Opinion
Civil Action 2:19-01306-RMG-MGB
08-18-2021
Tonia Windham, Wendy Van Horn Shaffer, Esther Rachel Miller, and Debra Ann Underwood, PLAINTIFFS, v. Medical University of South Carolina, DEFENDANT.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiffs, through counsel, filed the instant employment action on May 3, 2019. (Dkt. No. 1.) Now before the Court is Defendant's Motion for Summary Judgment as to Plaintiff Miller. (Dkt. No. 49.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local 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 the reasons stated herein, the undersigned recommends that Defendant's Motion for Summary Judgment as to Plaintiff Miller (Dkt. No. 49) be granted and that Plaintiff Miller's claims be dismissed in full.
Plaintiff Miller refers to herself as “Brown” in her brief (the record indicates that she recently married). (See generally Dkt. No. 58.) However, she is still listed as “Esther Rachel Miller” on the docket. Therefore, the undersigned refers to her as “Plaintiff Miller” throughout this Report and Recommendation.
BACKGROUND
Plaintiff Miller began working for Defendant in 2009 as a Public Safety Officer. (Dkt. No. 1 at 14; Dkt. No. 49-2 at 2; Dkt. No. 58 at 3.) Plaintiff Miller was a Corporal at the time she ended her employment in 2018. (Dkt. No. 49-2 at 2.) She contends that Kevin Kerley (“Chief Kerley”), Defendant's Chief of Public Safety, represented to her that she could not qualify for certain promotions without a degree. (Dkt. No. 1 at 14; Dkt. No. 58 at 3-4.) She asserts that she relied on this information in making the decision to return to school-a decision that cost her time and money. (Dkt. No. 1 at 14; Dkt. No. 58 at 4.) Plaintiff Miller believed that she would advance in her career once she obtained a bachelor's degree (Dkt. No. 1 at 14; Dkt. No. 58 at 4.) However, “that has not been the case, instead she has been passed over by male officers who do not have degrees.” (Dkt. No. 1 at 15; Dkt. No. 58 at 4.) Specifically, Plaintiff Miller states that she applied for a Lieutenant position that Chief Kerley gave to Timothy Brooder (“Brooder”), who “did not have the requisite degree.” (Dkt. No. 58 at 4.)
This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.
Plaintiff Miller also contends that she was deprived of training opportunities. (Dkt. No. 1 at 15; Dkt. No. 58 at 4.) She argues that her applications for Active Shooter training and Rape Aggression Defense training were unfairly denied. (Dkt. No. 1 at 15-16; Dkt. No. 58 at 5-6.) Plaintiff Miller believes that Defendant's alleged acts were motivated by discrimination against her on account of her sex. (See generally Dkt. No. 1; Dkt. No. 49-1.)
Accordingly, Plaintiff Miller, along with four female coworkers, filed this civil suit bringing causes of action for discrimination, harassment, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). (See generally Dkt. No. 1.) Now before the Court are four Motions for Summary Judgment: (1) Defendant's Motion for Summary Judgment as to Plaintiff Windham (Dkt. No. 47); (2) Defendant's Motion for Summary Judgment as to Plaintiff Underwood (Dkt. No. 48); (3) Defendant's Motion for Summary Judgment as to Plaintiff Miller (Dkt. No. 49); and (4) Defendant's Motion for Summary Judgment as to Plaintiff Shaffer (Dkt. No. 50). After requesting and receiving an extension of time, Plaintiffs filed a response in opposition to each motion on June 16, 2021. (Dkt. No. 56; Dkt. No. 57; Dkt. No. 58; Dkt. No. 59.) Defendant requested an extension of time to file its replies to Plaintiffs' responses in opposition, which the Court granted. (Dkt. No. 61; Dkt. No. 62.) On July 12, 2021, Defendant filed its replies. (Dkt. No. 66; Dkt. No. 67; Dkt. No. 68; Dkt. No. 69.) As such, the motions before the Court have been fully briefed and are ripe for disposition. The undersigned considers Defendant's Motion for Summary Judgment as to Plaintiff Miller, below.
Plaintiff Dorothy Simmons was dismissed from this litigation on December 10, 2019. (Dkt. No. 12.)
This age discrimination cause of action pertains only to Plaintiffs Windham and Underwood. (Dkt. No. 1 at 20.)
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“As the moving party, Defendant[] [is] required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which [it] believe[s] demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 317). “Plaintiff[] may not rest on mere allegations or denials; [she] must produce ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.” Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2 (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Sandlands C & D LLC v. Cty. of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). “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.” Anderson, 477 U.S. at 248.
DISCUSSION
I. Hostile Work Environment in Violation of Title VII
A. Exhaustion
Before filing a lawsuit under Title VII, a claimant must first exhaust her administrative remedies by filing an administrative charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Although administrative exhaustion is not a jurisdictional prescription delineating the adjudicatory authority of courts, exhaustion remains mandatory in the sense that a court must enforce the rule if a party properly raises it. Fort Bend County, Tx. v. Davis, 139 S.Ct. 1843, 1849-51 (2019).
The Fourth Circuit has explained:
The filing of an administrative charge is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit. Rather, Congress intended the exhaustion requirement to serve the primary purposes of notice and conciliation.
First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory actions. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning.
Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.... The EEOC's role . . . is thus critical because it can promote voluntary settlement in a manner that a more adversarial process cannot.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted). Therefore, as a general rule, the scope of a subsequent lawsuit “is defined by the scope of the administrative charge from which it arises and from any findings that arise out of the investigation of the charge.” EEOC v. General Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976); see also Johnson v. Mabus, No. 2:16-cv-2073-RMG, 2017 WL 3037373, at *3 (D.S.C. July 18, 2017) (“[T]he allegations in the EEOC charge determine the scope of a plaintiff's right to file a federal lawsuit.”). Accordingly, only those claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) (sexual harassment and discriminatory pay and benefits claims dismissed because EEOC complaint alleged only a failure to promote); see also Chacko, 429 F.3d at 509 (noting that “factual allegations made in formal litigation must correspond to those set forth in the administrative charge”). Although there is no bright-line rule for determining whether a plaintiff's federal claim is “reasonably related” to her original administrative charge, the Fourth Circuit generally “will bar a claim if the basis for the alleged harm claimed differs between the administrative charge and the complaint.” Bolds v. S.C. Dep't of Mental Health, No. 2:20-cv-01653-RMG-MHC, 2021 WL 1413324, at *6 (D.S.C. Feb. 11, 2021), adopted, 2021 WL 960506 (D.S.C. Mar. 15, 2021) (quoting Tonkin v. Shadow Mgmt., Inc., No. 3:12-cv-00198-JFA, 2014 WL 4063626, at *4 (D.S.C. Aug. 14, 2014), aff'd, 605 Fed.Appx. 194, 194 (4th Cir. 2015)).
Here, Defendant argues that it is entitled to summary judgment on Plaintiff Miller's hostile work environment claim because she failed to exhaust it. (Dkt. No. 49-1 at 5-8.) More specifically, Defendant contends that “the Court should grant summary judgment to MUSC because Miller's Charge of Discrimination does not set forth a single factual allegation of a hostile work environment.” (Dkt. No. 49-1 at 7.) In response, Plaintiff Miller argues that the charge she filed was sufficient to exhaust her hostile work environment claim because she “clearly checked retaliation, sex discrimination, and [] hostile work environment.” (Dkt. No. 58 at 36.) She further argues that the allegations of discriminatory hiring and promotion practices, discrimination in training opportunities, and pervasive disparate treatment of women set forth in her EEOC charge made Defendant “well aware of [her] allegations of a hostile work environment.” (Dkt. No. 58 at 36-38.)
In her EEOC charge, Plaintiff Miller checked the boxes for discrimination based on retaliation, sex, age, and other (which she clarified as “hostile work environment based upon gender”). (Dkt. No. 49-2 at 1.) She also checked the ‘continuing action' box when reporting the dates on which the alleged discrimination occurred. (Id.) Defendant is correct that the narrative portion of Plaintiff Miller's EEOC charge does not contain facts specific to a hostile work environment; rather, her charge describes Defendant's failure to promote and failure to train her. (Id. at 2-4.) The narrative portion of her charge also references disparate treatment of women as compared to “white males.” (Id.)
As explained infra, Plaintiff Miller's allegations of discriminatory hiring and promotion practices, discrimination in training opportunities, and disparate treatment of women cannot sustain a hostile work environment claim. (See infra at 9-13.) Nonetheless, the actions described in Plaintiff Miller's EEOC charge are the same as those set forth in the Complaint. (Dkt. No. 1 at 14-16; Dkt. No. 49-2 at 2-4.) In other words, the allegations underlying Plaintiff Miller's hostile work environment claim in her EEOC charge are not just reasonably related to those underlying her hostile work environment claim in this litigation-they are the same. (See generally Dkt. No. 1; Dkt. No. 49-2.) Thus, Defendant had notice of Plaintiff Miller's hostile work environment allegations well in advance of this litigation, regardless of the fact that such allegations cannot sustain a valid claim. See Bolds, 2021 WL 1413324, at *6 (finding that plaintiff exhausted his administrative remedies with regard to hostile work environment claim where he checked the “continuing action” box and made the same allegations in his charge and his amended complaint).
Moreover, Plaintiff Miller twice noted that the facts alleged in her charge were not exhaustive and that other facts “may become known or disclosed during the administrative investigation, informal discovery, and/or formal discovery if litigation is initiated following [the EEOC's] investigation of [her] Charge of Discrimination, Retaliation, and Harassment/Hostile Work Environment.” (Dkt. No. 49-2 at 4-5) (emphasis added). As such, the EEOC's investigation could have encompassed Plaintiff Miller's hostile work environment claim.
Because Plaintiff Miller's hostile work environment claim arises from the same allegations as those set forth in her EEOC charge, the undersigned finds that she exhausted her administrative remedies with respect to this claim. See Chacko, 429 F.3d at 509 (noting that “factual allegations made in formal litigation must correspond to those set forth in the administrative charge”); see also Stewart v. Iancu, 912 F.3d 693, 706 (4th Cir. 2019) (referencing Chacko, 429 F.3d at 506) (noting that claims reasonably related to a plaintiff's initial complaint and claims developed by a reasonable investigation of a plaintiff's initial complaint may be heard by district courts).
Nevertheless, Plaintiff Miller's hostile work environment claim fails on the merits. For the reasons set forth below, the undersigned recommends that the Court grant Defendant's Motion for Summary Judgment as to this claim.
B. Merits
“A hostile environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (internal quotation marks and citations omitted). To prevail on her hostile workplace claim, Plaintiff Miller must show that there was (1) unwelcome conduct; (2) based on a protected characteristic; (3) which was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive work environment; and (4) which is imputable to the employer. See id. (citing Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)). In doing so, Plaintiff Miller 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 plaintiff] in fact did perceive to be so.” See Fudge v. Sentinel Office Payroll Corp., No. 2:13-cv-1840-CWH, 2015 WL 5682639, at *9-10 (D.S.C. Sept. 25, 2015) (referencing Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
Here, Plaintiff Miller claims that she experienced a hostile work environment on account of her sex. (Dkt. No. 1 at 18.) In support of this claim, she submits a “Complaint of hostile work environment / harassment” that she sent to Defendant's Human Resources Department in April of 2018. (Dkt. No. 58-11 at 1.) In this complaint, Plaintiff Miller alleges that she was “subjected to a continuing pattern of harassment from Lt. Timothy Brooder that appears to be solely based on the fact that I am a female as I do not see my male counterparts being treated in the same malicious manner.” (Id.) She provided examples of this alleged harassment, including: Brooder “undermining” her by allowing her team members to switch work areas; Brooder telling her how she “had messed up a report”; Brooder commenting on how she handled calls; Brooder saying he would prefer a man to wear the “red suit” for Rape Aggression Defense training; Brooder commenting that a female officer made a mistake while on patrol; Brooder telling his team and Plaintiff Miller's team that Plaintiff Miller had complained about him to his superiors; and, Brooder giving Plaintiff Miller a reputation as a “back stabber.” (Id. at 1-3; Dkt. No. 49-4 at 1-4.)
Plaintiff Miller also testified that male officers complained about female officers. (Dkt. No. 49-3 at 14.) She further testified about an incident where an officer yelled at her when she told him he could not go to the gym and about an incident where a subordinate did not give her proper notice before taking leave. (Id. at 3-5; Dkt. No. 58-10 at 3-4.) Defendant argues that Plaintiff Miller's hostile work environment claim falls short because the alleged conduct was not sufficiently severe or pervasive. (Dkt. No. 49-1 at 8-15.) The undersigned agrees.
To determine whether Defendant's purported harassment was sufficiently severe or pervasive to bring it within the purview of Title VII, the undersigned must examine the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with [the plaintiff's] work performance.” Fudge, 2015 WL 5682639, at *10 (referencing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). It is well-established that “incidents that would objectively give rise to bruised or wounded feelings” do not, without more, satisfy the severe and pervasive standard. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). The “standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a general civility code.” Faragher, 524 U.S. at 788 (internal citation and quotation marks omitted).
Based on the above, the undersigned cannot find that the conduct alleged by Plaintiff Miller is sufficiently severe and pervasive to create a hostile work environment. First, Plaintiff Miller contends that “[s]he had [contact] with the offenders most days she worked for several years” and therefore experienced daily mistreatment. (Dkt. No. 58 at 29.) However, “contact with the offenders” on most days is not equivalent to daily harassment. (Id.) Indeed, Plaintiff Miller only provides the isolated incidents mentioned above in support of her hostile work environment claim. (See generally Dkt. No. 1; Dkt. No. 49-3; Dkt. No. 49-4; Dkt. No. 58; Dkt. No. 58-10; Dkt. No. 58-11.) Based on these incidents, the undersigned cannot conclude that Plaintiff Miller was frequently mistreated, especially when considering that she has worked for Defendant since 2009. (Dkt. No. 1 at 14.)
Further, Plaintiff Miller does not allege conduct that is particularly severe, physically threatening, or humiliating. (See supra at 9.) At most, she alleges rude treatment, lack of respect, and perceived unwarranted criticism. Case law makes clear that such conduct is insufficient to uphold a hostile work environment claim. See, e.g., Wandji v. Wilkie, No. 2:18-cv-3036-RMG-MGB, 2020 WL 7647552, at *31 (D.S.C. Nov. 9, 2020), adopted, 2020 WL 7237922 (D.S.C. Dec. 9, 2020), aff'd sub nom. Wandji v. McDonough, 850 Fed.Appx. 851 (4th Cir. 2021) (“Plaintiff's hostile work environment claim is based largely on workplace politics, lack of respect from Coxe, and perceived unwarranted or false criticism. The Fourth Circuit has consistently held that this type of treatment, however unpleasant, does not rise to the level of severe and pervasive.”); Bouknight v. S.C. Dep't of Corr., 487 F.Supp.3d 449, 475 (D.S.C. 2020) (“[C]ase law has long held that rudeness, bullying, and harsh management styles generally do not meet the requisite standard to establish a hostile work environment.”); Sunbelt Rentals, Inc., 521 F.3d at 315 (noting that complaints premised on nothing more than “rude treatment by co-workers, callous behavior by supervisors, or a routine difference of opinion and personality conflict with one's supervisors” do not establish a hostile work environment); Combs-Burge v. Rumsfeld, 170 Fed.Appx. 856, 862 (4th Cir. 2006) (concluding that employee's criticism, micromanaging, and nitpicking of plaintiff were not sufficient to sustain hostile work environment claim, even where supervisor was more friendly to white employees); Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) (finding that “a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign”) (internal quotation marks and citations omitted)).
In fact, Plaintiff Miller concedes that Brooder never called her names and never made derogatory remarks to her about females. (Dkt. No. 49-3 at 2-3.) She also stated that she “couldn't think of anything per se off the top of [her] head” when asked if she was scrutinized more heavily because she is a woman. (Id. at 6.) She could not recall any incidents where someone employed by Defendant had called her a derogatory name or made a sexist or misogynistic comment to her. (Id. at 6-7.)
Thus, even assuming that this mistreatment interfered with Plaintiff Miller's work performance, she has not alleged conduct that “a reasonable person would find hostile or abusive.” Fudge, 2015 WL 5682639, at *9-10 (referencing Faragher, 524 U.S. at 787). The undersigned therefore recommends that the Court grant Defendant's Motion for Summary Judgment as to Plaintiff Miller's hostile work environment claim.
II. Discrimination in Violation of Title VII
A. Timeliness
Title VII makes it “an unlawful employment practice for an employer 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). Plaintiff Miller brings a sex discrimination claim under this statute. (Dkt. No. 1 at 18-22.) Defendant asserts that such claim is time-barred because Plaintiff Miller did not timely file her charge of discrimination with the EEOC. (Dkt. No. 49-1 at 15-16, 21.)
As noted, a plaintiff is required to exhaust her administrative remedies by filing a charge of discrimination with the EEOC before filing suit under Title VII. Sydnor v. Fairfax County, Va., 681 F.3d 591, 593 (4th Cir. 2012); 42 U.S.C. § 2000e-5(f)(1). Generally, “a plaintiff must file an administrative charge with the EEOC within 180 days of the alleged misconduct.” Williams, 370 F.3d at 428; 42 U.S.C. § 2000e-5(e)(1). However, this period is extended to 300 days in a deferral state like South Carolina. Williams, 370 F.3d at 428 (describing a deferral state as a state in which “state law proscribes the alleged employment practice and the charge has initially been filed with a state deferral agency”).
As is more fully described below, the alleged misconduct on which Plaintiff Miller bases her discrimination claim includes failure to train and failure to promote. (See infra at 15-21.) More specifically, she contends that she was unfairly denied: (1) a promotion to sergeant; (2) the opportunity to participate in Rape Aggression Defense training; and (3) the opportunity to participate in Active Shooter training. (Dkt. No. 1 at 15-16; Dkt. No. 58 at 4-6, 9-18.) Plaintiff Miller applied for the promotion to sergeant in 2016. (Dkt. No. 49-4 at 4.) She applied to participate in Rape Aggression Defense training in 2015. (Dkt. No. 1 at 16; Dkt. No. 58 at 5.) She volunteered for this training again in 2016. (Dkt. No. 49-4 at 2.) Plaintiff Miller contends that she applied for Active Shooter training prior to 2016, (id.), and was denied the training again in June of 2018. (Dkt. No. 49-1 at 4.)
Plaintiff Miller filed her charge of discrimination on September 5, 2018. (Dkt. No. 49-2 at 1.) Three hundred days prior to September 5, 2018 is November 9, 2017. Accordingly, Plaintiff Miller's failure to promote claim is time-barred because the events underlying such claim occurred well outside of the 300-day look-back period. (See Dkt. No. 49-4 at 4.) Similarly, Plaintiff Miller's failure to train claims are time-barred to the extent such claims rely on events occurring prior to November 9, 2017. In other words, only Plaintiff Miller's failure to train claim based on the June 2018 Active Shooter training is timely. (See Dkt. No. 49-4 at 2; Dkt. No. 49-1 at 4.)
Plaintiff Miller argues that Defendant's discriminatory acts were “part of a concerted plan to discriminate against her” and that her claims are therefore saved by the continuing violation doctrine. (Dkt. No. 58 at 38-39.) “The continuing-violation doctrine applies to claims based upon a defendant's ongoing policy or pattern of discrimination rather than discrete acts of discrimination.” Hill v. Hampstead Lester Morton Ct. Partners LP, 581 Fed.Appx. 178, 181 (4th Cir. 2014) (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 219-20 (4th Cir. 2007); Williams, 370 F.3d at 429). “In general, to establish a continuing violation[, ] the plaintiff must establish that the unconstitutional or illegal act was a fixed and continuing practice.” Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991) (brackets, ellipses, internal quotation marks, and citation omitted).
However, failure to train and failure to promote are discrete acts of discrimination, not continuing violations. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (failure to promote acts are discrete acts requiring exhaustion); Smith v. N. Carolina Dep't of Health & Hum. Servs., No. 5:12-cv-713-BR, 2016 WL 829989, at *3 (E.D. N.C. Mar. 3, 2016) (noting that plaintiff alleged discrete acts of discrimination where she complained of a transfer to another section, a change to her work schedule, and a denial of developmental training); Fountain v. Anne Arundel Cty. Gov't, No. CIV. A. RDB-05-2494, 2007 WL 2413069, at *6 (D. Md. Aug. 21, 2007) (concluding that denial of training “was a discrete act and therefore not part of a continuing violation”). Accordingly, the continuing violation doctrine is inapplicable and cannot save Plaintiff Miller's discrimination claim to the extent it is based on events occurring prior to November 9, 2017. See Morgan, 536 U.S. at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”).
To the extent Plaintiff Miller contends that Defendant's hiring and training policies are discriminatory in and of themselves, the undersigned notes that the Fourth Circuit has “‘declined to extend the limitations periods for discrete acts of discrimination merely because the plaintiff asserts that such discrete acts occurred as part of a policy of discrimination.'” Holland v. Washington Homes, Inc., 487 F.3d 208, 219-20 (4th Cir. 2007) (quoting Williams v. Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004); see also Cherosky v. Henderson, 330 F.3d 1243, 1248 (9th Cir. 2003) (“[I]f the mere existence of a policy is sufficient to constitute a continuing violation, it is difficult to conceive of a circumstance in which a plaintiff's claim of an unlawful employment policy could be untimely.” (internal quotation marks and citation omitted)).
In the event the Court disagrees with the undersigned's recommendation that Plaintiff Miller's discrimination claim is time-barred to the extent it is based on events occurring prior to November 9, 2017, the undersigned has considered all of the events underlying Plaintiff Miller's discrimination claim in evaluating its merits.
Nonetheless, Plaintiff Miller cannot establish a prima facie case of sex discrimination for the reasons set forth below. The undersigned therefore recommends that the Court grant Defendant's request for summary judgment as to Plaintiff Miller's discrimination claim.
When, as here, the plaintiff lacks direct evidence of discrimination, she must satisfy the three-step burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to prevail on a claim under Title VII. Perkins v. Int'l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019) (referencing Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005)). Under the McDonnell Douglas paradigm, Plaintiff Miller must first establish the elements of a prima facie discrimination claim. She can make a prima facie case by demonstrating: (1) membership in a protected class; (2) satisfactory work performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class, or some other evidence giving rise to an inference of unlawful discrimination. Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 719 (D.S.C. 2014); see also Perkins, 936 F.3d at 207 (referencing Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)). In short, she must prove that sex was the “but for” cause of the adverse action(s) at issue. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); see also Bolling v. Virginia Commonwealth Univ., 829 F.2d 34 (4th Cir. 1987) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981)); McDonnell Douglas Corp., 411 U.S. at 792) (“A plaintiff's burden in a [] discrimination case . . . is to demonstrate that but for his [protected characteristic], the challenged personnel action would not have been taken against him.”).
Plaintiff Miller has failed to present any convincing direct evidence of sex discrimination. See, e.g., Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (holding that direct evidence is “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision”); see also Martin v. Alumax of S.C., Inc., 380 F.Supp.2d 723, 728 (D.S.C. 2005) (noting that “statements by nondecisionmakers, ” and “statements by decisionmakers unrelated to the decisional process itself” do not constitute direct evidence). Accordingly, the undersigned analyzes her discrimination claims pursuant to the McDonnell Douglas pretext framework.
If Plaintiff Miller can establish a prima facie case of discrimination, the burden then shifts to Defendant “to show a legitimate, nondiscriminatory reason” for the adverse employment action. Ferguson, 18 F.Supp.3d at 719. If Defendant provides a legitimate, nondiscriminatory reason for the adverse employment action, the burden is then on Plaintiff Miller to demonstrate that Defendant's asserted reasons “are a mere pretext for its true discriminatory motives.” See Ferguson, 18 F.Supp.3d at 719 (referencing McDonnell Douglas Corp., 411 U.S. at 802-05). In order to do that, Plaintiff Miller must come forward with evidence showing that Defendant's reason for the adverse employment action was false, and that discrimination was the real reason. See Collins v. Charleston Place, LLC, No. 2:15-cv-4465-PMD-BM, 2017 WL 3167330, at *2 (D.S.C. July 26, 2017), aff'd, 720 Fed.Appx. 701 (4th Cir. 2018). “[The plaintiff] must prove both because ‘[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.'” See id. (referencing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993)) (emphasis in original). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253.
At the outset, the undersigned notes that not every personnel decision constitutes an adverse employment action for purposes of a discrimination claim. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 570 (D.S.C. 2013); see also Thorn v. Sebelius, 766 F.Supp.2d 585, 599 (D. Md. 2011), aff'd, 465 Fed.Appx. 274 (4th Cir. 2012) (“[N]ot everything that makes an employee unhappy is actionable adverse action.”). An adverse employment action must “adversely affect[] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation omitted). Thus, to be cognizable, the adverse employment action must have a “significant detrimental effect” on the employee, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Peary v. Goss, 365 F.Supp.2d 713, 722 (E.D. Va. 2005), aff'd, 180 Fed.Appx. 476 (4th Cir. 2006); see also Blakney v. N. Carolina A&T State Univ., No. 1:17-cv-874, 2019 WL 1284006, at *14 (M.D. N.C. Mar. 20, 2019) (citing Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011)). Although the plaintiff need not allege discharge or demotion to satisfy the third prong, less severe employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization” in order to survive summary judgment. See Blakney, 2019 WL 1284006, at *15 (referencing Boone v. Goldin, 178 F.3d 253, 256-57 (4th Cir. 1999)).
As noted, Plaintiff Miller alleges that Defendant discriminated against her by failing to promote her to sergeant, denying her requests to participate in Rape Aggression Defense training, and denying her applications for Active Shooter training. (Dkt. No. 1 at 15-16; Dkt. No. 58 at 46, 9-18.) However, Plaintiff Miller cannot demonstrate that her inability to participate in the trainings at issue had any “significant detrimental effect” on her employment. Peary, 365 F.Supp.2d at 722 (stating that an adverse employment action must have a “significant detrimental effect” on the employee). As such, the undersigned finds that only Defendant's failure to promote Plaintiff Miller to sergeant constitutes an adverse employment action.
In arguing to the contrary, Plaintiff Miller suggests that completing the Rape Aggression Defense training and Active Shooter training would help her get promoted. (Dkt. No. 58 at 1617.) Although Plaintiff Miller points to testimony from Major Simmons stating that these trainings “help an officer in the promotion process, ” the record makes clear that this is not the case at Plaintiff Miller's level. (Dkt. No. 58-6 at 5.) Rather, Chief Kerley testified that training may be helpful at the Field Training Officer level, but it is not taken into consideration when making promotion decisions for Corporals, Sergeants, and Lieutenants. (Dkt. No. 49-7 at 7.) Indeed, trainings like those at issue here are not listed anywhere on Defendant's promotion scoring rubric. (See generally Dkt. No. 49-6.) Plaintiff Miller presents no other evidence to support her contentions and nothing in the record suggests that she was required to participate in these trainings to maintain her current employment or to advance within the department. (See generally Dkt. No. 1; Dkt. No. 49-3; Dkt. No. 49-14; Dkt. No. 58; Dkt. No. 58-6; Dkt. No. 58-10; Dkt. No. 58-11.)
It is worth noting that Chief Kerley was responsible for promotion decisions within the department. (Dkt. No. 49-7 at 5-6.)
In fact, the record shows that Plaintiff Miller ultimately received the requested Rape Aggression Defense training and that she was denied the training in the first instance because she “[was] a new supervisor with too much on [her] plate” at the time she applied. (Dkt. No. 49-3 at 8-9.)
Thus, Plaintiff Miller cannot establish that she experienced a significant detrimental effect on her employment as a result of Defendant's failure to provide her with the specific training opportunities she requested. See Blakney, 2019 WL 1284006, at *15 (“[A] plaintiff need not allege discharge or demotion to satisfy the third prong, [but] less severe employment actions ‘must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization' in order to survive summary judgment.” (quoting Boone, 178 F.3d at 256-57)). The undersigned therefore finds that the only adverse action Plaintiff Miller suffered was Defendant's failure to promote her. See Peary, 365 F.Supp.2d at 722 (referencing Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001)) (stating that failure to promote is an “ultimate employment decision” that constitutes an adverse action that may give rise to a disparate treatment claim). The undersigned limits the remainder of her analysis accordingly.
Plaintiff Miller contends that Chief Kerley promoted “a white male who did not have a degree” to a position for which she applied, even though “she had a degree and significantly more time in law enforcement.” (Dkt. No. 1 at 15; Dkt. No. 58 at 4.) The record reflects that Chief Kerley did, in fact, promote a white male (Brooder) instead of Plaintiff Miller. (Dkt. No. 49-11 at 1.) Nonetheless, Defendant argues that “it is beyond cavil that MUSC did not discriminate against Miller in connection with this promotion, as it had a legitimate reason for not promoting her.” (Dkt. No. 49-1 at 18.) More specifically, Defendant explains that it used “an objective non-discriminatory procedure” to make this promotion decision. (Id. at 17.)
Defendant's “objective non-discriminatory procedure” requires a designated promotion board to review all candidates for promotion. (Id.; Dkt. No. 49-5 at 5; Dkt. No. 49-7 at 5-6; Dkt. No. 49-14 at 2.) Each candidate is given a numeric score based on education, recent job performance evaluations, frequency of disciplinary decisions, recommendations from superiors, law enforcement experience, attendance, written test results, and oral exam responses. (Dkt. No. 49-1 at 17-18; Dkt. No. 49-6 at 1; Dkt. No. 49-8 at 1-5.) The promotion board then makes a recommendation to Chief Kerley as to whom he should select for the position in question. (Dkt. No. 49-5 at 5; Dkt. No. 49-7 at 5-6; Dkt. No. 49-14 at 2.)
The record clearly demonstrates that Defendant used this procedure to select a candidate for the promotion at issue. (Dkt. No. 49-1 at 17-19; Dkt. No. 49-8 at 1-5.) The record also shows that Plaintiff Miller was not the candidate who received the top score following the board's evaluation, and, therefore, was not the recommended candidate. (Dkt. No. 49-8 at 1-5.) In fact, Plaintiff Miller received the third-highest score (71.15). (Id.) On the other hand, Brooder was the highest-scoring candidate. (76.76). (Id.) Thus, Defendant has presented a legitimate, nondiscriminatory reason for choosing to promote Brooder over Plaintiff Miller. Evans, 80 F.3d at 960 (citing Burdine, 450 U.S. at 258-59; Young v. Lehman, 748 F.2d 194, 198 (4th Cir. 1984)) (“Job performance and relative employee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision.”).
In response, Plaintiff Miller argues that “testimony supports the fact that Chief Kerley had the final say with regard to promotions and did not always rely on the board recommendations, ” suggesting that Defendant's reason is pretextual. (Dkt. No. 58 at 11.) However, she has presented only one example of Chief Kerley making the final say in a promotion-his hiring of Captain Piltsch. (Id.; Dkt. No. 58-5 at 2.) Chief Kerley testified that he went against the board's recommendation in hiring Captain Piltsch because “as the chief, I was granted to right to pick my command staff, which would be Dorothy Simmons, John Piltsch, and the business manager.” (Dkt. No. 49-7 at 4.) He testified that he has otherwise always chosen the candidate recommended by the board. (Id. at 5.) He further explained that “the way it works is [Major Dorothy Simmons] gets all the information. She comes in to me and says ‘This is the choice of the board.' And then I ask her [her thoughts], and then we go with that.” (Id. at 5-6.) Finally, he confirmed that he does not look at the background paperwork completed on candidates, never interferes with the make-up of the promotion board, and never speaks with the board members about their rankings. (Id. at 6.) Plaintiff Miller has provided no evidence to the contrary and no evidence that might suggest Defendant's nondiscriminatory reason for promoting Brooder was pretextual. (See generally Dkt. No. 58.)
The undersigned notes that the record in this case suggests a level of favoritism and cronyism throughout Defendant's Department of Public Safety. However, “preferential treatment, favoritism, and cronyism, while unjust and unfair, do not constitute sexual discrimination.” Burgess v. Gateway Communications, Inc., 26 F.Supp.2d 888, 893 (S.D. W.Va. 1998); see also Autry v. North Carolina Dep' t. of Human Resources, 820 F.2d 1384, 1387 (4th Cir. 1987) (promotion of friend and political ally is not racial discrimination under Title VII); Balazs v. Liebenthal, 32 F.3d 151, 159 (4th Cir. 1994) (“[T]o hold that favoritism towards friends and relatives is per se violative of Title VII would be, in effect, to rewrite federal law.”).
Based on the above, the undersigned finds that Plaintiff Miller has failed to raise a genuine question of material fact as to whether Defendant's legitimate, nondiscriminatory reason for failing to promote her was pretext for discrimination. Because Plaintiff Miller has failed to present evidence that intentional discrimination was the “but for” reason for Defendant's failure to promote her, the undersigned recommends that the Court grant Defendant's Motion for Summary Judgment as to Plaintiff Miller's sex discrimination claim.
III. Retaliation in Violation of Title VII
A. Exhaustion
Title VII makes it unlawful for an employer to retaliate against an employee or job applicant because that individual opposed any practice made unlawful under the statute, or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the statute. 42 U.S.C. § 2000e-3(a). Here, Plaintiff Miller brings a Title VII retaliation claim against Defendant. (Dkt. No. 1 at 18-20.) Defendant asserts that such claim is barred by Plaintiff Miller's failure to exhaust. (Dkt. No. 49-1 at 24-25.)
As noted, Plaintiff Miller was required to exhaust her administrative remedies by filing a charge of discrimination with the EEOC prior to filing this civil action. Sydnor, 681 F.3d at 593; 42 U.S.C. § 2000e-5(f)(1). Further, the scope of this lawsuit “is defined by the scope of the administrative charge from which it arises and from any findings that arise out of the investigation of the charge.” General Elec. Co., 532 F.2d at 365; see also Johnson, 2017 WL 3037373, at *3 (“[T]he allegations in the EEOC charge determine the scope of a plaintiff's right to file a federal lawsuit.”).
As with Plaintiff Miller's hostile work environment claim, Defendant argues that Plaintiff Miller “does not identify any specific act of retaliation in her Charge of Discrimination.” (Dkt. No. 49-1 at 25.) However, Plaintiff Miller's EEOC charge sets forth the same factual allegations as the Complaint in this lawsuit. (Dkt. No. 1 at 14-16; Dkt. No. 49-2 at 2-4.) Moreover, she checked the retaliation box on the first page of her charge and twice indicated in the narrative portion of her charge that she was filing a claim of retaliation. (Dkt. No. 49-2 at 1-4.) Accordingly, Defendant was aware of Plaintiff Miller's intent to bring a retaliation claim and of the factual allegations underlying such claim. (Id.) Similarly, the EEOC could have investigated retaliation, given the contents of Plaintiff Miller's charge. As such, the undersigned cannot agree with Defendant's argument that Plaintiff Miller failed to exhaust her claim of retaliation. See Stewart, 912 F.3d at 706 (referencing Chacko, 429 F.3d at 506) (noting that claims reasonably related to a plaintiff's initial complaint and claims developed by a reasonable investigation of a plaintiff's initial complaint may be heard by district courts); see also Bolds, 2021 WL 1413324, at *6 (finding that plaintiff exhausted his hostile work environment claim in large part because the allegations in his charge were the same as the allegations in his amended complaint).
As with Plaintiff Miller's hostile work environment claim, the undersigned notes that the allegations of retaliation in Plaintiff Miller's original EEOC charge are insufficient to support a valid claim. Nonetheless, Defendant had notice of the allegations well in advance of this litigation. (Dkt. No. 49-2 at 2-4.)
Additionally, Plaintiff Miller contends that her “Second Charge of Discrimination describes retaliatory actions by Defendant that reasonably relate to the allegations made in the first Charge and complaint.” (Dkt. No. 58 at 36.) In response, Defendant argues that “Miller has not exhausted her administrative remedies as to the claims raised in her Second Charge, as the Second Charge is still pending and has not been adjudicated.” (Dkt. No. 66 at 15.) Defendant is correct that Plaintiff Miller's second EEOC charge is still pending. Indeed, Plaintiff Miller filed this charge only a few months ago. (Dkt. No. 58-8 at 1.)
However, Plaintiff Miller's second EEOC charge alleges that Defendant retaliated against her on account of her initial EEOC charge. (Id. at 1-2.) More specifically, Plaintiff Miller alleges that: “the parties named in the original complaint have continued in a pattern of harassment meant to intimidate and demoralize me”; “[p]arties named in the original complaint . . . used undue influence to assist in the creation of a complaint filed against me by another employee of the department”; she was advised “to be careful because [she] was being watched on the video surveillance for the campus by unnamed parties within MUSC”; “patrol officers outside of the original complaint, and who were not originally named in it, were actively trying to show my complaint to other officers”; her request to switch shifts with another supervisor was denied; and her husband “was [the] subject of disciplinary action that was not properly investigated and would affect his ability to get promoted within the department.” (Id. at 1-2.) She repeatedly notes her belief that these actions were in retaliation for her original complaint. (Id.)
To the extent that Plaintiff Miller's retaliation claim is based on events that occurred in retaliation for her original complaint, her claim falls into a limited exception to the general exhaustion requirement. Under this exception, a plaintiff asserting a Title VII claim of retaliation for filing a previous EEOC charge need not exhaust her administrative remedies as to such claim before filing suit in federal court. See Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (“All other circuits that have considered the issue [of whether a plaintiff asserting a claim of retaliation for filing a previous EEOC charge must exhaust administrative remedies] have determined that a plaintiff may raise the retaliation claim for the first time in federal court. On consideration, we find these rationales persuasive and adopt this position.”). Nevertheless, Plaintiff Miller cannot establish a prima facie case of retaliation for the reasons set forth below. The undersigned therefore recommends that the Court grant Defendant's Motion for Summary Judgement as to Plaintiff Miller's retaliation claim.
B. Merits
Plaintiff Miller may establish unlawful retaliation under Title VII through either the mixed-motive framework or the McDonnell Douglas pretext framework. See Perkins, 936 F.3d at 206 n.4 (referencing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015)). Because Plaintiff Miller has not presented any direct or circumstantial evidence of retaliation, the undersigned again analyzes her claims pursuant to the familiar burden-shifting pretext framework.
Under this framework, Plaintiff Miller must first make a prima facie showing of retaliation by proving that: (1) she engaged in a protected activity; (2) her employer took a materially adverse action against her; and (3) there was a causal link between the two events. Perkins, 936 F.3d at 213. In order to establish a causal connection between the protected activity and alleged retaliation, she must establish that the decisionmaker had knowledge that she engaged in the protected activity and retaliated against her because of that protected activity. Holland, 487 F.3d at 218; see also Lambert v. Centerra Grp., Inc., No. 1:18-cv-520-TLW-PJG, 2019 WL 8164782, at *4 (D.S.C. Aug. 19, 2019), adopted, 2020 WL 1082244 (D.S.C. Mar. 6, 2020) (referencing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 362 (2013)) (“A plaintiff must show that but for the protected activity, he would not have experienced the alleged adverse act.”).
If Plaintiff Miller can establish a prima facie case of retaliation, the burden shifts to Defendant to rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. Marzett v. Charleston Cty. Sch. Dist., No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at *10 (D.S.C. Jan. 27, 2017), adopted, 2017 WL 589110 (D.S.C. Feb. 14, 2017), aff'd, 697 Fed.Appx. 186 (4th Cir. 2017) (referencing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998)). Plaintiff Miller then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id.
Plaintiff Miller relies on the events outlined in her second EEOC charge to support her retaliation claim. (Dkt. No. 58 at 19-24.) She alleges that Defendant retaliated against her by: (1) helping a former employee submit a Human Resources complaint against her; (2) watching her on video surveillance; (3) allowing officers not involved in this litigation to distribute the Complaint to other officers; (4) denying her request to switch shifts with another supervisor so she would not have to work with Brooder; and (5) subjecting her husband, Ryan Brown, to disciplinary action. (Dkt. No. 58 at 19-21, citing to Dkt. No. 58-6.) Defendant contends that Plaintiff Miller's retaliation claim must fail because “she cannot present evidence of either a materially adverse action taken against her or a causal link between the claimed retaliation and Miller's protected activity.” (Dkt. No. 49-1 at 27.) For the reasons set forth below, the undersigned agrees.
Although Plaintiff Miller brings a retaliation claim in the Complaint and identifies retaliation as a basis for her initial EEOC charge, she sets forth no specific retaliatory acts in either document. (See generally Dkt. No. 1; Dkt. No. 49-2.) Plaintiff Miller's brief does not clarify the acts on which her initial EEOC charge were based. (See generally Dkt. No. 58.)
At the outset, the undersigned notes that only some of these alleged retaliatory acts qualify as “materially adverse, ” which is different from the “adverse employment action” standard required for disparate treatment claims. See Perkins, 936 F.3d at 213 (referencing Burlington, 548 U.S. at 61-68 for redefining the second prima facie element of Title VII retaliation). Indeed, the anti-retaliation provision extends beyond retaliatory acts in the workplace, such that the plaintiff need only show “that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'” See id. (referencing Burlington, 548 U.S. at 68). However, even viewing Plaintiff Miller's allegations under this broader standard, the undersigned still finds that many of these alleged acts cannot be considered materially adverse.
For example, Defendant allowing officers to view the Complaint underlying this lawsuit is not a materially adverse action under Title VII. See Martin v. Merck & Co., Inc., 446 F.Supp.2d 615, 637 (W.D. Va. 2006) (finding that the fact that the word “lawsuit” was written next to the plaintiff's name on an employee list was an unprofessional action, but not a materially adverse action). As Defendant correctly notes, the Complaint is a matter of public record. (Dkt. No. 66 at 14.) Moreover, Plaintiff Miller has alleged no actual injury or harm as a result of other officers reading the Complaint. Burlington, 548 U.S. at 67 (“The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”). Similarly, Plaintiff Miller fails to explain how Defendant “watch[ing] [her] on the video surveillance for the campus” constitutes a materially adverse action. (Dkt. No. 58 at 19.) Indeed, she does not contend that she suffered any harm whatsoever from Defendant watching its own video surveillance footage. (Id.) Accordingly, Plaintiff Miller's retaliation claim ultimately boils down to the Human Resources complaint filed against her, Defendant's denial of her request to switch shifts, and her husband's disciplinary action. (Dkt. No. 58 at 19-21, citing to Dkt. No. 58-6.)
The undersigned notes that Defendant made other arrangements to accommodate Plaintiff Miller's request not to work under Brooder. (Dkt. No. 49-14 at 4.)
Though Plaintiff Miller's second EEOC charge alleges that “the parties named in the original complaint have continued in a pattern of harassment meant to intimidate and demoralize me, ” the undersigned notes that Plaintiff Miller could not demonstrate a hostile work environment in the first instance. (Dkt. No. 58-8 at 1.) Moreover, she does not set forth additional facts that describe the “pattern of harassment meant to intimidate and demoralize” of which she complains. (See generally Dkt. No. 58; Dkt. No. 58-8.) Without more, the undersigned is unable to discern retaliatory conduct from this conclusory allegation. See Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (noting that a nonmoving party “must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence†to overcome summary judgment).
With respect to these remaining alleged acts, Plaintiff Miller cannot establish causation. To satisfy the causation element of her prima facie case for retaliation, Plaintiff Miller must (1) show that the alleged retaliation closely followed the protected activity, or (2) provide a sufficient explanation for the time elapsed between them. Hinton v. Virginia Union Univ., 185 F.Supp.3d 807, 837 (E.D. Va. 2016). The Fourth Circuit has observed that in order for a temporal relationship to support a reasonable inference of retaliatory causation, the temporal relationship must be “very close.” Pascual v. Lowe's Home Ctrs., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Although there is no bright-line rule for determining when a temporal relationship is “very close, ” the Fourth Circuit has held that as little as three months between a plaintiff's protected activity and a defendant's retaliatory act is too long to give rise to an inference of causality. Id. (three-to-four-month period too long to establish causation).
Here, it is undisputed that Plaintiff Miller engaged in protected activity in April 2018 when she submitted a complaint to Human Resources, and in September of 2018 when she filed a charge with the EEOC. (Dkt. No. 49-2 at 1; Dkt. No. 49-4 at 1.) The Human Resources complaint against Plaintiff Miller was filed on October 1, 2019. (Dkt. No. 49-16 at 1.) The disciplinary report against Plaintiff Miller's husband was issued on February 19, 2020 and signed on July 28, 2020. (Dkt. No. 49-15 at 1.) Plaintiff Miller testified that Defendant would not allow her to switch shifts to avoid working with Brooder in November of 2019. (Dkt. No. 49-3 at 13-14.) Accordingly, these allegedly retaliatory acts all occurred more than a year after Plaintiff Miller's protected conduct. (See generally Dkt. No. 49-2; Dkt. No. 49-4; Dkt. No. 49-15; Dkt. No. 49-16.) Such an extended period is plainly insufficient to establish causation based on temporal proximity. Though a plaintiff may “put forth a sufficient explanation for the time elapsed between the protected activity and the alleged retaliation” to satisfy the causation requirement, Plaintiff Miller provides no such explanation. Hinton, 185 F.Supp.3d at 837; see also Perry v. Kappos, 489 Fed.Appx. 637, 643 (4th Cir. 2012) (“Where the time between the events is too great to establish causation based solely on temporal proximity, a plaintiff must present ‘other relevant evidence . . . to establish causation,' such as ‘continuing retaliatory conduct and animus' in the intervening period.” (quoting Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007))). Because she has provided no evidence that would allow the Court to infer a causal link between her protected activity and Defendant's alleged retaliatory acts, the undersigned recommends that Defendant's Motion for Summary Judgment be granted as to Plaintiff Miller's Title VII retaliation claim.
Plaintiff Miller does not allege any retaliatory acts occurring after (or on account of) her second EEOC charge. (See generally Dkt. No. 58.)
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Motion for Summary Judgment as to Plaintiff Miller (Dkt. No. 49) be granted and that Plaintiff Miller's claims be dismissed in full.
IT IS SO RECOMMENDED.
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 Post Office Box 835 Charleston, South Carolina 29402
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).