Opinion
Civil Action 2:20-01142-RMG-MGB
10-25-2021
Kevin Austin, Plaintiff, v. The Boeing Company, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this action alleging race discrimination, hostile work environment, and retaliation in violation of 42 U.S.C. § 1981. This matter is now before the Court upon Defendant's Partial Motion for Summary Judgment. (Dkt. No. 69.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that Defendant's Partial Motion for Summary Judgment (Dkt. No. 69) be granted.
BACKGROUND
Plaintiff is a black male. (Dkt. No. 39 at 1; Dkt. No. 73 at 1.) He began working for Defendant as an assembler in March of 2012. (Dkt. No. 69 at 2; Dkt. No. 73 at 1.) In November of 2016, he was hired as a Level B aircraft painter. (Dkt. No. 69 at 2; Dkt. No. 73 at 1.)
Defendant has two paint departments: the Component Paint Department and the Decorative Paint Department. (Dkt. No. 69 at 2-3; Dkt. No. 73 at 2-3.) Plaintiff began working as a painter in the Component Paint Department but later moved into the Decorative Paint Department. (Dkt. No. 65 at 2-3; Dkt. No. 73 at 2-3.) According to Defendant, the Component Paint Department experienced a staff shortage at some point in 2017. (Dkt. No. 69 at 5.) Because of this staff shortage, Defendant implemented a “Component Recovery Plan” which “loaned” painters in the Decorative Paint Department to the Component Paint Department to assist with a backlog of work. (Id. at 5-6.) Plaintiff volunteered to participate in this program. (Id.)
Plaintiff claims that he began experiencing harassment and discrimination when Eric Infinger became his immediate supervisor in the Decorative Paint Department in August of 2017. (Dkt. No. 73 at 2.) Plaintiff claims that “Infinger is a well-known racist within the management staff of Defendant who has a long-standing history of racially discriminating and retaliating against African Americans.” (Id.) Plaintiff alleges that Mr. Infinger “[spoke] down to and harass[ed]” him, subjected him to derogatory language, and closely monitored his work. (Dkt. No. 39 at 4.) He further claims that Mr. Infinger denied him promotional opportunities. (Id. at 2.)
More specifically, Plaintiff contends that Mr. Infinger attempted to lower his 2017 performance evaluation ratings shortly after he made a complaint to Defendant's Human Resources Department about Mr. Infinger. (Dkt. No. 73 at 2-3.) Specifically, Plaintiff claims that he met with his previous supervisor, Michelle Parham, “towards the middle of 2017” and she told him that she planned to give him an “exceeds expectations” rating on his annual review. (Id. at 2.) Plaintiff explains that Mr. Infinger, however, gave him a “met some” performance rating. (Id. at 3.) Plaintiff believed this was in retaliation for his complaints to the Human Resources Department. (Id.) He brought this concern to his second level manager. (Id.) Plaintiff claims that his performance evaluation was then changed to reflect the “exceeds expectations” rating. (Id.)
Plaintiff also asserts that Mr. Infinger discriminated against him by sending him to work in the Component Paint Department to perform less-desirable work in less-favorable conditions. (Dkt. No. 39 at 2; Dkt. No. 73 at 3-4.) He claims that he and his African American colleagues “were required to perform solely the harshest work, such as sanding and prep work” when assigned to the Component Paint Department. (Dkt. No. 73 at 3.) Plaintiff further asserts that African American employees were “constantly and principally” required to clean up after their Caucasian counterparts, but their Caucasian counterparts were not required to do the same. (Id.) Plaintiff claims that in August of 2017 he complained about these actions to Lisa Sprinkle in Defendant's Human Resources Department, and to John Sassaman and Jeff Culp in Defendant's Ethics Department, but that the actions continued despite his complaints. (Dkt. No. 73 at 5.)
In April of 2018, Mike Holtslander became Plaintiff's new immediate supervisor. (Dkt. No. 69 at 4; Dkt. No. 73 at 1, citing to Dkt. No. 69-2 at 21.) In August of 2018, Plaintiff requested a transfer to the Component Paint High Laminate Flow Control (“HLFC”) program. (Dkt. No. 69 at 9-10; Dkt. No. 73 at 4.) He was on the “C-shift” in this new role, working three twelve-hour shifts each weekend. (Dkt. No. 69 at 9-10; Dkt. No. 73 at 4.) Because of this transfer, Mr. Infinger again became Plaintiff's immediate supervisor. (Dkt. No. 69 at 9-10.)
Plaintiff contends that he needed an HLFC certification in order to perform anything other than “dirty work jobs” in his new role. (Dkt. No. 73 at 4.) He alleges that training for this specific certification was promised in August of 2018, but that Mr. Infinger did not schedule the training until February 2019. (Id.) He further contends that the training “was cancelled because of Mr. Infinger's failure to inform Plaintiff or his other African American team members of the prerequisites” for the class, and that it was never rescheduled. (Id.)
Around November of 2018, Plaintiff volunteered to work “first shift” (Monday through Friday) in the Final Assembly department, in addition to working “C-shift” in Component Paint HLFC. (Dkt. No. 69 at 10; Dkt. No. 73 at 5.) He claims that he was forced to stop doing this, while other Caucasian workers were permitted to continue. (Dkt. No. 73 at 5.)
Plaintiff contends that, at some point in 2018, Mr. Infinger informed Plaintiff that he planned to give Plaintiff a “met some” rating on his performance evaluation. (Id. at 4.) Plaintiff contends that he informed Mr. Infinger's boss, Charles Littles, about this conversation and that he then received an “exceeds expectations” rating on his final performance evaluation. (Id.) Plaintiff contends that he also informed Mr. Littles of harassing and derogatory treatment he purportedly experienced from Mr. Infinger. (Id.) Plaintiff further claims that sent Mr. Littles an email outlining his various issues with Mr. Infinger on October 14, 2018. (Id.)
Plaintiff states that he sent additional complaints to Defendant's Human Resources Department in March 2019, after not hearing anything about his previous complaints. (Id. at 6.) He claims that he met with a Human Resources representative on March 15, 2019 and that Mr. Infinger verbally reprimanded him for being in the wrong workspace two days later. (Id.) The following week, Plaintiff provided a statement to Defendant's Corporate Investigations Department outlining actions from Mr. Infinger that he believed to be harassing, discriminatory, and/or retaliatory. (Id. at 6-7.)
In May of 2019, Plaintiff experienced a work-related injury. (Dkt. No. 69 at 16; Dkt. No. 73 at 7.) He filed a workers' compensation claim relating to this injury and was placed on “light duty” because of his restrictions. (Dkt. No. 69 at 16-17; Dkt. No. 73 at 7.) As a “light duty” assignment, he worked in the “tool room of [the] Component Paint Shop” during his normal weekend shift until he went on leave to have surgery. (Dkt. No. 69 at 17; Dkt. No. 73 at 7.) Plaintiff claims that he gave a statement about Mr. Infinger to one of Defendant's Corporate Investigators, Robert Garcia, on June 6, 2019. (Dkt. No. 73 at 7.) He went on medical leave on June 20, 2019 and returned on August 30, 2019. (Dkt. No. 69 at 18; Dkt. No. 73 at 7.) Plaintiff claims that he was then notified that “his shift had been changed to first shift, working Mondays to Fridays, in a different building.” (Dkt. No. 73 at 7.) Plaintiff asserts that he complained about this shift change to Defendant's Human Resources Department on August 31, 2019. (Id. at 8.) He claims that he was referred to a Corporate Investigator, to whom he provided a statement. (Id.) He further claims that he never received any follow-up communications regarding an investigation into his complaints. (Id.)
Plaintiff was asked to return to his previous position in the tool room in September of 2019. (Dkt. No. 69 at 19.) He moved back to this position on October 25, 2019. (Dkt. No. 69 at 19; Dkt. No. 73 at 7.) He worked there until December of 2019, at which point he took medical leave. (Dkt. No. 73 at 8.)
Plaintiff contends that Defendant's unfair treatment is a result of race-based discrimination. (See generally Dkt. No. 39; Dkt. No. 73.) He claims that Defendant's actions have caused him to “suffer[] tremendously and [he] is still currently suffering in terms of his mental, emotional, and physical health as well as [] other ongoing actual and compensatory damages.” (Dkt. No. 39 at 3.) Thus, he filed the instant civil action. (See generally Dkt. No. 39.)
PROCEDURAL HISTORY
Plaintiff, along with three co-Plaintiffs (Donta Alston, Jonathan Bennett, and Joel Washington), filed an initial complaint against Defendant on September 24, 2019. (Dkt. No. 1.) The initial complaint alleged race discrimination, hostile work environment and retaliation in violation of 42 U.S.C. § 1981, breach of contract, breach of contract accompanied by a fraudulent act, promissory estoppel, and workers' compensation retaliation. (Dkt. No. 2.) On March 24, 2020, this Court ordered that the claims be severed into four separate actions, noting that each Plaintiff should file an amended complaint. (Dkt. No. 1.) Plaintiff filed his Amended Complaint on May 8, 2020. (Dkt. No. 7.) After requesting and receiving leave from the Court, Plaintiff filed a Second Amended Complaint on September 11, 2020, eliminating his promissory estoppel claim. (Dkt. No. 39.)
On September 25, 2020, Defendant filed a Motion to Dismiss Plaintiff's Second Amended Complaint. (Dkt. No. 40.) On January 14, 2021, the Court granted in part and denied in part Defendant's Motion to Dismiss. (Dkt. No. 58.) In doing so, the Court dismissed Plaintiff's claims for breach of contract and breach of contract accompanied by a fraudulent act. (Id.) Accordingly, only Plaintiff's claims for race discrimination, hostile work environment, and retaliation in violation of 42 U.S.C. § 1981, and Plaintiff's state-law workers' compensation retaliation claim remain.
Now before the Court is Defendant's Partial Motion for Summary Judgment, which was filed on April 19, 2021. (Dkt. No. 69.) After requesting and receiving an extension of time, Plaintiff filed his response in opposition to Defendant's motion on June 1, 2021. (Dkt. No. 73.) Defendant replied to Plaintiff's response on June 14, 2021. (Dkt. No. 77.) As such, the motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“As the moving party, Defendant[] [is] required to identify those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which [it] believe[s] demonstrate the absence of genuine issues of material fact.” Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 317). “Plaintiff[] may not rest on mere allegations or denials; [she] must produce ‘significant probative evidence tending to support the complaint.'” Id. (quoting Anderson, 477 U.S. at 248). In other words, “the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial.” Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2 (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).
In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must “draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Sandlands C & D LLC v. Cty. of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
DISCUSSION
Defendant asserts that it is entitled to summary judgment on Plaintiff's claims of discrimination and retaliation in violation of § 1981, and Plaintiff's state-law workers' compensation retaliation claim. (Dkt. No. 69 at 23-45.) By contrast, Plaintiff contends that genuine issues of material fact exist as to each of his claims and that summary judgment is therefore inappropriate. (Dkt. No. 73 at 10-35.) For the reasons set forth below, the undersigned finds that Plaintiff's claims fail as a matter of law and recommends that Defendant's Partial Motion for Summary Judgment be granted.
As Defendant correctly notes in its reply brief, Plaintiff's response brief is devoid of any counterarguments relating to several of his original claims, including his race discrimination claim premised on Defendant's failure to allow him to work in the Final Assembly Department. (Dkt. No. 77 at 6.) Because Plaintiff has failed to respond to Defendant's arguments relating to certain of his claims, the undersigned must assume that Plaintiff has abandoned all such claims. See Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in opposition memorandum had been abandoned). The undersigned has limited the remaining discussion accordingly.
I. Race Discrimination
Section 1981 states that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. Plaintiff brings a race discrimination claim against Defendant under this statute. A plaintiff may prove a § 1981 race discrimination claim through “direct or circumstantial evidence showing that an adverse employment action was [caused] by intentional discrimination aimed at the plaintiff's [race], ” or through the “burden-shifting framework” of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 171 (4th Cir. 2020), as amended (Oct. 16, 2020) (referencing Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016)). It appears undisputed that Plaintiff has not provided direct evidence of discrimination or retaliation. (See generally Dkt. No. 69; Dkt. No. 73; Dkt. No. 77.) Indeed, both parties have analyzed Plaintiff's discrimination and retaliation claims using the McDonnell Douglas framework. (See generally Dkt. No. 69; Dkt. No. 73; Dkt. No. 77.) The undersigned has therefore evaluated Plaintiff's claims under the same. See Perkins v. Int'l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019) (referencing Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005)) (Title VII context); Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (extending Title VII requirements to § 1981 discrimination claim).
Under the McDonnell Douglas paradigm, the plaintiff must first establish the elements of a prima facie discrimination claim. Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 719 (D.S.C. 2014). A prima facie case for race discrimination under § 1981 requires that: (1) the plaintiff is a member of a protected class; (2) the plaintiff performed his job in a satisfactory manner; (3) the plaintiff was subjected to an adverse employment action; and (4) the plaintiff was treated differently than similarly situated individuals outside of his protected class. See Flowers v. International Longshoreman's Ass'n Local 1422, No. 2:19-cv-00254-DCN-MGB, 2019 WL 6093255, at *9 (D.S.C. June 4, 2019), adopted sub nom. Flowers v. International Longshoremen's Ass'n Local 1422, No. 2:19-cv-00254-DCN, 2019 WL 3927444 (D.S.C. Aug. 20, 2019) (citing Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012)); see also Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998) (citing Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985)) (noting that the elements required to establish a prima facie case are the same under Title VII and § 1981).
If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant “to show a legitimate, nondiscriminatory reason” for the adverse employment action. Ferguson, 18 F.Supp.3d at 719. If the defendant provides a legitimate, nondiscriminatory reason for the adverse employment action, the burden is then on the plaintiff to demonstrate that the defendant's asserted reasons “are a mere pretext for its true discriminatory motives.” See Id. (referencing McDonnell Douglas Corp., 411 U.S. at 802-05). In order to do that, the plaintiff must come forward with evidence showing that the employer's reason for the adverse employment action was false, and that discrimination was the real reason. See Collins v. Charleston Place, LLC, No. 2:15-cv-4465-PMD-BM, 2017 WL 3167330, at *2 (D.S.C. July 26, 2017), aff'd, 720 Fed.Appx. 701 (4th Cir. 2018). “[The plaintiff] must prove both because ‘[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.'” See Id. (referencing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993)) (emphasis in original).
Here, Plaintiff's discrimination claim is based on his temporary assignments to the Component Paint Department and Defendant's failure to promote him to a Level C Painter. (Dkt. No. 73 at 12-23.) Because it is undisputed that Plaintiff is a member of a protected class and that he performed his job in a satisfactory manner at all times relevant to this case, the undersigned need not address those elements of Plaintiff's prima facie case of discrimination and limits the remaining discussion accordingly. (See generally Dkt. No. 69; Dkt. No. 73; Dkt. No. 77.) For the reasons set forth below, the undersigned finds that Plaintiff cannot demonstrate that he experienced an adverse employment action and therefore recommends that the Court grant Defendant's Partial Motion for Summary Judgment as to this claim.
A. Temporary Assignments to Component Paint Department
Plaintiff first contends that his temporary assignments to the Component Paint Department were discriminatory adverse employment actions. (Dkt. No. 73 at 12.) He asserts that working in the Component Paint Department was sufficiently adverse because he performed less-desirable tasks while there, in less-favorable conditions. (Id. at 12.) Specifically, Plaintiff argues that he was “required to perform solely the harshest work, such as sanding and prep work.” (Id.) He states that he was “required to clean up other painter's trash constantly and principally and perform other cleaning tasks.” (Id. at 12-13.) He contends that his Caucasian counterparts were not required to perform these tasks. (Id. at 13.) Plaintiff also contends that he worked in less-favorable conditions when assigned to the Component Paint Department. (Id.) Plaintiff claims that the Component Paint Department “had intolerable conditions as it was [a] dirty, hazardous and hot building, with old lifts and equipment.” (Id.) Plaintiff explains that no one wanted to work in the Component Paint Department. (Id. at 14.) Plaintiff further argues that his assignments in the Component Paint Department were “humiliating and onerous.” (Id. at 15-16.) He asserts that these assignments “constituted a decrease in his level of responsibility” and “hindered [his] promotional opportunities.” (Id.) Plaintiff states that he was treated differently than his similarly situated Caucasian employees because “the groups . . . sent over to Component Paint . . . were, more often than not, exclusively African American.” (Id. at 17.) Defendant, on the other hand, contends that Plaintiff's assignments in the Component Paint Department were not sufficiently adverse and that he therefore cannot make a prima facie case of race discrimination based on such assignments. (Dkt. No. 69 at 23-29; Dkt. No. 77 at 6-17.)
“[An] adverse employment action is ‘an absolute precondition' to an employment discrimination suit.” Batten v. Grand Strand Dermatology, LLC, No. 4:18-cv-0616-MGL-TER, 2019 WL 9667692, at *6 (D.S.C. Dec. 20, 2019) (quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). However, not every personnel decision constitutes an adverse employment action for purposes of a discrimination claim. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 570 (D.S.C. 2013); see also Thorn v. Sebelius, 766 F.Supp.2d 585, 599 (D. Md. 2011), aff'd, 465 Fed.Appx. 274 (4th Cir. 2012) (“[N]ot everything that makes an employee unhappy is actionable adverse action.”). Rather, an adverse employment action is explicitly limited to those actions that affect employment or alter the conditions of the workplace. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006).
In other words, an alleged discriminatory act must “adversely affect[] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation omitted). “Typical examples of adverse employment actions include ‘discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, [and] reduced opportunities for promotion.'” Cole v. Wake Cty. Bd. of Educ., 494 F.Supp.3d 338, 345 (E.D. N.C. 2020), aff'd, 834 Fed.Appx. 820 (4th Cir. 2021), cert. denied sub nom. Cole v. Wake Cty. BD. of ED., No. 20-1373, 2021 WL 2302100 (U.S. June 7, 2021) (quoting Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999)). Less severe employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization” in order to survive summary judgment. Blakney v. N. Carolina A&T State Univ., No. 1:17-cv-874, 2019 WL 1284006, at *15 (M.D. N.C. Mar. 20, 2019) (referencing Boone, 178 F.3d at 256-57). Ultimately, an adverse employment action must have a “significant detrimental effect” on the employee in order to be cognizable. Laird v. Fairfax Cty., Va., 978 F.3d 887, 893 (4th Cir. 2020) (quoting Holland, 487 F.3d at 219).
In support of his contention that working in the Component Paint Department constitutes adverse action, Plaintiff cites to his personal deposition testimony, as well as sworn affidavits from Ivory Jackson, Anthony Leonard, and Ira Hughes. (Dkt. No. 73 at 14-16, 17-19.) The evidence to which Plaintiff cites reiterates that certain employees did not enjoy working in the Component Paint Department, and that African American employees were required to clean up and to sand while working there. (Dkt. No. 69-2 at 32, 57-58; Dkt. No. 73-2 at 3; Dkt. No. 73-13 at 3; Dkt. No. 73-14 at 2.)
The affidavits from Ivory Jackson, Anthony Leonard, and Ira Hughes state that African American employees were asked to clean up after Caucasian employees specifically. (Dkt. No. 73-2 at 3; Dkt. No. 73-13 at 3; Dkt. No. 73-14 at 2.)
However, even considering the evidence in the light most favorable to Plaintiff, he cannot show that his assignments to the Component Paint Department had a significant detrimental effect on his employment. At the outset, the undersigned notes that the assignments about which Plaintiff complains were temporary. (See generally Dkt. No. 69-2; Dkt. No. 69-4; Dkt. No. 69-11.) Indeed, the record reflects that Plaintiff volunteered to work in the Component Paint Department for approximately six weeks in December of 2017. (Dkt. No. 69-2 at 68-71.) Plaintiff was then sent to the Component Paint Department about twice per week until approximately August 2018. (Id.) The temporary nature of Plaintiff's assignments to the Component Paint Department suggests that he cannot establish the third prong of his prima facie discrimination claim. See, e.g., Haggins v. Sam's E., Inc., No. 3:13-cv-1596-MBS, 2015 WL 5781390, at *8 (D.S.C. Sept. 30, 2015) (“Temporary changes to assigned tasks or workload are not adverse employment actions.”); Taylor v. Burwell, No. PWG-13-1998, 2014 WL 3547337, at *6 (D. Md. July 16, 2014) (“Courts regularly have found that temporary changes to an employee's workload or to the tasks he is assigned do not constitute an adverse employment action”); Balinao v. Gonzales, No. 9:06-cv-0254-PMD-GCK, 2007 WL 5307975, at *8 (D.S.C. Aug. 16, 2007), aff'd sub nom. Balinao v. Mukasey, 270 Fed.Appx. 260 (4th Cir. 2008) (stating that “[a] temporary assignment of undesirable duties does not constitute an adverse employment action” (internal quotation marks and citation omitted)).
Plaintiff's claim that working in the Component Paint Department was an adverse action is further undermined by the fact that he volunteered to work there. (Dkt. No. 69-1 at 9-10; Dkt. No. 69-11 at 2.) Plaintiff contends that he only volunteered to work in the Component Paint Department under Robert Jernigan in December of 2017, and that he did not volunteer to work under Eric Infinger because Mr. Infinger made him clean and sand. (Dkt. No. 73 at 10.) However, the record reflects that Plaintiff specifically requested to work in the Component Paint Department under Eric Infinger in March 2018. (Dkt. No. 69-11 at 2.)
This evidence not only undermines Plaintiff's claim that working in the Component Paint Department was so detrimental as to constitute an adverse employment action, but it also undermines Plaintiff's claim that Defendant relegated him to work in the Component Paint Department on account of race-based discrimination. (Dkt. No. 73 at 12-19.) Rather, this evidence suggests that Defendant assigned Plaintiff to work in the Component Paint Department because he requested to work there. (Dkt. No. 69-11 at 2.)
Further, it appears that Plaintiff initiated his own permanent reassignment to the Component Paint Department in August of 2018. (Dkt. No. 69 at 9-10, citing to Dkt. No. 69-2; Dkt. No. 69-15; Dkt. No. 69-16; Dkt. No. 69-17; Dkt. No. 95 at 31.) More specifically, Plaintiff received a department-wide email asking for volunteers to join a new “alternate work week” team in the Component Paint Department. (See generally Dkt. No. 69-15; Dkt. No. 69-16; Dkt. No. 69-17.) Plaintiff expressed a preference to join this team working “C-shift” (Fridays through Sundays), and he was accepted as a team member. (Dkt. No. 69 at 9-10, citing to Dkt. No. 69-2; Dkt. No. 69-15; Dkt. No. 69-16; Dkt. No. 69-17; Dkt. No. 95 at 31.) Plaintiff was therefore permanently assigned to work his preferred “C-shift” in the Component Paint Department, under Eric Infinger. (Dkt. No. 69 at 9-10, citing to Dkt. No. 69-2; Dkt. No. 69-15; Dkt. No. 69-16; Dkt. No. 69-17.) The record indicates that Plaintiff's new role required him to work on different tasks and in a different area of the Component Paint Department than his temporary assignments. (Dkt. No. 69-2 at 68; Dkt. No. 73 at 18.) Nonetheless, his voluntary initiation of a permanent reassignment to the same building that he contends had “intolerable conditions” undercuts his assertions that his temporary reassignments to such building were sufficiently adverse. (See generally Dkt. No. 39; Dkt. No. 73.) Similarly, the fact that Plaintiff initiated and agreed to a permanent reassignment requiring him to work under the very supervisor that he contends unfairly assigned him harsh and degrading tasks undermines his contention that such tasks were so detrimental, onerous, or humiliating as to constitute adverse employment action under § 1981. (See generally Dkt. No. 39; Dkt. No. 73.)
Plaintiff does not contend that this permanent reassignment was discriminatory, nor that it constitutes an adverse employment action. (See generally Dkt. No. 73, frequently repeating that Plaintiffs “temporary assignments in the Component Paint Shop constituted adverse actions.”)
Moreover, the record does not reflect that Plaintiff's assignments to the Component Paint Department had a negative impact on his pay, his potential for continued employment, or his ability to be promoted. Blakney, 2019 WL 1284006, at *15 (referencing Boone, 178 F.3d at 256-57) (noting that adverse employment actions “must generally impact an employee's pay, potential for continued employment, or likelihood of promotion within the organization”). Indeed, the record reflects that Plaintiff's job title did not change throughout the relevant period, and Plaintiff indicated that he received additional overtime pay when temporarily assigned to the Component Paint Department. (Dkt. No. 69-2 at 74; Dkt. No. 94 at 3.) Further, Plaintiff received nearly $5,000 worth of raises during the time he contends he was relegated to the Component Paint Department. (Dkt. No. 94 at 3.)
Though Plaintiff contends that his temporary assignments to the Component Paint Department hindered his promotional opportunities, the evidence to which he cites does not support his argument that his temporary assignments hindered his ability for advancement. (Dkt. No. 73 at 16.) Rather, Plaintiff cites to a general statement from Anthony Leonard, which reads: “[assignments to the Component Paint Department] prevented [employees] from obtaining the required painting time and experience needed to be promoted, as we were mainly performing janitorial tasks. Therefore, many African American painters . . . were hindered from advancing and meeting the criteria for promotion.” (Dkt. No. 73-2 at 3.) However, as is further discussed in Section I.B., infra, the record reflects that Plaintiff lacked a specific certification that was required for his promotion, not that he lacked “painting time and experience.” (Dkt. No. 69-4 at 5-6.)
Regardless, Plaintiff was only assigned to the Component Paint Department on an occasional basis. (See supra at 14.) As noted, Plaintiff volunteered to help out in the Component Paint Department for six weeks at the end of 2017, and then was “loaned out” to the department twice per week until August 2018. (Dkt. No. 69-2 at 68-71.) Thus, even assuming that Plaintiff was required to perform sanding and janitorial tasks for the entirety of his temporary assignments to the Component Paint Department, the infrequency with which he performed these assignments does not support an inference that he lost significant “painting time and experience.” (Dkt. No. 73 at 16.) See Laird, 978 F.3d at 893 (4th Cir. 2020) (quoting Holland, 487 F.3d at 219) (noting that an adverse employment action must have a significantly detrimental effect on the employee in order to be cognizable).
Finally, the record does not reflect that Plaintiff's assignments to the Component Paint Department involved a significant change in his job responsibilities. Plaintiff argues that the sanding and cleaning duties he performed when temporarily assigned to the Component Paint Department were “harsh, ” “oppressive, ” “humiliating, ” “onerous, ” and “constituted a decrease in his level of responsibility.” (Dkt. No. 73 at 14-15.) However, the record indicates that workers in both the Decorative Paint Department and Component Paint Department were required to clean and sand. (Dkt. No. 69-4 at 2.) Indeed, Robert Jernigan stated in a sworn declaration that employees in the Decorative Paint Department performed many of the same functions as those in the Component Paint Department-including “sanding, masking, [and] demasking.” (Id.) Mr. Jernigan also explained that:
All painters are required to participate in clean-as-you-go activities while they perform their work and at the end of each shift. The clean-as-you-go principles are outlined in Boeing's Foreign Object Debris/Damage (“FOD”) Prevention Policy, which sets standards for cleanliness of specific work areas to ensure that debris, and other trash does not become entrapped in the airplane, causing catastrophic damage and/or contamination of certain areas of the airplane. This policy requires painters to clean their immediate work areas and specifically instructs employees to use brooms and other tools to clean their immediate work spaces. Painters are also required to pick up their trash as part of this work process.(Id. at 5.) Based on the above, Plaintiff would have been required to clean and sand while working in either department. (See generally id.)
Plaintiff does not contest that sanding and cleaning were part of his job responsibilities in the Decorative Paint Department. (See generally Dkt. No. 73.) Rather, he contends that the tasks he was required to perform during his temporary assignments to the Component Paint Department “were not typical housekeeping . . . activities” and not part of his “ordinary duties as a painter.” (Dkt. No. 73 at 15.) Plaintiff contends that he was required to clean up after his Caucasian counterparts, which made him feel inferior. (Id.)
The undersigned notes that certain testimony to which Plaintiff cites in support of his contentions is not in the record. (Dkt. No. 73 at 15.) Nonetheless, the undersigned has assumed the validity of all testimony described by Plaintiff in an effort to construe the evidence in the light most favorable to him.
However, even viewing Plaintiff's contentions as true and assuming that Plaintiff was required to do far more cleaning and sanding while working in the Component Paint Department, his assignments to that department would not entail a significant change in his job responsibilities because he was already required to perform those duties on some level while working in the Decorative Paint Department. See Vedula v. Azar, No. 8:18-cv-0386-TDC, 2020 WL 5500279, at *9 (D. Md. Sept. 11, 2020) (finding no adverse employment action where “additional” work assignments were “largely memorialized duties and responsibilities that were already required of employees in [plaintiff's] position”). Though Plaintiff's assigned tasks may have been unfair, they do not rise to the level of an adverse employment action for purposes of Plaintiff's § 1981 discrimination claim, particularly in light of the fact that Plaintiff was asked to perform them on an occasional basis. See Wandji v. Wilkie, No. 2:18-cv-03036-RMG-MGB, 2020 WL 7647552, at *16 (D.S.C. Nov. 9, 2020), adopted, 2020 WL 7237922 (D.S.C. Dec. 9, 2020), aff'd sub nom. Wandji v. McDonough, 850 Fed.Appx. 851 (4th Cir. 2021) (noting that plaintiff's “temporary re-orientation” did not constitute a material job change because plaintiff continued to perform many of his previous duties, returned to those duties following his re-orientation, and the re-orientation did not result in a change to his job title or overall level of responsibility); see also Cole, 494 F.Supp.3d at 345 (“When analyzing a transfer or reassignment, the mere fact that a new job assignment is less appealing to the employee . . . does not constitute adverse employment action.” (internal quotation marks and citation omitted)); White v. City of Annapolis (MD), No. CIV. JFM-13-1330, 2015 WL 5009853, at *16 (D. Md. Aug. 21, 2015), aff'd sub nom. White v. City of Annapolis, Md., 639 Fed.Appx. 209 (4th Cir. 2016) (determining that plaintiff could not prove that his “degrading assignments” were adverse employment actions because he failed to sufficiently demonstrate that they had a tangible effect on the terms and conditions of employment or that he suffered humiliation as a result); Grimsley v. Marshalls of MA, Inc., 284 Fed.Appx. 604, 2008 WL 2435582, at *4 (11th Cir. 2008) (“Although Grimsley's workload sometimes increased and he was occasionally assigned additional tasks, these kinds of temporary assignments, without a change in compensation or position, do not amount to a serious and material change in the terms, conditions, or privileges of employment.” (internal quotation marks and citation omitted)).
Based on the above, Plaintiff has failed to show that his temporary assignments working in the Component Paint Department had a “significant detrimental effect” on his employment. Laird, 978 F.3d at 893 (quoting Holland, 487 F.3d at 219). Accordingly, he cannot establish the third prong of his prima facie claim of race discrimination based upon such assignments, and the undersigned therefore recommends that Defendant's Partial Motion to Dismiss be granted as to this claim.
B. Failure to Promote
Plaintiff also contends that Defendant discriminatorily denied him a promotion from Level B to Level C Painter. (Dkt. No. 73 at 22.) To establish a failure to promote race discrimination claim, Plaintiff must show that (1) he is a member of a protected group; (2) he applied for the promotion; (3) he was qualified for the promotion; and (4) Defendant failed to promote him under circumstances that give rise to an inference of unlawful discrimination. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). Plaintiff's failure to hire claim fails under the third element.
The undersigned notes that Plaintiff never formally applied for the Level C Painter position. (See generally Dkt. No. 69-3.) However, under certain circumstances, “the application requirement may be relaxed and the employee treated as if [he] had actually applied for a specific position.” Williams v. Giant Food Inc., 370 F.3d 423, 431 (4th Cir. 2004) (“[I]f the employer fails to make its employees aware of vacancies, the application requirement may be relaxed and the employee treated as if she had actually applied for a specific position.”). Plaintiff seems to contend that this exception applies to his claim and that he need not demonstrate that he applied for the Level C Painter position at issue because he “requested a promotion on various occasions.” (Dkt. No. 73 at 22.) Further, Plaintiff's testimony indicates that Defendant had an informal promotion process through which Plaintiff expected to be promoted to Level C Painter. (Dkt. No. 69-2 at 44.) Thus, for purposes of this Report and Recommendation, the undersigned therefore assumes that Plaintiff can establish the second element of his prima facie failure to promote claim.
Specifically, Plaintiff's claim that he was discriminatorily denied a promotion to Level C Painter is undercut but Defendant's impartial promotion criteria, which requires employees to obtain certain certifications and qualifications before becoming eligible for a promotion to Level C Painter. (Dkt. No. 69-4 at 47.) Defendant contends that Plaintiff cannot establish that he was qualified for a promotion to Level C Painter because he did not have the requisite “MFPP 100” certification. (Dkt. No. 69 at 32.) Plaintiff does not contest that he lacks this certification, nor does he assert that he ever tried to obtain the certification but was denied the opportunity to do so. (Dkt. No. 69-2 at 37; Dkt. No. 73 at 22.) Rather, he seems to contend that he was qualified for the Level C Painter position solely because he consistently received excellent performance reviews. (Dkt. No. 69-2 at 34-35.) However, the Court must “assess relative job qualifications based on the criteria that the employer has established as relevant to the position in question.” Barnes v. Charles Cty. Pub. Sch., 747 Fed.Appx. 115, 118 (4th Cir. 2018) (quoting Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006)). It is clear from the record that the MFPP 100 certification was a prerequisite for promotion to Level C Painter under Defendant's promotion criteria, and it is undisputed that Plaintiff did not have this required certification. (See generally Dkt. No. 69; Dkt. No. 69-4; Dkt. No. 73; Dkt. No. 77.) Thus, Plaintiff cannot demonstrate that he met Defendant's criteria for the promotion at issue, even if he consistently received excellent reviews and feedback. (Dkt. No. 69-4 at 47.) For this reason, Plaintiff cannot show that he was qualified for the Level C Painter position, and his prima facie failure to promote claim fails.
Plaintiff does not argue that he was deprived of the opportunity to obtain this certification. (Dkt. No. 73 at 22-23.) Though he makes contentions regarding Defendant's failure to train him, the record reflects that these claims relate to HLFC training and that HLFC training was not required for this particular promotion. (Dkt. No. 73 at 10-35; Dkt. No. 95 at 17-20.)
Nonetheless, Plaintiff also argues that Defendant did not equitably apply its promotion criteria and did not use it when promoting Caucasian employees. (Dkt. No. 73 at 22.) In support of this contention, Plaintiff points to his personal deposition testimony. (Dkt. No. 69-2 at 35-37.) However, such testimony does not set forth any appropriate comparators or examples of how Defendant has discriminatorily implemented its promotion policies. (Id.) Instead, this testimony is based on Plaintiff's own conjecture and speculation, which is insufficient to create a genuine issue of fact. See Dash, 731 F.3d at 311 (noting that “conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence” cannot create genuine issues of material fact); Nat'l Enterprises, Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000) (finding “self-serving affidavit” insufficient to defeat motion for summary judgment); Mackey v. Shalala, 360 F.3d 463, 469-70 (4th Cir. 2004) (“A plaintiff's own self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination.”); Wilson v. Wal-Mart, Inc., No. 3:15-cv-1157-JFA, 2016 WL 3086929, at *3 (D.S.C. June 2, 2016) (“Uncorroborated and self-serving testimony cannot give rise to a genuine factual dispute.”). Moreover, Plaintiff admitted elsewhere in his deposition testimony that he could not “identify anyone who was a Boeing employee who was moved from Level B to [L]evel C and did not meet [the impartial promotion criteria].” (Dkt. No. 69-2 at 40.)
Plaintiff proffers two comparators in his deposition testimony. (Dkt. No. 69-2 at 23-24, 29-31.) However, he does not respond to any of Defendant's arguments relating to such comparators in his response brief. (See generally Dkt. No. 73.) Regardless, Defendant has provided evidence that both comparators were promoted to Level C Painters only after meeting Defendant's impartial promotion criteria, making them improper comparators. (Dkt. No. 69-5 at 3; Dkt. No. 69-18 at 3.)
Thus, even construing the evidence in the light most favorable to Plaintiff, the undersigned finds that he cannot make a prima facie case of race discrimination based on Defendant's failure to promote him to a Level C Painter. The undersigned therefore recommends that Defendant is entitled to summary judgment on this claim.
II. Retaliation
Plaintiff next brings a retaliation claim under § 1981. (Dkt. No. 39 at 8.) As noted, it is undisputed that Plaintiff has not presented any direct evidence of retaliation in this case. Thus, the undersigned again analyzes Plaintiff's claims pursuant to the familiar McDonnell Douglas framework. See Perkins, 936 F.3d at 206 n.4 (referencing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015)); Parks v. Louisiana-Pac. Corp., 400 F.Supp.3d 393, 412 (W.D. N.C. 2019), appeal dismissed, No. 19-2015, 2020 WL 1283635 (4th Cir. Feb. 20, 2020) (“Courts analyze race discrimination and retaliation claims filed under 42 U.S.C. § 1981 using the [McDonnell Douglas] burden-shifting framework.”).
Under this framework, the plaintiff must first make a prima facie showing of retaliation by proving that: (1) he engaged in a protected activity; (2) his employer took a materially adverse action against him; and (3) there was a causal link between the two events. Perkins, 936 F.3d at 213; Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (“A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements [as a Title VII retaliation claim].”). Under § 1981, “an employee opposes race discrimination when she ‘communicates to her employer a belief that the employer has engaged in' such discrimination.” Ali, 832 Fed.Appx. at 172 (quoting Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009)). An employee is protected from retaliation for reporting both “employment actions actually unlawful under [§ 1981]” and “employment actions she reasonably believes to be unlawful.” Id. (quoting Boyer-Liberto, 786 F.3d at 282). “In line with other § 1981 claims, to state a § 1981 retaliation claim, a plaintiff must allege facts rendering it plausible that, but for her participation in protected activity, she would not have suffered a materially adverse action.” Id. at 172-73 (citing Guessous, 828 F.3d at 217- 18; Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020)).
If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. Marzett v. Charleston Cty. Sch. Dist., No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at *10 (D.S.C. Jan. 27, 2017), adopted, 2017 WL 589110 (D.S.C. Feb. 14, 2017), aff'd, 697 Fed.Appx. 186 (4th Cir. 2017) (referencing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998)). The plaintiff then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id.
Here, Plaintiff alleges that he was “repeatedly subjected to and protested violations of his federally protected rights” and that those protests “subjected Plaintiff to being mistreated in a retaliatory manner and to a continuance of unlawful racial harassment and retaliation.” (Dkt. No. 39 at 8.) Plaintiff also states that he “informed Defendant of the racial harassment and mistreatment that Plaintiff daily was exposed to (protected complaints), ” and that Defendant engaged in “a continuing pattern of animus, harassment, and denial of opportunities and relocations.” (Id.)
It appears undisputed that Plaintiff engaged in protected activity. (See generally Dkt. No. 69; Dkt. No. 73; Dkt. No. 77.) Thus, the undersigned need not address the first element of Plaintiff's retaliation claim. With respect to the second element of Plaintiff's retaliation claim, the undersigned notes that the “materially adverse action” standard differs from the “adverse employment action” standard required for discrimination claims. See Perkins, 936 F.3d at 213 (referencing Burlington, 548 U.S. at 61-68 for redefining the second prima facie element of Title VII retaliation); Boyer-Liberto, 786 F.3d at 281 (noting that the elements of a prima facie retaliation claim are the same under § 1981 as under Title VII). Indeed, a plaintiff need only show “that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'” See Id. (referencing Burlington, 548 U.S. at 68). However, an alleged retaliatory act must produce actual injury or harm in order to be considered materially adverse. Burlington, 548 U.S. at 68. Thus, “[a]ctions are not materially adverse if they amount only to ‘petty slights or minor annoyances [of the type] that often take place at work and that all employees experience.'” Anderson v. J.A. Piper Roofing Co., No. 6:19-cv-00859-DCC-JDA, 2020 WL 7000913, at *2 (D.S.C. Sept. 8, 2020), adopted sub nom. Anderson v. JA Piper Roofing Co., 2020 WL 6110991 (D.S.C. Oct. 16, 2020), aff'd sub nom. Anderson v. J. A. Piper Roofing Co., 839 Fed.Appx. 830 (4th Cir. 2021) (quoting Burlington, 548 U.S. at 68).
Plaintiff relies on several alleged retaliatory acts to support his retaliation claim, including: (1) Mr. Infinger's attempts to decrease Plaintiff's 2017 and 2018 performance evaluation ratings; (2) Mr. Infinger's verbal warning to Plaintiff; (3) the cancellation of Plaintiff's HLFC training class; (4) Plaintiff's temporary assignments to the Component Paint Department; and (5) Plaintiff's shift change. (Dkt. No. 73 at 24-35.) Defendant claims that Plaintiff cannot establish a prima facie case of retaliation based on any of these acts. (Dkt. No. 69 at 36-42.) Specifically, Defendant contends that such acts are not materially adverse, and that Plaintiff cannot demonstrate a causal connection between these alleged retaliatory acts and his protected complaints. (Id.)
A. Performance Reviews and Verbal Warning
The undersigned first notes that Mr. Infinger's attempts to decrease Plaintiff's 2017 and 2018 performance evaluation ratings and Mr. Infinger's verbal warning to Plaintiff are not sufficiently adverse. (Dkt. No. 73 at 24-30.) Although Plaintiff contends that such actions are materially adverse because they could “dissuade a reasonable employee from making a charge of discrimination, ” he fails to consider that these actions produced no injury. (Id. at 27, 29.) Indeed, Plaintiff does not direct the Court to evidence of any negative consequences resulting from these actions, and the record reflects that no such consequences exist. (Id. at 24-30; Dkt. No. 77 at 18-20, citing to Dkt. No. 69-5 and Dkt. No. 69-18.) Without evidence that Plaintiff experienced some sort of injury or harm as a result of these actions, the undersigned cannot conclude that they are materially adverse for purposes of Plaintiff's § 1981 retaliation claim. Burlington, 548 U.S. at 68 (explaining that an alleged retaliatory act must produce actual injury or harm to be considered materially adverse); Ester Bullock, Plaintiff, v. Barbara M. Barrett, Sec'y, Dep't of the Air Force, Defendants., No. 3:19-cv-2863-MGL-PJG, 2021 WL 4596991, at *3 (D.S.C. Feb. 23, 2021), adopted sub nom. Bullock v. Kendall, 2021 WL 4059718 (D.S.C. Sept. 7, 2021) (“A plaintiff must show material adversity to separate the significant harms from the trivial . . . .”).
B. Cancellation of HLFC Training Class
As for Plaintiff's claim that Eric Infinger retaliated against him by failing to inform him of the prerequisites for his HLFC training class, Plaintiff cannot demonstrate a causal connection between his protected complaints and this purported adverse action. (Dkt. No. 73 at 30-32.) Plaintiff attempts to establish a causal connection here through temporal proximity, stating that his complaints “made towards the end of 2018” have a close temporal relationship with the class cancellation in February 2019. (Id. at 31.) It is well settled that Plaintiff may satisfy the causation element of his prima facie case for retaliation by showing that the alleged retaliation closely followed the protected activity. Hinton v. Virginia Union Univ., 185 F.Supp.3d 807, 837 (E.D. Va. 2016). The Fourth Circuit has observed that in order for a temporal relationship to support a reasonable inference of retaliatory causation, the temporal relationship must be “very close.” Pascual v. Lowe's Home Ctrs., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Although there is no bright-line rule for determining when a temporal relationship is “very close, ” the Fourth Circuit has held that as little as three months between a plaintiff's protected activity and a defendant's retaliatory act is too long to give rise to an inference of causality. Id. (three-to-four-month period too long to establish causation). The Fourth Circuit has also determined that two months is “sufficiently long so as to weaken significantly the inference of causation between the two events.” King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003); see also Horne v. Reznick Fedder & Silverman, 154 Fed. App'x 361, 364 (4th Cir. 2005). In this case, the temporal proximity between Plaintiff's complaint and the HLFC class cancellation is at least two to three months, weakening any inference of causation. (Dkt. No. 73 at 31.)
Further weakening any inference of causation is Plaintiff's inability to demonstrate that Mr. Infinger knew of his complaints. (Id. at 30-32.) Indeed, Plaintiff directs the Court to no evidence indicating that Mr. Infinger was aware of Plaintiff's complaints about him “towards the end of 2018.” (Id.)
Additionally, the record reflects that Mr. Infinger was not notified of the necessary prerequisites for the HLFC training class until January 25, 2019, that he believed the prerequisite Plaintiff lacked was no longer required for the HLFC training, and that Plaintiff completed the prerequisite three days after Mr. Infinger was informed that Plaintiff needed to complete it in order to participate in HLFC training. (Dkt. No. 69-18 at 5, 20-22, 25.) None of these circumstances raise a reasonable inference of retaliation. Perry v. Kappos, 489 Fed.Appx. 637, 643 (4th Cir. 2012) (“Where the time between the events is too great to establish causation based solely on temporal proximity, a plaintiff must present ‘other relevant evidence . . . to establish causation,' such as ‘continuing retaliatory conduct and animus' in the intervening period.” (quoting Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007))).
C. Temporary Assignments to Component Paint
With respect to Plaintiff's assignments to the Component Paint Department, such assignments cannot be considered materially adverse for many of the same reasons that they cannot be considered adverse employment actions. (See supra at 11-20.) Most pertinently, Plaintiff's less-desirable assignments to the Component Paint Department were temporary and had no impact on his pay or job title. McLaughlin v. Barr, No. 1:19-cv-318, 2020 WL 869914, at *11 (M.D. N.C. Feb. 21, 2020) (finding that a temporary change in the plaintiff's job duties did not constitute a materially adverse action where plaintiff failed to allege a detrimental effect on her employment, other than the reassignment itself).
D. Shift Change
Finally, Plaintiff cannot demonstrate that his change from “C-shift” to first shift was retaliatory. (Dkt. No. 73 at 33-35.) Plaintiff contends that this change in shift was retaliatory because “[p]rior to his shift change . . . on . . . August 30, 2019, Plaintiff had spoken with Boeing Investigator Robert Garcia about his concerns with Mr. Infinger's discriminatory conduct on or about June 6, 2019. (Dkt. No. 73 at 33.) He explains that he then went on medical leave and, when he returned to work, he had been assigned to work first shift (Mondays through Fridays). (Id.) Plaintiff argues that this change was materially adverse because he had to work a greater number of days than on “C-shift” (Fridays through Sundays) and because he made less money working first shift. (Id.)
The undersigned notes that two separate shift changes are discussed throughout the record. One occurred when Plaintiff returned from his leave of absence in August 2019, and one was expected to begin on September 20, 2019. (Dkt. No. 69 at 19 n.18; Dkt. No. 69-18 at 6-7; Dkt. No. 69-31 at 3; Dkt. No. 69-35 at 2; Dkt. No. 95 at 37-34.) The September 2019 shift change never occurred, and Plaintiff's response brief argues that only the August 2019 shift change was retaliatory. (Dkt. No. 69 at 19 n.18; Dkt. No. 73 at 33, stating “Plaintiff's shift change in August 2019 was in retaliation for his numerous complaints . . . .”) The undersigned has limited this discussion accordingly.
At the outset, Plaintiff's claim that this shift change was materially adverse is undermined by the temporary nature of this move and by his complaints to Defendant about being moved back to “C-shift.” (See generally Dkt. No. 69-34; Dkt. No. 69-35.) Indeed, Plaintiff worked first shift for only two months before Defendant returned him to “C-shift.” (Dkt. No. 69 at 18.) Upon learning that he was returning to “C-shift, ” Plaintiff emailed one of Defendant's Corporate Investigators and one of its light duty accommodation coordinators, asking if Defendant was required to give him thirty-days' notice of such a change and stating that he did not feel that the change was “right.” (Dkt. No. 34 at 2.) Plaintiff's discontent with returning to the very shift he now asserts was preferable tends to suggest that Plaintiff did not actually prefer “C-shift.” (See generally Dkt. No. 34; Dkt. No. 35; Dkt. No. 73.)
Regardless, Plaintiff cannot demonstrate a causal connection between his shift change and his complaints. He again attempts to make this connection through temporal proximity, noting that he made his complaints on June 6, 2019 and was moved to first shift on August 30, 2019. (Dkt. No. 73 at 34.) As previously noted, Plaintiff may satisfy the causation element of his prima facie case for retaliation by showing that the alleged retaliation closely followed the protected activity. Hinton, 185 F.Supp.3d at 837. However, the temporal proximity must be “very close, ” Pascual, 193 Fed.Appx. at 233 (quoting Clark Cty. Sch. Dist., 532 U.S. at 273), and two months is “sufficiently long so as to weaken significantly the inference of causation between the two events.” King, 328 F.3d at 151 n.5; see also Horne, 154 Fed. App'x at 364. Here, Plaintiff complained to Mr. Garcia approximately three months before he was moved to first shift, weakening any inference of causation. (Dkt. No. 73 at 31.)
Plaintiff's causation argument is further undermined by the fact that he cannot show that the person responsible for his shift change-his accommodation specialist, Robert Frost-knew of his complaints to Mr. Garcia. (Dkt. No. 69-31 at 3-4; Dkt. No. 73 at 33-35; Dkt. No. 77 at 26; Dkt. No. 94 at 16.) Indeed, Plaintiff directs the Court to no evidence indicating that Mr. Frost was aware of his complaints, nor does he provide any evidence to suggest that Mr. Frost held retaliatory animus against him. (See generally Dkt. No. 73.) By contrast, the record indicates that Mr. Frost met with Plaintiff “to ask if [he] was willing to change shifts for a light duty assignment” and that Plaintiff “confirmed that he was able to work Monday through Friday [and] did not voice any concerns with [doing so] or with not being able to continue to work light duty in the Component Paint Shop tool room on C shift.” (Dkt. No. 69-31 at 3.) Without some evidence that Mr. Frost was aware of Plaintiff's protected complaints, the undersigned simply cannot infer that Mr. Frost changed Plaintiff's shift in retaliation for Plaintiff's protected complaints. See Ali, 832 Fed.Appx. at 172-73 (citing Guessous, 828 F.3d at 217-18; Comcast Corp., 140 S.Ct. at 1019) (explaining that a plaintiff must demonstrate the decisionmaker responsible for an alleged retaliatory act knew that the plaintiff engaged in protected activity and retaliated against him on account of that activity in order to establish a causal connection); see also Holland, 487 F.3d at 218. Plaintiff is therefore unable to establish a prima facie case of retaliation based on this shift change. As such, the undersigned recommends that Defendant's Partial Motion for Summary Judgment be granted as to this claim.
Plaintiff provides various references to his personal deposition testimony recounting statements from Charles Littles and Eric Infinger. (Dkt. No. 73 at 34-35.) The undersigned again notes that much of the testimony to which Plaintiff cites is not actually in the record. Nonetheless, even considering all of the testimony described by Plaintiff as true, his retaliation claim based on his change from “C-shift” to first shift fails for the reasons set forth herein-most pertinently because he cannot demonstrate that the decisionmaker responsible for this change, Robert Frost, knew of his protected complaints. While it is clear that Plaintiff believes Mr. Infinger was responsible for his shift change, he provides no evidence of this beyond his own contentions and the record reflects that Mr. Frost was the actual decisionmaker in this instance. (Dkt. No. 73 at 33-35; Dkt. No. 94 at 16.)
III. Workers' Compensation Retaliation
Plaintiff further contends that Defendant changed his shift from “C-shift” to first shift in retaliation for his workers' compensation claim, in violation of South Carolina Code Section 41-1-80. “[T]o prove a [workers' compensation retaliation claim], a plaintiff must establish three elements: 1) institution of workers' compensation proceedings, 2) discharge or demotion, and 3) a causal connection between the first two elements.” Sanders v. Novant Health, Inc., No. 0:20-cv-01287-MGL, 2021 WL 1140222, at *3 (D.S.C. Mar. 25, 2021) (quoting Hinton v. Designer Ensembles, Inc., 540 S.E.2d 94, 97 (S.C. 2000)). Here, Plaintiff does not allege that he was officially discharged or demoted, and nothing in the record indicates otherwise. (See generally Dkt. No. 73.) Rather, Plaintiff argues that he “work[ed] more days, more hours, for less pay” when he was moved from “C-shift” to first shift, and that this move therefore qualifies as a “functional demotion.” (Dkt. No. 73 at 35, citing to Dkt. No. 69-2 at 137.) However, the record makes clear that Plaintiff's shift was changed as the result of his “light duty” restrictions and Defendant's attempt to accommodate them. (Dkt. No. 94 at 14-26.) Section § 41-1-80 of the South Carolina Code does not cover employer decisions regarding leave and/or light duty assignments. Pearson v. Owen Elec. Steel Co. of S.C., No. 3:17-cv-1943-MBS-PJG, 2017 WL 9286996, at *2 (D.S.C. Oct. 6, 2017), adopted, 2018 WL 2018 WL 388000 (D.S.C. Jan. 12, 2018) (“Section 41-1-80 . . . prohibits terminating or demoting an employee in retaliation for filing a workers' compensation claim; it does not address an employer's decisions as to leave or assignment of light duty, or the actual decision to pay or deny the alleged workers' compensation claim.”).
The undersigned also notes that the record does not support an inference of retaliation in this instance. As noted, Plaintiff worked first shift for only two months before he was returned to “C-shift.” (See supra at 30.) Accordingly, the pay disparity on which Plaintiff rests his “functional demotion” claim lasted only a matter of eight weeks. Further, the record reflects that Plaintiffs accommodation liaison, Robert Frost, attempted to remedy this pay disparity for Plaintiff. (Dkt. No. 94 at 16.) These circumstances simply do not suggest that Plaintiffs shift change was retaliatory.
For these reasons, the undersigned recommends that Defendant's Partial Motion for Summary Judgment be granted as to Plaintiffs workers' compensation retaliation claim.
Accordingly, Plaintiff has one remaining cause of action against Defendant: hostile work environment in violation of 42 U.S.C. § 1981. (See generally Dkt. No. 39.)
CONCLUSION
Based on the foregoing, the undersigned recommends that the Court grant Defendant's Partial Motion for Summary Judgment. (Dkt. No. 69.)
IT IS SO RECOMMENDED. -
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).