Buckman v. DeJoy

Full title: Tammy Buckman, Plaintiff, v. Louis DeJoy, Postmaster General, Defendant.

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

Date published: Jul 23, 2024

C. A. 5:22-cv-01019-CMC-KDW (D.S.C. Jul. 23, 2024)

Opinion

C. A. 5:22-cv-01019-CMC-KDW

07-23-2024

Tammy Buckman, Plaintiff, v. Louis DeJoy, Postmaster General, Defendant.

Kaymani D. West, United States Magistrate Judge

REPORT AND RECOMMENDATION

Kaymani D. West, United States Magistrate Judge

Plaintiff Tammy Buckman (“Plaintiff” or “Buckman”) brings this action against her former employer, Defendant Louis DeJoy, Postmaster General of the United States Postal Service (“Defendant” or “USPS”), alleging discrimination in violation of the Rehabilitation Act, the Age Discrimination in Employment Act (“ADEA”), and Title VII of the Civil Rights Act of 1964. Plaintiff includes claims of discrimination, retaliation, hostile work environment, and failure to accommodate. 2d Am. Compl. (“SAC”), ECF No. 16. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a report and recommendation (“Report”) regarding Defendant's Motion for Summary Judgment. ECF No. 57. Having reviewed the Motion and accompanying materials; Plaintiff's Response, ECF No. 61; Defendant's Reply, ECF No. 65; and applicable law, the undersigned recommends Defendant's Motion, ECF No. 57, be granted in part and denied in part as discussed herein.

I. Factual Background ¹

1 As it must, the court considers the facts in the light most favorable to Plaintiff, the nonmoving party. Plaintiff and Defendant have set out their own version of facts they ask the court to consider in ruling on the instant Motion. This Factual Background has been synthesized from the parties' factual presentations to the extent potentially relevant facts are supported by the record. Any potential factual dispute is noted. As appropriate, additional facts are set out in relevant portions of this Report.

A. Plaintiff's employment with USPS

In 2011, Plaintiff began her career with Defendant as a window clerk at the Dixiana, South Carolina Post Office. Pl. Dep. 8-9, ECF No. 61-18.² Plaintiff then transferred to the Assembly Street Post Office in Columbia, South Carolina. Pl. Dep. 9 (no date given). In the latter part of 2018, Plaintiff transferred to the Orangeburg, South Carolina USPS facility as a window clerk. Id. Plaintiff's duties at the Orangeburg facility were those of a window clerk and also included serving the customers in any way they needed. Id. At times Plaintiff was also assigned to “do the back area,” which included acting as a distribution clerk by boxing up mail, throwing mail in bins, and putting mail in place for the mailmen. Id. at 10. Plaintiff indicated she was “[a]bout 50 and a half” years old when she transferred to the Orangeburg facility. Id. at 16. According to Rosalind³Sistrunk, one of Plaintiff's Orangeburg supervisors, other than one employee who was younger, most of the nine individuals she supervised at the time she supervised Plaintiff were “above or around the age of 40.” Sistrunk Dep. 67, ECF No. 61-20 (full transcript); see also ECF No. 57-2 (excerpts provided by Defendant). In addition to Sistrunk Plaintiff was later supervised in Orangeburg by Yolanda Watts. Dan Washington was the Orangeburg Postmaster. Pl. Dep. 10, 15.

2 Defendant provided excerpts from Plaintiff's Deposition Transcript at ECF No. 57-1. Plaintiff has provided the entire transcript at ECF No. 61-18.

3 The first page of her deposition transcript lists Sistrunk's first name as “Rosalind.” The name is spelled “Roselind” at the top of subsequent pages.

B. Chronology of events, EEO actions, and discipline throughout Plaintiff's employment with USPS ⁴

4 Each party's version of supposedly undisputed issues of fact are shaded in an argumentative tone. This chronology endeavors to lay out the factual information provided by each party in a more neutral manner.

On January 26, 2019, Plaintiff's supervisor initiated disciplinary action against Plaintiff for “failing to follow instructions” regarding a specific task that Plaintiff had been assigned. Plaintiff's supervisor, Sistrunk, recommended Plaintiff receive a Letter of Warning. Jan. 26, 2019 Disciplinary Action Request, ECF No. 57-3. In requesting the action, Sistrunk noted Plaintiff's response had been that they were “picking on her because she is new and that [s]he is used to working with parcels from her last position.” Id. at 2. On January 31, 2019, the USPS issued a “letter of warning,” asking Plaintiff to “correct [her] work deficiencies and demonstrate adherence to postal regulations.” The letter also noted, “Future deficiencies will result in more severe disciplinary action being taken against you. Such action may include removal from the Postal Service.” Jan. 31, 2019 Letter of Warning, ECF No. 57-4. Plaintiff declined to sign the letter. Id.

On August 6, 2019, Plaintiff's supervisor, Sistrunk, initiated another disciplinary action against Plaintiff for “fail[ing] to follow instructions” regarding another specific task that Plaintiff had been assigned. Disciplinary Action Request signed Aug. 6, 2019, ECF No. 57-5 at 2. (Although the first page of ECF No. 57-5 is dated August 5, 2018, this appears to be a scrivener's error as the details discussed within took place in 2019.) On August 16, 2019, Plaintiff received notice that, beginning on September 3, 2019, she would be placed on a 14-day suspension for her failure “to discharge [her] assigned duties conscientiously and effectively by delaying performing duties that [she was] instructed to do.” Aug. 16, 2019 Notice of 14-Day Suspension, ECF No. 57-6.

• On February 20, 2020, as part of an arbitration agreement, the 14-day suspension was reduced to a “Seven (7) Day Paper suspension” and held in Plaintiff's file for one year pending “no further discipline of a similar infraction.” Feb. 20, 2020 Arbitration Settlement, ECF No. 57-7.

On December 20, 2019, the USPS issued Plaintiff a letter indicating that she had been absent without leave since December 3, 2019. Dec. 20, 2019 Letter, ECF No. 57-8. The letter required Plaintiff to report for a mandatory interview to discuss the matter on December 27, 2019. She was also to provide any medical documentation she believed supported her absence. Id. The record does not indicate whether Plaintiff appeared at the December 27, 2019 meeting or provided the required documentation.

Plaintiff completed a USPS “Information for Pre-Complaint Counseling” form complaining of age discrimination and retaliation. Stamped “received” by “NEEOISO” on both April 17, 2020 and November 10, 2020, Plaintiff's Complaint related to a March 27, 2020 request for an appointment with an Alternative Dispute Resolution (“ADR”) Specialist. Counselor's Report regarding March 2020 EEO Complaint, ECF No. 57-12 (copy also available at ECF No. 61-1). That “Pre-Complaint,” bearing the case number of “EEO Case No. 4K-290-0067-20,” id., lists several “Comparisons” of times Plaintiff believed she was treated differently from other coworkers. ECF No. 57-12 at 4. Because “management along with [her] coworkers continue[d] to harass [Plaintiff] [she'd] like to have the supervisor and postmaster transferred to another post office.” Id. at 5. The matter was mediated and agreed to the following resolution: “Management agrees to support any E-reassign request from Counselee [Plaintiff] and management also agrees to approve any e-reassign request from Counselee to transfer.” Id. at 8; see also id. at 7-10.

In a letter dated October 27, 2020, USPS, through Sistrunk, notified Plaintiff of a 14-day suspension that was to take effect from November 21, 2020 through December 4, 2020. Oct. 27, 2020 Notice of 14-Day Suspension, ECF No. 61-2. In the letter Plaintiff was advised she was being placed on suspension based on two charges: 1) failure to follow instructions regarding Plaintiff's alleged failure to follow a September 8, 2020 direct order concerning the processing of certain mail; and 2) being AWOL (absent without leave) from September 21, 2020 to October 2, 2020 despite having been advised she did not have adequate vacation time to cover the period. Id. ⁵

5 As discussed within, Plaintiff submits the delayed timing of this Notice of Suspension was in retaliation for her earlier EEO complaint. Pl. Mem. 2.

As detailed in an October 30, 2020 Investigative Memorandum, on October 28, 2020, Postal Inspectors were advised by Sistrunk that the local police had been called in after an “altercation between Clerks Kimberly Dunbar and [Plaintiff].” Oct. 30, 2020 Investigative Mem. Concerning Oct. 28, 2020 Incident, ECF No. 57-9. The Inspectors relayed that “Sistrunk said she saw [Plaintiff] charge towards Dunbar with a pen in her hand.” Id. at 1. Statements from witnesses varied regarding the particulars of the incident. Id. at 1-2. Plaintiff advised Inspectors she believed Dunbar, Sistrunk, and other coworkers were “conspiring against her because they are all friends.” Id. at 2. Plaintiff indicated she walked away from the incident, went outside, and contacted local police. Id. at 2. Local police determined it was in internal matter and did not file a report. Id. at 1. See Pl. Stmt. to Inspectors, id. at 8; statements of others, id. at 3-7; summaries of telephonic interviews; id. at 8-12.

On or about October 29, 2020, Plaintiff filed a “Statement of Noncompliance,” in which she alleged a breach of the settlement agreement she had entered concerning her March 2020 EEO complaint. See Dec. 7, 2020 Ltr. from USPS to Pl., ECF No. 57-12 at 11-14. Plaintiff claimed that she had applied for a transfer in July 2020, August 2020, September 2020, and October 2020, but had yet to receive any transfer. Id. at 11. Plaintiff was informed that her “settlement agreement did not guarantee a transfer to another office.” Id. at 13. Rather, the agreement required management to “support/approve” a transfer request, but no “Orangeburg Post Office officials [had] . . . received a request to support or approve an eReassign transfer from [Plaintiff].” Id. at 13.

On October 30, 2020, Plaintiff made initial contact with the USPS EEO office alleging several incidents of age-based discrimination and retaliation based her prior EEO filing. EEO Dispute Resolution Specialist's (DRS) Inquiry Report for EEO Case No. 4K-290-0018-21, ECF No. 5713 at 1-2. The incidents listed include an allegation that 1) on unspecified dates management had followed her to the bathroom and on her breaks; 2) on unspecified dates Plaintiff was asked to assist a coworker at the window and then that coworker was permitted to leave and cause Plaintiff to need to work without help; 3) on October 28, 2020, a coworker threatened Plaintiff and management did not address the threat; 4) after the October 28, 2020 altercation the coworker was permitted to remain at work while Plaintiff was required to go home; 5) on October 28, 2020, management instructed other coworkers to write statements on behalf of the coworker who had threatened Plaintiff; and 6) on unspecified dates and ongoing, management permitted coworkers to harass and bully Plaintiff. Id. at 1.

• On January 28, 2021 Plaintiff completed an EEO Complaint of Discrimination in this same matter. Jan. 28, 2021 Formal EEO Complaint of Discrimination, ECF No. 57-13 at 7. In addition to complaining of age-based discrimination, the January 28, 2021 EEO Complaint also “checked the box” to indicate Plaintiff was complaining of sex-based discrimination. Id. at 7. (The written portion of the EEO Complaint complains of a hostile work environment. It does not specifically detail particulars of alleged age- or sex-based discrimination.)

• On April 19, 2021, the USPS EEO completed its Investigation Report as to Plaintiff's allegations in EEO Case No. 4K-290-0018-21. EEO Investigation Report, including

various statements, ECF No. 57-13 at 9-24. (This Report indicates Plaintiff's Case No. 4K-290-0018-21 was filed on February 12, 2021.) The USPS EEO issued its Final Agency Decision in this matter on June 25, 2021. ECF No. 57-13 at 25-46. The USPS EEO concluded that the evidence “does not support a finding that [Plaintiff] was subjected to discrimination as alleged.” Id. at 44.

On November 12, 2020, the USPS gave Plaintiff notice of another 14-day suspension for the October 28, 2020 incident, in addition to an infraction of unsatisfactory work performance. Nov. 12, 2020 Ltr., ECF No. 57-10 at 2-3 (listing Charge 1 as “Unsatisfactory Work Performance” relating to selling single stamps on October 28, 2020; and Charge 2 as “Improper Conduct” relating to October 28, 2020 “unprofessional behavior when [Plaintiff] raised [her] writing pen as a weapon in a dispute between [her] and [her] coworker Mrs. Dunbar.”). Although the copy of the letter in the record is unsigned, it includes a signature block for Sistrunk and a blank for Plaintiff to sign acknowledging receipt. Id. at 3.

• A January 7, 2021 email indicates this suspension was “reduced to a Letter of Warning for 6 months at Step 3.” Jan. 7, 2021 email, ECF No. 57-10 at 1.

On January 6, 2021, the USPS gave Plaintiff notice of a seven-day suspension for unsatisfactory attendance. Jan. 6, 2021 Ltr. ECF No. 57-11 at 1. The letter indicates the suspension is to begin “effective January 23, 2021 and she is to return to work on her first scheduled day following January 29, 2021. In the event a grievance is filed the suspension will not take effect until the grievance is resolved. Id. The “Unsatisfactory Attendance” issues relate to Plaintiff's having failed to call and report her absence from work on November 17, 18, 20, and 21, 2020 (eight hours each day). Again, the copy of the letter in the record is unsigned, but includes a signature block for Sistrunk and a blank for Plaintiff to sign acknowledging receipt. Id.

As detailed above, on January 28, 2021 Plaintiff completed an EEO Complaint of Discrimination in EEO Case No. 4K-290-0018-21. Jan. 28, 2021 Formal EEO Complaint of Discrimination, ECF No. 57-13 at 7. This bears the same case number as her October 30, 2020 Initial EEO Contact. See ECF No. 57-13 at 1.

On March 23, 2021,⁶ Plaintiff sustained a work-related injury to her right ankle and foot after she was hit by a pallet jack being pushed by a coworker, Dunbar. Notice of Traumatic Injury on Mar. 23, 2021, ECF No. 57-14 (form indicates notice was received on April 20, 2021; form completed on April 21, 2021); Pl. Dep. 18-19 (indicating Dunbar hit her with a “forklift with boxes on it”). Plaintiff testified that she “[i]mmediately” went to Supervisor Watts and reported the incident. Pl. Dep. 19-20. Plaintiff went to Doctors Care that day (March 23, 2021). Her diagnosis was listed as “rt. foot & ankle injury contusion, pain.” Mar. 23, 2021 Work Status Report, ECF No. 57-15 at 2. Plaintiff was treated with “Over Counter Meds.” Her work status was listed as “Restricted Duty,” and she was listed as being able to sit, grasp, reach above shoulder and beyond forearm limits “often,” walk or stand “rarely,” and bend/squat/twist/crawl/climb/work on heights “none.” Plaintiff was restricted to light lifting, defined as lifting 10 pounds frequently and 20 pounds maximum. Id. Plaintiff was to return for a follow-up appointment on March 30, 2021. Id.

6 Plaintiff has also presented deposition testimony from Sabrina Bucket, who had been Plaintiff's coworker when Plaintiff worked for USPS in Columbia, SC. Bucket Dep., ECF No. 61-19. Bucket relays her recollection of Sistruck's going to the Columbia office at which she worked and having a conversation with Bucket's supervisor in Columbia, Shermel Mungin. Bucket Dep. 19-20. Although Bucket did not recall the precise date in 2021 that this conversation took place, see id. at 21-22, because it included discussion of Plaintiff's on-the-job injury it would have taken place at some time on or after March 23, 2021. The details of that conversation are discussed below.

On March 30, 2021, Plaintiff's physician at Doctors Care issued another Work Status Report. Mar. 30, 2021 Work Status Report, ECF No. 57-15 at 1. Her diagnosis was listed as “contusion of [right] ankle, injury of [right] ankle, contusion of [right] foot, and “injury of [right] foot.” Her work status was again listed as “Restricted Duty”; she was treated by “anti-inflammatory meds.” Plaintiff was listed as being able to sit “often,” walk or stand “rarely,” and bend/squat/twist/crawl/climb/work on heights “none.” No limits were listed as to Plaintiff's use of her upper extremities. Plaintiff was restricted to light lifting, defined as lifting 10 pounds frequently and 20 pounds maximum. She was to return for follow up on April 6, 2021. Id.

Also on March 30, 2021, an “Offer of Modified Assignment (Limited Duty)” by USPS was written for Plaintiff. Signed by Plaintiff's supervisor, Sistrunk, the offer was for a “modified-Sales/Service Distribution Assoc[iate],” and was related to Plaintiff's March 23, 2021 on-the-job injury. The offer included the following duties: write certifieds, up to 3 hours; box mail, up to 3 hours, front window, up to 2 hours. Mar. 30, 2021 Offer of Modified Assignment, ECF No. 5716. The Offer indicates it is “Effective/Available” as of March 30, 2021. The record copy is signed by Sistrunk; the space for Plaintiff to sign is blank. Id. The record is unclear as to how Plaintiff responded to this Offer.

On April 1, 2021, the USPS, through Supervisor Watts, issued Plaintiff an “Absence Notification Letter/Request for Investigative Interview (II).” Apr. 1, 2021 Absence Notification Ltr., ECF No. 57-18. The letter was sent by first class mail and includes both priority tracking and certified return receipt numbers. Id. The letter noted Plaintiff's “continued absence from work” beginning “on or about March 29, 2021” and indicated “[m]edical documentation is required at this time.” Id. The letter provided details regarding what the medical documentation needed to contain and indicated her “failure to submit medical documentation has prompted this action that could result in disciplinary action up to and including removal from the Postal Service.” Id. Plaintiff was advised that, if the required documentation was not received by April 5, 2021, Plaintiff was to appear for an investigative interview on April 6, 2021, at Watts' office (or by telephone if Plaintiff physically was unable to attend). Id. Plaintiff was to contact Watts “immediately upon receipt of this letter” if she had questions or concerns. Id. In the Final Agency Decision (“FAD”) it is noted, “[Plaintiff] avers she did not know about the investigative interview [set for April 16, 2021], [and] [s]he states she never received the Notice of Removal.” FAD, ECF No. 57-22 at 14.

The record includes an April 6, 2021 auto-generated email indicating Plaintiff had requested time off from work from April 6, 2021 through April 23, 2021. Apr. 6, 2021 email, ECF No. 618. In response to questions from Plaintiff's counsel, Sistrunk explained that the request made to the “800 number” was a request for 184 hours-leave that Plaintiff did not have available. Sistrunk Dep. 35-36. Sistrunk indicated the call to the 800-number was intended to request time off but was not the usual manner of requesting leave. Id.

On April 23, 2021, USPS, through Sistrunk, sent Plaintiff a letter regarding a “job offer.” April 23, 2021 Ltr., ECF No. 61-11. The letter indicates it encloses a “job offer based upon work restrictions provided from the medical of Dr. Jolles dated March 30, 2021.” Id. The copy of the letter provided by Plaintiff at ECF No. 61-11 does not include any enclosures. The letter continues, “A response is required by April 29, 2021. Failure to do so will be considered as a refusal and may jeopardize compensation benefits from Department of Labor.” Id. (emphasis added). Plaintiff is instructed to “use return envelope to provide back to us by April 29, 2021.” Id.

On April 26, 2021, USPS, through Supervisor Sistrunk,⁷ issued Plaintiff a “Notice of Removal” informing her that she was being removed from the Postal Service “effective no sooner than thirty (30) days from receipt of this notice.” Apr. 26, 2021 Notice of Removal, ECF No. 57-19 at 1. The Notice listed two Charges as the reasons for the Notice: (1) “Unsatisfactory Attendance” relating to Plaintiff's having been “absent from assigned duties from March 29, 2021 through April 5, 2021 without permission” and without having provided documentation as to the unscheduled absences; and (2) “Failure to Follow Instructions” indicating Plaintiff did not follow the instructions provided in the April 1, 2021 letter that required that Plaintiff provide medical documentation regarding her absences and to appear for an Investigative Interview if she did not provide the documentation. Id. (emphasis added). The Notice further indicated tracking records showed the instructions had been delivered to Plaintiff's address of record on April 2, 2021. Id. The Notice informed Plaintiff of her right to file a grievance within 14 calendar days of her receipt of the letter. Id. at 2. A “Step 2 Decision” email dated July 11, 2021, indicates tracking information shows the Notice of Removal had been delivered to Plaintiff's mailbox on April 27, 2021 (which would give Plaintiff until May 11, 2021, to file a grievance). ECF No. 57-20 at 2.

7 The copy of the letter provided includes a signature space for Sistrunk and a space for Plaintiff to sign noting her receipt but includes no signature by Sistrunk or Plaintiff. ECF No. 57-19 at 2.

The record also includes two May 2021 Offers of Modified Assignments for Plaintiff related to her March 23, 2021 on-the-job injury. On May 11, 2021, an Offer of Modified Assignment was signed by Supervisors Watts and Sistruck. May 11, 2021 Offer, ECF No. 17 at 1. That Offer for a “Modified Sales and Service Associate” was “effective/available” as of May 11, 2021. It listed duties as “mailing packages, selling stamps, money orders” up to eight hours; “casing PO box mail, retrieving letters and pkgs. under 20 lbs.” for up to three hours; “boxing-letters and flats” for up to six hours; and “sorting small packages” for up to six hours. Id. These duties would require a light work strength level for four hours; no greater than 20 lbs. of force for two hours, forty minutes to eight hours/day; and no greater than 10 lbs. of force for five hours twenty minutes for eight hours/day. Id. Although there is no date beside her signature, Plaintiff signed the form and indicated she “denied this form because the restrictions are different than what the doctor say[s].” Id. On the second page of this Offer under the “Documentation” section, it indicates the “job offer is a non-temporary position which will remain as long as the restrictions apply or until medical changes.” Id. at 2. The offer is “based upon medical dated: 05/07/2021 which indicates a follow up in 6 weeks (on or before 6/18/2021).” Further, the offer indicates a “stool will be provided during all duties except boxing PO box mail and sorting parcels.” Id.

The record contains another Offer of Modified Assignment dated May 13, 2021, and related to the March 23, 2021 injury. May 13, 2021 Offer, ECF No. 57-17 at 3-4. This offer is for a “Modified Sales and Services Associate,” and indicates it is “effective/available” as of May 14, 2021. Id. at 3. The duties include “mailing packages under 10 lbs., selling stamps, money orders” for up to 8 hours and “casing PO box mail, retrieving letters and pkgs under 10 lbs” for up to 3 hours. Id. The average time spent walking, pushing, pulling lifting 10 lbs. weight limit, and squatting, kneeling, and climbing is listed at 3 hours; standing is for “no more than 10 minutes at a time-stool provided.” Id. This offer was signed by Watts on May 21, 2021⁸and signed as accepted by Plaintiff on May 21, 2021. Id. The second page of the Offer indicates it is for a nontemporary position that will “remain as long as the restrictions apply or until medical changes.” Id. at 4. The Offer is based on documentation dated May 13, 2021 for a May 7, 2021 medical visit that includes a follow-up appointment in 6 weeks. Id.

8 Although the date “5/11/2021” is typed in the “date signed” box, a handwritten notation of “5/21/21” is found beside Watts' signature. ECF No. 57-17 at 3. (The first line of the Offer lists “Date of Offer” as 05/13/2021.” Id.).

Plaintiff had not filed a grievance regarding the April 26, 2021 Notice of Removal by her May 11, 2021 deadline. See Step 2 Decision email, ECF No. 57-20 (indicating Grievance was not filed until June 6, 2021). In her deposition, Plaintiff indicated May 28, 2021 was her last day of employment with USPS. Pl. Dep. 75, 78.⁹

9 In her opposition memorandum Plaintiff indicates her “employment officially ended in August 2021.” Pl. Mem. 5 n.26 (citing no authority for this statement).

In the July 11, 2021 decision regarding Plaintiff's Grievance, it is noted that the American Postal Workers Union (“Union”) had begun requesting information from the USPS regarding Plaintiff on June 1, 2021. ECF No. 57-20 at 2. The Union filed a grievance on Plaintiff's behalf on June 6, 2021. Id. at 1. Management denied the grievance because it was untimely filed and because it was meritless as Plaintiff “undermined management's investigation into her status as she failed to report to two Investigative Interviews.” ECF No. 57-20 at 3. Management further noted Plaintiff's request for leave was not submitted until April 8, 2021 and the Physician's Statement provided with the grievance is dated April 13, 2021, which is after the March 29-April 5, 2021 period at issue. Id.

On August 6, 2021, Plaintiff filed another “EEO Complaint of Discrimination in the Postal Service,” alleging discrimination and retaliation based on age and disability. Aug 6, 2021 EEO Compl., ECF No. 57-21 at 1 (EEO Case No. 4G-290-0050-21). Plaintiff's Complaint alleges she experienced acts of discrimination on “a lot of dates, [e]specially on March 23, 2021 Id. She names Watts, Sistruck, and Postmaster Don Washington as the persons whom she alleges took discriminatory actions against her. Id. Although portions of her handwriting are difficult to decipher, her written narrative regarding her allegations provides as follows:

Management tr[ies] to act like I don't know my job because I am older and management does not want me there [at] the Orangeburg Post Office and want[s] me to be fired completely from the Postal Services and [are] blocking me and stopping me from transferring to another Post Office. Also, management think[s] Kim faster [continued on another page]-Management and Postmaster think because Kim Dunbar is younger than me, she must be faster than me but that not true. It is because Management and Postmaster are best friends with Kim Dunbar Clerk. Also Kim Dunbar Window Clerk in the past [has] cursed me out numerous times in front [of] customers and coworkers. And management [has] done nothing about [it]. Instead Managements and Post master Don Washington and clerks come together against me by bull[y]ing me and try to intimidate[] me because [of] prior or past EEOs I [did] against them.

On March 23, 2021 Management failed to give me the proper paperwork that I needed when I was injured at work from the coworker window clerk Kim Dunbar and also Management failed to give me fair representation concerning my injuries and not getting my proper pay from being out of work and not letting me work on work comp. Instead Management let me clock in, they would meet up to the time clock every morning to tell me it is no work for you today you need [to] leave they will call, never call[ed] me to work. That is not right. When I was injured at work. It was not my fault.

Aug. 6, 2021 EEO Compl., ECF No. 57-21 at 1, 6-7. The EEO ADR Specialist's report (also called “Counselor's Report”) for Case 4G-290-0050-21 is found at ECF No. 57-21 beginning at page 8.¹⁰ The August 11, 2021 Report of EEO Dispute Resolution Specialist Kathy Johnson notes Plaintiff alleges claims based on her age (DOB 1968), physical disability (Achillies tendinitis), and retaliation (as to prior activity 4K-290-0018-21) and lists the Discrimination Claims as follows:

10 Although the Counselor's Report includes a footer indicating it comprises 51 pages, only pages 1 through 6 are provided in the record. ECF No. 57-21 at 8-13.

The Counselee alleged discrimination based on age, physical disability and retaliation when on or about 1) 3/23/2021 the Counselee sustained an on the job injury; 2) 4/14/2021 management did not provide the Counselee with the proper paperwork for her on the job injury, fair representation regarding the injury and failed to pay the Counselee correctly; 3) 4/26/2021 the Counselee was issued a Notice of Removal for Unsatisfactory Attendance and Failure to Follow Instructions.

ECF No. 57-21 at 8. Counselor Johnson indicated she had inquired of Plaintiff, Sistrunk, and Postmaster Washington but had been unable to resolve the matter through mediation. See id. at 10.

EEO Complaints Investigator Andy Smith issued an Investigative Report on December 1, 2021. Investigative Report, ECF No. 57-21 at 14-45. The report includes a detailed investigative summary, often referring the reader to various affidavits. (The affidavits are not included in the record.)

On February 10, 2022, the USPS issued its FAD in Plaintiff's EEO Case No. 4G-290-0050-21. FAD, ECF No. 57-22. In the 27-page FAD, the Agency reviewed Plaintiff's claims and applicable law. Based on information gathered during its investigation, the FAD determined the evidence did not support a finding that Plaintiff was subjected to any of the alleged discrimination. Id. Plaintiff exhausted administrative remedies and filed her Complaint in this court on March 30, 2022. ECF No. 1. She filed the operative Second Amended Complaint on July 20, 2022. ECF No. 16.

II. Standard of Review

The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).

III. Analysis

Plaintiff's Second Amended Complaint includes causes of action for retaliation and a hostile work environment in violation of three federal statutes: the ADEA, Title VII, and the Rehabilitation Act. She also claims discrimination in violation of the ADEA and the Rehabilitation Act. Her Rehabilitation Act claims also include a failure-to-accommodate claim. Defendant seeks summary judgment as to all of Plaintiff's claims; alternatively, Defendant seeks summary judgment as to the recovery of certain types of damages.

A. Defendant's objection to certain evidence proffered by Plaintiff

1. Challenge to Plaintiff's “unsupported allegations”

On Reply Defendant proffered objections to certain evidence/arguments submitted by Plaintiff. Reply 1-4. First, Defendant submits some of Plaintiff's statements in the “factual background” portion of her opposition memorandum may not be considered to the extent they are nothing more than speculative assertions that are unsupported by actual evidence. Id. at 1-3. For example, Defendant appropriately cites to law that a plaintiff cannot create issues of fact to survive summary judgment through Plaintiff's “subjective assertions and unsupported speculation[.]” Id. at 1-2 (quoting Gilchrist v. Parth's Inc., C/A No. 4:10-3034-JMC-SVH, 2011 WL 6842992, at *4 (D.S.C. Oct. 3, 2011), report and recommendation adopted, 2011 WL 687734 (Dec. 29, 2011)). Defendant points to portions of Plaintiff's “factual background” that state, for example, that her supervisors “began searching for reasons to discipline Plaintiff to make it appear[] as if she was not meeting her employer's expectations in an effort to terminate her employment.” Id. (citing ECF No. 61 at 2).

The court has not, and does not, accept any party's argumentative factual recitation as “facts” that will, themselves, defeat (or establish) summary judgment. Rather, the court will consider all available supported evidence in the light most favorable to Plaintiff when evaluating whether any of Plaintiff's claims should survive summary judgment. “In determining whether a genuine issue of material fact has been raised, we must construe all inferences in favor of Plaintiffs.” Biondo v. Dep't of Navy, 928 F.Supp. 626, 629 (D.S.C. 1995) (citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 251-52 (1986)), aff'd, 86 F.3d 1148 (4th Cir. 1996). A more definitive ruling on Defendant's first challenge is not required at this time.

2. Challenge to affidavits

Plaintiff's opposition attaches nearly identical affidavits from Ernistine Pearson (Plaintiff's mother) and John Buckman (Plaintiff's husband). See Pearson Aff., ECF No. 61-9; J. Buckman Aff., ECF No. 61-10. Each of these affidavits state that, “[o]n at least two occasions in late March and early April 2021[,]” the affiants went with Plaintiff to the Post Office and “stayed in the car . . . while [Plaintiff] walked inside the Post Office with [medical records].” ECF No. 61-9 at ¶¶ 7-8; 61-10 at ¶¶ 7-8. The affidavits go on to state that, after Plaintiff “returned to the car[,]” Plaintiff “told [the affiants] her supervisor refused to meet with her. Further, no one would take the documents from her to leave with her supervisor.” ECF No. 61-9 at ¶ 9; 61-10 at ¶ 9.

Defendant objects to the use of these affidavits to the extent that they contain inadmissible hearsay. Rule 56(c)(4) provides that affidavits used at summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). The court agrees with Defendant that, to the extent these affidavits are relaying information Plaintiff told them someone had told her they are inadmissible hearsay. Those portions of the affidavits will not be considered.¹¹

11 Defendant has not lodged any other evidentiary objections. Inadmissible evidence will not be considered on summary judgment. Giles v. Nat'l R.R. Passenger Corp., 59 F.4th 696, 704 (4th Cir. 2023). Nonetheless,

“[i]f a party fails to object to the inadmissibility of evidence submitted by its opponent in the summary judgment proceedings, the court may consider the evidence.” 11 Moore's Federal Practice - Civil § 56.91[7] (2024). This is because “[t]he failure to raise the issue . . . constitutes a waiver of the objection for purposes of summary judgment.” Id.; accord Munoz v. Int'l Alliance of Theatrical Stage Emp. and Moving Picture Machine Operators, 563 F.2d 205, 214 (5th Cir. 1977) (“Inadmissible material that is considered by a district court without challenge may support a summary judgment.”); . . .

Ogunsula v. Warrenfeltz, No. CV ELH-20-2568, 2024 WL 2155054, at *8 (D. Md. May 14, 2024).

B. Framework for considering Title VII, ADEA, and Rehabilitation Act claims

Historically, a plaintiff may demonstrate a violation of Title VII, the ADEA, or the Rehabilitation Act through direct or indirect evidence or by using the familiar burden-shifting paradigm set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Regarding the direct/indirect method of proof, the Fourth Circuit has explained the following in the Title VII context:

To overcome summary judgment based upon direct or indirect evidence of discrimination, a plaintiff “must produce direct evidence of a stated purpose to discriminate and/or indirect evidence of sufficient probative force to reflect a genuine issue of material fact.” Goldberg v. B. Green & Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988). The evidence must directly reflect the alleged discriminatory attitude and “bear directly on the contested employment decision.” Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995), abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003). Put differently, the plaintiff “must produce evidence that clearly indicates a discriminatory attitude at the workplace and must illustrate a nexus between that negative attitude and the employment action.” Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999), abrogated on other grounds by Desert Palace, 539 U.S. at 10102. Although derogatory statements can constitute direct evidence of discrimination, a stray or isolated remark is not sufficient, and “[u]nless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of [discrimination].” Id. (alteration in original) (quoting McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1991)). Similarly, the discriminatory comments cannot be remote in time from the adverse action. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir. 1994).

Rayyan v. Va. Dep't of Transp., 719 Fed.Appx. 198, 202 (4th Cir. 2018). In other words, discriminatory statements standing alone are insufficient to state a claim; a plaintiff must also show “a nexus between the discriminatory statements and the employment action.” See Hill v. Lockheed Martin Logistics Mgmt., Inc., 314 F.3d 657, 665 (4th Cir. 2003); see also Martin v. Scott & Stringfellow, Inc., 643 F.Supp.2d 770, 782 (E.D. Va.), aff'd, 352 Fed.Appx. 778 (4th Cir. 2009) (“Even if an apparently discriminatory statement exists, it does not create direct evidence of discrimination unless it has a nexus with the employment decision.”). Direct evidence requires “‘conduct or statements' that both (1) ‘reflect directly the alleged discriminatory attitude,' and (2) ‘bear directly on the contested employment decision.'” Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th Cir. 2013).

When direct evidence is lacking, a plaintiff traditionally may produce circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas, 411 U.S. at 802 (Title VII); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-42 (2000) (applying McDonnell Douglas standard to ADEA claim); Hannah P. v. Coats, 916 F.3d 327, 342 (4th Cir. 2019) (applying McDonnell Douglas standard to Rehabilitation Act claims). Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the Title VII plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Importantly, however, in ADEA cases brought against federal employers such as Defendant, a plaintiff may be entitled to certain remedies if he or she shows that “age discrimination plays any part in the way a decision is made[.]” Babb v. Wilkie, 589 U.S. 399, 402 (2020); see id. at 414 (noting “injunctive or other forward-looking relief” may be available in this instance). To obtain all potentially available remedies, “including hiring, reinstatement, backpay, and compensatory damages,” however, a plaintiff must “show that age was a but-for cause of the challenged employment decision.” Id. As discussed more fully within, the Supreme Court's guidance in Babb may impact the analysis of Plaintiff's ADEA claims, particularly including the causation analysis at the prima facie stage and beyond.

While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the “McDonnell Douglas burden-shifting framework that says ‘a plaintiff must always introduce additional, independent evidence of discrimination.'” Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 220 (4th Cir. 2016) (quoting Reeves, 530 U.S. at 149)). “To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's non-retaliatory justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual.” Id. at 220. The court is ever mindful, too, that the burden-shifting inquiry is “meant only to aid courts and litigants in arranging the presentation of evidence.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006) (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988)).

Here, Plaintiff asserts she has sufficient direct evidence for some claims to survive summary judgment. Both parties also analyze all claims using the McDonnell Douglas burdenshifting analysis. The court will consider each claim in turn.

C. ADEA claims

Under the ADEA's federal-sector provision, which covers the USPS, “[a]ll personnel actions affecting [federal] employees or applicants for [federal] employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). As Defendant noted on page 10 of its memorandum, the Supreme Court held in 2020 that this federal-section provision “demands that personnel actions be untainted by any consideration of age.” Babb, 589 U.S. at 402. “If age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination.” Id. As a result, at least with respect to liability, a federal employee alleging discrimination under the ADEA need only show that age discrimination played “any part” in the way that the federal employer made a personnel decision. Id. The Supreme Court made clear, however, that to obtain full relief-as differentiated from the proof required to establish liability-more was required. Id. To obtain full relief, including “hiring, reinstatement, backpay, and compensatory damages,” a plaintiff still must show that discrimination was the “but-for cause of the challenged employment decision.” Babb, 589 U.S. at 406. Consequently, to obtain all forms of relief under the ADEA, a plaintiff must show that “a personnel action would have been different if age had not been taken into account.” Id. at 407. Where a plaintiff can show only that discrimination was the but-for cause of differential treatment, but not the but-for cause of an employment decision, the plaintiff may be entitled to “injunctive or other forward-looking relief.” Id. at 414.

While Defendant notes this revised analysis of certain claims brought by federal employees, Defendant offers no discussion of whether this analysis impacts the application of the familiar McDonnell Douglas burden-shifting standard to Plaintiff's ADEA claims in considering liability.¹²Nor does Defendant further reference the distinction between considering liability at the summary-judgment stage and considering the type of damages that Plaintiff may be able to recover. Plaintiff makes no mention of Babb and does not argue that the McDonnell Douglas framework is impacted in any manner.

12 Defendant first argues Plaintiff cannot establish age-based discrimination using direct evidence. Def. Mem. 10-12. As Plaintiff has not challenged this portion of Defendant's Motion, to the extent Plaintiff seeks to proceed using direct evidence to establish an ADEA-based claim, she has waived such argument. See Eady v. Veolia Transp. Services, Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”).

Certainly it is not the court's place to make legal arguments for either side. The undersigned is unaware of any controlling Supreme Court or Fourth Circuit authority that addresses and decides whether the complete McDonnell Douglas framework remains appropriate to decide liability for federal-employee-brought claims in the wake of Babb. However, the court notes that, on remand from the Supreme Court, the Eleventh Circuit noted that, “[w]ithout quite saying as much, then, it seems that the Supreme Court accepted Babb's argument ‘that the District Court should not have used the McDonnell Douglas framework.'” Babb v. Sec'y, Dep't of Veterans Affs., 992 F.3d 1193, 1204 (11th Cir. 2021) (quoting Babb, at 589 U.S. at 403). Later decisions by the Eleventh Circuit have found Babb did not disturb the use of the McDonnell Douglas prima facie factors in considering whether a plaintiff had established the preliminary portion of his claim using circumstantial evidence. See Lewis v. Sec'y of U.S. Air Force, No. 2012463, 2022 WL 2377164, at *10 (11th Cir. June 30, 2022). However, the Eleventh Circuit further explained that, post-Babb “a federal sector employee alleging Title VII¹³and ADEA claims must still establish a prima facie case that a decision was not ‘made free from any discrimination'” Id. See Young v. Wormuth, No. 4:21-CV-00085, 2023 WL 2722616, at *7-8 (E.D. Va. Mar. 30, 2023) (discussing Babb's impact on the causation requirement in federal-sector ADEA claims). The undersigned agrees with Young that the use of the pretext portion of the analysis potentially is at odds with a government employee's being able to demonstrate ADEA-based liability by showing age played “any part in the way a decision was made.” Questions of what type of damages may be recoverable, though, may turn on whether Plaintiff can also establish the but-for causation associated with the pretext analysis.

13 On remand, the Eleventh Circuit found the revised Babb analysis for claims by government employees also applied to Title VII claims. Babb, 992 F.3d 1193. The undersigned is aware of no controlling Fourth Circuit precedent that has considered this issue in the Title VII context, nor has either party referenced any such precedent.

In any event, the court first considers whether Plaintiff has set out a prima facie case of age-based discrimination in violation of the ADEA.

1. ADEA discrimination claim: prima facie case

To establish a prima facie case of discrimination under the ADEA, Plaintiff must demonstrate the following: (1) she was at least 40 years of age; (2) she was performing her job in accordance with her employer's legitimate expectations; (3) she was subjected to an adverse employment action; and (4) she was replaced by or treated less favorably than “a substantially younger individual with comparable qualifications.” Walton v. McPherson, No. 2:18-CV-1568-RMG-MHC, 2020 WL 7647451, at *5 (D.S.C. Nov. 10, 2020) (quoting Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019), report and recommendation adopted, No. CV 2:18-1568-RMG, 2020 WL 7258231 (D.S.C. Dec. 10, 2020), affd sub nom. Walton v. Harker, 33 F.4th 165 (4th Cir. 2022). Some courts have phrased the fourth element as requiring a prima facie showing that the employee was “discharged under circumstances that raise a reasonable inference of unlawful discrimination.” Brown v. City of Columbia, No. CA 3:10-2860-JFA-PJG, 2012 WL 3835389, at *2 (D.S.C. July 19, 2012), report and recommendation adopted, No. 3:10-CV-2860-JFA, 2012 WL 3838109 (D.S.C. Sept. 4, 2012).

Defendant concedes Plaintiff is over 40 years of age and her termination is an adverse employment action.¹⁴ Defendant submits, however, that Plaintiff cannot establish she was meeting her employer's legitimate expectations at the time of her termination and that she has not provided evidence that she was treated less favorably or replaced by a substantially younger comparator. Def. Mem. 12.

14 In opposing this portion of the summary judgment motion Plaintiff focuses on her termination as the adverse action at issue. Pl. Mem. 8. Plaintiff also submits that the “treatment by her supervisors and coworkers” were also discriminatory adverse actions but submits she only need show one adverse action to establish her prima facie case. Id. at 8 n.29. As Plaintiff offers no further analysis of how any other actions would be considered adverse for purposes of her discrimination claim, the court need not consider them further.

Regarding the second element, Defendant looks to the Notice of Removal, ECF No. 5719, in which USPS indicated Plaintiff was being terminated for failure to provide documentation regarding work absences and failure to follow instructions. In response, Plaintiff submits there is evidence she was meeting expectations. She notes that, as of January 8, 2021, she had no active disciplines for attendance-related issues (citing ECF No. 61-14). Plaintiff also looks to deposition testimony of Sabrina Bucket, who previously had worked with Plaintiff at a different USPS location. Bucket Dep. 13-14. Bucket testified that Plaintiff was “always attentive,” “always in attendance,” and “[got] the job done. Pl. Mem. 8-9.

Bucket was not Plaintiff's supervisor. Her general testimony regarding her opinion of Plaintiff's performance is not sufficient to satisfy this portion of the prima facie case. See generally, King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (in Title VII context, noting opinions of coworkers as to plaintiff's performance were insufficient). Further, that Plaintiff did not have any active attendance-related disciplines as of January 2021-several months before the April 26, 2021 Notice of Removal was issued-does not suffice to satisfy this portion of the prima facie case either.

However, other portions of Bucket's testimony are compelling and convince the court that Plaintiff can show the performance aspect of her prima facie case. Bucket testified as follows:

Q: While you were in -- working at the Columbia office, did you ever hear a conversation between management where they instructed each other not to hire Ms. Buckman or spoke, you know, poorly about Ms. Buckman?

A: Absolutely, yes, I did.

Q: Are there any that you remember that you can tell me about?

A: I remember Tammy's supervisor. I think her name was Ms. Rosalind at the time. She came from Orangeburg, and she came to my office. And I thought she was a customer at first, but, when she did come in, she came to speak with my supervisor, who name is Shermel Mungin. And they were talking about Ms.

Tammy, about the injury she sustained, and the supervisor needed some assistance of how to get rid of Ms. Buckman, basically, but to kind of like clean it up on management's side but also to make it seem as if Ms. Buckman either resigned or failed to report to her job, pretty much. I remember that day.

Bucket Dep. 19-20 (emphasis added).¹⁵As the Fourth Circuit noted in Warch v. Ohio Casualty Insurance Co., 435 F.3d 510, 517 (4th Cir. 2006), the McDonnell Douglas inquiry is flexible and “meant only to aid courts and litigants in arranging the presentation of evidence.” Relevant to this “expectations” prong of a prima facie analysis, the Warch court was “cognizant of the danger that courts might apply the ‘expectations' or ‘qualification' element of the prima face too strictly in some cases, resulting in the premature dismissal of potentially meritorious claims of unlawful discrimination” and used the following hypothetical from Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000), to illustrate:

In the Cline hypothetical, a truck driver who loses her driver's license is terminated. A narrow application of the “expectation” or “qualification” element would appear to foreclose the driver from proving her prima facie case, since with no driver's license she would not be able to show that she met the job qualifications or legitimate expectations of her employer for a position as truck driver. Yet, even though the driver's case would never get past the prima facie stage, the employer could have still used the loss of the license as a pretext for illegal discrimination. Evidence tending to show this pretext might be that similarly situated men who lost their licenses were not terminated but, instead, were temporarily suspended until they received new licenses or were transferred to other jobs within the company.

435 F.3d at 516. The Warch court rejected Cline 's remedy to this problem, which was to look at whether an employee met her employer's legitimate expectations prior to the events that sparked termination. Id. However, the Fourth Circuit agreed that truck driver was able to satisfy the third prong of the prima facie case, finding Plaintiff had created an issue of fact as to whether the expectation of a driver's license was simply a “sham designed to hide the employer's discriminatory purpose” and, thus, created an issue of fact as to whether this expectation was “legitimate.” See id. at 517. See also Brown v. City of Columbia, No. 3:10-2860, 2012 WL 3835389 at *3 n. 3 (D.S.C. July 19, 2012) (citing Warch and addressing prima facie elements and pretext together where the employer's stated reason for terminating plaintiff was poor work performance), adopted by 2012 WL 3838109 (D.S.C. Sept. 4, 2012). Here, Plaintiff has set out an issue of fact as to whether she was meeting Defendant's legitimate expectations at the time of her termination. Therefore, summary judgment is not appropriate on the expectations prong of Plaintiff's prima facie case.

15 As noted above, Defendant has not objected to the consideration of Bucket's testimony. In discussing the testimony in connection with the direct-evidence argument, Defendant points out that Bucket did not know the date of the conversation between Sistrunk and her supervisor, other than to testify it was “in 2021.” Reply 7. However, the court notes the testimony references Plaintiff's injury, which was sustained on March 23, 2021. In her deposition, Sistrunk denies telling a Columbia supervisor that Plaintiff was a bad worker or advising that Plaintiff should not be hired because she was about to be terminated. Sistrunk characterized her meeting with a Columbia supervisor as having related to her “trying to assist [Plaintiff] with relocating.” Sistrunk Dep. 61, ECF No. 61-20.

The prima facie analysis does not end here, however. Construing all evidence in Plaintiff's favor, she has not presented evidence that her termination related to her age because she has not shown any evidence that she was replaced by or treated less favorably than “a substantially younger individual with comparable qualifications,” Walton v. McPherson, 2020 WL 7647451, at *5, nor has she demonstrated she was “discharged under circumstances that raise a reasonable inference of unlawful discrimination.” Brown, 2012 WL 3835389, at *2.¹⁶To the extent Plaintiff looks to the testimony from Bucket to establish a “reasonable inference of unlawful discrimination,” the argument misses the mark because nothing in Bucket's testimony permits an inference of age-based discrimination. 29 U.S.C. § 633a(a) (ADEA offering protection from “discrimination based on age”); cf. Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment at work, whether through subjection to a hostile environment or through such concrete deprivations as being fired or being denied a promotion, is actionable under Title VII only when it occurs because of an employee's sex, or other protected characteristic.” (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998)); Desai v. DeJoy, No. 1:22-CV-846 (RDA/WEF), 2024 WL 3092403, at *8 (E.D. Va. June 20, 2024) (dismissing federal employee's hostile work environment claim because no allegations indicated any claimed harassment was based on her protected characteristics (quoting Hartsell v. Duplex Prod., Inc., 123 F.3d 766, 772 (4th Cir. 1997) (“[O]nly harassment that occurs because of the victim's [protected class] is actionable.”)).

16 The undersigned acknowledges Defendant's position that, in the government-employee context, this fourth prong can only be satisfied by providing evidence of replacement by or different treatment than a substantially younger individual. Here, Plaintiff can satisfy neither.

The undersigned agrees with Defendant that Plaintiff has not proffered evidence that substantially younger employees were treated differently. Plaintiff offers no evidence regarding what happened with her position when she was terminated. Rather, Plaintiff looks to evidence regarding two employees-Dunbar and Mack-whom she alleges were substantially younger than she and were treated more favorably. Pl. Mem. 12. Plaintiff notes that Dunbar was “at least 9 years younger” than she. Her focus is on these employees allegedly not being required to do the same tasks Plaintiff was required to do. Defendant argues that Dunbar's 9-year age differential is not sufficient to make her “substantially younger.” Def. Mem. 13-14 (citing cases). Defendant also submits the record contains no information regarding the age of Mack. Id. at 14. Plaintiff points out, however, that “Mack” and “Elmore,” sometimes referred to as “Tanika,” are the same person. The record contains clear evidence that she is younger. Pl. Mem. 12 & n.43; Sistrunk Dep. 64-65 (indicating Tanika Elmore was below the age of 40); Pl. Dep. 41 (saying “Tanika Elmore” but correcting last name to “Mack”). That, in and of itself, however, is not sufficient to satisfy the fourth prong of the prima facie case.

Plaintiff also testified that she believed she was discriminated against based on age because supervisors considered her to be “old and slow.” Pl. Dep. 16. Plaintiff said Sistrunk told coworker Kim Elmore a number of times to handle customers up front because she was “younger” and “faster” than Plaintiff. Id. (providing no specific dates or timeframe when this took place). Plaintiff testified that Sistrunk would send her to work in the back and do work in the “box section” when there was more work to be done but send the younger workers there when there was less work. Id. at 41.

Although Plaintiff has provided evidence that at least one “substantially younger” worker was not required to perform certain boxwork-tasks, Plaintiff has not provided a link between that and her termination, nor would these differing tasks themselves be considered “adverse actions” or “personnel actions” that are to be “free from discrimination.” See 5 U.S.C. § 2302; Babb, 589 U.S. at 405 (noting that 5 U.S.C. § 2302(a)(2)(A) lists “personnel actions” for purposes of federal employment and that the portion of the ADEA applicable to federal employees contemplates “personnel actions” free from “differential treatment”).

At bottom, Plaintiff simply has not provided evidence from which a reasonable factfinder could determine she was terminated (or had any “personnel action” taken against her) based on her age. See Goodwin v. Wormuth, No. CV 3:21-2816-MGL-PJG, 2022 WL 2230082, at *4 (D.S.C. June 3, 2022) (noting federal employee's allegations that employer treated him differently when giving directives, inter alia, and failed to give him certain training were neither adverse actions nor “personnel actions” under 5 U.S.C. § 2302), report and recommendation adopted, No. CV 3:21-2816-MGL-PJG, 2022 WL 2209915 (D.S.C. June 21, 2022).

Summary judgment is appropriate as to Plaintiff's ADEA discrimination claim. Because Plaintiff has not presented facts from which it could be determined that any personnel decisions were made in a manner “tainted by” her age, Plaintiff's ADEA discrimination claim is subject to summary judgment.¹⁷

17 Were the pretext analysis to be undertaken, Plaintiff cannot establish that, but for her age, she would not have been terminated.

2. ADEA Retaliation claim

Defendant also challenges Plaintiff's ADEA-based retaliation claim. While Defendant includes an argument regarding all of the retaliation claims together, the court considers the ADEA-based retaliation claim first in light of Babb.

Plaintiff has offered no direct evidence of age-based retaliation; the burden-shifting framework applies. Generally, to establish a prima facie case of retaliation, a plaintiff must show 1) that she engaged in a protected activity; 2) her employer took an adverse employment action against her; and 3) there was a causal link between the protected activity and adverse action. Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998). As discussed above, the court will consider the prima facie framework in determining whether Plaintiff has established liability. If so, the pretext portion of the analysis becomes necessary to consider what sort of damages might be recovered. See Young, 2023 WL 2722616, at *7-8.¹⁸

18 At least one published Fourth Circuit case decided after Babb has used the familiar McDonnell Douglas proof rubric, including the pretext portion of the analysis, in evaluating a federal employee's ADEA and Title VII retaliation claims. See Walton v. Harker, 33 F.4th 165 (4th Cir. 2022). However, neither the Walton decision, the lower court decision it was considering, nor any of the available briefs before the Fourth Circuit reference Babb.

Protected activity

It is undisputed that the following EEO Charges filed by Plaintiff are ADEA-protected activity: 1) April 2020 Charge alleging discrimination, retaliation, and hostile work environment based on age. ECF No. 61-1 (Information for Pre-Complaint Counseling, dated March 27, 2020, and received by EEO on April 17, 2020); 2) January 28, 2021 formal EEO Charge alleging discrimination and retaliation¹⁹based on age and sex, ECF No. 61-4 (stamped received Feb. 16, 2021); Initial Contact with EEO was made on October 30, 2020, ECF No. 5713 at 1-2; 3) August 6, 2021 Charge “alleging discrimination, retaliation, and hostile work environment” based on age, ECF No. 61-13. (The court notes the August 6, 2021 Charge was filed after Plaintiff had received her notice of termination.)

19 Plaintiff characterizes the January 2021 EEO Charge as one for “alleging she was subject to retaliation and a hostile work environment.” Pl. Mem. 3.

Adverse activity

Defendant only discusses Plaintiff's April 26, 2021 Notice of Removal as the adverse action at issue in relation to Plaintiff's ADEA retaliation claim. Def. Mem. 23. Plaintiff references the Notice of Removal but also includes a footnote in which she indicates she “contends the change in her job duties and mistreatment by her supervisors and coworker as described herein are adverse employment actions.” Pl. Mem. 14 n.45. Plaintiff offers no specifics regarding other adverse actions and how they are causally related. In beginning her “factual background” section, Plaintiff offers as an “example” of retaliation Sistrunk's placing Plaintiff on a 14-day suspension on October 27, 2020 because of unscheduled absences allegedly taken in September 2020. Pl. Mem. 2-3 (citing Oct. 27, 2020 Letter, ECF No. 61-2). Plaintiff submits this October 2020 suspension was in retaliation for her April 17, 2020 EEO Charge. Pl. Mem. 2. This allegation is not discussed elsewhere by either party. In any event, the undersigned is of the opinion Plaintiff has not shown the October 2020 suspension to be causally related to the April 2020 protected activity, nor has she otherwise established prima facie causation as to that suspension.

Causal relationship

In considering causation, then, the only action at issue is Plaintiff's April 26, 2021 Notice of Removal and her subsequent termination. Plaintiffs commonly point to a temporal connection to support an inference of a causal link between their protected activity and an adverse action, with shorter time periods giving rise to a stronger inference. See Wilson v. City of Gaithersburg, 121 F.Supp.3d 478, 485-86 (D. Md. 2015) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (collecting cases about temporal relationship between protected activity and adverse action)). Plaintiffs may also establish causation by pointing to “the intervening period for other evidence of retaliatory animus.” Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007).

Focusing on the temporal relationship among Plaintiff's EEO activities and her April 26, 2021 Notice of Removal, Defendant submits Plaintiff cannot demonstrate prima facie causation. Def. Mem. 23. Defendant appropriately notes Plaintiff's August 2021 EEO charge could not relate back to create causation. Plaintiff's earlier EEO activity, Defendant submits, was too remote in time from the April 2021 Notice of Removal.

Defendant characterizes the earlier EEO activity as having taken place in March 2020 and October 2020. No party focuses on the March 2020 charge. As to the other charge, Defendant refers to it as the October 2020 Charge, based on the date of Plaintiff's initial contact with an EEO counselor. Plaintiff refers to it as the January 2021 Charge, using the date the formal EEO Charge was signed as the trigger date for considering temporal proximity. Construing all facts in the light most favorable to Plaintiff at this juncture, the January 2021 date will be used in this analysis. There is no bright-line test for determining how long may pass between knowledge of the protected activity and the adverse event to establish temporal proximity. See Roberts v. Glenn Indust. Grp., Inc., 998 F.3d 111, 126-27 (4th Cir. 2021) (noting the absence of a bright-line rule but indicating the temporal proximity had to be “short” for timing alone to imply causation). In Roberts, the court found the three-month gap between the protected activity and the adverse event, standing alone, was insufficient to establish prima facie retaliation causation. Id. at 127. Here, even using the January 28, 2021 date of the formal charge that had been begun in October 2020, there is a three-month time lapse. That alone is insufficient to provide Plaintiff with causation.

The court notes, however, that temporal proximity is merely sufficient for causation, it is not necessary. See Lettieri, 478 F.3d at 650 (noting that “evidence of recurring retaliatory animus” can establish causation even in the absence of temporal proximity). In that case the plaintiff presented evidence of “continuing retaliatory conduct and animus directed at her” by decisionmakers in the seven-month period between her complaint and her termination. Id. This conduct included stripping the employee of “significant job responsibilities,” including supervisory responsibilities that made it easier to later terminate her. Id. Compare Barbour v. Garland, 105 F.4th 579 (4th Cir. 2024) (in Title VII context, reversing district court's grant of dismissal based on the lack of adequate temporal proximity alone without considering other factors as contemplated by Lettieri).

Plaintiff does not cite to Lettieri; however, she does argue that other evidence provides her with the causation required. Pl. Mem. 14. Plaintiff looks largely to the testimony of Bucket, including the testimony that Sistrunk went to the Columbia post office and discussed Plaintiff with a supervisor there. Bucket Dep. 19-20 (indicating Sistrunk told Bucket's supervisor, Mungin, about Plaintiff's injury and sought assistance as to “how to get rid of” her but to “clean it up on management's side but also to make it seem as if [Plaintiff] either resigned or failed to report to her job, pretty much.”).²⁰Elsewhere in her opposition memorandum Plaintiff points to “examples” of actions to which she ascribes retaliatory intent based on her various EEO complaints, all of which included allegations of age-based discrimination. Pl. Mem. 2-5. These include the following:

20 Plaintiff also cites Bucket's testimony that, in her opinion, Plaintiff's termination was retaliatory because Plaintiff's “postal career has been hell” after she filed complaints. Pl. Mem. 14 (quoting Bucket Dep. 27-28). The court is far from persuaded that Bucket's opinion that Plaintiff suffered retaliation provides Plaintiff with the evidence she needs.

• October 27, 2020 (after the April 2020 EEO Charge but before the next charges): Sistrunk placed Plaintiff on a 14-day suspension based on unexcused absences from September 2020, ECF No. 61-2 (this suspension was later reduced to a letter of warning);

• January 6, 2021 (after the second charge, which was preliminarily filed on October 30, 2020 and formally filed later in January 2021), Sistrunk placed Plaintiff on a seven-day suspension related to absences from November 2020, ECF No. 61-3.

The court is far from convinced that these two suspensions and their timing alone provide a causal link or a pattern as contemplated by Lettieri.

However, the unobjected-to testimony of Bucket that Plaintiff's supervisor discussed with another supervisor a plan to terminate Plaintiff, which occurred at “sometime in 2021,” after Plaintiff had filed her March 2020 EEO Complaint, her October 29, 2020 allegation regarding the failure of the ADR of that complaint, and her October 30, 2020 preliminary EEO complaint are sufficient for Plaintiff to establish prima facie causation to tie her protected activities to her termination. See generally Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (noting prima facie burden is “not onerous”). Further, Bucket's testimony is that the supervisors referenced Plaintiff's injury, which took place on March 23, 2021, which was also subsequent to her January 28, 2021 formal EEO Charge.

Based on Babb, the undersigned is of the opinion that establishing a prima facie case requires summary judgment to be denied as to liability for Plaintiff's ADEA retaliation claim. Determination of what damages Plaintiff seeks could be recoverable, however, requires an analysis of whether Plaintiff can show retaliation is a but-for cause of her termination.

Defendant has presented evidence of Plaintiff's unexcused absences, and letters sent to her regarding same as showing it had a legitimate, nondiscriminatory reason for her termination. See Notice of Removal, ECF 57-19 at 1 (discussing violations, including Plaintiff's absences from March 29 through April 5, 2021 without providing documentation and failure to follow instructions as to provision of medical documentation). However, the evidence that management was working on a plan as to how to terminate her is sufficient to show pretext. It is true that an employer's reasons for making a personnel decision are not typically to be closely examined by the courts. See generally, DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (noting in Title VII context that the court “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.”) (citation omitted)). However, in view of testimony that one of Plaintiff's direct supervisors had a conversation about looking to “get rid of' Plaintiff by making it seem that she “either resigned or failed to report to her job” and Plaintiff's own testimony that she went to the post office building intending to provide medical records but her supervisors would not accept them (Pl. Dep. 21-22),²¹the undersigned is of the opinion that Plaintiff has demonstrated enough evidence from which a jury could determine the proffered reasons were pretext, and retaliation was a but-for cause of her termination. Summary judgment is inappropriate for the ADEA retaliation claim as to liability and as to all damages.

21 As noted above, portions of the affidavits of Plaintiff's relatives describing the trip to try and take records to Plaintiff's supervisors are objected-to hearsay and are not considered herein to the extent they relay matters outside their own personal knowledge. However, Plaintiff testified in deposition that she went to the post office about a week after the accident and asked a coworker to go inside and request that a supervisor come speak with Plaintiff so she could provide medical records. No supervisor came outside. Pl. Dep. 21-22. To the extent Plaintiff testified as to her recollection of these events they may be considered.

D. Rehabilitation Act claims

Plaintiff's Second Amended Complaint includes several claims brought pursuant to the Rehabilitation Act. 29 U.S.C. § 701, et seq. She alleges disability discrimination, failure to accommodate, and retaliation. Plaintiff also brings a claim of harassment/hostile work environment based on the Rehabilitation Act. Plaintiff's Rehabilitation Act harassment/hostile work environment claim will be considered below in tandem with those claims brought under the ADEA and Title VII. Here, the court considers Plaintiff's Rehabilitation Act claims of disability discrimination, failure to accommodate, and retaliation.

Applicable to disability-related claims brought by federal employees, the Rehabilitation Act aims to ensure that no disabled person “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The Rehabilitation Act also incorporates the Amended Americans with Disabilities Act's (ADAAA's) anti-retaliation provision, which prohibits “discrimination against any individual because she has opposed any act or practice made unlawful by” the ADAAA. 42 U.S.C. § 12203(a). Courts generally evaluate employment discrimination claims brought under the Rehabilitation Act using the same standards as those applied under Title I of the ADA.²² Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 413 (4th Cir. 2015).

22 As noted below, portions of the prima facie elements of Rehabilitation Act and ADA claims of disability discrimination differ.

1. Whether Plaintiff has a “disability” for purposes of the Rehabilitation Act

Defendant first argues it is entitled to summary judgment for Plaintiff's Rehabilitation Act claims of discrimination and failure to accommodate. Def. Mem. 16-17, 19 (arguing Plaintiff does not have a “disability” under the statute and that temporary impairments do not qualify as disabilities).

In 2008 Congress made substantial revisions to both the Rehabilitation Act and the ADA. The ADA Amendments Act of 2008 (“ADAAA”) revised the definition of “disability” for the Rehabilitation Act. Boone v. Bd. of Governors of Univ. of N.C. , 395 F.Supp.3d 657, 667 (M.D. N.C. 2019), aff'd, 858 Fed.Appx. 622 (4th Cir. 2021). The amendments became effective January 1, 2009. See Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 150 (4th Cir. 2012).

Citing mostly cases relating to pre-2009 impairments Defendant contends Plaintiff cannot demonstrate she has a “disability” because her impairment was temporary. Def. Mem. 16. The undersigned disagrees. As another decision in this district found, Congress amended the Rehabilitation Act and ADA in 2019 “‘with the explicit purpose of broadening the protections of the [ADA] and rejecting certain Supreme Court law interpreting the ADA's definition of disability.'” Butler v. Pepperdam Constr. Co., Inc., No. CV 2:17-1350-RMG-BM, 2019 WL 2077781, at *6-7 (D.S.C. Mar. 1, 2019) (quoting Marsh v. Terra Int'l (Okla.), Inc., 122 F.Supp.3d 1267, 1276-77 (N.D. Okla. 2015) (internal citation omitted)); report and recommendation adopted in pertinent part, rejected in part, No. CV 2:17-1350-RMG, 2019 WL 1306190 (D.S.C. Mar. 22, 2019). As a result, prior case law finding “temporary impairments” could not be considered “substantially limiting” for purposes of “disability” no longer held sway. Rather, the court looked to limitations set out by the employee's medical professional, which included limitations on lifting, bending/stooping as well as standing/walking/sitting, sufficed such that plaintiff had “met his burden of establishing he had a ‘disability' for purposes of summary judgment.” Id. at *7.

Plaintiff focuses on problems stemming from her March 2021 on-the-job incident as her disability at issue.²³Here, Plaintiff has presented several Work Status Reports from her physician indicating she was limited in what she could do. For example, the Report issued on March 23, 2021-the date of the injury-limited her to light lifting, no bending/squatting/twisting/crawling or climbing, walking or standing “rarely,” and sitting “often.” Mar. 23, 2021 Rpt. ECF No. 57-15 at 2; see Mar. 30, 2021 Rpt., ECF No. 57-15 at 1 (listing similar restrictions). The undersigned is of the opinion that Plaintiff has set forth enough to survive summary judgment as to the issue of whether she can show “disability” under the Act.

23 Plaintiff also mentions testimony that other employees, including supervisors, at times “ridicul[ed]” her by “making fun of the way she walked, making fun of her disability, joking about her age, and making fun of her vision and eyes.” Pl. Mem. 3-4 (found in Plaintiff's “Factual Background” section, citing Pl. Dep. 60-61; Bucket Dep. 23-24; Watts Dep. 20-21). She also briefly seems to argue she satisfies the Rehabilitation Act's definition of “disability” based on supervisor Watts' testimony that Plaintiff seemed to be a slow learner. Pl. Mem. 23 (citing Watts Dep. 29 indicating she did not “perceive” Plaintiff as having any sort of disability, but noting everyone does not “learn as fast as others”). Plaintiff does not tie these brief statements to any additional evidence or legal argument. To the extent Plaintiff relies on others' “making fun of her vision and eyes” or Watts' testimony as supplying evidence of her “disability” for purposes of her Rehabilitation Act-based claims, she has not done so.

Whether Plaintiff has set out facts sufficient to survive summary judgment as to any of her Rehabilitation Act claims requires further consideration. Plaintiff may avoid summary judgment on a claim of disability discrimination by providing direct evidence of discrimination or by relying on the burden-shifting framework set forth in McDonnell Douglas. Gillaspie v. Del Toro, No. 219CV00453DCNMHC, 2022 WL 909386, at *3 (D.S.C. Mar. 29, 2022), reconsideration denied, No. 219CV00453DCNMHC, 2022 WL 3691355 (D.S.C. Aug. 25, 2022), aff'd, No. 22-1977, 2023 WL 3581700 (4th Cir. May 22, 2023), and aff'd, No. 22-1977, 2023 WL 3581700 (4th Cir. May 22, 2023).

2. Direct evidence

Plaintiff first argues she has presented direct evidence of disability discrimination. A plaintiff can survive a motion for summary judgment by producing “direct evidence of a stated purpose to discriminate and/or indirect evidence of sufficient probative force to reflect a genuine issue of material fact.” Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001) (citations and internal quotation marks omitted). Direct evidence is “conduct or statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested employment decision.” Laing, 703 F.3d at 717 (internal quotation marks and citation omitted). As explained in Bickford v. Denmark Technical College, “[d]irect evidence is evidence that the employer announced, admitted, or otherwise indicated that the forbidden consideration was a determining factor” in the challenged action. 479 F.Supp.2d 551, 564 (D.S.C. 2007) (internal quotation marks and citation omitted). Indirect or circumstantial evidence must be “of sufficient probative force to reflect a genuine issue of material fact” and “includes conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Thomas v. Delmarva Power & Light Co., 715 Fed.Appx. 301, 302 (4th Cir. 2018) (internal quotation marks omitted); Rhoads, 257 F.3d at 391-92.

Here, Plaintiff looks to this testimony from former coworker Bucket's testimony for such evidence:

Q: While you were in -- working at the Columbia office, did you ever hear a conversation between management where they instructed each other not to hire Ms. Buckman or spoke, you know, poorly about Ms. Buckman?

A: Absolutely, yes, I did.

Q: Are there any that you remember that you can tell me about?

A: I remember Tammy's supervisor. I think her name was Ms. Rosalind [Sistrunk] at the time. She came from Orangeburg, and she came to my office. And I thought she was a customer at first, but, when she did come in, she came to speak with my supervisor, who name is Shermel Mungin. And they were talking about Ms.

Tammy [Plaintiff]', about the injury she sustained, and the supervisor needed some assistance of how to get rid of Ms. Buckman, basically, but to kind of like clean it up on management's side but also to make it seem as if Ms. Buckman either resigned or failed to report to her job, pretty much. I remember that day.

Bucket Dep. 19-20 (emphasis added). Bucket testified she did not recall the exact date this took place but noted it was sometime in 2021. The court notes that Plaintiff's injury occurred on March 23, 2021. As noted above, no objection has been made as to the consideration of this evidence.

This evidence, if chosen to be believed by a jury, provides direct or indirect evidence of disability-related discrimination. In addition to referencing Plaintiff's work injury (which occurred on March 23, 2021 and resulted in physician-imposed restrictions) the conversation between one of Plaintiff's supervisors and another member of management unquestionably related to a desire to “get rid” of Plaintiff by potentially focusing on her “fail[ure] to report to her job.” The April 26, 2021 Notice of Removal did just that-indicated Plaintiff had unscheduled, unexcused absences from March 29, 2021 through April 5, 2021 and had failed to provide documentation. ECF No. 57-19 at 1. Further, while the record also includes an April 1, 2021 letter from Supervisor Watts to Plaintiff indicating she was to provide medical documentation regarding her absence that “began on or about March 29, 2021,” ECF No. 57-18, the record also includes an “Offer of Modified Duty” dated two days prior, March 30, 2021, ECF No. 57-16 at 1. That Offer, signed and dated by Supervisor Sistrunk on March 30, 2021, referenced Plaintiff's March 23, 2021 injury and listed “physical requirements of [the] modified assignment” that essentially mirrored the limitations set out in the medical documentation Plaintiff received from her physician on both March 23, 2021 and March 30, 2021 (20 lb. weight limit, sitting often, walking/standing-rarely, no bend, squat, twist crawl). Id.; see March 23 and 30, 2021 Work Status Reports from Doctors Care, ECF No. 57-15 at 1-2.

The undersigned recommends a finding that Plaintiff has set forth sufficient evidence of disability-based discrimination to survive summary judgment without employing the prima facie proof scheme. In any event, the undersigned also considers whether she might also survive summary judgment using that avenue, as well.

3. Disability discrimination

Prima facie case

To proceed using the McDonnell Douglas framework, Plaintiff must first establish a prima facie case by showing that: (1) she is disabled; (2) she was otherwise qualified for the position; and (3) she suffered an adverse employment action solely on the basis of her disability. Hannah P. v. Coats, 916 F.3d 327, 342 (4th Cir. 2019). If she does so, the burden shifts to Defendant to provide a legitimate, nondiscriminatory reason for its conduct. If it does so, Plaintiff “bears the ultimate burden of persuasion” and “must show by a preponderance of the evidence that the proffered reason was a pretext for discrimination.” Id.

Defendant argues Plaintiff cannot establish she is disabled or she was terminated “solely on the basis of her disability.” Def. Mem. 18. Defendant submits that, based on the substance of the Notice of Removal, Plaintiff's termination was because she failed to report to work, failed to provide medical documentation, and failed to follow instructions. Id. Because Plaintiff looks to the direct evidence discussed above she does not address her prima facie case as to disability discrimination.

In any event, as discussed above, the undersigned recommends finding Plaintiff has a “disability” for purposes of the Rehabilitation Act claims. Further, Plaintiff has presented evidence sufficient to demonstrate a prima facie showing that her termination was based on her disability. In addition to the direct evidence so indicating, there are issues of fact as to whether she did or did not provide, or attempt to provide, the medical records and whether she was actually absent without leave. Defendant's stated reasons for terminating Plaintiff related to her being absent after her injury. At this prima facie stage, Plaintiff has established enough to support her position.

The reasons set out in the Notice of Removal do suffice to allow Defendant to meet its burden of persuasion as to the legitimate, nondiscriminatory reasons for her termination. However, again, based on the issues of fact surrounding this reason, and particularly including the evidence that Defendant was looking to manufacture an attendance-based reason for Plaintiff's termination and evidence that documentation had been provided at least as of March 30, 2021, she has demonstrated pretext sufficient to survive summary judgment. This recommendation is further bolstered by evidence that Plaintiff's Notice of Removal was dated prior to the date by which she had been given to respond to an offer of modified duty (as discussed, infra). Summary judgment should be denied as to Plaintiff's Rehabilitation Act discrimination claim.

4. Failure to accommodate

Plaintiff also brings a Rehabilitation Act for failure to accommodate. The McDonnell Douglas burden-shifting framework does not apply to failure-to-accommodate claims, which do not require evidence of discriminatory intent. Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 959 n.2 (4th Cir. 2021) (in ADA context). For Plaintiff to survive summary judgment, she may establish a prima facie case by showing the following: 1) she is an individual with a disability under the Act, 2) the employer had notice of the disability, 3) she could perform the essential functions of her job with a reasonable accommodation, and 4) the employer refused to make a reasonable accommodation. See Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 414 (4th Cir. 2015).

Defendant seeks summary judgment, arguing Plaintiff cannot satisfy the first and fourth prongs of the prima facie case. Def. Mem. 19-20. As the court has already set out its recommendation above that Plaintiff has established she can satisfy the first prong, only the fourth prong needs to be considered.

Defendant argues there is no evidence that it refused to accommodate Plaintiff, citing Sistrunk's testimony that various “offers of modified employment” were made to Plaintiff that would accommodate her time of standing, squatting, kneeling, climbing, pushing, pulling, and lifting.” Def. Mem. 19 (citing Sistrunk Dep. 58-60).

In response, Plaintiff looks to the conflicting timing of the offers to accommodate. In particularl, Plaintiff looks to the April 23, 2021 Offer of Modified Employment, which set out modified activities to comport with limitations set out by Plaintiff's physician, and gave Plaintiff until April 29, 2021 to accept the offer. Pl. Mem. 24; Apr. 23, 2021 Offer, ECF No. 61-11. However, the reasonableness of this offer of accommodation is belied by the April 26, 2021 Notice of Termination Defendant issued to Plaintiff. Apr. 26, 2021 Notice, ECF No. 61-12.

The undersigned agrees with Plaintiff that she has set out evidence from which a reasonable jury could determine Defendant's offers of accommodation were not reasonable in light of the timing. To have advised Plaintiff of the intent to terminate her (related at least in part to days missed since her on-the-job injury) days before the time had expired for Plaintiff to consider and accept the proffered accommodation raises at least an issue of fact as to whether the fourth prong can be satisfied. See Kenny v. Yellen, No. CV 3:21-1321-MGL-PJG, 2022 WL 18457742, at *11 (D.S.C. Dec. 8, 2022) (recommending denial of summary judgment as to Rehabilitation Act failure-to-accommodate claim as issues of fact existed concerning the reasonableness of the offered accommodation), report and recommendation adopted, No. 3:21-CV-01321-MGL, 2023 WL 387712 (D.S.C. Jan. 25, 2023). Summary judgment should be denied as to the failure to accommodate claim.

Plaintiff's remaining claims to be considered are for retaliation under the Rehabilitation Act and Title VII (Plaintiff's ADEA-based claims of retaliation are discussed above) and for a hostile work environment in violation of the ADEA, the Rehabilitation Act, and Title VII. Defendant seeks dismissal of all.

E. Retaliation (Title VII and Rehabilitation Act)

Plaintiff's remaining retaliation claims are brought pursuant to Title VII and the Rehabilitation Act. Title VII's federal-sector provision mandates that “[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Although the federal-sector provision does not explicitly prohibit retaliation, the United States Court of Appeals for the Fourth Circuit has held that the federal-sector provision incorporates private-sector protections against retaliation. See Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011) (Title VII). Similarly, the Rehabilitation Act bars retaliation “against any individual because such individual has opposed any act or practice made unlawful by [the ADA or the Rehabilitation Act] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA or Rehabilitation Act].” 42 U.S.C. § 12203(a); see also 29 U.S.C. § 791(f) (Rehabilitation Act's incorporation of the ADA's standards); Hooven-Lewis v. Caldera, 249 F.3d 259, 272 (4th Cir. 2001) (recognizing that the Rehabilitation Act incorporates the ADA's anti-retaliation provision).

As with many employment-related claims, an employee may look to direct or indirect evidence of retaliation or use the familiar burden-shifting scheme of McDonnell Douglas. Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 577 (4th Cir. 2015) (Rehabilitation Act); Strothers v. City of Laurel, 895 F.3d 317, 327 (4th Cir. 2018) (Title VII). Direct evidence is “conduct or statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested employment decision.” Laing, 703 F.3d at 717 (internal quotation marks and citation omitted).

1. Title VII retaliation

Here, Plaintiff first argues she has set out direct evidence of retaliation under Title VII. Pl. Mem. 16.²⁴ Plaintiff again seems to rely on the testimony of Bucket that Plaintiff's supervisors “discussed a plan to manufacture reasons to terminate [Plaintiff's] employment by making it appear as if she was not reporting to work.” Id. (citing Bucket Dep. 19-20). Although Plaintiff indicates this discussion took place “after” she “filed her charge of discrimination,” id., she offers no cogent argument to explain how this conversation, in and of itself, provides direct evidence to retaliate because Plaintiff took any protected activity under Title VII. As discussed above, for direct evidence to allow an employee to survive summary judgment, the evidence must relate both to the allegedly discriminatory/retaliatory attitude and the contested employment decision. Here, Bucket's testimony makes no mention of any protected activity, nor does it otherwise indicate anything potentially related to Title VII's prohibition against discrimination or retaliation based on race, color, religion, sex, or national origin.

24 She advances this same direct-evidence argument as to her Title VII hostile-work-environment claim. The argument fares no better in that context.

The second portion of her direct-evidence argument is a bit more difficult to understand in the Title VII context. Plaintiff cites to testimony in which Sistrunk acknowledged the April 26, 2021 Notice of Removal was issued three days before the Offer of Limited Duty was to expire. Pl. Mem. 16. (citing Sistrunk Dep. 41). With this background in mind, Plaintiff references the following Sistrunk testimony:

Q: Before you made the recommendation to issue a notice of removal, did you consult anyone about it?

A: Yes, my postmaster, Daniel Washington.

Q: And how long before you issued the April 26^th, 2021 notice of removal letter did you consult with Daniel Washington?

A: I would like to say a month. The incident-I think the incident happened in March. A month prior to.

Q: So sometime in March of 2021?

A: Yes.

Q: If you were planning on terminating Ms. Buckman's employment as early as March of 2021, why did you send her a job offer in April of 2021?

A: We did-see-we had leading events that led up to it, and that was not my intent, to terminate her. She was there, and we have a level. You have a warning. You have-we have a discussion. * * *

[Sistrunk provides details of the various levels of discipline and the discussions to be had with Labor and Relations.]

Q: So is-was your intent-when you asked for removal, was your intent actually to get something less than removal, like a suspension?

A: We've had for suspension, no, sir.

Q: Okay. So, when you requested a removal, were you seeking an act-Ms. Buckman to actually be terminated?

A: I was looking for a fight.

Q: I see.

A: Our union usually intervene[s], and the union usually fights. They usually fight.

Sistrunk Dep. 41-44.

Construed in the light most favorable to Plaintiff, however, this testimony does not amount to direct evidence of Title VII-based retaliation. The testimony does not even reference Plaintiff's Title VII-based protected activity in any manner. The court notes that Plaintiff's formal EEO Complaint signed January 28, 2021 does “check the box” to indicate she is complaining of sex-based discrimination. ECF No. 57-13 at 7. However, the Complaint itself does not explain any sex-related claims. For direct evidence to be effective in defeating summary judgment, the evidence must evince both a discriminatory/retaliatory attitude and the adverse action at issue. Laing, 703 F.3d at 717. Plaintiff has provided no such evidence. To the extent she seeks to survive summary judgment as to her Title VII claims based on direct evidence, such effort fails.

Plaintiff's bid to defeat summary judgment on her Title VII retaliation claim using the prima facie framework fares no better. Under McDonnell Douglas, Plaintiff must first establish a prima facie case of retaliation: “(1) plaintiff engaged in protected activity . . .; (2) the employer took adverse employment action against plaintiff; and (3) a causal connection existed between the protected activity and the adverse action.” Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (citation omitted); see Kitlinski v. U.S. Dep't of Just., 994 F.3d 224, 232 (4th Cir. 2021). An employee engages in protected activity when he has a reasonable belief that his employer is engaged in an employment practice unlawful under Title VII and he communicates that belief to his employer. DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015). Additionally, to establish causation, the plaintiff must demonstrate that the decisionmaker who took the adverse actions had actual knowledge of plaintiff's protected activity. Roberts v. Glenn Indus. Grp., Inc. 998 F.3d 111, 125 (4th Cir. 2021). If Plaintiff meets her burden, Defendant must then “articulate a non-discriminatory or non-retaliatory reason for the adverse action.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (citations omitted). Finally, if Defendant meets its burden of production, “the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the stated reason for the adverse employment action is a pretext and that the true reason is discriminatory or retaliatory.” Id. “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 v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010) (internal quotation marks and citation omitted); see also Reeves, 530 U.S. at 143 (a Title VII plaintiff must prove an employer's reasons “were not its true reasons” or were “unworthy of credence”).

In attempting to satisfy her prima facie case Plaintiff indicates she “engaged in protected activity on various occasions, including in January 2021 when she filed a charge of discrimination.” Pl. Mem. 18 (citing Jan. 28, 2021 EEO Complaint). Plaintiff submits the adverse actions include both her termination and the “hostile work environment that was created, sustained, and enhanced by her supervisors and coworkers shortly after she engaged in protected activity.” Pl. Mem. 18.

The undersigned is of the opinion that Plaintiff cannot demonstrate she engaged in any activity that would be protected under Title VII. Although the formal (January 2021) iteration of one of her EEO complaints indicates by check-mark that she was discriminated against on the basis of her sex, ECF No. 57-13, nothing in the narrative of that EEO Complaint discusses her sex or how she was treated differently on that basis. While an employee can be engaged in protected activity for something that was not actually unlawful under Title VII, that employe must have a “reasonable belief that h[er] employer is engaged in an employment practice unlawful under Title VII and [must] communicate[s] that belief to h[er] employer.” DeMasters, 796 F.3d at 417. The court is aware of no such evidence.

Because Plaintiff cannot satisfy the first element of her prima facie Title VII retaliation claim, summary judgment is appropriate as to her claim related to the adverse action of her termination or her claim of a retaliatory hostile work environment in violation of Title VII. Summary judgment is appropriate as to Plaintiff's Title VII retaliation claims.

2. Rehabilitation Act retaliation

Retaliation claims may be brought by direct or indirect evidence or using the McDonnell Douglas rubric. Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 577 (4th Cir. 2015).

Plaintiff briefly looks to the deposition testimony of Bucket in which she indicated Plaintiff's supervisor referenced Plaintiff's on-the-job injury (her “disability”) and spoke of the need to fabricate a reason for terminating her. Pl. Mem. 22. For much the same reasons discussed above in connection with the Rehabilitation Act disability claim, the undersigned agrees with Plaintiff that this provides sufficient direct evidence from which a jury could determine Plaintiff's disability was a but-for reason for terminating her. Summary judgment should be denied as to Plaintiff's Rehabilitation Act retaliation claim.

In addition, Plaintiff also briefly submits she can survive summary judgment using the prima facie framework. Pl. Mem. 25-26. Defendant submits she cannot. Def. Mem. 21-24 (discussing all retaliation claims).

To establish a retaliation claim under the Rehabilitation Act, Plaintiff must adduce evidence of the following: (1) engagement in activity protected by the Rehabilitation Act; (2) an adverse action; and (3) a causal connection between the protected activity and the adverse action. Netter v. Barnes, 908 F.3d 932, 938 (4th Cir. 2018).

In seeking summary judgment, Defendant focuses on Plaintiff's March 2020, October 2020, and August 2021 EEO complaints as being the “protected activity,” arguing Plaintiff cannot show a causal connection between any of these complaints and any complained-of adverse action. Def. Mem. 21-22. While Plaintiff only briefly discusses this claim, she submits “Defendant ended her employment based on her disability and because she requested an accommodation.” Pl. Mem. 26.

The undersigned agrees with Plaintiff that the protected act to be considered as to this claim was her request for accommodation. See Leckie v. Bd. of Educ. of Montgomery Cnty., No. CV TDC-23-0299, 2023 WL 8809310, at *7 (D. Md. Dec. 19, 2023) (holding that “for purposes of a retaliation claim, an employee's request for reasonable accommodations is a protected activity.”). There is evidence that, after Plaintiff was injured, her supervisor discussed a plan to terminate her. This is sufficient evidence of causation to tie the adverse action of termination to her protected activity. Further, as discussed above concerning other claims, this same evidence is sufficient to demonstrate pretext. Summary judgment should be denied as to Plaintiff's claim of retaliation based on the Rehabilitation Act.²⁵

25 Plaintiff also claims she was retaliated against by being “ridiculed by her supervisors and coworkers about her disability” and by being assigned additional duties “meant to embarrass and demean her.” Id. Plaintiff has not provided evidence of such “ridicule” related to the injury she suffered on March 23, 2021. Her general testimony regarding “ridicule” seems to relate to her eyes. She has not demonstrated any such issue (real or perceived) is a qualified disability under the Rehabilitation Act. Further, to the extent Plaintiff is looking to her claims of ridicule and assignment of additional duties as evidence of a retaliatory hostile work environment, she has not tied these to any protected act.

F. Harassment/hostile work environment

Defendant also seeks summary judgment as to Plaintiff's hostile work environment claims, brought under Title VII, the ADEA, and the Rehabilitation Act. Second Am. Compl. ¶¶ 51-56 (ADEA claim); ¶¶ 64-69 (Title VII claim); ¶¶ 76-84 (Rehabilitation Act claim).

To establish a hostile work environment claim under Title VII and the Rehabilitation Act, a plaintiff must prove four elements: “(1) that the alleged conduct . . . was unwelcome; (2) resulted because of her gender, disability, or prior protected activity; (3) was sufficiently severe or pervasive to alter the conditions of her employment; and (4) was imputable to her employer.” Pueschel v. Peters, 577 F.3d 558, 564-65 (4th Cir. 2009) (internal quotation marks and citation omitted). The elements under the ADEA are virtually identical. See Causey, 162 F.3d at 801 (requiring a plaintiff to show that: “(1) the harassment was unwelcome; (2) the harassment was based on his . . . age; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer”) (internal citation omitted).

At her deposition, Plaintiff mentioned the following as conduct that created a hostile work environment: (1) a coworker, Kimberly Dunbar, would come into Plaintiff's “space and try to brush over [Plaintiff], brush on [Plaintiff,] or hit [Plaintiff] with something” and would say “sarcastic stuff every day”; (2) the Postmaster, Dan Washington, would ask where Plaintiff was during breaks; and (3) supervisor Sistrunk would “embarrass[] [Plaintiff] every day, telling [Plaintiff] to get back to work,” and “[h]oller[ing] [and] scream[ing] . . . .” Pl. Dep. 49-52. In opposing summary judgment, Plaintiff looks to testimony she indicates shows supervisor Watts was aware that coworker Dunbar was “making fun” of Plaintiff, but did nothing to address it. Watts Dep. 20-21. As a result of the supervisors' “encouraging and participating in the hostile environment,” the abusive treatment intensified, resulting in Plaintiffs filing her February 12, 2021 formal EEO Charge,²⁶which included allegations of retaliation and a hostile work environment. Pl. Mem. 4 (citing to ECF No. 61-5, EEO Investigation Report). In the cited testimony Watts testified that she recalled asking Plaintiff where her glasses were when she saw Plaintiff holding something near her face to see it, and she recalled others, including Dunbar, making comments about how Plaintiff sometimes wore sunglasses indoors. Watts Dep. 20-21. Plaintiff also characterizes her August 6, 2021 EEO Complaint as having alleged discrimination, retaliation, and a hostile work environment. Pl. Mem. 5 (citing ECF No. 61-13).

26 The court notes that the cited document is a report filed by the EEO investigator. The EEO Complaint of Discrimination alleging discrimination based on sex and age was signed by Plaintiff on January 28, 2021. ECF No. 61-4. In the specifics of that Charge, Plaintiff indicates she has been “subjected to a hostile work environment when on 6/25/20 and since that time management and co-workers with management['s] knowledge engaged in a continuous pattern of threats of such attempts at physical violence toward [her],” particularly including failing to protect her on October 28, 2020. ECF No. 61-4 at 1. This Complaint bears the same case number as the investigative report found at ECF No. 61-4 and the earlier preliminary EEO complaint dated October 30, 2020. ECF No. 57-13 at 3.

In the section focusing on her claim of age-based harassment, Plaintiff submits there is evidence that she was assigned duties usually assigned to maintenance workers and such tasks were not assigned to younger workers. She also submits supervisors would tell others to leave their garbage for Plaintiff to clean up. Pl. Mem. 15 (citing Pl. Dep. 29-31). Plaintiff also claims supervisors allowed coworkers to call Plaintiff “old” and “slow.” Id. (citing Pl. Dep. 33). In connection with her retaliation claims, Plaintiff cites testimony from Bucket that some of Plaintiffs supervisors would mock her eyes by making a facial expression when referring to Plaintiff. Pl. Mem. 18. Plaintiff makes a similar argument in regards to her Title VII hostile-work-environment claim. See Pl. Mem. 19-20 (referencing the old and slow comments and noting Dunbar, “the same employee Defendant knew ridiculed her,” struck Plaintiff with a cart and injured her. Pl. Mem. 20 (citing Pl. Dep. 18-19).

The undersigned agrees with Defendant that Plaintiff has not set forth sufficient evidence to survive summary judgment as to claims of a hostile work environment. As an initial matter, while Plaintiff has set out complaints of rude comments, including allegations about her eyes, she has not provided any facts that tie any of her allegations to her age, sex, or alleged disability related to her injury.

Further, even if her claimed harassment were tied to any protected status, Plaintiff's hostile work environment claims are subject to summary judgment because the conduct about which she complains was not “sufficiently severe or pervasive to alter the conditions of her employment.” Pueschel, 577 F.3d at 565 (internal quotation marks and citation omitted). “[H]arassment is considered sufficiently severe or pervasive . . . if a workplace is ‘permeated with discriminatory intimidation, ridicule, and insult.'” Id. (internal quotation marks and citation omitted). “At bottom, a claimant must show that she is subject to an abusive working environment.” Id. (emphasis in original) (internal quotation marks and citation omitted). In particular, the plaintiff must establish “both a subjective and objective component,” namely that she “did perceive, and a reasonable person would perceive, the environment to be abusive or hostile.” Perkins v. Int'lPaper Co., 936 F.3d 196, 208 (4th Cir. 2019) (internal quotation marks and citation omitted).

“‘[W]hen determining whether the harassing conduct was objectively severe or pervasive, [the court] must look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'” Perkins, 936 F.3d at 208 (quoting E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008)). “‘[P]laintiffs must clear a high bar in order to satisfy the [objective] severe or pervasive test.'” Perkins, 936 F.3d at 208 (quoting Sunbelt, 521 F.3d at 315). “‘[I]ncidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.'” Perkins, 936 F.3d at 208 (quoting Sunbelt, 521 F.3d at 315). “‘Rude treatment by coworkers, callous behavior by one's superiors, or a routine difference of opinion and personality conflict with one's supervisor, are not actionable under Title VII.'” Perkins, 936 F.3d at 208 (quoting Sunbelt, 521 F.3d at 315-16).

“The Supreme Court has also reinforced the steep requirements of a hostile work environment claim.” Perkins, 936 F.3d at 208. “[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Id. (internal quotation marks and citation omitted). For Title VII hostile-work-environment claims, “[t]he standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a general civility code.” Id. (internal quotation marks and citation omitted).

Here, Plaintiff offers virtually no legal analysis explaining how her claims of hostile work environment are sufficient to survive summary judgment. In defending her retaliation claims, Plaintiff cites Mehan v. UPS, C/A No. RDB-18-1788, 2019 U.S. Dist. LEXIS 50971, at *4-5 (D. Md. Mar. 26, 2019), [also available at 2019 WL 1370096], for the proposition that “[m]ocking is evidence of retaliation and hostile work environment.” Pl. Mem. 18 n.62. That case, however, was considering a motion to dismiss and included facts that employees were mocking the plaintiff's deafness, which was his ADA-protected disability at issue. Here, construing facts most liberally in Plaintiff's favor, any mocking related to her eyes, not her injury being considered under the Rehabilitation Act. Further, at this summary judgment stage, Plaintiff must demonstrate her work environment was “permeated with ridicule” that was objectively severe or pervasive. She has not done so.

Plaintiff has not identified circumstances that could support a jury's conclusion that Plaintiff was subjected to a hostile work environment. The conduct about which Plaintiff complains does not, as a matter of law, meet the “severe and pervasive” requirement. At best, the conduct consisted of “[r]ude treatment by [coworkers]” and “callous behavior” by Plaintiff's supervisors. Perkins, 936 F.3d at 208 (internal quotation marks and citation omitted). Thus, Plaintiff's hostile work environment claims fail as a matter of law.

G. Damages argument

Finally, Defendant's Motion includes an alternative argument that, should Plaintiff survive summary judgment, certain categories of damages-punitive damages and damages of front pay/back pay-should be unrecoverable as a matter of law. Def. Mem. 27-29. Plaintiff concedes that she is not entitled to punitive damages. Pl. Mem. 27. That portion of the Motion for Summary Judgment should be granted.

Defendant also seeks a ruling as a matter of law that Plaintiff is not entitled to front pay or back pay based on Plaintiff's alleged failure to mitigate damages. Def. Mem. 28-29. In response, Plaintiff has provided evidence from her damages expert regarding Plaintiff's attempts to obtain employment. Pl. Mem. 27-28; see Deborah Caskey Dep., ECF No. 22. The undersigned is of the opinion that a decision on issues of back pay and front pay would be premature at this stage as issues of fact exist. See generally E.E.O.C. v. Town & Country Toyota, Inc., 7 Fed.Appx. 226, 233 (4th Cir. 2001) (reversing district court's grant of summary judgment as to certain types of damages, finding such ruling had been premature based on disputed issues of fact).

To that extent, this portion of Defendant's Motion should be denied.

IV. Conclusion

For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 57, be granted in part and denied in part as discussed above. If this Report and Recommendation is adopted, summary judgment would be granted as to all of Plaintiff's Title VII claims (retaliation and hostile work environment), as to Plaintiff's ADEA claims of discrimination and hostile work environment, as to Plaintiff's Rehabilitation Act claim of hostile work environment, and as to her quest for punitive damages; and summary judgment would be denied as to Plaintiff's claims of retaliation under the ADEA, as to her Rehabilitation Act claims of discrimination, retaliation, and failure to accommodate, and as to whether she may be entitled to front or back pay.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”