Opinion
C. A. 3:20-cv-1094-SAL-KDW
10-28-2022
Pricilla M. Muller, Plaintiff, v. Westinghouse Electric Company, LLC, LP, Defendant.
REPORT AND RECOMMENDATION (ON MOTION FOR SUMMARY JUDGMENT, ECF NO. 67)
Kaymani D. West United States Magistrate Judge
This employment-related matter is before the court for issuance of a Report and Recommendation (“R&R”)as to Defendant's Motion for Summary Judgment. ECF No. 67. After the court's dismissal of all claims against prior Defendant Brookfield Business Partners and dismissal of certain claims against Defendant Westinghouse Electric Company, LLC, LP (“WEC” or “Defendant”), Plaintiff's Complaint remains before the court for consideration of the following claims against WEC: (1) race discrimination in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964; (2) retaliation in violation of 42 U.S.C § 1981 and Title VII of the Civil Rights Act of 1964; (3) negligence/gross negligence; and (4) defamation of character. Compl, ECF No. 1-1; Order granting Motion for Partial Dismissal, ECF No. 20; R&R recommending grant of Motion for Partial Dismissal, ECF No. 15. Defendant seeks summary judgment as to all remaining causes of action. Mot. Summ. J., ECF No. 67. Plaintiff opposes the Motion, ECF Nos. 75 and 75 12, and Defendant filed a Reply, ECF No. 80. After considering the parties' filings and applicable law, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 67, be granted and this matter be ended.
This matter is referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.).
Plaintiff's memorandum opposing summary judgment is docketed in two parts: pages 1-19 are found at ECF No. 75-12; pages 20-37 are found at ECF No. 75. Citations to Plaintiff's memorandum in this R&R will refer to the page numbers found at the bottom of the page, not the ECF-generated page numbers.
Although Plaintiff's memorandum is, at times, couched as if she were moving for judgment as a matter of law herself, Plaintiff has not filed a separate dispositive motion of her own and the time to do so has passed. To the extent Plaintiff's filing were to be considered a cross-motion for summary judgment, it should be denied as she has not demonstrated entitlement to judgment in her favor for the reasons set forth herein.
I. Legal standard
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).
Plaintiff initially acknowledges the applicable summary-judgment standard under Federal Rule of Civil Procedure 56. Pl. Mem. 3. Inexplicably, however, Plaintiff then spends several pages discussing the South Carolina Supreme Court's 2009 analysis of the summary-judgment standard under South Carolina Rule of Civil Procedure 56. Pl. Mem. 4-5 (discussing Hancock v. Mid-South Mgmt. Co., Inc. 673 S.E.2d 801 (S.C. 2009)). Plainly, the federal standard of review applies in this federal court.
In considering a motion for summary judgment, the evidence of the non-moving 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. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
To the extent they are supported by competent record evidence, these facts are set forth in the light most favorable to Plaintiff, the nonmoving party. The court notes, though, that Plaintiff did not provide a statement of facts in her memorandum opposing summary judgment. Although she indicates she “relies on the facts detailed in the accompanying Statement of Undisputed Material Facts (the ‘Facts in her Amended Complaint'),” Pl. Mem. 3, there is no accompanying Statement, nor is there an Amended Complaint in this matter. To the extent Plaintiff has provided facts that differ from those set out by Defendant the court so notes herein. Further, some facts may be set out in the analysis portion of this R&R. Regardless of where they are discussed herein, the court has closely reviewed and considered all competent submitted evidence.
A. Plaintiff's Employment with WEC
Plaintiff began working for WEC on February 2, 2015, at which time she was hired as a contingent Grid Operator C at WEC's Columbia Fuel Operations Facility (the “Facility”), located in Hopkins, South Carolina. See Pl. Dep. 32-33, ECF No. 67-3; Affidavit of Human Resources (“HR”) Director Brooks Ryan Stuckey (“Stuckey Aff.”) ¶ 5, ECF No. 67-4. On August 31, 2015, WEC hired Plaintiff as full-time Grid Operator C. Pl. Dep. 37, Stuckey Aff. ¶ 6. On August 14, 2017, WEC promoted Plaintiff to Grid Operator A, a position she held until her November 9, 2018 termination. Stuckey Aff. ¶ 7.
B. WEC's Code of Conduct
When hired, Plaintiff received WEC's employee handbook, which contained various policies. Policy excerpts, ECF No. 67-5. Plaintiff was aware of these policies. Pl. Dep. 42-50.
WEC's Code of Conduct Policy states that “[m]anagers are responsible for interpreting and enforcing the Code of Conduct and to address incidents where an employee violates the Code of Conduct[,]”and sets out types of prohibited misconduct/behavior, cataloging them as Code of Conduct “A,” “B,” and “C” violations. ECF No. 67-6. “Code of Conduct ‘A' Violations,” are “considered extremely serious and may result in disciplinary action up to and including termination of employment.” ECF No. 67-6 at 6. “A” violations include “[f]ighting, assault, engaging in disorderly conduct or abusive or threatening language at work or work-related functions off site,” and insubordination. Id.
C. Plaintiff reports “horseplay”
On May 1, 2018, Jonathan (Rad) Nimmo (“Nimmo”), Manager, Grid Operations (Caucasian), became Plaintiff's direct supervisor. “Around this time,” Plaintiff reported to WEC that inappropriate horseplay was occurring in the Facility. Stuckey Aff. ¶ 10. Although Plaintiff has not provided record citations to support certain statements in her memorandum, she indicates the employees she reported as engaging in horseplay were white. Pl. Mem. 17. Plaintiff provided several documents that reference her reporting of horseplay and Defendant's investigation of same. For example, she provides a “Pricilla Muller Time Line 7/13/18” document, attributing it to HR Representative Stuckey and arguing it is indicative of Defendant's “nearly two months (06/26/2018 to 07/13/2018) of planning” for her termination. Pl. Mem. 36. In his Reply Affidavit, Stuckey affirms that Nimmo, not Stuckey, prepared the “Time Line” and that it was prepared after Nimmo's July 12, 2018 meeting with Plaintiff. Stuckey's Reply Decl. ¶ 4, ECF No. 80-1; Time Line, ECF No. 75-4 at 5-8 (WECMuller001358-1361), designated confidential, but no motion to seal filed at this time, court-only copy is currently available at ECF No. 84-1 at 5-8.
Plaintiff has not alleged or proffered any evidence that the “horseplay” was racially motivated.
The “Time Line” itself is not part of a sworn statement, making its competence questionable. Because it provides insight into Plaintiff's reporting of horseplay and follow-up to same, the court provides some information from the Time Line for context. Because it was introduced by Plaintiff and not objected to by Defendant, this use is appropriate.
The parties designated certain exhibits as confidential and provided full copies of the documents for the court's review. As directed in an order filed along with this R&R, the parties are to either file unredacted copies of these documents for public viewing or file a supported motion to seal specific documents in accordance with the local rules. Until this process is completed, full copies of the documents at issue are available in court-only entries (ECF Nos. 84-85).
According to Nimmo's Time Line Plaintiff reported “an accusation of horseplay by several other operators on 2nd shift through text to both Tyrone Nixon and Mike Branham” on June 26, 2018. Time Line 5. Stuckey indicated that HR conducted a thorough investigation and found that, “while there was some horseplay occurring in the area, [Plaintiff's] version of the facts could not be corroborated.” Stuckey Aff. ¶ 10. Plaintiff has provided handwritten statements from several employees apparently provided in the context of the horseplay investigation. The genesis of these statements is not known. Most are undated. For the sake of completeness, and to the extent they are legible, the court summarizes these statements:
• Plaintiff: indicates one employee (“Matt”) used a spray bottle of water to spray another employee in the vicinity of the conveyer belt; another employee (“Bill”) ran with a spray bottle, along with employee “Dillon.” All three employees were laughing about what they were doing. Pl. Handwritten Statement, ECF No. 75-9 at 2, (WECMuller001156), designated confidential, currently available at ECF No. 84-2 at 2.
• Miguel Gardner: Gardner indicates “Casey and Matt” are always picking on each other and touching; “Shane” would fill purple gloves with air and let them shoot off over the builders' heads; “Bill, Shane, Casey & Matt” have been popping each other with their earplugs.” Gardner Handwritten Statement, ECF No. 75-9 at 3, (WECMuller001157), currently available at ECF No. 84-2 at 3.
• Donna Jones: According to Plaintiff's brief, the document found at ECF No. 75-9 at 4 (WECMuller001158), currently available at ECF No. 84-2 at 4, is from employee Donna Jones. However, the exhibit is not legible.
• Tawanda Mack: On June 26, 2018, Tawanda Mack provided a statement indicating that at approximately 8:55/8:56 pm she witnessed “Bill Abell” and “Dylan Boozer” running “back and forth and “ducking down as if playing some sort of game with each other.” She indicated this continued until the 9:30 pm break. Mack Handwritten Statement, ECF No. 75-9 at 5 (WECMuller001159), currently available at ECF No. 84-2 at 5.
• Tandy Gartman: Gartman's statement is dated June 26, 2018, and is virtually identical in substance to Mack's statement. Gartman Handwritten Statement, ECF No. 75-9 at 6 (WECMuller001160), currently available at ECF No. 84-2 at 6.
Nimmo's Time Line indicates Tyrone Nixon and Mike Branham obtained statements from several operators (who are not identified by name in the Time Line). Nimmo provided the following summary of the investigation:
The gist of the investigation was that the accused group of operators said the horseplay did not happen, that there was simply chatting going on. A small group of individuals said otherwise (running, water spraying and glove throwing occurred). It also came out of the investigation that [Plaintiff] was out of her area
conversing with other operators during the same time frame. The end result of the investigation was he said she said.Time Line 5.
Nimmo indicates that on June 29, 2018 he had a meeting to discuss the events, going over horseplay expectations and expectations for employees to be in their own areas. Time Line 5. Nimmo indicated to the employees that horseplay and “strife between operators would not be tolerated.” Id. Nimmo then asked the group if anyone wished to meet privately. Plaintiff met with him, as did accused operators Casey Stewart, Matt Wise, and Shane McDowell. Id. Nimmo met with Stuckey on July 9, 2018 to discuss findings of the horseplay investigation and to discuss a reported outburst Plaintiff had toward some TMs (apparently an abbreviation for Team Manager) on July 3, 2018. Id. at 6. Nimmo advised Stuckey that the conclusion of the horseplay investigation was that, because it was a “he said/she said” situation with no manager as a witness it was difficult to fully believe either side of the story. Id. Nimmo advised Stuckey he would have meetings with Plaintiff, Stewart, Wise, and McDowell again. Id.
Nimmo met with Stewart, Wise, and McDowell again on July 12, 2018 and advised that he did not fully believe their stories. He reinforced appropriate behavior expectations and advised that horseplay would not be tolerated. Id. The meeting was considered a counseling session; they were advised they would not be disciplined because of “lack of ability to fully prove the accusations.” Id. at 7.
Nimmo met with Plaintiff again (apparently also on July 12, 2018). Time Line 7. Defendant's version of what transpired at that meeting and Plaintiff's version differ in part, although they agree that the meeting took place and the meeting involved discussions of Plaintiff's reporting of the horseplay.
• According to Defendant: In Nimmo's Time Line, he indicated he told Plaintiff “virtually the same information [as what he told Stewart, Wise, and McDowell], that [he] did not fully believe everyone's account of the story.” Time Line 7. He noted he believed Plaintiff had been out of her work area rather than where she should have been. Nimmo indicated Plaintiff “immediately became loud and animated.” Id. Plaintiff complained that she had brought up a safety issue and was being retaliated against while the others got a “pat on the back.” Id. Nimmo reiterated that he was not there, nor was a TM, so there was no way to fully prove either version of events. Plaintiff continued to raise her voice; Nimmo continued to advise her to lower her voice because she was being disrespectful. Nimmo said Plaintiff responded by telling him she was “from New York and this is just the way she is and how she talks.” Id. Nimmo also discussed with Plaintiff a complaint he had received about her being disrespectful to other managers on July 3, 2108. Id. Nimmo indicated that Plaintiff blamed the TMs and did not accept responsibility. Id. Nimmo indicated when he told Plaintiff about a work reward (a Power-up) she would be receiving, she got upset and said it should have happened previously. Id. at 8. Plaintiff was upset and indicated she wished to go to see medical because of chest pains. Id. Nimmo called for assistance. Id.
• Defendant also provides an email from employee Randal Lincoln in which he reported an “incident that happened in Rad Nimmo's office on July 12th.” Email, ECF No. 67-12 at 2. Lincoln indicated he was sitting at his desk and heard voices behind Nimmo's closed door. He did not indicate who was in the office but noted the female voice was “getting louder and louder,” while the male voice was “calm.” Id. In its memorandum, Defendant characterizes this exchange as having taken place when Plaintiff was in Nimmo's office having her one-on-one counseling session regarding the “inappropriate and disruptive behavior” examined when investigating the complaints of horseplay raised by Plaintiff. Def. Mem. 7.
• In opposing summary judgment Plaintiff indicates she was called into Nimmo's office on July 12, 2018 and Nimmo “loudly started yelling at Plaintiff for reporting horseplaying to Defendant and E.C.F.” Pl. Mem. 20. Plaintiff indicates she was so stressed she had chest pains and had to go to the hospital. Id.; Richland Cnty. Emergency Servs. Dep. Patient Record, ECF No. 75-10.
Subsequent to the July 12, 2018 meeting, Nimmo held another round of one-on-one conversations with each employee in the area to re-emphasize WEC's conduct policies, and to further emphasize that continued workplace conflict would result in termination. “Grid Area Workplace Script,” ECF No. 67-13;Stuckey Aff. ¶ 10. In Plaintiff's termination letter Nimmo indicated his discussion with Plaintiff took place on August 23, 2018. Pl. Nov. 9, 2018 Termination Letter, WECMuller00134, ECF No. 72-1 (“Term. Letter”).
In its brief, Defendant indicates that, during his one-on-one meeting with Plaintiff, Nimmo “reiterated that continued inappropriate behavior would result in termination.” Def. Mem. 7 (citing to Grid Area Worksheet). The court notes the Worksheet itself indicates that “any future violations will be considered insubordination,” Grid Area Worksheet, ECF No. 67-13 at 2, but does not specifically reference termination and does not specifically focus on the conversation with Plaintiff. In Plaintiff's termination letter Nimmo indicates he had had a one-one-one discussion of this nature with Plaintiff on August 23, 2018 and had advised that “any future displays of poor behavior would be considered insubordination and could result in your termination.” Pl. Nov. 9, 2018 Termination Letter (WECMuller00134), ECF No. 72-1.
D. Documentation in Plaintiff's personnel file
Plaintiff's personnel file contains several write-ups or other documentation regarding her conduct.
In opposing summary judgment Plaintiff briefly submits that documents regarding Plaintiff's conduct issues “were generated after the fact of terminating Plaintiff to supports its reason to terminate Plaintiff by Defendant's Administrators about Plaintiff's inappropriate behavior towards other employees and violations of Defendant's Policy and Procedures.” Pl. Mem. 31. Plaintiff has proffered zero proof of this serious allegation. In other words, Plaintiff has provided the court with nothing more than her own speculation in making these assertions. Such speculation is insufficient to create a genuine issue of material fact. Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (noting that “conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence” cannot create genuine issues of material fact). See generally Nelson v. Loc. 1422, Int'l Longshoreman's Ass'n, No. CV 2:19-01545-DCN-MGB, 2021 WL 8014680, at *14 n.21 (D.S.C. Sept. 22, 2021) (discounting plaintiff's uncorroborated assertion that defendants had destroyed certain evidence, finding the assertion insufficient to create a genuine issue of material fact), report and recommendation adopted, No. 2:19-CV-01545-DCN-MGB, 2022 WL 970149 (D.S.C. Mar. 31, 2022). Only statements supported by citation to competent testimony need be considered by the court in deciding summary judgment. See Duffey v. Wal-Mart Stores E. LP, No. 8:19-CV-665-TMC, 2021 WL 62163, at *4 (D.S.C. Jan. 7, 2021) (finding “self-serving hearsay claim” did not create material question of fact sufficient to survive summary judgment; citing Farrar & Farrar Farms v. Miller-St. Nazianz, Inc., 477 Fed. App'x 981, 986 (4th Cir. 2012); Md. Highways Contractors Ass'n v. State of Md., 933 F.2d 1246, 1251 (4th Cir. 1991) (“[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.”)).
• April 28, 2017: On May 2, 2017, Plaintiff's then-supervisor, Clinton Hughes, Team Manager, 2nd Shift Grid Operations (African American), counseled Plaintiff after a heated discussion Plaintiff had with a co-worker on April 28, 2017. See May 2, 2017 Memorandum from Clinton Hughes, ECF No. 67-7. Hughes provided a memorandum, which he termed a “letter” to confirm a counseling session between himself and Plaintiff concerning her encounter with Operator/Laser Shane McDowell. Id. Hughes informed Plaintiff “continued displays of behavior that is not indicative of Westinghouse's core values would not be tolerated and that everyone needs to be treated with respect.” Id. Plaintiff told Hughes that she “understood and that she takes full responsibility for her actions that night.” Id.
• September 27, 2017: On September 28, 2017, Hughes sent an email to WEC's HR Department advising that Plaintiff had been unable to remain calm in an exchange with another employee, Melvin (apparently Melvin Jones, who is copied on the email). Sept. 28, 2017 email, ECF No. 67-8. Hughes reminded Plaintiff of “our expectation on the use of foul language.” Id. Hughes noted that Melvin had not been speaking in an aggressive manner. Id. Hughes noted Plaintiff had indicated Hughes was right; she went and apologized to Melvin. Hughes and Melvin reminded Plaintiff that, if something like that happened again, she should have Hughes handle it. Id.
• November 7, 2017: Hughes sent an email to Stuckey in HR, among others, indicating there had been several occasions over the past several days in which Plaintiff had “taken it upon herself to cause discord because she is worrying about everyone except herself.” Nov. 7, 2017 email, ECF No. 67-9 at 3-4. Hughes described Plaintiff as “meddling in everyone's business.” Id. at 4. Follow-up emails indicated Hughes would be discussing this with Plaintiff, although it is unclear whether such a discussion took place.
• December 16, 2017: The record contains a January 18, 2018Employee Counseling Report, considered a “Verbal Reprimand” in WEC parlance. Jan. 18, 2018 Reprimand, ECF No. 67-10. The action related to Plaintiff's “Conduct Behavior,” as opposed to performance, and indicated the following:
Pricilla, on Saturday, December 16, 2017, you had an incident where you and another employee got into a disagreement. During the investigation, it was determined that you were inserting yourself into a situation that you should have not been involved. After you involved yourself in the situation and made inappropriate comments, the situation escalated when it was totally avoidable to begin with. We have discussed this behavior with you previously and told you that it would not be tolerated. As such, you are receiving this Verbal Warning for your inappropriate workplace behavior.
This is an extremely serious failure on your part. We are paying you to come to work and perform your assigned tasks. If you have issues during the shift, I expect you to stop and share them with me or the on call team manager immediately. As we have discussed previously, you are to avoid conflict with you [sic] co-workers, not spread rumors and not make inappropriate comments to your co-workers.
You must immediately correct this type of behavior. Failure to improve your behaviors or any further violation of the [Code of Conduct] will result in further disciplinary action, up to and including the termination of your employment with [WEC].
Jan. 18, 2018 Reprimand, ECF No. 67-10. In the space where Plaintiff was to sign, it was noted that she refused to sign. Id. Hughes signed the form on January 23, 2018; an HR representative signed it on January 24, 2018.
In her deposition, Plaintiff testified that she never received a copy of that reprimand, that she had never seen the document before, and that the discussion with Hughes never took place. Pl. Dep. 65-68. The Employee Concern Program (“ECP”) Investigation's Intake Form references Plaintiff's allegations that she received a reprimand on January 22, 2018 for a December 16, 2017 incident between herself and coworker Keith Jones. ECP Intake Form, ECF No. 72-7 at 1, (WECMuller000845), currently available at ECF No. 85-2 at 1.
Plaintiff's Complaint references having received a January 23, 2018 verbal warning for involvement in a verbal altercation, although she avers she was not involved in such an altercation. Compl. ¶ 38.
• February 8, 2018: Another of Plaintiff's supervisors, Grid Operations Manager Ben Waskey (Caucasian), issued Plaintiff a “Letter of Minimum Requirements” on February 8, 2018. ECF No. 67-11. This Letter provided in pertinent part as follows:
As we discussed, you meet the daily requirements of your job when you are focusing on performing those tasks and duties that are required . Unfortunately, you sometimes focus on items and issues that are not work related and/or your responsibility. You and I have already spoken about this, your team manager, Clint Hughes, has talked to you about this and you have received a Verbal Warning in regards to this type of behavior. Let me be very clear, it is not your job or responsibility to control, correct or interfere with the personal conduct of your co-workers.
However, if you observe an unsafe behavior, policy violation or anything that directly impacts Nuclear Safety, you are to promptly report what you observe using the appropriate channels. Your interferences with others and involvement in others' personal business can create an uncomfortable work environment and has become disruptive to the workforce. Regardless of your intent, this is what has happened and it is completely unacceptable. As we have discussed before, you must stop this unacceptable behavior immediately.
You have expressed concern about the potential for the husband of a co-worker to do harm. We have listened and understand your concern. As you have stated, this is “just a feeling” that you have. We will take appropriate action going forward if evidence presents itself..
You must immediately correct this type of behavior. Any future violations of this type and/or other violation of the [Code of Conduct] or other [WEC] policies and procedures (not necessarily of the same type) will result in further disciplinary action up to and including termination.
Letter of Minimum Requirements, ECF No. 67-10. In the space where Plaintiff was to acknowledge the contents of the letter was discussed with her, it was noted that Plaintiff did not sign. Id. Waskey signed the letter and noted it had been received on February 8, 2018. Id.
• Plaintiff indicated in her deposition testimony that she had never received the Letter of Minimum Requirements. Pl. Dep. 73-74. However, she referenced it both in her Complaint (para. 39) and in her responsive memorandum (attaching it as exhibit C, ECF No. 75-3). In her memorandum, Plaintiff characterizes the February 8, 2018 letter as “commend[ing her] for her concerns about unsafe conditions at the facility.” Pl. Br. 16.
• Plaintiff has also submitted a series of email communications in which Waskey noted on February 9, 2018 that Plaintiff requested a meeting with Mike Annacone, VP of Columbia Fuel Operations, “because she feels she is being ‘targeted.'” Feb. 9, 2018 email, ECF No. 75-2 at 8 (WECMuller000829), available at ECF No. 84 at 8. Subsequent communications in this chain indicate the meeting was scheduled but later canceled by Plaintiff. Feb. 13, 2018 email, ECF No. 75-2 at 6 (WECMuller000827), available at ECF No. 84 at 6. Hughes indicated Plaintiff told him she canceled the meeting because “‘it wouldn't do any good' and that ‘nothing would happen.'” Feb. 13, 2018 email, ECF No. 75-1 at 16, (WECMuller000837), available at ECF No. 84 at 16.
• July 12, 2018: As set out in more detail above, although the parties disagree about the particulars, they agree that Nimmo met with Plaintiff in his office on July 12, 2018 to discuss the results of the investigation into Plaintiff's complaint about horseplay.
o In Plaintiff's termination letter Nimmo indicates that on July 12, 2018 and July 19, 2018, he “reviewed the minimum requirements for behavior for Westinghouse employees and told you that you were not meeting them.” Term. Letter.
o In opposing summary judgment Plaintiff indicates she was called into Nimmo's office on July 12, 2018 and Nimmo “loudly started yelling at Plaintiff for reporting horseplaying to Defendant and E.C.F.” Pl. Mem. 20. Plaintiff indicates she was so stressed she had chest pains and had to go to the hospital. Id.; Richland Cnty. Emergency Servs. Dep. Patient Record, ECF No. 75-10.
• August 23, 2018: As noted in a footnote above, in Plaintiff's termination letter Nimmo indicated he had a one-on-one conversation with Plaintiff on August 23, 2018, as a part of his discussions with every Grid-area employee. Term. Letter. Nimmo indicated that,
during this discussion he advised Plaintiff that “future displays of poor behavior would be considered insubordination and could result in [her] termination.” Id.
• October 31, 2018: According to Plaintiff's termination letter, on October 31, 2018, she “again displayed poor behaviors when [she was] rude and unprofessional to a coworker who was attempting to access scotch brite to be able to do their job. [Plaintiff] made a verbally abusive derogatory statement to [her] co-workers about their work ethic.” Term Letter. As discussed in more detail below, WEC undertook an investigation of what transpired on October 31, 2018 and November 2, 2018.According to handwritten notes of an investigative interview with Plaintiff's coworker Tearra Gadson, Gadson and Plaintiff were discussing scotch brite on October 31, 2018, and Plaintiff called Gadson a “lazy a**.” Notes, ECF No. 68 at 7 (WECMuller00310), currently available at ECF No. 85 at 7. See also Stuckey Aff. ¶ 11 (indicating Plaintiff “acted rudely and unprofessionally by referring to her coworker, Tierra Gadson (‘Ms. Gadson'), QC Grid Inspector (African-American), as a ‘lazy a**' when Ms. Gadson simply attempted to access a needed tool.”).
o Plaintiff disputes her involvement in any altercation on October 31, 2018. In handwritten notes, the investigator indicates Plaintiff gave her account of the discussion concerning scotch brite. Notes, ECF No. 68 at 3 (WECMuller000306), currently available at ECF No. 85 at 4. Plaintiff indicated she did not say anything to Tearra (Gadson), whom she purportedly had called a “lazy a**” for not cutting her own scotch brite. Id. Plaintiff said she never called Tearra “anything, never called her lazy a**.” Id. Plaintiff said that “no one acted inappropriate[ly] ¶ 10/31/18 meeting.” Id.
o Notes from an interview with Grid Operator Miguel Gardner indicate his recollection of the October 31, 2018 incident concerning scotchbrite was that Plaintiff “called Tearra lazy. -N[o]. profanity.” ECF No. 70-1 at 5 (WECMuller00332), currently available at ECF No. 85 at 29.
• November 2, 2018: According to Plaintiff's termination letter, on November 2, 2018, she “created a disruption in the workplace and treated [her] co-workers rudely when [she] failed to communicate in a collaborative manner.” Term. Letter. Senior HR Consultant Stuckey provided the following account of the events of November 2, 2018 in his affidavit:
[O]n November 2, 2018, Ms. Gadson was in [Plaintiff's] work area speaking with a colleague, Miguel Gardner, a Grid Operator. [Plaintiff] created a
workplace disruption by demanding that her co-worker, Tina Zander (“Ms. Zander”), QC Grid Inspector (African American), tell Ms. Gadson to keep out of the area where [Plaintiff] worked. Ms. Zander relayed the message, which caused Ms. Gadson to cry. Caroline Jones (“Ms. Jones”), a QC Rod Inspector (African-American), reported the incident to management. All of the individuals perceived to be involved in the altercation ([Plaintiff] Ms. Gadson, and Ms. Jones) were immediately escorted off the premises and required to meet with HR the following work day.
Stuckey Aff. ¶ 12.
o Although she does not provide her own statement of the events of November 2, 2018, Plaintiff takes issue with Defendant's characterization of what transpired. Handwritten interview notes indicate that Plaintiff said Tearra [Gadson] did not say anything to her that Friday [November 2, 2018]. Plaintiff said she did not have a conversation with Jones either and she is unsure how Jones was involved. WECMuller000308. Notes of an interview with Gadson indicate that there was no conversation between her and Plaintiff on November 2, 2018; she is unsure whether Plaintiff raised her voice. WECMuller00312. Gadson noted that she [Gadson] had gotten upset when Tina [Zander] spoke with her that evening. She indicated, though, that she remained in her station. Gadson said Plaintiff had been talking, but she was unsure whether Plaintiff raised her voice. Gadson indicated that Plaintiff was “making hostile work environment- if you look at her, if you put grids, if you ask question, she writes down.” WECMuller00312. Notes, ECF No. 68-1, currently available at ECF No. 85.
o Plaintiff has proffered two affidavits of Zander, who indicates she has “never seen a[n] altercation between [Plaintiff] and Carolyn. . . . [Plaintiff] and Carolyn were working in different area[s], when this [was] supposed to have occurred. Carolyn was working in strap and [Plaintiff] was building grids. I never seen [Plaintiff] or Carolyn arguing.” 1st Aff. of Tina Zander, ECF No. 75-7 at 2. (This “affidavit” is in the form of an email signed by Zander and notarized. The email is dated June 12, 2022; the signature date appears to be June 13, 2022.)
o In Zander's second affidavit, she states the following:
November 2, 2018 I was call[ed] from my work area CE by Mr. Bacon too [sic] see what going on in grid. I informed him that everything was calm and everyone was back to work. He didn't stay long. [Plaintiff] was in her area working and Tiara was outside, so I never seen any altercation or argument between the two of them at any time. The Quality inspect[or] kept going in manufacturing area and [Plaintiff] ask[ed] me to tell my people to stay in the quality area and some people gotten upset with [Plaintiff], Tiara ask[ed] me was [Plaintiff] referring to her and I said no, she was referring to everyone. I answer[ed] the phone in CE and it was Ms. Sherry on the other end of the phone Carolina had call[ed] her and Bacon. Ms. Sherry wanted to speak with [Plaintiff] and I hand the phone to [Plaintiff], and I returned back to my work area CE. 2d Aff. of Tina Zander, ECF No. 75-7 at 3 (cleaned up). (This “affidavit” is in the form of an email signed by Zander and notarized. The email is dated June 14, 2022; the signature date appears to be June 15, 2022.)
Although the date typed into the top of the Employee Counseling Report form is January 18, 2017, the form is signed in January 2018 and concerns events of December 2017. No party contests that the form should have been dated January 18, 2018.
The court acknowledges the factual conflict created by Plaintiff's deposition testimony that the warning did not take place and her generalized argument that WEC somehow fabricated the verbal warning (and other documentation). However, Plaintiff cannot create an issue of fact with her own conflicting, uncorroborated testimony. See n.10, supra. Plaintiff cannot have it both ways. In any event, assuming, arguendo, there is an issue of fact as to whether Plaintiff received the Letter, such issue is not material to the recommended ruling in this matter.
The court has reviewed the voluminous notes and reports that comprise the investigative materials submitted by WEC. See generally Investigative materials, ECF Nos. 68-71, 72-, 72-7, currently available at ECF No. 85. This R&R does not endeavor to provide an exhaustive catalog of each interview and report. Rather, viewing the facts in the light most favorable to the nonmoving Plaintiff, the court points out information as relied on by WEC in making its decisions regarding Plaintiff's employment and Plaintiff's position on such findings. Unquestionably, there are issues of fact concerning Plaintiff's behavior on various dates, particularly including October 31 and November 2, 2018. Whether these factual disputes are “material” so as to require denial of Defendant's Motion for Summary Judgment is discussed in detail below.
It is unclear who “Carolyn” is, although the court notes Caroline Jones was sent home along with Plaintiff and Gadson on November 2, 2018.
For the sake of completeness, the court notes Zander also offered information about what she terms “favoritism,” indicating people “like James Bradmire [] had 2 altercations with other[] employees and have made a very serious threats against another employee that manager had to call security to call things down. They both were suspended for a couple of days, but they got too [sic] return and kept their job and move to a better paying job in the plant, that how some get rewarded, others get terminated.” 1st Aff. of Tina Zander, ECF No. 75-7. (This “affidavit” is in the form of an email signed by Zander and notarized. The email is dated June 12, 2022; the signature date appears to be June 13, 2022.). By including this information herein the undersigned is not suggesting all content of Zander's affidavits are admissible, particularly her comments about “favoritism” or about Bradmire. Plaintiff's purported comparators are discussed, infra.
E. Investigation
HR investigated the October and November 2018, incidents between Gadson and Plaintiff. Stuckey Aff. ¶ 13. The HR investigation team (the “Investigation Team”) included: (i) Stuckey, Sr. Human Resources Consultant (Caucasian).; (ii) Nimmo (Caucasian); (iii) Demetrice Chisholm (“Chisholm”), Team Manager (African American); (iv) Daniel Williams, Acting Manager, QC Components (Caucasian); and (v) Meghan Parker, Human Resources Consultant (Caucasian). As part of its investigation, the Investigation Team spoke with seven employees: Plaintiff; Ms. Gadson; Ms. Jones; Jeffrey Stokes, Principal Manufacturing Engineer (Caucasian); Ms. Zander; Karen Robinson, QC Grid Inspector (African American); and Mr. Gardner. See Stuckey Aff. ¶¶ 13-14.
As noted above the substance of those interviews included varying accounts of what transpired on October 31, 2018 and November 2, 2018.
According to Stuckey's affidavit,
When Ms. Muller was questioned by the Investigative Team about her misconduct, she responded: “This is the way that I am.” Her statement demonstrated to the Investigation Team that she was completely aware of her misconduct and unwilling
to correct her behavior. The Investigation Team, therefore, unanimously recommended that her employment be terminated.Stuckey Aff. ¶ 15.
The court notes, however, that the handwritten notes of the Investigative Team's interview with Plaintiff do not seem to include the “this is the way I am” statement. See Statement, ECF No. 68-1 at 2-7 (WECMuller000304-309), available at ECF No. 85 at 1-6. Rather, Nimmo's July 2018 Time Line indicated Plaintiff had made that statement to him. See Time Line 7. The Termination Letter from Nimmo attributes that statement to “one of the conversations we [he and Plaintiff] had.” Term. Letter.
The Investigative Team recommended Plaintiff be terminated from employment as the result of the investigation. Ms. Gadson was also terminated. Stuckey Aff. ¶ 15; Def. Mem. 10.
F. Review Board
WEC refers disciplinary actions at a written warning or higher level of discipline to a Disciplinary Review Board (“DRB”). See WEC Disciplinary Review Board Policies and Procedures, WECMuller000136-142, ECF No. 67-6. The DRB is composed of staff members who neither are in the subject employee's chain of command nor know the subject employee's identity. Id. The DRB reviewed the Investigation Team's termination recommendation, and agreed that termination was appropriate. See Stuckey Aff. ¶ 16.
G. Plaintiff is terminated
Plaintiff's employment was terminated, effective November 9, 2018. The termination decision was communicated to Muller in her November 9, 2018 Termination Letter. In the Letter from Nimmo, WEC recited incidents of misconduct and provides, in pertinent part:
As we discussed, this letter serves as written confirmation of the termination of your employment from [WEC]. You caused your termination by violating the [Code of Conduct] ... including, but not necessarily limited to, Section “A” -Violation #1, “Fighting, assault, engaging in disorderly conduct or abusive or
threatening language at work or work-related functions off-site, including conduct which endangers the safety of a person or property,” and Violation #10, “Insubordination, including willful failure to carry out definite instructions or assignments including instructions from security officers.” . . . Last week, on October 31, 2018, you again displayed poor behaviors when you were rude and unprofessional to a co-worker who was attempting to access scotch brite to be able to do their job. You also made a verbally abusive derogatory statement to your coworkers about their work ethic. Then again, on November 2, 2018 you created a disruption in the workplace and treated your co-workers rudely when you failed to communicate in a collaborative manner. These are the poor behaviors that you have been coached, counseled, and warned about on at least five [5] occasions in 2018. In one of the conversations that we had you stated, “This is the way that I am.” This clearly demonstrated to me that you are fully aware of your behavioral issues and have elected not to change. You have continued to demonstrate unacceptable behaviors even after five [5] conversations with you this year about this issue. We have lost trust in your ability to behave appropriately in the workplace and no longer can accept the risk of you creating a hostile environment for other employees. Acting this way is not acceptable and you have clearly been notified multiple time [sic] that your behaviors are not acceptable.
Your continued poor behavior is considered disorderly conduct and your refusal to improve your behavior is considered insubordination. [WEC] cannot tolerate employees who continuously ignore management's stated requirements and ignore my multiple attempts to correct your unacceptable behaviors...Term. Letter 1-2.
H. Plaintiff's termination is upheld on appeal
Pursuant to WEC's policies and procedures, Plaintiff appealed her termination to Annacone, VP Columbia Fuel Operations. See Pl. Dep. 101-02. Annacone reviewed and upheld the Investigation Team's and DRB's termination decision. See Appeal Closure Letter, (WECMuller000821), ECF No. 72-3.
I. Post-Termination, Plaintiff reported to WEC's Employee Concern Program (“ECP”), which investigates and upholds the termination.
On November 14, 2018, Plaintiff complained to WEC's ECP that her termination was purportedly in retaliation for her making workplace-related complaints. See Pl. Dep. 102-05. The ECP is an independent organization within WEC that investigates any potential nuclear safety and nuclear quality concerns. See Employment Policies 7, ECF No. 67-5. WEC assigned W. Michael FitzGibbon (“FitzGibbon”), ECP Investigator, to conduct the investigation. The Confidential ECP Investigation Report Form is found at ECF No. 72-4, (WECMuller001281-1321), currently available at ECF No. 85-1. FitzGibbon independently reviewed Plaintiff's complaint, considering Plaintiff's personnel documents and interviewing various witnesses. Id. FitzGibbon concluded Plaintiff was terminated for behavioral issues and that Plaintiff's reporting of horseplay played no role in her termination. ECP Investigation Report Form, ECF No. 72-4 at 8 (WECMuller001287), currently available at ECF No. 85-1 at 7. See also ECP Close-Out Letter, ECF No. 72-5.
J. Plaintiff pursues unemployment benefits and administrative remedies
Although the facts provided as to Plaintiff's claim for unemployment benefits are sparse, Plaintiff has provided a copy of a hearing notice from the South Carolina Department of Employment and Workforce. ECF No. 75-8. Plaintiff indicates she was denied benefits. Pl. Mem. 34.
Plaintiff indicates in her memorandum that she pursued administrative remedies with the South Carolina Human Affairs Commission (“SCHAC”) and the Equal Employment Opportunity Commission (“EEOC”), and received a right-to-sue letter prior to filing her Complaint. Pl. Mem. 2. Exhaustion of administrative remedies is not an issue before the court.
III. Analysis
A. Title VII discrimination claim
1. Framework
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may demonstrate a violation of Title VII through direct or indirect evidence.
When direct evidence is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII, the burden of production shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the “McDonnell Douglas burdenshifting framework that says ‘a plaintiff must always introduce additional, independent evidence of discrimination.'” Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 220 (4th Cir. 2016) (quoting Reeves, 530 U.S. at 149)). “To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's non-[discriminatory] justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual.” Id. at 220. The court is ever mindful, too, that such inquiry is “meant only to aid courts and litigants in arranging the presentation of evidence.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006) (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988)).
Other than once using the word “pretext,” Pl. Mem. 11, Plaintiff never articulates under which proof scheme she is proceeding. Because Plaintiff has offered no argument that she has direct evidence of a violation of Title VII, nor is the undersigned aware of any direct evidence, the court analyzes the Title VII claims using the McDonnell Douglas burden-shifting framework.
As an initial matter, the undersigned notes that the overarching theme of Plaintiff's rambling opposition memorandum is that she did not commit the behaviors for which WEC indicates she was terminated and that there are issues of fact as to whether she did so. This argument misses the point. In Title VII matters, the question is not whether a personnel decision 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) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)).
2. Prima facie case
Generally, to establish a prima facie case in the specific context of a discriminatory discharge claim when disparate discipline is alleged, a plaintiff must show that: “(1) [s]he was a member of a protected class; (2) [s]he was satisfactorily performing [her] job at the time of the termination; (3) [s]he was terminated from [her] employment; and (4) the prohibited conduct in which [s]he engaged was comparable in seriousness to misconduct of other employees outside the protected class who received less severe discipline.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019) (citing Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011)). Further, in a discriminatory discharge matter concerning the enforcement of employee disciplinary measures, the fourth prong could be established by showing that “other employees who were not members of the protected class were retained under apparently similar circumstances.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002). As noted by Defendant the fourth prong is sometimes characterized as showing circumstances that give rise to an inference of discrimination. Def. Mem. 15 (citing Cater v. Ball, 33 F.3d 450, 458 (4th Cir. 1994)).
Defendant first argues Plaintiff cannot establish a prima facie case of race-based discrimination because she cannot satisfy the second or forth prongs of the prima facie case. Def. Mem. 16-19. Alternatively, Defendant submits it has provided legitimate, nondiscriminatory reasons for Plaintiff's termination and she has not demonstrated those reasons were pretextual. Id. at 19-20.
a) Satisfactorily performing her position
Pointing to Plaintiff's violations of the Code of Conduct in which WEC found she made abusive, derogatory comments and created a disruptive working environment, Defendant submits Plaintiff cannot show she was meeting reasonable expectations and satisfactorily performing her duties when she was terminated. Def. Mem. 16-17. Defendant submits that, at this juncture, it is the perception of the decisionmaker that is important. Def. Mem. 16. However, the Fourth Circuit recently provided guidance regarding the “reasonable expectations” prong of a Title VII employment-discrimination prima facie test, and indicated that “although we have held that we must focus on the employer's perception in the context of the pretext stage, we have not so held with respect to a plaintiff's prima facie case.” See Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 650 (4th Cir. 2021). Further, the court indicated that, at the prima facie stage, an employee could introduce evidence that called into question whether the employer's “proffered expectation is not, in fact, legitimate at all.” Id. (internal quotation omitted). In Sempowich, the court looked to evidence the employee had provided regarding her positive performance reviews that took place near the time of the adverse action and found the employee had raised a question of fact as to whether the employer's expectations were legitimate or genuine. 19 F.4th at 650.
Defendant submits that its findings that Plaintiff violated its Code of Conduct by “routinely making abusive and derogatory comments to her co-workers, creating a disruptive and uncomfortable work environment” show that Plaintiff cannot establish she was meeting reasonable expectations at the time of her termination. Def. Mem. 16 (citing Def. exs. F-K, ECF No. 67-7 through 67-12). As noted in Sempowich, however, the lens through which the court is to view the prima facie “reasonable expectation” prong is not exactly as Defendant frames it. Rather than accept Defendant's perception of Plaintiff's behaviors wholesale, at this juncture it is appropriate to consider any relevant evidence from Plaintiff that Defendant's expectations were not legitimate and that she was performing satisfactorily.
Here, however, Plaintiff has not pointed to specific evidence of that nature. For Plaintiff to establish factual issues as to whether she was meeting legitimate expectations, she is required to provide some cogent, competent evidence that Defendant's expectations were not “legitimate or genuine.” Plaintiff's memorandum includes the oft-repeated argument that there are issues of fact and that the workplace disruptions WEC found she committed did not happen in the manner WEC found they did.Unlike the plaintiff in Sempowich, Plaintiff has proffered no evidence demonstrating that, at the time she was terminated (or at other times concerning her conduct) she was meeting performance expectations. Nonetheless, particularly regarding the events of November 2, 2018, Plaintiff has submitted affidavits from coworkers, including Zander, who testify that there was no altercation between Plaintiff and Ms. Gadson that evening. Zander Affs., ECF No. 75-7. Notes from Plaintiff's November 5, 2018 interview also indicate she asked that her performance statistics be reviewed, as they would show “she didn't have time to get involved in anything.” Notes, ECF No. 68 at 5 (WECMuller000308), currently available at ECF No. 85 at 5. Although this is a close call, based on the Fourth Circuit's guidance that an employee's perception of performance/expectations is appropriate at the prima facie stage, the undersigned recommends finding Plaintiff has provided enough to raise some issues of fact as to WEC's expectations at the time of Plaintiff's termination. To be clear, though, this recommendation relates to this prong of the prima facie case only.
As noted above, Plaintiff also obliquely suggests Defendant manufactured evidence of her disruptive behavior after the fact. Plaintiff has provided no evidence of such; her conjecture is insufficient. See n.10, supra.
The court next considers the final prong of the prima facie analysis-whether Plaintiff was discharged under circumstances that raise a reasonable inference of unlawful discrimination.
b) Inference of discrimination/comparators
“In a disparate treatment case [a plaintiff] must prove intentional racial discrimination.” A prima facie case of race discrimination under Title VII requires showing a connection between race and the adverse employment decision.” Autry v. N.C. Dept. of Human Resources, 820 F.2d 1384, 1385 (4th Cir. 1987). Although Plaintiff is not required as a matter of law to identify a similarly situated comparator to satisfy the fourth prong of his prima facie case, Bryant v. Aiken Reg'lMed. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003), when she does, it is the plaintiff's “task to demonstrate that the comparator is indeed similarly situated.” Davis v. Centex Homes, No. 4:09-cv-830-RBH-SVH, 2011 WL 1525764, at *3 (D.S.C. Apr. 1, 2011), adopted sub nom. Davis v. Centex Int'l II LLC, 2011 WL 1526928 (D.S.C. Apr. 20, 2011) (internal quotation omitted). In doing so, Plaintiff must demonstrate that she is similar in all relevant respects to her alleged comparators. Hurst v. D.C., 681 Fed.Appx. 186, 191 (4th Cir. 2017). This showing should “include evidence that the employees ‘dealt with the same supervisor, [were] subject to the same standards and . . . [in the context of disparate discipline or treatment] 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.'” Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Although the issue of whether an employee has presented a valid comparator may sometimes be a question of fact, the Fourth Circuit recently noted, “this does not preclude a court from deciding as a matter of law that there is an insufficient basis for comparison to submit the question to the fact-finder.” Tinsley v. City of Charlotte, No. 19-1871, 2021 WL 1783226, at *6 (4th Cir. May 5, 2021) (overturning jury verdict in sex-discrimination case because plaintiff had not presented a valid comparator).
Here, Defendant argues Plaintiff has not presented evidence of a valid comparator outside her protected class who was treated differently under substantially similar conditions. In seeking summary judgment, Defendant has provided information regarding four of Plaintiff's co-workers who were terminated for engaging the same misconduct as Plaintiff. Def. Mem. 17-18; 2018 Termination Letters, ECF No. 72-6. Of these four employees, two were Caucasian. Stuckey Aff. ¶ 17. Plaintiff's termination letter indicated she was terminated for violation of the Westinghouse Code of Conduct, particularly including a violation of Section A, Violation #1 (“Fighting, assault, engaging in disorderly conduct or abusive or threatening language at work or work-related functions off site, including conduct which endangers the safety of a person or property.”) and #10 (“Insubordination, including willful failure to carry out definite instructions or assignments including instructions from security officers.”). Pl. Term. Letter. By way of comparison, the comparators' letters proffered by Defendant indicated the following:
• Aug. 15, 2017 Term. Letter of J. Singleton, indicated she was terminated for violating the Westinghouse Code of Conduct, Section A, Violation #1 and #10.
• Nov. 15, 2018 Term. Letter of M. Wise, indicating he was terminated for violating the Westinghouse Code of Conduct, Section A, Violation #1 and #10.
• Dec. 18, 2018 Term. Letter of C. Hicks, indicated she was terminated for violating the Westinghouse Code of Conduct, Section A, Violation #1 and #10.
• Dec. 18, 2018 Term. Letter of T. Zander, indicated she was terminated for violating the Westinghouse Code of Conduct, Section A, Violation #1 and #10.ECF No. 72-6. Stuckey affirms that two of these comparators are Caucasian.
In responding to summary judgment, Plaintiff does not discuss this proffered comparator evidence in any manner. Indeed, as with other aspects of her opposition, it is difficult to parse precisely what her legal and factual arguments are as to this prong of her prima facie case. Plaintiff appears to compare herself and her treatment with other white male and female employees who were involved in the June 26, 2018 “horseplay” incident that she had reported. Pl. Mem. 19. Plaintiff identifies these individuals as white males Matthew Wise, Shane McDowell, Joseph Boozer, and Bill Abell; and white female Casey Brandmire. Id. Elsewhere in her memorandum, Plaintiff submits that these white employees “were not suspended and terminated, but Plaintiff was suspended and terminated from her job because of an alleged altercation on November 2, 2018, that never occurred.” Pl. Mem. 16. Plaintiff provides no legal argument as to how these individuals would be considered her comparator, nor does she provide any documentary evidence regarding these individuals, their disciplinary records, or what discipline may (or may not) have been meted out to them.
In addition, Defendant points out that “horseplay” is classified as a Conduct Code “B” Violation, while Plaintiff's violation concerning peer-to-peer conflict is a Conduct Code “A” Violation (the most serious violation) pursuant to WEC's Code of Conduct. Further, Defendant's investigation of Plaintiff's allegations concerning “horseplay” resulted in what WEC found to be a “he said/she said” situation and no individual was disciplined at that time. However, Nimmo spoke with Plaintiff and with all individuals involved to explain the results of the investigation and to counsel against “horseplay-like” behavior. In any event, Plaintiff was never accused of “horseplay,” nor has she demonstrated that Wise, McDowell, Boozer, Abell, or Brandmire were accused of Conduct Code “A” violations and not punished in a manner equal to or similar to Plaintiff. (In fact, Wise was terminated in November 2018 for Code A violations ## 1 and 10, the same violations as Plaintiff.)
Plaintiff's focus on the lack-of-punishment for alleged horseplay in July 2018 simply does not provide apt comparator evidence nor does it otherwise demonstrate any “inference of discrimination” based on race. To be a comparator, Plaintiff and the individual “must be similarly situated in all material aspects.” See, e.g., Mitchell v. Sec'y Veteran Affs., 467 F.Supp.2d 544, 552 (D.S.C. 2006); Dixon v. Sam's E., Inc., Case No. 3:13-1521-MBS, 2015 WL 5671517, at *2 (D.S.C. Sept. 25, 2015) (upholding summary judgment in employer's favor where plaintiff failed to show similarly situated employees outside his protected class received more favorable treatment).Although Plaintiff takes issue with the violations Defendant found her to have committed, nothing about this argument adds to her claim that she was terminated because of her race.
In Plaintiff's Complaint, she also generally references white male employees James Bradmire and Mark Brown, alleging they got into altercations but were not terminated. Compl. ¶¶ 44-45. She also indicates Brown used an inappropriate racial epithet and Taylor Hinson sent improper pictures to coworkers but were not terminated. Id. ¶¶ 46, 47. However, Plaintiff does not attempt to focus on these employees or incidents in her memorandum, nor has she proffered any evidence that they might be appropriate comparators.
The undersigned is of the opinion that Plaintiff cannot establish the final prong of her prima facie case. Summary judgment is appropriate as to her Title VII race discrimination claim.
3. Pretext analysis
Even if Plaintiff were able to establish a prima facie case of discrimination on the basis of her race, her discrimination claim would fail because Defendant has set out legitimate, non-discriminatory reasons for terminating Plaintiff. Defendant performed an investigation of the October and November 2018 incidents, interviewing various witnesses. Stuckey Aff. ¶¶ 13-14. Several witnesses corroborated Plaintiff's inappropriate conduct. The Investigative Team determined it appropriate to terminate Plaintiff, and the Disciplinary Review Board agreed. Stuckey Aff. ¶¶ 14-16. These reasons satisfy Defendant's burden of production.
The burden shifts to Plaintiff to show that the reasons given for termination are pretextual. This is so if Defendant honestly believed termination was appropriate-even if there were some mistaken understanding about the facts. See generally Wootten v. Commonwealth of Va., 154 F.Supp.3d 322, 336-37 (W.D. Va. 2016). (“If the record shows Defendants ‘honestly believed' Plaintiff deserved to be discharged, then pretext is absent, even if Defendants were wrong or mistaken about the underlying facts.”) (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 217-18 (4th Cir. 2007)). In other words, in considering pretext, courts are not called upon to judge “whether the reason was wise, fair, or even correct, ultimately.” Dugan v. Albemarle Cnty. Sch. Bd., 293 F.3d 716, 722 (4th Cir. 2002).
Here, Plaintiff does not agree with Defendant's reasons for terminating her and takes issue with Defendant's characterization of her behavior, including her behavior on October 31 and November 2, 2018. However, this is insufficient to demonstrate pretext. Plaintiff argues again and again that there are “issues of fact” as to whether she was involved in various incidents, including on November 2, 2018. However, general “issues of fact” do not necessarily pretext make. The court need not determine precisely what Plaintiff's part was in the various events. In other words, the court's role is not to determine whether WEC's reason was “necessarily valid, only whether it was based on good faith.” See Nelson, 2022 WL 970149, at *11 (noting employee's argument that he was not involved in a particular altercation was not the court's focus; rather, the focus was on whether the employer's determination, which was based on an investigation, was “based on good faith,” not whether it was “necessarily valid”). The Nelson court cited Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017) (in Title VII retaliation context). In Villa, the Fourth Circuit found that, if the employee was terminated for conduct in which she did not engage, “that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.” Id. (quoting Richey v. City of Indep., 540 F.3d 779, 785 (8th Cir. 2008) (“[W]hen an employer is presented with a ‘he said, she said' set of facts involving two employees, and the employer disbelieves the employee and disciplines her, the employer is not liable so long as it took the adverse action because of a good faith belief [.]”)). See also Jones v. Eaton Corp., No. 3:15-CV-04236-JMC, 2017 WL 1190873, at *9 (D.S.C. Mar. 31, 2017).
Based on the record evidence, including WEC's investigation and documents provided by Plaintiff, the undersigned is of the opinion that no reasonable juror could conclude, without impermissibly speculating, that WEC's stated reasons for terminating Plaintiff were not the true reasons. Hawkins, 203 F.3d at 281 n.1. Plaintiff has not established pretext. Defendant's Motion for Summary Judgment should be granted as to her Title VII discrimination claim.
B. 42 U.S.C. § 1981 discrimination claim
Plaintiff's Second Cause of Action is styled as one for race discrimination under 42 U.S.C. § 1981 and Title VII. Compl. ¶¶ 34-51. Defendant seeks summary judgment as to the Section 1981 claim, noting that the standard for establishing discrimination under that statute is similar to that of Title VII except that Plaintiff's burden under Section 1981 is more stringent: she is required to establish that her race was a “but-for” cause of her termination. Def. Mem. 19-20 (citing Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009 (2020)).
Plaintiff does not argue otherwise.
The undersigned agrees with Defendant. Plaintiff's claim brought pursuant to 42 U.S.C. § 1981 is subject to summary judgment for the same reasons as discussed above as to her Title VII discrimination claim.
C. Title VII and 42 U.S.C. § 1981 retaliation claims
WEC also argues that Plaintiff has failed to establish a prima facie case of retaliation under Title VII or 42 U.S.C. § 1981. Title VII forbids an employer from taking action that discriminates against an employee because that employee either has “opposed any practice made an unlawful employment practice” by Title VII or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Section 1981 also prohibits retaliation in response to protected activity in the workplace. 42 U.S.C. § 1981; Guessous, 828 F.3d at 216. Employees may prove that their employer retaliated against them for engaging in opposition activity through one of two ways: by direct evidence of retaliatory animus, or through the McDonnell Douglas burden-shifting framework. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). See Guessous, 828 F.3d at 216 (noting that the McDonnell Douglas framework applicable for claims under Title VII is used to analyze retaliation claims under § 1981).
To succeed on a retaliation claim under the burden-shifting framework, Plaintiff must first establish: (1) that she engaged in protected activity; (2) her employer acted adversely against her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 327 (4th Cir. 2011). “Protected activities fall into two distinct categories: participation or opposition . . . . An employer may not retaliate against an employee [for] participating in an ongoing investigation or proceeding . . . nor may the employer take adverse employment action against an employee for opposing discriminatory practices in the workplace.” Laughlin v. Metropolitan Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). “[T]he ‘opposition clause,' by its very terms, requires that the employee at least have actually opposed employment practices made unlawful by Title VII [or other applicable law]. That is to say, the clause protects opposition neither to all unlawful employment practices nor to practices the employee simply thinks are somehow unfair.” McNair v. Computer Data Sys., Inc., 172 F.3d 863, 1999 WL 30959, at *5 (4th Cir. Jan. 26, 1999) (unpublished). “[A]n employee's complaint constitutes protected activity when the employer understood, or should have understood, that the plaintiff was opposing discriminatory conduct.” Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 560 (D.S.C. 2013). Furthermore, to establish causation at the prima facie stage of a retaliation claim, a plaintiff must show “that (1) the employer either understood or should have understood the employee to be engaged in protected activity and (2) the employer took adverse action against the employee soon after becoming aware of such activity.” Strothers v. City of Laurel, 895 F.3d 317, 335-36 (4th Cir. 2018) (citations omitted).
Plaintiff has proffered no direct evidence to support a Title VII/Section 1981 retaliation claim. Defendant argues Plaintiff cannot establish a prima facie retaliation claim because she has not engaged in protected activity. Def. Mem. 21-22. As Defendant correctly points out, complaints are protected activity only if they are complaints based on the civil right protected by the statutes at issue-here, race. For example, “[p]rotected activity under Title VII includes complaints of discrimination based upon ‘race, color, religion, sex or national origin.'” Landino v. Sapp, 520 Fed.Appx. 195, 198 (4th Cir. 2013) (quoting Balazs v. Liebenthal, 32 F.3d 151, 159 (4th Cir. 1994)). Here, although Plaintiff made various complaints throughout her tenure, her complaints did not concern purported race discrimination in the workplace. Stuckey Aff ¶ 19.
Plaintiff's opposition to summary judgment never directly addresses this legal point. Construing her memorandum most liberally, Plaintiff's references to any complaints/reporting are her general statements relating to Plaintiff's reporting of situations she believed to be safety-related violations. For example, Plaintiff's argument includes references that Defendant failed to “address the hazard conditions in its workplace in which Plaintiff reported,” (Pl. Mem. 10); that Plaintiff “reported unsafe and hazardous behaviors of employees in the work area to Defendant,” (id. at 12); that her reporting of unsafe conditions and her “concerns as a member of the Safety Committee at Defendant Westinghouse's facility was not inappropriate behavior by Plaintiff,” (id. at 14-15); that reporting “dangerous conditions by employees in the work area to Defendant, and ECP costs her job,” (id. at 16-17); that Plaintiff “continually reported . . . employees' unsafe behaviors and violations,” yet she was punished), (id. at 17); and that her manager, Nimmo, “loudly started yelling” at her for reporting the horseplay, (id. at 20).
Plaintiff references the race of those she reported for horseplay: the “white male and female employees involved in the horseplaying in the work area that Plaintiff reported” were not suspended or terminated. Pl. Mem. 17; see also id. at 18-19 (same). However, Plaintiff never alleges-nor does the record even vaguely suggest-that Plaintiff ever made any complaints that race discrimination was taking place. In fact, Plaintiff herself characterizes her reporting as being about “employees' unsafe behaviors and violations.” Pl. Mem. 17. While Plaintiff's focus on safety is laudable, it is not actionable under Title VII or Section 1981. See Hemphill, 975 F.Supp.2d at 562 (finding an email containing allegations of unfair treatment, being spoken to in an unprofessional, disrespectful, and degrading manner, and being openly humiliated without mentioning discrimination could not be protected activity); Jennings v. Sci. Applications, Int'l Corp., No. 2:18-CV-1127-BHH-MHC, 2022 WL 4180925, at *12 (D.S.C. July 20, 2022) (finding plaintiff's complaints about matters being “unfair” were not protected activity), report and recommendation adopted, No. 2:18-CV-1127-BHH, 2022 WL 3714599 (D.S.C. Aug. 29, 2022); Yon v. Reg'l Med. Cntr., Case No. 14- Civ-2098, 2016 WL 11410314, at *14 (D.S.C. Feb. 10, 2016) (“‘protected acts' must include communicating to [one's] employer the belief discrimination has taken place”); Gurish v. Ohio Dep't of Mental Retardation and Developmental Disabilities, No. 1:10CV2292, 2012 WL 3649359, at *2 (N.D. Ohio Aug. 23, 2012) (“[The p]laintiff alleged within his EEOC charge that he was retaliated against ‘after reporting an unsafe work environment.' . . . [The p]laintiff's actions for which he alleges retaliation within his EEOC charge are not considered protected activity under Title VII . . . .”); Rodriguez v. Beechmont Bus Serv. Inc., 173 F.Supp.2d 139, 150 (S.D.N.Y. 2001) (dismissing Title VII claim for retaliation in response to cooperation with workplace safety investigation, because “unsafe working conditions are not made unlawful under Title VII”); Harper v. Hunter Coll., No. 95 CIV. 10388, 1999 WL 147698, at *3 (S.D.N.Y. Mar. 15, 1999) (finding plaintiff did not state claim for retaliation for “whistleblowing in connection with his report of unsafe working conditions” because “whistleblowing activity of this nature is not protected under Title VII” (internal quotation marks omitted)).
Plaintiff has not set out any activity protected by Title VII or Section 1981. On this record, Plaintiff's prima facie claim of race-based retaliation fails as a matter of law. Because Plaintiff has not set out evidence that could support a finding that she participated in an activity protected under Title VII or Section 1981, further analysis of her retaliation cause of action is unnecessary. Summary judgment is appropriate.
Even if the district judge were to find Plaintiff has established a prima facie claim of Title VII/ Section 1981 retaliation, Plaintiff could not satisfy her burden at the pretext stage. To prove pretext and support a claim for retaliation, Plaintiff must demonstrate that retaliation was a “but-for” cause of her termination. Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 246 (4th Cir. 2015). Plaintiff's argument that she would not have been terminated but-for her participation in protected activity fails for essentially the same reasons discussed in conjunction with her discrimination claim.
D. State law claims
Defendant also seeks summary judgment as to Plaintiff's remaining claims: negligence/gross negligence and defamation. Because it is recommended that all federal claims be dismissed, the district judge could, in her discretion, decline to exercise supplemental jurisdiction and remand the state-law-based claims to state court. See Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (noting “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.”). See Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 616 (4th Cir. 2001) (explaining that “federal courts [] have an inherent power to remand removed State claims when the federal claims drop out of the case”); Tedder v. Care S.C., Inc., No. CV 4:20-707-SAL, 2022 WL 909397, at *5 (D.S.C. Mar. 29, 2022) (granting summary judgment as to federal-law-based employment claims and declining to exercise supplemental jurisdiction over state-law-based claims).
In any event, the undersigned considers these claims on their merits and recommends that summary judgment be granted as to each of them, as well.
A. Negligence/gross negligence
Plaintiff's Complaint includes a cause of action for “negligence/gross negligence,” in which she alleges Defendant “knew or should have known that the ‘horse playing' in the work place by other co-workers would create a dangerous latent condition for employees, including Plaintiff who was instructed by Defendant[] that employees are not to display horse play in the work place.” Compl. ¶ 26. Plaintiff alleges that nothing was done about the horse play after she had reported it and that because of Defendant's “negligence gross/negligence of correcting the problem, Plaintiff was put in a hostile work environment with her co-workers because [she] reported the horse play by the co-workers to Defendant's agents.” Compl. ¶¶ 27-28. Plaintiff avers co-workers “assaultedPlaintiff continuously and Defendant[] did not intervene on Plaintiff's behalf” and did not attempt to correct the “horse playing.” Compl. ¶ 29. Plaintiff claims Defendant undertook and breached a duty to keep premises safe, causing her damages of “extreme stress and distress, pain and suffering, medical costs an injuries to her person, lost wages, and the costs and attorney fees for bringing this action. Compl. ¶ 33; see id. ¶¶ 31-33.
The court is aware of no record evidence concerning any claim of an “assault.”
Defendant argues Plaintiff's claim of negligence/gross negligence is subject to summary judgment because the South Carolina Workers' Compensation Act (the “Act”) provides the exclusive remedy for such tort actions against an employer when the employee claims a work-related injury. Def. Mem. 13-14. Plaintiff disagrees, arguing her claim is not preempted by the Act because her claims relate to “Defendant's act or failure to follow its policies and procedures” and are not related to an “injury sustained on the job or by accident arising out of the and in the course of employment that she is entitled to recover medical expenses, temporary total compensation for lost time, and permanent disability under [the Act].” Pl. Mem. 29-30. Plaintiff submits Defendant has “provided no evidence to support its contention that Plaintiff's only recourse was to file her cause of action under [the Act].” Pl. Mem. 30. The undersigned agrees with Defendant that Plaintiff's Complaint pleads claims that essentially are those of negligent supervision, which are excluded by the Act. Def. Mem. 13-14; Reply 12-13.
Section 42-1-540 of the Act, commonly referred to as the “exclusivity provision,” provides:
The rights and remedies granted by [the Workers' Compensation Act] to an employee when he and his employer have accepted the provisions of [the Workers' Compensation Act], respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.S.C. Code Ann. § 42-1-540. Pursuant to this provision, South Carolina courts hold that the Act provides the exclusive remedy against an employer for an employee who sustains injuries arising out of his employment. Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002). The exclusivity provision is jurisdictional and bars all common law actions against an employer based on injuries within the scope of the Workers' Compensation Act. Id. at 234 n.3 (“The phrase ‘shall exclude all other rights and remedies' in the exclusivity provision demonstrates plain and unambiguous legislative intent to vest the Workers' Compensation Commission with exclusive original jurisdiction over an employee's claims.”).
Plaintiff's negligence claim is barred by the Act. Plaintiff's claims hinge on alleged injuries she suffered after she reported “horse play” and Defendant allegedly did nothing about her report. Compl. ¶¶ 26-27. Such claims are excluded by the Act. See, e.g., Williams v. Windstream Servs., LLC, C/A No. 6:18-3049-DCC-JDA, 2019 WL 3066653, at *6 (D.S.C. Feb. 12, 2019) (“Plaintiff's negligence claim seeking to recover for Defendant's alleged failure to intervene in and investigate his harassment claims is therefore barred, and the Court recommends granting Defendant's motion to dismiss the claim on that basis.”) (citations omitted)); Dickert v. Metro. Life Ins. Co., 428 S.E.2d 700, 701 (S.C. 1993) (holding that employee's claim that employer negligently failed to exercise reasonable care in protecting her from being harassed by her supervisor was barred by the exclusivity provision).
Summary judgment is appropriate as to Plaintiff's negligence/gross negligence cause of action.
B. Defamation
Finally, Defendant seeks summary judgment as to Plaintiff's defamation claim, arguing she has not set out evidence sufficient to be presented to a jury on this claim. Def. Mem. 24-28; Reply 13-15. Plaintiff disagrees, generally arguing she has submitted evidence that “Defendant provided and published its false allegations that Plaintiff was in a confrontation with employees at Defendant's facility and that she was suspended and terminated on November 9, 2018, due to this alleged and false allegations was a false statement to third parties in the workplace, community, and other government agencies and jobs.” Pl. Mem. 33-34. Plaintiff contends Defendant's “false statements negatively impacted” her finding later comparable employment. Pl. Mem. 34; see Id. at 32-35.
Gleaned principally from her deposition testimony, Plaintiff appears to allege defamation in the following ways: (1) in connection with her application for unemployment benefits, Defendant disclosed to the South Carolina Department of Employment and Workforce (“SCDEW”) that she was terminated for cause; (2) Plaintiff was required to disclose on subsequent employment applications that WEC had terminated her; and (3) Plaintiff was escorted off of the WEC premises by WEC security on November 2, 2018. Pl. Dep. 129-30, 162-63, 169-72; see also Pl. Mem. 31-35.
a. Applicable law
South Carolina law applies to the defamation cause of action. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938). The tort of defamation allows a plaintiff to recover when a defendant communicates a false message about the plaintiff to others that injures the plaintiff's reputation. McBride v. Sch. Dist. of Greenville Cnty., 698 S.E.2d 845, 852 (S.C. Ct. App. 2010). To establish defamation under South Carolina law, Plaintiff must show: “(1) a falseand defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Erickson v. Jones Street Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006) (citation omitted). Statements may be defamatory per se when they “charge the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession.” Fountain v. First Reliance Bank, 730 S.E.2d 305, 309 (S.C. 2012). To qualify as defamation per se, the “defamatory meaning of a message or statement” must be “obvious on the face of the statement.” Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (1998) (using as an example of a defamatory per se statement “A is a thief.”).
South Carolina courts typically include “falsity” in stating the elements of defamation. However, as the court noted in Jeter v. Allstate Insurance Co., No. CV 7:15-1458-TMC, 2016 WL 7115912, at *4 (D.S.C. Aug. 22, 2016), a private individual claiming defamation as to a matter that is not of public concern “has no duty to plead or prove falsity during his case-in-chief[.]” Id. at *12, n.4 (quoting Parrish v. Allen, 656 S.E.2d 382, 392 (S.C. Ct. App. 2007)). Truth is an affirmative defense as to which the defendant has the burden of proof unless the statement involves a constitutional issue. Id.
b. Statement to SCDEW
As to any alleged statement to SCDEW in connection with Plaintiff's application for unemployment benefits, the undersigned agrees with Defendant that S.C. Code Ann. § 41-27-560 expressly prohibits such claims. Section 41-27-560 provides that a “report, communication, or other similar matter, either oral or written from an employee or employer to the other or to the department or its agents, representatives, or employees” that is sent for purposes of administration of unemployment benefits “must not be made the subject matter or basis of a suit for slander or libel in a court of this State.” S.C. Code Ann. § 41-27-560. Numerous courts in this District have found this statute to be a death knell to an employee's defamation claim. E.g., Alexander v. S.C. Dep't of Transportation, No. CV 3:20-4480-TLW-SVH, 2021 WL 5167807, at *10 n.9 (D.S.C. Aug. 23, 2021), report and recommendation adopted sub nom. Alexander v. S.C. Dep't of Transportation, No. 3:20-CV-4480-TLW, 2021 WL 5166400 (D.S.C. Nov. 4, 2021), appeal dismissed sub nom. Alexander v. S.C. Dep't of Transportation, No. 21-2346, 2022 WL 898489 (4th Cir. Mar. 28, 2022); Williams v. Windstream Servs., LLC, C/A No. 6:18-03049-DCC-JDA, 2019 WL 3066653, at *5 (D.S.C. Feb. 12, 2019) (“any statements McKinley and Bolin made to SCDEW would be absolutely privileged and could not form the basis of a defamation suit”) (citing S.C. Code Ann. § 41-27-560)).
Plaintiff has offered no legal argument to the contrary. Her opposition does not reference S.C. Code Ann. § 41-27-560 or the SCDEW. Her only reference to a “government agency” is her general claim that Defendant made false statements to various entities, including “government agencies.” Pl. Mem. 34.
To the extent Plaintiff's defamation claim relates to statements made to SCDEW or regarding her unemployment-application process with that agency, summary judgment in favor of Defendant is appropriate.
c. Statements to others
Defendant seeks summary judgment as to other allegedly defamatory statements, arguing Plaintiff has not identified the third parties to whom WEC alleged published defamatory statements. Defendant notes Plaintiff's deposition testimony in which she testified she did not know what, if anything, WEC said to any of her prospective employers, Pl. Dep. 130; had no evidence that anyone in WEC management said anything about her termination outside of the company after her termination, Pl. Dep. 172; and had no evidence that she did not receive jobs for which she applied because of something said by someone at WEC, Pl. Dep. 172. Plaintiff has provided no competent evidence of any such statements by WEC to any third party. See McNeil v. S.C. Dep'tof Corr., 743 S.E.2d 843, 848 (S.C. Ct. App. 2013) (affirming dismissal of defamation cause of action when the plaintiff could neither set forth with specificity the alleged false statements, whether defendant made allegedly defamatory statements, or to what third party such statements were published); Harvey v. Saluda Smiles Fam. Dentistry, 210 F.Supp.3d 812, 825 (D.S.C. 2016) (granting summary judgment on defamation claim because plaintiff had provided no evidence other than “bare allegations in her Complaint to support the publication element of the defamation claim.”), on reconsideration on other grounds, No. 8:14-CV-01966-JMC, 2016 WL 7451205 (D.S.C. Dec. 28, 2016), and on reconsideration in part, No. 8:14-CV-01966-JMC, 2017 WL 3048582 (D.S.C. July 18, 2017), and on reconsideration in part, No. 8:14-CV-01966-JMC, 2017 WL 3048582 (D.S.C. July 18, 2017);
Defendant also correctly argues that, to the extent Plaintiff self-reported her termination to prospective employers, she cannot satisfy the publication element. Def. Mem. 25-26. Defendant points to various portions of Plaintiff's deposition in which she indicated she put information about her termination on employment applications. Pl. Dep. 129, 170. Although Plaintiff opposes summary judgment, nowhere in her opposition memorandum does she address this argument or offer evidence of any publication by WEC to any third party. Summary judgment is appropriate.
d. Plaintiff's being escorted from WEC on November 2, 2018
Defendant argues it is entitled to judgment as a matter of law regarding Plaintiff's claim that she was defamed when she was escorted from WEC's premises on November 2, 2018 because she cannot satisfy the fourth element of defamation-the actionability of a statement irrespective of harm or common law actual malice and the existence of special harm caused by publication. Def. Mem. 26-28. Erickson, 629 S.E.2d at 664. Plaintiff never specifically addresses this portion of Defendant's Motion.
The undersigned agrees with Defendant that it is entitled to judgment as a matter of law as to this portion of Plaintiff's defamation claim. Under certain circumstances conduct may be defamatory. However, as the Fourth Circuit has noted, “escorting an employee off the premises can constitute a defamatory statement when additional evidence shows that other people thought the employee was terminated for some ‘type of criminal or unlawful activity[.]'” McMichael v. James Island Charter Sch., 840 Fed.Appx. 723, 733 (4th Cir. 2020) (quoting Johnson v. Dillards, Inc., 3:03-3445-MBS, 2007 WL 2792232, at *18 (D.S.C. Sept. 24, 2007) (both cases interpreting South Carolina law)).
Here, Plaintiff has provided no evidence that anyone believed she was terminated for “criminal or unlawful activity.” This is so despite her unsupported argument in her memorandum that Defendant “attributes a crime of moral turpitude to [] Plaintiff,” apparently relying on her claim that Defendant's investigation included statements to the effect that Plaintiff was not involved in an altercation on November 2, 2018. Pl. Mem. 32-33. Plaintiff has provided no evidence that anyone affiliated with WEC accused her of any crime. She has provided no evidence of actionable defamation. Defendant is entitled to summary judgment.
IV. Conclusion and recommendation
Based on the foregoing, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 67, be granted and this matter be ended. Further, to the extent Plaintiff's filing were to be considered as her own motion for summary judgment, such motion should be denied.
IT IS SO RECOMMENDED.