Opinion
C. A. 4:20-4354-SAL-SVH
07-08-2022
Darryl Radford, Plaintiff, v. Hospital Housekeeping Systems LLC, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
In this employment discrimination case, Darryl Radford (“Plaintiff”) alleges that his former employer failed to pay him the full wages owed to him and that he was discriminated against, retaliated against, and wrongfully terminated.
Plaintiff sues Hospital Housekeeping Systems, LLC (“Defendant”), asserting claims of (1) race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), (2) violation of the South Carolina Payment of Wages Act, SC Code Ann. §§ 41-10-10 to -110 (“SCPWA”), and (3) wrongful termination in violation of public policy. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 32]. The motion having been fully briefed [ECF Nos. 38, 40, 44], it is ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Because the motion for summary judgment is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court grant in part and deny in part Defendant's motion.
I. Factual Background
A. Defendant's Policy
Defendant's policy number 223, with an effective date of June 2002 and revision date of January 2013, is entitled “hourly team member holiday, vacation, and bereavement,” and provides in part as follows:
It is against company policy to pay a[] team member for vacation in lieu of taking time off.
Team members are not entitled to any cash value of vacation benefits or termination. Vacation pay will not be paid out upon termination unless the state law where the team member resides requires the payout of unused balances. If the employer's policy over-rides state law in that said state then the unused accrued time will not be paid out.
[ECF No. 32-1 at 2].
B. Plaintiff's Employment
Plaintiff began working for Defendant on or about October 2017, when he was hired as an assistant director for the company's environmental services operations at Mary Black Hospital, a client of Defendant's, in Spartanburg, South Carolina. [ECF No. 27 ¶ 6, ECF No. 38-1 ¶ 1]. In June 2019, Plaintiff was permanently assigned as director to the hospital system of the Medical University of South Carolina (“MUSC”) in Marion County, South Carolina (“MUSC Marion”). [ECF No. 27 ¶ 9]. In his position, Plaintiff was accountable for directing the management of the environmental services department of the hospital, which included organizing and directing a team to maintain the hospital in a clean and safe manner. Id. ¶ 10. Plaintiff managed about 43 employees at MUSC Marion, including housekeepers, floor techs, hazardous waste handlers, and other environmental services personnel responsible for providing a safe, sanitary environment and for preventing hospital-acquired infections. Id. ¶ 13.
In March 2020, as the COVID-19 pandemic became widespread, Defendant deemed Plaintiff and his team essential personnel and provided them a memorandum to keep in their vehicles explaining their role as healthcare workers in case they were pulled over by law enforcement during the quarantine. [ECF No. 27 ¶ 14, ECF No. 38-2].
During this time, Plaintiff's team accumulated Paid Time Off (“PTO”) that they were not allowed to take due to the staff shortage, being deemed essential personnel, and the demands of the job. [ECF No. 27 ¶ 18, ECF No. 38-3 at 142:3-143:5]. As explained by Plaintiff:
We have-we have contractual obligations to the hospital. And in order for us to meet those obligations, everyone on our team
understood that not only were they not going to be given PTO; but they didn't have anywhere to go to use it anyway because of what was going on in the country.
[ECF No. 38-3 at 144:9-15].
In May 2020, MUSC Marion hospital administration informed Plaintiff that Defendant's services would no longer be required, effective August 1, 2020, as the hospital was switching to a different provider, and a new environmental service administrator would be beginning. [ECF No. 27 ¶ 20]. On or about June 15, 2020, Plaintiff learned from the new hospital administration that the company replacing Defendant would not honor his team's accumulated PTO. Id. ¶ 21.
Plaintiff called Justin Hammer (“Hammer”), Defendant's executive vice president, to discuss a plan to allow Plaintiff's team members to use their PTO prior to the end of the contract and alleges in that conversation, Hammer authorized Plaintiff's plan. [ECF No. 27 ¶¶ 16, 21, ECF No. 38:3 at 140:4-142:5]. More specifically, Plaintiff states as follows:
On or about June 15, 2020, Plaintiff learned from the new hospital administration that the company replacing HHS would not honor employees' accumulated PTO. Plaintiff called Hammer that same day and informed him that the employees would be losing their PTO. Plaintiff also told him that several employees had requested that they take the month of July off in order that they be permitted to use their PTO. Hammer said that HHS could not authorize that many employees' PTO because the hospital still had to run. Plaintiff then suggested to Hammer that the employees be permitted to receive PTO for their scheduled days off. He said, “that's fine, as long as everybody is in agreement and our procedures are followed.”
[ECF No. 27 ¶ 21].
Hammer testified he had no recollection of this conversation, but also testified having a conversation about PTO was “very possible” in that “they have PTO and the contract was coming to an end.” [ECF No. 38-5 at 42:144:7]. Hammer testified that it is “solely at the director's discretion to schedule PTO and the schedule coverage for people when they take time off.” Id. at 44:14-17. Hammer also testified that if such a conversation occurred, he “would have just pointed [an employee] to HHS policy.” Id. at 43:16-20.
In July, Plaintiff authorized PTO to be paid to his team members on their scheduled days off, resulting in some team members being paid for 6 or 7 days of work. [See ECF No. 38-3 at 140:19-21, ECF No. 38-7 at 4, ECF No. 27 ¶¶ 22-23].
On July 29, 2020, Plaintiff received a call from Hammer, who asked him about the use of PTO. Plaintiff states the following exchange occurred:
Plaintiff indicated HHS was investigating an impropriety. Plaintiff said HHS was wondering why it was being done this way. Plaintiff explained it was because Hammer had approved him to do it this way. Hammer said, “oh no, no, Daryl, you can't say that.” Hammer told Plaintiff to write an email explaining why he had approved PTO in the manner he had. Plaintiff wrote an email explanation the same day, as directed, and sent it to Hammer.
[ECF No. 27 ¶ 27].
Thereafter, Plaintiff submitted the following to Hammer and others:
In response to your alleging impropriety in my handling of PTO for our tm's at PC #0543, I would submit to you that I have performed my duties with great care and honor in ascertaining the most efficient way to perform our contractual obligations and prevent an entire full-time team from walking out the door in the midst of a pandemic.
I was able to do so while following guidelines set forth in HHS policy #223 which states:
“PAID TIME OFF (PTO) Our paid time off policy is designed to provide you with the opportunity to recover, rest, spend holidays and/or get away from the everyday routine in order to recharge yourself and assist with work/life balance. The paid time off (PTO) benefit is an accrued benefit for full-time team members and should be used to supplement your income for approved scheduled days off, requested holidays off, unexpected sick days, or medical leave due to short[-]term or long-term illness, injury, or medical treatment[.]”
Upon receiving news of the impending loss of the earned PTO that most tenured team members had available to them, and have been largely unable to take due to their dedication and belief in HHS that I was able to establish with them, they were all contemplating taking full advantage of their earned PTO . . . several of which had used none this entire year.
It was through a compromised decision that they would work through this ‘storm' with the understanding that I would approve and submit their PTO as best as possible upon receipt of their formal PTO request.
Our customer has been pleased with the results and work ethic of our team members, our team members have been able to perform their duties with the peace of knowing we are standing behind them, and through all of the ups and downs and constant changes due to COVID-19 . . . have emerged basically unscathed. Our standing and ability to reenter this facility is strong due to the
efforts of myself and team. PTO time has not been abused and was authorized in accordance with policy and procedure. If there is a better way to handle this in the future, I would willingly accept guidance.
Although Plaintiff allegedly quotes Defendant's policy number 223 in this email, the quoted portion does not appear in the exhibit submitted to the court of this policy. [See ECF No. 32-1].
[ECF No. 38-7 at 23].
Plaintiff's employment was terminated “based on violation of PTO policy and payroll practice.” Id. at 2. Plaintiff testified he was never told he was terminated because of his race and the only reason he was given for his termination was that he violated the company's policy in terms of how PTO was to be used. [ECF No. 32-2 at 156:6-20].
Following his termination, Hammer circulated the following email concerning the conversation he had with Plaintiff about his employment being terminated:
I spoke with Darryl regarding our decision based on inappropriate payroll practices. I let him know that upon review of payroll records for the month of July, it was determined that PTO was paid out consistently to team members on their scheduled off days, resulting in many instances of team members getting paid 6 or 7 days per week. This is in violation of the intent of our policy, which is to provide for compensation when missing normally scheduled work days, in order to keep employees “whole.” Had he followed proper reporting policy, this situation could have been handled and possibly avoided. Due to poor decision making and violation of management conduct, we have chosen to separate our employment relationship.
[ECF No. 38-7 at 4].
Plaintiff's last pay statement shows he was a salaried employee, receiving biweekly checks, based upon a presumed 40-hour work week, and that he was paid for 72 hours for this time period. [ECF No. 32-5]. The parties agree that Plaintiff's last day of work was July 30, 2020, prior to the end of the pay period ending August 1, 2020. [See ECF No. 32-5, ECF No. 44 at 2-3]. Plaintiff alleges this paycheck is “short at least $172.26,” and, at the time of separation from employment, he had accrued, and never received compensation for, 120 hours of PTO that he was unable to take due to the pandemic. [ECF No. 27 ¶¶ 34-35].
II. Discussion
A. Standard on 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 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
As an initial matter, the court addresses the parties' numerous evidentiary disputes.
First, on August 10, 2021, Defendant issued requests for admissions to Plaintiff, and the parties agree that Plaintiff did not respond to the requests. [See ECF No. 32-3]. Defendant argues that, pursuant to Fed.R.Civ.P. 36(a)(3), the court should deem Plaintiff's failure to respond as admitting each request. [See ECF No. 32 at 3]. Plaintiff argues that because the requests were sent by email, and Plaintiff's counsel did not give written consent to receipt of discovery via email, nothing has been admitted. [See ECF No. 38 at 10-11 (citing Fed.R.Civ.P. 5(b)(2)(E), (F)); see id. at 11 (“The parties have exchanged some discovery documents by email, however Plaintiff's counsel never consented-in writing or otherwise-to service of requests for admission in this fashion”)].
Fed. R. Civ. P. 5(b)(2)(E) permits a document to be served by “sending it to a registered user by filing it with the court's electronic-filing system or sending it by other electronic means that the person consented to in writing.” Failure to properly serve a request for admission prevents the failure to respond from being deemed an admission. See, e.g., Thomas v. Anderson, C/A No. 1:12-1343, 2020 WL 1042517, at *2 (C.D. Ill. Mar. 4, 2020) (citing Cox v. Sherman Capital, C/A No. 12-1654, 2013 WL 2432148, at *1-2 (S.D. Ind. June 4, 2013)).
No party has argued, nor does the record indicate, express consent in writing by Plaintiff to receive service by email. Accordingly, because service of the requests for admission at issue was improper due to a lack of consent to electronic service, the requests are not deemed admitted.
The court rejects Defendant's implied argument that Plaintiff waived any objection to service by email by using email to serve discovery. The Advisory Committee's notes as to Fed.R.Civ.P. 5(b)(2) states “consent must be express, and cannot be implied from conduct.” See also 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1147 (4th ed. 2015) (“[C]onsent cannot be inferred from the conduct of the intended recipient”).
Second, in support of his response to summary judgment, Plaintiff makes extensive reference to facts alleged in his unverified, second amended complaint. In conjunction with his response, Plaintiff has submitted an “affidavit and verification,” stating in part as follows:
Plaintiff's second amended complaint is unverified, as Plaintiff's counsel did not certify that the allegations therein are true and correct. As appliable here and pursuant to 28 U.S.C.A. § 1746, unsworn declarations may substitute for an affiant's oath if the statements contained therein are made “under penalty of perjury” and verified as “true and correct.”
Additionally, I have reviewed my Second Amended Complaint. I have read the allegations contained therein and know the same are true, based upon personal knowledge, except those stated to be based upon information and belief, and as to those, I believe them to be true.
[ECF No. 38-1 ¶ 8]. Plaintiff includes at the end of this affidavit, that he “declare[s] under penalty of perjury that the foregoing is true and correct.” [ECF No. 38-1 ¶ 8, see also ECF No. 40 at 1 (Defendant arguing in part that “[a]t this point in the litigation, unsupported allegations contained in the Complaint are not sufficient to survive Summary Judgment.”)].
As a general rule, when one party files a motion for summary judgment, the non-movant cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or the like, respond to the motion. Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(c). However, as has been held many times in this Circuit, verified complaints by plaintiffs proceeding pro se are to be considered as affidavits when the allegations contained therein are based on personal knowledge. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Here, however, Plaintiff is not proceeding pro se, Plaintiff's second amended complaint is not verified, and Plaintiff's attempts to use his unverified second amended complaint to oppose summary judgment appear insufficient where Plaintiff has verified his affidavit, but has not sworn under the penalty of perjury that the contents of his unverified second amended complaint are true. See, e.g., Petty v. Krause, C/A No. 1:10-573, 2012 WL 2513506, at *1 n.1 (M.D. N.C. June 28, 2012) (“an affidavit-or its equivalent, a verified complaint-is insufficient to oppose a motion for summary judgment unless it is sworn to be true or made under penalty of perjury .... Here, Petty's complaint, while notarized, is neither sworn to be true nor signed under penalty of perjury. Thus, it is insufficient to oppose a motion for summary judgment”); Hiramanek v. Clark, C/A No. 5:13-00228-RMW, 2016 WL 6277237, at *2 (N.D. Cal. Oct. 27, 2016) (single sentence in declaration purporting to incorporate allegations of complaint “as though within my personal knowledge and attested by me” did not transform complaint into verified complaint; plaintiff did not swear under penalty of perjury that contents of the complaint were true); Bhatia v. Vaswani, C/A No. 18-2387, 2021 WL 2254963, at *4 (N.D. Ill. June 3, 2021) (noting “28 U.S.C. § 1746 does not require the verification to be in the exact form quoted in the statute” and holding as sufficient a plaintiff attesting “to his belief that the facts alleged in the Complaint are true and that he is declaring so under penalty of perjury”) (collecting cases)); see also Gupta v. Green, 109 Fed.Appx. 992, 993 (9th Cir. 2004) (“Gupta's declaration under penalty of perjury merely swore that he did indeed incorporate the statement of facts in his amended complaint, not that the statements in that unverified complaint were true.”).
However, the court need not resolve this issue where consideration of the allegations Plaintiff submitted in his second amended complaint do not alter the recommendations contained herein. Therefore, relevant facts as alleged in Plaintiff's second amended complaint have been included in the factual background section above and considered in the analysis section below.
Turning to the parties' final evidentiary dispute, Defendant has submitted with its reply, policy number 112, with an effective date of February 1999, revision date of December 2020, entitled “management paid time off.” [ECF No. 40-1]. Plaintiff has submitted a surreply, arguing in part this evidence should not be considered because (1) it was not submitted with Defendant's motion for summary judgment, (2) the document did not exist in the form presented at the time of Plaintiff's employment with Defendant in that Plaintiff's last day of employment was July 30, 2020, and (3) it is an unsworn, unauthenticated document. [ECF No. 44 at 2-3].
The court also need not resolve this issue where the undersigned has not relied on Defendant's policy number 112 in issuing the instant report and recommendation.
The undersigned notes that Plaintiff does not challenge the authenticity of the document submitted, only the admissibility. However, in this Circuit, “[i]t is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment.” Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993).
1. Title VII Discrimination
Absent evidence of direct discrimination, Plaintiff may use the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove claims of race 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); see also King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (“To establish a prima facie case of discriminatory discharge, [a plaintiff] must show: (1) that he is a member of a protected class; (2) that he suffered from an adverse employment action; (3) that at the time the employer took the adverse employment action, he was performing at a level that met his employer's legitimate expectations; and (4) that the position was filled by a similarly-qualified applicant outside the protected class.”)].
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 by Defendant 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.
Even assuming Plaintiff can establish a prima facie case of race-based employment discharge, he has failed to demonstrate that the legitimate reason produced by Defendant for his termination, a violation of PTO policy and payroll practice, is pretext for discrimination.
Plaintiff disagrees, primarily arguing that he received permission from Hammer to approve time off for his team members “that sometimes caused employees to exceed compensation beyond 40 hours a week,” and he was fired, notwithstanding. [ECF No. 38 at 14]. Accepting Plaintiff's evidence as true, this evidence does not give rise to an indication that he was fired for unlawful reasons. As stated by the Fourth Circuit, even if a plaintiff is wrongly fired for misconduct, conduct he did not even engage in, “that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.” Powell v. Biscuitville, Inc., C/A No. 20-2378, 2021 WL 2434011, at *2 (4th Cir. June 15, 2021) (citing Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017)). The court does not “sit as a superpersonnel department, weighing the prudence of employment decisions made by the defendants.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998) (holding that pretext is not a vehicle for substituting the court's judgment for that of the employer). The court need not decide “whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted); see also Glover v. Lockheed Corp., 772 F.Supp. 898, 902 (D.S.C. 1991) (“Mr. Glover's complaint sounds more in unfair employment treatment than in racially discriminatory treatment .... Although the plaintiff may feel he was treated unfairly, he has not shown that he was discriminated against, and therefore has failed to make out a Title VII claim”).
Plaintiff additionally argues that Defendant's reason for terminating his employment-a supposed policy violation-is not true in that “there is ample evidence that payment in excess of 40 hours a week was an accepted and widespread practice for Defendant's directors.” [ECF No. 38 at 15]. However, the evidence provided by Plaintiff does not support his argument.
Plaintiff submits testimony from Kevin Radford (“Radford”), a former director who had been in the same position as Plaintiff, but at a different hospital. Radford's testimony is not clear. Generally, he testified as to practices not at issue here, such as when PTO had already been requested and an employee appeared for work anyway. [ECF No. 38-3 at 18:3-22:25]. Radford testified that in such an instance, Defendant would still pay the PTO, and this practice was “standard practice” for “[p]robably every director in the South Atlantic.” See id. Radford also testified that he personally had approved time sheets for employees for more than 40 hours including PTO, but “[m]ost of the time” payroll would remove the PTO where he had entered PTO for a day that a person worked eight hours, a practice also not at issue here. Id. at 81:23-82:20.
Plaintiff informs the court that Radford is his brother. [See ECF No. 38 at 16].
Similarly, Plaintiff submits testimony from Lisa Molnar (“Molnar”), Defendant's president of human capital management, in which she testified if an employee worked overtime, that employee could still take PTO. [ECF No. 38-9 at 41:4-15]. This also does not support Plaintiff's position.
Potentially as to the practice at issue here, Radford did state numerous times, generally, that employees had been paid more than 40 hours due to payment of PTO with no problems. See id. at 77:20-78:4, 82:10-82:20. Radford also testified there were white directors who had approved time sheets that would show an excess of 40 hours with the PTO putting them over 40 hours, id. at 89:8-13, but when asked to specify who and under what circumstances Radford was informed about this, Radford struggled to identify a specific person or instance, see id. at 89:14-92:12. Additionally, the following interchange occurred:
Q: Okay. When you say that you had these conversations about getting people in and getting people to work and not being able to use overtime, is that in reference to allowing workers to take annual leave that would put them in excess of 40 hours for a pay period or pay for a week? ....
A: I can't recall specifically who, what, when, and where. I'm sure this question will be asked next. But yes, because if you think about it, HHS has a policy to maximize to the 144 hours. So after 144 hours, you stop accumulating leave. So therefore you're -technically you're working for free. So therefore there's been numerous times where people may have had people who exceeded 144 hours, but they may allow them to use PTO in addition to regular hours because they're not taking any time off, but now they're getting penalized because they're not taking time off. So that's the way you compensate them for that as well.Id. at 91:19-92:12.
As seen above, when pressed regarding the practice at issue here, Radford's testimony is unclear. Plaintiff has not submitted evidence, via Radford or his own amended complaint, deposition, or affidavit, that other managers, except for perhaps his brother Radford, utilized PTO in the way in which Plaintiff did. Therefore, Plaintiff has failed to support his assertion that the practice for which he was fired was commonplace, sufficient to indicate pretext.
Additionally, Defendant has submitted evidence that it was “against company policy to pay any team member for vacation in lieu of taking time off.” [ECF No. 32-1 at 2]. Plaintiff argues he “did not approve paying team members for vacation in lieu of taking time off, rather he approved time off that sometimes caused employees to exceed compensation beyond 40 hours a week.” [ECF No. 38 at 14]. Plaintiff may be taking issue with the word vacation versus PTO. Notwithstanding, it appears undisputed that Plaintiff approved paying team members in lieu of time the team member would have taken off.
Plaintiff additionally argues that he has submitted evidence of discriminatory intent, in that “several white directors that have made serious errors causing significant harm to Defendant yet had not been terminated, as Plaintiff was.” [ECF No. 38 at 20-21]. More specifically, Plaintiff argues:
• Kristi McConnell, a white female, struggled due to her inability to properly manage her team and hospital (Mary Black). In Plaintiff's brief assignment to Mary Black hospital, he quickly turned around the hospital. Despite her inability as a manger, she was promoted to a higher assignment while Plaintiff was relegated to additional Assistant Director assignments for 18 months.
• James Mollendahl, a white male, was a Director at Trident Hospital whose underperformance put HHS' contract in jeopardy. Mollendahl kept his Director title and was reassigned to a different hospital. Hammer testified that Mollendahl's performance at Trident “wasn't very good,” but confirmed that he is still employed with Defendant[.]
• David Smith, a white male, was another Director with performance issues. He was assigned to Savannah Memorial Hospital. His hospital had failing metrics and Plaintiff was sent to help him correct them. When Plaintiff left, Smith reverted to his previous ineffectual management, leading to the loss of HHS's contract. Smith kept his Director title and was reassigned. Hammer confirmed that Smith was removed for poor performance and that Smith was ultimately demoted for programcompliance issues. However, Hammer did not indicate that Smith was terminated.Id. at 7-8 (citations omitted).
Plaintiff additionally argues that a white male was offered approximately $25,000 more than Plaintiff for the position of director of environmental services at the Summerville Medical Center in February 2020. [See ECF No. 38 at 8]. Plaintiff has not stated a claim for disparate pay, and this information, without more, is insufficient to create a triable issue as to claims he has stated.
The comparator evidence offered by Plaintiff fails to raise a triable issue of fact. Plaintiff has failed to offer a relevant comparator who engaged in the same conduct he did and instead has offered evidence concerning different actions taken by different directors at different locations with different responses by unknown supervisors. “To establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (citations omitted). Here, Plaintiff has failed to submit evidence that the white directors “engaged in the same conduct” as he did such that they could be viewed as valid comparators.
Plaintiff also notes that Radford testified that six of the seven black directors that he recruited to work for Defendant have been terminated. [ECF No. 38 at 20-21 (citing ECF No. 38-8 at 40:8-14)]. Radford further testified that of those seven people, including himself and Plaintiff, two quit, one was fired because an inspection was not done on a cleaning process in an operating room, one was fired following sexual harassment allegations, and one was fired related to unknown performance issues. [ECF No. 38-8 at 40:948:12]. To the extent that Plaintiff submits this evidence as statistical proof indicating discrimination, the Fourth Circuit has held that statistics can provide “important proof of employment discrimination” and may be used to “establish an inference of discrimination as an element of plaintiff's prima facie case,” but the proper inquiry in a case of discrimination in hiring or promoting is a comparison between “the percentage of minority employees and the percentage of potential minority applicants in the qualified labor pool.” Carter v. Ball, 33 F.3d 450, 456 (4th Cir. 1994). Here, the evidence on record is insufficient to establish an inference of discrimination.
Accordingly, the undersigned recommends Defendant's motion be granted as to Plaintiff's Title VII discrimination claim.
2. Title VII Retaliation
Title VII prohibits an employer from retaliating against an employee because the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a). To make a prima facie claim of retaliation, a plaintiff must show: (1) that he engaged in protected activity, (2) that the employer took a materially adverse action against him, and (3) there is a causal connection between the protected activity and the adverse action. See Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019) (citing Burlington N & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)).
As stated by the Fourth Circuit
A plaintiff has two potential avenues to avoid summary judgment in a Title VII retaliation claim .... She may, under what has been referred to as the “mixed-motive” framework, present direct and indirect evidence of retaliatory animus that creates a genuine issue of material fact. Or she may proceed under the McDonnell Douglas pretext framework.Evans, 936 F.3d at 194 n.5. Here, the court analyzes both Plaintiff's discrimination and retaliation claims under the McDonnell Douglas pretext framework where he has presented no direct evidence of discrimination or retaliatory animus.
Plaintiff argues he sent a July 8, 2020 email to Hammer, expressing concerns regarding the equity of assignments given to him, and within three weeks of Plaintiff's email, Hammer terminated him. [ECF No. 38 at 21 (citing ECF No. 38-6)]. Plaintiff argues “[t]he proximity in time between Plaintiff's complaint and Defendant's termination of him, the fact that he was being terminated by the same manager to whom he made the complaint, and the pretextual nature of the reason for discharge, constitute a dispute of material fact.” Id.
Defendant has submitted evidence that Hammer did not make the decision to terminate Plaintiff's employment. [See ECF No. 38-7, ECF No. 32-6 at 56:5-23 (Hammer testifying that Molnar directed him to terminate Plaintiff's employment)].
Regarding temporal proximity, the Fourth Circuit has stated “[a] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004) (citations omitted). Additionally, the “temporal proximity between an employer's knowledge of protected activity and an adverse employment action” must be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citations omitted).
Here, it is unnecessary to determine whether Plaintiff has carried his burden to establish a prima facie case of retaliation through temporal proximity because, even assuming Plaintiff could, he would still bear the burden of establishing Defendant's proffered explanation was pretext for Title VII retaliation. As discussed above, Plaintiff has failed to provide any evidence Defendant's alleged non-discriminatory reason for terminating Plaintiff is pretextual justification for either illegal Title VII discrimination or retaliation.
Accordingly, the undersigned recommends Defendant's motion be granted as to Plaintiff's Title VII retaliation claim.
3. SCPWA Claim
Under South Carolina law, an employer must pay all wages due to an employee as provided by S.C. Code Ann. §§ 41-10-40 or 41-10-50. “Vacation, holiday, and sick leave payments which are due to an employee under any employee policy” are specifically included in the definition of “wages” in the SCPWA. S.C. Code Ann. § 41-10-10(2). “When an employer separates an employee from the payroll for any reason, the employer shall pay all wages due to the employee within forty-eight hours of the time of separation or the next regular payday which may not exceed thirty days.” S.C. Code Ann. § 4110-50.
Plaintiff first argues Defendant has violated the SCPWA for failure to pay him for his accrued 120 hours of PTO. Defendant argues “the only time a company operating in South Carolina would be required to pay PTO at termination is if there was a company policy, practice or contract that required it,” and, in this case, “[n]o such policy, practice or contract exists.” [ECF No. 32 at 6 (citing ECF No. 32-1 (Defendant's policy as to hourly team members stating “[t]eam members are not entitled to any cash value of vacation benefits upon resignation or termination”))].
Plaintiff submits no argument or evidence that such a policy, practice, or contract exists, and, in his deposition, he testified as follows:
Q: Paid time off is a benefit that you accrue while you're working, correct?
A: Correct.
Q: And in order to get the benefit of that you have to use it because, if you go to another job or get fired, you don't take that benefit with you after you leave-
A: Correct
Q: -the company, right?
A: That is correct.
Q: So it's a use it or lose it type benefit, correct?
A: That's correct.
[ECF No. 32-2 at 86:14-87:1].
Plaintiff argues-without addressing his testimony above-that Defendant has failed to provide “a policy giving it the right to withhold accrued PTO to salaried employees such as Plaintiff,” where Defendant has submitted a policy applicable only to hourly employees. [ECF No. 38 at 1112]. Plaintiff has also submitted the somewhat confusing testimony from Molnar, that appears to address PTO payouts when a hospital loses a contract verses when an employee is terminated, as follows:
Q: Okay. Now, Ms. Molnar, are you aware whether HHS pays out leave for individuals when hospitals lose contracts?
A: We do not pay out leave ....
Q: There are occasions when HHS pays out accrued PTO for individuals who are separated from employment, aren't there?
A: Yes.
Q: Okay. And there are occasions when HHS pays out leave to individuals who work at hospitals at which HHS has lost contracts before, right?
A: Yes ....
Q: It wouldn't be unheard of for HHS to pay out PTO leave to individuals who are no longer-or about to be separated from employment, correct?
A: Yes.
[ECF No. 44 at 3 (citing ECF No. 38-9 at 17:5-18:5 (objections removed))].
Here, Defendant has submitted limited argument and evidence that it did not pay PTO at termination, and Plaintiff has failed to rebut that evidence, nor otherwise present a bona fide dispute on this issue. See, e.g., Amelia Salters, f/k/a Amelia Woods v. Condolux, Inc., C/A No. 4:14-2435-BHH-TER, 2016 WL 3411555, at *9 (D.S.C. May 20, 2016) (“Plaintiff has failed to put forth sufficient evidence to create an issue of fact as to whether she was entitled to any bonus at the time of her termination in March of 2012. Therefore, summary judgment is appropriate on Plaintiff's claim for violation of the SCPWA.”), report and recommendation adopted sub nom. Salters v. Condolux Inc., C/A No. 4:14-2435-BHH, 2016 WL 3351357 (D.S.C. June 16, 2016).
Plaintiff additionally argues he was not paid the full amount he was due for work he completed in his last paycheck. Submitting Plaintiff's pay stub in support, Defendant argues as to Plaintiff's last week, “he was terminated prior to the end of the pay period and paid only for the days worked, which was equivalent to Seventy Two (72) hours,” and this amount “represents full payment for the time worked.” [ECF No. 32 at 4]. Plaintiff, in response, submits evidence that he worked more than 40 hours in each of the last two weeks in question and that he was unaware of any policy that would justify a deduction from his wages. [ECF No. 38 at 12-13 (citing ECF No. 381 ¶¶ 1-7 (“I should have been paid my full paycheck . . . as I had worked in excess of 40 hours during both weeks, even though HHS terminated me prior to end of the second week”))].
The only evidence presented by Defendant on this claim is Plaintiff's last two paystubs. Given Plaintiff's unrebutted evidence that he worked more than 80 hours during his last two weeks of employment, and the paystub evidence indicating that Plaintiff was compensated for only 72 hours, a genuine dispute exists as to whether Defendant paid Plaintiff the full amount of wages he was owed. Accordingly, the undersigned recommends granting in part and denying in part Defendant's motion as to Plaintiff's SCPWA claim, allowing this claim to proceed regarding wages allegedly owed by Defendant on Plaintiff's last paycheck.
Defendant argues “[it] does not matter if Plaintiff worked in excess of 40 hours in a week as he was not eligible for overtime and was paid a salary,” but offers not evidence in support. [See ECF No. 40 at 3].
4. Discharge in Violation of Public Policy Claim
Plaintiff also asserts a claim for discharge in violation of public policy, arguing it is a violation of public policy “for an employer to discharge an employee for approving and facilitating the payment of accrued wages, including earned and accrued PTO leave.” [ECF No. 38 at 13].
South Carolina law provides, “[u]nder the ‘public policy exception' to the at-will employment doctrine, . . . an at-will employee has a cause of action in tort for wrongful termination where there is a retaliatory termination of the at-will employee in violation of a clear mandate of public policy. The public policy exception clearly applies in cases where either: (1) the employer requires the employee to violate the law or (2) the reason for the employee's termination itself is a violation of criminal law.” Barron v. Lab. Finders of S.C., 713 S.E.2d 634, 636-37 (S.C. 2011) (citations omitted). However, “[t]he public policy exception does not . . . extend to situations where the employee has an existing statutory remedy for wrongful termination.” Id. at 637.
It appears that Plaintiff is arguing that he was bound by the SCPWA to provide his employees with the PTO owed to them prior to their termination. Plaintiff has failed to submit evidence or argument that Defendant required Plaintiff to violate the SCPWA or that Plaintiff's termination was itself a violation of criminal law. See Anselmo v. West Paces Hotel Group, LLC, C/A No. 9:09-2466-MBS, 2011 WL 1049195, at *10 (D.S.C. Mar. 18, 2011) (“the South Carolina Payment of Wages Act creates a right to be paid wages due based upon an employment contract .... [t]he contract is the source of the right to wages for PTO, not the South Carolina statute”).
Because the SCPWA contains no “clear public policy” that has been violated, the undersigned recommends Defendant be granted summary judgment on this claim.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendant's motion for summary judgment [ECF No. 32], allowing Plaintiff's SCPWA claim to proceed regarding wages allegedly owed by Defendant on Plaintiff's last paycheck.
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).