Opinion
C. A. 3:22-3838-JFA-SVH
04-23-2024
Deiaokiki Jackson, Plaintiff, v. Haile Gold Mine, Inc., d/b/a Oceana Gold Haile Goldmine, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
In this employment discrimination case, an employee alleges she was subjected to illegal discriminatory and retaliatory treatment due to her race and disabilities because she was transferred to a different office, subjected to an abusive coworker, refused disability accommodations, and eventually terminated. Her former employer seeks dismissal of all claims.
Deiaokiki Jackson (“Plaintiff”) filed her complaint on November 3, 2022, against her former employer, Haile Gold Mine, Inc., d/b/a Oceana Gold Haile Goldmine (“Defendant”). Plaintiff alleges claims for interference and retaliation in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq.; failure to accommodate, hostile work environment, retaliation, and discrimination in violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq. (“ADA”); and racial discrimination, retaliation, and hostile work environment in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”).
To the extent that Plaintiff asserts claims based on her color, versus race [see ECF No. 1], Plaintiff has abandoned any such claims and failed to respond to Defendant's arguments concerning this issue. [See ECF No. 28 at 30 n.21, see also ECF No. 33]. Accordingly, the undersigned recommends dismissal of any color-based claims Plaintiff asserts.
Plaintiff additionally brought a claim for violation of the South Carolina Payment of Wages Act, SC Code Ann. §§ 41-10-10 to 110, but has consented to the dismissal of this claim. [See ECF No. 33 at 2 n.5].
This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 28]. The motion is fully briefed [see ECF Nos. 33, 36] and ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion for summary judgment.
I. Factual and Procedural Background
Plaintiff, a black female, began her full-time employment with Defendant as an accountant. [ECF No. 33-2]. Plaintiff's direct supervisor was Kalend Muteb (“Muteb”), a black male. [ECF No. 33-3 at 60:21-61:1, 64:4-6].
In 2021, Muteb approached Plaintiff about an open position as a buyer. [ECF No. 33-3 at 61:2-21, ECF No. 28-2 ¶ 4].Plaintiff testified that Muteb informed her that she would have the ability to advance her career in the buyer's department. [ECF No. 33-3 at 61:2-18].
Plaintiff testified that the current lawsuit is based on a “series of events” that occurred “from February 2021 until July 2021” and does not concern her time as an accountant. [ECF No. 33-3 at 38:7-8, 55:16-56:1].
Plaintiff argues in briefing that Muteb also “suggested Plaintiff's race may have been a reason why her pay in the Finance Department was not increasing as quickly as it should.” [ECF No. 33 at 3]. However, Plaintiff testimony, provided in support of this argument, only states in relevant part that “[d]ue to the context of [Plaintiff and Muteb's] conversation, the relevance of we both being African-American in advancement within a corporation was the basis of the conversation.” [ECF No. 33-3 at 63:9-64:6].
Although it appears the parties disagree on why Muteb was interested in Plaintiff becoming a buyer, with the parties disputing whether her accounting position was being eliminated [see ECF No. 28-2 ¶ 4, ECF No. 33 at 3-4], the parties agree that Plaintiff chose to become a buyer. [ECF No. 28 2 ¶ 7, ECF No. 33-7, see also ECF No. 33-3 at 64:13-65:3].
The parties also dispute whether Muteb informed Plaintiff that the new position was a lateral transfer versus a promotion, would involve an increase in pay, or would require Plaintiff to change offices. [ECF No. 28-2 ¶¶ 5-6; ECF No. 33-3 at 62:3-13, 104:21-23, 187:14-188:2]. However, the parties agree that Plaintiff was informed that 60 days after she began her new position, her pay would be reviewed, with Plaintiff taking the position that she had been informed by Muteb that her pay would increase at that time. [ECF No. 33-3 at 62:14-63:6, 130:1-132:9; see also ECF No. 33-7].
In February 2021, Plaintiff became a buyer. [ECF No. 33-7]. Plaintiff's direct supervisor was Britt Wells (“Wells”). [ECF No. 33-1 at 32:1-10]. For approximately three months, Plaintiff stayed in the building she had previously occupied as an accountant in the administrative building office before transferring to her new office in the “truck shop.” [ECF No. 33-3 at 188:3-15, ECF No. 33-1 at 27:21-25].
Defendant has submitted evidence that Plaintiff's transfer from the administrative building office to the truck shop was delayed by three months for two reasons: (1) because Plaintiff was concluding her position as accountant while also beginning her position as buyer, including cleaning up the office in the administrative building, and (2) because Plaintiff did not want to move buildings. [ECF No. 28-2 ¶ 9].
Plaintiff testified that in April 2021, June 2021, and July 2021, she spoke with Muteb about whether he had “any information in regards to what my pay would be, from our initial conversation that we would review it in 60 days.” [ECF No. 33-3 at 129:5-132:9]. Muteb wanted to have a meeting to discuss this issue with Plaintiff as well as with Wells and others. Id. at 129:5-132:9. Plaintiff also testified that during the period in April 2021 she contacted Glenda Parkman (“Parkman”) in human resources, informing her that she was “being discriminated against because [she] had not received any feedback regarding my position and pay as a buyer as [she] was told when [she] took the position.” Id. at 130:21-25, 186:18-187:9.
Defendant denies Plaintiff ever made any complaints of discrimination, retaliation, bullying, or hostile work environment, including race or colorbased treatment related to her pay. [ECF No. 33-1 at 92:1-93:5, ECF No. 28-2 ¶ 8, ECF No. 28-3 ¶ 7, ECF No. 28-4 ¶ 8].
Plaintiff testified that in early June 2021, she moved offices to the “truck shop” where she shared an office with Ken Muennich (“Muennich”), another buyer. [ECF No. 33-3 at 103:6-23].Plaintiff has submitted evidence that, unlike her previous office, the truck shop was in a mobile-home style building near the activity of the gold mine, requiring her to walk a quarter of a mile from the employee parking lot on an outdoor walking path that was not fully paved. [ECF Nos. 33-6, 33-8, 33-9]. Additionally, her new office that she had to share was roughly the same size as her previous office that she did not have to share. [See ECF No. 33 at 7].
Plaintiff has submitted affidavit evidence that contradicts her deposition testimony, stating she “first made complaints of discrimination in April 2021” and then was told she would have to move offices “[d]ays after I made complaints of discrimination.” [ECF No. 33-10 ¶ 4]. As stated above, Plaintiff testified in her deposition that although she made complaints of discrimination in April 2021, she did not move offices until June 2021. [ECF No. 33-3 at 103:623].
Plaintiff has offered evidence about her concerns with the length of the commute and being exposed to the elements necessitated by her transfer to the truck shop; however, she testified these concerns were unrelated to her alleged disabilities and were a personal preference. [See ECF No. 96:15-97:1]. Additionally, Defendant has submitted evidence, unrebutted by Plaintiff, that more than 200 employees traverse this same walkway every day. [See ECF No. 28-2 ¶ 10, ECF No. 28-3 ¶ 8, ECF No. 28-4 ¶ 10].
Plaintiff testified that Muennich was “hostile” because he would curse, throw things like a stapler and coffee cup at the wall and floor beside his desk, slam things like chairs, and slam doors, and that his “verbiage and communication on the telephone and with other employees” was hostile. [ECF No. 33-3 at 103:4-7, 109:24-110:8, 112:11-18, 114:1-120:15, 189:12-19]. Plaintiff testified she contacted multiple people about Muennich's behavior in June and July 2021, including Muteb, Wells, and Parkman, with Wells informing her “[t]hat's just how Ken is” and Parkman seeking to schedule a meeting about the issue. Id. at 121:22-123:15.
Defendant denies Plaintiff complained about Muennich's behavior and has submitted evidence that Muennich has consistently received high marks for his professionalism in the workplace. [ECF No. 33-1 at 92:16-19, ECF No. 282 ¶ 12, ECF No. 28-3 ¶ 10, ECF No. 28-4 ¶ 16].
Also in June 2021, Plaintiff testified she informed the occupational nurse on site of her disability. Id. at 90:2-25. At the time she also requested from Wells “some accommodations to be able to work from home versus not being- having access to my official office space” and “asked to be able to work from home.” Id. at 91:1-14. Plaintiff's request was denied, with Wells informing her that the accommodation previously available to work from home was “no longer available.” Id. at 91:13-23.
Plaintiff has submitted affidavit evidence that appears inconsistent with her deposition testimony: “While employed as a buyer at Haile Gold Mine, I requested an accommodation to be able to work remotely intermittently only when my disability became debilitating.” [ECF No. 33-10 ¶ 3 (emphasis added)].
On July 7, 2021, Plaintiff received the following counseling record from Defendant:
Description of Event and/or Specific Violation: (Event Oriented) Failure to Provide Documentation in regards to Dr's appoint and Strep Test results.
On or about 23 June 2021, you informed me that you were running a fever and requested that you be able to work from home and that you had a Doctor's appointment scheduled. On or about 24 June 2021, you informed me that you had an upper respiratory infection and later that day informed me that you actually had strep throat.
I then asked if you had sent your paperwork to Cindi, our on site nurse, in order for you to be able to get tracked and get proper clearance before returning to site. You said that you would send it to her. I then asked if you needed to take time off or if you felt well enough to work from home and you said you felt you could work from home. On or about 28 June 2021, you returned to work and informed me that you had received the wrong test results and that you never had strep throat. I asked you once again to provide your original Dr's note from your visit on 23 June 2021, as well as documentation in regards to receiving the wrong test results in regards to your strep test. It has been well over a week since my last request and you have failed to provide any of the requested documentation.
Specific Actions and Follow-up to Resolve Situation: Provide documentation to me of Dr visit and testing mistakes as previously requested. Going further no team members will be allowed to work from home when ill and will be expected to take PTO/Personal Time just as if you were working on site.
[ECF No. 33-11 (minor edits to spelling and spacing)].
Plaintiff has submitted evidence that on July 22, 2021, Melodie Hinson, a white employee, was allowed to work from home. [ECF No. 33-12].
On or about July 28, 2021, Plaintiff applied for coverage under the FMLA through the process Defendant required. [ECF No. 33-1 at 43:19-44:7]. Plaintiff applied and received approval for FMLA leave through September 12, 2021. [ECF No. 33-13]. On September 15, 2021, Plaintiff's leave was extended by her physician to October 25, 2021. [ECF No. 33-14]. Plaintiff testified that Muteb informed her that Plaintiff's going on FMLA leave “was putting him in a bind, the responsibilities that were happening at that time.” [ECF No. 33-3 at 193:23-194:10].
While on FMLA leave in August 2021, Plaintiff attended the wedding of Ken and Briana Brevard (“Brevard Wedding”). [ECF No. 33-3 at 194:11-17]. In September 2021, while Plaintiff was still on FMLA leave, Burton Jaillette (“Jaillette”), Defendant's supply chain superintendent, discovered Plaintiff had made recent posts on several social media pages regarding the wedding. [ECF No. 28-3 ¶ 12, ECF No. 33-1 at 47:11-14]. The screenshots captured by Jaillette show that on the day of the Brevard Wedding, Plaintiff made several posts on her “uniquexpressionsevents” Instagram page. [ECF No. 33-10]. In one photograph, Plaintiff posted a selfie outside the wedding venue, with the following caption: “Tales from a bridal consultant .... I love what I do.” See id. at 13.
After the wedding, the bride tagged Plaintiff on Facebook, as follows:
Thank you to the best bridal party hands down! I appreciate you all for taking your time and giving your love and support to make our day special! Ken and I can't thank each or you enough! You all each individually hold a special place in our hearts and that's why we chose each of you to be apart![sp]
To [Plaintiff] Mrs. Kiki Jackson thank you for everything! You were able to take an already pre planned day and pull it all back together for ken and I and we appreciate you! Thank you for overseeing and making sure our day was special!
Archinya Ingram-cousin you came through in more ways than one! [“wink” emoji] My bouquet was BEAUTIFUL! You are the boss of bouquets and you really took my vision and brought it to life! I can't tank you enough! [“smile/heart” emoji] ....
id. at 9, 10. Plaintiff responded to the post:
Briana Brevard You are more than welcomed. You and Ken are a beautiful couple. Thank you for trusting me and working with me to help your day be one of your dreams and on the forefront of your memories! Congratulations Mr. & Mrs. Brevard!id. at 3. Plaintiff signed the post, “Unique Xpressions Events ‘The Experience,'” and tagged what appeared to be her business “Unique Xpressions by KJ.” id.
A YouTube video of the Brevard Wedding was also posted to social media. [ECF No. 28-15]. Still shots captured from the video appear to show Plaintiff holding and fluffing the bride's veil, waiting to direct the bride to enter, holding a sign and a small child who was part of the wedding prior to his entrance, and standing alongside the photographer during the cake cutting. See id. The video pans in on a thank-you card placed at each reception table entitled “Special Thanks to Our Vendors.” See id. Plaintiff is displayed on the vendor list as “Kiki Jackson w/ Unique Xpressions Events.” id.
Plaintiff has submitted evidence that she was not working at the Brevard Wedding, that she was attending and assisting only as a friend, that she received no compensation for her attendance and assistance, and that, for example, her being listed a vendor “was a fun, cute, and thoughtful way” for the mother of the bride “to express [her] gratitude.” [ECF No. 33-17 ¶¶ 11, 14, see also ECF No. 33-18, ECF No. 33-10 ¶¶ 9-23]. However, Plaintiff agreed in her deposition that she “worked as a[n unpaid] bridal consultant for the Brevard Wedding and held [her]self out as a bridal consultant on [her] Instagram page.” [ECF No. 33-3 at 156:14-18, 195:1-7].
Jaillette forwarded the information to Parkman [ECF No. 28-3 ¶ 12], who reviewed and discussed it with Muteb. [ECF No. 28-2 ¶ 14]. Both agreed it appeared Plaintiff was working another job while on FMLA and that they needed to contact her to discuss further. id.
It is undisputed that Defendant maintained a policy in its employee handbook, that Plaintiff received, that an employee may be subject to “immediate termination” for “any unapproved outside employment while on a leave of absence.” [ECF No. 33-3 at 12:10-21, 13:12-21, ECF No. 28-11 at 25, 27]. Defendant's FMLA policy reiterates this prohibition, informing employees they cannot engage in other employment while on FMLA leave, and that doing so “may result in discharge from the Company.” [ECF No. 33-27].
Parkman testified she reached out to Plaintiff via telephone on September 20, 2021, and left a voicemail asking Plaintiff to give her a call. [ECF No. 33-1 at 50:24-51:10]. When Plaintiff failed to return the call, on September 23, 2021, Parkman sent Plaintiff a certified letter by mail and email seeking clarification and requesting a response:
We have been informed that even though you are on FMLA leave and short-term disability, and you submitted documentation regarding your inability to work, you are actually working in your own business. Our employee handbook states that “The Company generally prohibits employees from holding other employment” and that policy applies “during all leaves of absence.” Please let us know if you are or are not working. Please let us hear back from you by 5:00 p.m. on September 27, 2021. I left you a voice-mail message asking you to call me back on September 20, 2021, but you did not return my call.
[ECF No. 33-15]. The following day Plaintiff replied to Parkman by email as follows:
I think there may be some confusion on the information that you were given in regards to me working. I do not hold any other jobs or have a business of my own that I am actively working for pay. Let me know if you have any additional questions.id. Parkman responded twenty-five minutes later and asked Plaintiff, “What's a good time to talk about this?” [ECF No. 28-17 at 2].
Plaintiff testified that she did not see this email from Parkman. [ECF No. 33-3 at 30:20].
Receiving no response, Muteb made the decision to terminate Plaintiff's employment on September 30, 2021, providing her the following letter:
This letter is to inform you that your employment with OceanaGold Haile has been terminated, effective today.
By way of background, in July 20211 you requested FMLA leave and short-term disability.
On September 23, 2021 I wrote you to say that we understand you have been working in your own business, and I explained that our employee handbook states that “The Company generally prohibits employees from holding other employment . . . during all leaves of absence.”
On September 24, 2021 you responded by generally denying that you are working. I then asked you what would be a good time to talk about your response, but you never got back to me.
Because you have not been responsive to our efforts to communicate with you, we have no choice but to terminate your employment. Should you have any questions about this letter, please do not hesitate to contact me.
[ECF No. 33-16, ECF No. 28-2 ¶ 16, ECF No. 33-1 at 102:1-103:15]. As stated by Muteb:
After nearly a week of non-responsiveness, I made the decision to terminate Ms. Jackson's employment. Based on the posts made by Ms. Jackson on Facebook and Instagram where she tagged her company and referred to herself as a bridal consultant, the YouTube video that showed her working as vendor at the August 2021 wedding, and Ms. Jackson's lack of responsiveness to Ms. Parkman's request for further information, the Company had a good faith belief that Ms. Jackson was working another job, without approval, while on a leave of absence. This other employment was a violation of OceanaGold's policies and was the reason for Ms. Jackson's termination.
[ECF No. 28-2 ¶ 16, ECF No. 28-3 ¶ 13, ECF No. 28-4 ¶ 17, ECF No. 33-1 at 99:25-100:4].
As to this issue, Parkman testified as follows:
Q: And if Mrs. Jackson had presented you with evidence that she was not working as a bridal consultant at the August,
2021 Brevard wedding for pay, would that have changed the decision?
A: No ....It's the unapproved employment, paid or no pay.
Q: Okay. So the policy doesn't distinguish that?
A: No.
Q: It's just outside employments?
A: Yes.
[ECF No. 33-1 at 100:21-101:10].
II. Discussion
A. Standard on Motion 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” id. at 248.
B. Analysis
As a preliminary matter, the court notes that Plaintiff frames her case as concerning four grouped issues:
1. Was Plaintiff's transfer to a different office an act of discrimination, hostile work environment, and/or retaliation under Title VII, the ADA, and/or 42 U.S.C. 1981?
2. Were Plaintiff's complaints about an abusive and aggressive coworker ignored as an act of discrimination, hostile work environment, and retaliation under Title VII, the FMLA, the ADA, and/or 42 U.S.C. 1981?
3. Was Defendant's refusal to accommodate Plaintiff's request to occasionally work from home due to her disability an act of discrimination, hostile work environment, and retaliation under the FMLA and/or the ADA?
4. Was the termination of Plaintiff's employment an act of discrimination, hostile work environment, and retaliation under Title VII, the FMLA, the ADA, and/or 42 U.S.C. 1981?
[ECF No. 33 at 2].
Below, the court first examines whether Plaintiff has established she had a qualifying disability under the ADA before turning to her claims concerning her termination, claims concerning her moving offices, her hostile work environment claims, and her FMLA interference claim.
1. Qualifying Disability
The court first addresses the parties' argument as to whether Plaintiff is disabled within the meaning of the ADA. Under the ADA, “[t]he term ‘disability' means . . . (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). A person is “ ‘regarded as having . . . an impairment [protected by the ADA]' if the individual establishes that he or she has been subjected to an action prohibited [by the ADA] because of an actual or perceived physical or mental impairment[, that is not transitory or minor,] whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3).
Plaintiff first argues that Defendant is precluded from disputing she has a qualifying disability under the ADA based on the following testimony provided by Defendant's Fed.R.Civ.P. 30(b)(6) representative:
Q. Does Oceana Gold dispute that Ms. Jackson has a disability?
MS. ROGERS: Object to the form. You can answer the question.
A. Oh, okay, I'm sorry. I don't dispute that based on the statement that came back from her physician.
[ECF No. 33-1 at 44:17-23].
However, as argued by Defendant, “qualified individual” status under the ADA is an issue of law for the court, not an issue of fact. As stated by this court:
The majority of courts have found whether an employee had an impairment and whether the conduct affected is a major life activity are questions of law for the court, but whether the impairment substantially limits the major life activity is a question of fact. See Williams v. U.S. Services, Inc., 2012 WL 590049 *3, (D.S.C. Jan. 21, 2012), accepted in relevant part by Williams v. United Parcel Services, Inc., 2012 WL 601867, (D.S.C. Feb. 23, 2012) (reconciling opinions of the Fourth Circuit and demonstrating that they collectively agree with the view of other Circuits).Donald v. S.C. Dep't of Prob. Parole & Pardon Servs., C/A No. 3:19-1045-SAL-SVH, 2020 WL 2735981, at *4 (D.S.C. May 7, 2020), report and recommendation adopted, C/A No. 3:19-CV-01045-SAL, 2020 WL 2732342 (D.S.C. May 26, 2020); see also Jones v. Fam. Health Ctr., Inc., 323 F.Supp.2d 681, 686 (D.S.C. 2003) (“The question of whether a plaintiff is disabled ‘is a question of law for the court, not a question of fact for the jury.'”) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir.2001)), aff'd sub nom. Jones v. Fam. Health Centers, Inc., 98 Fed.Appx. 959 (4th Cir. 2004).
Therefore, it is incumbent upon the court to determine if Plaintiff is disabled within the meaning of the ADA. Plaintiff testified that she was diagnosed with high blood pressure, anxiety, and depression, that the anxiety and depression were diagnosed in April 2021, and that her anxiety and depression were cause by “[g]rief and work stress.” [ECF No. 33-3 at 80:883:15]. Plaintiff also testified that her anxiety and depression were exacerbated by her placement in an office with Muennich, and, as a result, she requested to work from home because she did not “hav[e] access to [her] original office space in the administration building,” and Muennich was allegedly creating a “hostile environment.” id. at 91:3-9, 93:7-10, 190:22191:2.
Based on this evidence, Plaintiff has not shown she had a physical or mental impairment that substantially limited one or more major life activities, or a record of such impairment, in June-July 2021 when she was transferred to a different office, complained about Muennich, and requested to work from home. As argued by Defendant, and not addressed by Plaintiff,although working has been recognized as a major life activity under the ADA, anxiety and depression caused by the work environment, which renders an employee unable to work with a particular individual, does not limit a major life activity. See Howell v. Holland, C/A No. 4:13-00295-RBH, 2015 WL 751590, at *4 (D.S.C. Feb. 23, 2015) (collecting cases and finding plaintiff failed to show he was disabled within the meaning of the ADA because “not being able to work with a particular individual or supervisor does not substantially limit the major life activity of working”); Singleton v. Pilgrim's Pride Corp., C/A No. 3:15-4999-JFA-PJG, 2017 WL 9275160, at *6 (D.S.C. Mar. 23, 2017) (“courts have held that the inability to work with or under a particular supervisor does not substantially limit[ ] one or more of the major life activities”), report and recommendation adopted, C/A No. 3:15-4999-JFA, 2017 WL 2952970 (D.S.C. July 11, 2017).
Plaintiff has submitted an FMLA form completed by her doctor on August 23, 2021, stating Plaintiff's anxiety and high blood pressure commenced on July 28, 2021, preventing her from being able to focus. [ECF No. 33-13].
Defendant notes “Plaintiff has offered no rebuttal to OceanaGold's argument that she is not disabled because she only suffered from job-related stress and depression that limited her ability to work in the shared office space with Muennich.” [ECF No. 36 at 18].
Nor has Plaintiff shown she was regarded by her employer during the relevant period as having a disability. Plaintiff argues in briefing that she “reported to her supervisors and Defendant's human resources department that she was being subjected to discrimination based on her race and disability” in April 2021 [ECF No. 33 at 5]; however, Plaintiff's testimony cited in support provides that she spoke with Muteb in April 2021 “in regards to a decision on my pay increase as my position as a buyer” and that she spoke with Parkman “that I felt like I was being discriminated against because I had not received any feedback regarding my position and pay as a buyer ....” [ECF No. 33-3 at 129:18-131:16]. Elsewhere, Plaintiff testified HR, based on FMLA paperwork submitted to them around August 23, 2021, and the occupational nurse in June 2021, were the only one she talked to about her disability. id. at 89:18-91:25.
Here, there is no evidence that Defendant, beyond perhaps the occupational nurse, had any awareness of Plaintiff's depression or anxiety, and there is no evidence that Defendant, including the occupational nurse, regarded Plaintiff as having an impartment that substantially limited one or more of her major life activities during the relevant period. See, e.g., Haulbrook v. Michelin N. Am., 252 F.3d 696, 703 (4th Cir. 2001).
In sum, Plaintiff has failed to show she is disabled within the meaning of the ADA. Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA claims concerning her transfer to a different office, complaints about Muennich, and request to work from home.
Plaintiff has also brought an ADA claim based on her termination in September 2021, which the court addresses separately below.
2. Claims Concerning Termination
Plaintiff has argued that her termination was an act of discrimination and retaliation under Title VII, the ADA, the FMLA and/or 42 U.S.C. 1981.Because Plaintiff has no direct evidence in support of her discrimination and retaliation claims, she proceeds through the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973), burden-shifting framework. Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006); see also, e.g., Gomez v. Haystax Tech., Inc., 761 Fed.Appx. 220, 235 (4th Cir. 2019) (addressing Title VII, ADA, FMLA discrimination and retaliation claims).
Plaintiff also asserts a hostile work environment claim related to her termination, which the court addresses separately below.
Plaintiff's claims asserted pursuant to Title VII and Section 1981 are analyzed with the same requirements. See, e.g., Hamada v. Boeing Co., C/A No. 2:19-02777-DCN-MGB, 2021 WL 4398456, at *3 n.1 (D.S.C. Sept. 27, 2021); Brown v. Bratton, No. 21-1998, 2022 WL 17336572, at *5 (4th Cir. Nov. 30, 2022).
Under this framework, “the plaintiff bears the burden of establishing a prima facie case of discrimination or retaliation.” Gomez, 761 Fed.Appx. at 235. If the plaintiff succeeds, “the burden of production then shifts to the employer to articulate a non-discriminatory or non-retaliatory reason for the adverse action.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). “[T]he burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the stated reason for the adverse employment action is a pretext and that the true reason is discriminatory or retaliatory.” id. at 216.
Even assuming Plaintiff can establish a prima facie case-which Defendant disputes-she has failed to prove that the legitimate reasons offered by Defendant for her termination-that Plaintiff had violated Defendant's policies that forbid employees from holding outside employment while on a leave of absence-is pretext for discrimination or retaliation. Plaintiff disagrees, arguing Defendant's reason offered for her termination is unworthy of credence.
First, Plaintiff argues pretext is established because Defendant did not fully research whether she was holding outside employment and did not prepare a formal, written investigation report consistent with internal policy. [ECF No. 33 at 38-41, see also ECF No. 33-22 (Defendant's “Speak Up” policy)]. Plaintiff criticizes the investigation conducted, suggesting Defendant should have researched the Secretary of State's website and personally contacted the Brevard family to question them about Plaintiff's involvement in the Brevard Wedding. id.
Plaintiff also appears to argue that Defendant should have verified her identity on the YouTube video. [ECF No. 33 at 41]. However, Plaintiff's identity is not an issue in this case, and presumably Defendant was able to recognize her in the relevant video.
As recognized by the Fourth Circuit in Villa v. CavaMezze Grill, LLC, “evidence of an obviously inadequate investigation into the employee's misconduct could tend to show that claimed employee misconduct was actually pretext for prohibited animus.” 858 F.3d 896, 905 (4th Cir. 2017) (citing Smothers v. Solvay Chems., Inc., 740 F.3d 530, 542 (10th Cir. 2014)). Here, however, the record does not indicate an obviously-inadequate investigation. Instead, the record indicates that Parkman received information indicating that Plaintiff had been working on her own business while on FMLA leave and that he attempted to discuss the issue with Plaintiff, to no avail.
Plaintiff confirmed in her deposition that Defendant “tried to get more information from [her] and wanted to set up a call with [her], but [Plaintiff] never responded.” [ECF No. 33-3 at 217:10-13].
Additionally, as explained by the Fourth Circuit:
“The mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent.” Vaughan v. Metrahealth Cos., 145 F.3d 197, 203 (4th Cir. 1998) (emphasis and internal quotation marks omitted), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); accord Johnson v. Weld Cty., 594 F.3d 1202, 1213 (10th Cir. 2010). Instead, “there must be
some evidence that the irregularity directly and uniquely disadvantaged a minority employee.” Johnson, 594 F.3d at 1213 (internal quotation marks omitted).Russell v. Harlow, 771 Fed.Appx. 206, 207-08 (4th Cir. 2019). Plaintiff has provided no evidence concerning the application, or lack of application, of Defendant's Speak Up policy in any context, and therefore has failed to indicate how an alleged violation of this policy may be probative of pretext in this context.
“Courts in this District have found that for an employer's violation of its internal policies to be evidence of pretext, ‘the violation must be material and significant.'” Lockley v. Town of Berwyn Heights, C/A No. JFM-14-825, 2015 WL 5334256, at *8 (D. Md. Sept. 11, 2015) (citing Noshafagh v. Leggett, C/A No. DKC 11-3038, 2013 WL 93345, at *10 (D. Md. Jan. 7, 2013), aff'd, 538 Fed.Appx. 251 (4th Cir. 2013)).
Plaintiff additionally argues that although Defendant claims Muteb was the formal decisionmaker who fired her, it was Parkman who made the decision and that Parkman was somehow biased against her. [ECF No. 33 at 41-42]. As stated by the Fourth Circuit:
[T]o survive summary judgment, an aggrieved employee who rests a discrimination claim under Title VII or the ADEA upon the discriminatory motivations of a subordinate employee must come forward with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decisionmaker for the employer.Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 291 (4th Cir. 2004). In instances where the employee contends the decisionmaker relied on a biased report, “the proof will normally consist of showing that the subordinate concealed or presented false information,” and the employee “must show that the omitted or false information caused the adverse employment action.” Jenks v. City of Greensboro, 495 F.Supp.2d 524, 529 (M.D. N.C. 2007).
However, here, Defendant has submitted evidence that Parkman is not a subordinate of Muteb, and that the two are of equal standing in Defendant's managerial hierarchy. [ECF No. 36-1]. Additionally, the Fourth Circuit has specifically declined to extend this theory of liability to instances where the subordinate has no supervisory or disciplinary authority, even if the subordinate had “a substantial influence on the ultimate decision or [] played a role, even a significant one, in the adverse employment decision.” Hill, 354 F.3d at 291.
Parkman testified she was not in Plaintiff's chain of command, did not have authority to independently make termination decisions, and that even though she signed the termination letter, she did so at Muteb's direction. [ECF No. 33-1 at 63:5-64:11, 70:15-23]. Parkman also confirmed she played no role in the termination decision and never offered any recommendation with respect to what action should be taken:
Q: D[id] you have any input with regard to the decision to terminate Ms. Jackson's employment?
A: I supplied the documentation.
Q: Did you make any recommendations with respect to the decision to terminate Ms. Jackson's employment?
A: No.
Q: Other than Kalend Muteb, did anyone else provide any recommendations with regard to the decision to terminate Ms. Jackson's employment?
A: No ....id. at 64:12-24; see also Hill 354 F.3d at 291 (“an employer will be liable not for the improperly motivated person who merely influences the decision, but for the person who in reality makes the decision”).
The record indicates Muteb, a black male, made the decision to terminate Plaintiff's employment. As noted by courts in this district, “an allegation of discrimination loses persuasiveness when a key player in the disciplinary process falls within the same protected class as the plaintiff.” Taylor v. CAN Corp., 782 F.Supp.2d 182, 198 (E.D. Va. 2010).
Further, Plaintiff's theory is deficient because she has not pointed to any evidence that Parkman purportedly concealed or omitted pertinent information during her discussions with Muteb. Rather, the record evidence demonstrates Muteb and Parkman discussed Plaintiff's outside employment on at least two occasions, Muteb entrusted Parkman as HR manager to investigate further, and Muteb reviewed all the relevant evidence Parkman obtained regarding Plaintiff's work as a bridal consultant prior to his decision to terminate her employment. [ECF No. 28-2 ¶¶ 14-16, ECF No. 33-1 at 64:25 66:24]. Finally, even if Parkman had been the one to decide to terminate Plaintiff's employment, there is no evidence such a decision was fueled by a discriminatory or retaliatory motive.
In sum, Plaintiff has failed to submit evidence that the reason provided-that she had violated Defendant's policies that forbid employees from holding outside employment while on a leave of absence-is not the actual reason why she was terminated and has provided testimony indicating otherwise:
Q: Okay. But doesn't all of that [Facebook posts, Instagram posts, and YouTube video of the Brevard Wedding] seem to look like you were working?
A. Yes.
Q: Okay. And so it was reasonable for OceanaGold to believe based on that, that it looked like you were working? Which is why they reached out to you to ask you whether you were working, correct?
A: Yes.
[ECF No. 35:13-20]. Although Plaintiff argues she was not engaged in outside employment because she received no compensation for her presence or activities at the wedding, as stated by the Fourth Circuit, “[i]f [plaintiff] was fired for misconduct [ ]he did not actually engage in, that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.” Powell v. Biscuitville, Inc., C/A No. 20-2378, 2021 WL 2434011, at *2 (4th Cir. June 15, 2021) (citing Villa, 858 F.3d at 903). The court does not “sit as a super-personnel department, weighing the prudence of employment decisions made by the defendants.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998). The court need not decide “whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's discrimination and retaliation claims concerning her termination.
3. Claims Concerning Moving Offices
Plaintiff has argued she was discriminated and retaliated against in violation of Title VII, the ADA, and/or 42 U.S.C. 1981 when she was moved to a different office. However, a Title VII plaintiff must demonstrate that she suffered an “adverse employment action,” or something that caused “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or . . . a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (citation omitted). Moving offices does not qualify as an adverse employment action. See, e.g., Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (“The mere fact that a new job assignment is less appealing to the employee [ ] does not constitute adverse employment action.”) (citing James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004)).
Although the court has recommended dismissal of Plaintiff's ADA claims, based on her failure to establish she is a qualified individual with a disability under the statute, Plaintiff has also failed to establish any decisionmaker was aware of her ailments when she was moved to a different office, was allegedly harassed while in that office, or when she requested to work from home. See, e.g., Rose v. Sumter Cnty. Sch. Dist., C/A No. 3:20-1008-MGL-TER, 2021 WL 8014695, at *5 (D.S.C. Dec. 22, 2021) (collecting cases and noting “[b]ecause liability under the ADA requires the employer to have discriminated because of the employee's disability, it follows that the employee must show that the employer knew of his alleged disability at the time it took the adverse employment action”), report and recommendation adopted, C/A No. 3:20-01008-MGL, 2022 WL 601858 (D.S.C. Mar. 1, 2022); see also Kelly v. Town of Abingdon, Virginia, 90 F.4th 158, 167 (4th Cir. 2024) (noting “not every work-related request by a disabled employee constitutes a request for accommodation under the ADA,” and to properly invoke the ADA, the communication “must be sufficiently direct and specific, providing notice that the employee needs a special accommodation for a medical condition”) (citations omitted)).
Additionally, even if Plaintiff had established a prima facie case of discrimination or retaliation, Defendant has provided a legitimate reason for her moving offices, with supporting evidence:
At its core, the buyer job is transactional in nature, and because the team is small, the buyers share a workload. (id.; Muteb Dec. ¶ 5). Sitting in a shared office space ensures productivity, allowing the buyers to be physically close to the Mill and Maintenance operations at the Site, which are their two most important clients. (id.). For this reason, the buyers have always shared an office, and no buyer has ever worked in the administration building. (Id; Parkman Dep. p. 28, ll. 1-4, p. 106, ll. 3-14). Plaintiff's admitted lack of experience in the role also necessitated her move, which enabled her to receive the training needed to learn her new job.
(Muteb Dec. ¶ 5; Jaillette Dec. ¶ 6; Wells Dec. ¶ 5). Thus, Plaintiff's transfer to the buyer office was a requirement of the position and satisfied legitimate business needs of the Company. (id.)
[ECF No. 28 at 4]. As Defendant correctly argued, “Plaintiff failed to present any argument that the Company's legitimate, non-discriminatory reason for her transfer was pretext.” [ECF No. 36 at 3, see also ECF No. 33].
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's discrimination and retaliation claims concerning her moving offices.
To the extent Plaintiff argues Defendant's failure to address her complaints about Muennich were discriminatory and retaliatory, the undersigned recommends dismissal of these claims as well where she has failed to show, for example, an adverse employment action.
4. Hostile Work Environment Claims
Plaintiff also argues her transfer to a different office, her ignored complaints about Muennich, Defendant's refusal to allow her to work from home, and her termination support her hostile work environment claims. “To demonstrate . . . a racially hostile work environment, a plaintiff must show that there is ‘(1) unwelcome conduct; (2) that is based on the plaintiff's . . . [race]; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.'” Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (citing Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334 (4th Cir. 2010)). A work environment is hostile when “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted).
Although the court has recommended dismissal of Plaintiff's ADA claims, based on her failure to establish she is a qualified individual with a disability under the statute, Plaintiff has also failed to establish an ADA hostile work environment claim for the reasons stated above. See Jessup v. Barnes Grp., Inc., 23 F.4th 360, 367 (4th Cir. 2022) (citing Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001)).
Plaintiff has not established the elements necessary to support a hostile work environment claim. Taking the evidence in the light most favorable to her, Plaintiff has not shown that she experienced any harassment based on her race, her disabilities, or for any other protected reason, nor has she shown any such harassment was sufficiently severe or pervasive. As stated by the Fourth Circuit, “Title VII does not create a general civility code in the workplace,” Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335 (4th Cir. 2010) (citing Oncale, 523 U.S. at 81), and “plaintiffs must clear a high bar in order to satisfy the severe or pervasive test,” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
Plaintiff argues otherwise as follows:
Here, there is evidence in the record to show Plaintiff was subject to a hostile work environment based on her disability. Defendant moved Plaintiff from her individual office in the “Administration Building” to the “Truck Shop” trailer building that was noisy, dirty, and shared with an employee who was known to yell and throw things such as staplers and metal cups. It is reasonable for a jury to conclude Defendant placed Plaintiff in this environment with the specific intentions to exacerbate her anxiety, high blood pressure, and depression as a means of creating a hostile work environment based on her disability. Plaintiff was performing her duties as a buyer in the “Administration Building” that was set back away from the noise of the gold mine and separate from loud and aggressive coworkers such as Muennich. Moreover, Defendant denied Plaintiff's request to work from home (while allowing others to do so) specifically to create the environment that was hostile to Plaintiff based on her disability.
[ECF No. 33 at 33, see also id. at 37-38 (arguing she has established a Title VII hostile work environment claim where “there is evidence to suggest Defendant used Plaintiff's disability as a tool to retaliate against her for making complaints about race discrimination”) (emphasis removed))].
The court is not persuaded by Plaintiff's argument that Defendant knowingly placed her in an environment to exacerbate her anxiety, high blood pressure, and depression, or as a tool to retaliate against her, particularly where Plaintiff has failed to establish that during the relevant period, any decision makers were aware of her ailments.
As to Plaintiff's argument that she was not allowed to work from home while others were allowed to do so, “[t]o “establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (citations omitted).
Plaintiff has failed to do so here, although she argues otherwise. [See ECF No. 33 at 36 (“By way of example, Ken Muennich (Causation male) was known to have engaged in volunteer work outside of his employment with Defendant. Moreover, there is evidence Melodie Hinson (Caucasian female) was allowed to work from home and was not disciplined.”)]. First, Plaintiff has provided no evidence of any employee who was treated differently than Plaintiff was who worked, paid or unpaid, while on FMLA leave, including Muennich. [ECF No. 33-3 at 218:13-23]. Second, Plaintiff's evidence that Hinson worked one day from home is not relevant comparator evidence where Plaintiff sought an ongoing work-from-home arrangement. As Parkman testified, Defendant, during the relevant period, did not have any remote employees and no one was allowed to work from home on a regular, full-time basis, but Defendant did permit employees to occasionally work from home on a “one-off” basis based on business or personal needs. [ECF No. 33-1 at 71:9-18, see also id. at 88:19-22 (Parkman confirming she was not aware of any instance where Hinson worked from home while sick)].
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's hostile work environment claims.
5. FMLA Interference Claim
As explained by the Fourth Circuit:
[T]o make out an FMLA interference claim, an employee must demonstrate (1) that he is entitled to an FMLA benefit; (2) that his employer interfered with the provision of that benefit; and (3) that the interference caused him harm. Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 427 (4th Cir. 2015). The FMLA “provides no relief unless the employee has been prejudiced by the violation.” Ragsdale, 535 U.S. at 89, 122 S.Ct. 1155 (emphasis added).Adkins v. CSX Transportation, Inc., 70 F.4th 785, 796 (4th Cir. 2023).
Plaintiff argues that Defendant interfered with her FMLA leave by “1) attempting to prevent Plaintiff from going on leave when Muteb told Plaintiff that doing so would ‘put [him] in a bind'; 2) contacting Plaintiff while on leave to discuss work; and 3) terminating Plaintiff's employment for extending her FMLA leave,” resulting in increased anxiety and depression and her termination from employment. [ECF No. 33 at 25].
In contrast to the above argument presented in briefing, Plaintiff testified the only purported harm she experienced was “[her] termination while under FMLA leave.” [ECF No. 33-3 at 101:10-14].
Even if Plaintiff had provided evidence of increased anxiety and depression, her cause of action based on this alleged prejudice would still fail as a matter of law. For a violation to be prejudicial, the employee “must lose compensation or benefits or suffer other monetary losses as a direct result of the violation or be denied employment, reinstatement, or promotion.” Boulware v. S.C. Dep't of Health & Hum. Servs., C/A No. 3:17-1110-MGL-PJG, 2017 WL 9275286, at *2 (D.S.C. Aug. 23, 2017), report and recommendation adopted, C/A No. 3:17-01110-MGL, 2017 WL 4401673 (D.S.C. Oct. 4, 2017). The FMLA's statutory scheme does not include recovery for alleged emotional harm. Montgomery v. Maryland, 72 Fed.Appx. 17, 19 (4th Cir. 2003) (noting emotional distress is not a cognizable element of damages covered under the FMLA). As a result, purported “increased anxiety and depression” do not establish prejudice under the third prong of Plaintiff's claim. Additionally, the prejudice element of an interference element is not satisfied when an employee's FMLA benefits are cut short due to the employee's own misconduct. Adkins, 70 F.4th at 797 (“In the circumstance of this case, where the plaintiffs sought and were granted two months of medical leave, during which they were fired for misconduct, we conclude that the plaintiffs have failed to establish the prejudice element of their FMLA interference claim”).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's FMLA interference claim.
Plaintiff also appears to argue that Defendant's failure to accommodate her request to work from home may have violated the FMLA [ECF No. 33 at 2], but offers no case law or argument in support of this assertion.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 28].
Given the analysis and recommendation above, it is unnecessary for the court further to address Defendant's argument that Plaintiff's post-deposition affidavit, submitted in support of her opposition to Defendant's motion for summary judgment, should be stricken. See, e.g., Kinser v. United Methodist Agency for the Retarded-W. N Carolina, Inc., 613 Fed.Appx. 209, 210 (4th Cir. 2015) (“At the summary judgment stage, if an affidavit is inconsistent with the affiant's prior deposition testimony, courts may disregard the affidavit pursuant to the sham-affidavit rule.”) (citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). The undersigned also notes that Plaintiff has failed to respond to several of Defendant's arguments [see ECF No. 36 at 2-3], including that any claims based on her alleged discriminatory pay or concerning her written warning fail because these actions were not adverse employment actions because she did not suffer any tangible employment consequences. See, e.g., Coker v. Int'l Paper Co., C/A No. 2:08- 1865-DCN-BM, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (finding a plaintiff can abandon claims by failing to address them in response to a dispositive motion).
IT IS SO RECOMMENDED.