Opinion
Civil Action 7:18-cv-2957-JD-KFM
02-09-2022
Summer D. Lashley, Ph.D., Plaintiff, v. Spartanburg Methodist College, W. Scott Cochran, Mark W. Gibbs, Ph.D., Teresa D. Ferguson, Jonathan J. Keisler, Ph.D., Angelia A. Turner, and Clevon A. Boyd, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE.
This matter is before the court on defendant Spartanburg Methodist College's (“SMC”) motion for partial summary judgment as to the plaintiff's claims arising under Title VII of the Civil Rights Act of 1964, as amended (doc. 160). Pursuant to 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
The plaintiff's complaint, filed on November 1, 2018, alleges fifteen causes action arising from her employment and termination therefrom as Director of the Criminal Justice Program and Professor of Criminal Justice at SMC during the 2017-2018 school year (doc. 1). In its motion for partial summary judgment filed on August 11, 2021, defendant SMC argues that the plaintiff's Title VII claims for hostile work environment, disparate treatment, gender discrimination, and retaliation are barred because she failed to exhaust her administrative remedies (doc. 160-1 at 1).
APPLICABLE LAW AND ANALYSIS
Before filing a civil action under Title VII in federal court, a plaintiff must first exhaust her administrative remedies by filing a timely charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(1), (f)(1); Fort Bend Cty., Tex. v. Davis, 139 S.Ct. 1843 (2019); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). In the employment discrimination context, courts have interpreted statutory requirements to exhaust administrative remedies to mean that each discrete incident of discriminatory treatment must be administratively exhausted. Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the ‘discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge'”) (quoting Equal Emp. Opportunity Comm'n v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith, 202 F.3d at 247 (“A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.”). “Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (affirming the district court's dismissal of some of the plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time barred).
Moreover, “[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.” Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002) (internal quotation marks and citations omitted). Therefore, a discrimination suit “is limited to discrimination charged in the report to the EEOC or to discrimination actually found by the EEOC upon investigation of the original charge.” Stehle v. Gen. Mills Rest., Inc., 875 F.Supp. 320, 323 (D.S.C. 1994). When a discrimination claim “exceed[s] the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, ” it is procedurally barred. Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995).
The United States Court of Appeals for the Fourth Circuit has discussed the parameters for when different unlawful employment practices are considered “reasonably related” to those raised in an administrative charge. For example, “where both the administrative complaint and formal litigation concerned ‘discriminat[ion] in promotions' but involved different aspects of the ‘promotional system, '” the charges are reasonably related and may be advanced in a subsequent civil suit. Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 594 (4th Cir. 2012) (ADA) (quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). Similarly, courts have permitted a claim raised in litigation that was not specifically described in the administrative charge to go forward “where both the EEOC charge and the [federal] complaint included claims of retaliation by the same actor, but involved different retaliatory conduct.” Id. (citing Smith, 202 F.3d at 248). On the other hand, when the claim raised in the district court litigation involves a different form of unlawful employment practice than the one described in the administrative charge, courts have found the claim not to be administratively exhausted. See, e.g., Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009) (finding that claims of age, sex, and race discrimination were not exhausted where a charge alleged only retaliation), abrogated on other grounds by Fort Bend Cty., Tex., 139 S.Ct. 1843; Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132-33 (4th Cir. 2002) (finding that claims of sex and color discrimination were not exhausted where a charge alleged only race discrimination); Riley v. Tech. & Mgmt. Servs. Corp., Inc., 872 F.Supp. 1454, 1459-60 (D. Md. 1995) (finding that claims of sexual harassment and retaliation were not exhausted where a charge alleged only sex discrimination).
Hostile Work Environment, Disparate Treatment, and Gender Discrimination
Defendant SMC first argues that the plaintiff failed to administratively exhaust her hostile work environment, disparate treatment, and gender discrimination claims (doc. 160 at 4-8). The plaintiff filed and digitally signed a charge of discrimination with the EEOC on April 10, 2018 (doc. 160-2 at 2). In the plaintiff's charge, when asked what the discrimination was based on, only the retaliation and disability boxes were checked (id.). The charge indicated that the alleged discrimination occurred between October 20, 2017, and February 16, 2018 (id.). The narrative portion of the charge provided as follows:
I began my employment with the above-mentioned employer on July 1, 2017, and I was most recently employed as the Director and Professor of Criminal Justice. On October 20, 2017, I had a meeting with the Dean of Instruction, Dr. Mark Gibbs, and informed him of a male professor (Mr. Dale Hyder) who had been undermining me in the classroom. I also complained to Dr. Gibbs about Mr. Hyder undermining me again in January 2018, but Dr. Gibbs never investigated my claims. Dr. Gibbs would also make sexually charged comments about myself and other students dress during my employment. Around December 20, 2017, I was forced to visit urgent care due to my medical condition, and on January 18, 2018, the Division Chair for Social Sciences, Dr. Maryjane Farmer cornered me and questioned me about my medical condition, which I shared with her. On January 30, 2018, Dr. Gibbs intimidated me in my office and asked, What are your health issues? On January 31, 2018, I was called by Dr. Farmer and she told me to stay home because of my medical condition through February 2, 2018. On February 5, 2018, I spoke with the Director of Human Resource, Ms. Jenny Dunn, and I informed her that my medical condition was worsening and I needed a reasonable accommodation; to work on a floor with a bathroom. Ms. Dunn did provide me with the ADA paperwork, but told me that I needed to speak with Dr. Gibbs. On February 13th, I was called into Dr. Gibbs office and he informed me that I would not be receiving a contract for the following year, despite already being verbally promised a contract by Dr.
Farmer and Dr. Gibbs in fall 2017 and January 2018. I was not provided sufficient amount of time to submit the ADA paperwork because on February 16, 2018, I was provided a pretext reason for my termination by President Cochran and Ms. Theresa Ferguson; Conversations. During my termination meeting on the 16th, President Cochran stated that they would pay me my benefits and salary until my contract ended. However, this was rescinded when my attorney contacted the Respondent and informed them they were representing me. I believe I have been discriminated against and unlawfully retaliated against in violation of the Americans with Disabilities Act of 1990, as amended, because of my disability or perceived disability, and in violation of Title VII of the Civil Rights Act of 1964, as amended, based on my sex (female) and in violation for engaging in a protected activity.(Id. at 2-3) (emphasis added).
In response to the defendant SMC's motion, the plaintiff's counsel, David Rothstein, submitted a declaration, stating that on April 10, 2018, he accompanied the plaintiff to the EEOC office in Greenville, South Carolina, pursuant to an appointment the plaintiff had with an EEOC intake specialist (doc. 164-1, Rothstein decl. ¶ 3). The plaintiff did not actually fill out the EEOC Form 5 charge document; rather, the intake worker filled it out on a computer based on his interview with the plaintiff (id. ¶ 4). At the conclusion of the meeting, the intake worker read the narrative section of the charge, and the plaintiff signed the document electronically on the computer (id. ¶ 5). Neither the plaintiff nor her counsel were given a hard copy of the charge at that time, and neither of them reviewed the actual blocks on the charge that had been checked by the EEOC intake specialist, instead focusing on the language he read from the narrative section (id. ¶ 6).
Defendant SMC filed a statement of position with the EEOC, which included a section entitled “Anti-Harassment and Discrimination Policies.” Under this section, defendant SMC noted that it had policies prohibiting “anyone from subjecting a faculty member to sexual harassment, verbal harassment, physical harassment, or visual harassment” (doc. 164-2 at 3). The statement also included a section entitled “Dr. Lashley's Claims of Harassment, ” in which defendant SMC argued that the charge of discrimination “contains no specific facts indicating how a professor may have 'undermined' her, nor does it recite any 'sexually charged' comments that any faculty member allegedly made about her or in her presence” (id. at 4). Defendant SMC further argued in this section that the plaintiff failed to follow its written policies for reporting harassment (id.). In a section entitled “SMC's Reasons for Not Renewing Dr. Lashley's Contract and for Terminating Her, ” the defendant contended that it “did not fire Dr. Lashley because she reported harassment” (id. at 6).
The undersigned finds that the plaintiff has administratively exhausted her claims for hostile work environment, disparate treatment, and gender discrimination based on her allegations in the narrative portion of her charge. As set out above, the plaintiff alleged that she met with Dr. Mark Gibbs (“Dr. Gibbs”) on two occasions regarding a male professor, Mr. Dale Hyder (“Mr. Hyder”), undermining her in the classroom (doc. 160-2 at 2). However, the plaintiff alleged that Dr. Gibbs never investigated her claims and made “sexually charged comments” about her and other students' dress (id.). Further, the plaintiff concluded that she believed she had been discriminated against unlawfully in violation of Title VII “based on [her] sex (female) and in violation for engaging in a protected activity” (id. at 3). In comparison, in her cause of action for hostile work environment, disparate treatment, and gender discrimination in her complaint, the plaintiff alleged as follows:
Defendant Gibbs created a hostile work environment, based on sex, by making inappropriate comments about Plaintiff or in Plaintiff's presence that indicate unlawful animus based on gender, including, but not limited to, the following: telling Plaintiff that she wore sweaters or shirts that were “too tight” and that she should dress more conservatively because most of the students in the Criminal Justice Program are males; commenting to Plaintiff about how attractive [Mr.] Hyder's wife is; stating that Plaintiff's work-study student “dressed like a common street whore”; stating that certain faculty member(s) or students had “resting bitch face”; and referring to Plaintiff as a “crazy cat lady.”(Doc. 1 at ¶ 135). Moreover, in her complaint, the plaintiff further alleged that she “repeatedly complained to [Dr.] Gibbs about a male adjunct professor, Mr. Hyder, undermining her to students based on her gender” (id. at ¶ 137). However, the plaintiff submitted that “[Dr.] Gibbs failed or refused to address complaints about Mr. Hyder's misconduct” (id. at ¶ 138). The undersigned finds that the plaintiff's allegations regarding Dr. Gibbs' sexual comments and failure to investigate her complaints regarding Mr. Hyder undermining her based on her gender are reasonably related to her allegations in the charge about the same. Further, while the allegations in the complaint are set forth in greater detail than in the charge, such further detail is the type of information that would be expected to have naturally arisen from an investigation of the plaintiff's charge. See Evans, 80 F.3d at 963 (noting that “discrimination claims stated in the original charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.”); Dennis, 55 F.3d at 156 (noting that claims are procedurally barred if they “exceed the scope of the EEOC charge and any charges that would have naturally arisen from an investigation thereof”) (emphasis added).
In addition, defendant SMC asserts that the plaintiff failed to exhaust because she did not check the sex discrimination box in her charge (doc. 160-1 at 4). Moreover, defendant SMC contends that the plaintiff's charge should not be afforded an overly generous reading because she was represented by counsel at the time she filed her EEOC charge, thereby removing any justification for the plaintiff's failure to check the appropriate box (id. at 11). However, the undersigned finds that the fact that the box for sex discrimination was not checked in the charge is not fatal to the plaintiff's administrative exhaustion, even when she was represented by counsel. Courts in this district have found that a plaintiff has sufficiently put the defendant on notice and administratively exhausted when he or she fails to check the appropriate box but provides allegations of the relevant claim in the narrative portion of the charge. See, e.g., Salmon v. S.C. Elec. & Gas, C/A No. 3:14-4493-MBS-SVH, 2015 WL 3441144, at *4 (D.S.C. May 28, 2015) (adopting an R&R noting that a plaintiff's charge was “arguably ambiguous” when he did not check the appropriate box, but nevertheless finding that the plaintiff had administratively exhausted because the claim in his complaint was reasonably related to the narrative portion of his charge and could be expected to follow from a reasonable administrative investigation); Garland v. Mid-South Inv. II, Inc., C/A No. 9:12-621-DCN-BHH, 2012 WL 6840544, at *3 (D.S.C. Sept. 19, 2012) (noting that courts find that a plaintiff has exhausted his claims if he either checked the appropriate box or described the claim in the narrative section of the charge and concluding that, consistent with the notice goal of the charge, “[e]ither the check-the-box or the narrative sections can plainly apprise the accused.”), R&R adopted by 2013 WL 140429 (D.S.C. Jan. 11, 2013); compare Cornelius v. Simply Wireless, C/A No. 3:17-cv-3392-CMC-PJG, 2018 WL 4356578, at *2 (D.S.C. Sept. 13, 2018) (finding a plaintiff did not exhaust her claim of sex discrimination when she did not check the box for sex and did not include any allegations with regard to sex or gender in the narrative section of her EEOC charge). Moreover, as explained by the plaintiff's counsel, the EEOC intake worker completed the charge and, at the conclusion of the meeting, read the narrative portion of the charge aloud (doc. 164-1, Rothstein decl. ¶¶ 4-5). Neither the plaintiff nor her counsel were given a hard copy of the charge at that time (id. at ¶ 6). While the plaintiff and her counsel should have ensured that the appropriate boxes were checked, the undersigned nevertheless finds that the plaintiff has exhausted her administrative remedies due to a plain reading of the narrative portion of her charge clearly reflecting allegations of sex discrimination.
Defendant SMC also argues that the plaintiff has failed to exhaust her administrative remedies because the narrative section of her charge is predominantly concerned with her allegations regarding discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”) and that her brief mentioning of other incidents cannot be read as exhausting (doc. 160 at 4-5). However, while the plaintiff may have provided more details in the narrative portion regarding alleged violations of the ADA, a difference in the amount of detail does not change the fact that the plaintiff included allegations in the charge regarding sex discrimination and Title VII and that the allegations in the complaint are reasonably related to those included in the charge.
Defendant SMC further contends that the plaintiff failed to provide it with notice because she did not iterate that the events were frequent or pervasive, affected her job performance or resulted in retaliation, or caused any adverse employment action (doc. 160 at 5-6, 8). However, the undersigned declines to find that a plaintiff must set forth every element of every claim for a subsequent lawsuit in her charge before the EEOC. As set out above, the goal of a charge is to provide notice to a defendant, and a plaintiff's claims are administratively exhausted if they are stated in the charge, reasonably related to the charge, or would have naturally developed by reasonable investigation of the charge. Evans, 80 F.3d at 963; Dennis, 55 F.3d at 156. Here, the plaintiff set forth allegations against Dr. Gibbs and Mr. Hyder and iterated that she believed she was discriminated against because of her sex in violation of Title VII. Such allegations are sufficient to put defendant SMC on notice and administratively exhaust.
Moreover, defendant SMC argues that the plaintiff's claim in her complaint regarding Dr. Gibbs' comments is outside of the scope of the charge because of differing time frames (doc. 160 at 7). Specifically, defendant SMC notes that the charge provided that the first date of discriminatory conduct was on October 20, 2017, but the plaintiff later testified in her deposition that Dr. Gibbs made a comment regarding her dress when she first started working at SMC in July 2017 (id.). As an initial matter, the plaintiff's complaint did not specify that Dr. Gibbs made comments about her and other students' dress in July 2017, and there is thus no discrepancy in the time frame from the face of the charge and the face of the complaint. Moreover, even considering her deposition testimony, the undersigned finds that this brief discrepancy regarding Dr. Gibbs' comments does not render her charge and complaint unrelated, as the plaintiff's allegations in both are in regard to the same discriminatory behavior by the same actor during her employment with defendant SMC and the time discrepancy is only a period of a few months. See Binks v. U.S. Tech Sol., C/A No. 2:20-cv-4164-DCN-MGB, 2021 WL 2679697, at *3-4 (D.S.C. June 30, 2021) (adopting an R&R noting that “[w]hile the dates specified in the Complaint precede the dates specified in the EEOC charge by one month, there are sufficient similarities between Binks's administrative and judicial claims such that they are ‘reasonably related'”); compare Tillbery v. Kent Island Yacht Club, Inc., C/A No. 10-1730, 461 Fed.Appx. 288, 290-91 (4th Cir. Jan. 19, 2012) (finding a plaintiff did not exhaust when her charge indicated that the date the discrimination occurred was several years prior to the discrimination alleged in her complaint, she was represented by counsel, she repeated the error in her second filing, she stated under oath that the former date was when the discrimination occurred, and she did not correct the error after the EEOC notified her and her counsel of the untimeliness of her claim).
Notably, in the narrative portion of the charge, the plaintiff stated that Dr. Gibbs made “sexually charged comments” about her and other students' dress “during [her] employment” (doc. 160-2).
Also, defendant SMC argues that the plaintiff failed to administratively exhaust because her counsel sent two letters to the president of SMC regarding claims of retaliation and discrimination in violation of Title IX, not Title VII (doc. 160-1 at 11). However, as set out above, administrative exhaustion is determined based on the contents of the charge, see Evans, 80 F.3d at 963, and the plaintiff's charge clearly contains allegations under Title VII. Therefore, the undersigned declines to find that the letters from plaintiff's counsel render her Title VII claim unexhausted.
Defendant SMC additionally challenges the adequacy of the plaintiff's specificity in her allegations. Particularly, defendant SMC argues that the plaintiff did not administratively exhaust because she never explicitly noted in her charge that Mr. Hyder's conduct or Dr. Gibbs' failure to investigate Mr. Hyder's conduct was based on her sex (doc. 160 at 5-6). Moreover, defendant SMC asserts that the plaintiff's allegations were not specific enough because she did not allege to whom Dr. Gibbs' alleged comments were made, that the comments were made because of the plaintiff's sex, or that the comments amounted to harassment (id. at 6). Further, defendant SMC contends that the plaintiff's passing reference to “sexually charged comments” could not place it on notice of the litany of offenses that she ultimately included in her complaint (id. at 6-7). However, defendant SMC is requesting greater detail than is required for exhaustion. As set out above, the plaintiff noted that a male professor, Mr. Hyder, had been undermining her; Dr. Gibbs failed to investigate her reports of Mr. Hyder's conduct; and Dr. Gibbs made sexually charged comments about her and other students' dress. The plaintiff then concluded, “I believe I have been discriminated and unlawfully retaliated against . . . in violation of Title VII of the Civil Rights Act of 1964, as amended, based on my sex (female); and in violation for engaging in a protected activity” (doc. 160-2 at 3). The undersigned finds that the plaintiff's allegations are sufficient to put defendant SMC on notice of her Title VII hostile work environment, disparate treatment, and gender discrimination claims and that the allegations in the complaint would be expected to have naturally arisen from an investigation of these allegations in the plaintiff's charge. Such notice is further highlighted by the fact that, in its statement of position to the EEOC in response to the plaintiff's charge, defendant SMC actually responded to the plaintiff's allegations of sexual harassment. Therefore, the undersigned recommends that the district court deny defendant SMC's partial motion for summary judgment regarding the plaintiff's hostile work environment, disparate treatment, and gender discrimination claims.
Retaliation
Defendant SMC next argues that it is entitled to summary judgment on the plaintiff's Title VII retaliation claim because she failed to allege factual allegations in support of her claim or “identify any discriminatory or retaliatory conduct by [defendant] SMC on the basis of her sex” in her charge (doc. 160-1 at 8-10).
As set out above, when asked about what the discrimination was based on in the charge, the retaliation box was checked (doc. 160-2 at 2). Moreover, in the narrative portion of the charge, the plaintiff alleged that she met with Dr. Gibbs on two occasions about a male professor, Mr. Hyder, undermining her in the classroom, but that Dr. Gibbs never investigated her claims (id.). The plaintiff further alleged that “[o]n February 13th, I was called into Dr. Gibbs office and he informed me that I would not be receiving a cont[r]act for the following year, despite already being verbally promised a cont[r]act by Dr. Farmer and Dr. Gibbs in fall 2017 and January 2018" (id.). Moreover, the plaintiff asserted that she “was provided a pretext reason for [her] termination by President Cochran and Ms. Theresa Ferguson” (id.). Additionally, the plaintiff submitted that “[d]uring my termination meeting on the 16th, President Cochran stated that they would pay me my benefits and salary until my contract ended. [H]owever, this was rescinded when my attorney contacted the Respondent and informed them they were representing me” (id.). The plaintiff concluded, “I believe I have been discriminated and unlawfully retaliated against . . . in violation of Title VII of the Civil Rights Act of 1964, as amended, based on my sex (female); and in violation for engaging in a protected activity” (id. at 3). In comparison, in her complaint, the plaintiff alleged that she engaged in protected activity under Title VII by “complaining to [Dr.] Gibbs about improper comments towards [her] by a male colleague who was specifically undermining her with students;” and “by making, through her counsel, an internal complaint to [d]efendant SMC's president, Title IX co-ordinator, and outside employment counsel about gender discrimination” (doc. 1 at ¶ 148). The plaintiff further alleged that defendant SMC retaliated against her, “because of her protected activity under Title VII, by not renewing her employment contract, by terminating her employment and requesting that she leave campus immediately, and by rescinding Defendant Cochran's commitment to continue [her] pay and benefits throughout the remainder of her contract” (id. at ¶ 149). The plaintiff also alleged that “[a]ny reason proffered by [d]efendant SMC for [her] adverse employment actions is a pretext for unlawful retaliation” (id. at ¶ 151).
The undersigned finds that the plaintiff's allegations in her charge regarding sex discrimination and retaliation in violation of Title VII are reasonably related to her allegations of retaliation based on sex discrimination in her complaint. In both her charge and her complaint, the plaintiff alleged that she engaged in protected activity; she reported to Dr. Gibbs that Mr. Hyder, a male professor, was undermining her; her employment contract was not renewed despite receiving verbal promises to the contrary; defendant SMC terminated her employment; defendant SMC's provided reason for her employment termination was pretext; defendant SMC rescinded the defendant Cochran's promise to pay her benefits and salary until her contract ended; and she believed that she was retaliated against in violation of Title VII and for engaging in protected activity. Further, any additional allegations in the plaintiff's complaint are reasonably related to the allegations in the plaintiff's charge and would be expected to have naturally arisen from an investigation. See Evans, 80 F.3d at 963; Dennis, 55 F.3d at 156.
Moreover, defendant SMC contends that the plaintiff failed to exhaust because, in her charge, she “did not identify any discriminatory or retaliatory conduct by [defendant] SMC on the basis of her sex, nor did she describe any actions by her that were protected by Title VII" (doc. 160-1 at 9). However, as discussed above, the plaintiff included in her charge allegations of Dr. Gibbs making sexually charged comments about her and other students' dress, a male professor undermining her in the classroom, her reports to Dr. Gibbs about the male professor, defendant SMC ultimately terminating her employment and providing a pretextual reason for this termination; the president of SMC's promise to pay her benefits and salary being rescinded; and her belief that she was discriminated and retaliated against in violation of Title VII based on her sex and for engaging in protected activity. The undersigned finds that these factual allegations were sufficient to put defendant SMC on notice that the plaintiff was raising allegations of retaliation under Title VII based on her sex. Again, such notice is further highlighted by the fact that, in its statement of position to the EEOC, defendant SMC actually responded to the plaintiff's claim of retaliation based on sex discrimination by providing, under a section entitled “SMC's Reasons for Not Renewing Dr. Lashley's Contract and For Terminating Her, ” that it “did not fire Dr. Lashley because she reported harassment . . . .” (doc. 164-2 at 6).
Further, defendant SMC argues that the plaintiff has not administratively exhausted her retaliation claim because her internal complaint to defendant SMC's president, Title IX co-ordinator, and outside employment counsel about gender discrimination was outside the time frame identified in the charge (doc. 160-1 at 10). The internal complaint is dated February 26, 2018, while the plaintiff's charge indicated that the last day discrimination took place was February 16, 2018, ten days prior (docs. 160-2 at 2; 160-4 at 2). As set out above, this brief, temporal discrepancy does not render the plaintiff's charge and complaint unrelated, as the plaintiff's allegations in both are in regard to the same discriminatory behavior by the same actor during her employment with defendant SMC, and the time discrepancy is only a period of ten days. See Binks, 2021 WL 2679697, at *3-4; compare Tillbery, Fed.Appx. 288, 290-91.
Defendant SMC also argues that the plaintiff's claim is not administratively exhausted because she failed to allege any retaliatory conduct specifically resulting from her complaints regarding Mr. Hyder, and she failed to tie her complaints to any specific adverse employment action that could be considered retaliatory in nature (doc. 160-1 at 9). However, as set out above, the plaintiff claimed in her charge that she reported Mr. Hyder's conduct, she was retaliated against for engaging in protected activity, her employment contract was terminated, and the commitment to pay her salary and benefits for the remainder of her contract was rescinded. The undersigned finds that such allegations are sufficient to exhaust a claim for retaliation based on her report of Mr. Hyder's conduct.
Defendant SMC further argues that the plaintiff did not exhaust because she did not report Dr. Gibbs' sexually charged comments to anyone at SMC, despite knowing the reporting procedures (doc. 160-1 at 9). However, this argument addresses the merits of the plaintiff's claim, not whether she administratively exhausted. Therefore, based on the foregoing, the undersigned recommends that the district court deny defendant SMC's partial motion for summary judgment regarding the plaintiff's retaliation claim under Title VII.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that defendant SMC's motion for partial summary judgment (doc. 160) be denied.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).