Opinion
Civil Action 2:21-cv-01047-DCN-JDA
07-18-2022
Judean Pryor, Plaintiff, v. Trident Medical Center, LLC, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge.
This matter is before the Court on Defendant's motion for summary judgment. [Doc. 27.] Plaintiff alleges race discrimination and retaliation claims pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), age discrimination and retaliation claims pursuant to the Americans with Disabilities Act (“ADEA”), and state law claims for negligent supervision and defamation. [Doc. 1-1 at 5-9 ¶¶ 26-54.] 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 filed this action on March 8, 2021, in the Charleston County Court of Common Pleas. [Doc. 1-1.] Defendant removed the case to this Court on April 9, 2021 [Doc. 1], and filed a motion for summary judgment on January 1, 2022 [Doc. 27]. Plaintiff filed a response in opposition to the motion on January 18, 2022 [Doc. 28], and Defendant filed a reply on January 28, 2022 [Doc. 31]. Accordingly, the motion for summary judgment is ripe for review.
BACKGROUND
Plaintiff, a black female who is over 40, began working for Defendant in 1994 as a licensed practical nurse (“LPN”) in Summerville, South Carolina. [Docs. 1-1 at 3 ¶¶ 5-6; 7 ¶¶ 5-6; 28-1 at 5:1-6.] ¶ 1998, Plaintiff moved to Defendant's North Charleston campus and continued working as an LPN. [Doc. 28-1 at 5:7-11.] ¶ 2009, Plaintiff became a registered nurse, and in 2010, she became a patient care coordinator of endoscopy. [Id. at 5:20-6:4.] ¶ 2012, Plaintiff became Defendant's clinical coordinator of endoscopy and the ambulatory care center (“ACC”), a supervisory position. [Id. at 6:1-4, 10:25-11:1; Doc. 28-2 at 11:6-7.]
The endoscopy department performs scoping procedures, which are typically outpatient procedures, and the ACC “receive[s] patients, get[s] them ready for surgery, send[s] them for surgery,” and provides a location for recovery for the patients undergoing outpatient procedures. [Doc. 28-1 at 6:23-8:17.] All endoscopy and ACC patients are admitted through the ACC and then sent to the appropriate area depending on the procedure. [Doc. 27-2 at 14:15-21, 15:7-11.]
In addition to Plaintiff, Defendant employed three supervisors in endoscopy and the ACC: David Harlan, supervisor of endoscopy, Teresa Wickenhoefer, supervisor of preadmissions testing, and Kathy Dennis, supervisor of pre-op/post-op. [Docs. 27-4 at 22:17-23; 28-1 at 15:17-17:24.] Harlan, Wickenhoefer, and Dennis are all white. [Doc. 28-1 at 15:8-9, 17:13-15, 17:20-22.] Plaintiff's job duties included manning a desk in the ACC, fielding calls, supervising nurses and technicians, and rotating them to prepare patients for surgery. [Doc. 28-2 at 10:24-11:20.]
In early 2020, Defendant hired Angela Sturgill as its director of perioperative, and Plaintiff began reporting to her. [Docs. 28-1 at 9:23-10:5; 28-2 at 7:7-8:2.] Sturgill reported to Deborah Moore, Defendant's vice president of surgical services, and Moore reported to Scott Weiskittel, Defendant's chief operating officer. [Docs. 28-1 at 10:5-15; 28-2 at 4:12-20, 5:14-6:5.]
On May 7, 2020, Sturgill and Moore issued a verbal disciplinary/corrective action to Plaintiff. [Doc. 28-5.] The disciplinary/corrective action form summarized the offense as follows:
[Plaintiff] has been instructed numerous times about [Defendant's] new change processes and does not follow these changes. She has had verbals from [Sturgill] and [Moore] regarding changes and attitude. [Plaintiff] is expected to be fair and equal with all staff members. [Plaintiff] is in a leadership position and has to stand with the management team and fully support the team.[Id. (footnote added).] Around May 20, 2020, Sturgill prepared a written disciplinary/correction action to be issued to Plaintiff for failing to report off to the other supervisor for the ACC; however, after Moore spoke with Plaintiff, she decided not to issue the disciplinary/corrective action form because she “didn't feel it was warranted.” [Docs. 28-1 at 22:11-23, 24:21-25:13; 28-2 at 12:16-13:18; 28-6.]
The new change process was that Defendant was implementing “pod nursing,” where patients are grouped according to specialities and nurses are assigned by specialty. [Docs. 27-2 at 33:8-16; 27-4 at 18:1-15.] Previously, whichever nurse finished first was assigned the next patient, and Moore thought the workload of the department was not “spread evenly and fairly” and that pod nursing would lead to “greater efficiency.” [Doc. 274 at 18:6-22.]
On May 20, 2020, Plaintiff sent an email to Vickie Cummings, Defendant's vice president of human resources, asking, “CAN YOU PLEASE SEE ME ASAP NEED ADVICE ON QUESTIONABLE HOSTILE ENVIRONMENT IN WORKPLACE.” [Docs. 27-5 at 5:16-18; 28-7.] Cummings forwarded the email to Avis Shorters, the human resources business partner for the surgical services unit who had oversight and managed that area. [Doc. 27-5 at 9:19-10:3.] Cummings asked Shorters to follow up on the email, and Shorters spoke with Plaintiff in person within a week. [Doc. 28-1 at 20:5-12; 28-8 at 4:9-5:12.] Plaintiff shared with Shorters that Sturgill and Moore had made negative comments and raised their voices to Plaintiff in front of others, that she was afraid she was being set up to lose her job, and that she was being discriminated against because of her race and age. [Doc. 27-2 at 27:1-28:2, 39:1-40:24, 42:4-10, 43:17-44:12, 44:18-21; 281 at 26:8-27:25, 31:18-33:15.]
Shorters has a different recollection of her conversation with Plaintiff. Shorters testified that Plaintiff “talked about her job responsibilities and how it was uncomfortable for her to work at the desk as well as be with -- handling work with patients.” [Doc. 27-3 at 6:13-16.] Shorters further testified that, when talking about her job responsibilities, Plaintiff “mention[ed] how she felt it was unfair” when comparing her job duties to others, and Shorters interpreted that unfairness to be “the questionable . . . hostile work environment” Plaintiff had mentioned in her email. [Id. at 6:21-7:5, 8:11-21.] According to Shorters, Plaintiff did not discuss Sturgill during the conversation. [Id. at 7:9-11.] However, for purposes of this summary judgment motion, the Court views the facts in the light most favorable to Plaintiff, the non-moving party.
Following her conversation with Plaintiff, Shorters shared with Cummings that she had met with Plaintiff to discuss her concerns and had also talked about other opportunities for Plaintiff within the organization. [Doc. 27-3 at 8:22-9:24.] Then, Shorters shared with Moore that human resources had received an email raising concerns about an employee's responsibilities in the unit. [Id. at 9:25-10:10.] Shorters asked Moore if she knew of any concerns regarding unfair job responsibilities, and Moore stated that she was unaware of these concerns. [Id. at 10:10-11:3.] Shorters did not tell Moore who had raised the concerns. [Id. at 10:14-17.]
Around late May 2020, a decision was made to eliminate Plaintiff's position. [Docs. 28-2 at 14:6-15:11; 28-9.] Moore testified that prior management had moved Plaintiff over to the ACC with her title, clinical coordinator of endoscopy, but the ACC also had three supervisors; therefore, a decision was made to “align the department with supervisors and eliminate the coordinator position.” [Doc. 28-2 at 14:23-16:17.] On June 15, 2020, Weiskittel, Moore, and Cummings met with Plaintiff to inform her that her position was being eliminated. [Id. at 18:16-19:24.] After Plaintiff's position was eliminated, her desk duties were taken over by another employee, Natalie Magee, who worked for Defendant as a unit secretary, and her supervisory duties of scheduling and assigning nurses to patients were taken over by Wickenhoefer. [Doc. 28-2 at 17:2-18:9.]
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission and the South Carolina Human Affairs Commission in July 2020, alleging race and age discrimination and retaliation. [Doc. 28-3.] As stated, Plaintiff filed this action on March 8, 2021, alleging race discrimination and retaliation claims in violation of Title VII, age discrimination and retaliation claims in violation of the ADEA, and state law claims for negligent supervision and defamation. [Doc. 1-1.] For relief, she seeks all recoverable damages, including punitive damages; attorney's fees and costs; and pre-and postjudgment interest. [Id. at 9-10.]
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in 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
Defendant argues it is entitled to summary judgment on all of Plaintiff's claims. [Doc. 27-1.] In her response in opposition to Defendant's motion, Plaintiff concedes to the dismissal of her age discrimination and negligent supervision claims. [Doc. 28 at 2 n.1.] Accordingly, Plaintiff does not contest Defendant's entitlement to summary judgment on these claims, and Defendant's motion should be granted with respect to Plaintiff's age discrimination and negligent supervision claims. The Court addresses Plaintiff's remaining claims seriatim.
Race Discrimination Claim
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Absent direct or indirect evidence of discrimination, a Title VII plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to establish a claim of employment discrimination. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. 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) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). 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.
To establish a prima facie case of disparate treatment, “a plaintiff must show that (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her employer's legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination, including because the employer left open the position or replaced the plaintiff with someone outside the protected class.” Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649-50 (4th Cir. 2021). Defendant first argues that Plaintiff cannot establish a prima facie case of disparate treatment because she cannot establish the fourth element in that she was not treated differently from similarly situated individuals because of her race. [Doc. 27-1 at 17-20.] Plaintiff, on the other hand, contends that comparator evidence is not necessary to survive summary judgment and, in any event, Plaintiff can establish the fourth element “through comparator evidence and other circumstances giving rise to an inference of unlawful discrimination.” [Doc. 28 at 8-10.] The Court agrees with Defendant that Plaintiff has not established a prima facie case of disparate treatment.
Plaintiff has not established that similarly situated non-black employees were treated better than she was or that the circumstances surrounding her position elimination otherwise suggest an unlawfully discriminatory motive. As an initial matter and as Plaintiff argues, she is “‘not required as a matter of law to point to a similarly situated . . . comparator in order to succeed' on a discrimination claim.” Laing v. Fed. Express Corp., 703 F.3d 713, 720 (4th Cir. 2013) (quoting Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003)). “However, where a plaintiff relies on comparator evidence to establish circumstances giving rise to an inference of unlawful discrimination, ‘[t]he similarity between comparators . . . must be clearly established in order to be meaningful.'” New v. Thermo Fisher Sci., Inc., No. 1:19cv807, 2022 WL 787954, at *17 (M.D. N.C. Mar. 15, 2022) (quoting Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008)). Title VII requires that compared jobs be similar, and in determining whether jobs are similar, “courts consider whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications-provided the employer considered these latter factors in making the personnel decision.” Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 2019) (internal quotation marks omitted). In this case, Plaintiff relies on comparator evidence [Doc. 28 at 8-10]; thus, she must establish that the comparators are similar. Plaintiff has not shown, however, that the other supervisors in the ACC-Harlan, Wickenhoefer, and Dennis-are similar for purposes of Title VII. Plaintiff admits that her position “had both supervisory and clerical duties” [Doc. 28 at 9], and the record evidence supports a finding that her position as clinical coordinator was a hybrid position that included both clerical and supervisory duties [Docs. 28-2 at 10:24-11:20 (describing Plaintiff's job duties as “manning a desk,” “fielding calls,” “rotating nurses,” and supervising nurses and technicians); 28-4 at 6:9-14 (describing Plaintiff's position as “more of a front office clerical type” position). On the other hand, nothing in the record shows that the other three supervisors performed anything other than supervisory duties, and indeed Plaintiff does not assert that their positions were hybrid or included clerical duties. Instead, Plaintiff argues that they are “valid comparators” because “Defendant considered Plaintiff a supervisor just like Harlan, Dennis, and Wickhenho[e]fer.” [Doc. 28 at 9.] However, merely being considered a supervisor is not enough to satisfy Title VII's similarity requirement. See Spencer, 919 F.3d at 207 (noting that “the plaintiff must provide evidence that the proposed comparators are not just similar in some respects, but similarly-situated in all respects” (internal quotation marks omitted)). Nor has Plaintiff shown any other circumstances that raise a reasonable inference of unlawful discrimination with respect to her position being eliminated. Accordingly, the undersigned concludes that Plaintiff has not established the fourth element of her prima facie case.
Additionally, to the extent Plaintiff contends that Magee is a comparator because she took over some of Plaintiff's job duties [Doc. 28 at 9], Plaintiff has not shown that Magee's job was similar to Plaintiff's. Before taking over Plaintiff's clerical duties, Magee had been a unit secretary. [Doc. 28-2 at 17:12-17.]
Indeed, it is undisputed that Plaintiff's position was not left open or filled. Instead, as stated, Plaintiff's job duties were redistributed to Magee and Wickenhoefer. [Doc. 28-2 at 17:2-18:9]; see Ruddy v. Bluestream Pro. Serv., LLC, 444 F.Supp.3d 697, 708 (E.D. Va. 2020) (“Courts, including the Fourth Circuit, have uniformly held that the redistribution of work to other employees, after eliminating a position, does not constitute replacement sufficient to satisfy the fourth prong of the McDonnell-Douglas test.”).
Additionally, as argued by Defendant, even if Plaintiff could establish a prima facie case, she cannot show that Defendant's legitimate, nondiscriminatory reason for eliminating Plaintiff's position is a pretext for discrimination. [Doc. 27-1 at 20-22.] Defendant has articulated a legitimate, nondiscriminatory reason for the reorganization. Specifically, Defendant asserts that Moore determined that Defendant could increase efficiency by eliminating the clinical coordinator position because the position had become more clerical in nature rather than managerial and the ACC had three other supervisors. [Id. at 8-10, 20-22; see Docs. 28-2 at 14:6-16:17; 28-4 at 5:22-6:14.] Therefore, the Court will consider whether Plaintiff has met her burden of demonstrating that Defendant's proffered reason is merely a pretext for discrimination, which would indicate whether Plaintiff could meet her ultimate burden of persuasion and demonstrate discrimination vel non. See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010).
Generally, to prove an employer's articulated reason is a pretext for discrimination, a plaintiff “must prove ‘both that the reason was false, and that discrimination was the real reason' for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (quoting St. Mary's Honor Ctr., 509 U.S. at 515). However, “a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). Ultimately, to survive summary judgment, a plaintiff must demonstrate “a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016).
Here, Plaintiff offers three arguments to show that Defendant's proffered reason for terminating her position is a pretext for race discrimination: (1) Defendant failed to document the alleged reorganization that led to Plaintiff's position being eliminated; (2) Defendant failed to investigate Plaintiff's hostile work environment complaint; and (3) Defendant eliminated Plaintiff's position shortly following her hostile work environment complaint. [Doc. 28 at 10-13.] As an initial matter, Plaintiff's second and third arguments apply more to her retaliation claim than her discrimination claim and, as such, the Court addresses these arguments when analyzing Plaintiff's retaliation claim, infra. With respect to Plaintiff's argument that Defendant's “failure to document the alleged reorganization that led to the elimination of Plaintiff's position is evidence that the stated basis for the adverse action taken against Plaintiff is pretext for unlawful discrimination” [Doc. 28 at 10], Defendant's burden is one of production, not persuasion, regarding its legitimate, nondiscriminatory reason, see Burdine, 450 U.S. at 253-55; EEOC v. Clay Printing Co., 955 F.2d 936, 941 (4th Cir. 1992) (“It is simply a burden of production not of persuasion.”). Here, Defendant has met that burden through Moore's and Cummings' testimony. [Docs. 28-2 at 14:6-16:17; 28-4 at 5:22-6:14.] In response, Plaintiff has failed to put forth any evidence to create a genuine dispute of material fact regarding whether her position was eliminated because of her race. See Guessous, 828 F.3d at 217. Accordingly, even if Plaintiff could establish a prima facie case of discrimination related to her position elimination, Defendant would be entitled to summary judgment on this claim because Plaintiff has failed to demonstrate a genuine factual dispute on the question of pretext. Thus, Defendant's motion for summary judgment should be granted with respect to Plaintiff's race discrimination claim.
Plaintiff relies on two cases for the proposition that a lack of documentation may show pretext. [Doc. 28 at 10-11 (citing Lloyd v. Ga. Gulf Corp., 961 F.2d 1190, 1195 (5th Cir. 1992); Cade v. Astrue, No. 2:11-cv-03498-PMD-BM, 2014 WL 4635568 (D.S.C. Sept. 15, 2014).] However, the employees in Lloyd and Cade were terminated for poor performance. Lloyd, 961 F.2d at 1194; Cade, 2014 WL 4635568, at *4. The Court in Cade found that “a jury may reasonably infer that Defendant would have attempted to utilize some corrective or progressive disciplinary measures prior to terminating Plaintiff if Defendant was, in fact, concerned with Plaintiff's performance.” Cade, 2014 WL 4635568, at *6. The same is not true of a decision to eliminate a position to increase efficiency where the job duties can be handled by other employees. And Plaintiff has not directed the Court to any case law suggesting that a lack of documentation regarding a decision to eliminate a position creates a genuine issue of material fact regarding pretext.
Hostile Work Environment Claim
Defendant argues Plaintiff cannot establish a hostile work environment claim. [Doc. 27-1 at 22-25.] The Court agrees.
Title VII prohibits creating or allowing a hostile work environment based on race, color, religion, sex, or national origin. See Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006). To prove a hostile work environment based on race, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (internal quotation marks omitted).
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court reaffirmed the standard for determining when a plaintiff has established a hostile work environment, stating that a plaintiff must establish that the environment was “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787. Actionable harassment occurs when the workplace is “permeated with <discriminatory intimidation, ridicule, and insult.'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). Title VII is not a “general civility code.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). “Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). Complaints based on nothing more than rude treatment by co-workers, callous behavior by supervisors, or a routine difference of opinion and personality conflict with supervisors are not actionable under Title VII. Id.
When considering a plaintiff's claim that she was subjected to a hostile work environment, the Court must consider the totality of the circumstances. Harris, 510 U.S. at 23. Relevant factors “may include the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. “To be actionable, the conduct must create an objectively hostile or abusive work environment, and the victim must also perceive the environment to be abusive.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001).
Here, Plaintiff has not established a hostile work environment based on race. Plaintiff has not established that the conduct complained of in this case was sufficiently severe or pervasive to create an abusive atmosphere and alter the conditions of her employment. See Sunbelt Rentals, 521 F.3d at 315-16 (citing cases holding that complaints based on rude treatment, callous behavior by superiors, or a difference of opinion or personality conflict with a supervisor are not actionable under Title VII); Harvey v. Saluda Smiles Family Dentistry, 210 F.Supp.3d 812, 821 (D.S.C. 2016) (finding that the plaintiff had not established she experienced severe or pervasive harassment where the plaintiff alleged ?nitpicking” by her superior, being chastised in front of a patient, and ongoing friction with her superior). Nor has Plaintiff directed the Court to any evidence to support an inference that any complained-of conduct was motivated by race. In her memorandum opposing the summary judgment motion, Plaintiff contends that her indirect evidence-that she “was the only African American supervisor who reported to Moore and Sturgill, who are also Caucasian” and that her “Caucasian counterparts were not spoken to or treated in the same manner Plaintiff was”-is sufficient to support an inference of discrimination. [Doc. 28 at 13.] However, “[l]aw does not blindly ascribe to race all personal conflicts between individuals of different races.... Instead, legally sufficient evidence is required to transform an ordinary conflict . . . into an actionable claim of discrimination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 282 (4th Cir. 2000). Moreover, Plaintiff's own testimony does not support her contention that her “Caucasian counterparts were not spoken to or treated in the same manner.” [E.g., Doc. 27-2 at 25:11-13 (testimony that Wickenhoefer “retired because she just couldn't take Angie anymore”), 54:19-55:24 (testimony that Dale Hutson, a white employee, sent Plaintiff a text message, stating, “I'm so sorry you're not here, but I am so glad you're not [because] they treat us all like dogs”); see also id. at 90-91 (screenshots of text messages)]. Accordingly, for all of these reasons, Defendant's motion for summary judgment should be granted as to Plaintiff's hostile work environment claim.
In her memorandum opposing the summary judgment motion, Plaintiff states that her hostile work environment claim is based on the following unwelcome conduct: “Moore and Sturgill confronted Plaintiff at the nurses' station and told her that she needed to get on board with them and that if she could not, she needed to be looking for another job”; Sturgill “raised her voice and stated that Plaintiff did not know how to lead a unit”; Sturgill “stated that Plaintiff was not a good leader[,] that she did not know how Plaintiff got her position[,] and that she was going to be making changes to the unit, including bringing in younger nurses, because there was dead weight and the unit was old and stagnant”; and Sturgill “told the nurses and nurse techs that Plaintiff supervised that they did not have to report to Plaintiff and that she did not make their schedules.” [Doc. 28 at 14-15.]
Retaliation Claims
Under Title VII and the ADEA, an employer is forbidden from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). The purpose of this antiretaliation provision is to prevent “an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). The McDonnell Douglas burden-shifting framework, discussed supra, applies to Title VII and ADEA retaliation claims. Buchhagen v. ICF Int'l, Inc., 650 Fed.Appx. 824, 828 (4th Cir. 2016); Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 249 (4th Cir. 2015).
As previously stated, Plaintiff concedes to the dismissal of her age discrimination claim. [Doc. 28 at 2 n.1.] However, she has not specifically conceded to the dismissal of her retaliation claim under the ADEA, and in her memorandum in opposition to the summary judgment motion, Plaintiff references retaliation generally without specifying whether she is referring to a retaliation claim under Title VII, the ADEA, or both. [Id. at 15-17.] Thus, out of an abundance of caution, the Court addresses retaliation under both Title VII and the ADEA.
Through the two clauses of the antiretaliation provision, Title VII and the ADEA protect activities that “fall into two distinct categories: participation or opposition.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998); see also 29 U.S.C. § 623(d). Here, Plaintiff alleges she engaged in opposition activity.
To establish a prima facie case of retaliation, a plaintiff must demonstrate “(1) she engaged in a protected activity, (2) the employer acted adversely against her, and (3) there was a causal connection between the protected activity and the asserted adverse action.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). Here, even assuming Plaintiff can establish a prima facie case of retaliation, as previously noted, Defendant has articulated a legitimate, nonretaliatory reason for eliminating Plaintiff's position: Moore determined that Defendant could increase efficiency by eliminating the clinical coordinator position because the position had become more clerical in nature rather than managerial, and the ACC had three other supervisors. [Doc. 27-1 at 8-10, 20-22, 28-29; see Docs. 28-2 at 14:6-16:17; 28-4 at 5:22-6:14.] Because Defendant has articulated a legitimate, nonretaliatory reason for eliminating Plaintiff's position, the Court will consider whether Plaintiff has met her burden of demonstrating that Defendant's proffered reason is merely a pretext for retaliation, which would indicate whether Plaintiff could meet her ultimate burden of persuasion and demonstrate retaliation vel non. See Merritt, 601 F.3d at 294.
As one court within the Fourth Circuit has noted, “[t]he relevance of the McDonnell Douglas scheme outside of the trial context is limited.” Lerner v. Shinseki, No. ELH-10-1109, 2011 WL 2414967, at *14 (D. Md. June 10, 2011). The Fourth Circuit has observed,
Notwithstanding the intricacies of proof schemes, the core of every Title VII case remains the same, necessitating resolution of “the ultimate question of discrimination vel non.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983). As the Supreme Court has explained, “[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). Thus, “[c]ourts must . . . resist the temptation to become so entwined in the intricacies of the [McDonnell Douglas] proof scheme that they forget that the scheme exists solely to facilitate determination of ‘the ultimate question of discrimination vel non.'” Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (citation omitted).Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294-95 (4th Cir. 2010). Further, the Supreme Court has stated,
Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether “the defendant intentionally discriminated against the plaintiff.”Aikens, 460 U.S. at 715 (quoting Burdine, 450 U.S. at 253); see Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (“The Aikens principle applies, moreover, to summary judgment as well as trial proceedings.”). In light of this guidance from the Supreme Court and the Fourth Circuit Court of Appeals, the Court agrees with the District of Maryland that where the employer has met its burden of articulating a legitimate, nondiscriminatory reason for its adverse action against the plaintiff, the Court may assume, without deciding, that the plaintiff has established a prima facie case of discrimination. See Lerner, 2011 WL 2414967, at *14.
With respect to the prima facie case for Plaintiff's retaliation claims, Defendant argues that Plaintiff has failed to produce any evidence of a causal link because “the decision makers (Moore and Weiskittel) knew nothing of her [protected] activity.” [Doc. 271 at 28.] However, “the burden for establishing causation at the prima facie stage is less onerous” than at the pretext stage. Foster, 787 F.3d at 251 (internal quotation marks omitted). Here, the short period of time between Plaintiff's May 20th email to Cummings, where Plaintiff mentioned a questionable hostile work environment, and the late May decision to eliminate Plaintiff's position is likely enough to meet this burden. Addison v. CMH Homes, Inc., 47 F.Supp.3d 404, 427 (D.S.C. 2014) (noting that, “[i]n certain circumstances, temporal proximity between the protected activity and the adverse action can be probative of a causal connection”). Although Defendant argues that only Moore and Weiskittel made the decision to eliminate Plaintiff's position and that they did not know about her complaint, record evidence shows that Cummings was at least involved in the discussions regarding eliminating the position. [Docs. 28-2 at 14:6-18, 15:12-16:17; 28-4 at 4:19-5:21.] Accordingly, given the lower burden for establishing causation at the prima facie stage, the undersigned declines to recommend that summary judgment be granted on Plaintiff's retaliation claims based on a failure to establish a prima facie case.
To survive summary judgment on a retaliation claim, a plaintiff must show that the protected activity was a but-for cause of the adverse action. Guessous, 828 F.3d at 218. The plaintiff must demonstrate ?a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Id. at 217.
Here, Plaintiff has failed to demonstrate a genuine factual dispute on the question of pretext. As previously noted, the burden for establishing causation at the pretext stage is more onerous. Foster, 787 F.3d at 251. Although “temporal proximity of events may establish a prima facie case for retaliation, ‘temporal proximity alone does not rebut [a defendant's] legitimate, and uncontested, ground of termination.'” Dziwulski v. Mayor & City Council of Baltimore, No. DLB-18-277, 2020 WL 1034539, at *11 (D. Md. Mar. 3, 2020) (citing cases); see Staley v. Gruenberg, 575 Fed.Appx. 153, 156 (4th Cir. 2014). Plaintiff relies heavily on temporal proximity to support her allegation that her position was eliminated because she complained about race and age discrimination. [Doc. 28 at 10-13, 17 (offering three arguments to show that Defendant's proffered reason for terminating her position is pretext for unlawful retaliation: Defendant (1) failed to document the alleged reorganization; (2) failed to investigate Plaintiff's hostile work environment complaint; and (3) eliminated Plaintiff's position shortly following her hostile work environment complaint).] However, Plaintiff has directed the Court to no evidence to support this allegation. Nor does the record support this allegation.
The Court has addressed Plaintiff's argument regarding lack of documentation, supra, with respect to her race discrimination claim.
Although, as mentioned, the record includes evidence that Cummings was involved in discussions about eliminating Plaintiff's position, Cummings testified that Moore made the initial suggestion to eliminate the position. [Doc. 27-5 at 15:9-11.] And it is undisputed that Moore did not know Plaintiff had complained about a hostile work environment.[Docs. 27-3 at 10:14-17 (Shorter's testimony that she did not mention Plaintiff's name during her conversation with Moore about an employee's concerns); 27-4 at 28:9-16 (Moore's testimony that she was not aware that Plaintiff had reached out to Cummings about a hostile work environment)]; see Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124 (4th Cir. 2021) (“In this Circuit, we have consistently required proof of a decisionmaker's knowledge of protected activity to support a . . . retaliation claim.”). Additionally, Moore testified that her duties and goals as vice president of surgical services include ensuring that the departments she manages meet Defendant's metrics, finding more efficient ways to meet these metrics, and increasing volume and profitability. [Doc. 27-4 at 9:13-10:16.] Eliminating a position and re-assigning those job duties to other employees already on staff aligns with those goals. Plaintiff has failed to direct the Court to any evidence from which a reasonable factfinder could infer pretext.
Plaintiff cites Moore's testimony that the decision to eliminate Plaintiff's position was made about two to three weeks before the elimination occurred for the proposition that “[i]nstead of investigating Plaintiff's concerns of discrimination, Defendant began the process of removing Plaintiff from her position.” [Doc. 28 at 12.] However, because it is undisputed that Moore did not know about Plaintiff's complaint when she suggested that her position be eliminated, the purported failure to investigate Plaintiff's complaint does not create a genuine issue of material fact regarding pretext.
As previously stated, the change to pod nursing was an attempt to increase efficiency. [Doc. 27-4 at 18:6-22.]
For all of these reasons, Plaintiff has not demonstrated “a genuine dispute of material fact on the question of pretext sufficient to make [Defendant's] proffered justification a triable issue.” Guessous, 828 F.3d at 217. Accordingly, Defendant's motion for summary judgment should be granted with respect to Plaintiff's retaliation claims.
The Court notes that Plaintiff has objected under Rule 56(c)(2) of the Federal Rules of Civil Procedure to “snippets of Plaintiff's deposition testimony” that Defendant has characterized “as amounting to direct admissions of law.” [Doc. 28 at 21.] However, Plaintiff has failed to identify any specific testimony that cannot be presented in a form that would be admissible. Fed.R.Civ.P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”); see also Halebian v. Berv, 869 F.Supp.2d 420, 443 n.24 (S.D.N.Y. 2012) (finding Fed.R.Civ.P. 56(c)(2) “does not oblige a district court to consider an objection that is entirely lacking in particularity and directed to the entirety of the record before it, a task that would initially require the opposing party to advance all of the possible grounds for admission of each piece of evidence before imposing on the district court the task of first recognizing and then weighing the merit of all of the contrary grounds for exclusion, none of which the objecting party has deigned to bring to its attention.”) Because Plaintiff has not directed the Court to the specific testimony she challenges, Plaintiff's general and unsupported objection is denied.
State Law Defamation Claim
Plaintiff's state law defamation claim could be heard by this Court through the exercise of supplemental jurisdiction, which allows federal courts to hear and decide state law claims along with federal law claims. Federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), however, if “the district court has dismissed all claims over which it has original jurisdiction.” In deciding whether to exercise supplemental jurisdiction, courts look at “convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Further, the Supreme Court has warned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law....[I]f the federal claims are dismissed before trial . . . the state law claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
A civil action for Plaintiff's state law claim could be cognizable in this Court under the diversity statute, if that statute's requirements are satisfied. However, this Court does not have diversity jurisdiction in this case because Plaintiff and Defendant apparently are both citizens of South Carolina [Docs. 1-1 at 3 ¶¶ 1-2; 7 ¶¶ 1-2], which defeats the required complete diversity of parties, see 28 U.S.C. § 1332.
In the instant case, remand of the state law defamation claim is appropriate in light of the Shanaghan factors. The case originated in state court and, thus, Plaintiff would not have to file a new action. Moreover, the remaining claim presents state law questions. Based on these factors, the Court recommends that the district judge decline to exercise supplemental jurisdiction over Plaintiff's defamation claim in this case.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's motion for summary judgment [Doc. 27] be GRANTED with respect to Plaintiff's Title VII race discrimination and retaliation claims, ADEA discrimination and retaliation claims, and state law claim for negligent supervision. It is further recommended that the action be REMANDED to the state court to address Plaintiff's defamation claim.
IT IS SO RECOMMENDED.