Opinion
Civil Action 4:20-cv-1100-SAL-TER
01-05-2022
STEPHEN SWEIKATA, Plaintiff, v. TOWN OF KINGSTREE, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
Plaintiff originally filed this action in the Court of Common Pleas, Williamsburg County, South Carolina, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et seq., as well as state law claims for promissory estoppel and negligent misrepresentation. Defendant removed the case to this Court pursuant to 28 U.S.C. § 1446 and 28 U.S.C. § 1331. Presently before the Court is Defendant's Motion for Summary Judgment (ECF No. 22). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
At the times relevant to this action, Richard Treme was the Town Manager for Defendant Town of Kingstree. Treme Dep. 9 (ECF No. 23-3). Leonard Lowery was the Director of Human Resources for the Town of Kingstree. Lowery Dep. 13 (ECF No. 23-2). Treme is the person with the sole authority to hire and fire police officers, but he does not typically have the occasion to observe the officers' performance so he relies on information from the police chief to make hiring and firing decisions. Lowery Dep. 12 (ECF No. 23-2). James Barr was the Chief of Police in April of 2017 when Plaintiff was hired as a patrol officer. Barr Dep. 25 (ECF No. 23-1); Pl. Dep. 16 (ECF No. 23-4). Chief Williams was the Chief of Police at the time Plaintiff's employment was terminated. It is undisputed that Plaintiff is a white male over the age of 40.
In November 2017, Plaintiff was involved in the arrest of an 86-year-old man who had run a stop sign and refused to stop for police. The man finally stopped at an intersection, exited his vehicle, raised his hands, but then backed away from the officers. At Lt. Carl Scott's orders, Plaintiff tased the man. He fell backwards, hit his head, and was seriously injured. The Town of Kingstree subsequently settled a lawsuit filed by the man for roughly $900,000. Neither Plaintiff nor Lt. Scott were disciplined for their actions. Pl. Dep. 55-57 (ECF No. 22-2). Chief Barr was the Chief of Police at the time of this incident and testified that Plaintiff did not do anything wrong. Barr Dep. 29 (ECF No. 23-1). However, Plaintiff testified at both a Department of Employment and Workforce (DEW) hearing and during his deposition in this action that he believed he was targeted at work as a result of the tasing incident. DEW Testimony, Bates 1125-1127 (ECF No. 22-8); Pl. Dep. 55-57 (ECF No. 22-2). During the DEW hearing, when asked if he saw “a presentable change in the way you were treated after [the tasing] incident, Plaintiff testified, “yeah, I was shunned and a lot of other things after that incident.” DEW Testimony, Bates 1127. During his deposition, Plaintiff testified that he believed he was targeted for the tasing incident because he cost the town $900,000. Pl. Dep. 57 (ECF No. 22-2). Plaintiff testified that one of the first things Chief Williams said after he was hired was that he could not believe that “two of yous [sic] couldn't handle an 85 year old man that you needed to tase him.” Pl. Dep. 57 (ECF No. 22-2).
In March of 2018, Plaintiff got into an argument with another officer, Kadeem Lucas, a black male and 30 years old. Miller Statement (ECF No. 22-3); Pl. Dep. 22, 27 (ECF No. 22-2). Plaintiff told Lucas that he needed to move his vehicle from the front parking lot. Pl. Dep. 22 (ECF No. 22-2); Miller Statement. Lucas told Plaintiff to lose the “fucking attitude” and Plaintiff called Lucas a “fucking rookie.” Pl. Dep. 22 (ECF No. 22-2); Miller Statement. Plaintiff walked outside and Lucas followed, and the two continued to exchange words in an argumentative manner. Pl. Dep. 23; (ECF No. 22-2); Miller Statement. Another officer, C. Miller, observed Plaintiff standing outside after both she and Officer Lucas had moved their cars and she asked Plaintiff “what's up?” Miller Statement. Plaintiff replied, “nothing, just waiting to see if he had anything else to say.” Miller Statement; Pl. Dep. 24. Plaintiff and Officer Lucas began exchanging words again in an argumentative manner. Miller Statement; Pl. Dep. 25. Officer Miller attempted to split them up but was unsuccessful so she went inside and informed Lt. Scott of what was happening. Miller Statement. In her written statement, Officer Miller states that Lt. Scott went outside to diffuse the situation, but Plaintiff testified in his deposition that Lt. Scott did not come outside. Miller Statement; Pl. Dep. 25. Plaintiff testified that he got into his vehicle and drove away and Lt. Scott called him on his radio to return to the station. Pl. Dep. 26. Lt. Scott spoke to Plaintiff and Lucas individually and then together. Pl. Dep. 26. Lt. Scott, who was interim Chief of Police at the time, completed a corrective action form for Plaintiff and directed him to refrain from being abusive or negative with co-workers. Corrective Action Form dated 3/27/18 (ECF No. 22-4). Plaintiff assumed that Lucas received the same treatment but later learned from Lucas that nothing ever happened to him as a result of the incident. Pl. Dep. 26.
On April 7, 2018, Williams became the Chief of Police for the Town of Kingstree. Williams Dep. 14 (ECF No. 23-8).
In July of 2018, Plaintiff was given a written warning not to discuss internal information of the Kingstree Police Department with members of another agency. Memo dated 7/29/18 (ECF No. 22-5). The memorandum indicated that Plaintiff had previously been warned by Chief Williams about spending excessive amounts of time at the Kingstree Fire Department. Memo dated 7/29/18. Plaintiff was warned that if the noted issues continued, “disciplinary actions may follow.” Memo 7/29/18.
On August 31, 2018, Plaintiff and the principal at Kingstree High School had an argument after Plaintiff responded to call about a fight at the school. Pl. Dep. 29 (ECF No. 22-2); Corrective Action Form dated 8/31/18 (ECF No. 23-10). Plaintiff testified that the principal “told me what I was going to do and how I was going to do it. I said I would do what I'm supposed to do.” Pl. Dep. 29 (ECF No. 22-2). Plaintiff testified that she wanted him to press charges against somebody and he told her that was not her decision. Pl. Dep. 31 (ECF No. 22-2). The principal called Chief Williams to complain that Plaintiff was being disrespectful and rude to her. Pl. Dep. 30, 34. Chief Williams completed a corrective action form regarding the incident stating that Plaintiff needed to “show members of the public respect while attempting to de-escalate a situation.” Corrective Action Form dated 8/31/18. In addition, Chief Williams stated “any further performance and/or similar behavioral issues could lead to further disciplinary actions up to and including separation of employment.” Correction Action Form dated 8/31/18.
In response to the August 31, 2018, written reprimand, Plaintiff submitted a grievance to Chief Williams. Pl. Grievance (ECF No. 23-12). In the grievance, Plaintiff stated that Lt. Scott reviewed the body camera Plaintiff was wearing at the time of the incident with the principal at Kingstree High School and found no evidence that Plaintiff was rude or disrespectful to the principal. Id. Plaintiff also complained that the incident was not properly investigated in accordance with Policy No. 200.06 because no one spoke with either Plaintiff or the other officer on the scene prior to completing the written reprimand. Id. He also complained that he did not have an opportunity to answer the allegations against him because the meeting was interrupted by a call for service. Id.
After submitting this grievance to Chief Williams, Plaintiff also met with Treme to express his concern that Chief Williams and Lowery were conspiring against him. Treme Dep. 41-42 (ECF No. 22-9). Treme spoke to Chief Williams and Lowery about Plaintiff's concerns but did not otherwise investigate or address Plaintiff's complaint. Treme Dep. 42-43 (ECF No. 22-9).
On November 16, 2018, Chief Williams completed another corrective action form for Plaintiff's failure to activate his body camera during a traffic stop. Corrective Action Form dated 11/16/2018 (ECF No. 22-6). Plaintiff's failure to do so was discovered when he received a citizen complaint about the traffic stop and there was no video of the stop. Corrective Action Form dated 11/16/18. Chief Williams noted that Plaintiff had been counseled in the past by himself, Lt. Scott, and HR Lowery about use of the body camera, but Plaintiff included on the form an employee comment stating that he had never received any previous counseling on the issue. Corrective Action Form dated 11/16/18.
Plaintiff had a difference of opinion with Chief Williams with respect to the level of communication he was required to maintain with the police department when he was off-duty. Plaintiff testified that he did not answer calls from the department to his personal cell phone when he was off-duty. Pl. Dep. 44 (ECF No. 22-2). Plaintiff was not provided with a cell phone from the Town of Kingstree, and he testified that it was against Town policy to use personal equipment for Town business. Williams Dep. 43-44 (ECF No. 23-8); Pl. Dep. 42-43 (ECF No. 22-2); see Employee Handbook p. 17 (ECF No. 23-13) (“Use only Town provided tools or equipment unless otherwise authorized.”). On one occasion shortly after the incident at the high school, Plaintiff sent an email to Chief Williams right before he ended his shift and headed home. Pl. Dep. 44-45 (ECF No. 22-2). During Plaintiff's 45 minute commute home, Chief Williams called Plaintiff several times on his personal cell phone. Pl. Dep. 44 (ECF No. 22-2). Plaintiff testified that he purposefully did not answer Chief Williams' calls because he knew what he wanted to talk about. Pl. Dep. 44 (ECF No. 22-2). Chief Williams also had Lt. Scott call Plaintiff on his house phone and he left messages for Plaintiff to call Chief Williams. Pl. Dep. 44-45 (ECF No. 22-2). Plaintiff called Chief Williams once he arrived at home. Pl. Dep. 45 (ECF No. 22-2). Chief Williams was irate and directed Plaintiff to answer his cell phone at all times if he got calls from the department in the future. Pl. Dep. 44-45 (ECF No. 22-2). Plaintiff testified that he answered any calls to his cell phone from the department from that point forward. Pl. Dep. 45 (ECF No. 22-2).
It is not clear from the record exactly when this incident occurred.
Plaintiff also believed he was not responsible for checking his work emails while he was off-duty. Pl. Dep. 42 (ECF No. 22-2). However, Lt. Scott emailed all officers on at least two occasions notifying them to check their work emails daily, regardless of whether they were on duty. Lt. Scott Emails (ECF No. 22-7). On September 17, 2018, Lt. Scott emailed officers and stated
Emails-We each have been issued an[] email address. Our emails are not just for when we arrive at work. We also need to check our emails when we are not at work. There is a lot of information that is being sent out even when you are not on duty.
Lt. Scott Emails. On September 27, 2018, Lt. Scott again reminded officers of their responsibility to check emails daily:
Work Emails-Each officer has been provided a email by the town. Each of us should be checking our emails daily. This does not mean that you only check them when you come to work. Work emails need to be checked daily.
Lt. Scott Emails. Plaintiff had both a personal cell phone and a personal lap top at the time he was employed with Defendant. Pl. Dep. 43 (ECF No. 22-2).
On March 4, 2019, Patrol Officer Christopher Arroyo, who was in charge of training, emailed all officers informing them that everyone needed to attend shotgun training on March 6, 2019, at 9:00 am. Arroyo Statement (ECF No. 22-12). It is undisputed that Plaintiff did not work on March 4 or 5, 2019. On the morning of the training, Arroyo called Plaintiff at his home to inform him to bring his department issued shotgun in to turn into Lt. Brockenberry. Arroyo Statement. Plaintiff did not answer the call. Id. Arroyo called Plaintiff again at 9:00 am to check on his time of arrival since the class was about to start. Id. Plaintiff again did not answer the call, but returned Arroyo's call approximately one minute later, explaining the he had been asleep. Id. Plaintiff indicated that he was not aware of the training but would be in route. Id. Due to Plaintiff's distance from the police department, Arroyo advised Plaintiff there would be no need for him to come in at that time since the training would be over by the time he arrived. Id. Plaintiff testified that Arroyo told him he could complete the training the next day. Pl. Dep. 47 (ECF No. 22-2). Arroyo testified that he could not recall whether he told Plaintiff this or not. Arroyo Dep. 32 (ECF No. 23-5). Arroyo informed Chief Williams that Plaintiff would not be attending the training that day. Arroyo Statement.
Plaintiff also testified that when training had been scheduled in the past by Lt. Scott, officers would receive much more notice and would be advised of the training via text message, notes in their boxes, and a notice on the bulletin board. Pl. Dep. 49-50. Plaintiff believed this was Arroyo's first time scheduling training. Pl. Dep. 50 (ECF No. 22-2).
On March 7, 2019, Plaintiff was given a corrective action form terminating his employment. Corrective Action Form dated 3/6/19 (ECF No. 23-19). The form stated that Plaintiff “failed to report for scheduled training on March 6, 2019, at 0900 hours[. A]n email was sent to all of the patrol officers advising them of the training on March 4, 2019, at 1648 hours.” Corrective Action Form dated 3/6/19. Plaintiff added a statement to the form stating
I do not agree with this. I was sick the day of training and did call out as such. Email did not go ‘til after 1700 on Monday my day off. When called by Cpl. Arroyo at 0900 was told not to come in. I could do the training tomorrow with the patrol rifle class.
Corrective Action Form dated 3/6/18. Chief Williams and Town Manager Richard Treme made the decision to terminate Plaintiff's employment. Williams Dep. 61 (ECF No. 23-8). Chief Williams was not aware that Arroyo had told Plaintiff he could complete the training the next day. Williams Dep. 64-66 (ECF No. 23-8). Treme testified that police officers are hard to come by and if the police chief comes to him about a problem with an officer, his preference is for the police chief and the officer to work through the concern. Treme Dep. 43 (ECF No. 22-9). He testified that Chief Williams and HR Director Lowery shared his desire to make every effort to correct a situation “and it just wasn't happening with” Plaintiff. Treme Dep. 44 (ECF No. 22-9). Treme testified that Plaintiff's write-ups were continual and were more or less about the same thing. Treme Dep. 43 (ECF No. 22-9). Treme took into account all of the previous issues with Plaintiff in concluding that termination was appropriate. Id.
Treme testified that he does not issue write-ups, or corrective action forms, but he does “sign off” on them, which means that he “basically agree[s] with it.” Treme Dep. 46 (ECF No. 22-9). He also testified that he has never done an independent investigation of the incident prior to signing off on a write-up. Id.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. Discrimination
Plaintiff alleges that Defendant discriminated against him based on both his race and his age in violation of Title VII and the ADEA. Title VII makes it “an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his 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). The ADEA makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. 29 U.S.C. § 623(a)(1).
The McDonnell Douglas burden-shifting framework applies to claims under both Title VII and the ADEA. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) Under this burden-shifting scheme, Plaintiff has the initial burden of establishing a prima facie case of discrimination. Id.
The Supreme Court has noted that it “has not definitively decided” whether the McDonnell Douglas framework, first developed in the context of Title VII cases, “is appropriate in the ADEA context.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 n.2, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In the absence of further direction from the Supreme Court, the Fourth Circuit precedent has consistently applied the McDonnell Douglas framework to ADEA claims. See Hill, 354 F.3d at 285; see also Bodkin v. Town of Strasburg, 386 Fed.Appx. 411, 2010 WL 2640461 at *4-5 (4th Cir. June 29, 2010) (continuing to apply the McDonnell Douglas framework to ADEA claims following the Gross opinion); Loose v. CSRA Inc., No. 19-2394, 2021 WL 4452432, at *2 (4th Cir. Sept. 29, 2021) (continuing to apply the McDonnell Douglas framework to ADEA claims).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for the disparate treatment. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). This is merely a burden of production, not of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993).
Once Defendant has met its burden of production by producing its legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000)(citing Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendant is not its true reasons, but was pretext for discrimination. Reeves, 530 U.S. at 143. Throughout the burden shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving that Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff. Plaintiff has the ultimate burden of presenting evidence from which a reasonable jury could conclude defendant intentionally discriminated against him.
To establish a prima facie case of discrimination under either Title VII or the ADEA, a plaintiff must show (1) he belongs to a protected class; (2) he suffered an adverse employment action; (3) at the time of the adverse action, he was performing his job at a level that met his employer's legitimate expectations; and (4) he suffered the adverse action under circumstances giving rise to an inference of unlawful discrimination. Adams v. Trustees of the Univ. of N.C. -Wilmington, 640 F.3d 550, 558 (4th Cir. 2011) (Title VII); Halperin v. Abacus Tech. Corp., 128 F.3d 191, 201 (4th Cir. 1997) abrogated on other grounds by Baird ex rel. Baird v. Rose, 192 F.3d 462, 469 n.8 (4th Cir. 1999) (ADEA). Circumstance giving rise to an inference of unlawful discrimination include when similarly situated employees outside the plaintiff's protected class receive more favorable treatment, White v. BFI Waste Svcs., LLC, 375 F.3d 288, 295 (4th Cir. 2004), or when, following the employee's discharge, he was replaced by someone outside the protected class. Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998).
With respect to Plaintiff's prima facie requirements, Defendant focuses its argument on Plaintiff's failure to meet the fourth prong, that is, to show that the adverse action he suffered arose under circumstances giving rise to an inference of unlawful discrimination. In his response, Plaintiff asserts that he suffered adverse employment actions when he received write ups and when he was terminated. Thus, he must next present evidence sufficient to show that these adverse employment actions occurred under circumstances giving rise to an inference of discrimination.
Plaintiff also argues that he suffered adverse action when his grievance request was ignored. Following the written reprimand Plaintiff received on August 31, 2018, for arguing with the principal at Kingstree High School, Plaintiff submitted a grievance to Chief Williams. Pl. Grievance (ECF No. 23-12). In the grievance, Plaintiff set forth his disagreement with the reprimand and that it was not properly investigated. Pl. Grievance. He further complained of what he felt to be unfair treatment by Chief Williams. Pl. Grievance. Treme spoke to Chief Williams and Lowery about Plaintiff's concerns but did not otherwise investigate or address Plaintiff's complaint. Treme Dep. 42-43 (ECF No. 22-9). To the extent this can be considered an adverse employment action, Plaintiff fails to present evidence sufficient to give rise to an inference of discrimination. Other than mentioning it as an adverse action, he does not further address this claim.
Defendant does not challenge whether or not the written reprimands received by Plaintiff were adverse employment actions. See, e.g., Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 429 (4th Cir.2015) (holding that a formal, written reprimand does not amount to an adverse employment action unless the reprimand has potential collateral consequences that rise to the level of an adverse employment action).
As to the written reprimands he received, Plaintiff points to Officer Lucas as a similarly situated employee outside of his protected class who received more favorable treatment than he did. Thus, Plaintiff fails to present evidence sufficient to give rise to a discrimination claim arising out of any of the other written reprimands. As discussed above, Plaintiff and Officer Lucas got into an argument when Plaintiff told Officer Lucas to move his vehicle. Plaintiff received a Corrective Action form and Officer Lucas, a 30 year old black officer, did not. When plaintiffs “base[] their allegations completely upon a comparison to an employee from a non-protected class, ... the validity of their prima facie case depends upon whether that comparator is indeed similarly situated.” Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010). While comparators need not “be precisely equivalent to the plaintiff, ” Witherspoon v. Brennan, 449 F.Supp.3d 491, 500 (D. Md. 2020), comparators must be “similar in all relevant respects, ” including having “engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it, ” Haywood, 387 Fed.Appx. at 359 (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). A plaintiff must also show that the comparator worked under the same supervisor and was subject to the same standards as the plaintiff. Id.
Here, both Plaintiff and Officer Lucas were patrol officers who reported during that time to Lt. Scott who was the Acting Chief during the interim between Chief Barr and Chief Williams. Pl. Dep. 17 (ECF No. 22-2). Defendant further argues that differentiating circumstances exist to distinguish Plaintiff's conduct from Officer Lucas's conduct. It argues that Plaintiff instigated the argument between the two by telling Officer Lucas to move his vehicle. Further, Plaintiff does not dispute that he waited outside while Officer Lucas moved his vehicle to continue the argument. Miller Statement; Pl. Dep. 24; Corrective Action Form dated 3/27/18. Plaintiff disputes that he was the aggressor. Pl. Dep. 26. Plaintiff testified that Lt. Scott spoke with both Plaintiff and Officer Lucas individually and then together. Pl. Dep. 26. In addition, Officer Miller provided a statement, as discussed above, regarding the incident prior to the reprimand being issued. Thus, based upon Lt. Scott's investigation, he determined that a written reprimand was appropriate for Plaintiff.
Defendant also argues that mitigating circumstances exist in that Officer Lucas was a rookie at the time while Plaintiff had much more experience as a patrol officer both with Kingstree and overall and, thus, Plaintiff was held to a higher standard. Even if Officer Lucas is a proper comparator such that his lack of a written reprimand gives rise to an inference of discrimination, the evidence is insufficient to show that Defendant's reason for issuing Plaintiff the reprimand was pretext for a discriminatory reason.
Defendant argues that Plaintiff admitted to his role in this incident. Lt. Scott conducted an investigation by discussing the incident with both individuals separately, then together, and obtaining a statement from a witness. Based on the information he received, he concluded that a written reprimand was appropriate for Plaintiff. “It is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.” Evans v. Technologies Applications & Svc. Co., 80 F.3d 954, 960-61 (4th Cir.1996); see Powell v. Biscuitville, Inc., 858 Fed.Appx. 631, 633 (4th Cir. 2021) (“in determining whether [plaintiff] engaged in the misconduct, ‘[i]t is the perception of the decision maker which is relevant.' ”) (quoting Evans). Once the defendant produces evidence of a legitimate, non-discriminatory reason for the adverse action, the inference of discrimination disappears and the plaintiff must show that the defendant's articulated reason was pretext for discrimination. Plaintiff fails to present evidence to meet this burden. Therefore, summary judgment is appropriate as to Plaintiff's claim for discrimination with respect to the written reprimand on March 27, 2018.
Plaintiff also mentions that he reported Officer Staggers, a young, black officer, for “safety concerns” to Chief Barr, Pl. Resp. p. 22, and Chief Barr recommended disciplinary action against Staggers, but Chief Barr was removed from his position before any action was taken. Plaintiff asserts that Staggers was promoted after Barr was removed despite the reported safety concerns. Compl. ¶ 13; Answer ¶ 13. However, Plaintiff fails to show that he and Staggers “engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.” Haywood, 387 Fed.Appx. at 359. Thus, he fails to show how these circumstances give rise to an inference of discrimination.
2. Termination
As for Plaintiff's termination, he argues that it occurred under circumstances giving rise to an inference of discrimination because there are currently no white police officers or officers older than Plaintiff working for Defendant. As stated above, a plaintiff can meet the fourth prima facie requirement by showing that he was replaced by someone outside the protected class. Causey, 162 F.3d at 802. While there were several white officers working for Defendant at the time Plaintiff was employed there, Pl. Dep. 28-29 (ECF No. 22-2), at the time of Treme's deposition on February 19, 2021, he testified that there were currently no white police officers working for Defendant. Treme Dep. 50 (ECF No. 50). He also testified that he did not believe that any patrol officers older than Plaintiff had worked for Defendant since Plaintiff's termination.
Defendant argues that because Treme both hired and fired Plaintiff, a presumption of non-discrimination exists. As noted by the Fourth Circuit, “claims that employer animus exists in termination but not in hiring seem irrational.” Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991); see also Jiminez v. Mary Washington, 57 F.3d 369, 378 (4th Cir. 1995). “[I]n cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.” Proud, 945 F.2d at 797. However, While Treme made the final call regarding Plaintiff's hiring and termination, Treme acknowledged that Williams made a recommendation to terminate Plaintiff that he approved. Treme Dep. 48 (ECF No. 23-3). Treme testified that he does not typically have the occasion to observe officers' performance, that he relied on information from Williams to make hiring and firing decisions. Treme Dep. 12. When asked, “Do you always take the word of your department head over your other employees, ” Treme testified that he did, “especially if it's a he said she said thing.” Treme Dep. 15. Treme also testified that he does not issue corrective actions and has never performed any type of independent investigation prior to signing off on a corrective action form. Treme Dep. 46. As such, Treme approving Williams' recommendation to terminate Plaintiff does not trigger the same-actor inference argued by Defendant. See Ako-Doffou v. Univ. of Texas at San Antonio, 71 Fed.Appx. 440 (5th Cir. 2003)(recognizing that the same-actor inference is inapplicable when a supervisor merely “rubber-stamped” the recommendations of his subordinates who harbored discriminatory animus toward the Plaintiff).
Given that the burden of establishing a prima facie case of discrimination test “is not onerous, ” Burdine, 450 U.S. at 253, these facts are sufficient to create an issue of fact as to whether Plaintiff was terminated under circumstances giving rise to an inference of discrimination. Thus, the burden shifts to Defendant to provide a legitimate, non-discriminatory reason for the termination.
Again, Defendant argues that he engaged in a No. of offenses and received a No. of reprimands that ultimately resulted in his termination. Further, Plaintiff admits to engaging in the conduct for which he was reprimanded and then terminated. The burden thus returns to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendant is not its true reasons, but was pretext for discrimination. Reeves, 530 U.S. at 143.
Plaintiff offers many reasons why Defendant's proffered reason for his termination is merely pretext for unlawful discrimination. First, he argues that Defendant is unable to offer and stand by a reason for Plaintiff's termination. Plaintiff argues that while Treme testified that the decision to terminate Plaintiff was based on several written reprimands he has in front of him and other issues that had come up about Plaintiff, Williams testified that Plaintiff would not always follow his chain of command and he would ask questions. Treme Dep. 13; Williams Dep. 19. Plaintiff also argues that the failure to investigate the circumstances surrounding Plaintiff's written reprimands is evidence of pretext. As noted above, Treme testified that he does not typically have the occasion to observe officers' performance, and thus he relied on information from Williams to make hiring and firing decisions. Treme Dep. 12. When asked, “Do you always take the word of your department head over your other employees, ” Treme testified that he did, “especially if it's a he said she said thing.” Treme Dep. 15. Treme also testified that he does not issue corrective actions and has never performed any type of independent investigation prior to signing off on a corrective action form. Treme Dep. 46. However, while this may be evidence that Williams, not Treme, was the true decision-maker with respect to Plaintiff's termination, it fails to show that the true reason for the termination was discrimination. Plaintiff also argues that the reason given for Plaintiff's termination was weak. However, this Court does not “sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (quotation and citation omitted). It is not the province of this Court to decide whether an employer's decision to terminate a plaintiff's employment was “wise, fair, or even correct, ” so long as it was not based on a plaintiff's protected trait. Id. The evidence in the record reveals that Plaintiff received reprimands for arguing with a coworker, discussing internal information of the police department with individuals outside the department, arguing with and disrespecting a member of the public who requested assistance, and failing to activate his body camera. He also failed to attend training despite being informed on more than one occasion that he was responsible for checking his emails on a daily basis regardless of whether they are on duty. As a result of his failure to attend the training, and considering the past reprimands, which were issued by more than one supervisor, the decision was made to terminate his employment. Plaintiff fails to present sufficient evidence to show that this was not the true reason for his termination but pretext for a discriminatory reason. Therefore, summary judgment is appropriate as to Plaintiff's discrimination claim based upon his termination.
Plaintiff also mentions as inconsistent the fact that Treme first testified that he could not recall Chief Williams ever bringing any concerns to his attention regarding Plaintiff, but also testified that he terminated Plaintiff's employment based upon several written reprimands he had in front of him. Treme Dep. 13. However, Plaintiff takes Treme's testimony out of context. Treme's testimony reflects that he did not recall any issues being raised by Chief Williams regarding Plaintiff until Chief Williams recommended that Plaintiff be terminated and at that time brought before Treme the issues he had been having with Plaintiff.
B. Retaliation
Plaintiff also alleges that Defendant retaliated against him for submitting a grievance to Chief Williams. Title VII contains an anti-retaliation provision. Title VII provides that it is an “unlawful employment practice for an employer to discriminate against any of his employees ... because he 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). To demonstrate retaliation, Plaintiff must show “(1) he engaged in protected activity; (2) he suffered an adverse employment action at the hands of his employer; and (3) his employer took the adverse action because of the protected activity.” Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 543 (4th Cir.2003) (internal citations and quotations omitted).
Protected activity includes an employee's opposition to what he or she believes is an unlawful employment practice. This opposition encompasses “utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir.1998). This inquiry first looks to whether the employee “communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination.” Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009).
Following the written reprimand Plaintiff received on August 31, 2018, for arguing with the principal at Kingstree High School, Plaintiff submitted a grievance to Chief Williams. Pl. Grievance (ECF No. 23-12). In the grievance, Plaintiff set forth his disagreement with the reprimand and that it was not properly investigated. He further complained of what he felt to be unfair treatment by Chief Williams. However, no where in the grievance did Plaintiff mention that he was being discriminated against because of his race. General complaints of unfair treatment are not protected activity. See Parker v. Ciena Corp., 787 Fed.Appx. 817, 820 (4th Cir. 2019) (holding that complaints “about general workplace grievances, ” such as a lack of resources and rude treatment in the workplace, did not constitute protected activity); Bowman v. Balt. City Bd. of Sch. Commr's, 173 F.Supp.3d 242, 248 (D. Md. 2016) (holding that “[g]eneral complaints of unfair treatment are not protected activity”). To constitute protected activity, the employer must have understood, or should have understood, that the plaintiff opposed unlawful discriminatory conduct. Burgess v. Bowen, 466 F. App'x. 272, 282 (4th Cir. 2012). “To determine whether an employer should have understood the complaint to constitute a protected activity, a court must consider whether the employer could have understood the complaint in the context in which it was made.” Bowman, 173 F.Supp.3d at 248. At the end of the grievance, Plaintiff mentions that Chief Williams has “self-admitted biases” towards him, and references an instance where Chief Williams stated to Plaintiff “I know you think I'm an ASS.” Pl. Grievance (ECF No. 23-12). Plaintiff states, “How can I expect to be treated fairly by you if you feel this way?” Id. Though use of the word “biases” could in some contexts lead an employer to understand that the plaintiff was complaining of unlawful discrimination, see, e.g., Bowman, 173 F.Supp.3d at 249 (holding that the plaintiff's complaint using the word “discrimination” about unfair treatment towards her as opposed to another teacher who was of the opposite race was sufficient to put the employer on notice that the plaintiff was complaining of racial discrimination), the context here does not lead to such a conclusion. In contrast to Bowman, Plaintiff does not complain of his treatment as compared to the treatment of other officers. Rather, he complains that Chief Williams failed to conduct a proper investigation before issuing a written reprimand in violation of department policy. He also complained that Chief Williams was biased against him because Chief Williams believed that Plaintiff thought he was an “ass.” These complaints would not have put Chief Williams on notice that Plaintiff was complaining of unlawful discrimination.
“Bias” is defined in part as “a inclination or outlook, especially: a personal and sometimes unreasoned judgment: prejudice.” See https://www.merriam-webster.com/dictionary/bias.
Further, Plaintiff testified that he believed Chief Williams targeted him as a result of his involvement in the tazing incident discussed above. Pl. Dep. 55-57 (ECF No. 22-2).
Nevertheless, even if Plaintiff's grievance could be considered a protected activity, Plaintiff fails to present evidence sufficient to show a causal connection between the grievance and his termination. “[A] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir.2004). However, the temporal nexus between two events cannot provide proof of causation unless the “temporal proximity between an employer's knowledge of protected activity and an adverse employment action” was “very close.” Clark County School District. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotation marks omitted). Plaintiff's grievance was submitted in response to the written reprimand he received on August 31, 2018. He was terminated on March 7, 2017, a little over six months later. In Clark, the Supreme Court did not define “very close, ” but cited cases where adverse employment action was taken three months and four months after the protected activity as insufficient proximity. See Id. at 273-74 (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997), Hughes v. Derwinski, 967 F.2d 1168, 11 74-75 (7th Cir.1991); see also Shields v. Fed. Exp. Corp., 120 Fed.Appx. 956, 963 (4th Cir.2005) (holding that three to four months was insufficient temporal proximity). Thus, Plaintiff's grievance was not sufficiently close in time to his termination to establish a causal connection, and Plaintiff fails to point to any other evidence showing a causal connection between the two.
Because the record fails to show a protected activity under Title VII or any causal connection between any purported protected activity and Plaintiff's termination, summary judgment is appropriate on Plaintiff's retaliation claim.
C. FLSA
Plaintiff alleges that Defendant violated the FLSA by failing to compensate him for time he spent checking his emails taking phone calls for work-related duties. The FLSA provides the exclusive remedial scheme to address employees' rights to be paid minimum wage and overtime. See 29 U.S.C. §§ 206(a), 207(a); Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir. 2007)(“Congress prescribed exclusive remedies in the FLSA for violation of its mandates.”). Section 207 prohibits employment for “a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a). “This requirement is applicable unless the time at issue is “de minimis.” Perez v. Mountaire Farms, Inc., 650 F.3d 350, 363 (4th Cir. 2011) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)).
Plaintiff testified that despite being required to check his email when he was off-duty, he was unable to do so from his home and, thus, did not. Pl. Dep. 42. He testified that he received “several” work-related phone calls while he was off-duty during his employment. Pl. Dep. 53-55. He testified that he was not required to sit at home and await calls. Pl. Dep. 54-55. Courts that have addressed this issue have found that minimal amounts of time spent answering phone calls or checking emails while off-duty is not compensable. See, e.g., Butler v. DirectSAT USA, LLC, 55 F.Supp.3d 793, 807-08 (D. Md. 2014) (“[T]ime spent by Butler reading emails regarding his next day's appointments, mapping out directions, and prioritizing his routes is not compensable under the FLSA.”); Alanis v. Tracer Indus. Mgmt. Co., No. 1: 13-CV-386, 2016 WL 7551073, at *9 (E.D. Tex. Aug. 1, 2016) (“As for the plaintiffs' allegations regarding work-related phone calls, the Court concludes that the defendant has established as a matter of a law that this time should be considered de-minimis. Valencia testified that he received calls only a 'couple of' times while employed on the project.”); Browne v. Cypress Energy Mgmt., LLC, No. 1: 16-CV-355, 2018 WL 2972957, at *19 (D.N.D. Apr. 25, 2018) (“This Court does not believe a reasonable jury could find that this monitoring of text messages, as Mr. Schaat describes it, converts the entirety of his on-call time into ‘working” time.'”).
Plaintiff points to the recent decision in Peterson v. Nelnet Diversified Solutions, LLC., 2021 WL 4704592 (10th Cir. Oct. 8, 2021) as persuasive. In Peterson, the Tenth Circuit found that a class of call center workers must be paid for the time they spend booting up their computers and loading software tools needed to interact with customers. Peterson, 2021 WL 4704592, at *2. The court determined that the time was not de minimis, in part, because the unpaid time occurred with extreme regularity-each and every shift. Id. at *30. Peterson is inapposite to the present case. The evidence in the record does not suggest that the calls occurred with “extreme regularity.” Plaintiff fails to show that the time he spent answering calls while off-duty fail was more than de minimis. Thus, summary judgment is appropriate on Plaintiff's FLSA claim.
D. State Law Claims
Plaintiff also asserts state law claims for negligent misrepresentation and promissory estoppel. Title 28 U.S.C. § 1367(c)(3) provides, in pertinent part, “[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction....” The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Revene v. Charles County Comm'rs, 882 F.2d 870, 875 (4th Cir.1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claims. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand since the remaining claims are quintessential state law questions. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court cautioned 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 superfooted reading of applicable law. . . . if the federal law claims are dismissed before trial ... the state claims should be dismissed as well.” Accordingly, should the district judge accept the recommendation with respect to Plaintiff's federal claims, it is recommended that the court decline to exercise jurisdiction over the remaining state law claims and remand this case to the Court of Common Pleas, Williamsburg County, South Carolina.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 22) be granted as to Plaintiff's Title VII, ADEA, and FLSA causes of action, and the Court decline to exercise jurisdiction over Plaintiff's state law claims and remand the remaining claims to the Court of Common Pleas, Williamsburg County, South Carolina.