Anderson v. Lowcountry Urology Clinics, PA

Full title: WENDY ANDERSON, Plaintiff, v. LOWCOUNTRY UROLOGY CLINICS, PA, Defendant.

Court: United States District Court, D. South Carolina, Charleston Division

Date published: Sep 27, 2021

C. A. 2:19-cv-2470-DCN-MHC (D.S.C. Sep. 27, 2021)

Opinion

C. A. 2:19-cv-2470-DCN-MHC

09-27-2021

WENDY ANDERSON, Plaintiff, v. LOWCOUNTRY UROLOGY CLINICS, PA, Defendant.

Molly H. Chfiy United States Magistrate Judge

REPORT AND RECOMMENDATION

Molly H. Chfiy United States Magistrate Judge

Plaintiff brings this action against her former employer, Lowcountry Urology Clinics, PA (hereinafter “LUC” or “Defendant”). Before the Court is Defendant's Motion for Partial Summary Judgment, ECF No. 37 (“Motion”), filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 56, and Defendant filed a Reply, ECF No. 55. With leave from the Court, Plaintiff filed a Sur-Reply. ECF No. 63. Upon request from Plaintiff, the undersigned heard oral argument on the Motion. ECF Nos. 66, 69, 70. The Motion is ripe for review.

All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted, in part, and denied, in part.

BACKGROUND

LUC is a urology-related medical practice with multiple physicians and approximately fifty-five non-physician employees. (Pl. Dep., p. 43, ECF No. 37-3; Britton Dep., p. 11, ECF No. 37-4; Parsons Dep., p. 23, ECF No. 56-2.) LUC has several locations in the greater Charleston, South Carolina area. (Pl. Dep., p. 43, ECF No. 37-3; Britton Dep., p. 11, ECF No. 37-4.)

LUC hired Plaintiff in 2008 to work as a CT Technologist. (Pl. Dep., pp. 43, 48, ECF No. 37-3.) At the time of her hiring, Plaintiff was paid an hourly rate of $26.00 and was classified as a non-exempt employee. (Pl. Dep. Exs. 12 & 20, ECF No. 37-3 at 115 & 148-151.) At all times during her employment, she worked solely out of LUC's St. Andrews/West Ashley office and had set office hours of Monday to Thursday, from 8:00 a.m. to 5:00 p.m. and Friday from 8:00 a.m. to 2:00 p.m. (Pl. Dep., pp. 49-52, ECF No. 37-3.) She was at all times employed at-will. (Pl. Dep., Ex. 9, ECF No. 37-3.)

A. Plaintiff's CT Duties

With respect to her CT functions, Plaintiff reported to Dr. John James Britton, Jr., who, at all relevant times, served as LUC's President, oversaw the day-to-day operations of LUC, and was one of its owners and Board members. (Britton Dep., pp. 89-90, ECF No. 56-1; Pl. Dep., p. 58, 187, ECF No. 37-3; Britton Dep., pp. 9-10, 32, ECF No. 37-4; Britton Aff., ¶¶ 2, 4, ECF No. 37-5.) Plaintiff's duties included injecting a contrast substance into patients and then performing a CT scan for diagnostic purposes. (Pl. Dep., p. 48, ECF No. 37-3.) Plaintiff had no role in treating patients. Id. Plaintiff managed the CT Department and was its sole employee. (Id. at pp. 107, 137.) She was responsible for the department's day-to-day operations, its regulatory compliance, and its accreditation with the Department of Health and Environmental Control (“DHEC”). (Pl. Dep., pp. 140-41, ECF No. 37-3; Britton Dep., pp. 73, 193, ECF No. 37-4; Britton Aff., ¶ 19, ECF No. 37- 5.) At some point before 2018, Plaintiff's title changed to Imaging Director. (Pl. Dep., p. 105, Ex. 18, ECF No. 37-3.)

B. Plaintiff's IOD Duties

In 2015, LUC decided to open an In-Office Dispensary (“IOD”) to dispense medications to LUC patients. (Pl. Dep., pp. 59-60, 62-63, ECF No. 37-3; Marshall Dep., pp. 16-18, ECF No. 37-6.) During 2015, the volume of CT work at LUC was down. (Britton Dep., pp. 76-77, ECF No. 37-4; Marshall Dep., pp. 17-18, 55-56, ECF No. 37-6.) Dr. Britton and Dr. Ian Marshall thought Plaintiff would have the availability and would be able to set up and to manage the new IOD. (Pl. Dep., pp. 59-60, ECF No. 37-3; Marshall Dep., pp. 16-18, 55-56, ECF No. 37-6.)

In setting up the IOD, LUC relied heavily on the guidance of outside consultants from UroGPO because they had already created this model in many other practices. (Marshall Dep., pp. 18-19, ECF No. 56-3.) With the assistance of Shannon Owens from UroGPO, Plaintiff obtained the licenses and contracts needed to get the IOD up and running. (Pl. Dep., pp. 61-62, ECF No. 56-5; Marshall Dep., pp. 19-20, ECF No. 56-3.) It took Plaintiff close to a year of planning, contract execution, licensing, and start-up efforts and approvals; the IOD dispensed its first prescription during May 2016. (Pl. Dep., pp. 61-62, ECF No. 37-3; Britton Dep., p. 78, ECF No. 37-4; Pl. Dep., p. 80, ECF No. 56-5.)

Dr. Marshall was the Director of IOD, and the medication from the IOD was prescribed by LUC physicians and dispensed under Dr. Marshall's medical license (Marshall Dep., p. 22, ECF No. 56-3; Pl. Dep., p. 332:19-20, ECF No. 37-3.) The practice benefits financially from the medication that the physicians prescribe and the IOD dispenses. (Britton Dep., p. 170, ECF No. 56-1.)

Plaintiff reported to Dr. Marshall for IOD functions only. (Pl Dep., p. 64, ECF No. 37-3; Marshall Dep., p. 61, ECF No. 37-6.) Plaintiff had the title of IOD Manager, and she operated the IOD with deferential oversight by Dr. Marshall. (Pl. Dep., pp. 61-64, 105, 332 & Ex. 18, ECF No. 37-3.) Among other things, Plaintiff handled all contracts, handled regulatory compliance, ordered and maintained all equipment, wrote the IOD policies and procedures, interacted with drug companies, managed inventory, dispensed prescribed medications, handled pre-certifications, and communicated with patients. (Pl. Dep., pp. 62-64 & Ex. 15, ECF No. 37-3; Britton Dep., p. 136 & Ex. 3, ECF No. 37-4; Marshall Dep., p. 75, ECF No. 37-6.) She educated the staff about the change in the way that LUC managed the medications dispensed through the IOD. (Britton Dep., p. 79, ECF No. 56-1.) Once Plaintiff became responsible for the IOD, she spent the majority of her work hours on IOD functions, not CT functions. (Pl. Dep., p. 67, ECF No. 37-3.)

In March 2018, LUC hired Nicole Smoyer to be a Prostate Cancer Nurse Navigator; Smoyer also shared some IOD duties with Plaintiff. (Pl. Dep. p. 67, 136-37, ECF No. 37-3.) Smoyer's IOD duties included signing up oncology patients for oral oncolytics; sending in benefit verification paperwork; monitoring co-pays; helping the patient get funding, if they needed it; getting the oncolytic ready and dispensing it. (Smoyer Dep., p. 9, ECF No. 56-7.)

Plaintiff was responsible for compliance issues in the IOD, and she completed a multi-hour training module regarding Medical Fraud Waste and Abuse, as well as signed an attestation form stating that she would notify “Third Party Station” immediately in writing if her pharmacy fell out of compliance for any reason. (Pl. Decl., ¶¶ 23-24, ECF No. 65-1.) Anyone who had anything to do with the IOD, including the billing department (which does reconciliation), had to sign a Medicare Fraud, Waste and Abuse compliance form. (Smoyer Dep., p. 72, ECF No. 56-7.) Additionally, Defendant expected and encouraged Plaintiff to report any errors or problems because regulatory compliance was part of her job. (Marshall Dep., pp. 68-69, ECF No. 56-3; Britton Dep., p. 136, ECF No. 37-4.)

1. Plaintiff's July 2017 Report of Coworkers' Improper Medication Distribution

On July 27, 2017, Plaintiff reported to Dr. Marshall that Officer Manager Corrie Tindal and Receptionist Sarah Stancil gave a prescription from the IOD to a patient without Plaintiff's involvement and with no doctor present. (Pl. Dep., pp. 264-66, Exs. 55, 43 at question 11, ECF No. 37-3.) In researching the patient's prescription, Plaintiff learned that the patient was not due for a prescription, and she learned that her coworkers had not put a label on the medication. (Pl. Dep., pp. 350-51, ECF No. 56-5.) Plaintiff was concerned that her coworkers' actions violated South Carolina Pharmacy Law. Id. Plaintiff did not report this issue to any government agency, just internally to Dr. Marshall. (Pl. Dep., p. 271 & Ex. 55, ECF No. 37-3)

Dr. Britton testified that either he or Dr. Marshall spoke to those two employees, as well as all front-desk employees at all LUC locations, about the correct way to handle prescriptions from the IOD. (Britton Dep., p. 141, ECF No. 56-1.) Tindal sent an email to Dr. Britton, Dr. Steele, and Dr. Marshall questioning where Plaintiff has been that morning and informing them, “I would like to remove myself from having anything to do with pharmacy.” (Tindal's email, ECF No. 56-17.) Plaintiff testified that as a result of this 2017 report, Tindal started a “campaign against [Plaintiff] that included deleting [Plaintiff] from Facebook and getting other people within the office involved.” (Pl. Dep., p. 268, ECF No. 62.)

2. Plaintiff's Fall 2017 Report of Coworkers' Failure to Schedule Procedure

In the fall of 2017, Plaintiff reported to Dr. Britton that his assistant, Sarah Smith, had allegedly been negligent in not timely scheduling a patient for certain cancer treatments. (Pl. Dep., pp. 222-25 & Ex. 47, ECF No. 37-3; Britton Dep., pp. 158 & 168, ECF No. 37-4.) Plaintiff was close to the patient and his family. (Pl. Dep., Ex. 47, ECF No. 37-3; Marshall Dep., p. 39, ECF No. 37-6.) After receiving Plaintiff's report, Dr. Britton read the file, looked at Smith and asked her, “What's the deal?”, to which Smith responded that nobody would show her how to schedule the treatment. (Pl. Dep., p. 368:1-4, ECF No. 56-5.) Plaintiff then started the process of scheduling the treatment for the patient. (Id. at pp. 368-69.)

Dr. Britton testified that he was not able to conclusively determine which staff member should have scheduled the treatment, but at best, the treatment may have added a few months to the terminal patient's life. (Britton Dep., pp. 158-61, ECF No. 37-4; Marshall Dep., pp. 39-40, ECF No. 37-6.) The incident was reviewed with all medical assistants, and the responsibility for scheduling immunotherapy was moved to a specific LUC nurse. (Britton Dep., pp. 168-69, ECF No. 37-4.) Around the same time, Plaintiff sent an email to Tindal complaining that Smith “repeatedly talked disrespectful to [Plaintiff] since the moment she started working here.” (9/28/2017 email, ECF No. 56-18.) By the end of December 2017, Smith was tracking CT patient wait times. (Smith's Notes, ECF No. 56-23.)

C. Plaintiff's Pay History and Requests for a Raise

When LUC initially hired Plaintiff, she was paid on an hourly basis. (Pl. Dep., p. 50, ECF No. 37-3.) She was required to record accurately her time worked each week, as well as sign off on the accuracy of her timecards. (Id. at pp. 52, 55-57, 278-79.) She received two across-the-board raises in subsequent years but had never had an individual raise. (Id. at p. 67) LUC did not give individual raises for many of those years. (Britton Dep., pp. 81-82, ECF No. 56-1.)

1. Plaintiff's May 2017 Request for a Raise

In May 2017, Plaintiff requested an individual raise in an email to Dr. Marshall and Chief Financial Officer Beth Parsons; Plaintiff argued that she had “a huge responsibility” with the IOD, which justified a raise. (Pl. Dep., pp. 67-69 & Ex. 11, ECF No. 37-3; Parsons Dep., pp. 10 & 12, ECF No. 37-8.) At the time she requested a raise, Plaintiff was making $27.99, with an approximate annual salary of $58,000. (Pl. Dep., Ex 12, ECF No. 37-3.)

Parsons' reaction was that Plaintiff was adequately paid compared to market rates, and she noted that Plaintiff had performance issues, including: being a “pot stirrer” with her coworkers; having weak communication and interpersonal skills; causing lengthy CT wait times; and unreliability due to her tendency to disappear during work hours without management knowing where she went. (Id.) Parsons also stressed that CT profitability was declining. (Id.)

Revenue Manager Jenny Hasle sent an email to Dr. Britton and Dr. Marshall noting that Plaintiff's salary was “well above average” for that of a pharmacy tech and radiology tech. (May 18, 2017 E-mail, ECF No. 56-11.) Dr. Marshall responded that Plaintiff was more than just a radiology tech and pharmacy tech, stating:

I'm not sure we are comparing apples to apples…I just don't know A radiology tech is definitely not the same thing as a CT. CT tech's demand much more, deservedly so. Training and expertise is much different. As [for] a pharm tech, I suspect but don't know that what Wendy is currently responsible for is significantly more than just what a pharm tech would do. A typical pharm tech is just assisting a pharmacist with processing and handling Rx's. Wendy is overseeing all the of the insurance prior auth's for the oral oncolytics, overseeing all of the entries in the QS1 Software, monitoring insurance denials and payments, monitoring patient compliance, etc, etc[.]

Id. (ellipsis in original).

Dr. Marshall also discussed Plaintiff's request for a raise with Dr. Britton, and they noted that while Plaintiff did well with some of her job duties, she also had numerous inter-personal conflicts in the office that were happening with increased frequency. (Marshall Dep., pp. 27-30, 34, 81-84 ECF No. 37-6.) At that time, LUC did not respond to Plaintiff's request for a raise. (Pl. Dep., p. 79, ECF No. 37-3.)

2. Plaintiff's Fall 2017 Request for a Raise and Her October Performance Review

Plaintiff emailed Dr. Marshall on September 20, 2017, and again asked him to present her request for a raise to the Board. (Pl. Dep., 79:13-23 & 81:7-10, ECF No. 37-3.) Dr. Britton scheduled a meeting to discuss both her compensation and her performance. (Pl. Dep., pp. 79-81 & Ex. 14, ECF No. 37-3; Britton Aff., ¶ 7, ECF No. 37-5.) The meeting occurred on October 9, 2017, and Plaintiff, Dr. Britton, Dr. Marshall, Chief Information Officer Terri Donovan and Office Manager Corrie Tindal attended. (Pl. Dep., pp. 81-82 & Ex. 15, ECF No. 37-3; Tindal Aff., ¶ 11, ECF No. 37-9.) Dr. Britton drafted a two-page “Job Performance Review” document, in which he stated that Plaintiff “does an excellent job with the radiology certification” and a “fantastic job in handling CT scans, ” he praised Plaintiff's communication with patients, and he noted that “she has been integral with patient coordination for our advanced prostate cancer management drugs and with pre-certification for these.” (Pl. Dep., Ex. 15, ECF No. 37-3; ECF No. 56-19.)

However, they also discussed LUC's concerns that Plaintiff needed to improve her interactions with coworkers, shorten CT wait times, fix tardiness, and properly use the time clock. (Pl. Dep., pp. 82-84 & Ex. 15, ECF No. 37-3; Britton Dep., pp. 101-03, ECF No. 37-4; Donovan Dep., p. 25, ECF No. 37-10; Tindal Aff., ¶ 11, ECF No. 37-9; Britton Aff., ¶ 8, ECF No. 37-5.) Plaintiff raised concerns that some staff members, including Smith and Tindal, seemed “out to get her” and that one physician had made disparaging remarks about her, although he later apologized. (Pl. Dep., Ex. 15, ECF No. 37-3; ECF No. 56-19.) Plaintiff was told that Donovan would be her supervisor for employee-related issues. (Pl. Dep., p. 84 & Ex. 15, ECF No. 37-3; Marshall Dep., p. 61, ECF No. 37-6.) Defendant did not agree to a raise at that meeting but agreed to meet again in six weeks to review Plaintiff's compliance with the stated areas for improvement. (Pl. Dep., p. 85 & Ex. 15, ECF No. 37-3; Britton Dep., p. 105, ECF No. 37-4; Marshall Dep., p. 59, ECF No. 37-6.)

3. Plaintiff's Follow-up Review and Complaint about Wage Disparity

The follow-up “employee review” was held on November 28, 2017. (Pl. Dep., p. 86 & Ex. 16, ECF No. 37-3.) At the meeting, Dr. Britton noted that Plaintiff was a “valuable employee” and that her technical work had been “exemplary, ” but he reiterated her that she needed to improve with regard to time clock adherence, tardiness, and personality disputes with coworkers. (Pl. Dep., pp. 87-89 & Ex. 16, ECF No. 37-3; Britton Dep., pp. 111-12, ECF No. 37-4; Britton Aff., ¶ 10, ECF No. 37-5.) Dr. Britton said LUC was not going to give her a raise because she was fairly compensated, and while they hoped she would stay, if she would be happier elsewhere, she was free to leave. (Pl. Dep., p. 93 & Ex. 16, ECF No. 37-3.) After such comments, Plaintiff mentioned the salary of a male employee, Lucas McPherson, whom Plaintiff had recently learned made significantly more money per year than she did. (Pl. Dep., p. 89-90, ECF No. 56-5; Pl. Decl., ¶ 5, ECF No. 65-1.) According to Plaintiff's testimony, Dr. Britton told her it was not her “Goddamned business” what others earned.¹ (Pl. Dep., p. 93, Ex. 16; Britton Aff., ¶ 11, ECF No. 37-5.) The written summary from this meeting states that Plaintiff “was warned in no uncertain terms that she should refrain from any discussions on this further between herself and any employee or herself and any managers and she should leave this alone.” (11/28/2017 Review, ECF No. 56-20.)

1 Dr. Britton admitted that he was angry: “I wasn't angry that Wendy wanted to be paid more. I was angry at her demeanor and approach to going about trying to get us to give her a raise[.]” (Britton Dep., pp. 114-15, ECF No. 37-4.)

4. Plaintiff is Given a Raise and Changed to Exempt Status

On December 27, 2017, Dr. Britton told Plaintiff that he would give her a $5000 raise and start paying her on a salaried, exempt basis effective January 1, 2018. (Britton Dep., 132:1-15, ECF No. 56-1; Pl. Dep., pp. 101-03, ECF No. 37-3.) She had previously been paid approximately $58,000 a year at the hourly rate of $27.99, was considered nonexempt, and was paid time and a half for any time she worked over 40 hours a week. Effective January 1, 2018, she was no longer eligible for overtime, and her new annual salary was $63,000. (Pl. Decl., ¶¶ 3-4, ECF No. 65-1.) Dr. Britton testified that he changed her to an exempt employee to “eliminate[] her from using the time clock so as to remove that lack of compliance from her job. Also, she was a manager of the IOD and she was a manager of our radiology/CT department. And she was being paid similarly to our other managers in the practice as a salaried employee.” (Britton Dep., pp. 132-33, ECF No. 37-4.)

The following day, Plaintiff wrote Dr. Britton a letter explaining that after the “raise, ” she would most likely end up making less money. (12/28/2017 Letter, ECF Nos. 56-21 & 71-1.) She stated, “If I am a salaried employee without overtime pay, then I am requesting further consideration in this regard” Id. Plaintiff had no further conversations with management about her wages or raise after December 31, 2017. (Pl. Dep., pp. 108-09, ECF No. 37-3.)

D. Plaintiff's May 2018 Report of Improperly Completed PAF Forms

On or before May 10, 2018, Plaintiff reported to Dr. Marshall and Dr. Britton that she had discovered several forms that LUC had submitted to the Patient Advocate Fund (“PAF”) that contained incorrect diagnoses (metastatic versus non-metastatic cancer), which she perceived to be fraudulent. (Pl. Dep., pp. 229 & 238, ECF No. 37-3; Britton Dep., pp. 184-85, ECF No. 37-4; Marshall Dep., pp. 87-88, 100, ECF No. 37-6; Smoyer Dep., pp. 15-16, 30, ECF No. 37-7.) Plaintiff testified that she called a government hotline on May 9, 2018, to report this same issue. (Pl. Dep., pp. 247-49 & Ex. 43 at question 11, ECF No. 37-3.)

PAF is a non-profit, charity foundation that provides funding to help patients cover the costs of certain cancer treatments. (Pl. Dep., p. 231, ECF No. 37-3.) It is not a government agency. (Id.) Plaintiff realized that several of the forms that Revenue Manager Hasle had submitted to PAF to seek funding for patients incorrectly said the patients had metastatic cancer, when they actually had non-metastatic cancer. (Pl. Dep., pp. 230-33, ECF No. 37-3.) Plaintiff testified that she thought this resulted in LUC getting patient funding it should not have gotten, and she thought it was “unethical” and “Medicare fraud, waste and abuse.” (Pl. Dep., pp. 237-38, ECF No. 37-3.) After looking into the issue, LUC determined that the PAF form errors were accidental, unintentional clerical errors, which were subsequently fixed and reported to PAF. (Marshall Dep., pp. 89-90, 92, 99-102, 105-106, ECF No. 37-6; Smoyer Dep., pp. 47-49, ECF No. 37-7; Hasle Dep., pp. 46, 60, 72-73, 76-78, ECF No. 37-11.)

Dr. Britton addressed the PAF forms issue at a Board meeting, where the LUC partners (including Dr. Marshall), Smoyer, Parsons, Donovan, and Hasle were also in attendance. (Smoyer Dep., pp. 34, 36, ECF No. 56-7.) At the meeting, Dr. Britton said that there had been a couple patients that had been mislabeled metastatic, that they needed to make sure that that did not happen again, and that before anyone fills out any funding applications, they needed to run it by Plaintiff or Smoyer to confirm whether the patient is metastatic or nonmetastatic. (Id. at p. 36.) After the Board meeting, Smoyer sent texts to Plaintiff in which she said that Dr. Britton had told the Board that Plaintiff and Smoyer were the ones completing the applications with the false diagnosis codes. (Smoyer Texts, ECF No. 56-26.) According to the texts, no one in the room, including Smoyer, corrected Dr. Britton. (Id.) Hasle testified that she usually spoke to the Board after Smoyer left the meetings, and when she spoke at that Board meeting, she “owned” her mistake and “was very honest and forthright that, you know, I had definitely taken some missteps -- and with no malice or -- certainly, I -- the error was unintentional on my part, but certainly mine to own on the handful of patients.” (Hasle Dep., 103-04, ECF No. 56-9.) Smoyer testified that a couple days after the Board meeting, she clarified with Dr. Britton that neither she nor Plaintiff were filling out the applications incorrectly. (Smoyer Dep., p. 49, ECF No. 56-7.) Plaintiff feared that Dr. Britton was attempting to place the blame on her. (Pl. Decl., ¶ 29, ECF No. 65-1.)

E. Plaintiff's Termination

On November 30, 2018, Plaintiff made comments about Dr. Britton's medical assistant Smith's hair, which resulted in Smith crying at her workstation. (Smith Aff., ¶ 11, ECF No. 37-12; Capers Dep., pp. 151-53, ECF No. 37-13; Britton Aff., ¶ 14, ECF No. 37-5.) Plaintiff's comment was made in earshot of Smith, other employees, Dr. Britton, and patients. (Smith Aff., ¶ 11, ECF No. 37-12; Capers Dep., pp. 151-53, 162-64, ECF No. 37-13.) At that point, employee Allison Capers said to Dr. Britton that the “bickering” and “bullying” needed to stop. (Capers Dep., pp. 151-53, 155, 162-64, ECF No. 37-13; Britton Aff., ¶ 14, ECF No. 37-5.)

Dr. Britton's medical assistant Smith, Office Manager Tindal, and Revenue Manager Hasle all had reported to Dr. Britton that Plaintiff harassed and bullied them and that they may not be able to continue to work in that environment. (Britton Dep., pp. 205, 209, ECF No. 37-4; Smith Aff., ¶¶ 6-11 and Ex. A, ECF No. 37-12; Tindal Aff., ¶¶ 13-14, ECF No. 37-9; Britton Aff., ¶¶ 5, 13, ECF No. 37-5.) Moreover, during 2017 and 2018, Plaintiff's supervising physicians and office management had received a number of complaints regarding Plaintiff related to the following issues: she was constantly bickering with and bullying coworkers (resulting in multiple coworker complaints about her); she was disrespectful and condescending to office staff; she admittedly called a coworker “big ass”; she had lengthy CT wait times that resulted in patient complaints; she was months behind on the CT department's reaccreditation in 2018; she was non-responsive on multiple occasions in 2018 to Revenue Manager Hasle; and she refused to comply with numerous policies (including those related to the time clock, tardiness, failing to work her full assigned hours, uniform violations, and accessing others' computers without permission). (Britton Aff., ¶¶ 5-13, ECF No. 37-5; Britton Dep., pp. 111-12, ECF No. 37-4; Pl. Dep. pp. 82-89, 139-41, 146-47, 196, Ex. 12, 15, 16, 20, 28-31, 33, ECF No. 37-3; Marshall Dep., pp. 28-30, 34, 38-39, 81-82, ECF No. 37-6; Donovan Dep., pp. 48-53, ECF No. 37-10; Hasle Dep., pp. 105-07, 115-18, 120, 132, ECF No. 37-11; Smith Aff., ¶¶ 4-10 and Exs. A and B, ECF No. 37-12; Tindal Aff., ¶¶ 3-7, 10, 12-15, ECF No. 37-9; Capers Dep., pp. 147-51, 171, ECF No. 37-13.)

Dr. Britton made the decision to terminate Plaintiff. (Britton Dep., pp. 28, 194, ECF No. 37-4.) He testified that the decision was based on the “onslaught and continued issues that other employees brought to the office, my specific office, in regard to her behaviors.” (Britton Dep., pp. 28, 144-45, ECF No. 37-4; Britton Aff., ¶¶ 15-17, 20, ECF No. 37-5.) He felt that Plaintiff could not get along productively with numerous people, including both managers and coworkers, some of whom threatened to quit because of Plaintiff creating a toxic environment. Id. Dr. Britton and Dr. Marshall both felt Plaintiff's difficulty getting along with employees was “unprecedented” at LUC. (Marshall Dep., pp. 108-09, ECF No. 37-6; Britton Aff., ¶ 17, ECF No. 37-5.)

On November 30, 2018, LUC terminated Plaintiff's at-will employment. (Pl. Dep., pp. 164, ECF No. 37-3; Tindal Aff., ¶¶ 16-17, ECF No. 37-9; Britton Aff., ¶ 18, ECF No. 37-5) Dr. Britton, Tindal, and Donovan met with Plaintiff, and Dr. Britton told her that he was letting her go and that he was tired of the revolving door of people complaining about her. (Pl. Dep., pp. 164-65, 193, ECF No. 37-3; Donovan Dep., pp. 42-43, ECF No. 37-10; Tindal Aff., ¶¶ 16-17, ECF No. 37-9; Britton Aff., ¶ 18, ECF No. 37-5.)

LEGAL STANDARD

Summary judgment should be granted when “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). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). However, “the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here 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.”).

DISCUSSION

Defendant moves, pursuant to Rule 56, for summary judgment in its favor on all of Plaintiff's claims except the COBRA claim. First, Defendant argues that Plaintiff has failed to establish a claim of pay discrimination under either the Equal Pay Act (“EPA”) or Title VII of the Civil Rights Act of 1964 (“Title VII”). ECF No. 37-1 at 16-23. Defendant next argues that Plaintiff has failed to establish a claim of retaliation under either law. Id. at 23-27. Defendant also contends that Plaintiff cannot establish an interference claim under the Family and Medical Leave Act (“FMLA”), id. at 27-29, or an overtime violation under the Fair Labor Standards Act (“FLSA”), id. at 30-31. Finally, Defendant contends that Plaintiff cannot establish a claim for wrongful discharge in violation of public policy. Id. at 31-35.

In her Response, Plaintiff abandons her claims arising under the EPA. ECF No. 56 at 2 (“Ms. Anderson agrees to dismiss her claims under the Equal Pay Act of 1963 (EPA).”). Accordingly, the undersigned recommends granting summary judgment in favor of Defendant as to Plaintiff's discrimination and retaliation claims alleged under the EPA.

Plaintiff argues, however, that disputes of material facts exist with respect to her remaining claims for discrimination and retaliation under Title VII, FMLA interference, FLSA overtime violation, and wrongful discharge in violation of public policy. Id. at 1, 26-33. The undersigned addresses those claims in turn.

I. Discrimination Under Title VII.

In her Amended Complaint, Plaintiff alleges that Defendant violated Title VII and intentionally discriminated against her based on sex by paying her less than Defendant paid her male colleague, Lucas McPherson. ECF No. 27 at ¶¶ 21-35, 123-134. As Plaintiff has produced no direct evidence of discrimination, she must proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Accordingly, Plaintiff must first establish a prima facie case of discrimination. Id. at 802. Once she establishes her prima facie case, the burden of production then shifts to Defendant to articulate a legitimate, non-discriminatory reason for the challenged employment action. Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). “Finally, if [Defendant] carries this burden, [Plaintiff] then has an opportunity to prove by a preponderance of the evidence that the neutral reasons offered by the employer ‘were not its true reasons, but were a pretext for discrimination.'” Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1983)).

A. Prima Facie Case of Discrimination

To establish a prima facie case of sex discrimination, Plaintiff must show the following elements: (1) membership in a protected class; (2) that she was performing her job satisfactorily; (3) that she was subjected to an adverse employment action; and (4) that other employees who were not members of her protected class were treated more favorably or that there is some other evidence giving rise to an inference of unlawful discrimination. Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 719-20 (D.S.C. 2014); see Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003).

It is undisputed that Plaintiff is a member of a protected class (female), and Defendant concedes, for purposes of its Motion, that Plaintiff “establishes an adverse action (element 3) by virtue of being paid less than McPherson.” ECF No. 37-1 at 20-21 n.18. However, Defendant argues that Plaintiff cannot establish that she was performing her job satisfactorily, as required by the second element, and that Plaintiff has failed to identify a similarly situated comparator employee in order to establish the fourth element. Id. at 20-22.

1. Second Element - Satisfactory Job Performance

Defendant argues that Plaintiff was not performing her job satisfactorily because “she constantly bickered with coworkers, resulting in numerous complaints about her, and she refused to follow multiple policies.” ECF No. 37-1 at 20. However, the Employee Review dated November 28, 2017, notes that Plaintiff's “work with the CT scan, the new CT scan, maintaining certification, and starting up the running of the pharmacy has been exemplary and [we] could ask her to do no better than what she has done for these work related tasks.” ECF No. 56-20 at 1. That same document also states, “We think Wendy is a valuable employee and are happy with the work that she has done in the office. We would like her to improve upon things that we have already discussed and that have been outlined in the previous employee review . . . but we would like for her to stay and be a happy and productive employee who gets along well with all of the other employees here at the office.” Id. Viewing this evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in her favor, the undersigned concludes that there is a question of fact as to whether Plaintiff was performing her job satisfactorily, such that summary judgment cannot be granted on this basis.

2. Fourth Element - Similarly Situated Comparator

Defendant also argues that Plaintiff cannot establish the fourth element of her prima facie case because Plaintiff has failed to identify a similarly situated comparator. ECF No. 37-1 at 19- 22. The only comparator that Plaintiff identifies in her Amended Complaint is McPherson. ECF No. 27 at 5 ¶ 35. In her Response, Plaintiff argues that her job “was similar to the much higher paying position held by her male counterpart, Mr. McPherson. While both positions required licensing by the S.C. Radiation Quality Standards Association (SCRQSA), Plaintiff had seniority and her position required more education, skill, responsibility, and hours.” ECF No. 56 at 27. After careful review of the evidence submitted by the parties, the undersigned concludes that Plaintiff has failed to establish the fourth element of her prima facie case.

In determining whether a comparator is similarly situated, “courts consider whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications-provided the employer considered these latter factors in making the personnel decision.” Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 2019) (internal quotation marks omitted), as amended (Mar. 26, 2019), cert. denied, 140 S.Ct. 381 (2019). To establish this element, “the plaintiff must provide evidence that the proposed comparators are not just similar in some respects, but similarly-situated in all respects.” Id. (internal quotation marks omitted); see also Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, were subject to the same standards and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.”) (internal quotation marks omitted).

Here, the evidence shows that McPherson and Plaintiff were not similarly-situated in all respects. They held different positions, performed different duties, worked in different departments and in different locations, maintained different hours, and had different supervisors. McPherson was the Field Operations Manager/Lithotripsy Technician for LUC. (McPherson Aff., ¶ 2, ECF No. 37-14.) Lithotripsy is a procedure that uses shock waves to break up kidney stones while a patient is sedated or under anesthesia. (Britton Dep., p. 68, ECF No. 37-4; McPherson Aff., ¶ 5, ECF No. 37-14.) McPherson was trained to perform lithotripsy, but Plaintiff was not. (Britton Dep., p. 60, ECF No. 37-4; McPherson Aff., ¶¶ 3-5, ECF No. 37-14.) McPherson performed lithotripsy treatments, with a physician present, on patients at hospitals, for which privileges are required. He hauled and set up lithotripsy equipment at medical sites and performed charting and billing for lithotripsy services. Plaintiff did not perform any of these lithotripsy-related duties. (Pl. Dep., pp. 183-86, ECF No. 37-3; McPherson Aff., ¶¶ 8-11, ECF No. 37-14.) Moreover, while Plaintiff worked only at Defendant's West Ashley office, McPherson worked at Defendant's surgery center and four area hospitals. Plaintiff worked regular office hours and never took call, while McPherson worked unpredictable hours and took call. (Pl. Dep., pp. 49-52, 75, 91, ECF No. 37-4; McPherson Aff., ¶¶ 3, 8, 9, ECF No. 37-14.) Finally, Plaintiff was supervised by Dr. Britton, Dr. Marshall and Donovan, while McPherson was supervised by Dr. Mark Buchanan. (Pl. Dep., pp. 58, 64, 84, ECF No. 37-4; McPherson Aff., ¶ 14, ECF No. 37-14.) Viewing the evidence in the light most favorable to Plaintiff, the undersigned concludes that Plaintiff has failed to demonstrate that she and McPherson were similarly situated in all respects. See Haynes, 922 F.3d at 223-24; Spencer, 919 F.3d at 207.

For the foregoing reasons, the undersigned concludes that Plaintiff has not carried her burden of showing a question of fact regarding her prima facie case of discrimination under Title VII. Accordingly, the undersigned recommends that Defendant's Motion for Summary Judgment be granted as to Plaintiff's Title VII discrimination claim.

B. Defendant's Legitimate Non-Discriminatory Reason & the Evidence of Pretext

Notwithstanding that Plaintiff cannot establish a prima facie case of sex discrimination, summary judgment is also appropriate because Defendant has proffered a legitimate, nondiscriminatory reason for discharging Plaintiff, and Plaintiff has not submitted evidence showing that the reason is merely pretext for discrimination. Here, Defendant states that the pay disparity was a result of McPherson's wage history prior to employment at LUC, the differences in his duties, and the higher revenue he generated for LUC. ECF No. 37-1 at 19, 22. Defendant produced evidence supporting these non-discriminatory reasons. See, e.g., McPherson Aff. ¶¶ 6, 15, ECF No. 37-14 (McPherson affidavit testimony that when he was recruited by LUC, he told Defendant that he would need to be paid the same salary and benefits he earned for his prior employer, although he ultimately accepted an offer that paid him $1,000 less); id. at ¶ 15 (testimony that McPherson generated substantial income for the practice); Parsons Aff., ¶ 4, ECF No. 37-15).

Because Defendant has met its burden of production regarding a non-discriminatory reason for the pay disparity, the burden shifts back to Plaintiff to demonstrate “that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks omitted). To establish pretext, Plaintiff must show that Defendant's proffered reason is unworthy of credence or false. Id. at 146-47. It is “not enough . . . to disbelieve the employer; the fact-finder must believe the plaintiff's explanation of intentional discrimination.” Id. (citation omitted). Further, to show pretext, Plaintiff may not rely on mere speculation. Hawkins v. Pepsico, Inc., 203 F.3d 274, 280-81 (4th Cir. 2000) (mere speculation is insufficient to demonstrate pretext as “no court sits to arbitrate mere differences in opinion between employees and their supervisors”); see DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (explaining that a court “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination”). “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.” Merritt, 601 F.3d at 294 (internal quotation marks omitted).

Plaintiff fails to show that Defendant's articulated reason for the pay disparity is pretext for sex discrimination. Indeed, Plaintiff does not make any argument regarding pretext in her Response. Because Plaintiff has failed to meet her evidentiary burden of demonstrating intentional discriminatory pay because of her sex, the undersigned recommends that the Court grant Defendant's Motion as to Plaintiff's Title VII discrimination claim. See Bonner v. Payless Shoe Source, 139 F.3d 887, 1998 WL 171342, at *4 (4th Cir. 1998) (table) (affirming summary judgment on Title VII pay disparity claim where plaintiff failed to rebut the fact that the alleged comparator had different skill levels and experiences and that the employer had to offer the comparator more money to leave a competitor); Williams v. Westwood One Radio Networks, Inc., 107 F.3d 869, 1997 WL 90656, at *3 (4th Cir. 1997) (table) (affirming summary judgment on Title VII pay disparity claim where plaintiff failed to rebut that the alleged comparators had different duties that required more specialized training).

II. Retaliation Under Title VII.

Title VII forbids an employer from taking action that discriminates against an employee because that employee either has “opposed any practice made an unlawful employment practice” by Title VII or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Employees may prove that their employer retaliated against them for engaging in opposition activity either through direct evidence of retaliatory animus or the McDonnell Douglas burden-shifting framework. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). Plaintiff has not produced direct evidence of retaliatory animus, and Defendant argues that Plaintiff has failed to establish a prima facie case of retaliation under Title VII. The undersigned disagrees.

A. Plaintiff's Prima Facie Case of Retaliation

To succeed on a retaliation claim under the burden-shifting framework, Plaintiff must first establish that (1) she engaged in a protected activity, (2) her employer acted adversely against her, and (3) there was a causal connection between the protected activity and the asserted adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). An adverse employment action is one that “well might have dissuaded a reasonable worker” from engaging in protected conduct. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation and citation omitted). “[A]lthough an adverse action need not affect the terms and conditions of employment, there must be some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it.” Ray v. Int'l Paper Co., 909 F.3d 661, 670 (4th Cir. 2018) (citations and internal quotation marks omitted).

In its Motion, Defendant “does not dispute that Plaintiff engaged in protected activity (element 1) when she complained about her wages vis-à-vis McPherson's wages at the meeting held on November 28, 2017.” ECF No. 37-1 at 25. Defendant also concedes that “it ultimately took an adverse action (element 2) against her when it terminated her on November 30, 2018.” Id. However, Defendant argues that Plaintiff cannot show a causal connection between her wage complaint and her termination eleven months later. Id.

In her Response, however, Plaintiff does not argue that her termination was in retaliation for her wage discrimination complaint.² Rather, Plaintiff argues that her reclassification as “exempt” from overtime effective January 1, 2018, was an adverse action in retaliation for her complaints about pay disparity. ECF No. 56 at 18, 28-29; see also ECF No. 27 at 15 ¶ 115 (alleging that if she had not complained about her unequal wages, Defendant would not have changed her status from a non-exempt to exempt employee). According to Plaintiff, “Defendant took [a] materially adverse action against the Plaintiff by taking away her ability to earn overtime and reducing her wages” without reducing her hours or responsibilities. ECF No. 56 at 28-29. Plaintiff further contends that she can establish a causal connection through temporal proximity, as the reclassification occurred a month after her November wage complaint. Id. at 29.

2 The undersigned finds that Plaintiff has not established a Title VII retaliation claim based on her termination. First, Plaintiff has not made any arguments regarding her prima facie case or pretext, as required under the burden-shifting framework. Second, the undersigned agrees with Defendant that the evidence does not establish a causal connection between Plaintiff's wage discrimination complaint and her termination almost a year later. See Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 469 (4th Cir. 2015) (finding no causal connection, and summary judgment appropriate, where there was a 9 month gap in time); Pascual v. Lowe's Home Ctrs., Inc., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (affirming summary judgment on retaliation claim where there was a three to four month gap between the protected activity and plaintiff's termination). Accordingly, the undersigned recommends that Plaintiff's Title VII retaliation claim should not proceed to trial based on her termination.

In its Reply, Defendant argues Plaintiff has failed to establish that, by reclassifying her to exempt and giving her a $5000 raise, Defendant was significantly reducing Plaintiff's compensation without reducing her hours or responsibilities. ECF No. 55 at 7-8. Defendant produced an affidavit from its CEO attesting that Plaintiff submitted a total of only 70.59 hours of overtime in all of 2017, for which she was paid a total of $2,963.72 in overtime pay, despite performing both the IOD and CT functions that full year. ECF No. 55-1 at 1 ¶ 4 (noting that 20.71 of those hours was from a single pay period in December 2017 when she assisted in supervising the renovation of the CT room). According to Defendant, the $5000 raise that Plaintiff received when she was reclassified effective January 1, 2018, increased her overall pay. ECF No. 55 at 7- 8. Defendant thus contends that Plaintiff did not suffer any materially adverse action when the opportunity for overtime was removed and the salary put in place. Id.

In her Sur-Reply, Plaintiff contends that she worked more overtime hours in 2018 than she worked in 2017. ECF No. 63 at 2. In a declaration, Plaintiff avers that at the time she was reclassified, Defendant was aware that she would need to work more overtime in 2018 because a refurbished CT scanner was installed in December 2017, and she was responsible for revising scanning protocols, DHEC inspections, and getting the proper accreditations. ECF No. 65-1 at 2 ¶¶ 7-9. She further avers that as a result of these responsibilities and problems with the refurbished equipment, she worked more overtime hours in 2018 than she worked in 2017. Id. at 2 ¶¶ 10-11. Finally, she avers that she was making less money in 2018 than she was in 2006. Id. at 2 ¶ 8.

On the record before the Court, the undersigned finds that there is an issue of material fact regarding whether Plaintiff's reclassification to exempt status was an adverse action. A reduction in overtime opportunities may constitute an adverse action for purposes of a Title VII retaliation claim. Ray, 909 F.3d at 670 (declining to “decide whether every reduction in an employee's overtime hours can qualify as an adverse employment action, ” but finding evidence that plaintiff lost a “significant part of [her] earnings” sufficient to preclude summary judgment) (citing Lewis v. City of Chicago, 496 F.3d 645, 653-54 (7th Cir. 2007) (stating that a loss of overtime can be an adverse employment action for retaliation purposes); Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (same); Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 314 (1st Cir. 2016) (“[I]t seems foreseeable that, at least in some contexts, decreased overtime opportunities could cause a ‘material' change in the conditions of a plaintiff's employment.”)); see also Johnson v. Manpower Prof'l Servs., Inc., 442 Fed.Appx. 977, 982-83 (5th Cir. 2011) (holding that denial of overtime pay was an adverse action when plaintiff's status was changed from “overtime non-exempt” to “overtime exempt”). There is conflicting evidence in the record regarding whether the loss of overtime resulted in a loss of pay to Plaintiff.³ Accordingly, the undersigned concludes that there is a jury question regarding the second prong of Plaintiff's prima facie case.

3 The undersigned notes that there is limited evidence in the record regarding Plaintiff's earnings or hours. There are no wage or time records in the record before the Court. As to whether Plaintiff worked more or less overtime or made more or less money in 2018, the evidence appears limited to Parsons' Supplemental Affidavit and Plaintiff's Declaration, which conflict with each other. ECF Nos. 55-1 & 65-1.

Moreover, with regard to the third prong, the undisputed evidence shows that Plaintiff was reclassified only one month after she complained about discriminatory pay. This evidence is sufficient to create a jury question regarding the causation prong of Plaintiff's prima facie case. See Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 253 (4th Cir. 2015) (finding a jury question regarding causation prong where plaintiff was terminated one month after complaining of perceived retaliation); King v. Rumsfeld, 328 F.3d 145, 151 & n.5 (4th Cir. 2003) (finding that a two-and-a-half month gap between protected activity and an adverse employment action was sufficiently narrow to establish the causation prong of the prima facie case solely on the basis of temporal proximity). Thus, summary judgment cannot be granted for failure to establish a prima facie case of retaliation.

B. Defendant Has Not Carried Its Burden

After the prima facie showing is made, “[t]he burden then shifts to the [employer] to show that its purportedly retaliatory action was in fact the result of a legitimate non-retaliatory reason.” Foster, 787 F.3d at 250. “If the employer makes this showing, the burden shifts back to the plaintiff to rebut the employer's evidence by demonstrating that the employer's purported nonretaliatory reasons were not its true reasons, but were a pretext for discrimination.” Id. (internal quotation marks and citation omitted).

In its Motion, although Defendant articulates a legitimate, non-retaliatory reason as to Plaintiff's termination, it does not articulate a legitimate, non-retaliatory reason for the reclassification. See ECF No. 37-1 at 26. Therefore, for purposes of Defendant's Motion, the burden-shifting analysis ends upon finding that Plaintiff established her prima facie case of retaliation.⁴ Accordingly, the undersigned recommends that Defendant's Motion be denied as to Plaintiff's Title VII retaliation claim.

4 To the extent Defendant seeks to rely on Dr. Britton's testimony regarding his reason for the reclassification as its legitimate, nondiscriminatory reason, the undersigned finds genuine issues of material fact regarding pretext that preclude summary judgment. Dr. Britton testified that he decided to reclassify Plaintiff to “eliminate[] her from using the time clock so as to remove that lack of compliance from her job. Also, she was a manager of the IOD and she was a manager of our radiology/CT department. And she was being paid similarly to our other managers in the practice as a salaried employee.” (Britton Dep. P. 132-33, ECF No. 37-4). However, the evidence in the record shows that Plaintiff had been considered manager of the CT department since the inception of her employment, and she had been manager of the IOD since at least 2016. Further, the time clock issues predated her October and November 2017 performance review meetings; however, Dr. Britton told her at both meetings that she was not going to receive a raise. After he told her this at the November 2017 meeting, Plaintiff complained about McPherson's pay compared to hers, at which point Dr. Britton got very angry at Plaintiff. A month later, Dr. Britton reclassified Plaintiff as an exempt employee, which may have resulted in Plaintiff earning less pay. On this record, the undersigned concludes there are genuine issues of material fact as to whether Plaintiff's reclassification amounted to pretext under Title VII, precluding summary judgment. Cf. Williams v. Ricoh Americas, Corp., 203 F.Supp.3d 692, 698 (E.D. Va. 2016) (finding genuine issues of material fact precluding summary judgment where plaintiff “had never been previously disciplined in his thirteen-year career with [defendant], and was engaging in much of the same activity as before his June 2013 e-mail [complaining of discrimination], [but] was subjected to increased scrutiny and discipline only after his June 2013 e-mail”).

III. Claim for Overtime Violation Under the FLSA

In her Amended Complaint, Plaintiff alleges that Defendant mis-classified her as exempt from the overtime compensation under the FLSA. ECF No. 27 at 20 ¶¶ 158-63. In its Motion, Defendant argues that Plaintiff was properly classified as exempt on and after January 1, 2018, pursuant to the administrative exemption to the FLSA overtime requirements. ECF No. 37-1 at 30-31. Upon review of the record and the relevant law, the undersigned concludes that there is a question of fact as to whether Plaintiff was properly classified as exempt pursuant to the administrative exemption.

The FLSA requires employers to pay employees at least one and a half times their hourly rate for every hour worked beyond forty hours in a workweek. 29 U.S.C. § 207(a)(1). However, an employee who works in a bona fide administrative position is exempt from the overtime pay provisions of the FLSA. 29 U.S.C. § 213(a)(1).

Exempt status is an affirmative defense, and the employer bears the burden of proving, by clear and convincing evidence, that the employee's job qualifies for an exemption. Desmond v. PNGI Charles Town Gaming, LLC, 564 F.3d 688, 691 (4th Cir. 2009). “Whether an employee is exempt from the FLSA's overtime requirements is a mixed question of law and fact[.]” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015). “In FLSA exemption cases, the question of how employees spend their working time is a question of fact, but the ultimate question of whether the exemption applies is a question of law.” Calderon v. GEICO Gen. Ins. Co., 809 F.3d 111, 120 (4th Cir. 2015) (citations and internal quotation marks omitted). The U.S. Supreme Court recently clarified that when making the determination of whether employees' activities are exempt from the FLSA's overtime provisions, the exemption at issue should be given a “fair (rather than a ‘narrow') interpretation.” Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018) (citation omitted).

An employee qualifies as being “employed in a bona fide administrative capacity” under the FLSA if: (1) the employee is compensated at a salary of not less than $455 per week;⁵ (2) the employee's “primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers”; and (3) the employee's “primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a). “The elements of this exemption are conjunctive; all three must apply to an employee before that employee is exempt from the overtime provisions of the FLSA.” Cockman v. Assignment Desk Works LLC, No. 2:19-CV-3082-BHH, 2021 WL 1738509, at *7 (D.S.C. May 3, 2021).

5 The salary threshold was subsequently changed to $684 per week. However, the parties agree that $455 per week is the relevant figure here.

It is undisputed that the first element, regarding compensation, is satisfied. Moreover, in her Response, Plaintiff does not dispute that her primary duty involved the exercise of discretion and independent judgment, as required by the third element. See ECF No. 56 at 32-33. The parties disagree, however, as to the second element.

With regard to the second element, an employee's “primary duty” is the principal, main, major or most important duty that the employee performs. 29 C.F.R. § 541.700(a). “Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.” Id. The phrase “directly related to the management or general business operations” refers to the type of work performed by the employee. 29 C.F.R. § 541.201(a). “To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” 29 C.F.R. § 541.201(a).

Work directly related to management or general business operations includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations, government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities.

Id. § 541.201(b). “Section 541.201 draws the distinction between an employee whose primary duty is administering the business affairs and one whose primary duty is to produce the commodity that the business exists to produce. The latter is non-exempt.” Ducharme v. Madewell Concrete, LLC, No. CV 6:20-1620-HMH, 2021 WL 2141728, at *5 (D.S.C. May 26, 2021) (citation and internal quotation marks omitted).

The “critical focus” of the second element is “whether an employee's duties involve the running of a business, as opposed to the mere day-to-day carrying out [of the business's] affairs.” Calderon, 809 F.3d at 123 (internal quotation marks and citations omitted). Moreover, an employee's importance or indispensability is not dispositive because it is the “‘the nature of the work, not its ultimate consequence,' that controls whether the exemption applies.” Id. at 129 (quoting Desmond, 564 F.3d at 692).

It is undisputed that Plaintiff performed office or non-manual work; however, the parties disagree as to whether that work “directly related to the management or general business operations of” LUC. See 29 C.F.R. § 541.200(a). Defendant argues that Plaintiff met the duties test under the administrative exemption, pointing to evidence that “Plaintiff single-handedly ran both the CT Department and the IOD, ” including handling regulatory compliance, such as the CT accreditation and the IOD licensure and set up. ECF No. 37-1 at 31. Defendant maintains that these departments are “functional areas” of the business. Id. Plaintiff, however, argues that the administrative exemption is not applicable because her “primary duties with regard to both CT and IOD was the ‘day to day carrying out' of the business.'” ECF No. 56 at 33 (citing Bertrand v. Children's Home, 489 F.Supp.2d 516, 519-20 (D. Md. 2007)).

The undersigned concludes that there are genuine issues of material fact that preclude summary judgment on the FLSA claim. On the one hand, Plaintiff testified that she was responsible for setting up and running the IOD, which included ensuring regulatory compliance. She also testified that she was responsible for maintaining CT accreditation. However, as explained below, it is not clear from the record that these duties were her primary duties in 2018, the only year that she was classified as an exempt employee.

From the time of her hire in 2008 until her termination in 2018, Plaintiff managed and was the sole employee in the CT Department. (Pl. Dep., pp. 107, 137, ECF No. 37-3.) With respect to her CT functions, Plaintiff testified that her day-to-day duties involved injecting a contrast substance into patients and then performing a CT scan for diagnostic purposes. (Pl. Dep., p. 48, ECF No. 37-3.) She further testified that the “essential duties” listed in LUC's job description for a Registered CT Technologist accurately reflected what she did when she worked in CT at LUC. (Id. at p. 49.) Those duties include completing scans effectively and efficiently; positioning and preparing patients for CT procedures; reviewing the patient's chart and the physician's request; limiting patient wait times; preparing and administering contrast media and medications in accordance with state and federal regulations; adjusting machines to proper settings; entering CT procedure data into the computer; assessing and monitoring patient's status throughout the procedure; timely and accurately documenting diagnostic, treatment and patient data in the appropriate record; maintaining the highest standard of patient care and the best customer service; ensuring that the required supplies and equipment are available; checking all equipment routinely and performing preventative maintenance when necessary; ensuring the facility's compliance with policy, procedures, OSHA, local, state, and federal regulatory requirements; participating in formal training; and completing and retaining certification in computed technology. (ECF No. 37-3 at 148.) Plaintiff testified that she was also responsible for the CT Department's accreditation with DHEC. (Id. at pp. 140-41.)

Construing the evidence in the light most favorable to Plaintiff, it appears that neither maintaining CT accreditation nor ensuring the facility's compliance with local, state, and federal regulatory requirements (duties that qualify as exempt) was her “primary duty” in the CT Department; rather, her “principal, main, major or most important duty” in that department appears to be more akin to a production or retail role-that is, performing CT scans on Defendant's patients in a timely manner, using proper techniques, while providing the highest standard of patient care and the best customer service. See 29 C.F.R. § 541.700(a).

Moreover, the undersigned notes that there is no evidence in the record to suggest that her primary CT duties materially changed from the time she was hired as a non-exempt employee to January 2018, when she was reclassified as an exempt employee, notwithstanding the change in her title to Imaging Director.⁶ See MacGregor v. Farmers Ins. Exch., No. 2:10-CV-03088-DCN, 2014 WL 4199140, at *5-6 (D.S.C. Aug. 20, 2014) (“As a result of the evidence that [the employer] itself classified its [property claim representatives] as non-exempt under the FLSA, the court cannot find that [the employer] has shown, by clear and convincing evidence, that plaintiffs qualify for the Act's administrative exemption.”). Accordingly, the undersigned finds that there are issues of material fact regarding whether Plaintiff's primary duty in the CT Department “directly related to the management or general business operations of” LUC. See 29 C.F.R. § 541.200(a).

6 There is no job description in the record for Imaging Director, but LUC's job description for a Registered CT Technologist notes that the position is non-exempt. ECF No. 37-3 at 148. The record contains a job description from the Medical University of South Carolina that also describes a CT Technologist as “Hourly” for FLSA purposes. Id. at 118.

With respect to the IOD, Plaintiff testified that from approximately May 2015 until May 2016, Plaintiff did virtually everything necessary to set up the IOD:

I did all the contracts, all the equipment. I set up the way that we did everything. I did policies, procedures. Everything. The main rules. . . . [W]ithin the office, I was the only person at Lowcountry Urology that was responsible for the in-office dispensary. And Dr. Marshall let me do it all. He signed where I told him to sign.

(Pl. Dep., pp. 60-62, ECF No. 37-3.) She also testified that she worked with outside consultant UroGPO to research and figure out any compliance requirements for getting the IOD set up and running. (Id. at pp. 63-64.) On this record, it appears that Plaintiff's primary duty in the IOD from May 2015 until May 2016 was “directly related to the management or general business operations, ” so as to satisfy the second prong of the administrative exemption test. See 29 C.F.R. § 541.201(a).

However, the evidence also suggests that once the IOD was set up and running, Plaintiff's primary duty in the IOD changed. Construing the evidence in the light most favorable to Plaintiff, it seems that Plaintiff's daily duties in the IOD after May 2016 involved maintaining supplies, distributing medications to patients in accordance with the physicians' instructions, handling pre-certifications, and communicating with patients. See ECF No. 37-3 at 131 (Oct. 9, 2017 Job Performance Review describing Plaintiff's duties in the IOD as “filling prescriptions, handling pre-certifications, and any necessary patient communications regarding their medications prescribed at Lowcountry Urology”); see also Smoyer Dep., p. 9, ECF No. 56-7 (testifying that the daily IOD duties included signing up oncology patients for oral oncolytics; sending in benefit verification paperwork; monitoring co-pays; helping the patients get funding, if they needed it; and getting the oncolytic ready and dispensing it).⁷ As with Plaintiff's CT duties, Plaintiff's daily IOD duties seem akin to a production or retail role in service of “produc[ing] the commodity that the business exists to produce, ” as opposed to carrying out the affairs of the business. See Ducharme, 2021 WL 2141728, at *5. To be sure, the undisputed evidence shows that Plaintiff was responsible for regulatory compliance in the IOD and was expected and encouraged to report any errors or issues. (Pl. Decl., ¶¶ 23-24, ECF No. 65-1; Marshall Dep., pp. 68-69, ECF No. 56-3; Britton Dep., p. 136, ECF No. 37-4.) However, it is not clear that regulatory compliance was Plaintiff's primary duty in the IOD, nor does the evidence suggest that IOD licensure was Plaintiff's primary duty in 2018.

7 The undersigned notes that there is no job description related to the IOD in the record, nor is the undersigned aware of any testimony in the record as to Plaintiff's primary or daily duties in the IOD in 2018. Although Plaintiff was the only employee working on or in the IOD from 2015 through February 2018, Smoyer began working in the IOD in March 2018 and spent about 50% of her working hours performing IOD duties. (Smoyer Dep., p. 10, ECF No. 56-7.)

For the foregoing reasons, the undersigned cannot say, on the record presently before the Court, that Defendant has shown by “clear and convincing evidence” that Plaintiff qualified for the FLSA's administrative exemption. Cf. Bertrand, 489 F.Supp.2d at 520 (finding that although “particular items of evidence in the record concerning [plaintiff's] duties support one or the other of the parties' arguments, a reasonable jury could easily conclude that [plaintiff's] work was essentially and predominantly clerical in nature, and not administrative or managerial, ” thus precluding summary judgment). Accordingly, the undersigned recommends denying summary judgment on this claim.

IV. Claim for Violation of FMLA.

A. Facts Relevant to Plaintiff's FMLA Claim

On January 11, 2018, Plaintiff submitted a leave request on which she wrote “FMLA” and said that she needed off the rest of that day and was unsure of a return date. (Pl. Dep., p. 109, Exs. 19-20, ECF No. 37-3.) Donovan provided Plaintiff with FMLA forms, including a medical certification form to be completed by her provider. (Pl. Dep., p. 115, ECF No. 37-3; Parsons Dep., pp. 106-107, ECF No. 37-8.) Plaintiff's provider returned the form but failed to complete two of its sections. (Pl. Dep., pp. 115-117, Ex. 22, ECF No. 37-3.) On the form, the provider identified Plaintiff as having the following “serious health conditions”: shingles, post-herpetic neurolagia, and stress/fatigue. (Pl. Dep. Ex. 22, ECF No. 37-3.) Upon receipt of the form, Donovan informed Plaintiff that no decision could be made about her FMLA request until the provider completed the remaining sections of the form. (Pl. Dep., p. 117, ECF No. 37-3.) Thereafter, Plaintiff's physician faxed a fully completed form. (Id. at p. 117 & Ex 22.) Despite completing her paperwork, Plaintiff was never told by LUC whether her request for FMLA leave was approved or denied. She testified, however, that she was allowed to take off from work the days she requested, and no “FMLA days” were “turned down.” (Pl. Dep., pp. 119-21, ECF No. 37-3.)

On August 15, 2018, Plaintiff submitted to Donovan a leave request to leave early that day and be out the next day because she was “not feeling good” and wrote on it, “whats [sic] status of FMLA.” (Pl. Dep., pp. 121-22, ECF No. 37-3; Donovan Aff., ¶ 4, Ex. A, ECF No. 37-16.) Donovan responded by email that Plaintiff could have the two days off and indicated she would have to check on Plaintiff's FMLA status, which they could discuss when Plaintiff returned to work on August 17, 2018. (Pl. Dep., pp. 122-123, ECF No. 37-3; Donovan Aff., ¶ 5, Ex. B, ECF No. 37-16.) In anticipation of their meeting, Donovan prepared an updated FMLA Notice of Rights Form and a Medical Certification Form on August 17, 2018, for Plaintiff's doctor to complete. (Pl. Dep., p. 126, ECF No. 37-3; Donovan Aff., ¶ 6, Ex. C, ECF No. 37-16.) Donovan emailed Plaintiff on August 17, 2018, and said in relevant part, “Can we talk Monday Aug. 20, 2018? Your FMLA is not active.” (Pl. Dep., p. 123, ECF No. 37-3; Donovan Aff., ¶ 7, Ex. D, ECF No. 37-16.) Plaintiff replied, “Ok, Thanks!” (Id.) However, Plaintiff did not speak to Donovan on August 20, 2018, and never again asked for FMLA leave during her employment. (Donovan Aff., ¶ 8, ECF No. 37-16.) At her deposition, Plaintiff testified that although LUC never officially approved FMLA leave, it never denied it either, and LUC never denied Plaintiff a requested day off in 2018. (Pl. Dep., pp. 128, 416, ECF No. 37-3.)

B. Analysis

The FMLA grants eligible employees up to 12 workweeks of protected leave for a “serious health condition” that makes the employee unable to perform the functions of her job. 29 U.S.C. § 2612 (a)(1)(D). Upon returning from FMLA, the employee is entitled to be restored to her prior position or an equivalent position. 29 U.S.C. § 2614(a)(1); Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 426 (4th Cir. 2015). It is unlawful for an employer to interfere with such rights. 29 U.S.C. § 2615(a)(1). Interference includes refusing to authorize FMLA leave as well as discouraging employees from using FMLA leave. 29 C.F.R. § 825.220(b).

To prove an FMLA interference claim, Plaintiff must show: (1) she was entitled to an FMLA benefit; (2) Defendant interfered with provision of that benefit; and (3) that interference caused harm to Plaintiff. Adams, 789 F.3d at 427 (citations omitted). Harm or prejudice can be proven by showing she lost compensation or benefits, sustained other monetary losses, or suffered some loss in employment status, as a result of the violation. 29 U.S.C. §2617(a)(1)(A) and (B); Anderson v. Discovery Communs., LLC, 517 Fed.Appx. 190, 197-98 (4th Cir. 2013) (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)).

Defendant argues that, with respect to Plaintiff's request for FMLA leave in January 2018, Plaintiff cannot prove the second and third elements. In her Response, Plaintiff argues that Defendant interfered with Plaintiff's FMLA when it “refused to either approve or deny Plaintiff's request or to provide her with additional information regarding the status of her request, ” which caused her harm. ECF No. 56 at 32.

Upon review of the record, the undersigned finds that Plaintiff has failed to produce evidence establishing the third element of her FMLA interference claim. First, Plaintiff testified that all of her requested days off were approved. (Pl. Dep., pp. 128, 416, ECF No. 37-3.) Moreover, the undisputed evidence shows that after she requested FMLA, Plaintiff remained in her same positions, at her same pay rate. Thus, Plaintiff has not produced evidence showing that she lost compensation or benefits, sustained other monetary losses, or suffered some loss in employment status as a result of the failure of Defendant to explicitly approve or deny her FMLA request. Because Plaintiff has not shown that she suffered prejudice related to her request for FMLA, summary judgment is proper. See Adams, 789 F.3d at 427 (affirming summary judgment where Plaintiff was not denied any requested leave); Ranade v. BT Americas, Inc., 581 Fed.Appx. 182, 185 (4th Cir. 2014) (affirming summary judgment where plaintiff failed to show that “he lost any compensation or benefits, sustained other monetary loss, or suffered loss in employment status as a result of the purported interference”). Accordingly, the undersigned recommends granting summary judgment on this claim.

V. Claim for Wrongful Discharge in Violation of Public Policy.

Under South Carolina law, absent the creation of a specific employment contract, employment is presumed to be at-will. Mathis v. Brown & Brown of S.C., Inc., 698 S.E.2d 773, 778 (S.C. 2010). Generally, “[a]n at-will employee may be terminated at any time for any reason or for no reason, with or without cause.” Id. Nonetheless, South Carolina recognizes a public policy exception to the employment at-will doctrine, such that “an employee who is terminated in violation of a clear public policy may pursue a cause of action in tort for wrongful termination.” Taghivand v. Rite Aid Corp., 768 S.E.2d 385, 387 (S.C. 2015) (citing Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213, 216 (S.C. 1985)).

Courts have recognized and invoked the public policy exception in only two instances: (1) where an employer requires an employee, as a condition of continued employment, to break the law, and (2) where the termination of an employee is itself a violation of criminal law. See id. (citing Ludwick, 337 S.E.2d at 216; Culler v. Blue Ridge Elec. Coop., Inc., 422 S.E.2d 91 (S.C. 1992)); Desmarais v. Sci. Rsch. Corp., 145 F.Supp.3d 595, 598 (D.S.C. 2015). Although the South Carolina Supreme Court has “made clear that the exception is not limited to these situations, [it has] specifically recognized no others.” Taghivand, 768 S.E.2d at 387 (citation and internal quotation marks omitted); see Desmarais, 145 F.Supp.3d at 598 (“South Carolina courts have been careful to narrowly interpret the exception, often declining to extend the exception beyond the bounds of Ludwick and Culler.”) (collecting cases).

Courts are to “exercise restraint when undertaking the amorphous inquiry of what constitutes public policy, ” as “public policy embodies a doctrine of vague and variable quality, and, unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection.” Taghivand, 768 S.E.2d at 387 (citation and internal quotation marks omitted) (emphasis in original). Thus, in South Carolina, the “primary source of the declaration of public policy of the state is the General Assembly; the courts assume this prerogative only in the absence of legislative declaration.” Id. (citation and internal quotation marks omitted). The determination of what constitutes public policy is a question of law for the courts to decide. Barron v. Labor Finders of S.C., 713 S.E.2d 634, 638 (S.C. 2011).

In its Motion, Defendant argues that Plaintiff has failed to establish a claim under South Carolina law for wrongful discharge in violation of public policy because her termination does not fit into either of the two circumstances where the claim has been recognized. In her Response, Plaintiff does not dispute that Defendant never asked her to violate the law or that her termination was not a violation of criminal law. Rather, she argues, that by failing to remedy the alleged illegal practices by the Revenue Manager regarding the PAF forms, and “in retaliating against Plaintiff for reporting these violations, Defendant was forcing Plaintiff to commit crimes as a condition of her employment.” ECF No. 56 at 30-31. She further contends, “[u]pon information and belief, ” that the actions of Defendant's Revenue Manager violated the following three criminal statutes: (1) breach of trust with fraudulent intent (S.C. Code Ann. § 16-13-230); obtaining property under false tokens or letters (S.C. Code Ann. § 16-13-260); and (3) obtaining signature or property by false pretenses (S.C. Code Ann. § 16-13-240). Id. at 30. Plaintiff also vaguely suggests that those actions constituted Medicare fraud, id., and she avers in a declaration that the PAF forms amounted to “false claims.” ECF No. 65-1 at ¶ 31. She argues that because she was responsible for operating and overseeing the IOD, “she faced liability for the criminal violations taking place under her management and supervision.” ECF No. 56 at 30.

As a preliminary matter, to survive summary judgment, it is not enough for Plaintiff to create a question of fact regarding whether any employee's action violated a law. Rather, to establish her wrongful discharge claim, Plaintiff must show either that Plaintiff herself was required to break the law as a condition of employment or that her termination violated criminal law. Thus, questions of fact regarding whether another employee may have violated the law, months before Plaintiff's termination, are not material to Plaintiff's wrongful discharge claim.

Upon reviewing the record and drawing all reasonable inferences in Plaintiff's favor, the undersigned concludes that Plaintiff has not established her wrongful discharge claim. To the contrary, Plaintiff testified that Defendant never told her that Defendant wanted her to violate the law or that if she did not, she was going to be fired. ECF No. 37-3 at 109:4-13. She also testified that Defendant emphasized that PAF forms should be completed correctly and never told her to write “metastatic” on PAF forms, even if the patient was non-metastatic. Id. at 103:14-104:21. Additionally, the undisputed evidence shows that Defendant expected and encouraged Plaintiff to report any errors or problems because regulatory compliance was part of her job. (Ex 3, 68-69; Ex 1, 136:22)

Moreover, the undersigned agrees with Defendant that Plaintiff has not provided any evidence showing that an actual violation of the cited South Carolina criminal statutes occurred. Further, even if she could establish that the Revenue Manager committed a violation of one of the cited South Carolina criminal statutes, she has not established how those criminal violations would have any bearing on Plaintiff's claim. There is no evidence in the record that Plaintiff supervised or managed the Revenue Manager, who worked in a completely different department than Plaintiff. Furthermore, each of the statutes cited by Plaintiff creates criminal liability only for the specific person who acts with the requisite mens rea, and Plaintiff has not cited any case law to support her belief that she could somehow be liable for violations of these statutes by a different person. Cf. Antley v. Shepherd, 532 S.E.2d 294, 298 (S.C. Ct. App. 2000) (“We decline to extend the public policy exception to situations where an employee is terminated for refusing to comply with a directive which she simply believes would require her to violate the law.”), aff'd as modified, 564 S.E.2d 116 (S.C. 2002). Although Plaintiff speculates in a Declaration that she “could be liable because [she] had likely submitted false claims for prescriptions using the PAF funding, ” ECF No. 65-1 at 4, Plaintiff has submitted no evidence showing that she actually submitted false claims or did so with the level of intent required for criminal liability. Accordingly, the undersigned finds that Plaintiff has not established a jury issue regarding whether LUC required her, as a condition of continued employment, to break the law.

Similarly, Plaintiff has not shown how her own termination violated the cited South Carolina statutes or any other clear mandate of public policy. To the extent Plaintiff's claim is based on her reports to Dr. Britton and other management employees regarding statutory violations by her coworkers, her claim fails. Courts routinely dismiss wrongful discharge claims based on internal complaints by a plaintiff of possible illegal conduct. See, e.g., Desmarais, 145 F.Supp.3d at 600 (granting summary judgment in favor of defendant on plaintiff's wrongful discharge claim and holding “to the extent [plaintiff] bases his claim on his continued complaints regarding the alleged illegal conduct of his employer and coworkers, his claim fails as a matter of law”); Springer v. Pelissier, No. 6:10-CV-01303-JMC, 2011 WL 2601895, at *4 (D.S.C. July 1, 2011) (dismissing wrongful discharge claim in part because “[plaintiff] simply pleads that he discovered questionable and possibly illegal business practices and reported those practices to his superior”).

Finally, to the extent Plaintiff claims that her termination was in retaliation for reporting alleged Medicare fraud to the government, the undersigned concludes that her claim should be dismissed. The undisputed evidence shows that at the time Dr. Britton terminated Plaintiff's employment in November 2018, he did not know that Plaintiff had contacted a government agency in May 2018 to report her concerns regarding the PAF forms. (Britton Aff., ¶ 19, ECF No. 37-5.) Similarly, Plaintiff testified that the PAF issue was not discussed at her termination, and there is no evidence suggesting that her termination was related to the PAF issue or her report from six months earlier. (Pl. Dep., pp. 252-53, 256-57).

Furthermore, it is well established that “no common law public policy wrongful termination claim can be stated where the employee has an existing statutory remedy.” Bolin v. Ross Stores, Inc., No. 08-cv-02759-MJP, 2009 WL 363990 (D.S.C. Feb. 11, 2009) (citations omitted); see Dockins v. Ingles Mkts., Inc., 413 S.E.2d 18, 19 (S.C. 1992) (“When a statute creates a substantive right and provides a remedy for infringement of that right, the plaintiff is limited to that statutory remedy. . . . We hold this applies when the right is created by federal law as well as state law.”); Epps v. Clarendon County, 405 S.E.2d 386, 387 (S.C. 1991) (“We decline to extend the Ludwick exception to a situation where, as here, the employee has an existing remedy for a discharge which allegedly violates rights other than the right to the employment itself.”). Because the False Claims Act includes its own private right of action for retaliatory discharge, see 31 U.S.C. § 3730(h), ⁸ Plaintiff cannot proceed on her wrongful discharge claim on this basis.

8 Section 3730(h) provides that “[a]ny employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.” 31 U.S.C. § 3730(h)(1). The undersigned notes that Plaintiff first cited the False Claims Act months after oral argument and briefing on the Motion for Summary Judgment had concluded. See ECF No.74 at 3.

For the foregoing reasons, the undersigned recommends that Defendant's Motion be granted as to Plaintiff's wrongful discharge claim.

CONCLUSION

For the reasons set forth above, it is RECOMMENDED that Defendant's Motion for Partial Summary Judgment, ECF No. 37, be GRANTED, in part, and DENIED, in part. Specifically, it is RECOMMENDED that the following claims be DISMISSED: the discrimination and retaliation claims under the EPA; the Title VII disparate pay claim; the FMLA interference claim; and the claim for wrongful discharge in violation of public policy. It is further RECOMMENDED that summary judgment be DENIED as to the following claims: the Title VII retaliation claim and the FLSA claim. If the District Judge accepts this recommendation, then the case will proceed to trial on the following claims: the Title VII retaliation claim, the FLSA claim, and the COBRA claim.

AND IT IS SO RECOMMENDED.

The parties are referred to the Notice Page attached hereto.