Opinion
C. A. 2:17-cv-3227-BHH-MHC
03-23-2022
CLIFTON J. WAITERS, Plaintiff, v. SCIENCE APPLICATIONS, INTERNATIONAL CORP., Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Plaintiff brings this action against his former employer Science Applications International Corp. ("SAIC"), alleging a failure to promote claim under 42 U.S.C. § 1981, and retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") ECF No. 49; Before the Court is SAIC's Motion for Summary Judgment, ECF No. 143 ("Motion"), filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 150, and SAIC filed a Reply, ECF No. 153. The Motion is ripe for review.
On September 18, 2019, the Court dismissed Plaintiffs Title VII failure to promote claim, national origin retaliation claim, state law claims, constructive discharge claim, and hostile work environment claim). ECF No. 77.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
BACKGROUND
SAIC is a government contractor that provides support to the U.S. military and other contractors, such as NIWC. See ECF No. 143-5 at 9:12-10:3. Plaintiff worked for SAIC from June 2008 to January 2013, during which time he worked in Charleston for a year and then overseas in Iraq and Afghanistan. ECF No. 143-4 at 18:21-20:4. Plaintiff then left SAIC and worked for Serco, another contractor, from January 2013 to June 2015. Id. at 25:5-25:14; ECF No. 144-1.
Plaintiff returned to SAIC in July 2015. ECF No. 143-4 at 26:6-9, 62:23-63:1; ECF No. 143-1 at 2. He was hired to work in Kuwait on a United States Air Force contract installing sophisticated communications equipment into fielded tactical military vehicles for the Mine Resistant Ambush Protected ("MRAP") Vehicle Program. ECF No. 143-4 at 62:23-64:9. At that time, James A. ("Tony") Trodglen ("Trodglen"), an SAIC employee stationed in Charleston, South Carolina, was the Project Manager for the Air Force MRAP Program, as well as for the Marine Corps and Army MRAP Programs. ECF No. 143-5 at 10:10-21, 22:16-26:20. All SAIC employees in these programs, including Plaintiff, were supervised by and reported to Trodglen. Id; ECF No. 143-4 at 238:13-239:8, 242:5-244:8.
Overseas employees in the Air Force MRAP program were stationed in Kuwait, Qatar, or Afghanistan. SAIC designated a lead employee for each location (the "Site Lead") and a lead employee for the entire overseas theater (the "Theater Lead"). ECF No. 143-5 at 27:3-22. Plaintiff was the only employee in the program stationed in Kuwait and was the Site Lead for Kuwait. ECF No. 143-6 at 14; ECF No. 143-4 at 81:14-82:8. From July 2015 through July 2016, the Theater Lead for the program was Richard Robertson ("Robertson"), who was stationed in Qatar. ECF No. 143-4 at 83:5-21. As Theater Lead, Robertson was responsible for making sure all of the employees in these overseas locations were "taken care of," serving as the government customer's point of contact overseas, and serving as the point of contact for Trodglen. Id. at 83:22-84:16.
A. Plaintiffs Kuwaiti Driver's License
The entire time Plaintiff was stationed in Kuwait for S AIC, he lived in apartments and worked on three different military bases located up to two hours away. ECF No. 143-4 at 65:21-66:9, 71:18-73:5. Plaintiff was required to have a Kuwaiti driver's license for his job, but there was a ten-month delay in the local governmental authorities issuing it. ECF No. 143-4 at 157:7-159:23. While Plaintiff did not have a driver's license, he carpooled to his worksites in Kuwait with employees of other government contractors. See Id. at 162:17-22; 173:5-11. Plaintiff asked Trodglen and Robertson every month about when he would get his license, but he never asserted a workplace complaint about having to catch rides with other contractors. Id. at 163:1-164:8. Plaintiff never complained that he thought the ten-month delay was racially discriminatory. Id. at 171:2-10. Plaintiffs Kuwaiti driver's license was issued on July 11, 2016. Id. at 186:22-187:25; ECF No. 144-9.
B. Plaintiffs Promotion and Pay Raises
In February 2016, Trodglen sent an email recommending to Plaintiff and at least twenty other SAIC employees that they enroll in an online Penn Foster electronics training course, which was a rigorous online electronics course that took up to eight months to complete. ECF No. 144-3; ECF No. 143-6 at 16; ECF No. 143-4 at 150:4-152:2; ECF No. 143-5 at 41:21-46:17. Trodglen also had an in-person group discussion in Kuwait with Plaintiff and about seven others encouraging them to take the Penn Foster course. ECF No. 143-4 at 181:18-182:2; ECF No. 143-5 at 41:21-46:17; ECF No. 143-6 at 16. Thereafter, Plaintiff enrolled in the Penn Foster course. ECF No. 143-4 at 97:7-102:3; 152:8-15.
Plaintiff completed the Penn Foster course on June 9, 2016. As a result, on July 16, 2016, Trodglen promoted Plaintiff from Job Code S30082 to Job Code S23182 and gave him a 7.17% pay increase, moving Plaintiff from pay grade W2l to pay grade W4O. ECF No. 143-6 at 12; ECF No. 144-4 at No. 26; ECF No. 143-4 at 114:17-115:8; 126:2-128:23; ECF No. 143-5 at 43:14-20. On March 25, 2017, SAIC gave Plaintiff a second pay raise. ECF No. 143-6 at 17.
C. Wes Hahn Becomes Theater Lead for the Air Force MRAP Program
In May or early June of 2016, Robertson told Trodglen that Robertson was going to leave Qatar to return to the United States in July. ECFNo. 143-5 at 47:5-11, 49:5-18. Shortly thereafter, Trodglen learned that the Marine Corps MRAP Program was ending because the contract was canceled. ECF No. 143-6 at 15. As a result of the contract cancellation, Trodglen had to either reassign the personnel working on that contract to other overseas locations or return them home. ECF No. 143-5 at 50:14-25. Initially, Trodglen had been considering only the employees working overseas on the Air Force MRAP Program as possible replacements for Robertson as Theater Lead, but with the cancellation of the Marine Corps MRAP Program, the personnel on that project also came under consideration. Id. at 50:5-51:18, 54:9-21, 68:2-6.
From January 1, 2015, to December 31, 2017, there were no job postings across SAIC for a Theater Lead position on any of SAIC's internal recruiting systems. ECF No. 144; ECF No. 143-6 at 28-29. At the time, there were no specific qualifications or a job description for a Theater Lead, but Trodglen was looking for someone who had a good relationship with him and the NIWC client contact, experience working directly with clients, and prior leadership experience. ECF No. 143-6 at 15, 28-29. Trodglen concluded that Wesley Hahn fit these criteria. Id. at 15.
Hahn had worked for SAIC since January 2, 2008. ECF No. 143-6 at 14-16; ECF No. 143-7. His first overseas assignment was in Afghanistan, where he was given the role of Team Lead because of his prior formal training and experience in automotive work. Id. Throughout his employment, he received numerous accolades and certificates of appreciation from SAIC's military customers reflecting their satisfaction and praise of Hahn's "exceptional skills," including specifically his performance on the MRAP program in Afghanistan during active duty. Id.
In February 2016, Hahn started working on the Marine Corp MRAP Program supporting the Marine Corps in Kuwait, where he served as a lead and reported to Trodglen. ECF No. 143-6 at 15. In this role, Hahn had been doing the "exact same" type of reports on the Marine Corps MRAP Program as was needed on the Air Force MRAP Program, such as monthly status reports, weekly reports, and daily reports. ECF No. 143-5 at 117:3-118:6. As a result, Trodglen believed that Hahn could "immediately day one start producing those same reports back to [Trodglen] on the Air Force project." Id. at 118:10-15. Hahn also had worked with the client before, and the NIWC client contact had specifically commented to Trodglen on how much he liked the way Hahn worked. Id. at 118:18-23. Trodglen spoke to SAIC's government customer representative who was familiar with Hahn's work as the lead on the Marine Corps MRAP Program, and the customer expressed that Hahn would be a good fit to replace Robertson. ECF No. 143-6 at 15.
Further, Hahn had been overseas for nearly eight years when the Theater Lead role became available, and Trodglen believed that Hahn's "knowledge of the different locations, what the government was requesting was definitely an asset." ECF No. 143-5 at 119:2-11. Hahn also had the most years of continuous service with SAIC.M at 118:24-119:11. Finally, Trodglen expected the Air Force MRAP Program to similarly end within six months, and Hahn had just led a wind down of the Marine Corps MRAP Program. ECF No. 143-8 at 20:11-20, 23:4-8; ECF No. 143-5 at 50:5-25. For these reasons, Trodglen thought Hahn was the most qualified to replace Robertson, and he transferred Hahn from Kuwait to Qatar in July 2016, to become the Air Force MRAP program Theater Lead. ECF No. 143-6 at 15-16; ECF No. 143-5 at 49:5-18, 51:14-18, 119:2-11.
Hahn did not receive a pay increase when he became the Air Force Theater Lead. ECF No. 143-5 at 120:1-12; ECF No. 143-8 at 21:4-6; see ECF No. 153-2 at 28:10-29:24. SAIC's Human Resources ("HR") records show that the transfer was recorded as a location change ("LOC"), with no corresponding change in pay. ECF No. 143-9. Once Plaintiff received his promotion in July 2016, Plaintiff earned a higher hourly wage than Hahn while Hahn served as Theater Lead. ECF No. 143-6 at 28; see ECF No. 143-9.
Plaintiff testified that after Hahn became Theater Lead, he badgered Plaintiff by undermining his work, frequently calling or messaging him, and questioning how Plaintiff completed the Penn Foster training course. ECFNo. 143-4 at 38:24-40:16; 42:20-43:11; 44:3-22. Although Hahn never used any racially derogatory terms with Plaintiff, Plaintiff thought Hahn's management style was racially motivated and that Hahn's conduct was evidence of racial bias. Id. & at 46:11-46:14.
D. Communications with HR Regarding Hahn
In November 2016, a concern about Hahn was made through SAIC's anonymous hotline. ECF No. 153-2 at 20:5-9. When a call comes into the hotline, the third-party vendor transcribes the audio to writing and sends the written concern to SAIC. Id. at 21:21-22:10. According to the transcription, which indicated Afghanistan as the area of concern, the caller reported being passed up for a job opportunity and believed it was because of the caller's race. Id. at 22:11-27:2; ECF No. 150-3. The caller also reported that "four African American males that were qualified as well . . . were all passed over" and that "a Caucasian employee was given the promotion without the proper schooling or training." Id. Plaintiff testified that he never made a complaint over the anonymous hotline and did not know that SAIC had an anonymous hotline. ECF No. 143-4 at 183:16-20, 204:22-25.
On March 6, 2017, Plaintiff's coworker Timothy Jennings copied Plaintiff and three other employees on an email to SAIC HR representative Marcia Saari, in which Jennings requested that she schedule a call with him and four coworkers to discuss a situation that had been "ongoing for 5 plus months." ECF No. 144-5 at 3. Saari requested that each employee send her a separate email providing a "summary of your concerns," but Plaintiff did not do so. Id.; ECF No. 143-4 at 200:22-202:16.
On March 15, 2017, Saari attended a call with Jennings and two other employees in the Air Force MRAP Program during which the employees expressed concerns about Hahn. ECF No. 150-4. However, Plaintiff testified that he did not participate in the call because he "couldn't hook up to the call," "never really heard what was going on on the call," "got disconnected," and did not speak or report race discrimination on the call. ECF No. 143-4 at 188:1-190:8, 194:22-197:15, 199:9-200:16; 202:24-204:14. Saari's notes from the call similarly show that Plaintiff did not attend. ECF No. 150-4. Plaintiff testified that he did not reach out to HR or Trodglen after the call to share his concerns about Hahn. ECF No. 143-4 at 204:15-205:7. Plaintiff testified that he did not tell Hahn that he attempted to go to HR about him, and Plaintiff does not know whether Hahn found out Plaintiff attempted to go to HR about him. ECF No. 143-4 at 205:4-206:12, 213:19-22.
Hahn likely knew that Jennings had complained about him to Trodglen because on March 5, 2017, Jennings sent an email to Trodglen complaining about Hahn's behavior, copying Hahn, Plaintiff, and others; however, Plaintiff testified this was not his complaint, and he had nothing to do with Jennings' email complaining about Hahn. ECF No. 144-6; ECF No. 143-4 at 208:6-209:15.
Plaintiff testified that after March 15, Hahn engaged in "constant badgering about who was going to HR on him, was I one of the ones going to HR on him, just constant, constant, constant, every day." ECF No. 143-4 at 212:9-213:9. Plaintiff also testified that Hahn retaliated by saying, "What I say goes, and if you don't do it, you're fired," but Plaintiff could not recall when this happened. Id. at 214:1-215:8. Plaintiff believes Hahn also retaliated by overseeing the hours he was recording on daily reports and calling him too frequently, but he testified that these actions had no impact on Plaintiff s compensation, performance reviews, or benefits. Id. at 215:14-218:16.
E. Plaintiffs Voluntarily Resignation
On July 6, 2017, Plaintiff voluntarily resigned from SAIC to take a job with another contractor, Bravura. ECF No. 143-4 at 222:14-223:16; 225:24-226:25; 236:10-237:6. His last day of employment with SAIC was July 29, 2017. Id. at 222:23-223:3. In response to Requests for Admission, Plaintiff admitted that at no time during his employment did SAIC demote him, decrease his pay, decrease or remove any of his employment benefits, or diminish or reduce his job responsibilities. ECF No. 143-4 at Nos. 27-30.
LEGAL STANDARD
Summary judgment should be granted when "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). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & ObserverPubl'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
However, "the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence." Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, Ml U.S. 317, 322-23 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.").
DISCUSSION
SAIC moves for summary judgment in its favor on all of Plaintiff s claims. First, SAIC argues that Plaintiff cannot, as a matter of law, establish a failure to promote claim under 42 U.S.C. § 1981. Second, SAIC argues that Plaintiff has failed to establish his claim of retaliation under either § 1981 or Title VII. In his Response, Plaintiff argues that material factual questions exist with respect to both of his claims, such that summary judgment should be denied.
I. Discriminatory Failure to Promote Claim Under 42 U.S.C. § 1981.
Section 1981 provides, in pertinent part, that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens[.]" 42 U.S.C. § 1981(a). The statute broadly defines the term "make and enforce contracts" as "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. at § 1981(b). Thus, a cause of action under § 1981 "must be founded on purposeful, racially discriminatory actions that affect at least one of the contractual aspects listed in § 1981(b)." Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999) (explaining that an employment relationship is contractual and thus protected by § 1981); see also Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir. 2006) ("To prove a § 1981 claim, therefore, a plaintiff must ultimately establish both that the defendant intended to discriminate on the basis of race, and that the discrimination interfered with a contractual interest.").
A plaintiff may avoid summary judgment on a discrimination claim through two avenues of proof: by "presenting direct or circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor such as race motivated the employer's adverse employment decision," or by relying on the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Because Plaintiff has not proffered direct evidence of discrimination on the basis of race, the undersigned will analyze his failure to promote claim under the burden-shifting framework. See Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 216 (4th Cir. 2016) (explaining that the McDonnell Douglas framework applies in employment discrimination and retaliation cases arising under Title VII or § 1981); Bryant v. Aiken Reg 'I Med. Centers Inc., 333 F.3d 536, 545 n.3 (4th Cir. 2003).
Initially, the plaintiff has the burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802. Once the plaintiff establishes his prima facie case, the burden of production then shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment action. Merrittv. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). "Finally, if the employer carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the neutral reasons offered by the employer 'were not its true reasons, but were a pretext for discrimination.'" Id. (quoting Tex. Dep `t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1983)).
A. Plaintiff Cannot Establish His Prima Facie Case of Discrimination.
In general, to establish a prima facie case of race discrimination, a plaintiff must show the following elements: (1) membership in a protected class; (2) that he was subjected to an adverse employment action; (3) that he was performing his job satisfactorily; and (4) the adverse employment action occurred "under circumstances giving rise to an inference of unlawful discrimination." Adams v. Trustees of the Univ. of N.C. -Wilmington, 640 F.3d 550, 558 (4th Cir. 2011); Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705, 719-20 (D.S.C. 2014); see Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); Bryant, 333 F.3d at 545; White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004) (explaining that the fourth element is met if "similarly-situated employees outside the protected class received more favorable treatment").
With respect to the second element, "not every personnel decision constitutes an adverse employment action." Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 558 (D.S.C. 2013). Rather, "[a]n adverse action is one that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (internal quotation marks omitted).
Where, as here, the alleged adverse action is a failure to promote, the plaintiff must present evidence that: (1) he is a member of a protected class; (2) he applied for the position in question; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Bryant, 333 F.3d at 545; see Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005).
SAIC argues that Plaintiff cannot establish his prima facie case because Plaintiff never applied to be Theater Lead and did not experience any adverse employment action. ECF No. 143 at 21-25. In his Response, Plaintiff asserts, without citing any evidence to support his assertion, that in a "government contract situation, . . . [n]o one 'applies' to a contract or a particular job in the traditional sense." ECF No. 150 at 5. He further argues that when he testified that he did not apply to the Theater Lead position, it was because people do not apply for spots, as they are assigned by the Project Manager. Id. at 5-6.
Plaintiff also contends that Hahn had never worked as a Theater Lead or as the equivalent to a Theater Lead, nor "did he complete the essential course in preparation for that position." Id. at 6. According to Plaintiff, these facts establish that Plaintiff "was far more qualified to work in that capacity" and give rise to an inference of unlawful discrimination. Id. at 6-7 ("What happened here is just like the glass ceiling many women have experienced over the last several decades. This is an insidious overlooking of the qualified minorities to hire a white person.").
After careful review of the evidence submitted by the parties, the undersigned concludes that Plaintiff has failed to establish the second element (adverse employment action) of his prima facie case.
1. Plaintiff cannot establish a failure to promote claim.
In his Response, Plaintiff recites the factors for a prima facie case of failure to promote, including the requirement that he prove that "(2) he applied for the position." ECF No. 150 at 5. Nonetheless, it is undisputed that Plaintiff did not apply for the Theater Lead position. At his deposition, Plaintiff testified that he has no memory of expressing interest in the Theater Lead role to Trodglen. ECF No. 143-4 at 91:11-14; 96:3-17. Plaintiff also testified that he did not apply for the Theater Lead role. Id. at 91:15-94:8; 102:13-19. Accordingly, Plaintiff cannot establish the second element of a prima facie case of a discriminatory failure to promote claim. See Bryant, 333 F.3d at 545; see also Harrison v. S.C. Dep't of Mental Health, 641 Fed.Appx. 202, 207 (4th Cir. 2015) (affirming summary judgment for employer in race discrimination suit because plaintiffs failed to show they applied or attempted to apply for positions); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (holding that, to make out a cognizable failure to promote claim, a plaintiff must have applied or "sought to apply" for the position).
Moreover, the unrefuted evidence shows that SAIC did not fill the Theater Lead role by promotion. Around the same time that Robertson informed Trodglen that Robertson would return home, SAIC learned that the Marine Corps MRAP Program in Kuwait had been unexpectedly cancelled, such that SAIC needed to restructure and reallocate the personnel working on that program, including Hahn. See 143-5 at 47:5-11, 49:5-51:18. Hahn was transferred to the Theater Lead position in Qatar, where, without any pay increase, he continued to perform essentially the same duties and responsibilities for the Air Force that he performed for the Marine Corps. Where, as here, essentially a lateral transfer is necessitated by a restructuring and consolidation of supervisory responsibilities, such a transfer "cannot give rise to a failure to promote claim." See Harrison, 641 Fed.Appx. at 206-07; see also Coleman v. Schneider Elec. USA, Inc., No. 8:I5-CV-2466-HMH-KFM, 2018 WL 706333, at *7 (D.S.C. Feb. 5, 2018), aff'd, 755 Fed.Appx. 247 (4th Cir. 2019) (holding that failure to promote claim failed because the customer service supervisor position was not filled by promotion, no candidates were interviewed, and the position was consolidated with another position, without any increase in pay, to reduce costs); Wilder v. Columbia Fire Dept, No. 3:07- CV-976-CMC-BM, 2008 WL 3010084, at *5 (D.S.C. July 31, 2008) (finding plaintiffs failure to promote claim failed because the position was filled by a lateral transfer when another employee was reassigned to the position with no increase in pay). Thus, Plaintiff cannot establish a prima facie case of his discriminatory failure to promote claim.
Accordingly, summary judgment as to Plaintiff's discrimination claim can be granted on this basis alone.
2. Plaintiff has not established that he was subjected to any adverse employment action.
Moreover, Plaintiff has not proffered any evidence that Hahn's transfer into the Theater Lead role had any material adverse impact on the terms, conditions, or benefits of Plaintiffs employment. Plaintiff admitted that SAIC never demoted him, decreased his pay, decreased or removed any of his employment benefits, or diminished or reduced his job responsibilities. ECF No. 144-4 at Resp. Nos. 27-30. Moreover, the evidence shows that Plaintiff received two pay raises during his 2015-2017 employment with SAIC, including a 7.17% pay increase and job code change that he received in July 2016 after he completed the Perm Foster course. ECF No. 143-6 at 12; ECF No. 144-4 at No. 26; ECF No. 143-4 at 114:17-115:8; 126:2-128:23; ECF No. 143-5 at 43:14-20. As a result of the first wage increase, which Plaintiff received the same month that Hahn became Theater Lead, Plaintiff earned a higher hourly wage than Hahn.
Further, although Plaintiff testified that he felt like Hahn badgered him and checked in with him too often, see ECF No. 143-4 at 38:24-40:16, 42:20-43:11, 44:3-22, Plaintiff also testified that the way Hahn treated him as Theater Lead had no material impact on the terms, conditions or benefits of his employment, id. at 215:14-218:16. It is well established that an "action that merely causes an employee irritation or inconvenience, but does not affect a term, condition, or benefit of her employment, is not an adverse employment action." Pyatt v. Harvest Hope Food Bank, No. 3:10-CV-2002-MBS-PJG, 2012 WL 1098632, at *5 (D.S.C. Feb. 1, 2012) (quotation marks and citation omitted), report and recommendation adopted, 2012 WL 1098627 (D.S.C. Mar. 29, 2012); see); see Drake v. Science Applications Int'l Corp., No. 2:17-cv-02664-DCN-MGB, 2019 WL 15 74264, at * 7 (D. S. C. Mar. 4, 2019) (noting that an employer spying on plaintiff, scrutinizing her internet usage and attendance, blaming her for others' mistakes, and being rude and condescending were not adverse actions); McLaughlin v. CSX Transp., Inc., 211 F.Supp.3d 770, 780 (D.S.C. 2016) (a supervisor yelling or refusing to speak to plaintiff and making remarks showing annoyance at her requests for accommodations were not adverse employment actions). Thus, Plaintiff has not produced any evidence demonstrating that he suffered any adverse employment action because Hahn became Theater Lead.
For the foregoing reasons, the undersigned concludes that Plaintiff has not carried his burden of establishing a prima facie case of discrimination under Section 1981. Accordingly, SAIC's Motion for Summary Judgment should be granted as to Plaintiffs discrimination claim.
B. SAIC Has Proffered a Legitimate Non-Discriminatory Reason
Even if Plaintiff were able to establish a prima facie case of discrimination, summary judgment still would be appropriate because SAIC has proffered a legitimate, nondiscriminatory reason for its decision to put Hahn in the Theater Lead position, and Plaintiff has failed to submit evidence showing that the reason is merely pretext for discrimination.
Once an employee meets his burden of establishing a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. Haynes v. Waster Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019). "This burden is one of production, not persuasion; it can involve no credibility assessment." Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142 (2000) (internal quotation marks omitted).
SAIC provides the following reason for its decision to put Hahn in the Theater Lead position:
Trodglen determined that Hahn was the most qualified based on a number of objective and subjective factors that were within Trodglen's discretion to consider
based on his expectations as SAIC's Project Manager for the Air Force MRAP Program:
• Hahn's very recent experience serving as the lead on the Marine Corps MRAP Program, where he performed the same duties and liaised with the same government client as was expected of the Theater Lead for the Air Force MRAP Program;
• The positive working relationship Hahn had developed with that same government client;
• Hahn's deep familiarity with the government client's requirements for the contract, including use of special software programs and reporting tools;
• The government client's satisfaction with Hahn's job performance while serving as the lead for the Marine Corps MRAP Program;
• Hahn's many years of service with SAIC, including lengthy tours overseas and a consistent series of accolades from government customers complimenting his work on the MRAP program; and
• Hahn's seniority relative to other employees in the theater. . . .
In conjunction with these qualifications, Trodglen also . . . considered the importance of keeping in theater a highly valued asset like Hahn, with years of experience overseas and numerous accolades in appreciation for his service supporting the U.S. military, when the government client unexpectedly cancelled the Marine Corps MRAP Program and Trodglen had to either reassign Hahn or send him back to the U.S. ECF No. 143 at 28-29. There is evidence in the record to support this reason. See, e.g., ECF No. 143-6 at Resp. 9; ECF No. 143-5 at 50:5-51:18, 68:2-6, 117:3-119:11.
C. Plaintiff Has Failed to Produce Evidence Showing that But For Race, He Would Have Been Selected as Theater Lead.
Because SAIC has met its burden of production regarding the decision to put Hahn in the Theater Lead position, the burden shifts back to Plaintiff to demonstrate "that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves, 530 U.S. at 143 (internal quotation marks omitted). "The final pretext inquiry merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination, which at all times remains with the plaintiff." Merritt, 601 F.3d at 294 (internal quotation marks omitted). Thus, to prevail on his § 1981 discrimination claim, Plaintiff "must ultimately prove that, but for race, [he] would not have suffered the loss of a legally protected right." Comcast Corp. v. Nat 7 Ass `n of Afr. Am.-OwnedMedia, 140 S.Ct. 1009, 1019 (2020).
"A plaintiff alleging a failure to promote can prove pretext by showing that he was better qualified, or by amassing circumstantial evidence that otherwise undermines the credibility of the employer's stated reasons." Heiko v. Colombo Sav. Bank, 434 F.3d 249, 259 (4th Cir. 2006) (citations omitted). "In conducting this analysis, [courts] assess relative job qualifications based on the criteria that the employer has established as relevant to the position in question." Id. When comparing the relative qualifications of two candidates, the plaintiff must make "a strong showing that his qualifications are demonstrably superior" to the qualifications of the successful employee. Id. at 261-62. "When a plaintiff asserts job qualifications that are similar or only slightly superior to those of the person eventually selected, the promotion decision remains vested in the sound business judgment of the employer." Id. at 261; see Westinghouse Savannah River Co., 406 F.3d at 272 ("[Courts] do not sit as a super-personnel department weighing the prudence of employment decisions made by the defendants.") (internal quotation marks omitted).
Moreover, a plaintiff "cannot establish pretext by relying on criteria of [his] choosing when the employer based its decision on other grounds." Westinghouse Savannah River Co., 406 F.3d at 271. Nor can a plaintiff establish pretext based on his "own self-assessment" because "it is the employer's perception and not the employee's perception, that is controlling." Hunnicutt v. S.C. Dep't of Revenue, No. 3:08-CV-2589-JFA-JRM, 2010 WL 1344632, at *IO (D.S.C. Feb. 26, 2010), report and recommendation adopted, 2010 WL 1344352 (D.S.C. Mar. 31, 2010) (citing Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980).
In his Response, Plaintiff contends that the Penn Foster course was a requirement for the Theater Lead position, and that while Plaintiff had completed the Penn Foster course, Hahn had not. ECF No. 150 at 6. Plaintiff further argues that, contrary to SAIC's asserted reason, Hahn had not served as the "Theater Lead" for the Marine MRAP and, therefore, did not have more experience than Plaintiff, as the tasks Hahn performed were merely site lead tasks. Id. Thus, Plaintiff concludes that he "was far more qualified" to work as Theater Lead than Hahn. Id. The record evidence does not support Plaintiffs arguments.
Although Plaintiff does not put forward any arguments specifically addressing pretext, see generally ECF No. 150 at 4-7 (addressing each element of his prima facie case of his failure to promote claim without addressing evidence of pretext as to each claim), the evidence he produces in support of his prima facie case can be considered when evaluating pretext. See Reeves, 530 U.S. at 143 (explaining that evidence establishing the plaintiffs prima facie case and inferences properly drawn therefrom may be considered on the issue of whether the defendant's explanation is pretextual).
First, the undisputed evidence shows that the Penn Foster course was not a requirement for the Theater Lead position. Indeed, Plaintiff testified that he did not think that the Penn Foster course was a requirement to become the Theater Lead and that Trodglen never told him that the Penn Foster training was required to be Theater Lead. ECF No. 143-4 at 112:23-114:16. Similarly, the emails from Trodglen regarding the Penn Foster course do not say that taking this course was a prerequisite to becoming a Theater Lead. Id. at 152:16-153:19; 155:22-157:3; ECF No. 144-3. There simply is no evidence that completing the Penn Foster course was a factor that Trodglen considered in deciding who would replace Robertson in the Theater Lead role. See Hux v. City of Newport News, Va., 451 F.3d 311, 315 (4th Cir. 2006) (explaining that a plaintiff in a failure to promote case "cannot simply compare herself to other employees on the basis of a single evaluative factor artificially severed from the employer's focus on multiple factors in combination").
Second, the evidence does not support Plaintiff's contention that SAIC "engaged in a big fat lie" about Hahn's previous experience. See ECF No. 150 at 6. Plaintiff points to Hahn's testimony that he had not been a "Theater Lead" before his transfer in July 2016, which Plaintiff argues contradicts Trodglen's testimony that Hahn had prior Theater Lead experience. Id. (citing ECF No. 150-6 at 2-3). He also argues, without providing any evidentiary support, that Hahn had previously performed only site lead tasks, not Theater Lead tasks. Id. However, the undisputed evidence shows that the "Theater Lead" position existed only in the Air Force program, while the site leads in the Marine Corps and Army programs carried out the same duties as the Air Force Theater Lead.
Trodglen testified that in the Marine Corps MRAP program, the role of site lead was "dual-headed," such that the site lead in the Marine Corps program was carrying out the same responsibilities as the Theater Lead in the Air Force program, "so their roles intermingled." ECF No. 143-5 at 26:21-29:21. However, under the Air Force contract, the customer required SAIC to have someone in Qatar, referred to as "Theater Lead," in addition to site leads in each location. Id. Trodglen also testified that because Hahn "had already been doing the job for the Marine Corps in Kuwait, [Trodglen] felt he was the most qualified person to move over to . . . take [Robertson's] spot on the Air Force project." Id. at 5:14-18. Trodglen further testified that the Air Force site lead and the Theater Lead have the same level of importance but different responsibilities. Id. at 115:20-116:10. For instance, the Air Force Theater Lead position produces daily, weekly, and monthly status reports that the other employees do not create. Id. at 117:3-20. He further testified that Hahn, as the Marine Corps site lead, created the exact same paperwork, with "little nuances here and there," which meant that Hahn, without further training, "could immediately day one start producing those same reports back to [Trodglen] on the Air Force project." Id. at 117:21-118:15. Finally, Trodglen testified that Hahn had been performing overseas since 2008 for SAIC and had knowledge of the different locations and what the government was requesting, as well as the confidence and appreciation of the client, all of which made him the most qualified for the Theater Lead job. Id. at 118:16-119:11.
Trodglen also testified that the Army MRAP program was set up the same way as the Marine Corps MRAP program, with a "dual-headed" site lead. ECF No. 143-5 at 27:1-28:22.
Plaintiff does not present evidence to support his claim that he "was far more qualified" to work as Theater Lead than Hahn. See ECF No. 150 at 6. To the contrary, at his deposition, Plaintiff testified that Hahn had more years of experience with SAIC than Plaintiff, that Hahn had prior experience as the site lead in the Marine Corps MRAP Program while Plaintiff had no experience as Theater Lead, and that Hahn had prior experience working with the government customer while Plaintiff did not work directly with the customer. ECF No. 143-4 at 121:24-123:9. Thus, Plaintiff has failed to point to evidence showing that his qualifications were "demonstrably superior" to Hahn's. See Heiko, 434 F.3d at 261-62; Adams v. Exel, Inc., No. 0:15-CV-4356-TLW-PJG, 2017 WL 746383, at *5 (D.S.C. Jan. 13, 2017), report and recommendation adopted sub nom. Adams v. Excel, Inc., 2017 WL 735584 (D.S.C. Feb. 24, 2017) (holding that plaintiff, who had twenty years of shipping and receiving experience, nonetheless failed to show his qualifications were "demonstrably superior" to employee selected because, unlike him, he lacked actual on-the-job experience and "did not possess the preferred customer service experience" required for the position at issue). More importantly, Plaintiff has not produced any evidence to suggest that but for Plaintiffs race, Trodglen would have selected him to be Theater Lead. See Comcast Corp., 140 S.Ct. at 1019; Reeves, 530 U.S. at 143.
Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, the undersigned finds Plaintiff has failed to raise a genuine issue of material fact regarding SAIC's legitimate justification for not selecting Plaintiff for the Theater Lead position. Therefore, Plaintiff has failed to meet his evidentiary burden of demonstrating that he was not selected for the position because of his race. Accordingly, the undersigned recommends that, for this additional and alternative reason, SAIC's Motion be granted as to Plaintiff's discrimination claim.
II. Retaliation Claims Under Title VII and 42 U.S.C. § 1981.
SAIC also argues that Plaintiff has failed to establish a prima facie case of retaliation under Title VII or § 1981. Title VII forbids an employer from taking action that discriminates against an employee because that employee either has "opposed any practice made an unlawful employment practice" by Title VII or has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2OOOe-3(a). Employees may prove that their employer retaliated against them for engaging in opposition activity through one of two ways: by direct evidence of retaliatory animus, or through the McDonnell Douglas burden-shifting framework. Foster v. Univ. of M<L-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015). Because Plaintiff has not proffered direct evidence of retaliatory animus, he must establish a prima facie case of retaliation and produce evidence of pretext.
To succeed on a retaliation claim under the burden-shifting framework, Plaintiff must first establish that (1) he engaged in a protected activity, (2) his employer acted adversely against him, and (3) there was a causal connection between the protected activity and the asserted adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011).
With respect to the first element, "an employee's complaint constitutes protected activity when the employer understood, or should have understood, that the plaintiff was opposing discriminatory conduct." Hemphill, 975 F.Supp.2d at 560 (citation and quotation marks omitted). To engage in protected activity, the plaintiff must have "conveyed to the employer a reasonable belief that the actions complained of violated federal law`."' McClam v. Lake City Fitness Ctr., No. 4:13-CV-3316-BHH, 2015 WL 5554577, at *I4 (D.S.C. Sept. 21, 2015) (finding that plaintiffs written grievance was not protected activity for retaliation because it did "not make explicit or implicit claims that her race had anything to do with her treatment").
Plaintiff contends that he engaged in protected activity in three ways: (1) he made multiple complaints to supervisors Trodglen and Robertson about having to ride to his work site with other contractors, and he asked them when he would be getting his license, ECF No. 150 at 8 (citing ECF No. 143-4 at 163:8-17); (2) he made several "verbal inquiries" into how Hahn got the Theater Lead position, id. at 7 (citing ECF No. 143-4 at 135:6-8); and (3) he used the HR Department in Charleston to make complaints, noting that he "tried to get on the conference call with the HR lady," id. at 8 (citing ECF No. 143-4 at 183:21-25). He maintains that his conduct was sufficient to rise to the level of a complaint constituting protected activity. Id. (citing Faulconer v. Centra Health, Inc., No. 6:17-CV-00023, 2018 WL 2187447, at *4 (W.D. Va. May 11, 2018), affd, 808 Fed.Appx. 148 (4th Cir. 2020)). SAIC argues that none of these actions constitute protected activity. The undersigned will address each in turn.
Plaintiff incorrectly argues that the court in Falconer "held that a Plaintiff merely 'complain[ing] in passing about . . . alleged inappropriate contact with female employees" was sufficient to establish protections under Title [VII]." ECF No. 150 at 8. However, the court found the opposite, explaining several reasons why these "passing" complaints fell short of conveying an arguable Title VII violation by a supervisor. See Falconer, 2018 WL 2187447, at *4 (granting summary judgment for defendant).
A. Plaintiff Has Failed to Establish a Prima Facie Case of Retaliation Based on His Driver's License.
Plaintiff testified that he never asserted a workplace complaint about the fact that he had to catch rides with other contractors. ECF No. 143-4 at 163:1-165:9. Plaintiff also testified that he never complained that he thought the ten-month delay or any other issue with the driver's license was racially discriminatory. Id. at 171:2-10. Finally, Plaintiff testified that he thinks Trodglen's selection of Hahn as the Theater Lead was racially discriminatory, but this was the only act of discrimination he contends was committed by Trodglen. ECF No. 143-4 at 38:8-12. Thus, there is no evidence in the record that Plaintiff ever made any complaints related to his driver's license that conveyed to SAIC a reasonable belief that the delay was racially discriminatory or otherwise violated federal law. See McClam, 2015 WL 5554577, at *I4; see also Hemphill, 975 F.Supp.2d at 560 (citation and quotation marks omitted).
Moreover, Plaintiff cannot establish the remaining elements of his prima facie case, as he has failed to show a causal connection between his questions and complaints related to his driver's license and any adverse action. Accordingly, he has failed to establish a prima facie case premised on his driver's license.
B. Plaintiff Has Failed to Establish a Prima Facie Case of Retaliation Based on His Inquiries About Hahn.
Plaintiff testified that in June or July of 2016, he orally raised questions about how Hahn got the Theater Lead role. He further testified that he expressed that he did not think it was "fair," but he has no memory of raising race as an issue. ECF No. 143-4 at 136:4-139:17; 140:1-142:5, 143:4-23; see also ECF No. 143-10 at 10-11. However, an employee's statements about unfair treatment without mentioning discrimination do not constitute protected activity. See Hemphill, 975 F.Supp.2d at 562 (finding that an email containing allegations of unfair treatment; being spoken to in an unprofessional, disrespectful, and degrading manner; and being openly embarrassed and humiliated without mentioning discriminatory treatment based on race or sex could not be classified as protected activity under Title VII); Harris v. Home Sales Co., C. A. No. RDB 09-1109, 2011 WL 826347, at *5 (D. Md. Mar. 7, 2011) (finding letter sent to supervisor that said nothing about race discrimination and had one sentence about unfair job treatment "is not enough to trigger the protections of Title VII and Section 1981 or to put [employer] on notice that [plaintiff] was being discriminated against on the basis of race"). Thus, Plaintiffs inquiries into how Hahn got the Theater Lead role and his complaint that it was not "fair" are not sufficient to constitute protected activity, as nothing in those communications would have put SAIC on notice that Plaintiff opposed discriminatory conduct protected by Title VII or § 1981.
Moreover, Plaintiff cannot establish the remaining elements of his prima facie case, as he has failed to show a causal connection between these inquiries and any adverse action.
Accordingly, he has failed to establish a prima facie case premised on his inquiries into how Hahn became the Theater Lead.
C. Plaintiff Has Failed to Establish a Prima Facie Case of Retaliation Based on Any Complaints to HR.
Finally, Plaintiff contends that he engaged in protective activity when he used the HR Department in Charleston to make complaints, noting that he "tried to get on the conference call with the HR lady." ECF No. 150 at 8 (citing ECF No. 143-4 at 183:21-25). However, Plaintiff testified that although he tried to connect to the conference call with HR, he testified that he "couldn't hook up to the call" and got disconnected each time he got on the call. ECF No. 143-4 at 203:18-204:14. He further testified that did he not have an opportunity to speak before he got disconnected and, thus, never said anything on the call about a complaint of race discrimination. Id. Plaintiff also testified that he did not reach out to HR after the call to share his concerns about Hahn, nor did he use the anonymous hotline or go to Trodglen with his concerns. Id. at 204:15-205:7. There simply is no evidence in the record that Plaintiff made any complaints of race discrimination to HR, Trodglen, or any other management employee at SAIC, or engaged in any other type of activity that would not have put SAIC on notice that Plaintiff opposed discriminatory conduct protected by Title VII or § 1981. Accordingly, Plaintiff cannot establish the first element of his prima facie case.
Plaintiff attempts to create a question of fact by submitting an "Affidavit of Isaiah Rivers," another SAIC employee, in which Rivers states, among other things, that Rivers, Plaintiff, Jennings, and Nicos Singleton convened a group telephone conference with HR during which "[e]ach of us stated to [HR] that we felt we were being discriminated against." ECF No. 150-8. As an initial matter, this Affidavit suffers from multiple defects, as it lacks foundation to show that Rivers has personal knowledge or is competent to testify on any of the matters therein. See Fed. R. Civ. P. 56(c)(4); Fed.R.Evid. 602; see also Jones v. Eaton Corp., No. CV 3:15-4326-JMC-KDW, 2017 WL 2332638, at *3 (D.S.C. Feb. 9, 2017), adopted by, No. 3:15-CV-04326-JMC, 2017 WL 1190873 (D.S.C. Mar. 31, 2017). Moreover, Plaintiff cannot use the Rivers Affidavit to negate Plaintiffs sworn testimony that he never reported his concerns regarding Hahn on a call with HR. See Rohrbough v. Wyeth Labs, Inc., 916 F.2d 970, 975 (4th Cir. 1990) ("If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment[.]"). Accordingly, the Rivers Affidavit does not create any triable issues of fact.
Even if Plaintiff s attempted participation in an HR call were sufficient to create a question of fact about whether he engaged in protected activity, he cannot establish the remaining two elements of his prima facie case of retaliation. With respect to the adverse-action element, Plaintiff first maintains that he was subject to an adverse action in that he was not promoted to the Theater Lead position. ECF No. 150 at 8. However, because the Theater Lead decision was made in July 2016, eight months before the conference call with HR, it is impossible for this decision to be an adverse action in response to the HR call.
Plaintiff also contends that he was subject to an adverse action when he was constructively discharged, arguing that after he complained to HR, SAIC made Plaintiffs work life so "hostile" that he was forced to resign. ECF No. 150 at 9. He cites his testimony that he left SAIC's employ because "it was getting hostile." Id. at 9-10 (citing ECF No. 143-4 at 233-237). He also contends that "[i]t was not until he raised his complaints of discrimination that Mr. Trodglen would 'badger' him and he just 'couldn't be there anymore.'" ECF No. 150 at 9-10. He further argues that there was only a short period of time between his complaints and when he resigned following "the significant increase in mistreatment after his reports," thus creating a causal link between the first two elements. Id. at 10.
It appears that the use of "Trodglen" instead of "Hahn" is a scrivener's error. Plaintiff testified at his deposition that Trodglen did not engage in any retaliatory actions towards him after the March 15 call with Saari. See Id. at 219:15-221:4-9.
As an initial matter, the Court previously dismissed Plaintiffs hostile work environment claim and any claim based on constructive discharge, and Plaintiff cannot now revive those claims. See ECF No. 77 at 3, 11; see also ECF No. 63 at 16-22.
Furthermore, even if Plaintiff could still rely on a constructive discharge theory, the evidence offered by Plaintiff does not create a genuine issue of material fact as to constructive discharge. To demonstrate constructive discharge, Plaintiff must "show that his "working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign." Perkins v. Int'l Paper Co., 936 F.3d 196, 211-12 (4th Cir. 2019) (quoting Green v. Brennan, ___ U.S. ___, 136 S.Ct. 1769, 1776 (2016)). "[I]ntolerability is assessed by the objective standard of whether a 'reasonable person' in the employee's position would have felt compelled to resign, that is, whether he would have had no choice but to resign." Id. (internal quotation marks and alterations omitted).
Plaintiff testified that after March 15, 2017, Hahn engaged in "constant badgering about who was going to HR on him, was I one of the ones going to HR on him, just constant, constant, constant, every day." ECF No. 143-4 at 212:9-213:9. Plaintiff also testified that Hahn retaliated by saying, "What I say goes, and if you don't do it, you're fired," although Plaintiff could not recall when this happened. Id. at 214:1-215:8. Plaintiff believes Hahn also retaliated by overseeing the hours he was recording on daily reports and calling him too frequently. Id. at 215:14-218:16.
The Fourth Circuit has consistently held that "difficult or unpleasant working conditions and denial of management positions, without more, are not so intolerable as to compel a reasonable person to resign." Id. (being denied promotions, questioned about overtime, and assigned the 12-hour shift on the "wet end" of a machine instead of the shorter shift on the "dry end" of the same machine is not so intolerable as to compel a reasonable person to resign); see Williams v. Giant Food, Inc., 370 F.3d 423, 434 (4th Cir. 2004) (being yelled at, told you are a poor manager, required to work with an injured back and chastised in front of customers is not so intolerable as to compel a reasonable person to resign); Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 273 (4th Cir. 2001) (co-worker ostracism, denial of a management position and mandatory counseling for turning in an inaccurate time card would not have compelled a reasonable person to resign); Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994) (dissatisfaction with work assignments, perceived unfair criticism and difficult and unpleasant working conditions are not so intolerable as to compel a reasonable person to resign). Although the conditions Plaintiff describes may have been unpleasant, they do not rise to the level of intolerability sufficient to support a finding of constructive discharge.
Plaintiff has not created a question of material fact as to whether he was constructively discharged or otherwise subject to an adverse employment action following his attempt to speak to HR in March 2017, and, therefore, he cannot establish a prima facie case of retaliation on this basis. Accordingly, the undersigned recommends that summary judgment be granted to SAIC as to Plaintiffs retaliation claim.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that SAIC's Motion for Summary Judgment, ECF No. 143, be GRANTED and this action be DISMISSED.
The parties are referred to the Notice Page attached hereto.
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 & Ace. 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
Post Office Box 835
Charleston, South Carolina 29402
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).