22, 2011. I have covered Stall A1/A2 since November of 2017.
I have been on the flightline since it opened. Prior to that, I managed second shift in the same stall. Kurt Hollensteiner was my Tool Focal when I arrived in the group. Sometime around late May he was relieved of his duties for the Tool Focal role.
For background, my permanent lead, Jason Jones, ended up getting injured at work. He was out from May-August this year. Hollensteiner stepped in to be my temporary lead. Hollensteiner had flexed his schedule[] to get more time with his kids, so the Tool Focal role already fit his schedule.....
In a startup meeting, sometime in May, I think, [Defendant's employee Bradley ]Millhouse opened his mouth to make sarcastic remarks about Hollensteiner as Tool Focal. So, I made the decision to appoint Millhouse Tool Focal, because he thought it was such a big joke. I asked if there were any issues with that. He said nothing, except, “Whatever.” He then proceeded to blow off the assignment, as I knew he was going to, based on my past experience with him. Not long after, I had a “knighting ceremony,” where I knighted him Tool Focal, again in front of the whole team. It was my bad for not sending him an email confirming the assignment. I should have sent him an email to tell him about it; but, I assumed being informed in front of his peers would be enough. I have no formal training for [new] Tool Focals. They are to reach out to me if they have any questions about their duties.
A week went by and the tool audits were not done on first shift. Millhouse had blown me off, as expected. I discovered after three days that the audits were not being done. I didn't say anything at the time to him, because I wanted to [see] what happened. On June 12, 2018, I emailed HRG Markowski about Millhouse failing to do his Tool Focal job. I went on vacation sometime in June, and when I came back, the auditor . . . asked me what I knew about weeks of missing stamps. I
indicated I was aware of it, and I was setting up a case about Millhouse. I told him to leave the finding there, because Millhouse was being insubordinate, and I needed to take care of it with management. I was waiting for Millhouse to miss the monthly audit at the end, at which point I would have better grounds for termination or employee corrective action. Since he always seems to do the bare minimum required of him, there had been no legitimate grounds to punish him for his poor work ethic.
Eventually, [the] management team removed Millhouse from the assignment [for failing to assume the role]. We then had Hollensteiner catch the records up by stamping in the empty boxes. Then, the new Tool Focal, John Welch took over. After him, we have had Dan Larson, and then Josh Rogers. There have been no further problems with the work getting done.
For clarification, when I said “as a management team,” I am not sure what managers that included. I was on vacation from late June until around the first of July or about that time frame (one week vacation), so I was not a part of the conversation.
When I spoke with Hollensteiner, I told him that we had [an] FAA audit coming up and needed to stamp the empty boxes.
I had no concern about doing this, because I had no concern for our tool accountability, taking into consideration our tool check-out and return policies, the audits performed by second and third-shift workers, and my own daily audits of the very same tool boxes, which I logged in MVT [“Manufacturing Visibility Tool”] ([under] “Daily Audit”). Every day I was checking all the same tool locations at or near the start of shift.
I [leave] the end-of-shift check for second shift.
Hollensteiner didn't have any questions or concerns about back-stamping the records. My boss, Wilson was the one who actually initiated the request to get our records caught back up. Wilson knew the actual audits weren't being done by the FRT, because of my complaints to him about Millhouse not performing his Tool Focal duty. But I think Wilson and [M Level Superintendent] Jay McArthur will agree that the audits I was doing were sufficient to satisfy our tool auditing obligation under Boeing standards and FAA requirements. Wilson told me in a conversation I had with him (date unknown) [that] we needed to catch up the records. I don't recall the exact words
he used or if anyone else was paying attention to our conversation. Likely, no one else was paying attention. We had been talking about the first shift A1/A2 daily tool audit records at the time, so when he said we needed to catch up the records, there was no ambiguity as to what he was referring to or what he was requesting. It was clear to me. He has made the same request multiple times in the past, probably a few times each year, when empty boxes have been discovered and the FAA is coming for an audit. However, this was the first time we had more than isolated missing stamps in the forms.
A year ago, our audit process was terrible .... The stalls would sometimes go months without stamps, but never got burned by the FAA, because the stamps were always caught back up....
Prior to the last year, the Tool Control daily audit process was essentially the same, and the “BSC way” was to go back and “catch up” the paperwork, whenever there were a number of days not filled out.
I am aware it is my responsibility to ensure the Tool Accountability daily audits are being done, as I am the owner of the tool boxes. I get that the onus is on me for making sure everything is done. I might not have handled the matter correctly. But I felt I was doing the best thing for the Company in how I handled Millhouse.[Doc. 5-17 at 9-10 (some alterations in original); see Doc. 10-3 ¶ 29.]
Defendant's Corporate Investigations group (“CI”) investigated several specific allegations regarding the conduct Plaintiff described, including, as is relevant here, that Plaintiff “failed to take action after he learned Millhouse was neglecting the Tool Focal duties” and that “Hollensteiner falsified the records by completing them after-the-fact, despite his knowledge the audits probably had not been performed.” [Doc. 5-17 at 4-5.] Following its investigation, CI found that both of these allegations were substantiated. [Id.] CI specifically found that Plaintiff “discovered Millhouse was neglecting his Tool Focal duties three days after Owen made the assignment”; that Plaintiff “took no action to remove Millhouse as Tool Focal until he contacted Deborah Markowski in HR via email on June 12, 2018"; that Plaintiff “failed to ensure the daily tool audits were done on first shift for Stall A1/A2 from approximately May 28, 2018 through June 12, 2018”; that “Hollensteiner completed previously-blank Tool Control Box Inventory Sheets from May 28-June 18, 2018 for first shift”; that “Hollensteiner had no reason to believe the underlying tool audits had been performed when he completed the records, as he was aware Millhouse did not appear to have assumed the Tool Focal role”; that “Hollensteiner made no effort to ascertain whether the audits had been performed”; and that “[b]ecause Hollensteiner did not place any explanatory notes on the records, the X forms indicate the audits were performed as scheduled.” [Id.]
On October 11, 2018, Plaintiff was terminated. [Doc. 10-3 ¶ 10.] On the same day, Plaintiff was informed, “It has been determined you directed a subordinate to falsify company compliance records creating unacceptable liability for the company. The company deems this behavior to be unacceptable and in violation of PRO-1909 and the company's values, behaviors and expectations.” [Id. ¶ 11; Doc. 5-19.]
On June 19, 2019, Plaintiff brought suit in the Charleston County Court of Common Pleas against Defendant, McArthur, Wilson, and two other individuals, asserting claims of wrongful termination in violation of public policy, tortious interference with a contract, negligent supervision of an employee, and slander (“Owen I”). [Doc. 5-1.] The basis for the tortious interference and slander claims was that McArthur, Wilson, and the two other individuals interfered with Plaintiff's contract for employment by lying about their own involvement in the falsification of the records and by falsely alleging that Plaintiff had instructed Hollensteiner to falsify the records. [Id. ¶¶ 33, 34, 38, 59, 60, 79.] Plaintiff alleged that Wilson had instructed Hollensteiner to falsify the records and that Plaintiff had not. [Id. ¶ 33.] The basis of the wrongful termination claim was Plaintiff's allegation that Defendant “terminated him because he reported the safety concerns and refused to publish [Defendant's] anti-union propaganda.” [Id. ¶ 49.] Following discovery, the defendants in Owen I filed a motion for summary judgment, which the state court denied. [Doc. 5-22.] That case remains pending in state court.
Records from Owen I can be found on the Charleston County Public Index at http://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (search case number 2019CP1003305) (last visited Feb. 15, 2022). See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that the most frequent use of judicial notice is in noticing the content of court records.” (internal quotation marks omitted)).
As noted, in the present suit, Plaintiff asserts a claim of race discrimination in violation of § 1981. [Doc. 1-1.] Plaintiff alleges that he is a white male and “there was [an] African[-]American employee who allegedly committed the same acts as [Plaintiff] and was not terminated” even though Plaintiff and the other employee “were similarly situated in position[] and discipline.” [Id. ¶¶ 13-14.] As relief, Plaintiff requests actual, consequential, compensatory, and punitive damages. [Id. at 6-7.]
Defendant represents that on March 15, 2019, before filing his complaint in Owen I, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission alleging claims of race discrimination under Title VII. [Doc. 5 at 13 n.12.]
APPLICABLE LAW
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)).
Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
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 his 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.” Id. 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
In support of its motion, Defendant makes two arguments. First, it contends that the application of the doctrine of judicial estoppel warrants dismissal of Plaintiff's case for failure to state a claim. [Doc. 5 at 11-15.] Second, Defendant contends that it is entitled to summary judgment because Plaintiff has not forecasted sufficient evidence to create a genuine dispute of material fact regarding whether Defendant violated Plaintiff's rights under § 1981. [Id. at 15-26.] The Court will address these arguments seriatim.
Judicial Estoppel
“Judicial estoppel is a principle developed to prevent a party from taking a position in a judicial proceeding that is inconsistent with a stance previously taken in court.” Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007). It is an equitable doctrine, and the decision whether to invoke it is, therefore, within the court's discretion. New Hampshire v. Maine, 532 U.S. 742, 750 (2001). However, ?[b]ecause of the harsh results attendant with precluding a party from asserting a position that would normally be available to the party, judicial estoppel must be applied with caution” and only “in the narrowest of circumstances.” Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996).
For a court to apply judicial estoppel, three elements must be satisfied. First, “the party sought to be estopped must be seeking to adopt a position that is inconsistent with a stance taken in prior litigation.” Id. The position ?must be one of fact rather than law or legal theory.” Id. “Second, the prior inconsistent position must have been accepted by the court.” Id. “Finally, the party sought to be estopped must have intentionally misled the court to gain unfair advantage.” Id. (internal quotation marks omitted). The final “factor is the ‘determinative factor' in the application of judicial estoppel to a particular case.” Id.
Defendant's judicial-estoppel argument is based on Plaintiff's still-pending Owen I lawsuit. Defendant argues that judicial estoppel prevents Plaintiff from pursuing the present case because the reason he alleges in this suit that he was terminated-his race-is inconsistent with the reasons he alleges in Owen I-his union support and his reporting of alleged safety violations. [Docs. 5 at 11-15; 11 at 2-4.] Defendant also argues that Plaintiff's assertion in Owen I that the record-falsification allegation against him is false should prevent Plaintiff from prosecuting the present case, in which he alleges he did falsify the records. [Docs. 5 at 13-14; 11 at 2 & n.1.]
Because the Court can take judicial notice of the complaint and court records from Owen I, the Court concludes that Defendant's judicial-estoppel defense is properly raised in a motion to dismiss for failure to state a claim. See Kiawah Island Util., Inc. v. Westport Ins. Corp., No. 2:19-cv-1359, 2019 WL 5395966, at *3 (D.S.C. Oct. 22, 2019). However, the Court concludes that Defendant has not established any of the elements of judicial estoppel with regard to either of the two purported inconsistencies.
Plaintiff's Statements Concerning the Motivation for His Termination
First, although Plaintiff makes the factual allegation in Owen I that he was terminated based on his union support and his reporting of alleged safety violations, the Court concludes that those allegations are not inconsistent with his factual assertion in this case that he was fired based on his race. Indeed, it is possible that all three factors played a role in his termination. Defendant also cannot establish the second element-that the prior inconsistent statement was accepted by the court. Defendant argues that it has established this element because the state court in Owen I denied a motion for summary judgment filed by the defendants. [Doc. 5 at 13-14.] However, a court's mere conclusion that a genuine dispute of material fact exists regarding a factual assertion does not amount to acceptance of the factual assertion in the sense required to justify application of judicial estoppel. See Kiawah Island Util., Inc., 2019 WL 5395966, at *6. Finally, the Court concludes Defendant has not shown that Plaintiff intentionally misled either court with his allegations regarding the motives behind his termination. As already noted, the Court does not view Plaintiff's statements about the reasons for his termination as even being factually inconsistent.
Defendant suggests that Plaintiff obtained an advantage by not asserting a race discrimination claim in Owen I insofar as not asserting that claim prevented Owen I from being removed to federal court. [Doc. 5 at 13 n.12.] That may be true, but any advantage Plaintiff gained from that strategy was not gained by misleading the court, for the reasons explained. Nonetheless, the Court notes that Plaintiff's decision not to include a claim of race discrimination in his complaint in Owen I could have legal implications down the road. For example, it could result in the application of claim preclusion should Plaintiff lose one of the lawsuits. See Orca Yachts, L.L.C. v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002) (“[I]f the later litigation arises from the same cause of action as the first, then the judgment in the prior action bars litigation not only of every matter actually adjudicated in the earlier case, but also of every claim that might have been presented” (internal quotation marks omitted)); Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir. 1997) (holding that for claim preclusion to apply, there must be a final judgment on the merits in the prior suit; identity of the cause of action in both the earlier and later suit; and identity of the parties or their privies in the two suits). And should he prevail on either lawsuit, the doctrine of election of remedies could serve to prevent a double recovery. See, e.g., Cowart v. Poore, 523 S.E.2d 182, 185 (S.C. Ct. App. 1999) (“When one set of facts entitles the plaintiff to alternative remedies, he may plead and prove his entitlement to either or both; however, the plaintiff may not recover both. The plaintiff should have a full opportunity to prove his claim to some form of relief, but he should not receive a double recovery.” (citation omitted)).
Plaintiff's Statements Concerning His Conduct
As for Defendant's assertion that Plaintiff admits in this case that he engaged in the very misconduct that he denies in Owen I, the Court is not convinced. Plaintiff's Complaint in this case alleges that he was informed he was terminated for the falsification of records but that “there was an[] African[-]American employee who allegedly committed the same acts as [Plaintiff] and was not terminated.” [Doc. 1-1 ¶ 10, 13.] The Complaint similarly alleges that “an African[-]American [e]mployee who did the same exact actions of [Plaintiff] was not terminated from his employment.” [Id. ¶ 18.] It is unclear to the Court whether “the same acts as” Plaintiff and “the same exact actions of” Plaintiff in this context refer to the acts Plaintiff was alleged to have engaged in or the acts Plaintiff actually engaged in. Thus, the Court is not convinced that Plaintiff's allegations are inconsistent or that he has sought to mislead the Court regarding whether he actually was responsible for falsifying the records. Additionally, as with Plaintiff's representation that he was terminated based on his race, Defendant's only basis for asserting that the court adopted his representation that he engaged in the alleged misconduct is that the Owen I court denied the defendants' summary judgment motion. [Doc. 5 at 13-14.] As already noted, that action by the court does not constitute adoption of the statement in the sense required to justify application of judicial estoppel. See Kiawah Island Util., Inc., 2019 WL 5395966, at *6.
The Court notes that, having had discovery in Owen I, Plaintiff may have concluded that Defendant genuinely believed Plaintiff was responsible for falsifying the records and the question of whether Defendant's belief was correct was beside the point in his race discrimination claim. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (“When an employer gives a legitimate, non-discriminatory reason for discharging the plaintiff, it is not [the court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” (alteration and internal quotation marks omitted)). Indeed, even were Plaintiff estopped from denying that he actually instructed Hollensteiner to falsify the records, that would not necessarily prevent him from proving race discrimination by showing that a similarly situated African-American employee was retained despite engaging in the same conduct.
For all of the reasons discussed, the Court concludes that Defendant has not shown that the facts of this case present the “narrow circumstances” in which judicial estoppel should apply, and the Court therefore recommends that Defendant's motion be denied to the extent it seeks dismissal on the basis of judicial estoppel.
Failure to Create a Genuine Dispute of Material Fact
Defendant alternatively argues that it is entitled to summary judgment because Plaintiff has not forecasted evidence showing that a genuine dispute of material fact exists with regard to his claim. [Doc. 5 at 15-26.]
Section 1981 provides that “all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). “Although Section 1981 does not explicitly use the word ‘race,' the Supreme Court has construed the statute to ban all racial discrimination in the making of public and private contracts.” Nnadozie v. Genesis HealthCare Corp., 730 Fed.Appx. 151, 156 (4th Cir. 2018). Thus, § 1981 “guards generally against race-based discrimination in the workplace.” Lemon v. Myers Bigel, P.A., 985 F.3d 392, 399 (4th Cir. 2021).
When a plaintiff alleging a race discrimination claim under § 1981 does not provide direct evidence of discrimination-and Plaintiff concedes he cannot do so here [Doc. 10 at 9]-he must proceed under the McDonnell Douglas burden-shifting framework. Gary v. Facebook, Inc., 822 Fed.Appx. 175, 179 (4th Cir. 2020) (“Where . . . the § 1981 plaintiff doesn't allege direct evidence of discrimination, we apply the burden-shifting framework of [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)].”); see also id. at 180 (explaining that applying the McDonnell Douglas framework “is consistent with [the Comcast Court's holding] that a § 1981 plaintiff must prove that race was a but-for cause of the plaintiff's injury”). Under that framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of discrimination, a plaintiff must demonstrate “(1) he is a member of a protected class; (2) he was qualified for his job and his job performance was satisfactory; (3) he was fired; and (4) other employees who are not members of the protected class were retained under apparently similar circumstances.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002). Alternatively, the fourth element can be satisfied with a showing that the plaintiff “was terminated under circumstances which give rise to an inference of unlawful discrimination.” Ndjofang v. Wal-Mart, No. 7:17-cv-01504-AMQ-JDA, 2018 WL 4573092, at *8 n.7 (D.S.C. June 28, 2018), Report and Recommendation adopted by 2018 WL 3738002 (D.S.C. Aug. 7, 2018).
Although § 1981 protects members of the majority group as well as those in minority groups, see, e.g., Wethje v. CACI-ISS, Inc., No. 8:18-cv-02424-PX, 2021 WL 718939, at *4 (D. Md. Feb. 24, 2021), some courts in this District have held that a plaintiff asserting “reverse discrimination”-discrimination against a member of the majority group-must establish one additional element to prove a prima facie case, that being that “background circumstances which support the suspicion that [the defendant] is among those unusual employers who discriminate against the majority.” Youmans v. Manna Inc., 33 F.Supp.2d 462, 464 (D.S.C. 1998); see, e.g., Hood v. Marlboro Cnty. Sheriff's Office, No. 4:17-cv-03403-DCC-MGB, 2019 WL 9242907, at *5 (D.S.C. Oct. 30, 2019), Report and Recommendation adopted by 2020 WL 1545630 (D.S.C. Apr. 1, 2020). However, other courts in this District have not required plaintiffs to prove this extra element to establish a prima facie case in reverse discrimination cases, see, e.g., Presley v. Beaufort Cnty. Sch. Dist., No. 9:18-1945-BHH-KDW, 2020 WL 9216305, at *9 (D.S.C. July 9, 2020), Report and Recommendation adopted by 2021 WL 791206 (D.S.C. Mar. 2, 2021); Moore v. Rural Health Servs., Inc., No. 1:04-cv-376-RBH, 2007 WL 666796, at *9 n.9 (D.S.C. Feb. 27, 2007), and the Fourth Circuit has not expressly addressed the issue, Presley, 2020 WL 9216305, at *9. For purposes of this Report and Recommendation, the undersigned assumes that a plaintiff seeking to prove reverse discrimination must establish this extra element to prove his prima facie case.
If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Bryant, 288 F.3d at 133. By providing such an explanation, the employer rebuts the presumption of discrimination 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 reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804.
The Parties' Arguments
Defendant argues that, to establish a prima facie case, Plaintiff, claiming reverse discrimination, must show “background circumstances which support the suspicion that [Defendant] is among those unusual employers who discriminate against the majority.” [Doc. 5 at 16 (internal quotation marks omitted); see id. at 16-18 & n.15.] Defendant maintains that Plaintiff cannot forecast evidence sufficient to create a genuine dispute of material fact on that point. [Id. at 16-18.] Defendant also contends that Plaintiff cannot establish a prima facie case because he cannot forecast evidence that he was performing satisfactorily at the time he was terminated (“the satisfactory-performance element”) [id. at 18-19] or that an employee outside of his protected class was retained under circumstances similar to Plaintiff's (“the comparator element”) [id. at 19-22]. And Defendant argues that, even assuming Plaintiff could establish a prima facie case of race discrimination, Defendant has articulated a legitimate, nondiscriminatory reason for his termination-his falsification of records-and Plaintiff cannot forecast evidence sufficient to create a genuine dispute of material fact regarding whether Defendant's proffered reason was a pretext for race discrimination. [Id. at 22-26.]
In response, Plaintiff argues that he can satisfy the satisfactory-performance element with his affidavit stating that he had been an exemplary employee and had never been subjected to any discipline prior to the time he allegedly engaged in the conduct that resulted in his termination. [Doc. 10 at 10 (citing Doc. 10-3).] As for evidence of a similarly situated African-American employee, Plaintiff points out that he has not yet had an opportunity to discover the facts regarding that issue, as race discrimination was not at issue in Owen I. [Id. at 11.] Plaintiff asserts that if he is able to obtain evidence through discovery of this similarly situated African-American employee who was treated more leniently, such evidence may create a fact issue regarding both the additional element required for reverse discrimination cases and the pretext issue. [Id. at 10-11.]
Whether Defendant's Summary Judgment Motion is Premature
“Federal Rule of Civil Procedure 56 does not require trial courts to allow parties to conduct discovery before entering summary judgment.” Oakwood Prods., Inc. v. SWK Techs., Inc., No. 9:20-cv-04107-DCN, 2021 WL 5235224, at *3 (D.S.C. Nov. 10, 2021). Generally speaking, however, “summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to [its] opposition.” Anderson, 477 U.S. at 250 n.5. At the same time, the party opposing summary judgment “cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996). If a party believes that more discovery is necessary for it to demonstrate a genuine issue of material fact, the proper course is to file an affidavit pursuant to Rule 56(d) of the Federal Rules of Civil Procedure stating “that it could not properly oppose a motion for summary judgment without a chance to conduct discovery.” Id. Here, although Plaintiff has opposed Defendant's request for summary judgment as premature on the basis that he has not yet had the opportunity for discovery, he has not filed a Rule 56(d) affidavit. However, “in some cases courts have held that summary judgment was premature even when the opposing party failed to file a Rule 56([d]) affidavit.” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (collecting cases). Essentially, if the opposition to summary judgment “serve[s] as the functional equivalent of an affidavit and if the nonmoving party was not lax in pursuing discovery,” the failure to file a Rule 56(d) affidavit may be excused. Id. at 245 (internal quotation marks and citation omitted). If the opposition is to serve as a functional equivalent, the nonmoving party should provide “reasonable notification and explanation for why more time for discovery [is] necessary or what the parties intend[] to discover that [is] not yet in the record.” Zipit Wireless Inc. v. Blackberry Ltd., No. 6:13-cv-02959-JMC, 2016 WL 5933975, at *10 (D.S.C. Oct. 12, 2016) (internal quotation marks and citation omitted); see also Tate v. Parks, 791 Fed.Appx. 387, 391 (4th Cir. 2019) (“[A Rule 56(d)] affidavit is not necessarily required when a nonmoving party through not fault of its own, has had little or no opportunity to conduct discovery and fact-intensive issues are involved, so long as the nonmovant has not been lax in pursuing discovery and had adequately informed the district court through its motions and objections that summary judgment is premature and that more discovery is necessary. Moreover, allowing a party enough time for discovery before summary judgment is particularly important when the other party has exclusive control of the relevant facts and when the case presents questions about intent and motive.” (internal quotation marks and citation omitted)).
The Court concludes that Defendant's request for summary judgment is premature. Initially, the Court notes that the timing of Defendant's motion, “before a scheduling order has been entered in this case, strongly suggests the type of prematurity that warrants deferring or denying consideration.” Jinks v. Sea Pines Resort, LLC, No. 9:21-cv-00138-DCN, 2021 WL 2003189, at *4 (D.S.C. May 19, 2021); see Investors Title Ins. Co. v. Bair, 232 F.R.D. 254, 256-57 (D.S.C. 2005) (finding consideration of plaintiff's summary judgment motion premature when the plaintiff filed his motion only four weeks after the court's scheduling order and over four months prior to the appointed end of discovery). Plaintiff's memorandum opposing summary judgment explains discovery areas that well could create a genuine dispute of material fact regarding whether he was subjected to race discrimination. In particular, he contends that he has not yet had the opportunity to obtain discovery on the questions of whether Defendant has historically discriminated against white employees and whether Defendant declined to terminate an African-American employee for engaging in the very conduct that Defendant claims was the basis for Plaintiff's termination. [Doc. 10 at 10-11.]
Plaintiff argues that, to the extent Defendant appears to assume that the comparator referenced in his complaint is an employee of Defendant's named Paul Collier, “[n]o discovery has been conducted regarding Collier and what actually happened-it is only [Defendant's] interpretation of [its] own report.” [Doc. 10 at 11.] Defendant contends that Plaintiff identified Collier in his deposition in Owen I as an anti-union employee who Defendant retained despite his having engaged in the very conduct that Plaintiff was fired for. [Doc. 11 at 8-9 (citing Doc. 5-2 at 46-47).] Defendant represents that, during discovery in Owen I, Defendant produced its CI report, which demonstrates that Collier did not engage in the same conduct Plaintiff was terminated for. [Id.] As Plaintiff asserts, however, Defendant essentially asks this Court to take the conclusions in its own report at face value without providing Plaintiff the opportunity to obtain discovery in this case to challenge the report. The Court is inclined not to do so. See McCray v. Md. Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014) (“Summary judgment before discovery forces the non-moving party into a fencing match without a sword or mask.”); Jinks, 2021 WL 2003189, at *5 (“Courts generally grant Rule 56(d) motions because of their reluctance to enter judgment when only one party has presented his version of the case.” (internal quotation marks omitted)).
Defendant also contends that Plaintiff cannot forecast evidence sufficient to satisfy the satisfactory-performance prong of his prima facie case insofar as he was found to have permitted his subordinate to fraudulently complete records. [Docs. 5 at 18-19; 11 at 7.] On this point, however, factual questions abound. For example, the record is not clear as to who made the decision to terminate Plaintiff, let alone what this person or people knew or believed about Plaintiff. Nor has Defendant forecasted evidence establishing exactly what conduct Plaintiff was terminated for engaging in. In any event, Plaintiff has alleged that a similarly situated African-American employee was not terminated despite engaging in the exact same conduct that Defendant offered as the basis for Plaintiff's termination. If Plaintiff obtains evidence to support that allegation, it could call into question the legitimacy of the expectations Defendant claims Plaintiff failed to meet, and whether Defendant's proffered reason for Plaintiff's termination was a pretext for race discrimination. The Court sees no reason why Plaintiff should not have the opportunity in this case to seek relevant discovery to address these questions and others.
Defendant contends that “[a]fter a complete review of the matter, [Defendant's Employee Corrective Action Review Board (“ECARB”)] voted to terminate Plaintiff's employment effective October 11, 2018.” [Doc. 5 at 9.] Defendant also asserts that Wilson and McArthur “did not participate in the ECARB meeting or influence the decision to terminate Plaintiff” and that the ECARB panel directed Wilson to present Plaintiff with his notice of termination. [Id. at 9-10.] For these propositions, Defendant cites Docs. 5-2 at 48, 5-18, and 5-19. [Id.] The Court finds no support for the cited propositions.
Defendant submits an “Employee Corrective Action Memo” stating that it was determined that Plaintiff “directed a subordinate to falsify company compliance records.” [Doc. 5-19.] In Defendant's initial memorandum supporting its motion to dismiss or, in the alternative, for summary judgment, Defendant asserts that Hollensteiner volunteered to falsify the records and Plaintiff acknowledged Hollensteiner's offer and did not prevent Hollensteiner from falsifying the records. [Doc. 5 at 8 (citing Docs. 5-2 at 33; 5-12).] And Plaintiff has submitted an affidavit in which he represents that Wilson instructed Hollensteiner to falsify the records and Hollensteiner did so without Plaintiff making any statements to him. [Doc. 10-3 ¶ 29.]
See, e.g., Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 516-18 (4th Cir. 2006) (“Although on summary judgment an employer is free to assert that the job expectation prong has not been met, nothing prohibits the employee from countering this assertion with evidence that demonstrates (or at least creates a question of fact) that the proffered ‘expectation' is not, in fact, legitimate at all,” as the employee might do by showing that similarly situated employees who had performance issues similar to the plaintiff were treated more leniently such that the employer's stated expectations were in fact a “sham designed to hide the employer's discriminatory purpose.” (internal quotation marks omitted)); Young v. CareAlliance Health Servs., No. 2:12-2337-RMG, 2014 WL 4955225, at *3-6 (D.S.C. Sept. 29, 2014) (holding that when a registered nurse had received a “fully successful” rating on a recent performance review but “an audit and investigation revealed a number of incidents related to the mishandling of narcotics and that Plaintiff's locker contained two patient armbands, which [the employer] determined violated its internal HIPAA policy,” the nurse's submission of comparator evidence created a genuine dispute of material fact regarding the satisfactory-performance and comparator elements of the prima facie case and regarding pretext).
The undersigned has considered the recent decision in Oakwood Prods., Inc. v. SWK Techs., Inc., wherein the Court considered the defendant's summary judgment motion even though the plaintiff, although not filing a Rule 56(d) affidavit, argued that discovery was incomplete. 2021 WL 5235224, at *3. In that case, the Court “len[t] some weight to the lack of discovery that ha[d] yet to be conducted but overall . . . proceed[ed] by determining whether a genuine dispute of material fact exist[ed] based on the exhibits presented by the parties.” Id. The Court's analysis of the summary judgment motion in that case, however, primarily involved applying established legal principles to a contract, and the Court emphasized that the plaintiff had not set out with any specificity what evidence it expected to discover that would create a genuine dispute of material fact. See, e.g., id. at *7. In this case, in contrast, Plaintiff has explained more specifically the information he expects to discover, namely, that Collier engaged in the very same conduct that Plaintiff was allegedly fired for and that Defendant has a history of discriminating against white employees.
In sum, given Plaintiff's response describing the need for discovery, the Court recommends that Plaintiff's failure to file a Rule 56(d) affidavit be excused and Defendant's request for summary judgment be denied without prejudice to its right to file a summary judgment motion at the appropriate time.
Should the Court adopt the undersigned's Report and Recommendation, the undersigned will instruct the parties to advise the Court regarding whether and how discovery should be limited in the present case in light of the discovery that has already occurred in Owen I.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's motion to dismiss or, in the alternative, for summary judgment [Doc. 5] be DENIED.
IT IS SO RECOMMENDED.