Opinion
Civil Action No. 6:18-2748-TMC-KFM
12-30-2019
Andrew Cook, Jr., Plaintiff, v. Drury Hotels Company, LLC, Defendant.
REPORT OF MAGISTRATE JUDGE
The plaintiff, who is proceeding pro se, alleges that the defendant, his former employer, discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Age Discrimination in Employment Act of 1967 ("ADEA") (doc. 1-1). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in employment discrimination cases and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
On September 4, 2018, the plaintiff filed a complaint through counsel in the Greenville County Court of Common Pleas (doc. 1-1). In that complaint, the plaintiff alleges that the defendant violated the ADEA by denying him a promotion to the position of assistant general manager because of his age (id.). The plaintiff further alleges in his complaint that the defendant violated Section 1981 and Title VII when it terminated his employment because of his race (id.). On October 9, 2018, the case was timely removed to the United States District Court for the District of South Carolina, Greenville Division, on the basis of federal question jurisdiction (doc. 1). The defendant filed its answer on October 16, 2018 (doc. 8). On May 2, 2019, the plaintiff's attorney filed a motion to withdraw as counsel (doc. 23), which was granted by the court on May 23, 2019 (doc. 26). The plaintiff has since proceeded pro se.
In an exhibit submitted with his response to the defendant's motion for summary judgment, the plaintiff asserts for the first time that "they were never going to hire me as assistant manager [be]cause I was black ..." (doc. 43-5, p. 4). In his complaint, the plaintiff did not allege that the defendant discriminated against him based upon his race in failing to promote him to the assistant general manager position (see doc. 1-1). A party may not raise new claims in a response to a motion for summary judgment. See White v. Roche Biomedical Labs., Inc., 807 F. Supp. 1212, 1216 (D.S.C. 1992).
On August 16, 2019, the defendant filed a motion for summary judgment (doc. 36). On August 27, 2019, by order of the court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately to the defendant's motion (doc. 39). The plaintiff filed his response in opposition on September 25, 2019 (doc. 43), and the defendant filed a reply on October 2, 2019 (doc. 45).
FACTS PRESENTED
In late March 2015, the defendant hired the plaintiff, an African-American male who at the time of the filing of his complaint was 54 years old (doc. 1-1, p. 4), as a second-shift guest service agent and weekend night auditor at the Drury Inn and Suites in Greenville, South Carolina ("the Greenville hotel") (pl. dep. 110-11, 137). Approximately one year after being hired, the plaintiff began working solely as a night auditor at the Greenville hotel (id. 137). Throughout the plaintiff's employment with the defendant, Mike Lopez was the general manager of the Greenville hotel (id. 104). Lopez reported to Cory Clark, who was the regional manager with responsibility for the Greenville hotel as well as the defendant's hotels in Tennessee (id. 216; Clark decl. ¶ 2; Lopez decl. ¶ 15).
As a night auditor, the plaintiff was the only employee at the hotel for the majority of the overnight shift, and he was responsible for guest safety and security during the overnight hours (pl. dep. 113 & ex. 3). The plaintiff understood that he was responsible for following all of the defendant's safety and security policies, including emergency procedures (id.). Additionally, the plaintiff was responsible for aiding guests, reconciling the hotel's ledger each night, and preparing breakfast for the next morning (id. 113-14).
On August 1, 2015, the plaintiff received a final written warning for sending inappropriate text messages to a female guest in the hotel (pl. dep. ex. 15). The plaintiff had retrieved the guest's number from the hotel's computer system in order to send her the texts (id.). This occurred after the plaintiff had already received a verbal and a written warning for inappropriate and harassing comments earlier in 2015 (id. exs. 12-13). The plaintiff also received a verbal discussion record for escalating a disagreement with a co-worker in September 2015 (id. ex. 16). In January 2016, the plaintiff received a verbal discussion record for being discourteous to a guest whose key did not work on an exterior door of the hotel (id. ex. 18). The plaintiff also received a written warning in May 2016 for being discourteous to a guest's husband who repeatedly called the hotel (id. ex. 19). Two incidents occurred in May and June 2016, where the plaintiff failed to properly check guests into their rooms leading to the possibility that another guest could be booked into the same room (id. ex. 21). In August 2016, the plaintiff received a verbal discussion record for giving keys to two guests without entering them into the check-in system (id. ex. 22). In October 2016, the plaintiff received a verbal discussion record for not checking a guest into the hotel in a timely manner because he did not follow the proper procedures when running the nightly audit of the hotel's reservations (id. ex. 23). Later that month, the plaintiff received another verbal discussion record relating to not following the check-in procedure (id. ex. 24).
The plaintiff, who is originally from Tennessee, expressed interest in relocating to one of the defendant's hotels in the Nashville area. In June 2015, the plaintiff had a meeting with Lopez, Clark, and Mike Mahoney, who was an assistant general manager at the Greenville hotel (pl. dep. 259), during which Clark talked to the plaintiff about the possibility of transferring to a position at one of the defendant's Nashville hotels (id. 217- 18). However, the plaintiff was not interested in a lateral move to Tennessee, since he wanted to be promoted to a management position (id. 210, 217).
On November 3, 2016, the defendant distributed a career opportunities newsletter to management at all of its locations regarding an assistant general manager position available at its Franklin, Tennessee hotel ("the Franklin hotel") (Binz decl. ¶ 5 & ex. A). The plaintiff saw the posting for the open position and discussed the opening with Melvin Gutierrez, an assistant general manager at the Greenville hotel ((pl. dep. 210-12; Lopez decl. ¶ 7). Gutierrez told the plaintiff that he would have to apply for the position through the defendant's online application system (pl. dep. 210-12). The plaintiff testified that he went online and applied for the position (id. 211). The defendant has no record in its electronic application system showing that the plaintiff ever applied for the assistant general manager position at the Franklin hotel (Binz decl. ¶ 6).
The plaintiff submitted a document in response to the motion for summary judgment that he claims shows that he applied for the position at the Franklin hotel (doc. 43-5, pp. 2-3). The document shows an email from DruryCareers@findly.com to the plaintiff and is dated November 25, 2016. The email states, "Welcome to Drury Hotels! Thanks for submitting your profile. Complete your profile now to make it easier for us to hire you. Any time you change your profile, our recruiters will see your latest information" (id.). In reply, the defendant submitted a second declaration of Binz, the defendant's manager of employee relations (doc. 45-1). In her declaration, Binz states that she has been in her current position since May 1, 2017, that she is responsible for employee relations functions at the defendant's hotels across the United States, and that she has firsthand knowledge of the process for applying for positions with the defendant. According to Binz, all applications for employment with the defendant must be completed through its online application system, which requires completion of two steps. First, the applicant must complete a profile, and, second the applicant must apply for an open position, which will be confirmed by an email from the company. The email confirmation specifically references the position for which the applicant has applied; an example of such a confirmation is attached to Binz' declaration. Binz testified that the email filed by the plaintiff is a confirmation that he completed a profile and that it is not a confirmation that he had submitted an application (Binz 2nd decl. ¶¶ 5-7 & ex. A).
The plaintiff testified that, after applying for the position, he contacted Clark and sent a text message to Ryan Shmitt, the general manager of the Franklin hotel, to let them know that he was interested in the position (pl. dep. 211). As regional manager over the Franklin hotel, Clark was responsible for hiring the new assistant manager at that location (id. 232; Clark decl. ¶¶ 3-4). After the plaintiff did not hear back from Clark, he talked to Lopez about the opening (pl. dep. 272). According to the plaintiff, Lopez responded by stating, "In Drury world, you know, Drury usually look for people with longevity" (id. 273). Clark testified in his declaration that he made the decision to promote Catherine Bondesen to fill the open assistant manager position at the Franklin hotel based upon her experience working for the defendant, her length of service, and the fact that she was already working as a supervisor at the Franklin hotel (Clark decl. ¶¶ 5-6). At the time of the promotion, Bondesen had been employed by the defendant for more than four years in a variety of positions, she had experience as a guest service supervisor, and she had spent her entire employment with the defendant at the Franklin hotel (id. ¶ 7 & ex. A). Clark testified that Lopez played absolutely no role in the decision to promote Bondesen (id. ¶ 5).
At the time of his hire in March 2015, the plaintiff was required to go through an orientation process covering the specifics of his position, and he received on the job training from another employee for approximately two weeks (pl. dep. 114-16). As part of his orientation process, the plaintiff received a copy of the defendant's team member handbook and signed an acknowledgment form stating that he was responsible for being familiar with the defendant's policies (id. 119-20 & ex. 4). The handbook contains the defendant's rules of conduct, which all employees are expected to abide by while working for the defendant (id. 123 & ex. 5, pp. 21-23). The plaintiff testified that he was familiar with the rules of conduct and understood that if he violated those rules, he could be subject to disciplinary action (id. 123). The defendant's rules of conduct contain a list of "Group A" rules, the violation of which can result in immediate termination of employment (id. 123-24 & ex. 5, pp. 21-22). The Group A violations include the following:
In contrast, a violation of the "Group B" rules in the defendant's rules of conduct is handled through a four-step disciplinary process (pl. dep. 124 & ex. 5, pp. 22-23).
Violation of any safety rule that did or could have resulted in injury to any person or property.(Id. ex. 5, pp. 21-22).
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Failure to obey specific instructions of management personnel in performance of specific job of task assigned or interfering with supervisory instructions to team members. . . .
In addition, as part of his orientation process, the plaintiff received specific training on the defendant's safety and security procedures (pl. dep. 115). Because the safety and security of hotel guests is of extreme importance, the defendant requires its employees to regularly review and execute a guest safety and security key control acknowledgment form (id. 128 & ex. 7). The plaintiff reviewed and executed copies of this form on March 24, 2015, and June 20, 2016 (id. ex. 7). In signing this form, the plaintiff acknowledged the following: "I have read and understand the Drury Hotels' key control procedures. Failure to comply with this Acknowledgment or any other Company procedure related to guest security will result in disciplinary action, up to and including, termination of my employment" (id. 136-37 & ex. 7).
One of the defendant's safety and security procedures relates to use of the "emergency key" or "E-key" (pl. dep. 128 & ex. 6). The E-key is a hard key (as opposed to a key card) that will unlock every door in the hotel (id. 128-33). At the Greenville hotel, the E-key is secured on the wall behind the front desk behind a pane of glass (id. 129-30). Access to and use of the E-key is governed by a written procedure (id. 128 & ex. 6, p. 3). The defendant's policy states that the E-key must only be accessed "in the most extreme emergency situations" (id. 130 & ex. 6, p. 3). Prior to the pane of glass being broken to access the E-key, the employee is required to notify the manager on call (id. 132 & exs. 6, 8). In addition to contacting the manager on call, the employee must immediately record certain specific information (why the E-key was accessed, where it was used, who used it, the time removed, and who returned the E-key) on the E-key signature form, which was located on the counter adjacent to where the E-key was secured (id. 130-31 & exs. 6, 8). Once the E-key has been used, the employee is required to seal it in an envelope and place it in the safety deposit box located in the hotel office (id. 135 & ex. 8). The plaintiff was aware of this process as he had used the E-key and signed the log on February 9, 2017 (id. 132 & ex. 8).
The E-key signature form specifically states that "[o]nce breaking this box, you must sign below and notate your name, date, time and reason for breaking open this box. There are no exceptions to this!" (pl. dep. ex. 8).
The plaintiff testified that on the night of April 4, 2017, the fire alarm went off in the Greenville hotel (pl. dep. 193). Once the plaintiff located the room where the fire alarm was going off, he determined that there was no fire and that the smoke detector in that room had malfunctioned (id.193-94). The plaintiff then determined that he needed to disable the smoke detector in that room, so he accessed the E-key in order to get access to the tools located in the maintenance closet (id. 194). The plaintiff did not notify a member of management before accessing the E-key, and he did not complete the E-key signature form as required by policy (id. 199 & ex. 8). The plaintiff testified that after he used the E-key to access the maintenance closet, he put the E-key in the pocket of his uniform vest (id. 197). The plaintiff took the E-key home with him when he finished his shift, which he admitted was "wrong" (id. 153, 199).
On April 5, 2017, the plaintiff received a text message from Gutierrez asking if he had the E-key (pl. dep. 199 & ex. 25). The plaintiff found the key in his vest pocket and responded to Gutierrez that he had the E-key. Gutierrez told the plaintiff not to lose the E-key (id.). When the plaintiff reported that evening for his shift, Elizabeth Stewart, the guest service supervisor at the Greenville hotel, asked him for the E-key (id. 202). The plaintiff refused to give her the E-key (id. 153). The plaintiff testified that he thought Stewart would hide the E-key and say that he never gave it to her, and then he would get terminated from employment for losing the key (id.). He testified that he ignored the request from Stewart and headed into the breakfast area at the hotel to begin setting up for breakfast, even though it was only 11:00 in the evening, which he testified was his normal routine(id. 202-03). Since the plaintiff refused to give the key to Stewart, she immediately contacted Lopez and told him what had happened (Lopez decl. ¶ 10). Lopez attempted to contact the plaintiff by texting him and by calling his cell phone, but the plaintiff did not respond (id. ¶ 11). As a result, even though he was off duty at the time, Lopez drove to the hotel to get the E-key from the plaintiff (id.).
The plaintiff's normal hours as the night auditor were 11:00 p.m. to 7:00 a.m. (id. 109).
Lopez arrived at the hotel at approximately 11:35 p.m. on April 5th and located the plaintiff and took back the E-key (pl. dep. 203-205; Lopez decl. ¶ 12).When Lopez asked the plaintiff why he did not give the E-key back to Stewart, the plaintiff stated that he did not like how Stewart had spoken to him and that he did not acknowledge her as a supervisor (pl. dep. 207 & ex. 26; Lopez decl. ¶13). After confirming that the plaintiff had taken the E-key without completing the signature form, that he had taken the E-key home with him, and that he had refused Stewart's instruction to give her the E-key, Lopez called Clark and informed him of what had happened (Lopez decl. ¶¶ 13-15). Lopez testified that he and Clark agreed to terminate the plaintiff's employment because of his insubordination and failure to follow the defendant's safety and security policies related to the use of E-key (id. ¶ 15). Lopez then informed the plaintiff that he was terminated from employment (id. ¶ 16; pl. dep. 203-204 & ex. 26).
In his deposition, the plaintiff admitted that Stewart was a supervisor at the Greenville hotel and stated that he did not think Stewart was effective as a supervisor (pl. dep. 145-46).
APPLICABLE LAW AND ANALYSIS
Standard of Review
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
Failure to Promote in Violation of the ADEA
In his first cause of action, the plaintiff alleges that he applied for the position of assistant manager at the Franklin hotel and that he was denied the promotion on the basis of his age in violation of the ADEA (doc. 1-1 at 5). The ADEA makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. 29 U.S.C. § 623(a)(1). "A plaintiff bringing a disparate-treatment suit pursuant to the ADEA must prove that age was not merely a motivating factor of the challenged adverse employment action but was in fact its 'but-for' cause." Dodson v. Conway Hosp., Inc., C.A. No. 4:17-CV-01846-RBH, 2019 WL 1434153, at *4 (D.S.C. Mar. 31, 2019) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)). To do so, the plaintiff may either present direct or circumstantial evidence of the employer's discriminatory animus or proceed under the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973).
In paragraph C of his response to the motion for summary judgment, the plaintiff argues (verbatim), "I applied for a assistant manager position and I was told by Michael Lopez that I was to old to get into management Drury looks for young people with longevity" (doc. 43, ¶ C; see also doc. 43-5, p. 4). During his deposition, however, the plaintiff was repeatedly asked by both his own counsel and defense counsel as to what Lopez had told him about applying for the position in Franklin. The plaintiff unequivocally testified three times that Lopez told him that the defendant wanted individuals with "longevity" or "more longevity" (pl. dep. 211, 214, 273). Specifically, the plaintiff testified that Lopez told him "[i]n Drury world, you know, Drury usually look for people with longevity" (id. 273).
In paragraphs B and D of his response in opposition to the motion for summary judgment, the plaintiff discusses incidents at other hotel locations that are wholly unrelated and do not involve any of the individuals involved in the decisions at issue in this case (see doc. 43, ¶¶ B, D). Also, in paragraphs E and G, the plaintiff makes allegations about incidents involving other employees at the Greenville hotel, but none of those incidents in any way relate to the plaintiff's claims against the defendant (id., ¶¶ E, G). In paragraph F of the response, the plaintiff makes unsubstantiated accusations regarding Lopez that have no relation to the causes of action alleged against the defendant (id., ¶ F). The plaintiff also submitted several exhibits to his response that have no bearing on any issue in this case (see doc. 43-1; doc. 43-2, pp. 3-7; doc. 43-4, p. 3).
Courts have long held that a plaintiff cannot assert statements in response to a motion for summary judgment that are contradictory to the plaintiff's deposition testimony in order to create a genuine issue of material fact. See, e.g., Grace v. Family Dollar Stores, Inc., 637 F.3d 508, 512 (4th Cir. 2011) "[A party] cannot create a dispute about a fact that is contained in deposition testimony by referring to a subsequent affidavit of the deponent contradicting the deponent's prior testimony, for 'it is well established that a genuine issue of fact is not created where the only issue of fact is to determine which of the two conflicting versions of a party's testimony is correct.'" ) (citation omitted). Accordingly, the plaintiff cannot now contradict his deposition testimony by stating that Lopez told him that he was "too old to get into management."
The undersigned further finds that Lopez' comment that "Drury usually look for people with longevity" (pl. dep. 273) is not direct evidence of age discrimination. The Court of Appeals for the Fourth Circuit has stated as follows:
Derogatory comments about an employee's age may be direct evidence of age discrimination, provided they concern the employee's age and sufficiently demonstrate that the employer's age-related animus affected the employment decision at issue. See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 300 (4th Cir.2010) (noting that "in the absence of a clear nexus [between an employer's derogatory comments and] the employment decision in question, the materiality of stray or isolated remarks is substantially reduced"); Hill, 354 F.3d at 288-89 (requiring that ADEA plaintiffs prove the person acting pursuant to discriminatory animus was "the one principally responsible for, or the actual decisionmaker behind, the action" (internal quotation marks omitted)); Dockins v. Benchmark Commc'ns, 176 F.3d 745, 751 (4th Cir.1999) (finding ADEA plaintiff met burden to "present affirmative evidence of age-based animus" by offering "his testimony regarding the comments relating to his age" made by decisionmaker for employer (internal quotation marks omitted)).Arthur v. Pet Dairy, 593 F. App'x 211, 218-19 (4th Cir. 2015). See also Maxwell v. E-Systems, Inc. , Melpar Div., No. 94-185, 1995 WL 391989, at *3-4 (4th Cir. July 5, 1995) (finding that supervisor's comment that "it would be nice to have someone in the . . . position with a little more longevity" was not direct evidence of discriminatory intent). Here, it is undisputed that Clark made the hiring decision for the position of assistant general manager at the Franklin hotel, and Lopez played absolutely no role in that decision (Clark decl. ¶¶ 5-6; Lopez decl. ¶ 18; see pl. dep. 232). The plaintiff has failed to show any evidence of a nexus between Lopez' comment and the hiring decision made by Clark. Accordingly, the alleged statement by Lopez is not direct evidence of age discrimination.
As the plaintiff has not presented directed evidence of age discrimination, it is appropriate to consider the claim using the burden-shifting analysis of McDonnell Douglas. See Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019). Under McDonnell Douglas, a plaintiff first must establish by a preponderance of evidence each element of his prima facie case of discrimination. 411 U.S. at 802. To state a prima facie case of discriminatory failure to promote under the ADEA, a plaintiff must demonstrate that: (1) he is a member of a protected group, (2) he applied for the position in question, (3) he was qualified for that position, and (4) the defendant rejected his application under circumstances that give rise to an inference of unlawful discrimination. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005); Gurganus v. Beneficial N. Carolina, Inc, 25 F. App'x 110, 111 (4th Cir. 2001) (applying Title VII proof scheme to ADEA failure to promote claim). Upon demonstrating a prima facie case, the burden shifts to the defendant to produce a legitimate, nondiscriminatory reason for its employment decision, after which the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by the defendant is pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Throughout the McDonnell Douglas burden-shifting scheme, the plaintiff has the ultimate burden of presenting evidence from which a reasonable jury could conclude that the defendant intentionally discriminated against him.
The defendant argues that the plaintiff cannot establish a prima face case of discrimination under the ADEA because he has failed to raise a genuine issue of material fact as to whether he applied for the position (doc. 36-1 at 16-18; doc. 45 at 4-6). The undersigned agrees. The plaintiff testified that he went online and applied for the position and that he used his personal email address when he submitted the online application (pl. dep. 211, 213). Although the defendant maintains electronic records regarding all employment applications submitted through its online system, it has no record showing that the plaintiff ever applied for the assistant general manager position at the Franklin hotel (Binz decl. ¶ 6). As noted above, as an exhibit to his response to the motion for summary judgment, the plaintiff submitted a screen shot of an email that he claims establishes that he applied for the assistant general manager position at the Franklin hotel (doc. 43-5, pp. 2-3). However, the email specifically states, "Welcome to Drury Hotels! Thanks for submitting your profile. Complete your profile now to make it easier for us to hire you. Any time you change your profile, our recruiters will see your latest information" (id., p. 3) (emphasis added).The defendant has submitted evidence showing that all applications for employment are completed through a two-step process on the website (Binz 2nd decl. ¶¶ 4-5). First, the potential applicant must complete a profile, and, second, the potential applicant must apply for an open position. The email confirmation sent to an applicant specifically references the position for which the applicant has applied, and an example of such a confirmation is attached to Binz' second declaration (id. ¶¶ 5-7 & ex. A). Binz testified that she reviewed the screen shot of the email submitted by the plaintiff and that it is not a confirmation that he submitted an application; rather, it is a confirmation that he completed a profile through the defendant's website (id. ¶¶ 3, 6).
The defendant notes that, in its first request for production of documents, the plaintiff was specifically requested to produce all documentation in his possession related to his application for any job with the defendant. In spite of that specific request, the plaintiff did not provide the defendant with a copy of the email that he claims establishes that he applied for the position in question (doc. 45, pp. 4-5). Further, during the plaintiff's deposition, he testified that he received an email confirming he had applied for the job (pl. dep. 213-14), and, in response to that testimony, defense counsel again requested that the plaintiff produce that email, and he failed to do so until submitting it with his response in opposition to the motion for summary judgment. The plaintiff states that the email was "in my old phone" and provides no justification for failing to produce the document when requested (doc. 43-5, p. 2). As argued by the defendant, this is a clear violation of Federal Rule of Civil Procedure 34, and the court may order that the plaintiff is not allowed to use that information because he failed to provide it in discovery. Fed. R. Civ. P. 34(c)(1). Nonetheless, as set out above, the undersigned finds that the defendant is entitled to summary judgment on the ADEA cause of action even if the email is considered.
Moreover, while the plaintiff claims the email, which is date-stamped November 25, 2016, at 9:15 a.m., is confirmation that he submitted an application to the defendant for the assistant general manager position in Franklin, he also submitted screen shots of text messages he sent to Ryan Shmitt, the general manager of the Franklin hotel, with a date stamp of November 27, 2016 (doc. 45-5, p. 6). In those text messages, sent two days after the plaintiff claims he had already applied for the position and received confirmation of his application, the plaintiff wrote that he "was thinking of applying for assist general manager" position at the Franklin hotel (id.). As argued by the defendant, the plaintiff would not have said that he was "thinking of applying" for the position if he had already submitted an application two days earlier. While the court must construe the facts in the light most favorable to the plaintiff and may not make credibility determinations or weigh the evidence, there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
Even assuming that the plaintiff can establish a prima facie case of age discrimination with regard to the defendant's failure to promote him to the assistant general manager position, he has produced no admissible evidence to show that the defendant's reason for not promoting him was pretext for age discrimination. Regional Manager Clark testified in his declaration that he made the decision to promote Catherine Bondesen to fill the open assistant manager position at the Franklin hotel based upon her experience working for the defendant, her length of service, and the fact that she was already working as a supervisor at the Franklin hotel (Clark decl. ¶¶ 5-6). At the time of the promotion, Bondesen had been employed by the defendant for more than four years in a variety of positions, she had experience as a guest service supervisor, and she had spent her entire employment with the defendant at the Franklin hotel (id. ¶ 7 & ex. A). In contrast, the plaintiff had worked for the defendant for less than two years and had never been a supervisor or manager. In his response to the defendant's motion, the plaintiff makes the conclusory allegation that Bondesen "had no more experience on the job" than he did (doc. 43-5, p. 4). However, the plaintiff has presented no evidence other than his own self-serving statement to counter the facts provided by the defendant in support of its conclusion that Bondesen was more qualified for the position based upon her experience and time employed with the defendant. Conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Anderson, 477 U.S. at 248.
Based upon the foregoing, the defendant is entitled to summary judgment on the plaintiff's first cause of action for discrimination in violation of the ADEA.
Termination of Employment in Violation of Title VII and Section 1981
In his second cause of action, the plaintiff alleges that the defendant discriminated against him on the basis of his race in violation of Section 1981 and Title VII when he was terminated from employment (doc. 1-1 at 5-6). "A plaintiff can establish a discrimination . . . claim under Title VII or § 1981 in one of two ways. First, the plaintiff can establish the claim through direct or circumstantial evidence, . . . , or, alternatively, can establish the claim under the McDonnell Douglas burden-shifting framework." Sanders v. Tikras Tech. Sols. Corp., 725 F. App'x 228, 229 (4th Cir. 2018) (citations omitted). The plaintiff has failed to present direct or circumstantial evidence that his race was a motivating factor in the defendant's decision to terminate his employment. Holland v. Washington Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007). Accordingly, the court will analyze the plaintiff's claim under the McDonnell Douglas framework.
The elements of a prima facie case for the plaintiff's Title VII and Section 1981 discrimination claims are the same. See Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (evaluating § 1981 and Title VII race discrimination claims under the same prima facie case framework). The plaintiff must demonstrate: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class. Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). The Supreme Court of the United States has made it clear that because the facts of given cases "necessarily will vary," and this formula "is not necessarily applicable . . . to differing factual situations." McDonnell Douglas, 411 U.S. at 802 n.13. "What is critical with respect to the fourth element is that the plaintiff demonstrate he was . . . fired . . . 'under circumstances which give rise to an inference of unlawful discrimination.'" E.E.O.C. v. Sears Roebuck and Co., 243 F.3d 846, 851 n.2 (4th Cir. 2001) (quoting Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Here, it is undisputed that the plaintiff is a member of a protected class and that he suffered an adverse employment action when he was terminated from employment. The defendant argues that the plaintiff cannot meet the third element of a prima facie case of race discrimination (doc. 36-1 at 19-25). The undersigned agrees. As set forth above, the defendant has presented evidence of the plaintiff's multiple disciplinary infractions during his relatively short period of employment. Further, the defendant has presented evidence that the plaintiff again failed to comply with company policy on April 4, 2017, when he failed to sign the E-key log and on April 5, 2017, when he refused to return the E-key to a supervisor upon request. Importantly, the plaintiff admitted in his deposition that he both failed to complete the log sheet when he took the E-key on April 4, 2017, and that he refused Stewart's instruction to give her the E-Key when he returned to work on April 5, 2017 (pl. dep. 153, 199 & ex. 8). In response to the motion for summary judgment, the plaintiff submitted several documents that appear to be survey results and positive reviews by hotel guests (doc. 43-3, pp. 2-20). This evidence does not satisfy the plaintiff's burden. In analyzing the element of satisfactory job performance, a plaintiff's performance is evaluated at the time of the alleged adverse action, and courts have recognized that it is the perception of the decisionmaker that is relevant, not the self-assessment of the plaintiff or the testimony of co-workers. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (stating that plaintiff's own testimony of satisfactory job performance cannot establish a genuine issue as to whether he was meeting his employer's expectations in a race discrimination case) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)); Brice v. Joule Inc., No. 00-1068, 2000 WL 1225547, at *2 (4th Cir. Aug. 29, 2000) (stating that although the plaintiff argues his performance was satisfactory and offers the testimony of a co-worker as proof, it is the perception of the decisionmaker, not the opinions of co-workers, that is relevant) (citation omitted).
Further, even assuming for purposes of this motion that the plaintiff could show that he was meeting the defendant's legitimate expectations at the time of his termination from employment, the plaintiff has failed to show that he was discharged under circumstances that raise a reasonable inference of discrimination. As the Court of Appeals for the Fourth Circuit has ruled, "The similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful." Lightner v. City of Wilmington, N.C, 545 F.3d 260, 265 (4th Cir. 2008). During his deposition, the plaintiff testified that one of his co-workers, Lauren Rowe, told him that a maintenance employee named Kevin had taken the E-key home with him (pl. dep. 237-38). The plaintiff surmised that Kevin was not terminated from employment after that incident because he was still working at the hotel when the plaintiff was terminated (id. 239). Importantly, the plaintiff admits that he never spoke with Kevin about the incident and that his only knowledge of the incident is based upon what Rowe told him (id. 238). Because the plaintiff's evidence related to the alleged misconduct by Kevin is based solely on inadmissible hearsay, this evidence is insufficient to establish that the plaintiff was treated differently than a similarly situated employee outside of his protected class. See Maryland Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251 (4th Cir.1991) ("[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.") (citations omitted).
Moreover, even if the plaintiff's hearsay testimony is considered, that evidence is insufficient to meet the plaintiff's burden to establish that Kevin was treated differently under similar circumstances. As is clearly reflected by the evidence in the record, the plaintiff was terminated not because he took the E-key home, but because he failed to sign the E-key log when he used the E-key on April 4, 2017, and because he refused a direct order from a supervisor to return the key the following day (pl. dep. ex. 26; Lopez decl. ¶¶ 5, 12-15). The plaintiff has presented no evidence that Kevin failed to sign the E-key log or that he refused to return the key upon request from a supervisor. Accordingly, the plaintiff has failed to show that a similarly situated employee outside of his protected class received more favorable treatment than him. See Haywood v. Locke, 387 F. App'x 355, 359-60 (4th Cir. 2010) (the plaintiff failed to produce evidence that the comparators were subject to the same standards and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it).
Even assuming that the plaintiff can establish a prima facie case of race discrimination, the defendant has articulated a legitimate, nondiscriminatory reason for terminating the plaintiff's employment. Here, the defendant has presented evidence that its rules of conduct, which the plaintiff was provided at the start of his employment, state that "failure to obey specific instructions of management personnel" is a violation that can result in immediate termination of employment (pl. dep. 119-20 & exs. 4, 5). Likewise, the defendant's safety and security policies require employees to follow certain procedures when using the E-key (id. ex. 6, p. 3). In particular, the E-key procedure requires the employee to record the use of the key on the E-key log and to immediately return the key to the safety deposit box after it has been used (id. exs. 6, 8). The plaintiff was aware that failure to comply with the defendant's procedures related to guest security would result in disciplinary action, up to and including, termination of employment (id. 136-37 & ex. 7). The plaintiff admittedly did not notify a manager before accessing the E-key and did not complete the E-key signature form as required by policy (id. 199 & ex. 8). The plaintiff then took the E-key home with him when he finished his shift, which he admitted was "wrong" (id. 153, 199). The following day, the plaintiff admittedly refused to give the E-key to Stewart as requested (id. 153; Lopez decl. ¶ 13). After talking with the plaintiff and with Clark, Lopez made the decision to terminate the plaintiff from employment for failing to obey specific instructions when asked for the E-key by the supervisor and for failing to follow safety and security policy procedures (pl. dep. ex. 26; Lopez decl. ¶ 15).
As the defendant has articulated a legitimate, nondiscriminatory reason for the termination of the plaintiff's employment, the burden shifts to the plaintiff to demonstrate that the reason given was pretext for race discrimination. The plaintiff has failed to present any evidence that his termination was for any reason other than his failure to comply with the defendant's security policies and his insubordination. Based upon the foregoing, the defendant is entitled to summary judgment on the plaintiff's second cause of action for race discrimination in violation of Title VII and Section 1981.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the defendant's motion for summary judgment (doc. 36) be granted.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge December 30, 2019
Greenville, South Carolina
The plaintiff's attention is directed to the important notice of the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).