Opinion
Civil Action No. 2:00-0790-18RB
July 13, 2001
REPORT AND RECOMMENDATION
This matter comes before me on Defendant's Motion For Summary Judgment. Plaintiff brings this action against Berkeley County Government asserting violations of the provisions of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000-e. Specifically, Plaintiff puts forth four separate claims: 1) that Defendant discriminated against him due to his race and sex, 2) that Defendant retaliated against him for complaints he made regarding his supervisor, 3) that Defendant harassed him, and 4) that Defendant wrongfully terminated him. Plaintiff has responded in opposition to Defendant's motion for summary judgement, and in this posture, the matter is ripe for disposition.
Looking at the facts in a light most favorable to Plaintiff, Defendant hired Plaintiff, a black male, on October 27, 1997. Plaintiff continued to be employed by Defendant Berkeley County in the Management Information Service Department (MIS) until July 14, 1999. Initially, Plaintiff was directed to report to Gloria Brown, a black female. On October 29, 1998, Plaintiff was instructed to report to Carole Grant, a white female. Plaintiff claims the reassignment was made due to changes which were being instituted in the MIS Department. Prior to this change, Plaintiff won the employee of the month award, and won praises for his work performance from two different individuals.
Plaintiff and Defendant disagree on this point. Defendant alleges Gloria Brown requested a change in job assignments so she no longer had to supervise Plaintiff.
Plaintiff maintains that he was discriminated against due to his race and sex on two different occasions. On October 2, 1998, Plaintiff submitted a request for vacation leave for December 22nd, 23rd, and 28th. Plaintiff alleges his request for leave was approved on October 2, 1998, but was rescinded later in order to accommodate a co-worker, Roberta Melton, who is a white female. Plaintiff attempts to substantiate this claim by submitting copies of two leave slips. The first leave slip shows that Carole Grant signed her name on a line of the leave slip next to the typewritten words "approved". Underneath her signature, however, were the words "Requested he resubmit" in the "comments 'portion of the slip. The second leave slip shows that Carole Grant approved Plaintiff's request for only two days of leave, December 22nd and 23rd.
Testimony at Plaintiff's deposition revealed that December 28th was an extra County holiday. As a result, Plaintiff received all of the vacation days he initially requested.
Defendant alleges the County policy pertaining to holiday leave states that each employee is paired with another County employee and the pair must co-ordinate their vacation requests so that only one member of each pair is away at any given time. In his deposition, Plaintiff claims he was not aware of this policy, and asserts he should have been notified that the policy existed before he requested leave. In addition, Plaintiff correctly notes that Roberta Melton and he do not have the same job, or the same responsibilities. Nonetheless, Plaintiff admitted at the deposition that he does not have any witnesses or evidence to establish that his initial leave request was denied due to his race or sex.
Plaintiff also maintains he was discriminated against because a board was placed in the MIS Department which required him to indicate his whereabouts during work hours. According to Plaintiff, none of the individuals in the programming department were required to move the button next to their name, except for Plaintiff. Plaintiff does admit, however, that he did not know if the other individuals had been told by Carole Grant to indicate their whereabouts by utilizing the board. Nonetheless, Plaintiff alleges that it is 'his belief' that because other employees were not as compliant as he in using the board to disclose their whereabouts that the board was used solely to keep track of Plaintiff. Plaintiff conceded in his deposition testimony, however, that he does not have any evidence to show that the board was used as a way of discriminating against him due to his race.
In addition to the allegations that Plaintiff was discriminated against due to his race and sex, Plaintiff alleges that he was retaliated against because he complained about his supervisor. On November 6, 1998, Plaintiff sent a memo to the Human Resources Department complaining about his supervisor, the director of the MIS Department, Carole Grant. The seven page memo alleged that Carole Grant used inappropriate language towards Plaintiff. The memo also indicated that Plaintiff believed that Carole Grant had subjected him to unfair treatment. In his deposition, Plaintiff admits that he did not allege in the memo that the unfair treatment, or the inappropriate language used in his presence, was due to discrimination. Plaintiff met with Jim Rozier, Supervisor for Berkeley County, and Marie Wauben, Director of Human Resources, to discuss the memo on at least two occasions, and indicated that he felt he was being discriminated against, although he could not point to a specific allegation that indicated he was treated in a certain manner due to race or national origin. On the other hand, the memo does refer to, among other things, the two issues addressed above which pertain to denial of vacation leave and use of a board to determine Plaintiff's whereabouts. In addition, Plaintiff did state in his charge of discrimination filed with SCHAC on June 3, 1999, that he had been discriminated against due to race and sex, and had been retaliated against for his opposition to the discriminatory treatment.
According to the memo, Plaintiff's supervisor "flung her hands upward and remarked, in a very loud and ugly tone of voice 'I am tired of this Bull Shit'".
The retaliation charges stem from two written reprimands which Plaintiff received approximately five (5) months after he complained, via his memo, about Carole Grant. In March of 1999 Plaintiff was reprimanded for two incidents that involved individuals who were not employed in the MIS Department. The first incident arose from a complaint by the Coroner concerning Plaintiff's behavior towards one of the Coroner's employees. In response to the complaint, Carole Grant issued a memo to Plaintiff, asking him to prepare a statement explaining what occurred at the Coroner's office, and to meet with her that afternoon regarding the alleged incident. She also issued the same directions to Plaintiff orally. Plaintiff told Carole Grant that he would not prepare a memo because he did not know what incident she was referring to. Nonetheless, Plaintiff did prepare a memo but did not respond to Carole Grant's request. Instead, Plaintiff stated in his memo that Carole Grant did not refer to any specific incident to which he could respond. Carole Grant indicated on Plaintiff's disciplinary action form that she had provided Plaintiff with the date and time of the alleged incident, which was specific enough for Plaintiff to respond to her request. She also indicated that Plaintiff did not respond to her questions during their meeting. Plaintiff was written up for failure to follow oral instructions.
The second reprimand involved a letter which Plaintiff sent to a Probate Judge. The Judge requested that Plaintiff provide him with Internet training. Plaintiff sent a letter to the Judge indicating that he did not have access to the Internet and could not prepare a teaching session on the use of the Internet without access. Plaintiff had previously advised Carol Grant by memo that he had received this request from the Judge, but did not have access to the Internet. In addition to the memo which Plaintiff sent to the Judge, Plaintiff attached a copy of the memo he had sent to Carole Grant. Defendant alleges that it was not part of Plaintiff's job duties to teach Internet classes, and that Plaintiff had been instructed on three different occasions to refer technical questions to another staff member. As a result, Plaintiff received a written reprimand for failure to follow an oral instruction. It should be noted that Plaintiff was not demoted, and he did not lose pay as a result of either disciplinary infraction.
Plaintiff alleges he was harassed in his third cause of action. On May 28, 1999, Plaintiff received a memo from Carole Grant regarding Plaintiff's visitors. Plaintiff had asked the switchboard personnel to call him when he had a visitor instead of sending the visitor to his office. Plaintiff maintained that it was difficult for visitors to find their way to his office. The memo indicated that switchboard personnel believed that some of Plaintiff's visitors were intoxicated. Plaintiff alleges the switchboard personnel were not trained in determining if someone was intoxicated. Six weeks after this incident Carole Grant received a memo from Plaintiff alleging she was discriminating against Plaintiff because he is black, and because all of his visitors are black. In his deposition, however, Plaintiff admitted that it was not unreasonable for a supervisor to request that visitors not be intoxicated. Plaintiff also conceded during his deposition that he had no evidence to indicate that Carole Grant's concerns about his visitors were related to their race. Plaintiff does not mention these events in his SCHAC complaint filed on June 3, 1999, and his complaint was not amended to include these events.
In his fourth cause of action, Plaintiff alleges he was wrongfully terminated. Plaintiff alleges he was terminated from his employment with Berkeley County because he was arrested on July 2, 1999 on forgery charges for passing counterfeit $100.00 bills. As a result of his arrest, Defendant searched Plaintiff's computer to determine if County property was being utilized in an improper manner. During the search Defendant found an award certificate bearing the County Supervisor's signature. The signature had been scanned into the computer, placed in a separate file, and then enlarged. Defendant also found an emblem from the Berkeley County Federal Credit Union.
Plaintiff admitted that he scanned the award certificate, but denied that he separated the signature or placed the signature in a separate computer file. Plaintiff alleges he scanned the award certificate at the request of another county employee, and claimed he had performed personal work for other county employees with Carole Grant's knowledge and permission. Plaintiff admitted that he created business cards for employees at the Berkeley County Credit Union, and that this work was not authorized by Carole Grant. Plaintiff did not include in his complaint filed with SCHAC that he had been wrongfully terminated, and he did not amend his original complaint with SCHAC to include these allegations.
Defendant alleges that Plaintiff was not authorized to scan the County Supervisor's signature, and maintains it was inappropriate for Plaintiff to maintain the Supervisor's signature in a computer file. Defendant also maintains that it was improper to create business cards for Credit Union personnel during work hours with County property for commercial gain. Plaintiff denies he was compensated for creating the business cards but admits that "3 minutes worth" of work on the business cards was performed during his work hours. Defendant alleges Plaintiff was terminated because of improper use of County equipment. Although Defendant made reference to the two disciplinary infractions in the Plaintiff's termination letter, Defendant offered testimony showing that the Plaintiff's termination was based solely upon improper use of County equipment.
Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Zahodnick v. International Business Machines Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must men affirmatively demonstrate that there is a genuine issue of material fact which requires trial.Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
There exists no issue for trial unless there is sufficient evidence favoring the nonmoving party for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986);Sylvia Development Corp. v. Calvert County, Md. 48 F.3d 810, 817 (4th Cir. 1995). A trial judge faced with a summary judgment motion "must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, 477 U.S. at 252. Thus, the moving party can bear his burden either by presenting affirmative evidence, or by demonstrating that the non-moving party's evidence is insufficient to establish his claim. Celotex Corp., 477 U.S. at 331 (Brennan, J., dissenting).
When making the summary judgment determination, the court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913;Halperin v. Abacus Technology Corp., 128 F.3d 191, 196 (4th Cir. 1997)abrogation on other grounds recognized in Baird ex rel. Baird, v. Rose, 192 F.3d 462 (4th Cir. 1999). As a general rule, the non-movant must respond to a motion for summary judgment with affidavits, or other verified evidence, rather than relying on his complaint. Celotex Corp., 477 U.S. at 324; see also, Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). An affidavit presented in opposition to a motion for summary judgment "must present evidence in substantially the same form as if the affiart were testifying in court." Evans v. Technologies Applications Service Co., 80 F.3d 954, 962 (4th Cir. 1996). Thus, a party cannot ward off summary judgment with an affidavit or verified complaint "based on rumor or conjecture." Palucki v. Sears, Roebuck Co., 879 F.2d 1568, 1572 (7th Cir. 1989); see also, Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988) (summary judgment may be appropriate in cases where the allegations in the verified pleading are merely conclusory). Nor can the submitted evidence present inadmissible hearsay. Evans, 80 F.3d at 962, citing Maryland Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991). Unsubstantiated allegations are likewise insufficient to survive summary judgment.Evans, 80 F.3d at 960.
As a threshold matter, the plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before filing suit under Title VII. King v. Seaboard CoastLine R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976). A claim filed with the EEOC defines the scope of litigation once the plaintiff institutes a suit in federal district court. Evans v. Technologies Applications and Serv. Co., 80 F.3d at 962-63. Plaintiff must file a charge of discrimination with the EEOC within 300 days of the alleged unlawful employment practice. See Section 706(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e). In addition, however, in South Carolina, which has anti-discrimination laws similar to Title VII and a "deferral agency" (SCHAC) with essentially the same powers as the EEOC, Plaintiff must first file his claim with SCHAC within 180 days from the last act of discrimination. 42 U.S.C. § 2000e-5c. The purpose of the deferral procedure is to give the state agency a chance to resolve the claim and thereby possibly obviate the need for the involvement of the federal agency or courts. Moreover, as noted above, the action by the EEOC is a predicate for litigation based on the federal statute. Davis v. North Carolina Dept. of Corr., 48 F.3d 134, 138 (4th Cir. 1995).
Plaintiff filed his complaint with SCHAC on June 3, 1999 — which was within the 180 period — and received his right to sue letter from SCHAC on January 20, 2000. Defendants note that the complaint Plaintiff filed with SCHAC does not address claims three (3) and four (4), enumerated in Plaintiff's federal complaint filed with this court. A review of the testimony and evidence in the record does not reveal when Plaintiff filed his complaint with the EEOC, although it is clear that Plaintiff received his right to sue letter from the EEOC on April 12, 2000. Plaintiff filed his complaint in this Court on March 13, 2000, prior to receiving his right to sue letter from the EEOC in contravention of the federal statute. Nonetheless, Plaintiff is proceeding pro se, and I must look at the facts in a light most favorable to Plaintiff. Therefore, I will address all of Plaintiff's claims on the merits since the record does not reveal when Plaintiff filed his complaint with the EEOC and he has now submitted his right to sue letter to this court.
As to Plaintiff's first set of allegations, Plaintiff asserts that he was not granted leave and was required to notify his supervisor of his whereabouts due to his race and sex in violation of Title VII of the Civil Rights Act of 1964. "It shall be an unlawful employment practice for an employer . . . to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e-2(a).
In order for Plaintiff's claims to survive Defendant's summary judgment motion, Plaintiff must proceed under the analysis articulated inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also, Evans v. Technologies Applications Service Company, 80 F.3d at 959. In McDonnell Douglas, the Court classified the factors in a prima facie case: 1) plaintiff is a member of a protected class, 2) plaintiff applied for and was qualified for a job for which employer was soliciting applicants, 3) despite qualifications, plaintiff was rejected, 4) after the plaintiff's rejection, the post remained open and the employer continued to seek applicants with employee's qualifications. The Supreme Court has held that the criteria set out in McDonnell Douglas is flexible, "and must be adapted to meet the type of discrimination alleged in each case." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978). In light of the holding in Waters, I have determined that Plaintiff must prove the following legal criteria, based on the allegations in the instant case. Plaintiff must show that: 1) he is a member of a protected class, 2) Plaintiff and non-members of a protected class worked in similar capacities, and 3) Plaintiff was denied vacation leave given to similarly situated non-members. If Plaintiff successfully makes this showing, the burden then shifts to Defendant to rebut the presumption by articulating a legitimate, non-discriminatory purpose for its actions. Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 258 (4th Cir. 1998); Gillians v. Berkeley Elec. Co-op, Inc., 148 F.3d 413, 416 (4th Cir. 1998); Fleming v. South Carolina Dept. of Corrections, 952 F. Supp. 283, 287 (D.S.C. 1996). This burden is one of production, not of proof. Gillians, 148 F.3d at 416. Once Defendant has met this burden, the burden then shifts back to Plaintiff to show that Defendant's reason is pretextual and that Defendant's true motivation was discriminatory. Laughlin, 149 F.3d at 258. In order to survive summary judgement, a Title VII plaintiff need not always present evidence above and beyond his prima facie case and pretext. Reeves v. Sanderson Plumbing Products, Inc., __ U.S. __, __, 120 S.Ct. 2097, 2108 (2000). Nonetheless, the evidence presented must still lead to the indication that the employer's actions were motivated by discrimination.Id.; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Where a plaintiff fails to produce any evidence of discrimination and his evidence offered to rebut the non-discriminatory reasons proffered by defendant is not so persuasive as to support an inference that the real reason was discrimination, summary judgement is appropriate See Rubinstein v. Administrators of Tulane Educational Fund, 218 F.3d 392, 400 (5th Cir 2000).
In light of the above-described evidentiary requirements, Plaintiff must present; admissible evidence which raises a material and genuine factual dispute if his action is to survive summary judgment. "The mere existence of a scintilla of evidence in support of plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby Inc. 477 U.S. at 252. Bald unsupported and conclusory allegations do not constitute evidence and therefore do not: create triable issues of fact.Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir 1987). A plaintiff's beliefs, just like conclusory allegations, speculation, and conjecture are insufficient to defeat a properly supported motion for summary judgment. See Ross v., Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
Plaintiff has failed to meet the evidentiary burden necessary to support his first cause of action. Plaintiff premises his allegations of race and sex discrimination on the assertion that Roberta Melton, a white female, was granted all of the leave time she requested, while the Plaintiff's leave time, which had already been approved, was rescinded in order to accommodate Ms. Melton. Fatal to Plaintiff's discrimination claim is his failure to meet the second and third elements of a prima facie case. Plaintiff is clearly a member of a protected class, however, he has not demonstrated that he was treated in a discriminatory manner as compared to his co-worker, Roberta Melton, because, as Plaintiff noted, he and Ms. Melton did not hold the same job title or have the same job duties. As a result, Plaintiff does not meet the second prong of the test because he and Ms. Melton did not work in similar capacities. More importantly, the third prong of the test requires that plaintiff show he was denied vacation leave. Plaintiff received all of the vacation days which he requested. Plaintiff admitted at his deposition that he does not have any witnesses or evidence to establish that his initial leave request was denied due to his race. Plaintiff has shown this court nothing beyond his own conclusory "strong feelings" which would support his claim that he was not given leave time because of his race and sex.
Even assuming Plaintiff could establish a prima facie case, Defendant has offered legitimate non-discriminatory reasons for denying Plaintiff's initial leave request. Defendant offered evidence to show that the County policy pertaining to holiday leave requires that each employee who is paired with another County employee must co-ordinate their vacation requests so that only one member of each pair is away at any given time. Evidence provided by Defendant showed that Plaintiff's supervisor approved Plaintiff's leave request because she was not aware that Plaintiff had not followed the holiday leave policy when Plaintiff submitted his initial leave request. When Plaintiff's supervisor determined that Plaintiff did not follow the holiday leave policy she asked Plaintiff to resubmit his request after he conferred with his co-worker, Roberta Melton.
Since Defendant has met its burden to provide a legitimate nondiscriminatory reason for its actions, Plaintiff must establish pretext by demonstrating that "the employer's proffered explanation is unworthy of credence," and the trier of fact, in evaluating whether such explanation is pretextual, may consider "the evidence establishing the plaintiffs prima facie case 'and inferences properly drawn therefrom[.]'"Reeves v. Sanderson Plumbing Products. lnc., 120 S.Ct. at 206, quoting Burdine v. Texas Department of Community Affairs, 450 U.S. 248, 255-56 (1981). Under Reeves, a plaintiff may prevail by showing only that the employer's proffered reason for its action was pretextual because such a showing "is simply one form of circumstantial evidence that is probative of intentional discrimination." Reeves, 120 S.Ct. at 2108. "Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109. In this instance, Plaintiff has not offered any evidence for a trier of fact to conclude that Defendant's reasons are false. Plaintiff's response to Defendant's motion for summary' judgement reiterates the allegations in Plaintiff's complaint but does not offer any additional evidence to defeat the legitimate non-discriminatory reasons offered by Defendant.
Plaintiff also alleges in his complaint that he was discriminated against because he was asked to use a board to determine his whereabouts. Once again, Plaintiff must proceed under the McDonnell Douglas analysis. Following Waters, I have determined that Plaintiff must prove the following legal criteria, based on the allegations in the instant case. Plaintiff must show that: 1) he is a member of a protected class, 2) plaintiff and non-members of a protected class worked in similar capacities, and 3) plaintiff was required to use a board to determine his whereabouts while other similarly situated non-members were not required to use a board to determine their whereabouts. Plaintiff fails to meet the third prong of this analysis because Plaintiff has not provided any evidence to this court to show that other individuals were not required to use the board to determine their whereabouts. In fact, Plaintiff admitted that he had no knowledge as to whether Carole Grant had asked other individuals to utilize the board. Moreover, monitoring of an employee's whereabouts while on duty does not create a subjectively or objectively hostile work environment. Settle v. Baltimore County, 34 F. Supp.2d 969, 1005 (D.Md., 1999).
Plaintiff also alleges he was retaliated against because he received two written reprimands five months after he complained about his supervisor, Carole Grant. An employer may not retaliate against an employee for participating in an ongoing investigation or proceeding under Title VII, nor may the employer take adverse employment action against an employee for opposing discriminatory practices in the workplace. Laughlin, 149 F.3d at 259.
As with his discrimination claims, to prevail on a retaliation claim, Plaintiff must satisfy the three-step proof scheme established inMcDonnell Douglas. First, he must establish, by a preponderance of the evidence, a prima facie case of retaliation. Once Plaintiff has established his prima facie case, the burden shifts to Defendant Berkeley County to rebut the presumption of retaliation by articulating non-retaliatory reasons for its actions. Cf. Burdine, 450 U.S. at 254. If Defendant meets its burden of production, the presumption raised by the prima facie case is rebutted and "drops from the case." Id. at 255 n. 10. Finally, Plaintiff bears the ultimate burden of proving that he has been the victim of retaliation. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 507.
A plaintiff makes out a prima facie case of retaliation by showing 1) that he engaged in protected activity under Title VII, 2) that the employer thereafter took adverse employment action against him, and 3) a sufficient causal connection existed between his protected activity and the employer's adverse action. Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745, 754 (4th Cir. 1996); Ross v. Communications Satellite Corp., 759 F.2d at 365.
Plaintiff did not engage in a protected activity when he complained about his supervisor, Carole Grant, since nothing in Plaintiff's memo alleged that Carole Grant discriminated against him. Plaintiff alleges that he received "unfair treatment" when he was reprimanded on two occasions, and he claims that his supervisor used inappropriate language in his presence; however, he never asserts these incidents were the result of discriminatory practices by Defendant. Absent more, Plaintiff has not met the first prong of the McDonnell Douglas test. In addition, Plaintiff's two reprimands, one as a result of an incident with a Coroner's office employee, and the other as a result of a letter sent to a Probate Judge, did not result in any adverse employment action. Focusing solely on the reprimands themselves, nothing happened — no reduction in pay, no demotion, no restriction of duties, no imposition of probationary status, and no discharge. Although Plaintiff alleges he was discharged, in part, as a result of the reprimands, testimony at Plaintiff's deposition shows that Defendant did not rely on the reprimands as a basis for terminating Plaintiff. While it is clear that the atmosphere in the MIS Department was unpleasant at times, Title VII is not a federal guarantee of refinement and civility in the workplace.See Hartsell v. Duplex Products, Inc., 123 F.3d 766, 773 (4th Cir. 1997). Nor should it be used "to provide redress for trivial discomforts endemic to employment", such as the use of foul language on one occasion. Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999).
In any event, Plaintiff has no evidence to support the third element of the test, and he has not begun to establish causation. There is a five month interval between the "activity," which in this case is the memo written by Plaintiff complaining about his supervisor, and the two reprimands, which Plaintiff insists were lodged against him in retaliation for the memo. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) ("A lengthy time lapse between the employer becoming aware of the protected activity and the alleged adverse employment action . . . negates any inference that a causal connection exists between the two.") Consequently, Plaintiff has failed to establish a prima facie case of retaliation.
In his third cause of action Plaintiff alleges he was harassed. In May of 1999 Plaintiff received a memo from his supervisor, Carole Grant, regarding Plaintiff's visitors. According to the memo, switchboard personnel had complained that Plaintiff's visitors were intoxicated. Plaintiff denied that his visitors were intoxicated. Six weeks after he received the memo, Plaintiff sent a memo to Carole Grant alleging she was discriminating against Plaintiff, and thereby harassing him, because he is black and his visitors are black. In order to make a claim of racial harassment, Plaintiff must demonstrate the existence of hostile working conditions, including incidents that are "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment". White v. Federal Express Corp., 939 F.2d 157, 160 (4th Cir. 1991), citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986); see also Standfer v. Thompson, 939 F.2d 161 (4th Cir. 1991).
Plaintiff must meet the four part test articulated in Hampton v. Conso Products, Inc., 808 F. Supp. 1227 (D.S.C., 1992) in order to make a prima facie showing of racial harassment. The Court stated that a plaintiff must show: 1) unwelcomed harassment occurred in a work related setting, 2)the harassment complained of was racially motivated, 3) the harassment, viewed from both a subjective and objective perspective, was so severe or pervasive that it affected a term, condition, or privilege of employment, and 4) the employer either knew or should have known of the harassment and took no effective remedial action. Hampton, 808 F. Supp. at 1236.
Plaintiff has not established a prima facie case of racial harassment. Plaintiff admitted that it was not unreasonable for a supervisor to request that visitors not be intoxicated. In addition, Plaintiff concedes that he had no evidence to establish that Carole Grant's concerns about his visitors were racially motivated. Also, Plaintiff has not shown that a term, condition, or privilege of employment was affected as a result of receiving the memo. Plaintiff has made no showing that having visitors was, in fact, a privilege of employment with Defendant. To the extent that having visitors was a privilege of employment, Plaintiff was not told he could not have visitors. Plaintiff was told he could not have intoxicated visitors.
Plaintiff's final cause of action alleges he was wrongfully terminated. Defendant notes that wrongful termination is not a proper cause of action in a Title VII matter. In order to establish that a termination was wrongful under Title 7 Plaintiff must show that the termination was discriminatory or retaliatory. In the instant case, Plaintiff has not alleged that he was terminated for retaliatory or discriminatory reasons. Plaintiff must allege that he opposed an unlawful employment practice or participated in a proceeding or hearing, or assisted in an investigation of an unlawful employment practice. In other words, once an employee has objected to an illegal employment practice or participated in a proceeding regarding an illegal employment practice, an employee is generally protected from resulting consequences, including discharge. In either case the employee must show 1) he engaged in a protected activity, 2) adverse employment action was taken against him, and 3) a causal connection exists between the protected activity and the employer's adverse action. Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745 (4th Cir. 1996).
Plaintiff alleges he was terminated because he was arrested in July of 1999 on forgery charges for passing counterfeit $100.00 bills. Plaintiff does not meet the first and third prongs of the Hopkins test. An arrest does not constitute a "protected activity" as defined by current case law. In addition, while termination of employment constitutes an adverse employment action, there can be no connection between the adverse employment action and the termination because Plaintiff did not engage in a protected activity. Evidence offered by Defendant shows that Plaintiff was terminated because he utilized County property in an improper manner. Defendant alleges that Plaintiff scanned an award certificate with the County Supervisor's signature, separated the signature from the certificate, enlarged the signature and created a separate computer file for the signature. Plaintiff denies separating the signature, enlarging it, or creating a separate file for the signature. Defendant also alleges that Plaintiff scanned a Berkeley County Credit Union emblem for a credit union employee for compensation. Plaintiff admits he scanned the emblem for a credit union employee without permission from Carol Grant, but denies he received compensation and claims he spent "three minutes of (work) time" to accomplish the task. Although Plaintiff and Defendant disagree on the particulars of these incidents it is clear that Plaintiff was not terminated for engaging in a protected activity, but for improperly utilizing County property. As a result, Plaintiff has failed to make a prima facie showing of wrongful termination.
For the foregoing reasons, IT IS RECOMMENDED that Defendant's Motion For Summary Judgment be GRANTED.
Notice of Right to File Objections to Magistrates Judge's "Report and Recommendation" The Serious Consequences of a Failure to Do So
The plaintiff is hereby notified that any objections to the attached Report and Recommendation (or Oder and Recommendation) must be filed within 10 (10) days of the date of its filing. 28 U.S.C. § 636 and Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. Fed.R.Civ.P. 6. Based thereon, this Report and Recommendation, any objections thereto, adn the case file will be delivered to a United States District Judge fourteen (14) days after this Report and Recommendation is filed. Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142 F.R.D. 91, 94 n. 3, 1992 U.S. LEXIS® 6243 (S.D.N.Y. 1992). A magistrate judge makes only a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v. Weber, 423 U.S. 261, 270-271 (1976); and Estrada v. Witkowski, 816 F. Supp. 408,410, 1993 U.S.Dist. LEXIS® 311 (D.S.C. 1993).
During the ten-day period, but not thereafter, a party must file with the Clerk of the Court specific, written objections to the Report and Recommendation, if he or she wishes the United States District Judge to consider any objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. Failure to file written objections shall constitute a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schrone, 727 F.2d 91, 94 n. 4 (4th Cir.), cert. denied, Schonce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841, 845-847 nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's Recommendation to which he or she did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509, 1991 U.S.App. LEXIS® 8487 (6th Cir. 1991). See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.) (party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard, supra, the Court stated that general, non-specific objections are not sufficient:
A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the [magistrate judge] useless . . . This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposed of the Magistrates Act. We would . . . hardly countenance an appellant's brief simply objecting to the district court's determination without explaining without explaining the source of the error.Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court:
Just as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for review. A district judge should not have . . . to guess what arguments an objecting party depends on . . . when reviewing a [magistrates judge's] report.See also Branch v. Martin, 886 F.2d 1043, 1046, 1989 U.S.App. LEXIS® 15,084 (8th Cir. 1989) ("no de novo review if objections are untimely or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984) ("plaintiff's objections lacked the specificity to trigger de novo review"). This notice, hereby, apprises the plaintiff of the consequences of a failure to file specifice, written objections. See Wright v. Collins, supra; and Small v. Sectretary of HHS, 892 F.2d 15, 16, 1989 U.S.App. LEXIS® 19,302 (2nd Cir. 1989). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections addressed as follows: