Opinion
C/A 3:20-314-SAL-PJG
08-27-2021
Darcie Bianca Salley, Plaintiff, v. Target, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Darcie Bianca Salley, a self-represented litigant, filed this employment case against her current employer, Target Corporation (“Target”). Salley brings claims of sex discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; disability discrimination and retaliation pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; and pay discrimination and retaliation pursuant to the Equal Pay Act of 1963, 29 U.S.C. § 206(d). This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Target's motion for summary judgment. (ECF No. 49.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Salley of the summary judgment and dismissal procedures and the possible consequences if she failed to respond adequately to Target's motion. (ECF No. 50.) Salley filed a response in opposition to the motion. (ECF No. 55.) Having reviewed the record presented and the applicable law, the court concludes that Target's motion for summary judgment should be granted.
Target indicates it is incorrectly named in the caption of Salley's pleading. (Def.'s Mot. Summ. J., ECF No. 49 at 1.)
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. This lawsuit arises out of Salley's employment at Target, where she claims she was subjected to discrimination based on her sex and disability. Salley has been an employee of Target since 2007 at Store 2277 in Lexington, South Carolina and continues to work there. Salley is transgender and has identified as female long before she began working for Target. At the times relevant to this case, Salley held two job titles- presentation team member and price accuracy team member. Presentation team members manage inventory on the sales floor and shelves. Price accuracy team members maintain the signs, labels, tickets, and prices of the inventory.
In May 2017, Salley told the human resources department that she felt she was being underpaid based on her skill set and experience. In response, Target gave Salley additional responsibilities and increased her pay by $1 per hour in August 2017. At the time, Salley's raise made her the highest paid presentation team member. In May 2018, a cisgender female presentation team member received a raise based on a 2017 performance review that increased her wage beyond Salley's, though Salley's wage remained higher than the other presentation team members.
In September 2017, a Target employee found a bag of marijuana in an employee-only area of the store. An asset protection manager reviewed surveillance cameras and believed that the bag of marijuana fell from Salley's purse. Consequently, Salley was drug tested at the direction of a human resources executive pursuant to Target's Drug Free Workplace Policy and Drug Test Consent Form, which Salley had signed. The result of the drug test was negative and Salley continued working at Target without suffering any disciplinary action.
On December 5, 2017, Salley suffered an ankle injury at work, which she reported to a human resources manager. Salley visited a local emergency room on December 8 after she did not hear back from the human resources manager about Target's workers' compensation protocol. Target paid Salley's medical bills associated with the emergency room visit. Salley spoke with the human resources manager on December 10, and the human resources manager directed Salley to visit a different doctor who diagnosed Salley on December 13 with a mild ankle injury and referred Salley to an orthopedic specialist. Salley was also contacted by Target's third-party workers' compensation administrator to help Salley understand the workers' compensation process. On December 11, 2017, Salley called Target's integrity hotline, which allows employees to report violations of company policy. Salley complained that the human resources manager was not responsive to her ankle injury. The hotline's employee relations consultant investigated Salley's complaint and determined that it was unfounded. Salley did not follow up with the investigation because she received her workers' compensation and her injury healed. On December 20, Salley visited an orthopedic specialist who diagnosed Salley with a right ankle sprain and pre-existing dorsal midfoot degenerative arthritis. The orthopedic specialist ordered Salley out of work, which Target allowed, until her next visit on January 10, 2018.
At her January 10 visit, the orthopedic specialist allowed Salley to return to work on January 15, but only to perform sedentary duties. Salley returned to work in her same position on January 15 and engaged in the interactive process with human resources to consider accommodations for Salley's injury. Target allowed Salley to work at a cash register where she did not have to stand. Salley was approved for full duty work without any restrictions on March 1, 2018 and she resumed her regular work duties without a change in position or pay. On March 14, 2018, Salley followed up with the orthopedic specialist who found that she had reached maximum medical improvement and had no restrictions.
On March 19, 2018, Salley filed a charge of discrimination with the South Carolina Human Affairs Commission (“SCHAC”) and the Equal Employment Opportunity Commission (“EEOC”). Salley claimed she was denied equal wages based on her race (Black) and “harassed regarding daily workload” due to her gender identity. Salley also claimed she was demoted on June 17, 2017 and had her work hours cut in retaliation for seeking a pay increase and reporting harassment to upper management. Salley further claimed she was denied a position and ridiculed because of her gender identity. Finally, Salley claimed she was denied a reasonable accommodation for her injury in December 2017.
Salley sought a second opinion from a doctor regarding her ankle injury in October 2018. The doctor found that she had no impairment and no need for future medical intervention on her ankle as a result of her workplace injury. Salley was reimbursed for all of her medical expenses through Target's workers' compensation process.
On October 30, 2019, the EEOC issued a dismissal and notice of right to sue letter to Salley, who filed this lawsuit on January 28, 2020. In its order authorizing the service of process, the court construed the Complaint as asserting claims of sex discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; disability discrimination and retaliation pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; and pay discrimination and retaliation pursuant to the Equal Pay Act of 1963, 29 U.S.C. § 206(d).
The parties treat Salley's pleading as raising both a claim of sex discrimination based on both disparate treatment and a hostile work environment.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, she may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (stating that the McDonnell Douglas burden-shifting framework, developed for Title VII, has been applied to § 1981 claims); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that the McDonnell Douglas framework applies to retaliation claims under Title VII); Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that the McDonnell Douglas framework applies to claims brought under the ADA). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappears], and the sole remaining issue [is] discrimination vel non.” Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred, ” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt, 601 F.3d at 294-95.
C. Target's Motion
Target moves for summary judgment as to all of Salley's claims. However, Salley's response to Target's motion does not address Target's arguments that Salley's Title VII disparate treatment and her ADA discrimination and retaliation claims fail as a matter of law. Consequently, Salley has abandoned her claims of Title VII disparate treatment and ADA discrimination and retaliation. See Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Sawyers v. United Parcel Serv., Inc., C/A No. 1:18CV1037, 2019 WL 4305771, at *3 (M.D. N.C. Sept. 11, 2019) (collecting cases showing that “[t]his district and others within the Fourth Circuit agree that failing to respond to an argument constitutes an abandonment of a claim”).
To the extent Salley's Title VII discrimination claim is addressed in her arguments concerning equal pay, the court concludes that her discrimination claim fails as a matter of law for the same reasons the court finds that her Equal Pay Act discrimination claim fails as a matter of law.
1. Title VII-Hostile Work Environment
Target argues that Salley fails to forecast evidence that she was subject to harassment that was severe or pervasive because of her sex. The court agrees.
The United States Supreme Court has recognized that Title VII's prohibition on discrimination “on the basis of sex” includes gender identity. Bostock v. Clayton Cty., Ga., 140 S.Ct. 1731 (2020).
Title VII makes it unlawful for an employer to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Ocheltree v. Scollon Prods, Inc., 335 F.3d 325, 331 (4th Cir. 2003). Thus, it is unlawful for employers to require individuals to work in a discriminatorily hostile or abusive environment. Harris, 510 U.S. at 21; Ocheltree, 335 F.3d at 331. Such an environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or persuasive to alter the conditions of the victim's employment and create an abusive working environment.” Id.
Pertinent here, to establish a hostile work environment claim under Title VII, a plaintiff must show that the offending conduct (1) was unwelcome, (2) was based on her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to her employer. Ocheltree, 335 F.3d at 331; see also Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006). However, “[w]orkplaces are not always harmonious locales.” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (Title VII). Moreover, federal employment statutes are not “general civility code[s].” Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (Title VII); Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335 (4th Cir. 2010) (Title VII).
The severe and pervasive element has a subjective and objective component. Therefore, a plaintiff must show that she did perceive, and a reasonable person would perceive, the environment to be abusive or hostile. Perkins v. Int'l Paper Co., 936 F.3d 196, 208 (4th Cir. 2019) (quoting E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009)). The court must look at the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. (quoting E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008)). Offhand comments, isolated incidents (unless extremely serious), or even the mere utterance of an epithet does not change the terms and conditions of a plaintiff's employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Harris, 510 U.S. at 21. Rather, the hostility or abuse must be extreme to change the conditions of employment. Faragher, 524 U.S. at 788.
Here, the only specific instance Salley points to in her response to support her claim that she was subjected to harassment is when she was directed to take a drug test after an employee believed he saw marijuana fall out of her bag on a surveillance video. (Pl.'s Resp. Opp'n, ECF No. 55 at 6.) However, Salley does not make any argument that her treatment in that instance was based on her sex. Therefore, this incident-with no apparent connection to her sex-is not sufficient to show severe and pervasive unwelcome conduct based on Salley's sex.
Even liberally construing her response to argue that the drug test incident was indicative of a larger pattern of harassment, Salley still fails to point to evidence in the record that could show a severe or pervasive hostile work environment. When asked in her deposition to explain the purported harassment, Salley testified that the drug test and the denial of her workers' compensation benefits were both “a big thing.” However, as explained above, the drug test has no apparent connection to her sex; Salley was actually provided the workers' compensation benefits she sought, as she admits (Salley Dep. at 128, ECF No. 49-3 at 60); and Salley fails to point to any evidence in the record that her treatment during the workers' compensation benefits process was because of sex.
Though she does not raise the issue in her response to Target's motion, Salley testified that a “team lead” sporadically referred to her with the pronoun “he” but Salley reported his conduct to a supervisor and the team lead was terminated shortly thereafter for sexual harassment. (Salley Dep. at 54-55, ECF No. 49-3 at 17-18.) Salley also testified that another employee, Betty, would sometimes say in front of an “audience” that, “Well, I don't' have a penis like some people”- referring to Salley, and Salley reported Betty's conduct to human resources. (Id. at 58, ECF No. 49-3 at 20.) After the report, Betty threatened to have her kids “beat up” Salley and continued making gender-based comments like “I'm not a man” loudly in front of Salley. (Id. at 61, 65, ECF No. 49-3 at 21-22.) Salley testified that she was not bothered by the “I'm not a man” comments but she found Betty's “I don't have a penis” comment to be derogatory and directed at her. (Id. at 66, ECF No. 49-3 at 23.)
It is not clear from the record whether the team lead was terminated for harassing Salley or when the harassment of Salley occurred.
Initially, the court notes that the record contains no evidence that this conduct occurred within the applicable limitations period or that it was encompassed by the charge of discrimination from which this lawsuit arose. Therefore, as argued by Target in its motion, if these events occurred prior to May 23, 2017, the claims are time-barred. And, to the extent these events are not referenced in her charge of discrimination, her claims based on these events are not properly before the court. (Def.'s Mem. Supp. Summ. J., ECF No. 49-1 at 16.)
In any event, Salley's claims based on these events also fail on the merits because Salley also testified that she was not bothered by Betty's conduct after she reported Betty to human resources, and the team lead's conduct was ended by his termination after Salley reported him. (Salley Dep. at 55, 66, ECF No. 49-3 at 18, 23.) In light of the undisputed evidence that any harassment from the team lead or Betty ceased after Salley reported their conduct to Target, the court concludes that, even assuming the team lead's and Betty's conduct were severe or pervasive enough to meet the requisite standard for a hostile work environment claim, liability cannot be imputed to Target. See Spicer v. Commw. of Va., Dep't of Corrs., 66 F.3d 705, 711 (4th Cir. 1995) (“When presented with the existence of illegal conduct, employers can be required to respond promptly and effectively, but when an employer's remedial response results in the cessation of the complained of conduct, liability must cease as well.”); see also Mikels v. City of Durham, N.C., 183 F.3d 323, 330 (4th Cir. 1999) (stating that the United States Court of Appeals for the Fourth Circuit has given great weight to the fact that a particular response was demonstrably adequate to cause cessation of the conduct in question) (citing Spicer and Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987)). Accordingly, Salley fails to point to evidence in the record from which a reasonable jury could conclude that she was subjected to a severe or pervasive hostile work environment that is imputable to Target.
2. Equal Pay Act-Discrimination
Target argues that Salley fails to point to evidence supporting her Equal Pay Act discrimination claim that could create a triable issue of fact. The court agrees. The Equal Pay Act prohibits discrimination on the basis of sex by an employer resulting in unequal pay for equal work. 29 U.S.C. § 206(d)(1); U.S. Equal Emp. Opportunity Comm'n v. Md. Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018). To establish a violation of the Equal Pay Act, the plaintiff must initially make a prima facie showing that (1) the defendant-employer paid different wages to an employee of the opposite sex (2) for equal work on jobs requiring equal skill, effort, and responsibility, which jobs (3) all are performed under similar working conditions. Md. Ins. Admin., 879 F.3d at 120. If the plaintiff makes this initial showing, the court will presume that the pay disparity is based on sex discrimination, even in the absence of discriminatory intent. Spencer v. Va. State Univ., 919 F.3d 199, 203 (4th Cir. 2019); Md. Ins. Admin., 879 F.3d at 120.
In light of the Supreme Court's decision in Bostock, 140 S.Ct. 1731, which found that Title VII's prohibition on discrimination “on the basis of sex” applied to transgender plaintiffs, the court assumes without deciding that the same analysis applies to the Equal Pay Act's identical language prohibiting discrimination “on the basis of sex.” 29 U.S.C. § 206(d)(1); cf. Doe v. Cath. Relief Servs., C/A No. CCB-20-1815, 2021 WL 1164227, at *4 (D. Md. Mar. 26, 2021) (noting that after Bostock, Title VII's “on the basis of sex” language is plausibly imputable to the Equal Pay Act); Scutt v. Carbonaro CPAs n Mgmt. Grp., Civ. No. 20-00362 JMS-RT, 2020 WL 5880715, at *11 (D. Haw. Oct. 2, 2020) (finding the plaintiff's Equal Pay Act claim based on transgender status did not fail to state a claim upon which relief can be granted in light of Bostock). Target likewise assumes for the purposes of its motion that the Equal Pay Act prohibits discrimination based on gender identity. (Def.'s Mem. Supp. Summ. J., ECF No. 49-1 at 12.)
Once the plaintiff makes a prima facie showing of a pay disparity, the burdens of production and persuasion shift to the employer to prove that the disparity is justified by one of four affirmative defenses listed in 29 U.S.C. § 206(d)(1): (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; or (4) a disparity based on any factor other than sex. Md. Ins. Admin., 879 F.3d at 120. The employer's burden to establish a defense is “a heavy one, ” but if the employer proves in fact that the disparity is justified by one of the defenses, the employer is entitled to summary judgment. Id. at 120-21 (providing that the statute “requires that an employer submit evidence from which a reasonable factfinder could conclude not simply that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity”).
Here, Salley points to two comparators-Salley's supervisor, Mr. Chimel, and a fellow presentation team member, who are both cisgender. However, as Target points out-and Salley does not contest-Mr. Chimel is not a valid comparator because he is a supervisor. (Def.'s Mem. Supp. Summ. J., ECF No. 49-1 at 12.) Thus, Mr. Chimel does not perform equal work that requires equal skill, effort, or responsibility, and Salley cannot meet the second element of the prima facie test by reference to Mr. Chimel. See Md. Ins. Admin., 879 F.3d at 120. As to the other presentation team member, Target concedes that she is a proper comparator, but Target also presents evidence that the comparator's pay was based on a merit system. Target provides a declaration from Peter Odahowski, the former team lead at Salley's store in which Odahowski declares that Target uses a merit system to award raises, which are based on annual performance reviews prepared for each employee. (Odahowski Decl. ¶¶ 11-12, ECF No. 49-2 at 3-4.) Odahowski declares that Salley was the highest paid presentation team member from August 2017 to May 2018. (Id. ¶ 13, ECF No. 49-2 at 4.) After that, the comparator received a greater merit increase because the comparator received a better overall rating on her 2017 performance review than Salley. (Id.) Salley does not forecast any evidence to refute Odahowski's declaration in support of Target's affirmative defense. Consequently, no reasonable jury could conclude that Target's proffered reason does not in fact explain the pay disparity, see Md. Ins. Admin., 879 F.3d at 121, and Target is entitled to summary judgment on Salley's Equal Pay Act claim.
3. Retaliation (Title VII and Equal Pay Act)
Target argues that Salley cannot produce evidence that would support a claim that she was retaliated against in violation of Title VII or the Equal Pay Act. The court agrees.
Title VII and the Equal Pay Act make it unlawful for an employer to retaliate against an employee for engaging in activity protected by the statutes. See 42 U.S.C. § 2000e-3(a); 29 U.S.C. §§ 206(g)(4), 215(a)(3). The requisite elements for a prima facie case of retaliation typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him or her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007); see also Spencer v. Va. State Univ., 224 F.Supp.3d 449, 459 (E.D. Va. 2016) (applying the same standard for retaliation under the Equal Pay Act). Further, “retaliation claims must be proved according to traditional principles of but-for causation, ” which “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
In response to Target's motion, the only event that Salley argues was retaliatory is the requirement to take a drug test. (Pl.'s Resp. Opp'n, ECF No. 55 at 2-6.) Salley argues that the drug test was “just another act of retaliation, harassment, and bullying in the work place [sic] due to my request for equal opportunity and pay.” (Id. at 6.) However, Salley does not forecast any evidence that would show there was a causal connection between her being asked to take a drug test and her requests for equal opportunity or pay. Nor does Salley, as Target argues, point to any evidence in the record that would show that she actually complained to Target that her pay disparity was due to her sex. (Def.'s Mem. Supp. Summ. J., ECF No. 49-1 at 33.) Consequently, Salley fails to forecast any evidence that she engaged in a protected activity and was subjected to an adverse act because of that activity, and Target is entitled to summary judgment as to Salley's retaliation claims. Ziskie, 547 F.3d at 229.
RECOMMENDATION
Based on the foregoing, the court recommends that Target's motion for summary judgment be granted. (ECF No. 49.)
The parties' attention is directed to the important notice on the next page.
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).