Opinion
C/A No. 0:19-183-MGL-PJG
05-06-2020
Tabitha Williams, Plaintiff, v. Fairfield Memorial Hospital; Devon Wright, Defendants.
REPORT AND RECOMMENDATION
The plaintiff, Tabitha Williams, filed this employment discrimination action in the Fairfield County Court of Common Pleas. The defendants removed this action to this court on January 22, 2019. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' motion for summary judgment. (ECF No. 30.) The motion has been repeatedly briefed, both with and without leave of court. (See ECF Nos. 30-1, 32, 34, 36, 38, & 41.) Additionally, the court heard oral argument on the defendants' motion on April 28, 2020. Having reviewed the record presented, argument of counsel, and the applicable law, the court concludes that the defendants' motion should be granted as to the federal claims. The state law claim should be remanded to the state circuit court.
At the hearing on the defendants' motion, both parties agreed for the court to treat the additional prehearing filings (ECF Nos. 36 & 38) as supplemental memoranda.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Tabitha Williams was employed as a nurse by Defendant Fairfield Memorial Hospital ("the Hospital") from June 2011 until her termination on August 16, 2017. This matter arises out of Williams's claim that the Hospital's head of human resources, Defendant Devon Wright, sexually harassed her by texting her inappropriate sexual messages, including a picture of his penis; inviting her to engage in sex; and threatening to fire her if she did not engage with him.
On June 19, 2017, Williams reported the harassment to her supervisor. The Hospital hired an outside company, ADP, to investigate Williams's claims. ADP interviewed Wright, but Wright falsely denied sending the explicit photo and he falsely denied association with the cell phone number from which the photo was sent. ADP also interviewed other employees but none of them reported witnessing Wright harass Williams, and none of them had any knowledge of whether Wright sent inappropriate messages to Williams. Because it could not substantiate Williams's allegations, the Hospital directed that Wright and Williams not have any contact with each other. Wright did not send any further harassing communications after Williams's complaint.
In his deposition, Wright admitted to sending the explicit photo through a burner phone. He also admitted that he lied to the Hospital to avoid being terminated.
The Hospital terminated Williams's employment on August 16, 2017 for excessive tardiness and absences, in accordance with the Hospital's attendance policy. Between October 2015 and April 2017, Williams had been warned six different times that her tardiness and absences were a problem. Williams was warned again on July 3, 2017 (after her complaint about Wright), and she was fired on August 16 for continued tardiness after the July 3 warning.
Williams now brings this action raising claims of quid pro quo sexual harassment, hostile work environment, and retaliatory discharge pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq.; and a state law claim for intentional infliction of emotional distress.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "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). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact." Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is "material" if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (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.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that "[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory").
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, she may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that the McDonnell Douglas framework applies to retaliation claims under Title VII). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden "is a burden of production, not persuasion." Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, "the McDonnell Douglas framework—with its presumptions and burdens—disappear[s], and the sole remaining issue [is] discrimination vel non." Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was "not its true reason[], but [was] a pretext for discrimination." Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext "merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination." Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this "merged" burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
"[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, 530 U.S. at 148. However, "if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred," summary judgment is appropriate. Id. Accordingly, the court must evaluate "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Id. at 148-49. "Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination." Merritt, 601 F.3d at 294-95.
C. Defendants' Motion
1. Quid Pro Quo Sexual Harassment and Hostile Work Environment Claims
a. Timeliness
The defendants argue as a threshold matter that Williams's quid pro quo sexual harassment and hostile work environment claims are untimely because she did not file her administrative charge with the South Carolina Human Affairs Commission ("SCHAC") within the statutory 300-day time limit. See 42 U.S.C. § 2000e-5(e)(1). Before filing suit under Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC. See Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). The statute does not explicitly define the term "charge," see Edelman v. Lynchburg Coll., 535 U.S. 106 (2002), but does set forth certain guidance about the exhaustion process. See 42 U.S.C. § 2000e-5(b), (e)(1). In South Carolina, the charge must be filed within 300 days after an "alleged unlawful employment practice" occurred. 42 U.S.C. § 2000e-5(c), (e). The failure to file a timely charge with the EEOC bars the claim in federal court. See Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843 (2019) (holding that Title VII's charge-filing requirement is mandatory, although not jurisdictional).
In response, Williams first argues that the 300-day time period did not begin to run until her termination. However, with respect to these two claims, the alleged unlawful employment practice is Wright's harassing conduct—not her termination—so the clock began to run no later than June 19, 2017 when she reported Wright's conduct to the Hospital. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002) ("Given, therefore, that the incidents constituting a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment."); see infra part C.1.b (discussing undisputed evidence that Wright's conduct ended after Williams complained).
Next, Williams argues that her EEOC charge relates back to the date she filed her intake questionnaire with the EEOC. Williams argues that the intake questionnaire she completed prior to filing her administrative charge should satisfy the charge-filing requirement under the statutory provisions. (Pl.'s Resp. Opp'n Summ. J., ECF No. 32 at 4-5.)
An intake questionnaire may be deemed a charge if it contains all of the information outlined in 29 C.F.R. § 1601.12, and "reasonably can be construed to request agency action and appropriate relief on the employee's behalf." See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 404 (2008). The Holowecki Court permitted an intake questionnaire to suffice as a charge because the plaintiff in that case included with her questionnaire a six-page affidavit detailing the alleged unlawful acts and requesting the EEOC to take action against the employer's alleged discrimination. Id. at 405. Thus, the Holowecki Court found that the intake questionnaire met the requirements of a charge contained in the statute because it contained a "request for the agency to act." Id.
This regulation requires that each charge contain:
(1) The full name, address and telephone number of the person making the charge except as provided in § 1601.7; (2) The full name and address of the person against whom the charge is made, if known (hereinafter referred to as the respondent); (3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices: See § 1601.15(b); (4) If known, the approximate number of employees of the respondent employer or the approximate number of members of the respondent labor organization, as the case may be; and (5) A statement disclosing whether proceedings involving the alleged unlawful employment practice have been commenced before a State or local agency charged with the enforcement of fair employment practice laws and, if so, the date of such commencement and the name of the agency.29 C.F.R. § 1601.12(a).
Here, unlike Holowecki, Williams's intake questionnaire did not request the agency to act, and Williams did not supplement it with an affidavit. Also, unlike Holowecki, the questionnaire included a conspicuous disclaimer at the top of the form that stated, " COMPLETION AND SUBMISSION OF THIS QUESTIONNAIRE DOES NOT IMPLY OR CONSTITUTE THE FILING OF A CHARGE." (Defs.' Mot. Summ. J., Ex. 10, ECF No. 30-11 at 12.) Other post-Holowecki courts have found that intake questionnaires with identical disclaimers cannot reasonably be construed as a charge under Title VII regulations. See, e.g., Green v. Wal-mart Stores, Inc., C/A No. 2:11-2219-RMG-BHH, 2012 WL 2048207, at *2-3 (D.S.C. May 3, 2012) (Report and Recommendation), adopted by 2012 WL 2046124 (D.S.C. June 6, 2012); Toro v. Sci. Applications Int'l Corp., C/A No. 2:12-1833-DCN-BM, 2012 WL 7176826, at *2 (D.S.C. Dec. 7, 2012) (Report and Recommendation), adopted by 2013 WL 652568 (D.S.C. Feb. 21, 2013). In fact, this court has held that the identical version of the intake questionnaire form used here did not constitute a charge for this reason. Nelson v. S.C. Lottery Comm'n, No. 3:14-CV-00056-MGL, 2014 WL 6473510, at *3 (D.S.C. Nov. 18, 2014).
Williams argues that the EEOC considered her intake questionnaire to be a charge because an EEOC employee called Williams on April 13, 2018, created a Form 5 (formal EEOC Charge) based on their conversation, and sent it to Williams to sign. (Pl.'s Resp. Opp'n Summ. J., ECF No. 32 at 5; Ex. 4, ECF No. 32-4.) The EEOC also apparently sent a letter to Williams which referred to a "charge." But neither such a letter nor the EEOC documents that are in the record tend to prove that the EEOC considered her intake questionnaire to be a formal charge; rather, consistent with typical EEOC practice, as well as its warning on the questionnaire that the earlier document did not constitute a charge, the EEOC appears to have sent her the Form 5 to be verified and signed so she could perfect her filing requirement. (Defs.' Mot. Summ J., ECF No. 30-11 at 2-9); Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013) ("An employee complaining of illegal discrimination must first contact the EEOC and present it with information supporting the allegations. After receiving an employee's intake questionnaire and any other information the employee has provided, the EEOC typically assists the employee with filing a charge. This assistance often includes drafting a charge—as it did here—and then asking the employee to sign it.") (citations omitted). Furthermore, the record contains only the first two pages of the EEOC's request for information to the Hospital regarding Williams's charge. Since the document is incomplete and undated, it is not probative as to how the EEOC treated Williams's intake questionnaire. Finally, as a sister circuit has recently noted, the EEOC's treatment of the filings, while it may be relevant, is not determinative as to whether an intake questionnaire can constitute a formal charge. See Equal Emp't Opportunity Comm'n v. Vantage Energy Servs., Inc., 954 F.3d 749, 755 (5th Cir. 2020).
In the hearing held on this matter, Williams argued that a letter written by an EEOC employee dated April 20 referred to Williams's filing as a "charge." Despite multiple sets of briefing on the instant motion, that letter is not in the record before the court. However, even assuming counsel's representation at oral argument to be accurate, such a passing reference does not outweigh the other factors indicating that the EEOC did not treat Williams's intake questionnaire as a charge.
Moreover, the cases upon which Williams relies are distinguishable from the circumstances presented here. In Hudgins v. PurittHealth Inc., C/A No. 1:18-CV-1468-MGL-KDW, 2018 WL 6069459 (D.S.C. Aug. 31, 2018), the questionnaire at issue did not contain the conspicuous disclaimer included on Williams's. Further, Hudgins checked a box that stated, "I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above." Hudgins, 2018 WL 606945, at *7. And Edelman v. Lynchburg College, 535 U.S. 106 (2002), involved application of 29 C.F.R. § 1601.12(b), an EEOC regulation that permits a Title VII charging party to complete a verification after filing an otherwise timely discrimination charge. That regulation does not assist Williams for the simple reason that her formal EEOC charge, though in fact it was not notarized until later, was itself already untimely.
Finally, Williams argues that she is entitled to equitable tolling of the statutory deadline because the EEOC sent the Form 5 to her just three days prior to the expiration of the deadline. Based on the facts presented here, the court disagrees. Generally, to warrant equitable tolling of a statutory deadline, a plaintiff must show: "(1) that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted); see also Irvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (indicating that equitable tolling has not been allowed "where the claimant failed to exercise due diligence" and it does not extend to "garden variety claim[s] of excusable neglect"). Equitable tolling is available only in "those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc) (internal quotation marks and citation omitted).
Here, Williams fails to provide the court with any evidence that she pursued her rights diligently. Williams provides no explanation as to why she waited until just days before the deadline to file an intake questionnaire. See, e.g., Dyson v. D.C., 710 F.3d 415, 421 (D.C. Cir. 2013) (finding the plaintiff was not diligent where her own seven-month delay in filing the intake questionnaire was "a substantial portion of the overall delay" in filing a formal charge of discrimination). And she waited over a month before returning the executed Form 5. (Defs.' Mot. Summ. J., ECF No. 30-11 at 2.) Moreover, Williams was represented by counsel at that time. Compare Gonzales v. Pan Am. Labs., L.L.C., C/A No. 3:14-CV-2787-L, 2017 WL 4758672, at *9 (N.D. Tex. Oct. 20, 2017) (finding the plaintiff was not entitled to equitable tolling for failing to timely file a formal charge with the EEOC where, among other factors, the plaintiff was represented by counsel when he submitted his intake questionnaire and failed to provide any bases upon which the court could find that he was precluded from filing a timely formal verified charge), with Waiters v. Robert Bosch Corp., 683 F.2d 89, 92 (4th Cir. 1982) (finding equitable tolling was appropriate where the EEOC improperly processed the charge, resulting in the plaintiff's failure to satisfy the filing period), Fulmore v. City of Greensboro, 834 F. Supp. 2d 396, 414 (M.D.N.C. 2011) (finding equitable tolling was appropriate where the plaintiff filed an intake questionnaire and relied on the EEOC to complete the formal charge), and Hudgins, 2018 WL 6069459, at *8 (finding equitable tolling was appropriate where the plaintiff acted promptly in filing an intake questionnaire but the EEOC was at fault for the delay in drafting in the formal charge).
Consequently, the court finds that Williams's first and second causes of action are untimely.
b. Remedial Action
As an alternative defense, the defendants argue that Williams's first and second causes of action fail as a matter of law because it is undisputed that the Hospital took remedial action and no harassment occurred thereafter. As to the second cause of action for hostile work environment, the court agrees.
The court does not recommend that summary judgment be granted on this basis with respect to the first cause of action, as Williams has presented evidence that Wright was her supervisor, which would satisfy the imputation element as a matter of law. See Okoli v. City of Balt., 648 F.3d 216, 222 (4th Cir. 2011) ("The fifth element is 'automatically met' when the harassment was alleged to have been perpetrated by a supervisor."); compare Vance v. Ball State Univ., 570 U.S. 421, 431 (2013) (defining a "supervisor" as an employee whom "the employer has empowered . . . to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits' " and suggesting that the question can often be resolved as a matter of law before trial), with Lindquist v. Tanner, C/A No. 2:11-3181-RMG, 2013 WL 4441946, at *3-5 (D.S.C. Aug. 15, 2013) (denying summary judgment where questions of fact remained about the harasser's supervisory status). Because the first cause of action is untimely, the court need not address the dispute as to whether Wright can be considered Williams's supervisor under applicable law.
An employer is liable under Title VII for coworkers who create a hostile work environment if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end the harassment. Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003); Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir.1995).
The United States Court of Appeals for the Fourth Circuit has held that when an employer's remedial action causes the end of the unlawful harassment, no liability may be imputed to the employer. Bazemore v. Best Buy, ___ F.3d ___, 2020 WL 1918702 (4th Cir. Apr. 21, 2020); Spicer v. Commw. of Va. Dep't of Corrs., 66 F.3d 705, 711 (4th Cir. 1995) ("When presented with the existence of illegal conduct, employers can be required to respond promptly and effectively, but when an employer's remedial response results in the cessation of the complained of conduct, liability must cease as well."); see also Mikels v. City of Durham, N.C., 183 F.3d 323, 330 (4th Cir. 1999) (stating that the Fourth Circuit has given great weight to the fact that a particular response was demonstrably adequate to cause cessation of the conduct in question.) (citing Spicer, 66 F.3d 705, and Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987)).
Here, the undisputed facts in the record show that the Hospital hired ADP to investigate Williams's allegations; ADP interviewed Wright, Williams, and other employees; the Hospital directed Wright and Williams to not have any contact with each other; and Wright did not send any further harassing communications thereafter. In response, Williams argues that the Hospital's investigation was a "sham." (Pl.'s Resp. Opp'n Summ. J., ECF No. 32 at 6.) She also contends that the Hospital's investigation and no-contact instruction to Wright were insufficient in light of the egregiousness of Wright's conduct and that it was Williams's termination rather than any remedial action by the Hospital that ended Wright's harassment. However, the Hospital's response need only be "demonstrably adequate to cause cessation of the conduct in question," not the "most certainly effective." Mikels, 183 F.3d at 330. The only reasonable inference from the facts presented here is that the harassment ended after the Hospital intervened, and Williams did not experience any unwelcome conduct from Wright for the remaining eight weeks of her employment there.
The Fourth Circuit recently rejected a similar argument to Williams's here. In Bazemore, the Fourth Circuit held that where the plaintiff failed to even allege that the employer's remedial action failed to stop the harassment, she failed to state a claim upon which relief can be granted. Bazemore, 2020 WL 1918702, at *4. The Court therefore affirmed the district court's dismissal of her harassment claim. Id. at *6. This was so even though the plaintiff felt that the employer's response to her complaint—merely admonishing the offender—was "inadequate" in light of the seriousness of the offending employee's conduct. Id. at *4. Consequently, the undisputed facts in the record show that Williams's hostile work environment claim cannot be imputed to the Hospital as a matter of law.
2. Retaliatory Discharge Claim
In her Amended Complaint, Williams alleges that she was terminated because she engaged in protected activity by complaining that Wright was sexually harassing her and participating in the investigation that followed. (Am. Compl. ¶¶ 42-50, ECF No. 22 at 5 ("Her termination and her complaints of sexual harassment by Defendant Wright and participation in the investigation are directly causally connected.")).
Title VII makes it unlawful for an employer to retaliate against an employee for engaging in activity protected by the statute. See 42 U.S.C. § 2000e-3(a). Claims of retaliation may be analyzed under the McDonnell Douglas burden-shifting framework. Smith v. First Union Nat'l Bank, 202 F.3d at 248. The requisite elements for a prima facie case of retaliation typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him or her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Further, "Title VII retaliation claims must be proved according to traditional principles of but-for causation," which "requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
In support of its motion, the Hospital has produced evidence that Williams was terminated for excessive tardiness and absences. (Defs.' Mot. Summ. J., Ex. 1, ECF No. 30-2 at 16.) In her response, Williams appears to argue that Wright denied her request for FMLA leave to create a pretextual basis to terminate her because of her absences to take care of her foster children. Notably, she does not allege the denial of FMLA leave was a retaliatory act in her Amended Complaint; the cause of action rests solely on her termination. Generally, a party cannot change her theory of the case in response to a motion for summary judgment. See Barclay White Skanska, Inc. v. Battelle Mem'l Inst., 262 F. App'x 556, 563 (4th Cir. 2008) ("A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.") (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)). Moreover, in her opposition memorandum, Williams cites to the deposition of Wright to support this contention, but she does not attach the deposition as an exhibit. Therefore, there is no evidence in the record that Wright denied Williams's request to take FMLA leave.
The Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et seq.
The court observes that after the hearing on the defendants' motion, the defendants submitted yet another memorandum characterized as a "sur-reply." (ECF No. 41.) The Local Rules make no provision for sur-reply memoranda and the defendants did not seek leave of the court to file any further argument or exhibits not permitted by the rules. Moreover, the additional exhibits contain an FMLA application with no indication that it was granted. The court therefore rests its conclusion on the verified allegations of the Amended Complaint and the materials that were properly presented in the record or agreed by counsel for the court to consider.
But even assuming he did, Williams has not identified any evidence in the record that would permit a reasonable inference of but-for causation between her complaint about Wright and her termination. Williams argues that the temporal proximity of her termination to her complaint about Wright shows that the Hospital's stated reason for termination was pretextual. However, Williams's reliance on the timing of events, without more, fails to meet her burden to establish pretext or causation. See Perry v. Kappos, 489 F. App'x 637, 643 (4th Cir. 2012) (stating that the plaintiff could not rely on temporal proximity alone to establish the requisite nexus of causation, and noting that temporal proximity alone would even be insufficient to satisfy the causation element of the prima facie test except where the proximity is "very close") (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)); see also Mercer v. Arc of Prince Georges Cty., Inc., 532 F. App'x 392, 397 (4th Cir. 2013) ("While timing is a relevant factor, it will rarely be independently sufficient to create a triable issue of fact.") (citing Simpson v. Office of the Chief Judge of the Cir. Ct., 559 F.3d 706, 713 (7th Cir. 2009)). Here, more than eight weeks elapsed between Williams's complaint about Wright's conduct and her termination. Moreover, Williams points to no evidence suggesting that the relevant decision makers considered her complaints about Wright when deciding to terminate her, or that Wright was involved in the actual decision to fire her. Cf. Hill v. Lockheed Martin Logistics Mgmt, Inc., 354 F.3d 277, 296 (4th Cir. 2004) (en banc) ("Nor would it be appropriate to withhold summary judgment from an employer who has terminated an employee for rules violations, and wholly in the absence of any discriminatory motivation on the part of the decisionmakers, simply because the violations might not have been known in the absence of a subordinate's discriminatory animus that brought the infractions to light."), abrogated on other grounds by Nassar, 570 U.S. at 359-60. Williams relies heavily on the fact that Wright, as the director of human resources, signed her termination letter. However, in the absence of any evidence refuting the testimony in the record that he was not actually involved in her supervisors' decision to terminate her, this is insufficient for a reasonable fact-finder to determine that but for her sexual harassment complaint against Wright, Williams would not have been fired. See Nassar, 570 U.S. at 360 (requiring Title VII claims be proven according to traditional principles of but-for causation); Reeves, 530 U.S. at 146. Her retaliatory discharge claim therefore fails as a matter of law.
3. Individual Liability
The defendants argue that to the extent Williams asserts Title VII claims against Wright individually, the claims fail as a matter of law because there is no individual liability under Title VII. The court agrees. Because Wright is not an "employer" under Title VII, Williams's Title VII claims against Wright fail as a matter of law. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (holding that there is no individual liability under Title VII); see also Jones v. Sternheimer, 387 F. App'x 366 (4th Cir. 2010).
4. State Law Claim—Intentional Infliction of Emotional Distress
In light of the recommendation that the defendants' motion for summary judgment be granted as to Williams's federal claims, the court should exercise its discretion to remand the state law claim. See 28 U.S.C. § 1367(c) (authorizing a district court to decline to exercise jurisdiction over a supplemental claim if the court has dismissed all claims over which it had original jurisdiction); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-50 (1988) (discussing the factors in deciding whether to exercise supplemental jurisdiction after removal).
Although the court expresses no opinion on the merits of Williams's intentional infliction of emotional distress claim, recommending instead that it be remanded to state court, the court notes that at oral argument, the plaintiff clarified that she asserts this claim only against Wright and not against the Hospital. Further, Wright's counsel conceded that if Wright's conduct was intentional rather than merely reckless, the South Carolina Workers' Compensation Act's exclusivity provision would not apply.
RECOMMENDATION
Williams's Title VII claims based on sexual harassment are untimely. Her second cause of action also fails as a matter of law because Williams cannot impute liability to the Hospital for that claim. Finally, her retaliatory discharge claim fails because no reasonable jury could find that but for her complaint about Wright, she would not have been fired. Based on the foregoing, the court recommends the defendants' motion for summary judgment (ECF No. 30) be granted as to the federal claims and that Williams's state law claim for intentional infliction of emotional distress be remanded to the Fairfield County Court of Common Pleas. May 6, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' " Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).