Opinion
7:20-cv-00544-TMC-JDA
05-11-2021
Wyneika K. Griffin, Plaintiff, v. American Credit Acceptance LLC, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Defendant's motion for summary judgment. [Doc. 27.] Plaintiff alleges violations under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), based on pregnancy discrimination and retaliation, as well as violations of the Family and Medical Leave Act of 1993 (“FMLA”). [Doc. 1-1.] Pursuant to the provisions of 28 U.S.C. § 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.
Plaintiff brought suit in the Spartanburg County Court of Common Pleas on December 30, 2019. [Doc. 1-1.] Defendant removed the case to this Court on February 4, 2020. [Doc. 1.] On April 7, 2021, Defendant filed a motion for summary judgment. [Doc. 27.] Plaintiff filed a response on April 21, 2021, and Defendant filed a reply on April 28, 2021. [Docs. 28; 29.] Accordingly, the motion is ripe for review.
BACKGROUND
Viewing the summary judgment record in the light most favorable to Plaintiff, as is appropriate on consideration of Defendant's summary judgment motion, the undersigned gleans the following facts.
Defendant hired Plaintiff to begin working March 6, 2017, as a Servicing Specialist. [Doc. 27-2 at 3-4.] Her job duties included collecting loan payments and providing customer service to customers who could not make a payment in a particular month. [Id. at 5.] Plaintiff spent much of her workday on calls with customers regarding late payments. [Id. at 5-6.] These job duties required Plaintiff to be at her desk.
Beginning in January 2018, Plaintiff's supervisor was Jamaal Hawkins. [Id. at 10.] Plaintiff informed Hawkins in February 2018 that she was pregnant. [Id. at 14-15.] Later, in April 2018, Plaintiff submitted a request for FMLA leave to be taken in October 2018, when she expected that her child would be born. [Id. at 52, 54, 57, 63-66.] Defendant immediately approved the request to begin leave on October 4, 2018. [Id. at 67-68.]
Plaintiff alleges that after she told Hawkins of her pregnancy in February 2018, he began to criticize her regarding what she considered to be “small things.” [Id. at 14-16.] Plaintiff indeed requested to be moved to another team, complaining that Hawkins was being more critical of her than he was of other team members. [Doc. 28-1 at 5-7.] She particularly complained that he coached her-she used the term “nitpicked”-concerning certain issues that he did not raise with other team members and that he tried “to point [her] for days [she] had missed, but because [she] had doctor's notes for . . . being at the hospital because of the sickness in [her] early pregnancy, . . . [Hawkins] had to remove those occurrences from [her] account.” [Id. at 7-8.]
That Hawkins criticized Plaintiff at times is undisputed. For example, on March 9, 2018, Plaintiff “became loud, confrontational[, ] and behaved in an inappropriate manner toward a co-worker, Cierra Johnson[, ] . . . result[ing] in Ms. Johnson complaining that she felt threatened by [Plaintiff].” [Doc. 27-4 ¶ 5.] Hawkins “coordinated with Kate Kolakowski from [Defendant's] Human Resources Department and [they] issued [Plaintiff] a written warning.” [Id.; see also id. at 9.]
In April 2018, Hawkins “addressed an issue with [Plaintiff] about [her] loud and unprofessional conduct in front of other associates.” [Id. ¶ 6.] “In response to an e-mail about reducing her amount of idle time on the phone, [Plaintiff] made a comment in an unprofessional manner that she ‘knew how to do her job.'” [Id.] Plaintiff “responded negatively to [Hawkins's] attempts to improve [her] performance.” [Id.]
The primary subject of Hawkins's coaching, however, concerned Not Ready Time (“NRT”), which “refers to the time [Defendant's] associates are away from their desks and not ready to work.” [Docs. 27-3 ¶ 4; 27-4 ¶ 7; 27-5 ¶ 5.] Defendant tracks these minutes daily. [E.g., Doc. 27-4 at 18-32.] ¶ 2018, Defendant required associates in the Servicing Department to limit their NRT minutes to 100 or fewer per day. [Docs. 27-3 ¶ 4; 27-4 ¶ 7; 27-5 ¶ 5.] These associates were allowed several breaks during the workday, including a one-hour break for lunch, two 15-minute breaks, and two five-minute restroom breaks. [Docs. 27-2 at 7; 27-4 ¶ 7; 27-5 ¶ 6.] Associates were given the flexibility to manage their break times, adjusting them as the day proceeded, in order to stay within the 100-minute NRT limit. [Docs. 27-3 ¶ 5; 27-4 ¶ 8; 27-5 ¶ 6.] And an associate would be free to take additional restroom breaks so long as the time came out of one of the other allowed breaks, so that the 100-minute limit was not exceeded. [Doc. 27-2 at 8-9.]
Plaintiff's Team Leader under Hawkins, Cassandra Kennedy, regularly reminded Plaintiff to monitor her NRT. [Doc. 27-5 ¶ 7.] In approximately February 2018, Plaintiff informed Kennedy that she was pregnant. [Id.] Kennedy told Plaintiff multiple times that if she needed any extra time for restroom breaks because of her pregnancy that she needed to submit a doctor's note so that she would be covered. [Id.] However, Plaintiff never presented a doctor's note stating that the 100-minute limit would not be sufficient. [Id.]
On June 19, 2018, Hawkins spoke to Plaintiff about her exceeding the NRT limit. [Doc. 27-4 ¶ 9.] Hawkins and Kennedy “noticed that [Plaintiff] was exceeding her allotted break time to talk to other associates, ” which she was not entitled to do. [Id.; 27-5 ¶ 9.] On June 21, 2018, Hawkins and Kennedy met with Plaintiff again about her exceeding the NRT requirements, as the same problem continued. [Docs. 27-4 ¶ 10; 27-5 ¶ 10.] Additionally, on June 20, 2018, Plaintiff exceeded her NRT on a day when she was observed sleeping on the floor of the work area during a break. [Docs. 27-4 ¶ 10; 27-5 ¶ 10.]
On July 9, 2018, Hawkins again discussed NRT issues with Plaintiff. [Docs. 27-2 at 44-45; 27-4 ¶ 11.] Plaintiff continued to exceed break times and was observed engaging in personal conversations with other associates. [Doc. 27-4 ¶ 11.] In response to Hawkins's continued requests for her to keep her NRT within the limit, Plaintiff responded “‘whatever you want Jamaal.'” [Id.]
Plaintiff did not improve, however. She returned late from her restroom breaks on July 10, from all breaks on July 11, from all morning breaks on July 13, and from all breaks on July 16. [Id. ¶ 12.] Hawkins met with Plaintiff again on July 17, 2018, to discuss these issues, among others, and to issue a verbal warning. [Id.] Plaintiff agreed that moving forward she would stay within the 100-minute limit. [Id.]
After receiving this verbal warning, Plaintiff requested to meet with Amy Watson, who was Defendant's Senior Manager of Associate Relations at the time. [Doc. 27-3 ¶¶ 2, 7.] The two met on July 17, 2018, at which time Plaintiff expressed concern regarding the corrective action she had received. [Docs. 27-2 at 23-25; 27-3 ¶ 7.] Watson explained to Plaintiff that she did not need to worry about losing her job as a result of her NRT issues. [Docs. 27-2 at 24, 26-27; 27-3 ¶ 16.] Plaintiff wanted to be taken off of Hawkins's team because she believed that would protect her from losing her job. [Doc. 27-2 at 28.] Watson explained to Plaintiff that although Defendant would continue to manage her NRT, Defendant would grant her an accommodation if she needed additional restroom breaks. [Doc. 27-3 ¶ 7.] Watson added that if the restroom breaks caused her to exceed the 100 minutes allowed, she just needed to make sure she was informing her supervisor of her reason for exceeding the limit. [Id.] Watson also told Plaintiff that she needed to keep in mind that it was not appropriate exceed the 100-minute NRT allotment because she chose to socialize with associates or make calls on her cell phone regarding personal matters. [Id.] Watson was aware that Plaintiff was regularly observed going to the restroom but then taking time for personal conversations or calls instead of returning immediately to her desk. [Id.; Docs. 27-4 ¶ 9; 27-5 ¶ 9.]
During this meeting with Watson, Plaintiff asserted she had FMLA to cover extra breaks and that in July 2018 she had provided the appropriate documentation to Kolakowski in human resources. [Doc. 27-3 ¶ 8.] Watson requested a copy of that information because Defendant did not have it in Plaintiff's file. [Id.] Plaintiff ultimately acknowledged that in fact she had not provided that documentation in July 2018, but she stated it was part of the FMLA paperwork she had filed several months before. [Id.] Watson reviewed the documentation and noted that not only were there were no restrictions or allowances recommended, but the medical documentation specifically stated Plaintiff had no restrictions. [Id.] Rather, Plaintiff's FMLA documentation related to her taking leave when she eventually gave birth, and that leave had already been approved by Defendant. [Id.]
Even with Plaintiff having not provided any medical documentation supporting a need for extra restroom breaks, Watson explained to Plaintiff that Defendant would always allow her time to use the restroom when she needed, but that she just needed to take care not to take extra personal time that ends up putting her over the 100-minute limit on a particular day. [Id. ¶ 9.] Plaintiff insisted, however, that, in light of her pregnancy, she needed to be excused from all NRT limitations going forward. [Id.] Watson did not consider this to be a reasonable or necessary request and informed her that Defendant could not grant it. [Id.]
After this meeting, Plaintiff's NRT unrelated to any necessary restroom breaks continued to be a problem. [Id. ¶ 10.] Many such issues involved returning late from lunch or stretching her 15-minute breaks beyond the time allotted. [Docs. 27-3 ¶ 10; 27-4 ¶ 14; 27-5 ¶ 9; 27-6 ¶ 5.] For example, after receiving the verbal warning, Plaintiff exceeded the allotted time on four of her 15-minute breaks, three of her 60-minute breaks, and she exceeded a five-minute restroom break by more than seven minutes. [Docs. 27-3 ¶ 11; Doc. 27-4 ¶ 14.] Plaintiff did not provide her supervisor with any information to suggest that these NRT issues were pregnancy-related. [Doc. 27-3 ¶ 10.]
On July 30, 2018, Hawkins requested approval from his manager, Luis Morelli, for issuance of a written warning based on Plaintiff's continuing NRT issues. [Docs. 27-4 ¶ 13; 27-6 ¶ 6.] Morelli forwarded Hawkins's request to Watson, who “reviewed [Plaintiff's] NRT issues and determined they were excessive.” [Docs 27-3 ¶ 11; 27-6 ¶ 6.] Plaintiff had not shown that she had made any effort to respect the NRT limitations with respect to socializing and personal matters even after issuance of the July 17, 2018, verbal warning. [Docs. 27-3 ¶ 13; 27-5 ¶ 9-10; 27-6 ¶ 7.] Therefore, Watson approved proceeding with a written warning. [Doc. 27-3 ¶ 11.]
Hawkins delivered the written warning to Plaintiff on August 1, 2018. [Id. ¶ 12.] Plaintiff did not agree with this warning and refused to sign it. [Docs. 27-2 at 13; 27-4 ¶ 15.] After receiving the written warning, Plaintiff asked to speak with Watson to discuss the written warning. [Doc. 27-3 ¶ 13.] During this meeting, Plaintiff “provided examples of additional restroom breaks she needed” and Watson “agreed to review the written warning further with the department manager (Luis Morelli) to see if this would potentially change the outcome.” [Id.] Morelli and Watson “reviewed this issue and determined that the examples [Plaintiff] provided were not related to additional restroom breaks due to her pregnancy.” [Id.; Doc. 27-6 ¶ 7.] Rather, Plaintiff's continuing NRT problems were because she had continued to socialize with other associates or to engage in other personal matters. [Doc. 27-3 ¶ 13; 27-6 ¶ 7.]
Later that day, Morelli and Watson met with Plaintiff and informed her that they would not be rescinding the written warning. [Doc. 27-3 ¶ 14; 27-6 ¶ 8.] Morelli's and Watson's accounts of what happened next are quite different from Plaintiff's. According to Morelli and Watson, Plaintiff “became loud, stormed out[, ] slamming the conference room door against the wall, and yelled throughout the human resources office area.” [Docs. 27-3 ¶ 14; 27-6 ¶ 8.] Again according to Morelli and Watson, Plaintiff “then went back to her department but did not return to her desk, ” and “[a]pproximately 15 minutes later she gathered her personal belongings and left work without notifying her team leader, her supervisor, ” or her department manager. [Doc. 27-3 ¶ 14; 27-6 ¶ 8.] In contrast, Plaintiff testified at her deposition that she “never lost [her] temper, ” “was never belligerent with [Watson] in any way, shape, or form, ” and did not abruptly leave the conference room while continuing to yell as she left the human resources office. [Doc. 28-1 at 14.] Additionally, she denied that she left without notifying her supervisor or manager. [Id. at 15.] According to Plaintiff, she “cc'd [Hawkins] and [her] team leader, [Kennedy].” [Id.]
Although Plaintiff asserts that she informed Kennedy that she was leaving on August 1, 2018, Kennedy does not recall Plaintiff asking if she could go home early. [Doc. 27-5 ¶ 12.] In fact, she states that she was not even Plaintiff's team leader on that date, having been moved to a different team in July 2018. [Doc. 27-5 ¶¶ 3, 4; see also Doc. 27-4 ¶ 19 (Hawkins's representation that Kennedy was moved to another team prior to July 1, 2018, and Earl Gavin replaced Kennedy as Hawkins's new team leader).] Further, Kennedy represents that anytime an associate on her team asked to leave early, she responded that the person needed to notify the supervisor. [Doc. 27-5 ¶ 11.]
After the meeting ended, Watson discussed Plaintiff's conduct with Todd Trawick, Defendant's Chief Operating Officer, and they “agreed that [Watson] should proceed with submitting a request to terminate [Plaintiff's] employment.” [Doc. 27-3 ¶ 15.] Accordingly, that evening, Watson submitted the request to Defendant's Vice President of Human Resources, Dana Gottman, Gottman approved the termination the next morning, and Defendant proceeded with terminating Plaintiff's employment that day. [Id. ¶¶ 2, 15.] Plaintiff's unprofessional conduct during the August 1, 2018, meeting was the basis for the termination. [Doc. 27-3 ¶ 16.] The termination was not based on Plaintiff's NRT issues, for which she had only received one written warning, and Hawkins was not involved in the termination decision. [Docs. 27-3 ¶ 16; 27-4 ¶ 17.]
On February 8, 2019, Plaintiff filed a formal charge with the Equal Employment Opportunity Commission. [Doc. 1-1 ¶ 18.] Plaintiff later received a Notice of Right to Sue. [Id.]
Plaintiff subsequently filed this action, alleging causes of action under Title VII for pregnancy discrimination [id. ¶¶ 20-27] and retaliation [id. ¶¶ 28-33] and under the FMLA for interference with her attempt to take FMLA leave [id. ¶¶ 34-40] and for retaliation [id. ¶¶ 41-44]. She seeks money damages, including punitive damages, and court costs. [Id. at 7.]
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under 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. When 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 court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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 her pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant'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 granting 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.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Substantive Legal Principles
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Additionally, Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). “Employees engage in protected oppositional activity when, inter alia, they complain to their superiors about suspected violations of Title VII.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (internal quotation marks omitted).
Through the two clauses of the antiretaliation provision, Title VII protects activities that “fall into two distinct categories: participation or opposition.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). The purpose of this antiretaliation provision is to prevent “an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006).
On the other hand, the FMLA provides an eligible employee with up to twelve weeks of unpaid leave to deal with a “serious health condition” of himself or a family member and provides for job restoration after using such leave. 29 U.S.C. §§ 2612(a)(1), 2614(a). The FMLA creates two types of claims: (1) interference claims, where an employee asserts that his employer denied or otherwise interfered with his substantive rights under the FMLA, see 29 U.S.C. § 2615(a)(1); and (2) retaliation claims, where an employee asserts that his employer discriminated against his because he engaged in activity protected by the FMLA, see 29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220(c) (“An employer is prohibited from discriminating against employees . . . who have used FMLA leave.”).
Absent direct or circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor motivated an employer's adverse employment action, a plaintiff may proceed under the McDonnell Douglas “pretext” framework to establish claims of employment discrimination and retaliation. Diamond v. Colonial Life & Acc. Ins. Co., 417 F.3d 310, 318 (4th Cir. 2005) (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2003)); see Sharif v. United Airlines, 841 F.3d 199, 203-07 (4th Cir. 2016) (applying the McDonnell Douglas burden shifting framework to an FMLA retaliation claim). Under this framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
To establish a prima facie claim of pregnancy discrimination under Title VII, the plaintiff “must show (1) that she is a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she was subjected to an adverse employment action; and (4) that she was replaced by someone outside of her protected class, or there is some other evidence giving rise to an inference of unlawful discrimination.” Dune v. G4s Regulated Sec. Sols., Inc., No. 0:13-1676-JFA-BM, 2014 WL 7920436, at *5 (D.S.C. Dec. 15, 2014), Report and Recommendation adopted by 2015 WL 799523 (D.S.C. Feb. 25, 2015). To establish a prima facie case of Title VII retaliation, a plaintiff must show “(1) she engaged in a protected activity, (2) the employer acted adversely against her, and (3) there was a causal connection between the protected activity and the adverse action.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). Similarly, to establish a prima facie claim of retaliation under the FMLA, a plaintiff must prove (1) she engaged in protected activity; (2) she suffered an adverse action; and (3) a causal link exists between the protected activity and the adverse action. Mercer v. Arc of Prince Georges Cty., Inc., 532 Fed.Appx. 392, 398 (4th Cir. 2013).
If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804.
Analysis
Title VII Retaliation Claim
Defendant argues that Plaintiff's Title VII retaliation claim fails because Plaintiff cannot establish a prima facie case insofar as she has not forecasted evidence that she engaged in any conduct protected under Title VII. [Doc. 27-1 at 22.] That is so, Defendant argues, because, although Plaintiff testified that she complained about treatment of her, she did not testify that she complained about being discriminated against for being pregnant. [Id.] The Court agrees with Defendant.
An employee's opposing of employment actions constitutes protected activity only if the employment actions the employee opposes are unlawful under Title VII or reasonably believed by the employee to be so. Boyer-Liberto, 786 F.3d at 282. Accordingly, the Fourth Circuit has explained that to “satisfy the ‘protected activity' element of a prima facie case of retaliation, ” the “protected activity” in question “requires [a] specific allegation of unlawful . . . discrimination.” McNair v. Computer Data Sys., Inc., 172 F.3d 863, at *5 (4th Cir. 1999) (unpublished table decision). “Merely complaining in general terms of discrimination . . ., without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient” to constituted protected activity. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 718 (7th Cir. 2018) (internal quotation marks omitted).
As Defendant argues, Plaintiff has not forecasted evidence that she complained about that Hawkins was discriminating against her for being a member of any particular class. Accordingly, the Court recommends granting Defendant's motion for summary judgment on Plaintiff's Title VII retaliation claim.
In her memorandum opposing summary judgment, Plaintiff represents that she “complained to upper management and Human Resources about . . . Hawkins treating Plaintiff more harshly because of her pregnancy and because she had requested FMLA leave” and cites page 39 of her deposition. [Doc. 28 at 9.] Although that page of her deposition does contain testimony about her complaining about Hawkins, it does not include testimony that she complained that Hawkins was discriminating against her because she was pregnant or because she had requested FMLA leave. [Doc. 28-1 at 8.] 14
Claims for Title VII Discrimination and FMLA Interference and Retaliation
Defendant also argues that Plaintiff cannot establish a prima facie case regarding her Title VII pregnancy discrimination claim or her FMLA interference and retaliation claims. [Doc. 27-1 at 16-20, 22-24, 26.] Plaintiff's Title VII claims and her FMLA interference and retaliation claims are all based on her termination as well as on Hawkins's verbal coaching and verbal and written warnings regarding her NRT issues. [Doc. 1-1.] The Court will begin by discussing the claims to the extent they address the termination and then discuss the claims to the extent they address the NRT coaching and warnings.
“To make out a prima facie case of interference under the FMLA, an employee must establish that (1) she is an eligible employee; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave her employer adequate notice of her intention to take leave; and (5) the employer denied her FMLA rights to which she was entitled.” Chauncey v. Life Cycle Eng'g, Inc., No. 2:12-cv-968-DCN, 2013 WL 5468237, at *11 (D.S.C. Sept. 30, 2013). Plaintiff's Complaint purports to assert two separate FMLA claims, one for interference and one for retaliation, both are based on the factual assertion that Defendant harmed Plaintiff by verbally coaching her, issuing her warnings, and terminating her employment, all in retaliation for her requesting FMLA leave. [Doc. 1-1 ¶¶ 34-44.] There is no controlling authority in this Circuit on the question of whether such facts could state a claim for interference as well as retaliation in the Fourth Circuit. See Fortune v. Gaylor Elec., Inc., No. 1:19-cv-346, 2020 WL 6038295, at *5 (W.D. N.C. May 28, 2020) (collecting diverging cases). However, because, as the Court will explain, Plaintiff has not forecasted evidence that her termination or the coaching and warnings she received bore any causal relationship to her request for FMLA leave, the Court need not decide whether such actions, if retaliatory, could support an FMLA interference claim as well. See Parker v. Premise Health Emp'r Sols., Inc., No. 3:18-2740-MGL-KDW, 2020 WL 6218795, at *15 (D.S.C. June 5, 2020) (holding that the defendant was entitled to summary judgment on the plaintiff's FMLA interference claim when there was “no evidence of any FMLA-related leave being involved in any action against [the plaintiff], up to and including her termination”), Report and Recommendation adopted by 2020 WL 5810519 (D.S.C. Sept. 30, 2020), aff'd, No. 20-2178, 2021 WL 1714463 (4th Cir. Apr. 30, 2021).
Termination
As noted, to establish a prima facie claim of pregnancy discrimination under Title VII, the plaintiff “must show (1) that she is a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she was subjected to an adverse employment action; and (4) that she was replaced by someone outside of her protected class, or there is some other evidence giving rise to an inference of unlawful discrimination.” Dune, 2014 WL 7920436, at *5. And to establish a prima facie claim of retaliation under the FMLA, a plaintiff must prove (1) she engaged in protected activity; (2) she suffered an adverse action; and (3) a causal link exists between the protected activity and the adverse action. Mercer, 532 Fed.Appx. at 398.
Here, Plaintiff has not forecasted evidence as to the final element of the prima facie cases of either a claim for pregnancy discrimination or FMLA retaliation as it relates to her termination. She has forecasted no evidence regarding who replaced her. Nor has she identified any other evidence that could give rise to a reasonable inference that the termination bore any relation to her becoming pregnant or her requesting FMLA leave, both of which occurred several months before she was terminated. Plaintiff of course testified that Hawkins's treatment of her seemed to change after he learned that she was pregnant. [Doc. 28-1 at 6-7.] But Plaintiff did not forecast any evidence that Hawkins was involved in the decision to terminate Plaintiff, and indeed, Defendant forecasted evidence that he was not involved in that decision. [Docs. 27-3 ¶ 16; 27-4 ¶ 17.] Absent any evidence linking Hawkins to the termination decision or any evidence suggesting that those who made the decision harbored any discriminatory animus, the Court recommends that Defendant's motion for summary judgment be granted as to these three claims as they relate to Plaintiff's termination.
Plaintiff does not argue that her request in April 2018 for FMLA leave was so close in time to her termination in August 2018 that a causal relationship could be reasonably conferred from that temporal proximity alone, and the Court notes that such an argument would be unavailing in any event. Where courts have accepted mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality, they have held that temporal proximity “must be ‘very close.'” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (discussing temporal proximity and causation in a Title VII retaliation case); see Williams v. Johnson & Johnson, Inc., No. 2:13-cv-304-RMG, 2014 WL 5106890, at *13 (D.S.C. Oct. 10, 2014) (applying Clark County School District to a FMLA retaliation case). The more-than-three-month gap between the leave request and her termination would be too large to justify an inference that the termination was retaliatory. See Pascual v. Lowe's Home Ctrs., Inc., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (holding that three- or four-month lapse between the protected activities and the discharge was “too long to establish a causal connection by temporal proximity alone”); Williams, 2014 WL 5106890, at *13 (holding that three-to-four month gap between the protected activity and the adverse action was too large).
NRT Coaching and Warnings
Plaintiff argues that the difference between Hawkins's response to her NRT problems and his response to those of Cierra Johnson, another associate on his team, give rise to an unlawful inference of both pregnancy discrimination and FMLA retaliation, thereby satisfying that element of her prima facie case as to her claims regarding the NRT issues. [Doc. 28 at 7.]
Johnson was a member of the same servicing department team as Plaintiff. Hawkins verbally coached Johnson regarding NRT in January, February, and March of 2018, and he issued a verbal warning on April 9, 2018. [Doc. 27-4 ¶ 18; id. at 103, 106, 107, 109-11, 113-14.] She responded “by making substantial efforts to improve.” [Id. ¶ 18; see id. at 100.] However, her NRT problems resumed beginning in June 2018. [Id. ¶ 18; see id. at 98.] Hawkins responded with additional verbal coaching and then he issued a documented verbal warning on August 27, 2018, and a written warning on October 3, 2018. [Id. ¶ 18; id. at 96-97, 101-02.]
Johnson was in a team leader development program, was shadowing other team leaders, and was working with newly hired associates. [Doc. 27-5 ¶ 13.] These duties caused her to spend additional time away from her desk and resulted in higher numbers of NRT. [Id.] And Kennedy, Johnson's team leader at the time, did not address NRT issues with Johnson when it appeared that her issues were related to those additional duties. [Id.] Later, however, Johnson had NRT issues after she had stopped performing these additional duties, and Kennedy addressed those issues through coaching. [Id.]
The Court concludes that the forecasted evidence regarding Johnson is insufficient to give rise to a reasonable inference of pregnancy discrimination or FMLA retaliation that would satisfy the final element of Plaintiff's prima facie cases. Although Johnson and Plaintiff both eventually received a written warning regarding their NRT issues, Plaintiff argues that Johnson was treated more leniently than Plaintiff because Johnson “received four verbal coachings before she received a verbal warning, and then instead of progressing to a written warning, she received four more verbal coachings before another verbal warning.” [Doc. 28 at 7.] She also points out, in relation to Johnson's second period of NRT troubles, that she “returned late from breaks 29 times” between receiving a verbal warning and being issued a written warning whereas Plaintiff “received two coachings, a verbal warning, and then a written warning based on eight late break returns.” [Id.] The problem with Plaintiff's argument, however, is that she fails to acknowledge the differences between her conduct and Johnson's. Plaintiff explicitly rebuffed attempts by Hawkins to coach her concerning lost time on multiple occasions, once telling him that “she ‘knew how to do her job'” and another time dismissively responding, “whatever you want[, ] Jamaal [Hawkins].” [Doc. 27-4 ¶¶ 6, 10, 11; see id. ¶¶ 6, 10.] And critically, Plaintiff never showed any inclination or ability to benefit from Hawkins's verbal coaching or to make changes in response to his verbal warning [id. ¶¶ 6-13], leaving Hawkins with no real option but to proceed to a written warning.
In contrast, nothing in the record suggests that Johnson explicitly rebuffed Hawkins's verbal coaching attempts prior to his issuance of a written warning. Indeed, Johnson made substantial improvements as soon as Hawkins issued her her first verbal warning. [Doc. 27-4 ¶ 18.] A couple of months later, when Johnson began again to have NRT problems, Hawkins again turned to verbal coaching as his first step. [Id. ¶ 18; id. at 101-02.] When that did not work, in late August he issued another verbal warning. [Id. ¶ 18; id. at 96, 100.] And when that did not bring about improvement in just a little over a month, he issued a written warning. [Id. ¶ 18; id. at 96-97.] Given Plaintiff's explicit resistence to Hawkins's coaching and the fact that Johnson was able to improve her conduct after Hawkins issued her first verbal warning, it is understandable that Hawkins might have given Johnson more time than he gave to Plaintiff before escalating his responses. Considering this difference in the conduct of the two women, the Court concludes that there is no nonspeculative basis for any inference that the difference in Hawkins's response was related to Plaintiff's pregnancy or FMLA-leave request. Accordingly, to the extent Plaintiff bases her Title VII or FMLA retaliation claims on any treatment she received regarding her NRT, the Court recommends that Defendant's motion for summary judgment be granted.
The Court notes, for similar reasons, that Plaintiff's failure to forecast evidence of a causal relationship between her complaints about Hawkins and Hawkins's responses to her NRT problems or her termination provides an alternative basis for Defendant's entitlement to summary judgment on Plaintiff's Title VII retaliation claim. Finally, the Court notes Plaintiff's failure to forecast evidence showing that the coaching and warnings rose to the level of an adverse employment action constitutes an alternative basis for granting summary judgment to Defendant on Plaintiff's Title VII pregnancy discrimination claim as it relates to Hawkins's NRT responses. As Watson represented in her declaration, the coachings and warnings that Plaintiff received regarding her NRT “did not in any way negatively impact her title, position, pay, benefits, and other terms and conditions of employment.” [Doc. 27-3 ¶ 16.] Cf. Jesnsen-Graf v. Chesapeake Emp's' Ins. Co., 616 Fed.Appx. 596, 598 (4th Cir. 2015) (explaining that “[a]n adverse employment action is an action that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” and holding that the plaintiff's complaint failed to state a plausible claim for discriminatory issuance of a PIP because it did not “allege that she received lower pay, was demoted, was passed over for a promotion, failed to receive a bonus, or given significantly different responsibilities because she was placed on the PIP”). The Court further notes that Plaintiff has not forecasted evidence that the coachings and warnings amounted to materially adverse action even under the lower standard applicable to retaliation claims. See Cornelius v. McHugh, No. 3:13-1018-CMC-PJG, 2015 WL 5012843, at *8 (D.S.C. Aug. 1, 2015) (“Courts in the Fourth Circuit have generally found that actions which essentially amount to criticism of an employee such as performance evaluations, reprimands, or warnings, and counseling are alone insufficient to constitute materially adverse employment actions.”); Charlot v. Donley, No. 3:11-579-MBS, 2014 WL 1319182, at *9 (D.S.C. Mar. 31, 2014) (finding that an unsuccessful performance evaluation, absent any allegations of detrimental impact, was insufficient to show a materially adverse action); Rease v. Zax, Inc., No. 3:07-3601, 2009 WL 2998977, at *7 (D.S.C. Sept. 17, 2009) (holding that warning notices and a poor performance review were not sufficiently adverse to satisfy even the less demanding standard applicable to retaliation claims). Accordingly, Defendant is entitled to summary judgment on both of Plaintiff's retaliation claims on this alternative basis.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's motion for summary judgment [Doc. 27] be GRANTED.
IT IS SO RECOMMENDED.