Opinion
Civil Action 3:20-cv-1008-MGL-TER
12-22-2021
KENNY ROSE, Plaintiff, v. SUMTER COUNTY SCHOOL DISTRICT and in her individual capacity BERTHA M. TIMMONS, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This action arises from Plaintiff's employment with Defendant Sumter County School District (the District). Plaintiff originally file this case in the Court of Common Pleas for Sumter County, South Carolina. Defendants removed the action to this court as having jurisdiction under 28 U.S.C. § 1331. Plaintiff alleges causes of action for discrimination and retaliation in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. as well as state law causes of action for assault, battery, and negligent supervision. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 28). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff was employed by the District as a Guidance Counselor and Director of Guidance. Pl. Resume (ECF No. 42-1). Defendant Bertha Timmons is the Assistant Principal at Crestwood High School where Plaintiff worked until January of 2019. Timmons Dep. 15 (ECF No. 42-3). Dr. Shirley Gamble is the Principal of Crestwood High School. Gamble Dep. 13 (ECF No. 42-2).
On May 29, 2018, Plaintiff entered the cafeteria to get food, but was interrupted by Timmons while Plaintiff was talking to colleagues. Breland Dep. 18-20 (ECF No. 42-4); Koumas Dep. 12-13 (ECF No. 42-5); Fulwood Dep. 23-24 (ECF No. 42-6); Nelson Dep. 11-12 (ECF No. 42-7). While talking with his colleagues, Timmons approached Plaintiff and demanded information about the master schedule, raising her voice at Plaintiff and was adamant that her questions be answered immediately. Pl. Dep. 82-83 (ECF No. 28-2). Defendant Timmons testified the opposite, stating that she was in the cafeteria setting up for an event when Plaintiff asked her questions about the master schedule in a loud of aggressive manner. Timmons Dep. 25 (ECF No. 42-3); Fulwood Dep. 23-24 (ECF No. 42-6). Plaintiff found Defendant Timmons' behavior as an assistant principal to be unprofessional and unbecoming, so Plaintiff raised concerns to Dr. Gamble and the Chief Human Resources Director, Dr. John Koumas. Koumas Dep. 30 (ECF NO. 42-5).
For the 2018-19 school year, Timmons was assigned to oversee and supervise the guidance department. Timmons Dep. 24 (ECF No. 42-3). At the beginning of the school year, in August 2018, Plaintiff and the other guidance counselors, Cassandra Breland and Shirley Nelson, met with Dr. Gamble regarding problems they were having with administration in order to perform their job duties as well as their concerns with Timmons' behavior. Pl. Dep. 34-37 (ECF No. 28-2); Nelson Dep. 15 (ECF No. 42-7); Wilson Dep. 17-19 (ECF No. 42-8); see also Rule 30(b)(6) Dep. 11-12 (ECF No. 42-9) (identifying the guidance job duties); Timmons Dep. 47-48 (ECF No. 42-3).
On August 28, 2018, Timmons entered Plaintiff's office while he was meeting with a student, and demanded a meeting with the counselors immediately regarding changes to the master schedule set by her and Dr. Gamble. Both the student with whom Plaintiff was meeting and other students waiting outside Plaintiff's office witnessed Timmons' behavior. Pl. Letter to Dr. Koumas dated 12-2-18 (ECF No. 42-22).
On September 6, 2018, or September 10, 2018, Plaintiff provided a medical statement from Dr. Clay Lowder to Dr. Gamble stating that he would need one to two days off per week, as needed for severe anxiety for six months. Doctor's Note (ECF No. 28-2, p. 39); Dr. Gamble's Notes (ECF No. 28-2 pp. 34-37). In an email to Dr. Koumas, Dr. Hafner, the Assistant Superintendent for the District, and Dr. Hamm, the Superintendent, dated September 26, 2018, Plaintiff provided the medical statement and indicated that it had already been provided to Dr. Gamble. Email dated 9-26-18 (ECF No. 42-15). In the email, he indicated that his medical issues have returned due to working in an increasingly hostile work environment, requiring him to seek ongoing medical attention. Email dated 9-26-18 (ECF No. 42-15).
The medical note is dated September 6, 2018. Doctor's Note (ECF No. 28-2, p. 39). Dr. Gamble's notes indicate that Plaintiff presented it to him on September 10, 2018. Dr. Gamble's Notes (ECF No. 28-2 pp. 34-37).
On September 7, 2018, Timmons wrote a letter to Dr. Gamble about Plaintiff, which the District interpreted as a hostile work environment grievance against Plaintiff. Timmons Dep. 56 (ECF No. 42-3); Timmons 9-7-18 Letter (ECF No. 42-10). Nelson testified that she never witnessed Plaintiff subjecting Timmons to hostile treatment. (Nelson Dep. 27:8-12).
Hattie English, the guidance secretary testified that Timmons' interactions with Plaintiff continued to be aggressive and communicated in a loud voice while Plaintiff maintained a professional demeanor when he interacted with Timmons. English Dep. 8-9, 20-21 (ECF No. 42-18). On October 18, 2018, Plaintiff sent Dr. Koumas an email, which in part stated: “Not awfully long after we talked on yesterday, I started to experience another anxiety attack and had to leave at Mid-Day. I will be out today seeking medical attention because of the anxiety attack on yesterday in which I am still experiencing this morning.” Email from Pl. to Dr. Koumas dated 10-18-18 (ECF No. 42-20). On November 8, 2018, Dr. Koumas sent a response to Plaintiff's September 26, 2018 email, providing a packet of FMLA materials to utilize for Plaintiff's intermittent medical leave reasonable accommodation request. Dr. Koumas Letter dated 11-8-18 (ECF No. 42-21); Pl. Email dated 9-26-18 (ECF No. 42-15). Plaintiff and his doctor completed the FMLA paperwork and returned it to the District by November 26, 2018. FMLA Forms (ECF No. 28-2, pp. 53-60).
On November 20, 2018, Plaintiff reported concerns regarding both Timmons and Gamble in writing to the District. Pl. Memo. (ECF No. 28-2 pp. 50-51). On December 2, 2018, Plaintiff outlined the series of encounters with Timmons to Dr. Koumas. Pl. Letter to Dr. Koumas dated 12-2-18 (ECF No. 42-22). On December 3, 2018, Plaintiff met with Dr. Koumas and reported that he was still working in a hostile work environment, and this was also brought to Dr. Hafner. Dr. Hafner's Notes (ECF No. 42-23). The next day, December 4, 2018, Dr. Koumas met with Timmons and Plaintiff to address the grievance. At the conclusion of that meeting, Timmons believed she and Plaintiff were going to be able to work together because they both indicated that is what they wanted. Timmons Dep. 60 (ECF No. 42-3).
On December 19, 2018, Plaintiff was called to Shirley Nelson's office approximately an hour prior to the start of Christmas break to discuss a guidance matter regarding the District's GBE policy. Pl. Statement (ECF No. 28-2 p. 99). This meeting included Plaintiff, Timmons, Nelson, and Breland. Nelson Dep. 92 (ECF No. 42-7). At this meeting, Timmons confronted Plaintiff in a hostile and threatening manner. Pl. Statement (ECF No. 28-2 p. 99). Timmons got into Plaintiff's personal space, putting her hand in his face and pointing her finger. Pl. Statement (ECF No. 28-2 p. 99); Nelson Dep.37-38 (ECF No. 42-7). Timmons was irate and yelled that she was their supervisor, not Plaintiff. Pl. Statement (ECF No. 28-2 p. 99); Nelson Dep.37-38 (ECF No. 42-7). Timmons used threatening body language and then pointed to Breland and Nelson and said they may be afraid of you but not Bertha Timmons. Nelson Dep. 31-32, 96- 97 (ECF No. 42-7). Plaintiff remained calm during the confrontation and told Timmons that she could speak to Dr. Gamble if she had any issues. Nelson Dep. 33 (ECF No. 42-7). Timmons continued to state that she was not intimidated by Plaintiff in a very loud voice. Nelson Dep. 31-32, 96- 97 (ECF No. 42-7). Nelson and Breland co-wrote a summary of their observations of the incident and Nelson reported the incident to Dr. Gamble. Nelson and Breland Statement (ECF No. 28-2 p. 101); Breland Dep. 27 (ECF No. 42-4); Nelson Dep. 35-37 (ECF No. 42-7).
Following the meeting, Plaintiff reported to Dale Wilson, the administrator over employee attendance that the incident was very upsetting to him because of medical reasons and he needed to go home. Pl. Statement (ECF No. 28-2 p. 99); Wilson Dep. 28-29 (ECF No. 42-8). He went to Urgent Care the next morning to seek medical attention. Pl. Statement (ECF No. 28-2 p. 99).
Plaintiff also reported the incident to Dr. Gamble in an email entitled Hostile Work Environment Incident 12.19.18 on December 31, 2018. Pl. Compl. to Dr. Gamble (ECF No. 42-25). Dr. Gamble forwarded the email to Dr. Koumas and Dr. Hafner. Pl. Compl. to Dr. Gamble (ECF No. 42-25).
On January 9, 2019, Plaintiff sent an email to the District's Board of Trustees, Dr. Koumas, and others entitled Hostile Work Environment and requested to meet with the Board on January 14, 2018. Pl. Email dated 1-9-19 (ECF No. 42-27). Also on January 9, 2019, Dr. Gamble issued a letter of caution to Plaintiff for not responding to her request for a meeting with a parent. Dr. Gamble Letter dated 1-9-19 (ECF No. 42-29). On January 10, 2019, Dr. Koumas sent Plaintiff a letter addressing both Plaintiff's and Timmons' complaints of a hostile working environment and scheduling a meeting with Plaintiff, Dr. Gamble, and Dr. Hafner for January 11, 2019. Dr. Koumas Letter dated 1-10-19 (ECF No. 28-2 pp. 78-79).
On January 11, 2019, Plaintiff met with Dr. Koumas, Dr. Gamble, and Dr. Hafner. Recording of 1-11-19 Meeting (ECF No. 42-30); Pl. Notes (ECF No. 42-31). Plaintiff relayed his concerns regarding Timmons and the hostile work environment which caused him ongoing stress. Gamble Dep. 4-14 (ECF No. 42-2). He also requested that another administrator be assigned to oversee the guidance department at Crestwood High School, but if that was not possible, that Plaintiff be transferred to another school. Gamble Dep. 80-81 (ECF No. 42-2); Pl. Dep. 159 (ECF No. 28-2). Effective January 21, 2019, Plaintiff was transferred to the Adult Education Center (AEC) for the remainder of the 2018-19 school year. Dr. Koumas Letter dated 2-12-19 (ECF No. 28-2 pp. 81-82).
Plaintiff requested a restraining order against Timmons in Magistrate's Court on January 18, 2019. Motion for Restraining Order (ECF No. 28-2 pp. 84-85). On January 30, 2019, the Magistrate Judge entered an Order for Dismissal stating that the matter did not involve the “intrusion into the private life” of Plaintiff as required by S.C. Code Ann. § 16-3-1700, but was a personnel matter more appropriately addressed by the District. Order for Dismissal (ECF 28-2, pp. 87-88).
In a meeting with Dr. Koumas on May 16, 2019, Plaintiff was informed that he was being reassigned as the guidance counselor at Ebenezer Middle School for the 2019/2020 school year. Dr. Koumas Letter dated 6-5-19 (ECF 28-2, pp. 90-91). After that meeting, Plaintiff requested reconsideration of the reassignment and he requested a meeting to discuss it. Pl. Email to Dr. Koumas (ECF 28-2 p. 93). On June 6, 2019, Plaintiff met with Dr. Hamm and Dr. Koumas regarding the reassignment. Recording 2019-6-6 Meeting (ECF No. 42-36). Dr. Hamm denied Plaintiff's request to remain at the AEC.
On August 6, 2019, Plaintiff submitted his notice of retirement effective September 13, 2019. Pl. Email dated 8-6-19 (ECF No. 28-2 p. 97).
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position 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.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. ADA
1. Hostile Work Environment
Plaintiff alleges that Defendants subjected him to a hostile work environment which ended in constructive discharge because of his disability in violation of the ADA. The ADA provides:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112(a). To establish a hostile work environment claim under the ADA, Plaintiff must prove that “(1) he is a qualified individual with a disability; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis exists to impute liability for the harassment to the employer.” Mason v. Wyeth, Inc., 183 Fed.Appx. 353, 360 (4th Cir. 2006) (quoting Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001)).
Defendants first argue that Plaintiff is not a qualified individual with a disability. The ADA defines “disability” as: "(1) ‘a physical or mental impairment that substantially limits one or more major life activities' (the ‘actual-disability' prong); (2) ‘a record of such impairment' (the ‘record-of' prong); or (3) ‘being regarded as having such an impairment' (the ‘regarded-as' prong).” Summers v. Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014); see 42 U.S.C. § 12101(1). A “qualified individual” includes: “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(a)(8).
“The stated goal of the ADAAA is to expand the scope of protection available under the Act as broadly as the text permits.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 573 (4th Cir. 2015) (quoting Summers v. Altarum Inst., Corp., 740 F.3d 325, 332 (4th Cir. 2014)). The ADAAA regulations define a substantially limiting impairment as one that “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). During his deposition, Plaintiff asserted that he was disabled due to severe anxiety, heart palpitations and depression. Pl. Dep. 184 (ECF No. 28-2). Defendants assert that Plaintiff fails to show that these impairments substantially limited any major life activity. Plaintiff asserts that the FMLA documentation completed by his doctor shows that he was substantially limited in the major life activities of breathing, working, and walking. FMLA Forms (ECF No. 28-2 pp. 53-60). On the FMLA forms, Plaintiff's doctor makes no mention of heart palpatations or depression, though he does state that Plaintiff was diagnosed with “anxious and panicky.” FMLA Forms (ECF No. 28-2 p. 56). The doctor also states that Plaintiff may need to be absent from work 1-2 times per week for 2-3 months for “feeling anxious and panicky or shortness of breath.” FMLA Forms (ECF No. 28-2 p. 57). Plaintiff's request to be absent from work 1-2 times per week is enough to at least create an issue of fact as to whether Defendant regarded Plaintiff as having an impairment that substantially limited him in the major life activity of working.
Plaintiff alleges in his complaint that he is substantially limited in the major life activities of talking, sleeping and learning. Compl. ¶ 53. However, Plaintiff fails to point to evidence in the record to support these alleged limitations.
However, Plaintiff fails to show that he was subjected to a hostile work environment because of his disability. Plaintiff asserts that he was subjected to ongoing harassment by Timmons. However, it is undisputed in the record that Timmons did not have any knowledge of Plaintiff's disabilities, medical conditions, or that he had been approved for FMLA leave. Timmons Dep. 28, 63-64, 66-67 (ECF No. 42-3). In the context of a discriminatory termination claim under the ADA, the Fourth Circuit has held that “an employer cannot fire an employee ‘because of' a disability unless it knows of the disability. If it does not know of the disability, the employer is firing the employee ‘because of' some other reason.” Huppenbauer v. May Dep't Stores Co., No. 95-1032, 1996 WL 607087, at *7 (4th Cir. Oct. 23, 1996) (quoting Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995)). “[B]ecause liability under the ADA requires the employer to have discriminated because of the employee's disability, it follows that the employee must show that the employer knew of his alleged disability at the time it took the adverse employment action.” Feldman v. L. Enf't Assocs. Corp., 955 F.Supp.2d 528, 539 (E.D. N.C. 2013), aff'd, 752 F.3d 339 (4th Cir. 2014); see also Phillips v. Loudoun Cty. Pub. Sch., No. 1:19-CV-501, 2019 WL 5445292, at *7 (E.D. Va. Oct. 23, 2019) (dismissing an ADA discrimination claim where there were no allegations that the defendant had any knowledge of the plaintiff's disability); Smith v. CSRA, 12 F.4th 396, 420 (4th Cir. 2021) (citing Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124 (4th Cir. 2021)) (discussing knowledge in the retaliation context and describing it as “absolutely necessary” to establishing a causal connection). Though the adverse action here is a hostile work environment rather than a termination, the reasoning is the same. Timmons could not have subjected Plaintiff to the hostile treatment because of a disability because she was not aware that he had a disability.
To the extent Plaintiff argues that Dr. Gamble also subjected him to unwelcome harassment, he fails to point to any conduct on the part of Dr. Gamble that was sufficiently severe or pervasive to alter the terms and conditions of Plaintiff's employment.
Plaintiff also argues that the District had knowledge of his anxiety because he notified Dr. Kournas and Dr. Gamble on several occasions of his anxiety, the treatment he received from Timmons, and that such treatment exacerbated his anxiety. However, while this evidence may be sufficient to meet the fifth element of a hostile work environment claim-that some factual basis exists to impute liability for the harassment to the employer-it is insufficient to show that the actual harassment itself occurred because of Plaintiff's disability. Further, although knowledge of the disability is “absolutely necessary” to show harassment based on disability, Smith v. CSRA, 12 F.4th 396, 420 (4th Cir. 2021) (citing Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124 (4th Cir. 2021)) (discussing knowledge in the retaliation context), knowledge alone is insufficient to show that Plaintiff was subjected to a hostile work environment because of his disability. See, e.g., Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 726 (8th Cir. 1999) (dismissing hostile work environment claim under the ADA where there was no evidence that the defendant's knowledge of any disability in any way motivated the offensive conduct and stating that the harassment “may have exacerbated his disability, but there is no evidence that [it] happened because of his disability”). The federal anti-discrimination statutes do not protect employees from hostility and abuse from their supervisors unless the objectionable conditions occur because of a protected characteristic. See Graham v. Prince George's County, 191 Fed.Appx. 202, 204 (4th Cir.2006) (finding the district court did not err in determining that “although [the] facts reflected an unpleasant working environment, they did not support a hostile one based on an unlawful characteristic”). In other discrimination contexts, such as race and gender, the plaintiff's inclusion in a protected class is almost always apparent. The Fourth Circuit has long held that Title VII “does not blindly ascribe to race all personal conflicts between individuals of different races.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 282 (4th Cir. 2000). In other words, just because a plaintiff is within a readily-apparent protected class, does not mean, without more, that any work-place conflicts are because of that protected trait. The same principle applies here. Just because Plaintiff told several supervisory individuals within the District that he suffered from anxiety does not mean that any hostile treatment he received was because of his anxiety. Plaintiff has failed to present evidence that would give rise to an inference that the harassment he endured was because of a disability. Therefore, summary judgment is appropriate on his ADA hostile work environment claim.
2. Constructive Discharge
Further, Plaintiff's constructive discharge claim fails for the same reason. To establish a claim for constructive discharge under the ADA, a plaintiff must show that: (1) he has a disability; (2) that he is a qualified individual for the employment in question; and (3) that the defendants discharged him (or took other adverse employment action) because of his disability. EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 378 (4th Cir.2000). An employee's resignation amounts to a constructive discharge where the employer made the employee's working conditions so intolerable that he was forced to quit his job. Lacasse v. Didlake, Inc., 712 Fed.Appx. 231, 239 (4th Cir. 2018) (citing Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir. 1984)). Plaintiff “must prove, as with any other discharge claim under [the ADA], that he was constructively discharged because of his membership in a protected class.” Gallimore v. Newman Mach. Co., 301 F.Supp.2d 431, 451 (M.D. N.C. 2004) (quoting Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 517 (7th Cir.1996)). For the same reasons discussed above, Plaintiff fails to show that the harassment he suffered was because of his disability.
Further, even if Plaintiff could show that his working conditions with Timmons were intolerable, see, e.g., Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1133 (4th Cir.1995) (explaining that “intolerable” working conditions necessary for a constructive discharge claim are more severe than conditions that give rise to a hostile work environment claim), it is undisputed that the District granted his request to be transferred to a different school. There is no evidence in the record that Plaintiff was subjected to unwelcome harassment from Timmons following the transfer. While he preferred to remain at the AEC rather than being transferred to Ebenezer Middle School, Plaintiff cannot show that his working conditions at the time he resigned were so intolerable that he had no choice but to resign. See, e.g., Byers v. HSBC Fin. Corp., 416 F.Supp.2d 424, 442 (E.D. Va. 2006) (holding that because the sexual harassment to which plaintiff was subjected ended when she was transferred and there was no evidence that the working conditions at the new location were intolerable, the plaintiff could not sustain a constructive discharge claim). Therefore, summary judgment is appropriate on Plaintiff's claim of constructive discharge in violation of the ADA.
3. Retaliation
Plaintiff also alleges that he engaged in protected activity under the ADA by complaining of a hostile work environment and requesting accommodations and was thereafter subject to a hostile work environment and constructive discharge in retaliation for his complaints. Section 503 of the ADA prohibits retaliation against an employee “because [that] individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [thereunder].” 42 U.S.C. § 12203(a).
To establish a prima facie case of ADA retaliation under the burden-shifting framework of McDonnell Douglas, a plaintiff must show: “(1) he engaged in protected activity, (2) his employer took adverse action against him, and (3) a causal relationship existed between the protected activity and the adverse employment action.” Thomas v. City of Annapolis, Md., 851 Fed.Appx. 341, 350 (4th Cir. 2021).
For an ADA retaliation claim, “[a] plaintiff need not show that []he is disabled within the meaning of the ADA.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 577 (4th Cir. 2015) (citing Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001)). However, the ADA's retaliation provision only prohibits retaliation against a person because the person “opposed any act or practice made unlawful by this chapter.” 42 U.S.C. § 12203(a) (emphasis added). Plaintiff must allege that he opposed discrimination based on a protected characteristic in order to show actionable protected activity. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 561 (D.S.C. 2013). General complaints of unfair treatment are not protected activity. Romeo v. APS Healthcare Bethesda, Inc., 876 F.Supp.2d 577, 587 (D.Md. 2012). It is clear from the record that Plaintiff complained of a hostile work environment on several occasions but none of those complaints indicate that he believed he was the target of such harassment because of his disability. See Email dated 9-26-18 (ECF No. 42-15); Email from Pl. to Dr. Koumas dated 10-18-18 (ECF No. 42-20); Memo. to Dr. Koumas (ECF No. 28-2, pp. 50-51). On December 2, 2018, Plaintiff outlined the series of encounters with Timmons to Dr. Koumas. Pl. Letter to Dr. Koumas dated 12-2-18 (ECF No. 42-22); Dr. Hafner's Notes (ECF No. 42-23); Pl. Compl. to Dr. Gamble (ECF No. 42-25); Pl. Email dated 1-9-19 (ECF No. 42-27). Though Plaintiff often mentioned in his communications with the District that the hostile work environment exacerbated his medical condition, there is no mention in these communications that Plaintiff believed he was being subjected to the hostile treatment because of a disability. Thus, he has failed to show that he engaged in protected activity under the ADA. See, e.g., Richardson v. Richland Cty. Sch. Dist., 52 Fed.Appx. 615, 617 (4th Cir. 2002) (“Richardson has not presented any evidence that she informed Richland County that her complaints were based on race or age discrimination; therefore Richardson cannot show she engaged in protected activity.”).
Plaintiff also argues that he engaged in protected activity when he made numerous requests for accommodation. On September 6, 2018, or September 10, 2018, Plaintiff provided a medical statement to Dr. Gamble from Dr. Clay Lowder stating that he would need one to two days off per week, as needed for severe anxiety for six months. Doctors' Note (ECF No. 28-2, p. 39); Gamble's Notes (ECF No. 28-2 pp. 34-37). On November 26, 2018, Plaintiff submitted his FMLA leave request. FMLA Forms (ECF No. 28-2, pp. 53-60). A request for an accommodation is a protected activity under the ADA. Haulbrook v. Michelin N. Am., 252 F.3d 696, 706 (4th Cir. 2001). Nevertheless, Plaintiff's retaliation claim with respect to his requests for accommodation fails for the same reason as his hostile work environment and constructive discharge claims-lack of knowledge on the part of Timmons, who Plaintiff asserts created the hostile work environment. Timmons testified that she was not aware of the requests for accommodation that Plaintiff submitted. Timmons Dep. 63-64, 66-67 (ECF No. 42-3). “Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case.” Smith, 12 F.4th at 420 (quoting Roberts, 998 F.3d at 124). Here, Plaintiff asserts that the adverse “action” was the hostile work environment created by Timmons and the resulting constructive discharge. Thus, because Timmons did not know that Plaintiff had requested time off because of his anxiety, Plaintiff cannot show a causal connection between his protected activity and the hostile work environment or the subsequent constructive discharge. Further, to the extent Plaintiff argues that he suffered an adverse employment action when he was transferred to a different school, the claim fails because a transfer does not amount to an adverse employment action in the absence of inferior working conditions in the new position or location. Hoye v. Gilmore, 691 Fed.Appx. 764, 765 (4th Cir. 2017). For these reasons, summary judgment is appropriate on Plaintiff's ADA claim for retaliation.
The record also reflects a note from Plaintiff's doctor dated June 20, 2019, requesting that Plaintiff be allowed one to two absences per week as needed for panic attacks, but it is not clear whether this note was submitted to anyone in the District. June Doctor's Note (ECF No. 28-2 p. 95).
B. State Law Claims
Plaintiff also asserts state law claims for assault, battery, and negligent supervision. Title 28 U.S.C. § 1367(c)(3) provides, in pertinent part, “[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction....” The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Revene v. Charles County Comm'rs, 882 F.2d 870, 875 (4th Cir.1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claims. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand since the remaining claims are quintessential state law questions. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court cautioned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law. . . . if the federal law claims are dismissed before trial ... the state claims should be dismissed as well.” Accordingly, should the district judge accept the recommendation with respect to Plaintiff's federal claims, it is recommended that the court decline to exercise jurisdiction over the remaining state law claims and remand this case to the Court of Common Pleas, Sumter County, South Carolina.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 28) be granted as to Plaintiff's ADA causes of action, and the Court decline to exercise jurisdiction over Plaintiff's state law claims and remand the remaining claims to the Court of Common Pleas, Sumter County, South Carolina.