Opinion
C. A. 3:22-3378-MGL-SVH
12-11-2023
Michael Niermeier, Plaintiff, v. Richland County Government, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
In this case, an employee alleges that he was discriminated against and fired because of his white race by his black supervisors, that he was defamed, and that those supervisors were negligently supervised. His former employer seeks dismissal.
Michael Niermeier (“Plaintiff”) originally filed a complaint in the Court of Common Pleas for Richland County, South Carolina (“state court”), against his former employer, the Richland County Government (“Defendant”). Defendant removed the action from state court on September 30, 2022. Plaintiff alleges reverse racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), as well as state law claims for defamation and negligent supervision.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 26]. The motion has been fully briefed [ECF Nos. 29, 31, 39] and is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion.
I. Factual and Procedural Background
A. Plaintiff's Employment
Plaintiff is a white male who was employed by Defendant and promoted to Director of the Transportation Department in March 2019. [ECF No. 31 ¶ 11, ECF No. 26-2 at 42]. In that position, Plaintiff's supervisors were Assistant County Administrator John Thompson (“Thompson”), a black male, and Leonardo Brown (“Brown”), County Administrator, a black male. [ECF No. 31 ¶¶ 15, 17, ECF No. 31-4 at 33:2-5].
Thompson previously held the Director of Transportation position. [ECF No. 31 ¶ 15].
Brown was hired as the County Administrator in July 2019. [ECF No. 26-3 at 45:22-23]. The Transportation Department administers the billion- dollar Penny Transportation Program (“Penny Program”) for Richland County. [ECF No. 26-2 at 25:9-27:8]. In November 2019, a five-year contract with Richland PDT (“PDT”), a joint venture of three engineering firms, expired, and the Penny Program was taken in-house with the Transportation Department assuming the day-to-day operations previously contracted to the PDT. See id. Plaintiff agrees that his responsibilities as the Director of Transportation changed substantially in November 2019 as a result of the change in the program being taken in-house. Id. at 25:9-32:7.
Shortly after Brown was hired, on July 26, 2019, Plaintiff sent an email to Brown, attaching the following letter:
I am writing this letter to request an audience with you to discuss a matter of great concern. Since accepting my current position, I have experienced disrespect and consistent undermining of the authority by John Thompson. When the position was offered to me, I gave it a great deal of consideration as I knew the challenge was great. However, I was assured that I would be supported every step of the way and I believed this is where the County needed me.
Within weeks of taking over, I immediately experience unfounded scrutiny, discrimination, and resistance by staff loyal to John Thompson and [resistance] to the changes needed to bring the program in house. John Thompson did not support me and perpetuated an environment of hostility to me and some of the new staff. This hostility was reported to [Human Resources Services Department (“HRSD”)].
Most recently, a member of my staff [Nathaniel Miller (“Miller”)] was announced as the interim Director of Public Works . . ., without discussing the matter with me or the outgoing Director of Public Works. This action was a complete insult to the leadership involved and a shock to many in both departments. When I asked John Thompson for a meeting to discuss the matter, ACA to his direct report, he refused to have the conversation and stated we need to “all get together” to talk about it. I find it insulting and minimizing that my manager would not have a professional
conversation with me. This has also been a trend and a large part of the reason I am requesting an audience.
I was prepared to file a formal grievance with HRSD prior to your arrival. I decided to wait until you had arrived and bring the matter to your attention first. I understand the grievance would have gone to County Council without an Administrator in place and I felt the better course of action was to wait.
I have never experienced such a leadership failure, poor judgement, lack of communication, and sense of despair as I am currently experiencing. I have discussed the matter with [T. Dwight Hanna (“Hanna”), Defendant's Director of Human Resources] and would like to have him participate in our conversation. I hope to hear from you soon to begin the resolving of this antagonist situation.[ECF No. 31-5 at 3-5].
Thompson testified he learned that Plaintiff requested to file a grievance against him after Plaintiff had left Defendant's employment. [ECF No. 31-1 at 40:16-23].
During the relevant time period, Brown repeatedly informed Plaintiff that he eventually planned to put a licensed professional engineer (“PE”) in the position of Director of Transportation. Id. at 70:3-18. Plaintiff, who is not PE-certified, testified that he had such discussions with Brown “several times,” with the first occasion being in the fall of 2019. See id. According to Defendant's Director of Public Works, Michael Maloney (“Maloney”), Brown also informed him in January 2020 that he wanted a PE in the Director of Transportation position. [ECF No. 26-4 at 25:6-12].
Plaintiff testified that David Beatty was the person in charge of the PDT, was responsible for administering the Penny Program, and was a PE. [ECF No. 26-2 at 28:21-29:25].
On August 6, 2020, Plaintiff wrote Brown the following:
Thompson . . . instructed me to put together an email to you for other areas in the County where I would like to work. I understand, from ACA Thompson, that you would like to put a Professional Engineer in the director position. I can understand that. However, I don't believe this is necessary at this point and any change now creates terrible optics for the Program and the County. Let me provide a few arguments to support not changing the position requirements.[ECF No. 26-2 at 45]. After providing numerous arguments in favor of not changing the qualifications of the position, the email concluded with Plaintiff providing three positions he would consider, although Plaintiff testified one position did not exist and another may not have had an opening. [ECF No. 26-2 at 45, ECF No. 26-2 at 79:2-84:9]. Plaintiff also testified that he never applied for any open positions with Defendant nor did he provide any additional information or suggestions about alternative employment from August 6, 2020, through the date of his termination in June 2021. See id.
On March 16, 2021, Plaintiff wrote a letter to Brown, concerning Plaintiff's subordinate Miller, a black male, who had been promoted without Plaintiff's knowledge by Thompson, Plaintiff's supervisor. [ECF No. 31-6 at 1-2]. In this letter, Plaintiff states that Miller has been promoted again without the appropriate qualifications or Plaintiff's knowledge and that:
For those in senior level County positions, words, actions and conduct should be above reproach as they set the example for other. In this case, Mr. Miller's words, actions and conduct have run contrary to the expectations and trust of the organization
that placed him in his positions. Though initially held in high regard, when pressed to perform, Mr. Miller established a blatant disregard for authority, rules, general management philosophy and standards all employees are expected to follow. He consistently fails to perform accurate work and in a timely manner, to provide support for other staff in the department, to acknowledge his mistakes and is unwilling to take responsibility for his actions. He assumes the victim role in all matters and routinely shifts the blame to others. Therefore, I recommend that Mr. Miller, as someone in a senior position, who has stolen from the County as presented in the attached documentation, exhibits dishonesty and is machinating to those in authority, deserves no less than termination of his employment with the County. His unethical and divisive presence in the department is no longer desired or sustainable.[ECF No. 31-6 at 1-2, see also ECF No. 31-4 at 56:3-11, ECF No. 31-6 at 4-6 (Plaintiff providing summary of infractions against Miller, including that “[f]rom at least December 31, 2020 to February 9, 2021, Mr. Miller was paid for hours that he never worked” by failing to be responsive when working remotely and failing to report work and leave time accurately and made threats towards coworkers)].
Allison Busch (“Busch”), who Plaintiff supervised, stated that “I found Miller to be generally manipulative and untrustworthy.” [ECF No. 31-3 ¶ 15].
In May 2021, Plaintiff, Brown, Thompson, Miller, and others participated in a meeting to discuss many of the issues in Defendant's workplace. [ECF No. 31:4 at 73:24-74:12]. On June 18, 2021, Plaintiff submitted to Brown and Thompson an email expressing concern that his position on Miller was being disregarded, stating also in part as follows:
In briefing, Plaintiff argues that during this meeting, Miller made “a number of false and inappropriate allegations against Plaintiff” and after the meeting “Plaintiff submitted an email to Brown and Thompson, requesting that Miller be terminated.” [ECF No. 29 at 5]. However, Plaintiff has not submitted evidence in support of this argument. [See generally ECF No. 31 and attachments]. Notwithstanding, taking this evidence into consideration would not alter the analysis or recommendation found herein.
Put yourself in my position for a moment. If Ms. Ashiya Myers stated in the Decker Meeting forum that neither you nor John Thompson should be in any leadership position in the County, w[]ere immoral, immature and if you had a superior to ask to have that person removed from the department since there was no way forward, what would you do? What if that request was not considered and just dismissed regardless of that superior hearing it firsthand and seeing there was no way forward. That is what I meant about being canceled/professionally ostracized. For example, never getting any clarity of vague responses, when asking several times, on why my previous DAF for Miller was outright rejected with no discussion with me. Mr. Miller can just walk around, impervious to consequence, being unresponsive, above the rules, arrogant and un-accountable. That is the environment that was allowed to develop before you even arrived and was allowed to continue with or without your knowledge.[ECF No. 31-7].
Thompson testified that Plaintiff informed him that Plaintiff felt he was being “cancelled” and that, based on the above email, Plaintiff had complained about a black employee being allowed to be above the rules. [ECF No. 31-1 at 46:23-47:1, 52:3-7]. Randy Pruitt (“Pruitt”), a former Richland County employee, also testified that he “frequently heard Michael in his employment state that he felt that he was being discriminated against or facing a hostile work environment.” [ECF No. 31 ¶ 23]. Likewise, Busch testified, “I heard Michael state on multiple occasions that he felt he was being subjected to a hostile working environment and facing discrimination based on his race while he was still employed with Richland County.” [ECF No. 31-3 ¶ 16].
B. Plaintiff's Termination and Replacement
On June 23, 2021, Brown issued Plaintiff a termination letter stating:
This letter is a follow up to our verbal conversation that, as the County Administrator, I believe that Richland County needs a Professional Engineer leading the Transportation Department. I communicated to you that my plans are to have P.E. lead the department and have the department work under Public Works, similar to other Transportation Penny Programs.
Effective immediately, you are relieved of your duties as Transportation Director, and your employment with Richland County is hereby terminated.[ECF No. 31-8].
Brown testified that it was his decision alone to terminate Plaintiff and that he did not talk to Thompson about the decision before he made it. [ECF No. 31:4 at 42:12-43:8]. Brown testified that he preferred the position to be filled by a PE from when he was first hired by Defendant in July 2019 but that he wanted to provide Plaintiff with “an opportunity to figure out if there was something else that he could provide and be of service for to the county” instead of firing him immediately. Id. at 46:1-47:24. Brown also testified that shortly after his arrival, he was new to South Carolina, the pandemic “shifted everything,” a prominent council member who was leading the transportation committee died, among other concerns, and these concerns provided Plaintiff “an extended opportunity . . . that he could have capitalized on.” Id. at 48:149:12.
Plaintiff has submitted evidence from Pruitt and Busch that they believed it was not necessary for an individual to hold a PE certification to effectively perform the position of Director of Transportation. [ECF No. 31 ¶ 24 (also noting “Mr. Thompson held job without a Professional Engineer certification and was actually promoted”), ECF No. 31-3 ¶ 12 (Busch noting that she held PE license and supervised project managers who dealt directly with on-call engineering firms and contracts, something the Director of the Transportation did not do, thus did not need), see also ECF No. 31-4 at 106:18-119:4 (Brown testifying that he was not sure anything listed under “essential tasks” for the official job description for the Direction of Transportation requires a PE license)].
Pruitt testified as follows:
It is my opinion that Michael was terminated due to raising concerns regarding a minority employee to Mr. Thompson. Michael was fired the same day that he sent an email outlining his concerns that Mr. Thompson refused to terminate the minority employee who had a proven track record of stealing time from Richland County.[ECF No. 31 ¶ 25].
Following Plaintiff's termination, the county council grievance committee held a hearing, and Brown testified he informed the council that he had met with Plaintiff in 2019 to tell him of his plan to have a PE run the Penny Program. [ECF No. 31-4 at 98:9-99:8].
In briefing, Plaintiff argues that Brown defended his termination decision by saying, regarding Plaintiff, that “management should handle employee issues at the department level.” [See ECF No. 29 at 8]. However, Plaintiff has not submitted evidence in support of this allegation. [See generally ECF No. 31 and attachments]. Notwithstanding, taking this evidence into consideration would not alter the analysis or recommendation found herein.
Following Plaintiff's termination, Maloney, a white male, was placed as the Interim Director of Transportation in addition to his position as Director of Public Works. [ECF No. 26-4 at 14:8-10, 27:10-12]. Busch has provided a statement discussing the hiring process for Plaintiff's replacement:
As you know, the County's reasoning for firing Mr. Niermeier was because he did not hold a PE, and the County Administrator preferred that the Director have this designation. So when the Director position was posted, I applied for it. I found out that two other people in the Transportation department also applied and that we all three were scheduled for interviews. The other two scheduled for an interview were Jeff McNesby, who is a licensed Engineer, and Rasheed [Muwwakkil]. I found it very odd that Rasheed would be granted an interview given that he was not a PE and that Mr. Niermeier was fired because he was not a PE. That is when I remembered that months before, Rasheed had informed me that he was going to attempt to take the FE exam, which is again one of the first steps to obtaining a PE license.
It appeared to me that, because of the timing of everything, that Rasheed knew he was going to be given a chance at the Director position months before, and that is why he decided to go for his PE. To my knowledge, Rasheed had no prior experience in program management such as the Penny Tax, had very little experience with the County Finance system (which is a very large part of managing a tax program) and had no experience with Council. I am unsure what, if any, design experience he had. If he did not have qualifying design experience, he would not even be allowed to take the PE exam.
A month or two went by with no decision made on the Director position after the interviews were held so I expressed my concern to the Interim Director Michael Maloney that it gave the
appearance that the County was holding the position in order to give Rasheed [Muwwakkil] time to go through all the steps of becoming a PE, just so he would qualify for the position. Mr. Maloney did not confirm or deny any of it.
Overall, this gave me the impression that Mr. Muwwakkil was being given special treatment. It also gave me the impression of racism because myself and Mr. McNesby, who were the other two applicants to apply for the Director position, already held PE licenses and both had many years of County government experience under our belts; however, we are both white while Mr. Muwwakkil is black.[ECF No. 31-11].
However, Brown testified as follows concerning the job search:
We posted the position with a new job description reflecting the requirements of a professional engineer. We received applicants. The qualified applicants that mainly applied were internal candidates. Because their department had been going through much transition and personnel issues, I did not select any of those candidates to run the department and so that's why none of those individuals were selected.[ECF No. 31-4 at 125:12-21].
To date, the position has still not been filled, and Maloney remains in place on an interim basis. [ECF No. 26-4 at 14:9-10] However, Brown testified that the job posting is no longer active because the “Penny Transportation Program has a sunset . . . coming up sooner rather than later,” also testifying as follows:
So any individuals that are going to be potentially considering that position would have to be, in my opinion, of the impression that they're going to have some longevity with the county and not come in knowing that a program is about to sunset if nothing else
is done. So there has been no permanent put into that position. But Director Maloney is still acting as the transportation director, and probably will be until the county figures out what it's going to do next with the Penny ....[ECF No. 31-4 at 124:2-23, 125:25-126:3].
C. Additional Allegations
Pruitt testified as follows:
On one occasion in or around 2019, I attempted to hire a white candidate to fill a mailroom position in my department. This candidate had the highest score of all applicants based upon his qualifications and experience.
Nevertheless, Mr. Thompson ordered me to forego hiring the white candidate in favor of a black candidate who was not qualified for the job. This black candidate was personal friends with the mailroom manager, who is also black.
In my opinion Mr. Thompson tended to be biased towards black employees when dealing with personnel issues in Richland County.[ECF No. 31 ¶¶ 20-22].
Plaintiff has submitted evidence that “Thompson was very ineffective as the Director of Transportation” [ECF No. 31 ¶ 16], and as “Director of Transportation, Mr. Thompson routinely deferred to the Program Development Team, because he was not very knowledgeable about transportation, design, or construction.” [ECF No. 31-3 ¶ 11]. Brown testified he had to issue an informal discipline memo to Thompson due to Thompson's handling of personnel matters, although details of these matters were not discussed. [ECF No. 31-4 at 34:14-37:13]. Brown testified that he received complaints about Thompson from other employees, prior to Plaintiff's termination, although details of these complaints were not discussed. See id.
After Plaintiff was fired, WIS News 10 Columbia published a story titled “Man in charge of overseeing Penny Tax Program fired, sources say,” stating in part as follows:
Richland County Administrator Leonardo Brown confirmed on Friday he fired Richland County Director of Transportation Michael Niermeier .... Brown said that for the penny program's next leader, he's looking for someone with an engineering background. “One of the things that I shared to the council some time ago, was that the department of transportation I believe needs to be headed up by a professional engineer, someone that can provide technical assistance and guidance to other engineers who are responsible and charged with managing projects,” he said.[ECF No. 31-9].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the 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.
B. Analysis
1. Title VII Discrimination Claim
Plaintiff alleges in his complaint that he “suffered harassment, disparate terms and conditions of employment, and termination” and “[t]hese adverse employment actions were motivated by his race in violation of Title VII.” [ECF No. 1-1 ¶ 54].
Absent evidence of direct discrimination, Plaintiff may use the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove his claims of discrimination. Plaintiff must show: (1) he is a member of a protected class; (2) he was performing his duties in a satisfactory manner; (3) he was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for its decision. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 557 (D.S.C. 2013). This is merely a burden of production, not of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Once Defendant meets its burden by producing a legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced is not the true reason, but was pretext for discrimination. Id. Throughout the burden-shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff.
As to Plaintiff's prima facie case, the parties dispute whether in reverse discrimination cases, Plaintiff faces a heightened burden in showing he is a member of a protected class. See, e.g., Youmans v. Manna, Inc., 33 F.Supp.2d 462, 464 (D.S.C. 1998) (“In a reverse discrimination claim, the first element of the prima facie case becomes more onerous. Rather than showing that he is a member of a protected class, a plaintiff must establish background circumstances which support the suspicion that defendant is among those unusual employers who discriminate against the majority.”).
The parties additionally dispute whether Plaintiff was performing his duties in a satisfactory manner, where there appears no dispute that Plaintiff met the minimum qualifications of his position [see, e.g., ECF No. 31-1 at 20:25-21:6] but only prior to when Brown sought to change the qualifications of the position to require a PE license, a license Plaintiff did not possess.
The court need not resolve these issues. For purposes of resolution of this motion, the court assumes without deciding that Plaintiff has established a prima facie case. However, Defendant has provided a legitimate, nondiscriminatory reason for Plaintiff's termination-that Plaintiff lacked a PE license-and Plaintiff has failed to carry his burden that this reason is pretext for discrimination.
A plaintiff can prove pretext “by showing that the employer's proffered explanation is unworthy of credence.” Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) (citation omitted)). Plaintiff argues he has done so for several reasons. First, Plaintiff argues that:
[I]t makes no sense that Brown would both believe the position to require a PE certification, but allow Plaintiff to work without such certification for two years. It makes even less sense that he would randomly, and by his own admission without any particular reason or trigger, decide that on June 23, 2021, it was time to get rid of Plaintiff for not being certified. Brown's timing becomes even more suspicious when based on the record at best the most recent time Brown had even mentioned to someone that he wanted a PE certified individual was over a year prior to the termination occurring.[ECF No. 29 at 19-20 (citations omitted)].
Plaintiff's argument is not supported by the record. Plaintiff ignores his own testimony that Brown informed him “several times” that Brown intended to replace him with someone with a PE certification, that there were multiple discussions with Thompson and Brown about Plaintiff finding a different role with Defendant, and that Brown also informed Maloney about his desire to have the Director of Transportation be PE certified.
Plaintiff also fails to address Brown's testimony explaining why he did not move quickly on his initial plan to replace the Plaintiff with a licensed professional engineer. As Brown testified, he wanted to give Plaintiff time to find alternative employment that suited him. Additionally, the Transportation Department, in November 2019, had just assumed control of the day-to-day operations of the Penny Program from the PDT. Third, by early 2020, Defendant was dealing with the unprecedented disruptions and shutdowns caused by the COVID-19 pandemic, including work-from-home mandates that made it an inopportune time to change the leadership of the Transportation Department. Fourth, Defendant lost an influential council member to his unexpected death during this time frame.
Plaintiff fails to rebut or even address Defendant's evidence explaining the timeline of the decision to terminated him, and, therefore, his arguments otherwise in support of pretext concerning this timeline are unpersuasive.
Plaintiff additionally argues that “Brown's alleged desire for a PE certified individual also does not make sense in the context of the position itself,” noting evidence from Defendant's former employees Pruitt, who worked “alongside the Director of Transportation,” and Busch, who was Plaintiff's Assistant Director of Transportation and who herself is PE-certified, that they did not believe a PE certification was necessary for the position and evidence that Thompson, who previously held the position, was also not PE-certified. [See ECF No. 31 ¶¶ 24, 26, ECF No. 31-3 ¶¶ 7, 12, 17].
However, Plaintiff's evidence does not rebut Defendant's evidence from current employees Brown, based on his previous experience, Thompson, based on how the position has changed over time, and Maloney, based on his current experience, that PE certification is a necessary qualification for the Director of Transportation position. As Brown testified:
Q: What about that position, director of transportation, do you believe requires a professional engineer qualification?
A: So as the county administrator, what I understand is that, as the ultimate employer of the employees, I can determine what I believe best suits my needs. And as I mentioned to individuals considering this job, my previous employer, our public works department, who handles our transportation needs, was run by a professional engineer. And based on my experience, the community takes very well to individuals who are able to speak to them and address their needs in a professional capacity. And I thought that that would need to be something that we would need here in Richland County to help further strengthen our transportation roles in the future. So I communicated that initially and at the beginning of my tenure and have been consistent throughout.[ECF No. 26-3 at 25:5-24, see also ECF 31-1 at 24:14-21 (Thompson testifying that when he held the position, he did not need a PE certification, but such certification is necessary now in that “[t]he position has evolved tremendously”), ECF No. 31-2 at 26:16-21 (Maloney testifying he has been the Interim Director of Transportation for two years and a PE license is “necessary in order to fulfill the duties of that position”)].
Plaintiff additionally argues that pretext can be found in that Defendant's reasons for terminating Plaintiff have changed over time. Indeed, “[t]he fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir. 2002) (citing EEOC v. Sears Roebuck, 243 F.3d 846, 852-53 (4th Cir. 2001)).
However, the only argument offered by Plaintiff that Defendant's reasoning has changed over time is as follows:
Here, although Defendant alleges that the lack of a PE certification was the only reason it terminated Plaintiff, Brown suddenly added reasoning to his decision when testifying about it in the grievance process. Suddenly, Brown has allegations of not following the handbook, not completing correct documentation, and poor behavior. (Ex. 11 - Brown Grievance Testimony). Brown's shifting reasoning is further evidence of pretext.[ECF No. 29 at 20-21]. Although the court does not have Plaintiff's Exhibit 11 before it, Plaintiff represents this evidence contains the following:
Brown also testified that Plaintiff “contacted county council members without following his proper chain o[f] command” and “did not follow the employee handbook in where he wrote up Nathaniel Miller. He did not follow county policy and turn the paperwork into Human Resources, Administration and Lega Department. And when questioned about it he lost it.” (Ex. 11 -Brown Grievance Testimony).Id. at 8.
Without the evidence before the court, and even considering Plaintiff's arguments above, it is unclear that Brown testified at the relevant hearing that he terminated Plaintiff for any reason other than Plaintiff's lack of PE certification. This is particularly true in that this evidence does not contain direct testimony, but a summary of the meeting as written by someone other than Brown. [See ECF No. 31-4 at 98:15-19 (Brown testifying that “I agree that the grievance committee, they take the information that they receive and then they create, from their perspective, a summary, and then give that out from them to the actual parties.”)].
Additionally, Plaintiff's argument concerning this testimony ignores both Brown's testimony that he told the committee that he met with Plaintiff in 2019 to confirm his goal that he wanted a PE-licensed person in Plaintiff's position, as well as Plaintiff's testimony that Brown never voiced any other reason for his termination other than the PE license to either Plaintiff or to anyone else. [ECF No. 26-2 at 114:10-115:4].
As emphasized by Plaintiff and as directed by the Fourth Circuit, “to focus on one piece of the record without considering the whole would distort the permissible inferences to be drawn.” Cook v. CSX Transp. Corp., 988 F.2d 507, 512 (4th Cir. 1993). Here, taking Plaintiff's evidence related to discrimination as a whole, he has offered that Thompson, who is black, engaged in racially-biased hiring and promoting, including promoting Miller, who is black. Plaintiff has also offered evidence of his belief that Miller should have been fired and that Miller was treated more favorably because he was black.
Brown testified that the personnel problems in the Department of Transportation were not limited to Plaintiff, Thompson, and Miller:
I would agree that that entire transportation area was experiencing workplace issues as evidenced by communication from everybody in that department, whether that was between Mr. Niermeier and Dr. Thompson included. I know that the entire issue was an issue for multiple employees.[ECF No. 31-4 at 41:12-18].
However, Plaintiff has failed to offer evidence that anyone discriminated against him, particularly in the only adverse employment action Plaintiff notes is his termination and the evidence in the record indicates that it was Brown, and no one else, that decided to terminate Plaintiff's employment. As directed by the Fourth Circuit, “[i]n assessing pretext, a court's focus must be on the perception of the decisionmaker ....” Adkins v. CSX Transportation, Inc., 70 F.4th 785, 794 (4th Cir. 2023) (citing Holland v. Wash. Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007)).
In sum, Plaintiff has failed to offer any evidence that he was terminated because he is white or that Defendant's proffered reason for his termination was pretext for discrimination. Additionally, although he may be arguing otherwise [see ECF No. 29 at 13], Plaintiff has offered no evidence or argument that he was treated different from similarly-situated employees, see, e.g., Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator . . . 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.”) (citation omitted)), or that he experienced a “workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim's employment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's Title VII discrimination claim.
2. Title VII Retaliation Claim
Title VII also prohibits an employer from retaliating against an employee for complaining about prior discrimination. Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 249 (4th Cir. 2015) (citing 42 U.S.C. §§ 200e-2(a)(1), 2000e-3(a)). A plaintiff may prove a Title VII retaliation claim either through direct evidence of retaliatory animus or via the application of the McDonnell Douglas burden-shifting framework. Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021) (citing McDonnell Douglas, 411 U.S. 792). Here, where there is no direct evidence of retaliatory animus, the court proceeds under the McDonnell-Douglas framework.
To succeed on such a Title VII retaliation claim, a plaintiff must show that “(1) he engaged in a protected activity; (2) the employer acted adversely against him; and (3) there was a causal connection between the protected activity and the asserted adverse action.” Strothers v. City of Laurel, 895 F.3d 317, 327 (4th Cir. 2018) (quoting Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008)). After a prima facie case is made, the burden shifts to the employer to show that it took adverse action for a legitimate non-retaliatory reason. Roberts, 998 F.3d at 122 (citation omitted). If the employer makes this showing, the burden shifts back to the plaintiff to rebut the employer's evidence by demonstrating the employer's purported non-retaliatory reasons were pretext for discrimination. Id.
The parties dispute whether Plaintiff engaged in a relevant protected activity known to Brown, the sole decisionmaker regarding Plaintiff's termination. The parties additionally dispute the third element of Plaintiff's prima facie case, with Plaintiff arguing his most recent protected activity- his complaint on June 18, 2021-was almost immediately followed by his termination on June 23, 2021. [See ECF No. 29 at 18 (citing Strothers, 895 F.3d at 336 (holding a causal relationship may be established “simply by showing 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”))].
The court also need not resolve this issue. For purposes of resolving Defendant's motion, the court assumes without deciding that Plaintiff has established a prima facie case of retaliation, but his claim fails for the same reasons stated above, where he has failed to show Defendant's proffered reason for his termination is pretext for discrimination. See, e.g., Ketteler v. Serco, Inc., No. C/A No. 2:11-2864-RMG-BHH, 2013 WL 566625, at *5 (D.S.C. Jan. 24, 2013) (collecting cases that while temporal proximity may be sufficient at the prima face case stage, “it is not enough, on its own, to establish pretext”), report and recommendation adopted, C/A No. 2:11-2864-RMG, 2013 WL 557234 (D.S.C. Feb. 13, 2013).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's Title VII retaliation claim.
3. Defamation Claim
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). Malice and damages are presumed in the case where the defamation is actionable per se. See Holtzscheiter, 506 S.E.2d at 502; see also id. (“In other words, if the trial judge can legally presume, because of the nature of the statement, that the plaintiff's reputation was hurt as a consequence of its publication, then the libel is actionable per se. Essentially, all libel is actionable per se.”) (citations omitted).
Slander is a spoken defamation, while libel is a written defamation or one accomplished by actions or conduct.
In briefing and as relevant to this claim, Plaintiff identifies only the WIS News 10 Columbia story titled “Man in charge of overseeing Penny Tax Program fired, sources say,” stating in part as follows:
Richland County Administrator Leonardo Brown confirmed on Friday he fired Richland County Director of Transportation Michael Niermeier Brown said that for the penny program's next leader, he's looking for someone with an engineering background. “One of the things that I shared to the council some time ago, was that the department of transportation I believe needs to be headed up by a professional engineer, someone that can provide technical assistance and guidance to other engineers who are responsible and charged with managing projects,” he said.[ECF No. 31-9]. Plaintiff argues “the evidence in this matter does show a false defamatory statement promulgated to the media by Brown” and that “Brown's statement that he needed someone in the position who ‘can provide technical assistance and guidance to other engineers who are responsible and charged with managing projects' necessarily implies that Plaintiff could not perform the full role of the Director of Transportation position, which is false.” [ECF No. 29 at 22-23 (emphasis in original)].
Defendant objects to the admissibility of this article where Plaintiff has failed to lay a foundation for its admission. [See ECF No. 39 at 8]. However, the court need not address this issue, where Plaintiff has failed to identify a statement made by Brown, including in this article, that is false and defamatory. At most, Brown indicated that Plaintiff did not have an engineering background or was not a professional engineer, something that Plaintiff has not shown to be false or defamatory. See, e.g., Castine v. Castine, 743 S.E.2d 93, 96 (S.C. Ct. App. 2013) (“a sufficient defense is made out where the evidence establishes that the statement was substantially true”) (citation omitted)). This is coupled with Plaintiff's testimony that Brown never informed him or anyone else that he was terminated other than because he lacked the PE credentials, as well as Plaintiff's testimony that he could not identify a defamatory statement made by Brown. [ECF No. 26-2 at 115:10-16].
Accordingly, undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's defamation claim.
The court also rejects Plaintiff's one sentence argument that “[a]t worst, Brown's statement to the media is strong defamation by circumstances, actions, and implication-which is a recognized method for proving defamation in South Carolina.” [ECF No. 29 at 23].
4. Negligent Supervision Claim
Negligence requires: (1) a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, (3) that the breach was the proximate and cause in fact of the plaintiff's injury, and (4) damages caused by the breach. Steinke v. South Carolina Dep't of Labor, Licensing and Regulation, 520 S.E.2d 142 (S.C. 1999).
Negligent supervision cases “generally turn on two fundamental elements-knowledge of the employer and foreseeability of harm to third parties.” Doe v. ATC, Inc., 624 S.E.2d 447, 450 (S.C. Ct. App. 2004). Generally, negligence is a factually controlled concept whose determination best rests with the jury. Faile v. South Carolina Dep't of Juvenile Justice, 566 S.E.2d 536 (S.C. 2002). “Nevertheless, the court should dispose of the matter on a dispositive motion when no reasonable factfinder could find the risk foreseeable or the employer's conduct to have fallen below the acceptable standard.” Doe, 624 S.E.2d at 450.
As to this claim, Plaintiff argues in full as follows:
Here, such a common law theory of negligence is applicable. Plaintiff was owed a duty of care in the property interest that he had in his good name. Plaintiff gave sufficient notice to Defendant's Human Resources and County Administrator of the need to exercise care in the supervision of Brown and Thompson, respectively. Defendant failed to exercise such reasonable care, permitted a scheme of discrimination and retaliation as described above, which ultimately resulted in a pretextual termination. This breach of duty has resulted in substantial damage to
Plaintiff's career. All of the elements of a negligence claim are present, and the claim is valid under South Carolina law.[ECF No. 29 at 24].
Here, where Plaintiff has failed to establish discrimination, retaliation, and pretextual termination, and where Plaintiff argues his negligent supervision claim depends on these, his negligent supervision claim necessarily fails. Additionally, Plaintiff appears to be re-alleging a defamation claim as a negligence claim, where he argues he was owed a duty of care in the property interest that he had in his good name. However, the South Carolina Supreme Court has rejected such attempts. See, e.g., Erickson v. Jones St. Publishers, LLC, 629 S.E.2d 653, 673-74 (S.C. 2006) (“Appellant contends the circuit court erred in granting summary judgment to Newspaper on her cause of action for negligence pursuant to Rule 12(b)(6), SCRCP. We affirm the ruling of the circuit court. A claim that a statement constitutes libel or slander must be brought in a defamation cause of action, which is grounded in and affected by both common and constitutional law.”); see also, e.g., Leask v. Robertson, 589 F.Supp.3d 506, 529 (D.S.C. 2022) (“This is plainly a defamation claim in sheep's clothing. The court thus dismisses plaintiffs' negligence cause of action against Robertson.”).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's negligence supervision claim.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 26].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).