Opinion
C. A. 3:20-4480-TLW-SVH
12-22-2022
Wilbert J. Alexander, II, Plaintiff, v. South Carolina Department of Transportation, Defendant.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges, United States Magistrate Judge
In this case, an employee sues his former employer, South Carolina Department of Transportation (“Defendant”), alleging that he enjoyed a positive work history prior to complaining about certain work conditions, but following his complaint, he was discriminated against due to his race, eventually resulting in his termination. Wilbert J. Alexander, II (“Plaintiff”), originally filed this suit on December 29, 2020, asserting Defendant subjected him to race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”).[ECF No. 1].
Plaintiff also brought the following claims, all of which have been dismissed: Title VII hostile work environment, Title VII retaliation, violation of the Family and Medical Leave Act, violation of freedom of speech rights, breach of contract, negligence, defamation, tortious interference with terms of employment, intentional infliction of emotion distress, and wrongful discharge. [See ECF No. 74 (operative complaint), see also ECF No. 59, ECF No. 65]. Additionally, previously-named defendants who have been dismissed include Michael Guffee (“Guffee”), Cynthia Johnson, and Kace Smith (“Smith”). See id.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), the case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 111]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of Defendant's motion and the possible consequences if he failed to respond adequately. [ECF No. 112].The motion has been fully briefed [ECF Nos. 120, 121] and is ripe for disposition. Also before the court are Plaintiff's motion for summary judgment and hearing [ECF No. 116], consent motion to withdraw as attorney [ECF No. 107], and motion for sanctions [ECF No. 106].
Plaintiff filed the instant suit on December 29, 2020, proceeding pro se. [ECF No. 1]. On March 30, 2020, an attorney filed a notice of appearance on Plaintiff's behalf. [ECF No. 92]. However, on October 30, 2020, prior to the deadline for Plaintiff to file a response to Defendant's motion for summary judgment, Plaintiff's counsel filed a consent motion to withdraw as attorney. [ECF No. 107, see also ECF No. 105]. Plaintiff failed to file an objection to counsel's motion in the time directed by the court [see ECF No. 109] and has filed a response to Defendant's motion for summary judgment, again proceeding pro se. [See ECF No. 120]. Accordingly, the court grants counsel's motion to withdraw. [ECF No. 107].
Having carefully considered the parties' submissions and the record in this case, the undersigned denies Plaintiff's motion for sanctions, grants Plaintiff's consent motion to withdraw as attorney, and recommends the district judge grant Defendant's motion for summary judgment and deny Plaintiff's motion for summary judgment.
I. Factual and Procedural Background
Plaintiff was hired by Defendant in 2014 as an auditor (level VI) in its office of contract assurance. [ECF No. 42-1 at 1]. Beginning June 17, 2017, Plaintiff accepted a position as an accounting fiscal analyst (level III) in the accounting office. [ECF No. 111-2 at 34:9-13, see also ECF No. 42-1 at 1].
On January 24, 2018, Plaintiff submitted a 10-page complaint of discrimination to Defendant's employee relations manager Darlene Rikard (“Rikard”), in which Plaintiff primarily complained “about pay.” [ECF No. 111-4 at 26-35]. Plaintiff testified in his deposition that he was paid less than another employee, Stuart Ruelle (“Ruelle”), who had the same job title, but who, unlike Plaintiff, supervised others. [ECF No. 111-2 at 34:4-22, 48:1625; see also id. at 42:2-6 (Plaintiff testifying that he worked more than Ruelle as follows: “It's just the daily tasks that we were doing. It's the-it's the responsibility, the auditors I was interacting with, and the amount of work that I know I had to do.”)].
Defendant conducted an analysis of Plaintiff's compensation versus Ruelle's (“salary study”), concluding as follows:
[W]hile there is an $11,586 disparity between the salary of Wilbert Alexander and Stuart Ruelle, there does not appear to be a salary inequity because Mr. Ruelle has over 14 more years of accounting experience than Mr. Alexander and he received a 7% increase for taking on supervisory responsibilities. In addition, the background of Mr. Ruelle is much more in depth than Mr.
Alexander as he has served as a Controller or Assistant Controller on multiple occasions.[ECF No. 111-4 at 38].
Rikard and Plaintiff had a meeting on February 8, 2018 to discuss Plaintiff's January 24, 2018 complaint. Id. at 41. Rikard recorded the following concerning the pay disparity issue:
Complaint Issue One-Salary-June 1, 2017: He accepted position [as an accounting fiscal analyst, level III] at the salary offered and it was a lateral move that did not “require” additional compensation; however he was provided a 5% increase as allowed by pay policy. Salary Study shows not pay inequity. Complainant compared himself to an individual with vastly more experience.Id. at 41.
Plaintiff's complaint also included the following concerns, with select Rikard comments from the February 8, 2018 meeting included:
• Guffee “set[] outrageous deadlines and [did] not provid[e] any guidance or assistance” dated 9/14/2017;
o Rikard recorded that many of the issues Plaintiff had concerned events around September 14-20, 2017 after Plaintiff had been told to write an audit manual to be completed in one and a half months. Rikard states that N'Katha Simmons (“Simmons”), Plaintiff's manager, “felt the deadlines were appropriate, especially of someone in an Accountant/Fiscal Analyst III.”
• Smith “was sarcastic with me and did not provide proper guidance when it was requested,” dated 9/14/2017;
o Rikard recorded Plaintiff admitted he was “‘polite' [to Smith] but . . . could have seemed dismissive ....”
• Guffee “incorrectly blamed me for sending the wrong report to the auditor,” dated 9/15/2017;
o Rikard recorded that Plaintiff admitted that although Guffee forwarded the report at issue, Plaintiff provided the erroneous information.
• Guffee “is making my job harder and he lied to me that he sent the auditors exactly what I sent to him and deleted an answer in my response to the auditors['] inquiry,” dated 9/18/2017;
o Rikard recorded the following: “Complainant felt Michael should have sent what the Complainant provided and not modified. Discussed the fact that the Auditor said, ‘she has everything she needed' so apparently the information he provided to Michael helped, what is the harm if he reformatted the information? Claims Michael trying to make it look like he is working when Complainant is the one doing the work. I explained that in our positions, it is our responsibility to provide information to management for these higher level responses.”
• Smith and Guffee “stopped speaking to me,” dated 9/15/ 2017;
o Rikard recorded the following: “It is now February of 2018, clearly they are still speaking to the Complainant. But, he stated he just felt ignored, but he doesn't want them to talk to him anyway.”
• Guffee “is praising and providing opportunities to certain employees and never praises or provides guidance on any work that I have done,” dated 9/20/2017;
o Rikard recorded the following: “Complainant had an issue with another employee ‘Ruelle,' same pay band, acting as the supervisor in the absence of Na'Katha. Claims this allowed the individual to get supervisory
experience. Discussed ‘team leads' being assigned is not uncommon and he admitted he did not know Mr. Ruelle's background.”
• Guffee “disregarded an issue that I informed him about and scolded me for doing my job and being transparent and communicating to upper management,” dated 12/5/2017;
o Rikard confirmed this issue concerned Plaintiff still working on the audit manual.
• Smith and Guffee “are slandering my name and character,” dated 12/13/2017;
o Rikard confirmed Plaintiff's understanding that no one heard what Smith and Guffee were allegedly saying about Plaintiff.
• Smith “beat her hand on the table while yelling at me continuously maybe 6 or more times ‘what are you researching, there is nothing to research,'” dated 12/13/2017;
o Rikard recorded as follows: “Meeting about Indirect Cost Calculation and there were questions about variances with Michael stated should have been SO. Claims he stated he was still ‘researching' and needed more time to determine their cause. Stated because his supervisor, Na'Katha had set up the spreadsheet the error could be in the work she did. Claimed computer locked up and they were questioning him about why it was not complete, but it was new to him and they should be helping. He said was doing his job but just needed more time. He claimed they ‘threatened' him by stating he needed to get it done as soon as possible because he didn't want to have to deal with them next week while Na'Katha was on leave. Na'Katha was in the meeting. Claims she just sits there. I spoke with Na'Katha and she admitted she was often quiet in the meetings, but that she, too, had frustration with the Complainant's
ability to independently work on issues. Na'Katha acknowledged raised voices in the conference room, with all three-Kace, Michael and Wilbert, raising voices. Na'Katha stated frustration is that it is a struggle to get work out of Complainant. Often excuses and unable to explain. Said Complainant tells them how HE thinks they should manage him instead of doing what they ask.”
• Smith “went to payroll and obtained a report that I requested and didn't give me the report until 5 hours later,” dated 12/19/2017;
o Rikard recorded that Plaintiff felt the report was intentionally withheld.
• Guffee “is harassing me and has created a hostile work environment,” dated 1/23/2018;
o Rikard recorded as follows: “Complainant claimed ‘harassment' because Guffee sent two emails and came to his office Complainant uses word ‘threaten' when being told by Guffee that ‘he better be ready and answer all the questions during an upcoming meeting with Finance Director on l/2S/2018. This is the same report that management had told him that he ‘needed to own.'”
• Guffee “threatened to contact the comptroller Generals office to see if I have been approving invoices,” dated 1/23/2018;
o Rikard recorded as follows: “States he was ‘told' that Michael Guffee had said, he didn't think he was doing them and might call the CG's office to verify. He took
this as a ‘threat.' Ultimately Michael did not call nor did he question anything further and per the Complainant, he was still assisting with invoices and Michael had helped him recently.”Id. at 27-35, 41-44.
Plaintiff testified that although “(n)o one just flat-out called me the ‘N' word,” he was subjected to “day to day mistreatment,” including “[y]elling at me, demeaning me, belittling me, those are daily things that I went through,” with Smith and Guffee both yelling at Plaintiff and slamming their hand on the table in front of him. [ECF No. 111-2 at 51:10-15, 61:1-25].
Plaintiff also testified that he observed Guffee “demoting or kicking this black girl, this manager, this black manager out of her office, and then he's supposed to be moved into that office,” and treating a white male named David better than a black male named Jamil in that Guffee showed more attention, taught more, and met with David more than Jamil. [ECF No. 111-2 at 51:16-22, 99:20-100:23].
Following meeting with Plaintiff and further investigation by Rikard including discussions with Simmons and Brian Keys, director of finance, Rikard issued a letter to Plaintiff dated April 3, 2018, stating in part that based upon her review, no evidence was found to substantiate Plaintiff's allegations of discrimination, harassment, and salary inequity. Id. at 44-45.
On April 2, 2018, Plaintiff met with Simmons and Guffee for Plaintiff to be counseled regarding securing approval before taking leave and regarding habitual tardiness. Id. at 80-81. The documentation states “[y]ou continue to demonstrate an inability and/or unwillingness to report to work by your assigned start time of 8:30 a.m.” to which Plaintiff responded as follows: “I get to work consistently at 8:45 yes late, but consistently none of my job duties have been impacted by being late 15 minutes.” See id.
On May 8, 2018, Plaintiff was subject to disciplinary action concerning inappropriate items found on March 29, 2018, in Plaintiff's work folder in the Accounting Department's shared drive. Id. at 82-89. According to Defendant's documentation, the following occurred:
On or about March 29, 2018, a co-worker of the Complainant reported finding nonwork related photographs in a shared computer drive. The photos depicted women in clad in lingerie. In addition, there were several files related to the Complainant's personal business. The Complainant was confronted about these files on May 4, 2018 and admitted he knew it was inappropriate to house this items on his SCDOT computer. While a more severe disciplinary action could have been supported, the Complainant's management, N'Katha Simmons, Michael Guffee and Kace Smith, elected to go with a lesser action with hopes that the employee would grow from this event and focus on his assigned tasks. A written reprimand for “improper Conduct or Conduct Unbecoming a State Employee” first occurrence was issued 5/9/2018.Id. at 54.
On July 26, 2018, Plaintiff sent an email to Rikard, arguing that he is “still being given task with outrageous deadlines,” the task being the updated audit manual, further complaining of Smith's unprofessional behavior in meetings, that Plaintiff was not given a chance to explain why he was having difficulties meeting the deadlines, and concluding that he felt he was being retaliated against “due to a hostile work environment previously created due to original short unmakeable deadlines and expectations.” Id. at 90. The record also indicates that in December 2018, there were complaints made that Plaintiff and another employee, Anthony Beatty, got into a verbal altercation. Id. at 21-23.
On January 28, 2019, Plaintiff was provided with a written reprimand for violation of rules, instructions, regulations, policies, or procedures, which he refused to sign. Id. at 101-110. The reprimand, written by Simmons, provides as follows:
On November 27, 2018 you were instructed, verbally and electronically (see attached) by management that there was no need for you to stay late going forward to work on the rate calculation tasks that you were assigned. Despite receiving instructions not to work late, you made the decision to ignore the instruction given to you and proceeded to record working hours past your assigned working schedule (9am - 5pm) November 27, 2018 through December 13, 2018, see attached. As mentioned in my attached email to you on December 21, 2018 “taking it upon yourself to make a decision to disregard a directive given to you by a manager is never acceptable and has the potential to result in consequences”. You should have discussed with management your concerns and received approval to change your instructions, not take it upon yourself to disregard the instructions given to you withhold permission. As a result of you not following the instruction of management you are being issued a written reprimand for Violation of Rules, Instruction, Regulations, Policies or Procedures, first occurrence, in accordance with the SCDOT Disciplinary Action Policy.Id. at 102.
The record indicates that two days later, on January 30, 2019, Plaintiff met with Rikard and Rikard's supervisor, the head of Defendant's human resources office, Karl McCottry. Id. at 56-57. Defendant has submitted evidence regarding this meeting as follows:
During the meeting, the Complainant discussed a lot of his previous issues and repeatedly stated that although his management all had issues with his quality and quantity of work,
he did not agree and felt it was a lack of training that caused him Issues. At this time the Complainant, an Accountant/Fiscal Analyst Ill. had been in his position for almost two (2) years. As he was not in an entry level position, it should not require ongoing training. The Complainant stated of his management: “I don't like them and they don't like me.” The Complainant again stated he disagreed with the deadlines given to him and that he felt they were unrealistic leading to his regularly missing them. When asked what he wanted, the Complainant said: “Out!” At which point Director McCottry replied: “you will need to apply for other positions.” When asked what he needed to be successful, as well as what his biggest issue was, the Complainant responded: his computer. It should be noted there were problems with his spreadsheets often being too large and cumbersome to navigate. In fact, this had caused his computer to crash. Since the Complainant repeatedly complained of a lack of training as being an issue, he was asked what he needed other than a computer, he stated: “I can do this job in my sleep! This is nothing! Easy! I've done far more complex work!” In spite of this comment, at the conclusion of this meeting, the Complainant again stated he thought there was a learning curve and with regard to issues with deadlines, he stated he believed he was being set up to fail. The Complainant's personal cellphone rang during this meeting with Rikard and McCottry and he took the call while seated at the table and stated he would call the person back. Thereafter, Complainant [became] angry, argumentative, and emotional during the conversation with Rikard and McCottry, leading them to provide him with information regarding Job Retention Services through South Carolina Vocational Rehabilitation in the event he was interested in speaking with someone else.Id. at 57-58.
Plaintiff states in briefing, without evidentiary support, that he was harassed at work, aggravating his depression and anxiety, leading “to a Disability per SDOT and EEOC guidelines.” [ECF No. 120 at 13, see also Id. (“Plaintiff has provided direct evidence that SCOT's Rikard observed the Plaintiff's perceived mental anguish in this same meting per SCOT handbook and EEOC standards, depression and anxiety are both forms of disabilities.”)]. When asked to explain his position, Plaintiff testified that Rikard “requested that I speak with the, what is it, SC Voc Rehab, which is some type of disability whatever She said that she saw that I was being emotional and what have you in the meeting. So she requested that I speak with them.” [ECF No. 111-2 at 95:21-96:22]. Plaintiff further testified that he never spoke with anyone at “Voc Rehab” and ultimately testified he couldn't “really explain why [Rikard] asked me to go to Voc Rehab.” Id. at 96:25, 98:12.
On or about February 13, 2019, Simmons and Guffee began trying to arrange a meeting with Plaintiff to go over his concerns regarding his job duties with his newly hired supervisor, Lakita Reed. Id. at 119-124. During this email exchange, Plaintiff provided a list of his duties and stated in part as follows:
Can we please keep this simple though? I'm not trying to go back and forth with you, but once again, I think this is being made into a big to do. N'katha knows all the task that she has assigned me . . . .This doesn't require a meeting, just an[] easy email response and can be handled today ....Id. at 122.
However, following the meeting and an inquiry from Guffee regarding the meeting, Plaintiff emailed on February 21, 2019, that he “will need written detailed instructions and guidance on all duties discussed in the meeting that I have not received training on as of today or that was on the list that I provided.” Id. at 121. In response, Guffee stated as follows:
Originally you indicated you just needed confirmation on the task you listed below and didn't need the “special meeting”. Is it different now? It is my understanding instructions have been given. This was the reason I felt a meeting would be more efficient than just responding to your email so it would provide
an opportunity for you to ask questions and address any concerns. Did you communicate what you indicated you needed below during the meeting this morning? If so what is the plan on receiving the training and if not why? Please provide any items you feel instructions/training haven't been provided so this can be addressed.Id.
In response, Plaintiff stated in part as follows:
No it is not different now.
If the list was updated prior to the meeting, maybe we could have went into a little more detail about some of the NEW DUTIES NOT ON MY LIST that N'katha brought up.
I wanted management to provide a list of items they wanted me to work on so that it is clear and in writing because someone mentioned to employee relations that l was having issues with IN HOUSE CHARGES when that isn't true at all.
FYI, I really didn't want to be in the meeting with you because since you've started, almost every meeting I have been in gets out of hand and an argument starts about something. I didn't need a special meeting there are more than one way to discuss duties than in a meeting. This was not the case prior your employment.
Originally I indicated I wanted the list to be updated with the topics of any task that management wanted completed so that you wouldn't be able to say “to my understanding you have been given instructions when in actuality we only discussed on a high level what the duties are or will be but not actually how to accomplish the task completely . . . .
You can not summarize, a 20-30 minute meeting, all duties required for this job. You have to actually roll up your sleeves and do the work so you will know what to ask questions on . . . .
It's your responsibility to get me the training needed when a new task is given, so whenever I'm given a new task not on the list
provided, I will expect detailed training and instructions, preferably in writing so no one can say “to my understanding instructions have been given.” It will be in writing. Also, if I need instruction or clarification on something on the list I would expect the same guidance.Id. at 119-120 (emphasis in original).
In response, Guffee stated “[a]gain, please provide any items you feel instructions/training haven't been provided so this can be addressed,” and Plaintiff responded, “Ok, I will let you know in the future when something comes up or if anything not on the list is given or requested.” Id. at 119.
Defendant characterized the above email exchange as showing that Plaintiff “became increasingly combative, discourteous and insubordinate, especially towards Financial Controller Guffee.” Id. at 58. A decision was made to take official disciplinary action; the relevant paperwork, completed by Guffee, provides as follows:
On February 21, 2019, you met with N'Katha Simmons, your now-former supervisor, and Lakita Reed, your new supervisor to discuss your assigned tasks and expectations regarding your performance of those tasks. Additionally, your meeting was also for Ms. Simmons to respond to an email from you on February 14, 2019, which contained a list of tasks that you requested for Ms. Simmons to review and confirm for your understanding of tasks you are responsible for performing. To ensure that you have a thorough understanding of your assigned tasks and expectations, on February 21, 2019, I sent you an email to follow-up on your meeting with Ms. Simmons and Ms. Reed and instructed you to direct any additional questions or concerns you might have regarding this matter, to my attention.
Mr. Alexander, although you responded to my initial email, further email responses from you escalated into communications that appeared to display tones of discourteous, combative, and insubordinate-like behavior. More concerning is that you displayed the unacceptable behavior in email communications to your manager. Furthermore, this type of behavior distracts from our focus on accomplishing departmental goals and shows no regards, on your part, for maintaining professional and respectful standards in the workplace.
Mr. Alexander, despite our previous attempts to counsel you, on more than one occasion, you continue to display the discourteous, combative, and insubordinate-like behavior that is unacceptable and will not be tolerated. Therefore, in accordance with the SCDOT Disciplinary Action Policy, I am recommending a 5-day suspension for “Improper Conduct or Conduct Unbecoming a state Employee”-Second Occurrence.
Our hope is that you take all steps necessary on your part, to correct this behavior. Any further occurrences can and will result in more severe discipline up to and including termination.Id. at 118; see also id. at 117-125.
On February 27, 2019, Plaintiff met with Smith, Guffee, and Rontreal Tyler (“Tyler”) so Plaintiff could be informed he was receiving a 5-day suspension for improper conduct. Id. at 125. Instead, however, it was determined Plaintiff should be fired as follows:
On February 27, 2019, Kace Smith, Rontreal Tyler [(“Tyler”)] and [Guffee] met with [Plaintiff] regarding a “Second Occurrence” disciplinary issue whereby [Guffee] informed him he was receiving a five-day suspension for “Improper Conduct.” During the suspension notification, Mr. Alexander became combative and aggressive from the information presented. Based on his actions during the meeting [Guffee] in agreement with Mrs. Smith and Mr. Tyler's input propose employment separation between SCDOT and Wilbert Alexander.Id. at 125, see also id. at 127-33 (meeting notes from Smith, Guffee, Tyler, and Plaintiff). Guffee's notes regarding the February 27, 2019 meeting are as follows:
On February 27, 2019, Kace Smith, Rontreal Tyler and I met with Wilbert Alexander regarding a disciplinary issue whereby I informed him he was receiving a five-day suspension for “Improper Conduct.” I communicated to Mr. Alexander an overview of events that had taken place over the past week and that a five-day suspension was recommended based on his actions and communications. I provided Mr. Alexander with the documentation and agency's approval for his suspension.
At this time Mr. Alexander became upset and aggressive based on what had been presented. He proceeded to state that the suspension was in retaliation for a previous issue, which I am unaware of, and that I have personally “been out to get him” since taking my current position in July, 2017. At first his aggression was only towards me and my actions. He then included my direct supervisor (Kate Smith) into his accusations and then his direct supervisor (N'Katha Smith) for training issues. He became more hostile, pointing his finger at Kace Smith and me, saying he was “coming for us” with aggression, Human
Resource actions and lawsuits. At this time I felt threatened by his words and demeanor.
Kace Smith then told him again of the disciplinary action details. Mr. Alexander mocked her verbally as if he did not understand, which was not what she was implying but rather recapping so the details were understood. During these events Mr. Alexander took a personal call on his cell phone. As Mr. Alexander's actions escalated, Rontreal Tyler intervened and offered him a final opportunity to review the documentation presented and notified Mr. Alexander that he was going to escort him to his workplace to retrieve personal items. Mr. Alexander was given multiple opportunities to review and sign the documentation from Kace Smith. Rontreal Tyler and myself, which he refused.
From my perspective, the communication and behavior of Mr. Alexander during this meeting was combative and threatening to those present.Id. at 130.
Throughout Plaintiff's filings, he argues that Guffee made numerous false statements, including in the emails above that Plaintiff displayed discourteous, combative, and insubordinate-like behavior and that Guffee was unaware, presumably, that Plaintiff filed a discrimination complaint against him on January 24, 2018. [See, e.g., ECF No. 120 at 1, ECF No. 106-1 at 2]. Although Plaintiff characterizes his behavior as “nice and courteous,” [ECF No. 120 at 5], Guffee's characterization of Plaintiff's behavior is just that, a characterization. Plaintiff has further argued Defendant may have “failed to inform Guffee of the 01/24/2018 discrimination claims reported to SCDOT employee relations,” offering no evidence as to whether or when Guffee had been informed about Plaintiff's January 24, 2019 complaint. [ECF No. 106-1 at 3]. Accordingly, the court declines to further address Plaintiff's arguments concerning Guffee's alleged false statements where Plaintiff has failed to submit admissible evidence that false statements were made.
Plaintiff's last day of compensation was March 6, 2019. Id. at 126. On December 15, 2019, Plaintiff filed a charge of discrimination with the South Carolina Human Affairs Commission, alleging as follows:
Personal Harm: I was suspended and discharged on or about February 27, 2019.
Respondent's Reasons: My supervisor (white) alleged that I was being combative and that I threatened him.
Complainant's Contention: I deny this allegation and contend I was discharged because of my race and in retaliation for complaining about discrimination ....[ECF No. 111-3 at 1].
None of the complaints filed by Plaintiff in this case, nor his opposition to Defendant's motion for summary judgment, is verified. [See ECF Nos. 1, 15, 20, 74, 120, see also ECF Nos. 26, 48]. In this Circuit, verified complaints filed by pro se plaintiffs can be considered as affidavits when the allegations contained therein are based on personal knowledge. See, e.g., Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). However, as stated, Plaintiff's filings are not verified, and, therefore, the court does not consider allegations made in Plaintiff's unverified filings as evidence to support or refute the parties' pending motions for summary judgment.
II. Discussion
A. Standard on Motion 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Title VII Discrimination Claims
Absent evidence of direct discrimination, Plaintiff may use the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove his claims of discrimination. Plaintiff must show: (1) he is a member of a protected class; (2) he was performing his duties in a satisfactory manner; (3) he was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for its decision. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 557 (D.S.C. 2013). This is merely a burden of production, not of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Once Defendant meets its burden by producing a legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced is not the true reason, but was pretext for discrimination. Id. Throughout the burden-shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff.
The court need not address the parties' arguments as to whether Plaintiff has established a prima facie case of discrimination, particularly as to whether Plaintiff was performing his duties in a satisfactory manner. Even if he can establish a prima facie case of discrimination, Plaintiff has not demonstrated that the reasons provided by Defendant for any adverse employment action taken against Plaintiff are pretext for illegal discrimination.
It is difficult to determine what specific adverse employments actions Plaintiff complains were taken based on illegal discrimination. The court discerns the following and addresses each in turn below: (1) disparate pay, (2) denial of promotions and various employment opportunities, and (3) suspension/termination.
Plaintiff also appears to take issue with various write-ups and reprimands he received prior to his termination. [See, e.g., ECF No. 120 at 11-12 (discussing the reprimand he received for habitual tardiness)]. However, as repeatedly recognized by the Fourth Circuit, “reprimands and poor performance evaluations alone ‘are much less likely to involve adverse employment actions than the transfers, discharges, or failures to promote whose impact on the terms and conditions of employment is immediate and apparent.'” Terry v. Perdue, No. 20-2016, 2021 WL 3418124, at *2 (4th Cir. Aug. 5, 2021) (citing Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015)). Here, as in Adams, Plaintiff has failed to show the reprimands he received involved “some material change in the conditions of his employment.” See id.; James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (“Poor performance evaluation is adverse employment action, as required to support discrimination claim under Title VII, only where employer subsequently uses evaluation as basis to detrimentally alter terms or conditions of employment”) (citation omitted)).
Plaintiff argues, and Defendant agrees, there existed a pay disparity between Plaintiff and Ruelle, with Defendant further arguing that the legitimate, nondiscriminatory reason for this disparity is that (1) Ruelle had significantly more experience than Plaintiff and (2) Ruelle, unlike Plaintiff, took on a supervisory role. As stated above, Defendant submitted evidence that a salary study was conducted that contained the following conclusion, and this study was the basis for the disparity in pay between Plaintiff and Ruelle:
In conclusion, while there is an $11,586 disparity between the salary of Wilbert Alexander and Stuart Ruelle, there does not appear to be a salary Inequity because Mr. Ruelle has over 14 more years of accounting experience than Mr. Alexander and he received a 7% increase for taking on supervisory responsibilities. In addition, the background of Mr. Ruelle is much more in depth than Mr. Alexander as he has served as a Controller or Assistant Controller on multiple occasions.[See ECF No. 111-4 at 36-38].
Plaintiff has offered no admissible evidence that Defendant paid Ruelle more than Plaintiff for any other reason than those listed above, nor has Plaintiff submitted admissible evidence that Ruelle, in fact, did not have more relevant experience than Plaintiff. [See ECF No. 120 at 3].
Plaintiff appears to argue that by compensating Ruelle more than him, Defendant engaged in a type of “backward” or reverse age discrimination. [See ECF No. 120 at 3]. The court rejects this argument. An employer can compensate an employee more for superior experience. The court also rejects Plaintiff's unsubstantiated allegations that, for example, “Ruelle worked in a scoffee shop or something that was not Government related.” See id. Finally, Plaintiff has failed to indicate the relevance of his arguments comparing Ruelle's compensation versus Simmons's. See, e.g., id. at 4.
Additionally, Plaintiff admitted in his deposition that Ruelle, unlike Plaintiff, took on a supervisory role. See, e.g., Riley v. Honeywell Tech. Solutions, Inc., 323 Fed.Appx. 276, 277-78 (4th Cir. 2009) (affirming grant of summary judgment as to employee's failure-to-promote and wage claims because plaintiff had not established reasons proffered by employer for failure to promote or regarding difference in wages were pretextual, finding there was “utterly no evidence of racial animus” and distinctions between employees were “adequate to justify” wage differential); Mack v. S.C. Dep't of Transp., C/A No. 3:12-2960-MGL-KDW, 2015 WL 1297836, at *17 (D.S.C. Jan. 28, 2015) (“In order to survive summary judgment, Plaintiff must demonstrate that her race was a motivating factor in determining her salary, even though other factors may also have motivated her wages .... The evidence Plaintiff sets out . . . does not demonstrate that her race was ‘an impermissible reason' for her pay being set where it was.”) (citing Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 317 (4th Cir. 2005)), report and recommendation adopted, C/A No. 3:12-2960-MGL, 2015 WL 1297876 (D.S.C. Mar. 23, 2015).
Likewise, Plaintiff has failed to offer any evidence that he was denied promotions or employment opportunities under circumstances that give rise to an inference of unlawful discrimination. Most importantly, Plaintiff has failed to clearly identify what specific promotions or positions he was allegedly denied and under what context, arguing instead, generally, that he was treated poorly and that Ruelle was treated better. [ECF No. 120 at 7, 9 (“Ruelle was paid $66,876 and . . . given (2) promotion opportunities in less than 6 months. Plaintiff applied for 8 jobs and was denied and the Plaintiff did not receive opportunity to apply for interview the Plaintiff for these jobs”) (citations omitted)); see also ECF No. 42-3 (screen shot of list of Plaintiff's applications for transfer allegedly denied by Defendant)]. These arguments are insufficient. See, e.g., Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (noting that “[c]onclusory or speculative allegations do not suffice” to demonstrate a genuine issue of material fact).
In briefing, Plaintiff refers to, for example, “Exhibit E-PEX 255-263” in support of his claims. [See, e.g., ECF No. 120 at 9]. This appears to be a reference to annotated documents Plaintiff submitted along with electronic evidence, found at ECF No. 115. Review of this evidence does not alter the court's recommendation found above.
Plaintiff also appears to argue that pretext has been shown in that he has offered evidence that Defendant failed to follow its own policies and procedures. [See ECF No. 120 at 2, see also ECF No. 120-1 (documentation of Defendant's various policies)]. For example, Plaintiff argues as follows:
SCDOT's [] pretext explanations do[] not account for the fact that Rikard, SCDOT Employee Relations discriminated against the Plaintiff and did not immediately investigate the Plaintiff's 01/24/2018 Internal Discrimination Complaint and perceived
hostile work environment within 2 days of 01/24/2018 per SCDOT handbook policy [and instead took 14 days] ....[ECF No. 120 at 2-3 (emphasis and citations removed), see also ECF No. 120- 1 at 6, 11].
Rikard's response to Plaintiff's complaint does not impact the applicable pretext analysis. See, e.g., Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010) (“[A] plaintiff may show pretext, among other ways, by showing that an employer (1) failed to follow its own policies, (2) treated similarly situated employees in a disparate manner, or (3) shifted its explanation of the employment decision.”). Here, Rikard's actions have no bearing on the specific adverse employment actions at issue, and whether Defendant's proffered reasons for taking, or not taking those actions, are pretext for illegal discrimination.
For the same reasons, the court rejects Plaintiff's additional arguments that Defendant's policies have been violated in that, for example, “SCDOT handbook and affirmative action plan states managers should create a peaceful and productive environment.” [ECF No. 120 at 3].
Turning to his suspension/termination, Plaintiff argues that pretext has been established in that he has “provided evidence of SCDOT's inconsistent termination basis ” [ECF No. 120 at 1 (citing ECF Nos. 106, 106-1, 106-2, 114), see also id. (“Falsely, SCDOT originally stated accounting management couldn't get good work product from the Plaintiff.”)].
Plaintiff appears to argue that Defendant has indicated that Plaintiff was not fired but quit his employment. [See ECF No. 120 at 1]. The court rejects this argument as unsubstantiated where the only evidence offered or referenced is that a notice of hearing issued by the South Carolina Department of Employment and Workforce (“SCDEW”) wherein the issues identified to be discussed at the hearing are “discharge” and “voluntary quit.” [See ECF No. 64-1 at 90].
Plaintiff is correct that the Fourth Circuit has established that “[i]n order to show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019) (citing E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001)). However, there is no indication in the record before the court that Defendant's proffered reasons for Plaintiff's suspension/termination changed over time, were false, or were based on mistakes of fact. Instead, the record indicates an increasingly tense relationship between management and Plaintiff, culminating in the February 2019 email exchange between Plaintiff and Guffee, wherein Guffee perceived Plaintiff to be increasingly combative, discourteous, and insubordinate. Thereafter, when it was determined to suspend Plaintiff based on this perceived behavior, according to all witnesses in the room, Plaintiff became combative, leading to his termination, instead of his suspension.
Although Plaintiff argues at length that the reason his employment was terminated was unfair, in that he was not insubordinate, there is no indication Plaintiff's employment was terminated for any reason other than perceived insubordination. As stated by the Fourth Circuit, “[i]f [plaintiff] was fired for misconduct [ ]he did not actually engage in, that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.” Powell v. Biscuitville, Inc., C/A No. 20-2378, 2021 WL 2434011, at *2 (4th Cir. June 15, 2021) (citing Villa, 858 F.3d at 903). The court does not “sit as a super-personnel department, weighing the prudence of employment decisions made by the defendants.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998) (holding that pretext is not a vehicle for substituting the court's judgment for that of the employer). The court need not decide “whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted).
Throughout his filings, Plaintiff repeatedly references claims, issues, and arguments previously addressed by the court. For example, Plaintiff references alleged actions by Smith and Guffee complained of by Plaintiff in his original January 24, 2018 complaint. [See ECF No. 120 at 3]. However, these actions, such as Smith yelling at him and slamming her hand on his desk, as previously discussed by the court, do not raise to the level of a hostile work environment and there is no indication that these alleged actions occurred under circumstances that give rise to an inference of unlawful discrimination. As to Plaintiff's Title VII retaliation claim, as already stated by the court, although temporal proximity alone may suffice to establish causation when the protected activity and adverse action are “very close” or less than, for example, three months apart, see, e.g., Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 173 (4th Cir. 2020), as amended (Oct. 16, 2020) (holding two weeks close enough but three months “too tenuous to support a reasonable inference of causation”), here, Plaintiff has failed to allege a materially adverse actions sufficiently close in time to Plaintiff's January 24, 2018 discrimination complaint and has not otherwise established a causal connection between his complaint and a materially adverse action taken against him. [See, e.g., ECF No. 59 at 15-19].
There is no indication in the record that Plaintiff was paid less, was not promoted or provided other job opportunities, or was suspended/dismissed for discriminatory or otherwise illegal reasons nor is there any indication that the reasons provided by Defendant for taking these actions are pretext. Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's Title VII discrimination claims and deny Plaintiff's motion for summary judgment as to the same.
Plaintiff states he moves for summary judgment as to his “unequal pay and false statement elements of his discrimination claim only.” [See ECF No. 116 at 1]. For reasons stated above, the undersigned recommends the district judge deny Plaintiff's motion and further recommends that Plaintiff's request for a hearing be denied as unnecessary. As to Plaintiff's arguments concerning requests for sanctions as found in his motion for summary judgment, the court addresses these arguments in conjunction with the address of Plaintiff's motion for sanctions.
2. Plaintiff's Motion for Sanctions
On October 26, 2022, Plaintiff filed a motion for sanctions, a supporting memorandum, and four exhibits in support. [See ECF Nos. 106, 106-1, 106-2].Plaintiff appears to seek sanctions against Defendant and Defendant's counsel for the following alleged offenses:
Plaintiff filed an additional supporting memorandum on October 31, 2022 that repeats allegations made by Plaintiff in his October 26, 2022 filings. [See ECF No. 114]. Plaintiff's motion for summary judgment also repeats these same allegations. [See ECF No. 116-1].
• “Three (3) counts of False Statements or Perjury due to SCDOT [willfully] submitting [three] (3) false statements made by three [(3)] separate individuals” in response to interrogatory #5 from the Plaintiff's discovery requests to SCDOT.
• Failing to cooperate with an order issued by the presiding district judge on November 4, 2021 [ECF No. 65], which, according to Plaintiff, directed SCDOT to “provide complete” answers to his interrogatories 1-3, 6-14.
• “Three (3) false statements made to South Carolina Department of Employment and [Workforce (SCDEW)] government officials.”
• “Suborning Perjury because SCDOT persuaded their counsel to present false statements to” this court.[ECF No. 106 at 1].
It appears Plaintiff's motion for sanctions primarily concerns the following interrogatory response Defendant provided to Plaintiff:
5. If [Kace] Smith, [Michael] Guffee or [N'katha] Simmons ever used the [Plaintiff's] prepared 1017/2018 Audit Manual to conduct SCDOT business, prepare financial statement, Training or anything provide all relevant information related to the use of the audit manual (when or how was it used)?
Response: In response to the instant interrogatory#5, SCDOT respectfully represents that neither Ms. Smith, Mr. Guffee, nor
Ms. Simmons have ever used the 2017/2018 audit manual referenced in the instant interrogatory.[ECF No. 106-1 at 5-6]. Plaintiff argues the above representation impacts the court's analysis as to whether Plaintiff has established he was meeting his employer's legitimate expectations.
As stated, Plaintiff also alleges that false statements were made to SCDEW, representing that Defendant indicated that Plaintiff quit his employment. [See ECF No. 106-1 at 7-8]. Plaintiff also indicates that Defendant has provided incorrect information regarding Ruelle's salary and whether Plaintiff has a work history as a controller. [See, e.g., ECF No.106-1 at 13-14, ECF No. 106-2 at 1, 18, 34, 38]. Based on the record before the court, it is not clear that Defendant provided inaccurate information as alleged by Plaintiff. Even if there were discrepancies, the court does not discern how these discrepancies are an appropriate basis for the issuance of sanctions against Defendant. Finally, the court declines to address Plaintiff's allegations concerning indirect cost funding and related allegations [see, e.g., ECF No. 106-1 at 1] as unrelated to the instant case.
Because Plaintiff has failed to establish Defendant's response is inaccurate,because the court as discussed above need not resolve the issue of whether Plaintiff has established he was meeting his employer's legitimate expectations, and because Plaintiff has failed to specify how Defendant's interrogatory responses were otherwise deficient or what other alleged false statements were presented to this court, the undersigned denies Plaintiff's motion for sanctions.
Plaintiff has submitted evidence of an email in which Smith discusses the audit manual, indicating that she “will print what [she] need[s]” [see ECF No. 106-1 at 6, see also ECF No. 114-1], and a roughly 15-second video with no sound allegedly indicating Plaintiff's audit manual being “used.” [see ECF No. 115]. This is insufficient evidence to support Plaintiff's contention that “SCDOT made a false statement which amounted to Perjury.” [ECF No. 106-1 at 5].
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Plaintiff's motion for sanctions [ECF No. 106], grants the consent motion to withdraw as attorney [ECF No. 107], and recommends the district judge grant Defendant's motion for summary judgment [ECF No. 111] and deny Plaintiff's motion for summary judgment [ECF No. 116].
IT IS SO RECOMMENDED AND ORDERED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).