Opinion
Civil Action No. 2:18-cv-729-RMG-KFM
06-28-2019
Grady Glover, Plaintiff, v. Southwest Airlines, Co., Defendant.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the defendant's motion for summary judgment (doc. 22). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
PROCEDURAL HISTORY
The plaintiff, who is represented by counsel, filed a complaint in state court on February 5, 2018, alleging causes of action for disability discrimination in violation of the Americans with Disabilities Act ("ADA"); (2) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"); (3) retaliation for protected activity, in violation of the ADA and the ADEA; and (4) hostile work environment based on disability and age, in violation of the ADA and the ADEA (doc. 1-1 at 5-23). The matter was removed by the defendant to federal court on March 16, 2018, based on federal question jurisdiction (doc. 1). The defendant filed the instant motion for summary judgment on January 14, 2019 (doc. 22). After requesting and receiving extensions of time, the plaintiff filed a response in opposition to the motion on February 13, 2019 (doc. 33). The defendant then filed a reply on February 20, 2019 (doc. 35).
FACTS PRESENTED
The plaintiff, who was born on January 15, 1958, first began working for the defendant when he was 19 years old and worked for several years in the Ramp Department until 1999, when he quit (doc. 22-2, pl. dep. 12-13, 18-19). In 2002, he sought employment again with the defendant and accepted the role of Operations Supervisor in Hartford, Connecticut (id. 20-21). The following year, the plaintiff began reporting to Doug Currie, who had accepted the position of Station Manager in Hartford (id. 24). By 2007, Currie had been promoted to Regional Director with responsibility for Hartford (among other stations), and he called the plaintiff to ask him to fill the Station Manager position in Hartford (id. 24-25). The plaintiff accepted the Station Manager position and served in that role through 2010 (id. 25). During this period of time (2003-2010), the plaintiff and Currie had a good working relationship; the plaintiff never had any problems with Currie (id. 27).
In January 2011, the plaintiff was offered and accepted the role of Station Manager in Charleston, South Carolina (doc. 22-2, pl. dep. 25, 32). As in Hartford, the plaintiff was in charge of the station - he was the highest on-site authority in Charleston for the defendant (id. 28, 43). He was responsible for managing all three departments: Ramp, Customer Service, and Operations, and managed anywhere from 44 to 47 employees, including supervisors who reported to him (id. 46, 137). In 2014, the plaintiff began reporting to Currie again, and from 2014 through 2016, they had a good working relationship; the plaintiff testified that he had no problems with Currie during this time (id. 58, 203-204). The plaintiff received positive performance evaluations from Currie for the years 2014, 2015, and 2016, having most recently received an "outstanding" rating for his performance between February 1, 2016, and January 31, 2017 (id. 58-63; doc. 33-5).
Throughout his employment, the plaintiff received copies of and had an opportunity to review the defendant's policy concerning harassment and discrimination, and he was comfortable raising any issues to the Employee Relations department (doc. 22-2, pl. dep. 41, 50-52; doc. 22-4 at 3). He also understood, as outlined in the Station Manager job description, that he was expected to "Live the Southwest Way" by demonstrating:
Warrior Spirit - Work Hard, desire to be the best, be courageous, display a sense of urgency, persevere, innovate.(Doc. 22-4 at 4; doc. 22-2, pl. dep. 53-54). As a leader, he also knew additional responsibilities and expectations were placed on him and that he was expected to develop people, which included knowing his people, communicating consistently, and providing timely, candid feedback; to build great teams; and to think strategically (doc. 22-2, pl. dep. 54-57; doc. 22-4 at 4).
Servant's Heart - Follow The Golden Rule, adhere to the Basic Principles, treat others with respect, put others first, be egalitarian, demonstrate proactive Customer Service, embrace the SWA Family.
On February 1, 2017, the plaintiff was approached by a supervisor regarding "an overtime issue that needed to be covered in [O]perations" (doc. 22-2, pl. dep. 67-68). The plaintiff told the supervisor to call Danielle Chapman, an Operations Agent, to see if she could come in, but to make sure that she knew she did not have to come in since she was on vacation (id. 68). The plaintiff testified that the defendant's contract with the union does not allow him to give mandatory overtime to an agent out on a vacation day (id.). Chapman testified that the first supervisor who called her told her that it was mandatory overtime, but when she questioned this since she was on vacation, the first supervisor said she would call her back (doc. 33-10, Chapman dep. 9). When a second supervisor called her, he told Chapman that he could not make her come in, and it would be voluntary overtime (id. 10). Chapman testified that she "was under the assumption" that it was mandatory overtime, since that is what the first supervisor had stated (id.). Chapman worked the overtime (doc. 22-2, pl. dep. 68). Her time was initially recorded as mandatory overtime (paying double time), or "MOT," but the plaintiff instructed the supervisor to change it to voluntary overtime (paying time and a half), or "VOT," because Chapman came in voluntarily and was not, therefore, supposed to be paid double time (id. 69-70; doc. 22-4 at 6). The plaintiff did not speak with Chapman or instruct anyone else to speak with her prior to telling the supervisor to change her pay from double time to time and a half (doc. 22-2, pl. dep. 71).
On February 21, 2017, Chapman raised an issue with the plaintiff about not being paid double time, stating that she did not understand that she was not going to be paid double time (doc. 22-2, pl. dep. 68). The plaintiff agreed to pay her double time (id.). Chapman was advised by her Union Representative, Ryan Wagener, to put the agreement regarding her pay in writing (doc. 33-10, Chapman dep. 10-11). According to the plaintiff, it was a common practice for Wagener "to go back behind something and try to stir it up"; however, the plaintiff did not have a more contentious relationship with Wagener than he did with other union representatives (doc. 22-2, pl. dep. 82-84).
Chapman summarized what had happened with regard to the overtime issue in an email, which she sent to the plaintiff on February 22, 2017 (doc. 22-4 at 6-8). The plaintiff testified that he "was a little frustrated" with Chapman's email because he "had already taken care of the problem" (doc. 22-2, pl. dep. 77). The plaintiff responded in an email the next morning, stating in relevant part:
Danielle,(Doc. 22-4 at 6) (emphasis in original). When asked if he could see how his email could be perceived as aggressive or critical, the plaintiff testified that he sent it at a time when he "was a little upset" and that, upon reading it later, he probably should not have sent it (doc. 22-2, pl. dep. 124).
I do not understand why you feel it is necessary to send this to me in writhing [sic]. I have already told you that we will take care of this pay. However, since you have decided that you must put this in writing I must now set the record straight. . . . . If there is any lack of communication here, it is on your part. I love having you hear [sic] Danielle, but I do not expect this kind of attitude from such a new employee, and I do not understand why you felt it was necessary to put this in writing after you were told it would be taken care of. . . . We are not obligated to pay you MOT, but we have decided to pay you MOT based on your lack of understanding of what VOT is. . . . I am [] copying my Director on this since our folks have an open line to call him with these kinds of issues.
Sincerely,
Grady E. Glover
That same day, on February 23, 2017, Wagener sent an email to Currie and Currie's boss, Steve Goldberg, expressing concern over the plaintiff's email and other "issues with [the plaintiff] over the last couple of years" (doc. 22-4 at 9). He requested a meeting with them to discuss the issues further (id.; doc. 22-2, pl. dep. 88-90). Currie thanked Wagener for reaching out and told him he would be in touch with him the following week (doc. 22-4 at 9). Currie did not discuss Wagener's email with the plaintiff (doc. 22-2, pl. dep. 90).
The plaintiff testified in his deposition that on March 8, 2017, he was informed by two supervisors that Chapman was refusing mandatory overtime (doc. 22-2, pl. dep. 90; see doc. 33-4 at 19). While the plaintiff typically would not get involved in these sorts of issues, he "felt it was necessary" to speak with her because he was concerned "she didn't realize what she was doing . . . that she could be issued discipline for refusing mandatory overtime" (doc. 22-2, pl. dep. 90-91). The plaintiff approached Chapman in the Operations office; once Wagener got there, they stepped in together, and the plaintiff shut the door (id. 92). Chapman was at the filing cabinet when the plaintiff said, "I need to speak to you about the mandatory overtime" (id. 93). Chapman walked by the plaintiff and said "I can hear you," and then she sat down at the desk with her back to the plaintiff (id.). The plaintiff thought Chapman's behavior was inappropriate, and he "asked her to turn around and look at [him] while [he] was talking to her" (id. 93, 106). Chapman repeated that she could hear him just fine, to which he again asked her to turn around and stated that he "was giving her a direct work order to turn around and look at [him], and that if she didn't look at [him] so [he] could have this conversation with her that it would be considered insubordination and [he] would have to pull her badges and send her home" (id. 106). Wagener then asked Chapman to turn around, which she did, and they were able to have the conversation that the plaintiff intended to have with her (id. 93-94, 106). At this point, the plaintiff realized Chapman was upset and "saw a tear come down her eye" (id. 107). The plaintiff asked Chapman if she was refusing the mandatory overtime, and Chapman stated that nobody had told her what the overtime assignment was, so how could she refuse it? (id. 94, 107). The plaintiff told Chapman that he was telling her right then what the mandatory overtime was and asked her if she was telling him that she would not work it (id. 94, 108). Chapman responded that she was going to refuse it. The plaintiff informed Chapman and Wagener they would have to have a "fact-finding" and left (id. 94, 108).
The plaintiff testified that before discipline can be issued to contract employees a fact-finding meeting is held to gather all the facts and then a determination is made with regard to whether, and what type, of discip ine is warranted (doc. 22-2, pl. dep. 87). He then clarified that, if he or a supervisor witnessed the conduct at issue, then they "could go right ahead" and issue the employee discipline without a fact-finding (id. 87-88).
Chapman testified in her deposition that during this incident the plaintiff was standing over her and yelling at her, and Wagener stepped in between them (doc. 22-5, Chapman dep. 18-19). She testified that she had recently been in a car accident and could not "move [her] neck and back in certain ways," and after the meeting with the plaintiff, she left work and went straight to the doctor (id.).
Later on March 8, 2017, Chapman filed a complaint against the plaintiff, alleging that he had created a hostile work environment and retaliated against her for her February email about the overtime issue (doc. 22-4 at 20-21.) Specifically, she reported that the plaintiff's treatment of her caused her to feel threatened, scared, targeted, and harassed (id.). The following day, Chapman forwarded her complaint to Denise Gutierrez, Employee Relations Senior Investigator. Gutierrez forwarded the email to Mike Holcomb, Human Resources Business Partner for the Region, and recommended that Holcomb speak with Chapman and the plaintiff about the issue (id. at 19-21; doc. 22-2, pl. dep. 132).
On March 9, 2017, the plaintiff contacted Vance R. Foster, the Manager of Labor Relations, to find out what level of discipline was appropriate for Chapman to receive for her attitude when he discussed the mandatory overtime with her the previous day (doc. 22-1, pl. dep. 126). Based on the plaintiff's email, Foster replied that he agreed Chapman deserved discipline, and he told the plaintiff to call him (doc. 22-4 at 29). The plaintiff sent Currie an email "keeping [him] in the loop" and letting him know that he had discussed the incident with Foster who agreed that a warning letter should be issued to Chapman for her conduct/attitude on March 8th (doc. 33-14 at 8). He also stated that he would be holding a fact-finding with Chapman on March 13th regarding her refusal of mandatory overtime. Currie replied, "Thanks" (id.). The plaintiff drafted and prepared a letter of warning with input from Foster (id. at 10-14).
Rebecca Melissa Pitstick, a Ramp Agent who worked daily with the plaintiff, testified that a few days after the incident between the plaintiff and Chapman, she overheard Wagener state that "he was going to get rid of [the plaintiff]" (doc. 33-9, Pitstick dep. 7-11).
A fact-finding was held on March 13, 2017, to discuss Chapman's refusal of mandatory overtime (doc. 22-2, pl. dep. 94-96). The plaintiff testified that they were not doing a fact-finding on Chapman's attitude, as he had already drafted a letter of warning for her attitude (id. 95-96, 113). Chapman had also had a weight and balance error that was discovered in an audit, and the plaintiff had already drafted a letter of instruction for that error (id. ). At the fact-finding, the plaintiff presented Chapman with the letter of warning for her overall attitude toward him on March 8, 2017 (doc. 22-2, pl. dep. 116; doc. 22-4 at 14-15). Chapman did not sign the letter of warning; rather, she wrote: "I do not agree with the statements written." Later that day, she filed a formal grievance asking that it be removed from her file (doc. 22-4 at 16-18). The plaintiff testified that he was not aware she filed a grievance (doc. 22-2, pl. dep. 130). The fact-finding concluded with a heated exchange between the plaintiff and Wagener with regard to Wagener's claim that the plaintiff yelled at Chapman on March 8, 2017, and the plaintiff's claim that he did not (id. 120). The plaintiff told Wagener, "you know that's a lie," and Wagener "started swearing and going off" (id.). An unsigned summary of the fact-finding that was apparently created by attendee Emily Stevens states that Wagener "was very unprofessional with his language and yelling at the end of the meeting," and the plaintiff "never raised his voice or yelled during the whole meeting" (doc. 33-14 at 20).
In his deposition in this litigation, Wagener testified that the plaintiff did not scream at Chapman on March 8, 2017, but rather used "a raised voice . . . louder than normal" (doc. 33-11, Wagener dep. 30-31).
On March 16, 2017, Currie traveled to the Charleston Station to investigate the March 8th incident between the plaintiff and Chapman (doc. 22-2, pl. dep. 134, 141-42; doc. 33-14 at 3). Currie first met with Chapman and Wagener; his meeting with them lasted most of the day (doc. 22-2, pl. dep. 135-36). Afterwards, the plaintiff drove Currie to his hotel, and Currie conveyed to the plaintiff Chapman's and Wagener's version of the events on March 8th (id. 137-38). The plaintiff told Currie that their version was not what happened, and Currie told the plaintiff, "Well, their perception is their reality" (id. 138). The plaintiff took this to mean that Currie's mind was made up, and "he was going to take their word on it" (id. 138). When the plaintiff asked Currie what he thought the problem was, Currie stated that he thought the problem was due to a "generational gap" (id. 139, 224, 226, 243). The plaintiff understood Currie's comment as telling him that he "had lost touch with the younger generation because [he was] too old" (id. 139). The plaintiff recalled attending training classes on "discussing the different generational gaps . . . trying to recognize what a different generation believes or how they - how they relate to the workforce" (id. 223-24). Currie also told the plaintiff that, as the Station Manager, he needed to rise above and de-escalate the situation (id. 140). Currie did not indicate that he was there to determine whether any disciplinary action against the plaintiff was warranted (id. 140-41; doc. 22-3, Currie dep. 48). Their conversation in the car concluded with an agreement to discuss the matter further (doc. 22-2, pl. dep. 140).
In his affidavit submitted in support of the opposition to the motion for summary judgment, the plaintiff states: "Currie specifically stated to me that I had an inability to manage based on Generational Differences [sic] and that he believed that was the reason I was having issues with . . . Chapman, a much younger employee [who] worked for me" (doc. 33-2, pl. aff. ¶ 9; see also id. ¶ 25). However, in his deposition, the plaintiff testified that Currie did not make this statement, but rather he believed that Currie implied it (doc. 22-2, pl. dep. 139, 223-26, 243). "It is well recognized that a plaintiff may not avoid summary judgment by submitting an affidavit that conflicts with earlier deposition testimony." Alba v. Merrill Lynch & Co., 198 F. App'x 288, 300 (4th Cir. 2006) (citation omitted).
On March 17, 2017, the plaintiff informed Currie via email that he was going to have a supervisor issue Chapman the results of the fact-finding for refusing mandatory overtime (doc. 22-2, pl. dep. 147-48; doc. 22-4 at 39). Currie responded that a "discussion log" was justified for refusing mandatory overtime, but "the letter of warning for her not making eye contact" was not (doc. 22-4 at 39). After the plaintiff sought confirmation, Currie reiterated in a followup email that he was instructing the plaintiff to remove the letter of warning from Chapman's file (id.). The plaintiff did not notify Chapman that the letter was removed (doc. 22-2, pl. dep. 151-52). He testified that he was waiting to see either Wagener or Chapman to let them know (id. 152-53).
The plaintiff testified that a "discussion log" is not considered discipline but is "basically saying we talked about it" (doc. 22-2, pl. dep. 112-13).
The plaintiff stated in his affidavit submitted with his response in opposition to the motion for summary judgment that, on March 21, 2017, Labor Relations completed an investigation into Chapman's complaints about him and determined that he "did nothing wrong" (doc. 33 at 13, 17, 28) (citing doc. 33-2, pl. aff. ¶ 17).
As noted by the defendant in its reply, there is no record evidence presented of any such determination (doc. 35 at 2-3).
From March 29-30, 2017, the plaintiff was in the hospital for evaluation for chest/ abdominal symptoms, with a return to date of April 3, 2017 (doc. 33-15).
Currie testified that he felt the plaintiff "wasn't understanding the severity of the situation with [Chapman] that could have been handled more appropriately" (doc. 22-3, Currie dep. 56). Currie asked the plaintiff to come to Houston to meet with him face-to-face, so he could "emphasize that point" (id.; doc. 22-2, pl. dep. 154). Prior to their meeting, the plaintiff drafted a three-page letter to Currie, dated April 6th, with 25 pages of attachments, which he planned to present to Currie at the meeting in Houston(doc. 22-2, pl. dep. 160, 165-66; doc. 33-14 at 2-4). In the letter, the plaintiff outlined the ways in which he disagreed with Currie's management and overall handling of the Chapman issue, stating that Currie "undermined [his] authority in the station," "blew this so out of proportion," and "muddied the waters and made this a complicated mess" (doc. 33-14 at 2-4). The plaintiff stated in the letter that he felt Currie's statement that the issue was "generational" was hurtful and discriminatory as he took it to mean that Currie thought he was "too old to relate to the younger generation, and that this is why the break down occurred" (id. at 3). The plaintiff also stated that making him fly to Houston left him "in a threatened state, to imagine the worst" (id.). He stated that it caused him "great anxiety" and put him in the hospital (id.). He stated that requiring him to go to Houston "was a bullying tactic that violates the Companies [sic] Bullying and Hazing Policy" (id.). The plaintiff concluded by stating: "I do not know how this is to be fixed, but I do know that I didn't create this mess and I am powerless to realign the situation to regain peace and harmony. Only you can fix it" (id. at 4).
The plaintiff and Currie met in Houston on April 6, 2017 (doc. 22-2, pl. dep. 160). While the plaintiff decided not to give the letter to Currie, he testified that he discussed with Currie nearly everything written in the letter during their meeting (see, e.g., id. 160, 162, 239-40). The plaintiff testified that the only thing he did not discuss with Currie that was in the letter was "out of fear, . . . the age discrimination part" (id. 240). Currie stressed to the plaintiff the importance of winning Chapman and Wagener's trust and taking the high road to get past the situation (id. 164-65). Currie instructed the plaintiff to sit down and meet with Chapman and Wagener, and the plaintiff testified that was what he had planned to do (id. 169). The plaintiff testified that he understood that he needed to go back and "make this right with Danielle and Ryan" (id.). Because Currie "told [him] there would not be any discipline issued" to him, the plaintiff did not give Currie the letter he had prepared (id. 166, 169). Currie testified that he already informed Chapman that the letter of warning was going to be removed from her file (doc. 33-3, Currie dep. 60).
Currie called the plaintiff on April 19, 2017, to ask him if he had met with Chapman (doc. 22-2, pl. dep. 177). The plaintiff understood from that conversation that Currie was upset that he had not yet spoken with Chapman, and Currie indicated that he should speak to her as soon as possible (id. 187). The plaintiff sent Currie an email explaining that, given his schedule and Chapman's, the only opportunity he had to speak with her was on April 11th, but he missed that opportunity (doc. 22-4 at 46). Later that day, the plaintiff met with Chapman (doc. 22-2, pl. dep. 177). He told Chapman that Currie had planned to come to Charleston but was unable to do so, so Currie asked the plaintiff to sit down with her and talk to her about what they were going to do with the letter (id. 179).
On April 20, 2017, Currie sent the plaintiff an email asking him whether he had at any time between returning from Houston and April 19th communicated to Chapman that he intended to speak to her. The plaintiff replied that he had not because the only time he saw her was on April 11th, but he did not want to bring up the issue then because they were in a room full of people (doc. 22-4 at 47).
On Friday, May 5, 2017, Currie emailed the plaintiff a letter of expectation based upon the plaintiff's failure to "defuse an emotional situation" between himself and Chapman in March, and his subsequent failure to "communicate [his] intentions to speak with [Chapman] until April 20th," despite Currie's "directive to return to Charleston and meet with the ops agent" (doc. 22-2, pl. dep. 66-67; doc. 22-4 at 23, 25). Currie also noted that when the plaintiff ultimately met with Chapman, he prefaced the conversation by stating that Currie directed him to have the conversation (doc. 22-4 at 25). Currie stated that the plaintiff failed "to display emotional intelligence, make Employees [sic] concerns a priority, promptly address issues, and take ownership and responsibility when speaking with Employees" (id.). The letter stated that "[a]ny future incidents of this nature will result in disciplinary action up to, and including, termination" (id.). The plaintiff responded to Currie that he needed to speak with him the following Monday, May 8th (id. at 23).
On May 8th, the plaintiff sent Currie an email, copying Toni Hamilton in Employee Relations, stating that it was 5:00 p.m., and he had not heard from Currie to discuss the letter of expectation, and the pressure Currie was putting on him was affecting his health and blood pressure (doc. 22-4 at 23). The plaintiff stated that he was left with no choice but to report Currie's behavior to Employee Relations in hopes they would "stop the harassment, bullying, and retaliation" (id.). The plaintiff stated that he was attaching the April 6th letter that he had not given to Currie earlier because he believed that they had "reached an understanding of what happened between" the plaintiff and Chapman and "that no discipline would be issued" (id.). The plaintiff returned the letter of expectation to Currie on the same date with a notation on it that he signed "under duress" and was reporting Currie's behavior to Employee Relations (id. at 25).
The plaintiff states in his opposition memorandum that, on May 5, 2017, he made a complaint to Hamilton that he was being harassed by Currie based on his age (doc. 33 at 16, 29) (citing doc. 33-2, pl. aff. ¶ 24). However, this claim is contradicted by the plaintiff's deposition testimony and documentary evidence showing that the plaintiff copied Hamilton with the email he sent to Currie on May 8, 2017, to which he attached the April 6th letter to Currie stating that Currie's "generational" comment was hurtful and discriminatory (doc. 33-14 at 2). The evidence indicates that the plaintiff spoke to Hamilton sometime thereafter (doc. 22-4 at 23-56; doc. 22-2, pl. dep. 186, 207-209, 240-41). Notably, the plaintiff also alleges in his complaint that he complained about Currie to Employee Relations on May 8, 2017, rather than on May 5, 2017 (doc. 1-1 at 13).
The plaintiff was out of work on May 11-12, 2017, for medical reasons (doc. 33-15).
After review, Employee Relations determined that there was nothing in the plaintiff's complaint (i.e. April 6th letter) that raised a protected issue, and Hamilton relayed the findings to the plaintiff on May 22, 2017 (doc. 22-2, pl. dep. 207-209; doc. 22-4 at 55-56). Specifically, Hamilton informed the plaintiff that she did not find Currie's generational gap comment to be age discrimination because "generational gaps are something [the defendant] train[s] on" (doc. 22-2, pl. dep. 241-42).
Chris Johnson, Currie's supervisor and the Senior Director for Ground Operations, reviewed the plaintiff's concerns about Currie's behavior, as outlined throughout the April 6th letter (doc. 22-6, Johnson dep. 19-21). Johnson testified that he was aware of what had been going on at the Charleston Station, as he had spoken with both Chapman and Currie after Chapman lodged her complaint against the plaintiff (id. 20, 24). Johnson reviewed the entire situation again and spoke with Currie, Goldberg, Holcomb, Hamilton, and the plaintiff (id. 19, 24, 30-31).
Goldberg was the Vice President of Ground Operations (doc. 22-6, Johnson dep. 19).
In an email to Hamilton in Employee Relations on May 16, 2017, Currie stated that he had reviewed the situation with Johnson and Goldberg and "determined that our best course of action was to separate with [the plaintiff]" based on "his ability to lead the station and insubordination" (doc. 33-3, Currie dep. 72-74). Currie testified that the defendant does not "take terminating managers lightly, and there was a lot of deliberation and conversation . . . [a]nd so we ultimately took a lot of time to come to that conclusion" (id. 75). He testified that, as of May 16th, termination of the plaintiff's employment "was certainly a consideration" (id.).
On June 2, 2017, the plaintiff participated in a conference call with Johnson and Holcomb in which he reiterated that Currie "was unreasonable and unjustified and that the actions were in retaliation for [the plaintiff] refusing to accept responsibility for something that [the plaintiff] did not do. (Yelling at [his] employees)" (doc. 33-2, pl. aff. ¶ 27).
On June 15, 2017, the plaintiff received a letter from Currie terminating his employment with the defendant (doc. 22-2, pl. dep. 211-12; doc. 22-4 at 57). The letter stated that the plaintiff was being terminated from employment because he was "no longer effective as the Station Manager in Charleston" and for conduct that was insubordinate and a violation of the defendant's policies (doc. 22-4 at 57). The letter stated that the plaintiff improperly handled the incident with Chapman, showed an unwillingness to follow Currie's direction by failing to promptly meet with Chapman as instructed, and since receiving the letter of expectation, had failed to improve his behavior as evidenced by the letter sent on May 8th in which he was "openly defiant" toward Currie and the expectations set forth in the letter of expectation (id.).
Johnson testified that the defendant does not allow termination of an employee to be an individual decision, and he, Currie, and Holcomb, discussed the situation and decided that "termination was the right thing to do" because "we have to entrust our leaders to uphold the trust of our employees and make sure that our relationships are adhering to what Southwest would like" (doc. 22-6, Johnson dep. 30-31). Specifically, Johnson testified that, after the letter of expectation, he felt there was still no coordination between the plaintiff and Currie, that the direction from Currie to the plaintiff was not followed in a timely manner or at all, and that there was still no ownership of the situation by the plaintiff (id. 34). Currie testified that the decision was made by the leadership within Ground Operations, which included Currie, Johnson, Holcomb, Goldberg, and In-House Counsel Kevin Minchey (doc. 22-3, Currie dep. 34).
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
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.
Disability Discrimination
The plaintiff alleges that the defendant discriminated against him by considering his disability or perceived disability when considering all employment decisions and termination (doc. 1-1 at 17-18). He alleges in his complaint that he made his direct supervisor (Currie) aware of his anxiety, high blood pressure, and stress (id.).
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. §12112(a).
To establish a claim for disability discrimination under the ADA, a plaintiff must prove "(1) that she has a disability, (2) that she is a 'qualified individual' for the employment in question, and (3) that [her employer] discharged her (or took other adverse employment action) because of her disability." EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir.2000). Disability discrimination may be proven through direct and indirect evidence or through the McDonnell Douglas burden-shifting framework. See Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 & n. 3, 124 S. Ct. 513, 157 L. Ed.2d 357 (2003).Jacobs v. N.C. Admin. Off. of the Courts, 780 F.3d 562, 572 (4th Cir. 2015). See Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 234 (4th Cir. 2016) (holding that a "but-for" causation standard applies in the ADA context).
Both parties have analyzed the plaintiff's ADA cause of action under the McDonnell Douglas burden-shifting framework, and the undersigned finds that it is appropriate here (see doc. 22-1 at 17-19; doc. 33 at 22-25). The plaintiff testified that his "disability" is the depression he began to suffer in October 2016 as a result of his separation with his wife (doc. 22-2, pl. dep. 218-19, 230-31). He stated that his depression affected him emotionally and made his work very difficult, but that Currie always supported him and even made arrangements to have someone cover for him when he needed to miss work (id. 203-204, 232). The plaintiff confirmed that no one, including Currie, criticized him during that period of time for his work performance or for having a disability (id. 58-59, 204, 232). When asked how he believes he was treated differently due to the health conditions that he suffered in 2017, which include high blood pressure and anxiety, the plaintiff testified as follows:
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Q: How were you treated differently as a result of your health condition?
A: I've never known of anyone being told you have to fly to Houston to speak with me, so I can impress my directive upon you. I've never had that happen, in the 37 years that I've worked for Southwest Airlines.
Q: You think that that happened because of your health condition?
A: No. I think that caused my health condition.
Q: Okay. So you are alleging that your health condition was one of the damages you suffered . . . . But are you alleging that you were somehow treated differently or discriminated against or harassed because of your health condition?
A: Not - well, I wouldn't say it was because of my health condition. But it - I'm saying it caused my health condition.
Q: Okay. And that's - that's all I'm trying to get clear in my mind, is you're talking about your health condition as a symptom or result of the way you were treated?
A: Yes.(Id. 233-34).
Q: Not that you were treated that way because of your health condition?
A: Yes.
Q: Okay. And those significant health problems that you began to experience in March of 2017, was that because you feared for your job?
A: Yes.
The defendant argues that the plaintiff cannot show that he was treated differently based on his alleged disability or that his alleged disability was considered in the decision to issue him a letter of expectation or to terminate his employment (doc. 22-1 at 17-19). The defendant further argues that the plaintiff's testimony confirms that he is not claiming he was treated differently than other employees due to his alleged disability or health condition, but just that he believes he suffered health problems because he feared for his job (id.).
In response to the motion for summary judgment, the plaintiff argues that he can show a prima facie case of disability discrimination because:
Pursuant to Jacobs analysis, the Plaintiff is an individual with a disability. At the very least Currie perceived the Plaintiff as having a disability. The Second analysis is whether the Plaintiff is a qualified individual with a disability. The Plaintiff is a qualified individual because he performed the essential functions of his position with or without accommodation.(Doc. 33 at 25). The plaintiff argues that the defendant "makes no substantial argument and only [bases] the conclusion that the claim should be dismissed because of the [p]laintiff's testimony during one portion of his deposition" and further argues that he "is not an attorney and therefore does not have the working knowledge to know if he has a claim for violations of the [ADA]" (id.). The plaintiff continues, "Currie was well informed of the [p]laintiff's condition in March because the plaintiff was in the hospital. The ADA claim is about how Currie perceived the [p]laintiff" (id).
It is clear from the record that the Plaintiff suffered an adverse employment action as he was terminated from his employment. The Defendant is not entitled to summary judgment regarding the Plaintiff's Americans' with Disability claim. . . .
The court will assume for purposes of this motion that the plaintiff can establish that he is a qualified individual with a disability under the ADEA. Further, he has shown that he suffered an adverse employment action when the defendant terminated his employment. However, the plaintiff ignores that the third element of the prima facie case requires evidence that the employer took the adverse employment action because of his disability. While the plaintiff faults the defendant for citing only one portion of his deposition, the plaintiff has failed to cite any evidence supporting a claim for disability discrimination. Moreover, while the plaintiff is not an attorney, the plaintiff's deposition testimony set out above simply regarded how he was treated differently due to his alleged disability, and the plaintiff clearly testified that he was not treated differently because of his alleged disability or perceived disability. As the plaintiff has not shown any evidence that he was treated differently based on disability or that his alleged disability was considered in the decision to issue him a letter of expectation or terminate his employment, summary judgment should be granted to the defendant on this cause of action.
Age Discrimination
The plaintiff alleges that the defendant discriminated against him based on his age in violation of the ADEA (doc. 1-1 at 18-19). 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).
To lodge a claim of age discrimination, a plaintiff may proceed through either of two avenues of proof: by raising a presumption of discrimination, or by offering direct or circumstantial evidence of the employer's discriminatory animus. Regardless of the method employed, the burden
remains the same: plaintiff must prove that age was the but-for cause of [the defendant's adverse action].Arthur v. Pet Dairy, 593 F. App'x 211, 212 (4th Cir. 2015).
The plaintiff argues that Currie's "generational gap" comment is direct evidence of age discrimination. As set out above, the plaintiff testified that a conversation took place between himself and Currie on March 16, 2017, when Currie traveled to the Charleston Station to investigate the incident between the plaintiff and Chapman. When the plaintiff drove Currie to his hotel, Currie conveyed to the plaintiff Chapman's and Wagener's version of the events on March 8th (doc. 22-2, pl. dep. 137-38). The plaintiff told Currie that their version was not what happened, and Currie told the plaintiff, "Well, their perception is their reality" (id. 138). When the plaintiff asked Currie what he thought the problem was, Currie stated that he thought the problem was because of a "generational gap" (id. 139, 224, 226, 243). The plaintiff understood Currie's comment as telling him that he had "lost touch with the younger generation because [he was] too old" (id. 139). The plaintiff recalled attending training classes on "discussing the different generational gaps . . . trying to recognize what a different generation believes or how they - how they relate to the workforce," and he would have expected that Currie would have been trained on this as well (id. 223-24). The plaintiff also testified that when Hamilton from Employee Relations told him that she did not see anything to indicate age discrimination in Currie's remarks, she also noted that the defendant trained its employees on "generational gaps" (id. 241-42).
The court agrees with the plaintiff's argument that "[d]erogatory 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" (doc. 33 at 32). Here, however, Currie's comment is not direct evidence that age animus formed the basis for the decision to terminate the plaintiff's employment. "'[C]ourts have found only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, to constitute direct evidence of discrimination.'" Martin v. Alumax of S. C., Inc., 380 F. Supp.2d 723, 728 (D.S.C.2005) (quoting Carter v. Miami, 870 F.2d 578, 582 (11th Cir. 1989)). While the plaintiff felt that Currie implied that the plaintiff was too old to understand his employees (doc. 22-2, pl. dep. 176), the comment is certainly open to other reasonable interpretations, particularly since the evidence is undisputed that the defendant trains it employees on "generational gaps" so that employees may "understand how somebody perceives something or how somebody thinks about something, so that you can manage appropriately to that belief" (doc. 22-2, pl. dep. 244). "Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact without any inferences or presumptions." Mitchell v. Med. Univ. Hosp. Auth., C.A. 2:11-2028-RMG, 2013 WL 4041954, at *12 n.9 (D.S.C. Aug. 7, 2013) (citations omitted). The statement by Currie does not indicate that he was motivated to terminate the plaintiff's employment based on his age. See O'Neal v. Wal-Mart Stores East LP, C.A. No. 4:11-1239-TLW-KDW, 2012 WL 7656444, at *5-6 (D.S.C. Nov. 16, 2012) (finding alleged comments insufficient to reflect discriminatory animus "because there may have been other reasonable interpretations of the comment") (citation omitted), R&R adopted by 2013 WL 809244 (D.S.C. Mar. 5, 2013); Guinan v. Boston Coll., C.A. No. 05-10805-DPW, 2006 WL 2987045, at *7-8 (D. Mass. Sept. 29, 2006) (determining that five alleged remarks did not raise a genuine issue of material fact concerning age animus where one comment was that plaintiff's mistake may have been the result of "generational difference" because "[n]o reasonable jury could conclude that [defendant] engaged in age discrimination based upon his suggestion that [plaintiff]'s poor performance could be a result of 'generational differences'"). Further, the remark was made at least two months prior to any decision to terminate the plaintiff's employment and three months prior to the plaintiff's actual termination from employment. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J. concurring) (stray remarks, including "statements by decisionmakers unrelated to the decisional process itself" are not direct evidence of discrimination).
In the alternative, the plaintiff argues that he can prove his claim under the McDonnell Douglas standard (doc. 33 at 35-36). The plaintiff must first establish a prima facie case of age discrimination, which requires that he show: (1) he is a member of the protected class; (2) he suffered an adverse employment action; (3) at the time of the adverse employment action, he was performing his job at the level that met the employer's legitimate expectations; and (4) he was discharged under circumstances that raise a reasonable inference of unlawful discrimination. Brown v. City of Columbia, C.A. No. 3:10-cv-2860-JFA, 2012 WL 3838109, at *2 (D.S.C. Sept. 4, 2012) (citing O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 310-12 (1996)). Though "the plaintiff's burden is not onerous," he must nevertheless prove his prima facie case by a preponderance of the evidence. Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515 (4th Cir.2006) (internal quotation marks omitted).
Here, it is undisputed that the plaintiff was a member of the protected class (over 40 years of age) and that he suffered an adverse employment action when he was terminated from employment. The defendant argues that the plaintiff cannot meet the third and fourth elements of a prima facie case of age discrimination (doc. 22-1 at 24-26). Assuming for purposes of this motion that the plaintiff can show that he was meeting the defendant's legitimate expectations at the time of the adverse employment action, the plaintiff has failed to show that he was discharged under circumstances that raise a reasonable inference of discrimination. The only evidence the plaintiff points to is Currie's "generational gap" comment, which, as discussed above, is a topic on which the defendant trains its employees. This sole comment does not raise a reasonable inference that the defendant's decision to terminate the plaintiff's employment was motivated by his age.
Further, if the plaintiff can establish a prima facie case, the burden then shifts to the defendant to produce a legitimate, nondiscriminatory reason for its actions against the plaintiff. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-55 (1981) (this is a burden of production, not persuasion). The defendant has done so here. In the letter issued on June 15, 2017, Currie stated that the plaintiff was being terminated from employment because was "no longer effective as the Station Manager in Charleston" and for conduct that was insubordinate and a violation of the defendant's policies (doc. 22-4 at 57). The letter stated that the plaintiff improperly handled the incident with Chapman, showed an unwillingness to follow Currie's direction by failing to promptly meet with Chapman as instructed, and since receiving the letter of expectation, had failed to improve his behavior as evidenced by the letter sent on May 8th in which he was "openly defiant" toward Currie and the expectations set forth in the letter of expectation (id.).
The plaintiff must then show by a preponderance of the evidence that the proffered reason was a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), the United States Supreme Court held that the language "because of" in the ADEA means that a plaintiff has to prove that age discrimination is the "but-for" cause of the adverse act, meaning that "age was the reason that the employer decided to act." Id. at 176 (citing 29 U.S.C. § 623(a)(1)) (other citations omitted). However, "pursuant to Gross, for an event to be the 'but-for cause,' it need not be the sole cause of the adverse employment action." Arthur, 593 F. App'x. at 220 (citing Leal v. McHugh, 731 F.3d 405, 415 (5th Cir. 2013)). As the Fourth Circuit has further stated, "When evaluating cases like this on summary judgment, our focus is on whether the plaintiff has provided sufficient evidence to cast doubt upon the employer's stated reasons for the employment action, such that a reasonable juror may find age was the determinative factor in that decision." Id. at 220-21.
Here, viewing the evidence in the light most favorable to the plaintiff, the evidence fails to provide any inference that the defendant's decision to terminate the plaintiff's employment was motivated by an anti-age bias or animus. Specifically, the evidence shows that, prior to the incident with Chapman in March 2017, the plaintiff received positive performance evaluations from Currie for the years 2014, 2015, and 2016, having most recently received an "outstanding" rating for his performance between February 1, 2016, and January 31, 2017 (doc. 22-2, pl. dep. 58-63; doc. 33-5). "As such, these records show no evidence of age bias, or that the [d]efendant would have had (or was looking for) a reason to terminate the [p]laintiff because of his age." Blythe v. Harris Teeter, LLC, C.A. No. 2:17-3012-DCN-BM, 2019 WL 1793322, at *5 (D.S.C. Apr. 3, 2019), R&R adopted by 2019 WL 1787537 (D.S.C. Apr. 24, 2019) (granting summary judgment on ADEA claim).
Further, as noted, the only evidence the plaintiff points to is Currie's "generational gap" comment, which was made at least two months prior to any decision to terminate the plaintiff's employment and three months prior to the plaintiff's actual termination from employment. Moreover, it is undisputed that, beginning in mid-March 2017, Curie began coaching the plaintiff with regard to the Chapman incident, telling the plaintiff that, as the Station Manager, he needed to "rise above and deescalate the situation" (doc. 22-2, pl. dep. 140). Further, by March 17, 2017, Currie let the plaintiff know that he disagreed with the decision to issue Chapman a letter of warning for her attitude (doc. 22-4 at 39). Further, it is clear that Currie was not pleased with the plaintiff's performance when Currie required him to come to Houston on April 6th (dc. 22-2, pl. dep. 170). At that meeting, the plaintiff understood that Currie "wanted [him] to sit down and meet with [Chapman and Wagener]" (id. 169). However, the plaintiff had not yet met with Chapman when Currie called him on April 19, 2017 (id. 177). The plaintiff understood from that conversation that Currie was upset that he had not yet spoken with Chapman (id. 187). Then, on May 5, 2017, Currie emailed the plaintiff a letter of expectation based upon the plaintiff's failure to "defuse an emotional situation" between himself and Chapman in March, and his subsequent failure to "communicate [his] intentions to speak with [Chapman] until April 20th," despite Currie's "directive to return to Charleston and meet with the ops agent" (id. 66-67; doc. 22-4 at 23, 25). Currie also noted that when the plaintiff ultimately met with Chapman, he prefaced the conversation by stating that Currie directed him to have the conversation (doc. 22-4 at 25). The plaintiff was then terminated from employment on June 15, 2017, because he was "no longer effective as the Station Manager in Charleston" and for conduct that was insubordinate and a violation of the defendant's policies (doc. 22-4 at 57). The letter stated that the plaintiff improperly handled the incident with Chapman, showed an unwillingness to follow Currie's direction by failing to promptly meet with Chapman as instructed, and since receiving the letter of expectation, had failed to improve his behavior as evidenced by the letter sent on May 8th in which he was "openly defiant" toward Currie and the expectations set forth in the letter of expectation (id.).
Throughout the memorandum in opposition to the motion for summary judgment, the plaintiff references "comments" by Currie regarding the plaintiff's age (doc. 33 at 7, 34, 35). However, the undisputed evidence in this case is that Currie made a single comment about the generational gap as discussed at length herein.
The plaintiff has failed to provide evidence sufficient to establish a genuine issue of fact as to whether the defendant's decision to terminate his employment was based on, or had anything to do with, the plaintiff's age. Other than the plaintiff's own speculation, there is no evidence that the defendant's decision to terminate the plaintiff's employment (whether justified or not) had any age-based motivation whatsoever. "The [ADEA] does not protect against unfair business decisions - only against decisions motivated by unlawful animus." Rudolph v. Hechinger, 884 F. Supp. 184, 188 (D. Md. 1995) (citation and internal quotation marks omitted). "Although the plaintiff may sincerely believe that he was discharged because of his age, his own conclusory and self serving belief, no matter how heartfelt, is simply not sufficient absent any supporting evidence to defeat the defendant's motion for summary judgment." Blythe, 2019 WL 1793322, at *6 (citations omitted).
Based upon the foregoing, the defendant's motion for summary judgment should be granted on this cause of action.
Retaliation
The plaintiff alleges that he complained to the defendant regarding discrimination based on age and disability, and the defendant retaliated against him by placing him in a hostile work environment and terminating his employment (doc. 1-1 at 20-21). Initially, the court notes that, in the motion for summary judgment and response in opposition, both parties address the plaintiff's retaliation cause of action as being brought solely pursuant to the ADEA (doc. 22-1 at 28-35; doc. 33 at 1, 36-39). However, in the retaliation cause of action alleged in the complaint, the plaintiff cites only the ADA, rather than the ADEA, and alleges that "as a result of [his] complaints regarding discrimination based on his Age and Disability and hostile work environment . . . the Defendant retaliated against the Plaintiff and terminated his employment" (doc. 1-1 at 20-21). The record is devoid of any evidence that the plaintiff ever complained prior to his termination from employment regarding discrimination based on disability. Accordingly, to the extent any claim for retaliation in violation of the ADA is being pursued by the plaintiff, it should be dismissed.
In Ullrich v. CEXEC, Inc., the Court of Appeals for the Fourth Circuit set out the burdens of proof on a motion for summary judgment on a claim of retaliation under the ADEA:
A plaintiff may proceed by direct and indirect evidence of a retaliatory animus or by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973). See Foster v. Univ. of Md., 787 F.3d 243, 249 (4th Cir. 2015). Under McDonnell Douglas, once the plaintiff establishes his prima facie case, the burden shifts to the employer to put forth a legitimate, non-discriminatory reason for the action. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To prevail on an ADEA or ADA retaliation claim, a plaintiff must show that: (1) he engaged in protected conduct; (2) an adverse action was taken against him by the employer; and (3) there was a causal connection between the first two elements. See Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (ADA); Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc) (ADEA). If this burden is met, the plaintiff must then show by a preponderance of the evidence that the proffered reason is pretextual or his claim will fail. See Foster, 787 F.3d at 250. That is, "[i]f a plaintiff can show that [ ]he was fired under suspicious circumstances and that h[is] employer lied about its reasons for firing h[im], the factfinder may infer that the employer's undisclosed retaliatory animus was the actual cause of her termination." Id.709 F. App'x 750, 753 (4th Cir. 2017).
The defendant first argues that the plaintiff cannot show that he engaged in protected conduct (doc. 22-1 at 29-31). "Protected oppositional activities may include staging informal protests and voicing one's own opinions in order to bring attention to an employer's discriminatory activities, . . . as well as complain[ts] ... about suspected violations." E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (citations and internal quotation marks omitted).
As set out in detail above, on May 8, 2017, the plaintiff sent Currie an email, copying Toni Hamilton in Employee Relations, stating that he had not heard from Currie to discuss the letter of expectation he had received on May 5th (doc. 22-4 at 23). The plaintiff stated that he was left with no choice but to report Currie's behavior to Employee Relations in hopes they would "stop the harassment, bullying, and retaliation" (id.). The plaintiff attached the April 6th letter that he had not given to Currie earlier, which outlined the ways in which the plaintiff disagreed with Currie's management and overall handling of the Chapman issue. In the April 6th letter, the plaintiff further stated that he felt Currie's statement that the issue was "generational" was hurtful and discriminatory as he took it to mean that Currie thought he was "too old to relate to the younger generation, and that this is why the break down occurred" (doc. 33-14 at 3).
In Buchhagen v. ICF Int'l, Inc., cited by the defendant, the Court of Appeals for the Fourth Circuit noted that the plaintiff "brought her age and its protective status to [her employer's] attention only once, in her July 20 e-mail to Human Resources. And when read in context, her cursory statement seems to be an afterthought in a laundry list of other complaints rather than the driving force behind any fear of age discrimination or age-related termination." 650 F. App'x 824, 829 (4th Cir. 2016). The court noted that it was "hard pressed to credit th[e] stray reference [to age in the email] as carrying the day" to show protected activity, but, ultimately, the court, "for purposes of efficiently adjudicating [the] case," assumed that the plaintiff engaged in protected activity as required by the ADEA. Id. Likewise, here, the undersigned will assume for purposes of this motion that the plaintiff engaged in protected activity in copying Hamilton with the email on May 8th.
"[A] plaintiff raising a retaliation claim must show a causal connection between the adverse employment action and the protected activity." Buchhagen, 650 F. App'x at 829 (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)). Further, "the traditional principles of but-for causation apply here, which simply means that the retaliation was the 'real reason' for the adverse employment action. Put differently, the employee must show that he would not have suffered an adverse employment action 'but for' the protected activity." Id. (quoting Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015)). Under the McDonnell Douglas framework, the plaintiff "must establish both that [the defendant's proffered legitimate business] reason was false and that retaliation was the real reason for the challenged conduct." Id. (citing Foster, 787 F.3d at 252).
As argued by the defendant, the Buchhagen case is instructive here. Buchhagen had a good relationship with her supervisor of several years, Beebe, who had even promoted Buchhagen shortly before the events giving rise to her lawsuit. Id. at 826. One day, Buchhagen failed to correctly upload a glossary, and despite the issue being corrected, Buchhagen insisted she had done nothing wrong, and "her attitude towards the problem and others' involvement in the solution became contentious." Id. Ultimately, the "issue initiated a trend of insubordination and overall problematic behavior by Buchhagen." Id. Among other things, Buchhagen began undermining Beebe's authority by questioning the implementation of a backup plan, which led Beebe to issue Buchhagen a Process Improvement Plan ("PIP"). Id. at 826-27. Not long thereafter, Buchhagen "sent a document thoroughly detailing all of her complaints of harassment and discrimination to Human Resources" - raising, for the first time, complaints of age discrimination. Id. at 827. Just a few days later, Buchhagen's employment was terminated. Id. Ultimately, after being remanded by the Fourth Circuit as to some claims, the district court granted the defendant's motion for summary judgment on Buchhagen's ADEA retaliation claim, and she appealed. Id. The Fourth Circuit concluded that Buchhagen failed to establish that the defendant's proffered legitimate business reason was false and that retaliation was the real reason for her termination. Id. at 829. In so holding, the court noted in relevant part:
[S]ome of Buchhagen's behavior as described in the complaint could be construed as problematic or even insubordinate. Discovery proved this statement to be true, and in light of the undisputed evidence of Buchhagen's continued
insubordination, no reasonable jury could conclude she was terminated for any reason other than [defendant]'s legitimate business interest.Id. at 829-30 (internal quotation marks and citations omitted).
Buchhagen's interactions with Beebe after the [glossary] incident demonstrated a troubling pattern of obstinate behavior to the point where Beebe lost trust in Buchhagen's ability to perform her job. . . . [The defendant] noticed that Buchhagen repeatedly refused to acknowledge Beebe's authority as her supervisor.
The court further highlighted the fact that defendant's growing dissatisfaction with Buchhagen's performance and the decision to place her on the PIP predated her alleged protected activity. Id. at 830 (emphasis added.) The court concluded that Buchhagen's argument based on the temporal proximity between her termination and her protected activity was insufficient to persuade a reasonable jury that she was fired because of her age, noting that it had recently held:
While the temporal proximity between [an employee's] protective activity and the [adverse employment action] may be sufficient to make an initial prima facie showing of causation, timing alone generally cannot defeat summary judgment once an employer has offered a convincing, nonretaliatory explanation. Without more than his own assertions, [an employee] cannot meet his burden at summary judgment.Id. (quoting S.B. ex rel. A.L. v. Bd. of Educ. of Hartford Cty., 819 F.3d 69, 78-79 (4th Cir. 2016)). The Fourth Circuit then noted that the district court "fittingly summarized" Buchhagen's claims as follows:
[T]his case provides an unfortunate example of an employee who, though talented, came to believe she was indispensible because of her experience. In effect, plaintiff seeks to turn the ADEA on its head by arguing that her age and experience gave her the right to work on her own, unsupervised and without the backup her employer thought was essential. The ADEA is intended to prevent discrimination based on age, not to confer increased status upon those who become older.Id. (internal citations omitted).
Similarly here, the concerns with the plaintiff's conduct were already in existence before any alleged protected activity. The letter of expectation was issued to the plaintiff on May 5, 2017, based on the handling of the Chapman incident up to that point. The plaintiff did not voice his concerns with Currie's "generational gap" comment to anyone until May 8, 2017. Moreover, the plaintiff was aware of Currie's growing dissatisfaction with his handling of the Chapman issue well before May 8th, as Currie required the plaintiff to travel to Houston in April to discuss the issue, and, in the telephone call on April 19, 2017, the plaintiff understood that Currie was upset that he had not yet spoken with Chapman (doc. 22-2, pl. dep. 166, 169, 177, 187).
While the plaintiff complained in the three-page letter to Currie that his comment "that perhaps this is 'Generational'" was hurtful and discriminatory (doc. 33-14 at 3), the remainder of the three-page letter outlined the ways in which he disagreed with Currie's management and overall handling of the Chapman issue, stating that Currie "undermined [his] authority in the station," "blew this so out of proportion," and "muddied the waters and made this a complicated mess" and concluded by stating: "I do not know how this is to be fixed, but I do know that I didn't create this mess and I am powerless to realign the situation to regain peace and harmony. Only you can fix it" (id. at 2-4). As to the decision to terminate the plaintiff's employment, Johnson, Holcomb, and Currie testified that the plaintiff's continued obstinate and insubordinate behavior (not his age) caused them to lose trust in the plaintiff as a manager and doubt his ability to lead the Charleston Station according to the defendant's values and principles (doc. 22-7, Johnson dep. 30, 33; doc. 22-3, Currie dep. 74, 80-81; doc. 23, Holcomb dep. 32-33). This decision was vetted and agreed with by no less than three people in addition to Currie (doc. 22-7, Johnson dep. 19, 24, 30-31) (indicating that he discussed the situation and termination decision with Currie, Goldberg, Holcomb, and Hamilton). The plaintiff presents no facts to dispute this claim and makes no allegation that Johnson, Goldberg, Holcomb, or Hamilton ever said or did anything to indicate any sort of discriminatory or retaliatory animus towards him.
Based upon the foregoing, the undersigned recommends that the district court find that the plaintiff has failed to establish that the defendant's proffered reasons for terminating his employment were pretext for retaliation. Accordingly, summary judgment should be granted on this cause of action.
Hostile Work Environment
The plaintiff alleges that the defendant discriminated against him because of his age and disability by creating a hostile work environment in violation of the ADEA and ADA (doc. 1-1 at 21-22). "To demonstrate a hostile work environment, a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's [age or disability]; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create and abusive work environment; and (4) which is imputable to the employer." Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 271 (4th Cir. 2015) (citation omitted).
In response to the motion for summary judgment, the plaintiff sets out a timeline that he argues raises "a genuine issue of material fact regarding the . . severe and pervasive Hostile Work Environment [sic] for the last 3 months of his employment . . ." (doc. 33 at 27-30). Viewing the evidence in a light most favorable to the plaintiff, the timeline reveals the following incidents: Wagener "yell[ed] and scream[ed] at the plaintiff using profanity" in Chapman's fact-finding meeting on March 13, 2017; Currie told the plaintiff on March 16, 2017, that he thought the problem between the plaintiff and Chapman and Wagener was because of a "generational gap"; Currie required the plaintiff to fly to Houston on April 6, 2017; the plaintiff was given a letter of expectation on May 5, 2017; and the plaintiff was terminated from employment on June 15, 2017 (id). The plaintiff testified that he was subjected to a hostile work environment because Currie treated him differently with regard to the Chapman incident and terminated his employment for disciplining Chapman through the defendant's processes and policies (doc. 22-2, pl. dep. 232-33). He testified that he was treated differently because Currie asked him to fly to Houston, and the plaintiff has "never known of anyone being told" that before (id. 233).
The plaintiff must show that the severity or pervasiveness of any purported harassment was not just offensive to him, but was objectively abusive as measured by a reasonable person. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). To determine if there was an objectively hostile environment, courts consider "'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.'" Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Actionable harassment occurs "'when the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . .'" Id. (quoting Harris, 510 U.S. at 21). The alleged conduct here falls far short of being severe or pervasive enough to establish an abusive environment.
Further, it is well-established that a "[p]laintiff's disagreement with h[is] supervisors' decisions and management style cannot support a hostile work environment claim." McLaughlin v. CSX Transp., C.A. No. 4:15-cv-0245-RBH-TER, 2016 WL 11410281, at *16 (D.S.C. Aug. 4, 2016), R&R adopted in part & rejected in part by 211 F. Supp.3d 770 (D.S.C. 2016) (affirming summary judgment on the hostile work environment claim). See also Thorn v. Sebelius, 766 F. Supp.2d 585, 601 (D. Md. 2011) (holding that plaintiff failed to establish a claim of a hostile work environment where the cited instances of alleged harassment "amount[ed] to instances where [plaintiff] disagreed with the management style or decisions of those who supervised him—and that alone is not actionable"). Moreover, the plaintiff fails to point to any evidence showing that any of the alleged incidents, including Currie requiring him to travel to Houston to meet with him, were based on the plaintiff's age or alleged disability (see doc. 22-2, pl. dep. 233-34) (testifying that he does not think Currie asked him to fly to Houston because of his health condition).
"Finally, although Plaintiff also alleges that he was terminated, that discrete act does not save his hostile work environment claim where he has otherwise failed to allege sufficiently severe and pervasive conduct to give rise to a plausible claim for relief under the applicable standards for a hostile work environment claim." Oroujian v. Delfin Group USA LLC, 57 F. Supp. 3d 544, 555 (D.S.C. 2014) (citing Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011) ("[A] Plaintiff may not combine discrete acts to form a hostile work environment claim without meeting the required hostile work environment standard")). See also Ellington v. Metro. Sec. Serv., C.A. No. 2:15-1804-MGL-PJG, 2017 WL 9471791, at *7 (D.S.C. Jan. 12, 2017) ("[A] discrete act of alleged discrimination cannot form the basis for a hostile work environment claim.") (citation omitted), R&R adopted by 2017 WL 541051 (D.S.C. Feb. 10, 2017).
The plaintiff's conclusory allegation that he was subjected to a hostile work environment because of his age and disability without more is insufficient to preclude summary judgment. Based upon the foregoing, summary judgment should be granted to the defendant on the hostile work environment cause of action.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the defendant's motion for summary judgment (doc. 22) be granted.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge June 28, 2019
Greenville, South Carolina
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).