HENRY M. HERLONG, JR., Senior District Judge.

Melvin R. Hutson, Melvin Hutson Law Office, Greenville, SC, for Plaintiff.

Amy Yager Jenkins, McAngus Goudelock and Courie, Mt. Pleasant, SC, for Defendants.

OPINION & ORDER

HENRY M. HERLONG, JR., Senior District Judge.

This matter is before the court with the Report and Recommendation of United States Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina. Angela Palomino (“Palomino”) alleges that the Defendants, Concord Hospitality Enterprises Company (“Concord”) and Choice Hotels International, Inc. (“Choice”), violated her rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. On November 14, 2014, the Defendants filed a motion for summary judgment. (Def. Mot. Summ. J., ECF No. 19.) In her July 30, 2015 Report and Recommendation, Magistrate Judge Austin recommends granting the Defendants' motion for summary judgment. (Report & Recommendation 665, ECF No. 41.) Palomino filed objections to the Report and Recommendation on August 17, 2015. (Objections, ECF No. 42.) The Defendants replied on August 20, 2015. (Reply to Objections, ECF No. 45.) After review and for the reasons stated below, the court adopts the Report and Recommendation and grants the Defendants' motion for summary judgment.

I. Factual and Procedural History

Palomino began her employment with Concord in November 2003, when Concord became the management company of the MainStay Suites hotel located at 2671 Dry Pocket Road in Greer, South Carolina (the “Hotel”). (Def. Mem. Supp. Mot. Summ. J. Ex. 5 (Pl. Dep. 20–24), ECF No. 19–5; Ex. 3 (Kreindler Aff. ¶ 8), ECF No. 19–3.) Palomino had previously worked at the Hotel under its prior management company and continued in her role as General Manager after Concord became the management company. (Id. Ex. 5 (Pl. Dep. 20–24), ECF No. 19–5.) As the general manager of the Hotel, Palomino supervised all Hotel staff, which consisted of eleven to fourteen employees, including a sales manager, a front desk supervisor, front desk clerks, housekeepers, a maintenance person, a breakfast attendant, and a van driver. (Id. Ex. 5 (Pl. Dep. 34–36), ECF No. 19–5.) In 2011 and 2012, Palomino reported to Michael Roberts (“Roberts”), a regional manager for Concord; Roberts reported to Ken Polo (“Polo”), a senior vice president of operations for Concord. (Id. Ex. 4 (Roberts Aff. ¶¶ 3, 6), ECF No. 194.) In summer 2011, Palomino informed Roberts and others at Concord that she had been diagnosed with multiple sclerosis (“MS”). (Pl. Mem. Opp'n Summ. J. Ex. 9 (Palomino Dep. 99–100), ECF No. 22–9.)

Throughout Palomino's employment, there had been oral complaints made by guests, managers, and staff about Palomino. (Def. Reply Mem. Supp. Mot. Summ. J. Ex. 1 (Hedlund Supp. Aff.) ¶ 17, ECF No. 24–1; Ex. 2 (Roberts Supp. Aff.) ¶ 14, ECF No. 24–2.) Roberts orally counseled Palomino about her tone and behavior in those instances. (Id. Ex. 2 (Roberts Supp. Aff.) ¶ 14, ECF No. 24–2.) The first complaint resulting in a written warning occurred on October 27, 2011, when the Hotel's front desk supervisor, Reggie Williams (“Williams”), emailed a complaint to Concord about what Williams perceived as an “extremely hostile” work setting. (Def. Mem. Supp. Mot. Summ. J. Ex. 4 (Roberts Aff. ¶ 7), ECF No. 19–4.) He reported regular “degradation” and “belittling,” as well as “backbiting,” “name calling,” “devaluing ... of work skills,” and “lack of professional respect.” (Id. Ex. 4 (Roberts Aff. ¶ 7), ECF No. 19–4.) Upon request, Williams presented proof by submitting examples of hostile and derogatory memoranda authored by Palomino and another similar complaint written by Hotel employee Charlene Scott (“Scott”). (Id. Ex. 7 (Hedlund Aff. ¶¶ 9–10), ECF No. 19–7.) Roberts reviewed the documentation and spoke with Williams and Scott about their complaints. (Id. Ex. 4 (Roberts Aff. ¶ 9), ECF No. 19–4.)

As a result, Roberts issued a written disciplinary warning on November 9, 2011, which provided that Palomino would receive continued written warnings on the next offense related to her hostile tone and behavior and that “[f]urther documentation could result in termination,” pursuant to company policy. (Id. Ex. 4 (Roberts Aff. ¶ 10), ECF No. 19–4.) Roberts and Palomino discussed the warning in person. Roberts counseled Palomino on appropriate behavior, and Palomino admitted she sometimes had trouble controlling her temper. (Def. Mem. Supp. Mot. Summ. J. Ex. 4 (Roberts Aff. ¶ 10), ECF No. 19–4.) Palomino signed the warning and thereafter submitted her written response in which she attempted to justify her actions but also acknowledged that her tone in the memoranda had been “harsh.” (Id. Ex. 4 (Roberts Aff. ¶ 11), ECF No. 19–4.) In March 2012, Roberts was informed that Palomino had used an inappropriate and unprofessional tone during a conference call. (Id. Ex. 4 (Roberts Aff. ¶ 12), ECF No. 19–4.) Roberts subsequently issued an oral warning to Palomino regarding her tone and the need to remain professional in her interactions. (Id. Ex. 4 (Roberts Aff. ¶ 12), ECF No. 19–4.)

Prior to April 2012, Palomino missed only one day of work for conditions related to MS, due to being unable to “get out of bed” after receiving a shot of pain medication for a migraine. (Pl. Mem. Opp'n Summ. J. Ex. 9 (Palomino Dep. 158), ECF No. 22–9.) However, in April 2012 when she was scheduled to attend an out-of-town general manager's meeting, Palomino informed Roberts and human resources vice president Debra Punke (“Punke”) that she would be unable to attend due to migraines caused by her MS. (Id. Ex. 9 (Palomino Dep. 116–17), ECF No. 22–9.) In an email to Palomino dated April 12, 2012, Punke stated: “I am so very sorry to hear this. I am also very concerned about you continuing to work in this state—let's schedule time to discuss as a group.” (Id. Ex. 13 (Emails), ECF No. 22–13.) Some time later, Palomino, Punke, Roberts and another Concord human resources representative participated in a conference call concerning Palomino's ability to continue working. (Id. Ex. 13 (Emails), ECF No. 22–13.)

In May 2012, Roberts received oral and written complaints from Hotel employees Anna Hodges (“Hodges”), the sales manager, and Amanda Eggleston (“Eggleston”), a front desk and payroll employee. (Def. Mem. Supp. Mot. Summ. J. Ex. 4 (Roberts Aff. ¶ 13), ECF No. 19–4.) The complaints cited Palomino's creation of a “hostile work environment,” her continued mistreatment of employees, her impeding their ability to work, as well as Palomino being the cause of some employees quitting and others looking elsewhere for employment. (Id. Ex. 4 (Roberts Aff. ¶¶ 13–14), ECF No. 19–4.) On May 30, 2012, Roberts issued Palomino her second written warning within a twelve-month period and a termination notice. (Id. Ex. 4 (Roberts Aff. ¶ 17), ECF No. 19–4.) Palomino and Roberts met in person to discuss the warning and termination, but Palomino did not sign the second warning, and did not submit a response or appeal the termination with Concord. (Id. Ex. 5 (Pl. Dep. 67), ECF No. 19–5.) Palomino was sixty-five years old at the time of her termination. (Id. Ex. 5 (Pl. Dep. 9), ECF No. 19–5.)

On July 20, 2012, Palomino filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), in which she alleged her termination was due to discrimination on the basis of her age and disability. (Def. Mem. Supp. Mot. Summ. J. Ex. 5 (Pl. Dep. 94–96), ECF No. 19–5.) The EEOC investigated the allegations and, on November 19, 2012, it dismissed her case finding no cause to believe that discrimination had occurred. (Id. Ex. 5 (Pl. Dep. 102), ECF No. 19–5.) Palomino contacted her United States Senator and requested assistance in reopening her case, and thereafter, the EEOC reopened her file and issued a Notice of Intent to Reconsider. (Id. Ex. 5 (Pl. Dep. 102–03), ECF No. 19–5.) On January 28, 2014, the EEOC issued a second dismissal of her claim. (Id. Ex. 5 (Pl. Dep. 10809), ECF No. 19–5.) Thereafter, on April 14, 2014, Palomino filed a complaint against the Defendants in this court. (Compl., ECF No. 1.)

II. Report and Recommendation

The magistrate judge's Report and Recommendation assumed without deciding that Palomino can establish a prima facie case. (Report & Recommendation 662, ECF No. 41.) The magistrate judge found that the Defendants articulated a legitimate, nondiscriminatory reason for terminating Palomino and that Palomino failed to establish a genuine issue of material fact as to whether the Defendants' articulated reason was pretext for unlawful discrimination. (Id. at 662–63, ECF No. 41.) Accordingly, the magistrate judge recommended that the Defendants' motion for summary judgment be granted. (Id. at 664–65, ECF No. 41.)

III. Plaintiff's Objections

Palomino filed objections to the Report and Recommendation. Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir.1984). In the absence of specific objections to the Report and Recommendation of the magistrate judge, the court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.1983). Palomino objects to the magistrate judge's finding that she has failed to show that Defendants' articulated reason for terminating her was pretext for discrimination. (Objections 7–12, ECF No. 42.) For the reasons set forth below, this objection is without merit.

IV. Discussion of the Law

Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505.

A litigant “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.” Monahan v. County of Chesterfield, 95 F.3d 1263, 1265 (4th Cir.1996). “[T]he mere existence of some alleged factual dispute between parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir.1987).

Under the McDonnell Douglas framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. Id. at 804, 93 S.Ct. 1817. To prove an employer's articulated reason is a pretext for discrimination, a plaintiff “must prove ‘both that the reason was false, and that discrimination was the real reason’ for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir.1995) (emphasis in original) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

Palomino objects to this standard, arguing that the two-prong test of proving falsity and that discrimination is the real reason articulated in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), has been widely misunderstood. (Objections 8, ECF No. 42.) Palomino cites to the Supreme Court decision Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), in support of her position. In Reeves, the Supreme Court clarified that:

In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as “affirmative evidence of guilt.” Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.

Id. at 147, 120 S.Ct. 2097 (internal citations omitted). It follows, Palomino argues, that a plaintiff only needs to prove the first Hicks prong of falsity, and that the second prong of discrimination can be inferred as a result. (Objections 8, ECF No. 42.) Still, as the Report and Recommendation adequately notes, “[c]ourts must ... resist the temptation to become so entwined in the intricacies of the [McDonnell Douglas ] proof scheme that they forget that the scheme exists solely to facilitate determination of ‘the ultimate question of discrimination vel non.’ ” Proud v. Stone, 945 F.2d 796, 798 (4th Cir.1991) (internal citation omitted). Further, the Reeves Court itself supports this contention: “The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves, 530 U.S. at 153, 120 S.Ct. 2097.

Assuming without deciding that Palomino can establish a prima facie case of disability or age discrimination, the Defendants have satisfied their burden of articulating a legitimate, nondiscriminatory reason for terminating Palomino. Prior to her first formal warning, Palomino had been counseled on her tone and behavior. (Def. Reply Mem. Supp. Mot. Summ. J. Ex. 2 (Roberts Supp. Aff. ¶ 14), ECF No. 24–2.) Then, between November 2011 and May 2012, she received two written warnings and an oral warning, which were based on complaints of hostile work environment and inappropriate tone and behavior received from at least five different employees. (Def. Mem. Supp. Mot. Summ. J. Ex. 4 (Roberts Aff.) generally, ECF No. 19–4.) Palomino was subsequently terminated pursuant to company policy providing that managers may be terminated after receiving only two written warnings within a twelve-month period from the date of the first written warning. (Pl. Mem. Opp'n Mot. Summ. J. Ex. 14 (Handbook Policies), ECF No. 22–14.) Thus, the burden shifts to Palomino to establish a genuine issue of material fact as to whether the articulated reason for her termination is pretext for unlawful discrimination. On this issue, Palomino's objections merely restate her claim and more importantly, her claims fail to satisfy her burden of proving falsity.

In her objections to the Report and Recommendation, Palomino alleges that there are genuine issues of material fact on the issue of falsity. (Objections 7, ECF No. 42.) The court disagrees. First, to the extent that Palomino objects to Concord's written warnings as inaccurate, this objection is immaterial. “It is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.” Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960–61 (4th Cir.1996) (internal quotations omitted). If “instead of producing evidence that shows [the supervisor's] assessment of her performance was dishonest or not the real reason for her termination—as the law requires—[the plaintiff] disputes the merits of [the] evaluations,” then the plaintiff's objections are immaterial. Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir.2000). Here, Palomino is only objecting to the merits of the evaluations, and has raised no genuine issue of material fact on whether Concord's warnings were dishonest or not the real reason for her termination. Therefore, this argument fails to satisfy her burden.

Similarly, Palomino also argues that Concord was unreasonable in not interviewing other employees or taking into consideration her record and the record of the complaining employees. However, “[t]he alleged opinions of ... co-workers as to the quality of her work are ... close to irrelevant” in a wrongful discharge action. Id. (internal quotations omitted). In addition, “it is not our province to decide whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.1998) (quoting Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 411 (7th Cir.1997)). In this case, there is no evidence that the policy or practice of not interviewing other employees prior to issuing a warning evidences an intent to discriminate. Further, Concord's policies do not indicate any attempt to discriminate on the basis of age or disability. Lastly, to ask the court to inquire into what Concord did and did not consider in making its decision is asking the court to inquire into the wisdom of Concord's decision, which is not the province of the court. Thus, this argument fails to satisfy Palomino's burden.

Third, Palomino objects to Concord not considering her side of the story as a deviation from Concord's normal business practices. A deviation from normal business practices can illustrate pretext. Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 201 (4th Cir.1998). However, Palomino has not provided any evidence that Concord was required to interview her prior to issuing her a warning or that it failed to follow company policy and its customary practices. Moreover, neither party disputes that Concord had a policy and practice of terminating managers if they received two written warnings within a twelve-month period from the date of the first written warning. (Pl. Mem. Opp'n Mot. Summ. J. Ex. 14 (Handbook Policies), ECF No. 22–14.) Therefore, Palomino has failed to raise a genuine issue of material fact on whether Concord deviated from its normal practices, and this argument fails to satisfy her burden.

Fourth, Palomino argues that Concord exhibited a sudden change in attitude toward her, which has been held to establish pretext. See, e.g., Ryan v. Shawnee Mission Unified Sch. Dist. No. 512, 437 F.Supp.2d 1233, 1259 (D.Kan.2006) (holding four years of “solid and trouble-free” employment was sufficient to send the issue of pretext to the jury when the proffered justification for termination was poor working relationships). In this case, Palomino has not established that a sudden change in attitude actually occurred. The record reflects that throughout Palomino's employment, there had been oral complaints made by guests, managers, and staff about her that warranted Roberts' counseling, and therefore her employment cannot be described as trouble-free. (Def. Reply Mem. Supp. Mot. Summ. J. Ex. 1 (Hedlund Supp. Aff. ¶ 17), ECF No. 24–1; Ex. 2 (Roberts Supp. Aff. ¶ 14), ECF No. 24–2). Further, the fact that a formal, written warning was first issued in November 2011 signifies that the complaints had ultimately risen to a serious and actionable level, not a sudden change in attitude. Similarly, that Concord followed a gradual progression of disciplinary action based on continued complaints against Palomino over the course of several months illustrates not a sudden change in attitude, but an adherence to company policy. Thus, this argument does not satisfy Palomino's burden.

Lastly, to the extent the discussion of an alleged comparable employee whom Palomino argues was treated differently from her operates as a pretext argument, Palomino again is unable to raise any genuine issue of material fact. The McDonnell Douglas framework does consider evidence of disparate treatment of comparable employees as “[e]specially relevant.” 411 U.S. at 804, 93 S.Ct. 1817. However, Palomino does not dispute that Linda Bass (“Bass”), the alleged comparable employee, was terminated following two written warnings within a twelve-month period after guest and employee complaints were filed against her. Palomino only offers that: (1) Roberts tolerated Bass's conduct and allowed it to continue for over two years before issuing the first written warning, and (2) Roberts met with employees to investigate the complaints against Bass, which had he done with Palomino, he would have discovered other employees disagreed with the complaints against her. (Pl. Mem. Opp'n Mot. Summ. J. 7–8, ECF No. 22.) First, as previously discussed, Roberts and Concord had also received complaints throughout Palomino's employment that warranted Roberts' counseling. (Def. Reply Mem. Supp. Mot. Summ. J. Ex. 1 (Hedlund Supp. Aff. ¶ 17), ECF No. 24–1; Ex. 2 (Roberts Supp. Aff. ¶ 14), ECF No. 24–2). In both situations, Roberts only responded with a formal warning when the complaints against Palomino and Bass rose to an actionable level. Second, the first actionable complaint in Bass's case was a guest complaint, and Roberts met with employees to investigate that complaint. (Id. Ex. 2 (Roberts Supp. Aff. ¶ 9), ECF No. 24–2.) The first actionable complaint against Palomino was not a guest complaint, but an employee complaint, which may not have required a similar investigation. (Def. Mem. Supp. Mot. Summ. J. Ex. 4 (Roberts Aff. ¶ 7), ECF No. 19–4.) More importantly, as previously discussed, the alleged opinions of other employees are not relevant and the court will not engage in such an inquiry. Ultimately, Palomino has failed to establish that Bass was treated differently than her.

V. Conclusion

Based on the foregoing, Palomino has failed to satisfy her burden in establishing any pretext or falsity in Concord's termination of her employment. Therefore, after a thorough review of the magistrate judge's Report and the record in this case, the court adopts Magistrate Judge Austin's Report and Recommendation.

Therefore, it is

ORDERED that the Defendants' motion for summary judgment, docket number 19, is granted.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JACQUELYN D. AUSTIN, United States Magistrate Judge.

This matter is before the Court on Defendants' motion for summary judgment. [Doc. 19.] Plaintiff brings this case pursuant to the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

Plaintiff filed this action on April 14, 2014. [Doc. 1.] On November 14, 2014, Defendants filed a motion for summary judgment. [Doc. 19.] Plaintiff filed a response in opposition on December 9, 2014 [Doc. 22], and Defendants filed a reply on December 18, 2014 [Doc. 24]. Accordingly, the motion for summary judgment is ripe for review.

BACKGROUND

Plaintiff began working for Defendant Concord Hospitality Enterprises Company (“Concord”) in November 2003, when Concord became the management company of the MainStay Suites hotel located at 2671 Dry Pocket Road in Greer, South Carolina (the “Hotel”).¹ [Docs. 19–5 at 4:7–6:24; 19–4 ¶¶ 4–6.] Plaintiff had previously worked at the Hotel under its prior management company and continued in her role as General Manager after Concord became the management company. [Doc. 19–5 at 3:1–6:24, 83–84.] As the General Manager of the Hotel, Plaintiff supervised all staff at the Hotel, which consisted of eleven to fourteen employees, including a sales manager, a front desk supervisor, front desk clerks, housekeepers, a maintenance person, and a breakfast attendant and van driver. [Id. at 13:8–14:9; Doc. 19–4 ¶ 6.] In 2011 and 2012, Plaintiff reported to Michael Roberts (“Roberts”), a Regional Manager for Concord; Roberts reported to Ken Polo (“Polo”), a Senior Vice President of Operations for Concord. [Docs. 19–5 at 8:1–9:10; 19–4 ¶¶ 3, 6.]

Throughout her tenure as General Manager of the Hotel, the Hotel consistently met and exceeded operational goals. [Doc. 22–1 ¶ 2.] Choice recognized the Hotel as an exceptional performer with five annual gold star awards and also recognized the Hotel as the Inn of the Year—given to only one of Choice's MainStay Suites hotels each year. [Id.] Additionally, the Hotel was the highest rated, through customer satisfaction surveys, MainStay Suites managed by Concord. [Id. ¶ 3.]

In mid–2011, Plaintiff informed Roberts and others at Concord that she had been diagnosed with multiple sclerosis (“MS”).² [Doc. 22–9 at 6:3–7:21, 116.] However, her MS never limited Plaintiff at her job, and Plaintiff never requested any accommodations for MS. [Doc. 19–5 at 44:16–18, 45:1–4, 64:20–25.]

On October 27, 2011, Reggie Williams (“Williams”), the Hotel's Front Desk Supervisor, emailed Lila Hedlund (“Hedlund”), Concord's Senior Director of Compliance and Training, to complain about Plaintiff and what Williams perceived as an “extremely hostile” work setting. [Doc. 19–7 at 6.] Williams complained of “continuous degradation,” “constant[ ] belittling,” “backbiting,” “name calling,” and “devaluing ... work skills.” [Id. at 6.] Williams also complained about daily memoranda written in all capital letters and containing “constant threats of termination to employees who are ‘not bright enough.’ ” [Id.] Hedlund asked Williams to send her documents and memoranda so that Concord could proceed with an investigation [id. at 7], and Williams sent examples of memoranda and hand-written notes and a written complaint from Hotel employee Charlene Scott (“Scott”) [id. at 8–21]. Scott complained of “unfair treatment to the majority of employees,” “backlash for small errors,” memoranda telling employees how “incompetent” they were and how “stupid” their mistakes were, and belittling staff members in front of guests. [Id. at 20–21.] Hedlund shared the complaints of Williams and Scott with Roberts [id. ¶ 12], who reviewed the documentation and spoke with Williams and Scott about their complaints [Doc. 19–4 ¶ 9]. On November 9, 2011, Roberts issued a written disciplinary warning to Plaintiff, which provided as follows:

[Plaintiff] has had on a[t] least one occasion a conversation with a customer about an associate's behavior as well as posting several memos which have been viewed by at least one staff member as threatening in nature. [Plaintiff] has been using strong language on at least one incident which is being viewed by at least one staff member as maintaining a hostile work environment. Several posted memos as well as written correspondences have shown a pattern of a very strong delivery of discipline to at least one staff member in a public message. [Plaintiff] as well has posted memos stating “corporate” as well as other senior members of the Concord leadership, who have not had the opportunity to review before publicly posting the compan[y']s position on a given topic. See attached supporting documents.

[Doc. 19–5 at 103.] The warning further stated,

[Plaintiff] will receive a written warning on her behavior of talking to a customer on the staff's work performance as well as having a pattern of very aggressive language in written and memo correspondences to the staff members. She will be counseled and monitored by the regional related to the content of her future memos to the hotel staff checking for hostile or threatening message being delivered. [Plaintiff] will also be instructed by her regional director, Michael Roberts, to not give out access to her email to staff members. [Plaintiff] will be coached and coun[s]eled that any retaliation directed to any of the staff members directly or indirectly spoken on the topics being covered today will result in future disciplinary actions ranging from another written warning, which could result in termination. There can be zero retaliation in relation to these topics discussed today with Michael Roberts. [Plaintiff] will be expected to continue to maintain the standards that Concord Hospitality has set in place and charged to [Plaintiff] to uphold. She should continue to hold her staff accountable for their work requirements under their job description co[a]ching and counselling them having a process of continued improvement in place.

[Id.] Finally, the written warning provided, “[Plaintiff] will receive continued written warning documentation on the next offense related to message delivery in a hostile manner, threat[en]ing comments and strong language within her message. Further documentation could result in termination.” [Id.] Plaintiff and Roberts met in person to go over the warning, and both signed the warning. [Docs. 19–4 ¶ 10; 19–5 at 103–04.] Subsequently, Plaintiff submitted a written response to the warning [Doc. 19–5 at 105]; however, Roberts did not reverse the written warning [Doc. 19–4 ¶ 11].

In March 2012, the Senior Director of Revenue Management at Concord reported to Roberts that Plaintiff had used an inappropriate and unprofessional tone on a conference call. [Id. ¶ 12.] Roberts issued an oral warning to Plaintiff regarding her tone and the need to remain professional in her interactions. [Id.]

In May 2012, Roberts received oral and written complaints from two Hotel employees—Anna Hodges (“Hodges”), the Hotel Sales Manager, and Amanda Eggleston (“Eggleston”), a front desk and payroll employee. [Id. ¶ 13.] Hodges complained that she was not being allowed to do her job and provided the following examples: Plaintiff told clients Hodges was not in when she was in; calls were not passed to Hodges because front desk associates were instructed not to transfer the calls; front desk associates were given incentives for not transferring calls to Hodges; Plaintiff changed and deleted items Hodges entered into weekly sales reports; and Plaintiff threatened Hodges and others with terminations and created a hostile work environment. [Id. at 9.] Hodges stated that she had attempted to address these issues with Plaintiff, who always blew her off, and Hodges was informing Roberts because the situation had gotten worse and was no longer hindering just Hodges but the entire team at the Hotel. [Id. at 9–10.] Eggleston complained that the work environment was hostile and uncomfortable and Plaintiff was unprofessional and lacked leadership skills. [Id. at 11.] Both Hodges and Eggleston informed Roberts that other Hotel staff had quit because of Plaintiff and others were looking elsewhere for employment. [Id. at 9–11.] On May 20, 2012, Roberts emailed Hedlund and copied Polo and Debra Punke (“Punke”), Vice President of Human Resources, notifying them of the complaints and stating that Roberts believed he should issue a second written warning, which would result in termination.³ [Id. at 12.] On May 30, 2012, Roberts issued a second written disciplinary warning to Plaintiff, detailing the complaints of Hodges and Eggleston. [Id. at 14–15.] The warned further stated,

[Plaintiff] was coached and coun[s]eled on November 11, 2012 that any continued hostile environment allowed or generated by [Plaintiff] could result in future disciplinary actions ranging from another written warning, which would result in termination. [Plaintiff] will receive a ... written warni[n]g for allowing a hostile work envir[ ]ronment to exist coupled with the gossiping conducted by [Plaintiff] in more than one occasion and viewed by more than one associate as the victim and finally threatening publicly to “Get Rid” of ce [r]tain individuals on the team. [Plaintiff] as well has become a barrier in allowing the sales manager to conduct her job as directed by the regional sales manager by deliberately intercepting and redirecting clients from the sales manager. This is [Plaintiff's] second written warning in a twelve month period of time and she is being terminated.

[Id. at 15.] Plaintiff and Roberts met in person to go over the warning and termination notice. [Id. ¶ 17.] Plaintiff did not sign the second warning and did not submit a response or appeal the termination. [Id. at 15; Doc. 19–5 at 39:4–15.]

Plaintiff submitted an intake questionnaire to the Equal Employment Opportunity Commission (“EEOC”). [Doc. 19–5 at 109–12.] On July 20, 2012, Plaintiff signed a charge of discrimination (“Charge”). [Id. at 113.] The Charge alleged that Plaintiff had been discriminated against based on her age and disability. [Id.] On November 9, 2012, the EEOC issued a Dismissal and Notice of Rights. [Id. at 117.] Subsequently, the EEOC reopened the file and issued a Notice of Intent to Reconsider. [Id. at 118.] On January 28, 2014, the EEOC issued a second Dismissal and Notice of Rights. [Id. at 119.]

APPLICABLE LAW

Summary Judgment Standard

Rule 56 states, as to a party who has moved for summary judgment:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324, 106 S.Ct. 2548. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985), overruled on other grounds, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). “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, 106 S.Ct. 2505. Further, Rule 56 provides in pertinent part:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed.R.Civ.P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.

DISCUSSION

Defendants argue Plaintiff cannot establish a prima facie case under the ADA or ADEA nor can Plaintiff establish that Defendants' legitimate, nondiscriminatory reason for terminating Plaintiff is really a pretext for unlawful discrimination. [Doc. 19.] The Court agrees and, although the Court would typically discuss the ADA and ADEA claims separately, because the claims suffer from the same deficiencies with respect to establishing pretext, the Court addresses the claims together.

The ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1).

Absent direct or circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor motivated an employer's adverse employment action,⁴ a plaintiff may proceed under the McDonnell Douglas “pretext” framework to establish a claim of employment discrimination. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir.2005) (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir.2004)); see Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir.1995) (holding that “the McDonnell Douglas scheme of proof applies to appropriate claims under the ADA”). Under this framework, an employee must first prove a prima facie case of discrimination.⁵ McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510–11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817.

Here, even assuming without deciding Plaintiff can establish a prima facie case of disability or age discrimination, the Court agrees Defendants have articulated a legitimate, nondiscriminatory reason for terminating Plaintiff, and Plaintiff has failed to establish a genuine issue of material fact remains as to whether the articulated reason is pretext for unlawful discrimination. Defendants argue Plaintiff was terminated consistent with Concord's policy because she received two written warnings and an oral warning within a twelve-month period. [Doc. 19–1 at 27.] On November 9, 2011, Plaintiff received a written disciplinary warning related to delivering messages to employees in a hostile manner and using threatening comments and strong language. [Doc. 19–5 at 103.] That warning provided that further documentation could result in termination. [Id.] In March 2012, Plaintiff received an oral warning regarding her tone on a conference call. [Doc. 19–4 ¶ 12.] On May 30, 2012, Plaintiff received a second written disciplinary warning for a continued hostile environment, gossiping, threatening in public to terminate Hotel staff, and preventing the sales manager from doing her job. [Id. at 14–15.] As a result of this second disciplinary warning in a twelve-month period, Plaintiff was terminated. [Id.; see also Doc. 19–5 at 89 (Concord Handbook Policies, providing that “[m]anagers may be terminated after receiving only two written warnings within a twelve-month period from the date of the first written warning”).] The Court concludes Defendants have met their burden under McDonnell Douglas to articulate a legitimate, nondiscriminatory reason for terminating Plaintiff. Accordingly, the Court will consider whether Plaintiff has met her burden of demonstrating that Defendants' proffered reason is merely a pretext for discrimination, which would indicate whether Plaintiff could meet her ultimate burden of persuasion and demonstrate discrimination vel non. See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir.2010) (“The final pretext inquiry ‘merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination,’ which at all times remains with the plaintiff.” (alteration in Merritt ) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089)).

To prove an employer's articulated reason is a pretext for discrimination, a plaintiff “must prove ‘both that the reason was false, and that discrimination was the real reason’ for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir.1995) (emphasis in original) (quoting St. Mary's Honor Ctr., 509 U.S. at 515, 113 S.Ct. 2742). When determining whether an articulated reason is pretextual, “[i]t is the perception of the decision maker which is relevant.” Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 445 (4th Cir.1998), overruled on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Upon review of the record, the Court determines Plaintiff has failed to demonstrate a genuine issue of material fact as to whether Defendants' proffered reason for terminating Plaintiff is merely a pretext for discrimination.

In her response in opposition to the motion for summary judgment, Plaintiff focuses her argument on establishing a prima facie case of discrimination but fails to argue that Defendants' proffered reason for terminating Plaintiff is merely a pretext for discrimination. To the extent Plaintiff's response can be construed to argue the warnings she received were pretext because they were not legitimate warnings, “[i]t is the perception of the decision maker which is relevant.” Tinsley, 155 F.3d at 445. The Fourth Circuit Court of Appeals has addressed the analogous situation where a plaintiff disagrees with the facts underlying a decision maker's assessment of the employee. Hawkins v. PepsiCo, Inc., 203 F.3d 274 (4th Cir.2000). In Hawkins, the employer argued it terminated the plaintiff because she performed poorly in her special projects capacity and failed to improve even after receiving negative feedback. Id. at 279. The plaintiff claimed the employer's criticisms were inaccurate and insisted she performed her job well. Id. The court held the plaintiff could not show the employer's stated reasons for terminating her were not the real reasons for her discharge, noting “ ‘it is not our province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for plaintiff's termination.’ ” Id. (citing DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.1998) (internal quotation marks omitted in Hawkins )); see also Hawkins, 203 F.3d at 280 (“But instead of producing evidence that shows [the supervisor's] assessment of her performance was dishonest or not the real reason for her termination—as the law requires—[the plaintiff] disputes the merits of [the] evaluations.”). Here, Plaintiff has failed to put forth any evidence, other than her own conclusory allegations, that Roberts did not believe the employee complaints about Plaintiff's hostility and behavior toward her staff warranted a written disciplinary warning.

To the extent the discussion of Lisa Bass (“Bass”), an alleged comparable employee whom Plaintiff argues was treated differently from Plaintiff, in Plaintiff's response can be construed as a pretext argument, such argument fails to establish Defendants' proffered reason for terminating Plaintiff is a pretext for unlawful discrimination. Plaintiff concedes that Bass was terminated following two written warnings within a twelve-month period after a guest complaint about Bass and an employee's complaint about Bass to the IRS; however, Plaintiff argues Roberts tolerated Bass's conduct and allowed it continue for over two years despite repeated employee complaints. [Doc. 22 at 7–8.] The record in this case establishes that Concord had also received complaints about Plaintiff well before her November 2011 written warning and May 2012 termination; however, Plaintiff was issued a first written warning in November 2011 because that was the first time anyone had submitted a written complaint about Plaintiff that rose to an actionable level. [Docs. 24–1 ¶ 17; 24–2 ¶ 14; 19–7 at 6 (electronic mail message from Williams to Hedlund, stating that Williams had brought this to the attention of Mike Tonimaker two years before at a leadership development class), 7 (response email from Hedlund to Williams, indicating Williams had orally complained about Plaintiff before but that Hedlund had not proceeded with an investigation because Williams failed to follow up with documentation); 19–4 at 9 (written complaint from Hodges, stating that she had brought this to Andrew's attention) ]. Similarly, Concord had received complaints about Bass but did not issue any written warnings until receiving written complaints that rose to an actionable level. [Docs. 24–1 ¶¶ 11–15; 24–2 ¶¶ 7–11.] Plaintiff has failed to produce evidence that she was not terminated pursuant to Concord's policy for receiving two written warnings within a twelve-month period—she has not established either that this proffered reason for termination is false or that age or disability was the real reason for her termination. Accordingly, summary judgment should be granted.

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that Defendants' motion for summary judgment be GRANTED.

IT IS SO RECOMMENDED.

Filed July 30, 2015.