Opinion
C/A 4:21-cv-00869-JD-KDW
06-23-2022
Shirley Cooper, Plaintiff, v. Louis DeJoy, Postmaster General, United States Postal Service, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Plaintiff Shirley Cooper (“Plaintiff” or “Cooper”) brings this action against her employer, Defendant United States Postal Service (“Defendant,” “USPS,” or the “Agency”), alleging reprisal in violation of Title VII of the Civil Rights Act of 1964, as amended, and a retaliatory hostile work environment because of prior Equal Employment Opportunity(“EEO”) activity. Compl., ECF No. 1. 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 (“Report”) regarding Defendant's Motion for Summary Judgment. ECF No. 31. Having reviewed the Motion and accompanying materials, ECF No. 31, 31-1 through -8; Plaintiff's Response, ECF No. 37, 37-1 through -2; Defendant's Reply, ECF No. 40; and applicable law, the undersigned recommends Defendant's Motion, ECF No. 31, be granted and this matter be ended.
As it must, the court considers the facts in the light most favorable to Plaintiff, the nonmoving party. These facts are derived from Defendant's Motion and Plaintiff's Response thereto. The court notes that Plaintiff did not include a separate recitation-of-facts section in her responsive memorandum, at times referring to Defendant's factual recitation. See, e.g., Pl. Mem. 8 (referring to Def. Mem. for details of certain allegations). To the extent necessary, additional facts are set out in relevant portions of this Report.
Plaintiff was a full-time employee of the United States Postal Service at all relevant times to the Complaint. Compl. ¶ 11. Plaintiff began working in the Post Office in Lake City, South Carolina, in December 2010 and was promoted to the job of postmaster in 2012. Compl. ¶ 15; Pl. Dep. 63, ECF No. 33-1. As of her December 2021 deposition in this case, Plaintiff remained the postmaster in Lake City, although she was out on Family Medical Leave Act (“FMLA”) leave. Compl. ¶ 14; Pl. Dep. 10, 63, 124. Plaintiff indicated in that deposition that she was “[p]robably” going to retire at the end of April 2022. Pl. Dep. 124. Plaintiff's Complaint concerns alleged acts of reprisal/retaliation that she included in two different EEO Complaints: EEO case 4K-290-0054-18 (the “2018 EEO Complaint”) and EEO case 4K-290-0002-20 (the “2020 EEO Complaint”). Compl. ¶ 4; 2018 EEO Complaint, ECF No. 21 at 3-4; 2020 EEO Complaint, ECF No. 21 at 1-2. An Equal Employment Opportunity Commission (“EEOC”) Administrative Judge granted summary judgment in favor of the Agency, dismissing the 2018 EEO Complaint on February 11, 2021. Compl. ¶ 5; EEOC Summ. J. Order, ECF No. 21 at 8-11. The EEOC dismissed the 2020 EEO Complaint, and the EEOC's Director, Office of Federal Operations, upheld that dismissal in a December 29, 2020 Decision on Request for Reconsideration. Compl. ¶ 6; EEOC Decision on Req. for Recons., ECF No. 21 at 5-7. On March 25, 2021, Plaintiff filed her Complaint in this court, consolidating her appeal related to both the 2018 and 2020 EEO Complaints. Plaintiff indicates she has exhausted her administrative remedies, Compl. ¶¶ 7-9; Defendant does not dispute that the claims in the 2018 and 2020 Complaints have been administratively exhausted.
In her Complaint, Plaintiff indicates she also had filed formal EEO complaints on October 13, 2010, November 8, 2010, February 28, 2005, and July 27, 2006. Compl. ¶ 26. These EEO complaints were based on “discrimination” (of a type not indicated in the Complaint herein). Id. ¶¶ 17-19. The record does not include copies of the 2005, 2006, or 2010 complaints.
Plaintiff bases her retaliation claims on several different events she alleges took place on February 8, 2018, April 9, 2018, and October 3, 18, and 22, 2019. ECF No. 1, ¶¶ 33, 34, 51, 54; ECF No. 21.
A. Allegations in 2018 EEO Complaint, 4K-290-0054-18
In her 2018 EEO Complaint, 4K-290-0054-18, Plaintiff alleged that Daryl Martin, District Manager; Stephan Slaughter, Post Office Operation Manager (“POOM”), Low Country; and Sharon Keels, Human Resources (“HR”) Manager, retaliated against her on February 8, 2018 on the basis of prior EEO activity. 2018 EEO Complaint, ECF No. 21 at 3. (Although the Complaint form instructs the complainant to “Specific Prior EEO Activity,” Plaintiff does not do so.) In explaining the specifics of her retaliation claim, Plaintiff alleges her “mgrs. tried to destroy [her] through supervisor defiant actions.” Id. Plaintiff indicates she had a subordinate supervisory employee who “is very deficient & refuse[s] to do her assigned job.” Id. Plaintiff says her managers would yell at her for giving instructions to her subordinate employee. Id.
Portions of Plaintiff's handwritten description of the alleged retaliation are difficult to read.
In a July 30, 2018 Letter from USPS EEO Services Analyst Vince Catalano, the Agency acknowledged receipt of Plaintiff's 2018 EEO Complaint and advised her the Agency would investigate certain issues. July 30, 2018 Acceptance for Investigation Letter (“Acceptance Letter”), ECF No. 31-2 at 1-4. The Agency set out the following as having been accepted for investigation, indicating the “scope of the investigation will include the following issue(s) only”:
Specific Issue(s): You [meaning Plaintiff] allege discriminatory harassment on the basis of Retaliation (Prior EEO Activity), when:
1. On or about April 9, 2018, you were subjected to an investigative interview;
2. On date(s) to be provided, you have been spoken to in a loud manner, belittled; and/or your supervisor talked over you while trying to discuss matters;
3. On dates to be provided, management has not provided you with the tools to succeed at her job;
4. On a date to be provided, your manager attempted to place a letter of warning in your personnel file; and
5. On a date to be provided, the District Manager of Human Resources during a conference call spoke to you in a loud disrespectful tone.
Acceptance Letter as to 2018 EEO Complaint, ECF no. 31-2 at 1-2. In a footnote, the Agency noted that Plaintiff made initial contact with an EEO Counselor on April 2, 2018, and that, based on 29 C.F.R. § 1614.105(a)(1), only discrete acts that took place within 45 days prior to that contact (February 16, 2016) would be considered timely, although earlier acts would be considered as part of the overall harassment claim. Id. at 1 n.1 (citing Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002)).
B. Allegations in 2020 EEO Complaint 4K-290-0002-20
In her 2020 EEO Complaint, 4K-290-0002-20, Plaintiff alleged that Low Country POOM Slaughter retaliated against her on October 3, 18, and 22, 2019, on the basis of her prior EEO activity. 2020 EEO Complaint, ECF No. 21 at 1. In the space provided for Plaintiff to specify her prior EEO activity she wrote, “Quid pro quo & sexual harassment.” Id. In explaining the specifics of her retaliation claim, Plaintiff alleges Slaughter had not concurred with her October 3, 2019 request to discipline a supervisor who worked for her; and Slaughter had advised Plaintiff to report to Charleston for an investigative interview on a certain date in October but he changed the date to the following day, October 22, 2019. Id.
The November 25, 2019 Report of EEO Dispute Resolution Specialist (“EEODRS”) Deborah A. Felder identified the issues in Plaintiff's 2020 EEO Complaint as follows:
The Counselee [meaning Plaintiff] alleges that she is being harassed and subjected to a hostile work environment based on Retaliation (4K-290-0054-18): when 1) on 10/7/2019, Counselee's decision to deny allowing her supervisor to go on a detail assignment was overruled by the Post Office Operations Manager; and 2) on numerous other occasions (dates not specified) the POOM sided against Counselee in support of her Supervisor instead.EEODRS Report, ECF No. 31-3 at 1.
Although the EEODRS Report does not use the “accepted for investigation” phrase, Defendant characterizes the EEODRS's listing of the issues in the 2020 EEO Complaint as being the issues that were “accepted for investigation as part of the 2020 EEO Complaint[.]” Def. Mem. 3
C. Plaintiff's allegations as to reprisal and retaliatory hostile work environment
In setting out “Plaintiff's Statement of Facts,” Defendant includes a section of allegations taken from Plaintiff's Complaint in this action. Def. Mem. 4-6. Certainly, Plaintiff is required to provide more in support of her allegations to survive the summary-judgment stage. Oakwood Prod., Inc. v. SWK Techs., Inc., No. 9:20-CV-04107-DCN, 2022 WL 2107423, at *7 (D.S.C. June 10, 2022) (noting plaintiff could not rely on complaint's general allegations at the summary judgment stage). However, because neither party has included a statement of facts that includes detailed citation to the record that has been developed in this matter, the undersigned includes this summary of the Complaint's allegations much as provided by Defendant in seeking summary judgment. To the extent they are provided and are relevant to the issues raised in the pending summary judgment motion additional record citations will be provided in the analysis, infra.
Plaintiff indicates her October 13, 2010 EEO claim was brought against Nicholas Pinaldi and Robert Bergdorf “based on discrimination.” Compl. ¶ 17. The 2006 EEO claim was brought against Pinaldi and Bruce Fowler “based on discrimination.” Id. ¶ 18. The 2005 EEO claim was brought against Fowler “based on discrimination.” Id. ¶ 19.
After noting her earlier (2005, 2006, and 2010) EEO activity, Plaintiff alleges that Slaughter, her first line supervisor, was “aware of Plaintiff's prior EEO because of his involvement with Mr. Bergdorf who was one of Mr. Slaughter's manager[s].” Compl. ¶ 27. Plaintiff avers Slaughter “made a negative statement towards Plaintiff during a training session,” and Bergdorf “responded stating that he thought Plaintiff would respond negatively towards Mr. Slaughter[,] insinuating that she was a complicated employee.” Id. ¶ 28. Further, Plaintiff claims that Slaughter and Bergdorf had a “close professional relationship and would discuss employees within the Agency[,] including Plaintiff.” Id. ¶ 29. Plaintiff contends that Slaughter “demeaned Plaintiff's leadership style and failed to provide alternatives or the resources to carry out Plaintiff's job duties,” and that Slaughter “would belittle and yell at Plaintiff without justification.” Id. ¶¶ 30, 32. As an example, Plaintiff states that Mr. Slaughter asked her, “how did you get your job if you don't know how to do this?” Id. ¶ 31. Plaintiff also alleges that on or about April 9, 2018, Slaughter “tried to get Plaintiff to go against the policy by suggesting that she accepted a Letter of Warning that would be placed in her personnel file to prove that Postmasters are held accountable even though he was aware Plaintiff did not do anything warranting the Letter of Warning.” Id. ¶ 33.
Plaintiff's allegations also focus on Plaintiff's supervision of a subordinate manager, Patty Gautier Williams, who was the Lake City Supervisor. Compl. ¶ 24. Plaintiff indicates Gautier Williams was “defiant.” Id. ¶ 34. Plaintiff alleges that, on February 8, 2019, she requested Slaughter's assistance in dealing with Gautier Williams; however, Slaughter advised Plaintiff she should deal with Gautier Williams “because she should always find out about an employee's EEO participation and call their references before hiring the employee.” Id. Then, on or around October 3, 2019, Slaughter failed to “concur with Plaintiff's request to issue discipline to Ms. Gautier and overruled Plaintiff's decision to deny Ms. Gautier permission to go on a detail assignment.” Id. ¶ 35. Plaintiff alleges that “[o]n October 22, 2019, [she] was directed to report for an unjustified investigative interview.” Id. ¶ 36.
Plaintiff also avers that, in derogation of the chain of command, when Plaintiff instructed Gautier Williams to do something, Slaughter or her second line supervisor, Mr. Daryl Martin, “would override Plaintiff's authority.” Compl. ¶ 38. Plaintiff alleges Ms. Gautier Williams displayed “threatening behavior toward Plaintiff” in an attempt to provoke her into a physical confrontation, id. ¶ 39, and that when Plaintiff gave Gautier Williams a “Letter of Warning,” Gautier Williams hit a clerk on the shoulder, balled up the Letter of Warning and walked towards Plaintiff's desk, yelled at Plaintiff, and pointed her fingers at Plaintiff in an “angry, disrespectful manner[,]” id. ¶¶ 40-41. Plaintiff alleges that on or about January 20, 2018, Gautier Williams scratched Plaintiff's car. Id. ¶ 43. Plaintiff indicates she “continuously reported” Gautier Williams' “inappropriate behaviors and nothing was done.” Id. ¶ 42. Plaintiff alleges that Martin “denied Plaintiff the opportunity to plea[d] her case or provide her with the resources and tools needed to address the issues with Ms. Gautier when he only reviewed the documents that Ms. Gautier had to show and failed to review Plaintiff's documents.” Id. ¶ 44. Plaintiff also alleges that HR Manager Sharon Keels was aware of Plaintiff's prior EEO participation “because she [Keels] was mentored by Mr. Jack Mabe and Mr. John Fry who told her about Plaintiff as an employee with the Agency.” Id. ¶ 46. Plaintiff also avers that, as HR Manager, Keels “knew about EEO activities since the actions would have been against the Agency.” Id. ¶ 47. Plaintiff indicates Keels “yelled at Plaintiff on a three-way call” sometime in January 2018, and “referred Plaintiff back to Mr. Slaughter,” even though Plaintiff explained to Ms. Keels that Mr. Slaughter was “not going to assist Plaintiff with dealing with a defiant employee.” Id. ¶ 51.
The Complaint does not explain who Martin and Fry are. In her declaration HR Manager Keels explains that Fry was the HR Manager for the Greater South Carolina District from August 5, 2006, until his retirement on January 31, 2016. Declaration of Sharon Keels ¶ 9, ECF No. 31-4. Mabe was the Human Resources Officer for the Greater South Carolina District from December 26, 1992, until his retirement on December 23, 2005. Keels Decl. ¶ 10; see also Pl. Dep. 45-50.
Plaintiff alleges Fry did not like her, and on an unspecified date, said words to the effect that “it would have been better if some people never got hired,” purportedly referring to Plaintiff. Compl. ¶ 48. Plaintiff also alleges that, as to an unspecified year, Fry assisted in “preventing Plaintiff from getting a high National Performance Assessment rating.” Compl. ¶ 49. Plaintiff explained in her deposition that this National Performance Assessment rating was the subject of her 2010 administrative action, No. 4K-290-0084-10. Pl. Dep. 36-39.
Plaintiff alleges that, on an unspecified date, Mabe told her that she would never be a Postmaster because she had filed an EEO. Compl. ¶ 50. Plaintiff indicated in her deposition that she had made this statement as part of another prior EEO action, No. 4C-290-0028-05. Pl. Dep. 50, 119-20.
Plaintiff alleges that she was subjected to “Harassment (Non-Sexual) Hostile Work Environment” based on retaliation “on or around January 2018 until April 2020, when Mr. Slaughter and Ms. Gautier Williams transferred to other Post Offices.” Compl. ¶ 54. Plaintiff avers that Martin, Slaughter, Keels, and Gautier Williams harassed her “through their actions and inactions.” Id. ¶ 55.
II. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
III. Analysis
A. Title VII retaliation/reprisal claims
1. Legal standard
Defendant challenges Plaintiff's Title VII retaliation/reprisal claim. For government employees such as Plaintiff, Section 2000e-16(a) of Title 42 applies and provides that “[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Moreover, Title VII makes it “an unlawful employment practice for an employer to discriminate against any of [its] employees . . . because he has made a charge . . . in an investigation, proceeding, or hearing” by the EEOC. 42 U.S.C. § 2000e-3(a). See Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011) (“Although neither the Supreme Court nor our court has squarely addressed whether 2000e-16(a) prohibits retaliation, reading these provisions together leaves us with little doubt that Congress incorporated the protections against retaliation afforded to private employees by 2000e-3(a).” (citations omitted)).
Just a few months ago the Fourth Circuit noted, in the federal-employment context, that Title VII's “anti-retaliation provision [42 U.S.C. § 2000e-3(a)] is meant to prevent ‘an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.'” Walton v. Harker, 33 F.4th 165, 171 (4th Cir. 2022) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006)). The Walton v. Harker court affirmed that employees could prove their employers “retaliated against them for engaging in protected activity through one of two ways: (1) by direct evidence of retaliatory animus; or (2) through the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework.” Walton v. Harker, 33 F.4th at 171 (citing Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015) (concerning, inter alia, Title VII retaliation claims)). Direct evidence “‘is evidence which, if believed, would prove the existence of a fact without any inference or presumptions.'” Walton v. Harker, 33 F.4th at 171 (quoting O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995) (cleaned up), rev'd on other grounds, 517 U.S. 308 (1996)). Direct evidence is “evidence of conduct or statements that reflect the alleged discriminatory attitude and that bear directly on the contested employment decision.” Id. at 176-77 (citing Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982)). Absent direct evidence, an employee may establish a prima facie case of discrimination by demonstrating the following: “‘(1) she engaged in a protected activity, (2) the employer acted adversely against her, and (3) there was a causal connection between the protected activity and the asserted adverse action.'” Walton v. Harker, 33 F. 4th at 177 (quoting Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011)). If a prima facie case is established, the burden of persuasion shifts to the employer to provide a legitimate, non-retaliatory basis for having taken the particular employment action at issue. If the employer articulates a legitimate, non-retaliatory reason, the burden then shifts back to plaintiff to establish that the employer's explanation is merely a pretext for unlawful retaliation. Id. at 178.
In seeking summary judgment, Defendant analyzes Plaintiff's claims under the familiar burden-shirting rubric, arguing Plaintiff has not set out direct evidence of retaliation, nor has she set out a prima facie of retaliation using the burden-shifting framework. Even if Plaintiff were considered to have set out a prima facie case, Defendant argues, Plaintiff cannot prevail because she has not established Defendant's proffered legitimate, nondiscriminatory reasons for its actions were pretextual. See Def. Mem. 8-25. In response, however, Plaintiff eschews the McDonnell Douglas framework, arguing the United States Supreme Court's decision in Babb v. Wilkie, 140 S.Ct. 1168 (2020), a case considering a federal employee's ADEA claims, “changes discrimination and retaliation standards in Title VII Cases involving the federal government, overruling most prior decisions.” Pl. Mem. 2; see id. 2-15.
The Babb Court found that the ADEA required that all “personnel actions” in the federal employment context be “free from discrimination,” meaning sch actions cannot be “tainted” by consideration of protected characteristics. Babb, 140 S.Ct. 1172-73 (looking to 5 U.S.C. § 2302(a)(2)(A)'s definition of “personnel actions” in the federal-employee context). Further, the Court held that “age need not be a but-for cause of an employment decision” for a plaintiff to prove discrimination. Id. at 1172. Instead, age must be “the but-for cause of differential treatment,” not the but-for cause of an ultimate employment decision. Id. at 1174 (emphasis in original). As a result, at least with respect to liability, a federal employee alleging discrimination under the ADEA need only show that age discrimination played “any part” in the way that the federal employer made a personnel decision. Id. The Supreme Court made clear, however, that to obtain full relief- as differentiated from the proof required to establish liability-more was required. Babb, 140 S.Ct. at 1171. To obtain full relief, including “hiring, reinstatement, backpay, and compensatory damages,” a plaintiff still must show that discrimination was the “but-for cause of the challenged employment decision.” Babb, 140 S.Ct. at 1171. Consequently, to obtain all forms of relief under the ADEA, a plaintiff must show that “a personnel action would have been different if age had not been taken into account.” Id. Where a plaintiff only can show that discrimination was the but-for cause of differential treatment, but not the but-for cause of an employment decision, the plaintiff may be entitled to “injunctive or other forward-looking relief.” Id. at 1178.
On Reply, Defendant argues that Babb addressed ADEA claims only and neither that decision nor any decision of the Fourth Circuit has extended Babb's analysis to any other types of federal-employee claims, including Title VII claims. Reply 3 n.1. The undersigned agrees with Defendant. While the Court's decision in Babb undoubtedly represents a sea-change in the way ADEA claims brought by federal employees are analyzed, nothing in the Babb opinion purports to extend its holding to other claims brought by federal employees, including Title VII claims. The court does note that, when the Babb matter was remanded, the Eleventh Circuit determined that the reasoning of Babb would also apply to Title VII claims brought by federal employees. Babb v. Sec'y, Dep't of Veterans Affs., 992 F.3d 1193, 1200-06 (11th Cir. 2021). However, as correctly pointed out by Defendant, the Fourth Circuit has not adopted that analysis. Cf. Hoang v. Wilkie, C. A. No. 18-cv-01755-RM-KLM, 2021 WL 4913244, n. 2 (D. Co. Aug. 11, 2021) (declining to apply Babb's ADEA rubric to Title VII claims, noting the Tenth Circuit (in which Colorado is situated) had not adopted the premise and that a key cite history of Babb shows that its holding had so far been limited to the Eleventh Circuit). Indeed, without discussing Babb, earlier this year in Walton v. Harker, 33 F.4th 165, the Fourth Circuit applied its longstanding Title VII analysis to claims brought by a federal employee. Since the 2020 Babb decision, neither the Supreme Court nor the Fourth Circuit has specifically addressed how (or whether) the Babb decision impacts a Title VII claim brought by a federal employee. See United States v. Chong, 285 F.3d 343, 34647 (4th Cir. 2002) (noting that only the Supreme Court or an en banc decision can overrule precedent set by a Fourth Circuit panel). Absent a controlling holding to the contrary, the undersigned considers Plaintiff's Title VII claims based on still-controlling, pre-Babb law, including the McDonnell Douglas framework and the requirement of materially adverse actions that are causally related to protected activity in order to demonstrate a prima facie retaliation claim. While this analysis is somewhat hamstrung given that Plaintiff's brief does not specifically address Defendant's Fourth-Circuit-law-based arguments, the undersigned endeavors to parse Plaintiff's arguments in the context of the applicable legal standard.
The only published Fourth Circuit case considering Babb in any detail focuses on whether a disparate-impact claim may lie under the federal-sector's ADEA provision-an issue not relevant here. DiCocco v. Garland, 18 F.4th 406, 421 (4th Cir. 2021), reh'g en banc granted, No. 20-1342, 2022 WL 832505 (4th Cir. Mar. 21, 2022). See also Kitlinski v. United States Dep't of Just., 994 F.3d 224, 232 & n.7 (4th Cir. 2021), cert. denied sub nom. Kitlinski v. Dep't of Just., 142 S.Ct. 778, (2022) (considering plaintiffs' Title VII retaliation claims using McDonnell Douglas's prima facie framework, acknowledging Babb's impact on the causation standard for federal-employee ADEA claims, but noting, “We need not decide Babb's applicability in the Title VII context here[,]” but also noting the employees had not pointed to “any evidence that they suffered any differential treatment based on their USERRA-protected activity, so their Title VII claim fails even under Babb's lower causation standard.”).
2. Plaintiff has presented no actionable direct evidence of retaliation
Defendant first argues Plaintiff has not presented direct evidence of retaliation sufficient to survive summary judgment. Def. Mem. 17-18. To proceed using direct evidence Plaintiff would need to provide “evidence of conduct or statements that reflect the alleged discriminatory attitude and that bear directly on the contested employment decision.” Walton v. Harker, 33 F.4th at 176-77. Defendant notes Plaintiff's claim that, in discussing the supervision of Gautier Williams, Slaughter advised Plaintiff she should “always find out about an employee's EEO participation and call their references” before hiring them. Def. Mem. 17 (citing Compl. ¶ 34). Pointing to Plaintiff's deposition testimony that Slaughter's alleged statement related to how to manage Gautier Williams, Defendant argues the remark is not actionable as it does not “bear directly on” any employment decision contested by Plaintiff. Id. (citing Pl. Dep. 82).
Plaintiff does not respond to this argument other than to generally argue that the remark “allows an inference from Mr. Slaughter of retaliatory animus and that he would say that points to an atmosphere of retaliation.” Pl. Mem. 6. Plaintiff cites no case law, nor does she attempt to tie Slaughter's remark to anything she alleges happened to her.
The court agrees with Defendant that Plaintiff has not provided direct evidence of retaliation sufficient to survive summary judgment. Slaughter's remark, which is accepted as true for purposes of this motion, may be considered a “stray or isolated” remark that generally might suggest an attitude of retaliation against those who file EEO complaints. However, “in the absence of a clear nexus with the employment decision in question, the materiality of stray or isolated remarks is substantially reduced.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010); see Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999), overruled on other grounds by Desert Palace v. Costa, 539 U.S. 90 (2003)) (“[U]nless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of discrimination.”).
3. Prima facie case
As noted above, to establish a prima facie case of retaliation in contravention of Title VII, a plaintiff must prove (1) that she engaged in a protected activity, (2) that her employer took an adverse employment action against her, and (3) that there was a causal link between the protected activity or activities and the asserted adverse action(s). Walton v. Harker, 33 F. 4th at 177; see also Kitlinski, 994 F.3d at 232.
a. Protected activity
Defendant concedes Plaintiff has participated in protected activity by filing EEO complaints in 2005, 2006, 2010, 2018, and 2020.
In one part of its brief Defendant identifies Plaintiff's “prior protected activity” as including the 2005, 2006, and 2010 EEO complaints. Def. Mem. 9 (citing Compl. ¶¶ 16-19). It appears that Defendant's characterization is in the context of the Complaint's focusing on those earlier EEO complaints. See id.; see also Compl. ¶ 26 (identifying the 2005, 2006, and 2010 as the protected activity on which her reprisal cause of action were based). To be sure, Plaintiff's 2018 and 2020 EEO Complaints unquestionably are also protected activity. Nothing in Defendant's Motion disputes that all of the EEO complaints-including the 2018 and 2020 EEO Complaints-are Title VII protected activity.
b. Adverse employment actions
Defendant also argues Plaintiff has not established a prima facie case of retaliation because she has not set out any adverse action as part of her retaliation claim. Def. Mem. 11-15.
In evaluating adverse employment actions in the retaliation context, courts use a less strenuous standard than that applied in discrimination claims. Specifically, the adverse action component of a retaliation claim “is not limited to discriminatory actions that affect the terms and conditions of employment.” See Williams v. Prince William Cnty., Va., 645 Fed.Appx. 243, 244-45 (4th Cir. 2016) (citing Burlington N., 548 U.S. 53, 64 (2006)). Instead, a plaintiff may satisfy the adverse action prong of her Title VII retaliation claim by showing that the employer took “materially adverse” action in response to her complaints, “which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” See id. at 445 (referencing Burlington N., 548 U.S. at 68).
Although the standard for establishing adverse action is more flexible under a retaliation claim, the anti-retaliation provisions of Title VII protect individuals from harm that has “‘some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it.'” Gillaspie v. Harker, No. 219CV00453DCNMHC, 2022 WL 1057180, at *19 (D.S.C. Jan. 24, 2022) (quoting Ray v. Int'l Paper Co., 909 F.3d 661, 670 (4th Cir. 2018), and finding summary judgment appropriate as to federal-sector employee's Title VII retaliation claim because, among other reasons, plaintiff had not set out materially adverse actions), report and recommendation adopted sub nom. Gillaspie v. Del Toro, No. 219CV00453DCNMHC, 2022 WL 909386 (D.S.C. Mar. 29, 2022).
Here, construed in the light most favorable to Plaintiff, she claims the following retaliatory actions:
2018 EEO Complaint:
• She was subjected to an investigative interview on April 9, 2018;
• She was “spoken to in a loud manner” and “belittled” by her supervisor, and the HR Manager spoke to her in a “loud disrespectful tone”;
• She was “not provided [] with the tools required to succeed at her job”; and
• Her manager “attempted to place a letter of warning in her personnel file.”
Acceptance Letter for 2018 EEO Complaint, ECF No. 31-2 at 1; Pl. Mem. 8 (citing 2018 EEO Complaint, ECF No. 21 at 1-5).
2020 EEO Complaint:
• On October 7, 2019, Plaintiff's decision to deny allowing Gautier Williams to go on a detail assignment was overruled by POOM Slaughter;
• On “numerous occasions” POOM Slaughter sided with Gautier Williams rather than Plaintiff.EEODRS Report, ECF No. 31-3 at 1; Pl. Mem. 8.
Defendant argues none of the actions (or nonactions) on which Plaintiff bases her 2018 and 2020 EEO Complaints would be considered a “materially adverse action” for purposes of her Title VII retaliation claim. Def. Mem. 8-16. As noted by Defendant, an “‘employer's action is not materially adverse [] if it amounts to “petty slights or minor annoyances that often take place at work and that all employees experience.'” Wells v. Gates, 336 Fed.Appx. 378, 383 (4th Cir. 2009) (quoting Burlington N., 548 U.S. at 68). To make such an assessment, the court looks to the context of the claimed actions. 336 Fed.Appx. at 383 (citing 548 U.S. at 69).
Defendant first points out that Plaintiff has not alleged any loss of pay or other tangible benefits, nor has she alleged any negative performance evaluations, transfers, or reassignments. Def. Mem. 11-12 (citing Compl; Pl. Dep. 26, 29). Next, Defendant notes that several of Plaintiff's allegations-including her claim that she was not given the tools to succeed at her job and her complaint that managers declined to approve her decisions regarding how to discipline Gautier Williams-are not actionable as they concern inaction on the part of Defendant. The Fourth Circuit has found that inaction on the part of the employer does not amount to a materially adverse action for purposes of retaliation claims. See Cooper v. Smithfield Packing Co., Inc., 724 Fed.Appx. 197, 202 (4th Cir. 2018) (affirming dismissal of retaliation claim, finding employee's allegations that Defendant failed to investigate her complaints about a supervisor, failed to transfer her, and caused her to continue to be supervised by the supervisor about whom she had complained were not materially adverse actions). Defendant also cited Plaintiff's deposition testimony in which she indicated her belief that Slaughter's not disciplining Gautier Williams the way Plaintiff wanted to was not that it impacted Plaintiff directly but that she believed it could impact the behavior of others in the future. Reply 5 (citing Pl. Dep. 109-10). Finally, Defendant argues that Plaintiff's allegations that Slaughter requested to put a letter of warning in her file and that she had to attend an investigative interview that resulted in no consequences did not have any impact on her and are not actionable. Def. Mem. 12-13 (citing several cases).
In response, Plaintiff first submits that cases cited by Defendant have been “overruled” by Babb and that the new standard is that any and all “personnel actions” are actionable as claims of retaliation. Pl. Mem. 7. However, as discussed above, Babb spoke only to the standard applicable to ADEA claims brought by federal employees. As of this writing, the Fourth Circuit has not “overruled” or otherwise spoken about federal-employee Title VII claims in light of Babb.
In responding to summary judgment Plaintiff offers some additional information regarding her allegations of retaliation. Regarding Plaintiff's allegation that her supervisor had attempted to place a letter of warning in her file, Plaintiff stated the following:
8. On or around April 9, 2018, Mr. Slaughter called me and discussed the incident with Ms. Williams and asked me to agree to a letter of warning being placed in my file for six months.
9. I had problems with Ms. Williams as an employee as she would not listen to me, failed to carry out her supervisory duties, and would go to upper management with concerns. For instance, when I instructed her to do something that she did not want to do she would call Mr. Martin or Mr. Slaughter, and they would override my authority and advise Ms. Williams about what she should or should not do.Pl. Decl. in Supp. of Summ. J. ¶¶ 8-9, ECF No. 37-1 (it is not clear whether the “incident with Ms. Williams” referenced in paragraph 8 is the same as the “problems” with Ms. Williams discussed in paragraph 9). In her memorandum opposing summary judgment Plaintiff further explains that for Slaughter to place a letter of warning in Plaintiff's file would “go against Agency's standards of conduct.” Pl. Mem. 10 (citing “Ex. D 665 Postal Service Standards of Conduct”; however, the court is aware of no “Exhibit D,” nor is a copy of 665 Postal Service Standards of Conduct part of the record herein).
However, Plaintiff never explains why Slaughter's asking Plaintiff whether he could place a Letter of Warning in her file would be an adverse action. Significantly, there is no indication that the letter was ever placed. In fact, Plaintiff actually indicated in her deposition that Slaughter had “wanted to call [her] in for an investigative interview, but he -during the interview, he realized how ridiculous that was and he didn't submit it. He didn't send me a letter of warning or anything.” Pl. Dep. 106. Something that never actually happened would not be material, and it does not seem this hypothetical incident could even satisfy the less-stringent “personnel action” definition Plaintiff wishes to use. E.g., Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 755 (4th Cir. 1996) (affirming there was no materially adverse action when warning letter had been placed in employee's file but subsequently had been removed); decision abrogated on other grounds by Roberts v. Glenn Indust. Group, Inc., 998 F.3d 111, 120 (4th Cir. 2021)); Kim v. Donahoe, No. 1:13-CV-838, 2015 WL 2169227, at *8 (M.D. N.C. May 8, 2015) (finding no materially adverse action when employer “ultimately removed the Letter of Warning from [the employee's] file.”); cf. Barnes v. Charles Cnty. Pub. Sch., 747 Fed.Appx. 115, 119 (4th Cir. 2018) (affirming district court's determination that employee's receipt of a letter of warning when employee warned that “future disciplinary actions could result in further discipline, including termination” was a materially adverse action).
Also, Plaintiff briefly argues she was forced to take leave without pay (“LWOP”) she should not have had to take. Pl. Mem. 10 (citing Decl.). However, her Declaration does not include any information about taking any leave without pay, nor does her memorandum further discuss the LWOP issue.
The court notes that one of the exhibits to Plaintiff's memorandum is a January 16, 2020 email she apparently sent to someone at an organization known as “NAPFE” in which she indicated she had received a paycheck with “0.00 net pay.” ECF No. 37-2 at 12. In her deposition, Plaintiff indicated she received a 0.00 paycheck because of an error in accounting for leave and was later paid for that time. See generally, Pl. Dep. 105-11. Plaintiff's brief does not discuss this allegation in any detail, nor is it referenced in her EEO actions.
Regarding the April 9, 2018 “investigative interview” of which Plaintiff complains, she testified that it took place but that the interview was not followed by Slaughter placing a letter in her file. Pl. Dep. 108. Slaughter has indicated in his declaration that he did “counsel” Plaintiff on April 9, 2018, although he indicates he did not conduct an “investigative interview.” Slaughter Decl. ¶ 5, ECF No. 31-5. Slaughter indicated he counseled Plaintiff to follow directions regarding allocation of custodian hours; however, Slaughter indicated that no disciplinary action followed from that counseling. Id.
Plaintiff suggests that Slaughter's indication that an “investigative interview” did not take place on April 9, 2018 creates a “genuine issue of fact.” Pl. Mem. 8. The undersigned disagrees. Whether the April 9, 2018 counseling is nominated an “investigative interview” or a “counseling,” both Plaintiff and Defendant note that no disciplinary action followed and nothing was placed in Plaintiff's file as a result. Plaintiff offers no authority to the contrary. Accordingly, the communication with Plaintiff on April 9, 2018 does not rise to the level of being a materially adverse action.
The undersigned agrees with Defendant that, taking all alleged actions in the light most favorable to Plaintiff, she has not established any materially adverse action and cannot establish this prong of her prima facie retaliation claim. See Hopkins, 77 F.3d at 755 (finding letter of warning that was removed from file and had no impact on employee was not materially adverse action for purposes of retaliation claim); see also, e.g., Drake v. Sci. Applications Int'l Corp., No. 217CV02664DCNMGB, 2019 WL 1574264, at *14 (D.S.C. Mar. 4, 2019) (finding employee's claims of heightened scrutiny, “stalking” to monitor work hours, and “angry and condescending” manner toward employee were not adverse actions in Title VII retaliation context), adopted, No. 2:17-CV-02664-DCN, 2019 WL 1571635 (D.S.C. Apr. 11, 2019); Toomer v. S.C. Bank and Trust, 5:06-2337-RBH, 2008 WL 725792, at *10 (D.S.C. Mar. 17, 2008) (finding that “silent treatment” from other employees was not sufficient evidence of an adverse employment action for purposes of a retaliation claim); Lee v. Jasper Cnty., No. 9:09-1878-SB-BM, 2012 WL 7149678, at *9 (D.S.C. Sept. 6, 2012), adopted, No. CIV.A. 09-1878, 2013 WL 594890 (D.S.C. Feb. 14, 2013) (concluding that “ignoring” and “bypassing” plaintiff did not constitute evidence of an adverse employment action for retaliation purposes). Accordingly, it is recommended that Defendant's Motion for Summary Judgment be granted as to Plaintiff's claims of Title VII retaliation.
The court notes that the “adverse employment action” requirement of a Title VII retaliation claim also may be satisfied by establishing a hostile work environment. See Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir. 2001) (“Retaliatory harassment can constitute [an] adverse employment action.”), abrogated on other grounds by Burlington N., 548 U.S. at 67-68. Plaintiff brought a separate cause of action for retaliatory harassment (hostile work environment), and the court addresses it separately below. Based on the below recommended finding that Plaintiff has not established harassment, she cannot establish retaliation in this way.
Further, it is far from clear that any complained-of actions or non-actions would even rise to the level of being “personnel actions” under the standard set out by Babb for ADEA claims brought by federal employees.
c. Causation
Even if Plaintiff could show Defendant took any materially adverse actions against her, the undersigned agrees with Defendant that Plaintiff cannot demonstrate the causation necessary to establish her prima facie case. The prima facie causation element requires that Plaintiff show that her employer “took the adverse action because of the protected activity.” Bryant v. Aiken Regional Med. Ctrs., Inc., 333 F.3d 536, 543 (4th Cir. 2003) (emphasis added) (internal citation omitted). As recently noted by the Fourth Circuit,
“A plaintiff may attempt to demonstrate that a protected activity caused an adverse action through two routes.” Johnson, 839 Fed.Appx. at 783-84. A plaintiff may establish the existence of facts that “suggest[] that the adverse action occurred because of the protected activity.” Id. (citing Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (recognizing that “relevant evidence may be used to establish causation”)). A plaintiff may also establish that “the adverse act bears sufficient temporal proximity to the protected activity.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). The existence of relevant facts alone, or together with temporal proximity, may be used to establish a causal connection between the protected activity and the adverse action. See id.Roberts v. Glenn Indus. Grp., Inc., 998 F.3d at 123. Roberts further noted that causation requires that a plaintiff “must show that the decisionmaker was aware of the protected activity at the time the alleged retaliation occurred.” Id. at 124; see id. at 124-25 (finding constructive knowledge on the part of the decisionmaker insufficient). Defendant argues Plaintiff has not presented direct evidence of causation or evidence that any decisionmaker was aware of the 2005, 2006, or 2010 EEO Complaints at the time the 2018 EEO Complaint was filed. Accordingly, Defendant argues that causation cannot be demonstrated. Def. Mem. 16-22, Reply 10-13.
In response, Plaintiff argues no response is really needed because Defendant “failed to discharge its initial burden on this matter [of causation].” Reply 5. Plaintiff submits that, “[a]mong other things, the Agency failed to set out the legitimate non-discriminatory reasons for these items [presumably the alleged adverse actions], which would be necessary for Plaintiff to show pretext.” Id. Plaintiff then indicates that “since she can point to at least some evidence, that should be enough, especially given the Agency's failure to meet [its] burden of production as to the rationales for its action.” Id.
As an initial matter, the undersigned notes that it is Plaintiff, not Defendant, who must provide some evidence of causation initially-whether direct evidence or evidence sufficient to satisfy the prima facie causation prong of the McDonnell Douglas proof scheme. It is only then that the burden of production shifts to Defendant to set out “legitimate, nondiscriminatory reasons for its [actions].” Walton v. Harker, 33 F. 4th at 178. If it does so, the burden shifts back to Plaintiff.
With this in mind the court has examined the evidence proffered by Plaintiff and Defendant and is of the opinion that summary judgment is appropriate. As noted above in finding Plaintiff had presented no direct evidence of retaliation, Plaintiff's reliance on Slaughter's supposed statement to Plaintiff that Plaintiff should look into a prospective employee's prior EEO activity and call his or her references does not suffice to show the requisite causation because it does not demonstrate Slaughter had discriminatory/retaliatory intent toward Plaintiff. See Merritt, 601 F.3d at 300. As Plaintiff noted in her deposition, that statement purportedly was made in the context of a discussion between Plaintiff and Slaughter regarding Plaintiff's frustration with Gautier Williams. Pl. Dep. 82. Further, Plaintiff recalls the statement was made in the 2017 time-frame, Id. at 83, which was seven-to-twelve years after her 2005, 2006, and 2010 EEO activity and before her 2018 and 2020 activity. See Walton v. Harker, 33 F.4th at 178 (affirming grant of summary judgment noting a stray remark made between plaintiff's 2005 and 2007 EEOC charges and the 2013 employment action at issue were insufficient to establish prima facie causation).
Further, the court notes Plaintiff's averment in her Complaint that John Fry, who was a “mentor” to HR Manager Keels, “did not like [her] and stated, ‘it would have been better if some people never got hired,' or words to that effect referring to Plaintiff.” Compl. ¶¶ 46, 48; see also id. ¶ 49 (averring Fry “assisted with preventing Plaintiff from getting a high National Performance Assessment rating.”). Plaintiff has not ascribed any timeframe to Fry's supposed remark, nor is there evidence regarding his involvement with her National Performance Assessment rating.
Defendant indicates Fry was the Human Resources Manager for the Greater District from August 5, 2006 until his January 31, 2016 retirement. Keels Decl. ¶ 9.
In her memorandum, Plaintiff generally references an “Ex. E NPA Rating,” Pl. Mem. 12, without providing more detail or indicating Fry's involvement with the rating or the timeframe. Pl. Mem. 12. However, there is no “Ex. E” to Plaintiff's memorandum, nor is there an exhibit called “NPA Rating.” The court does note an undated document that seems to relate to the 2018 EEO Complaint and references activity from late 2004 and early 2005 concerning “Mr. Fowler” and his involvement with giving Plaintiff particular NPA ratings. ECF No. 37-2 at 8. Plaintiff has indicated her 2005 EEO Complaint was filed “against Bruce Fowler based on discrimination.” Compl. ¶ 19. However, Plaintiff has offered no compelling evidence or argument to tie these remote events to supposed retaliatory actions raised in her 2018 and 2020 EEO Complaints.
The court also notes Plaintiff's averment that Jack Mabe, a former HR manager from December 1992 until his retirement on December 23, 2005, see Keels Decl. ¶ 10, said on some undefined date that “she [plaintiff] would be a Postmaster but because she filed an EEO, she would never be a postmaster or words to that effect,” Compl. ¶ 50. Plaintiff has provided no evidence or argument explaining how that supposed statement was causally related to any of the actions of which she complained in her 2018 or 2020 EEO Complaints. That Mabe retired in 2005 and that Plaintiff actually was a postmaster at the time she filed both the 2018 and 2020 EEO Complaints belies any argument otherwise.
Plaintiff also looks to a statement made by Mr. Robert Bergdorf, who had been the subject of Plaintiff's 2010 EEO Complaint when he was the POOM and Plaintiff was the postmaster for Hemingway, SC Compl. ¶ 17, Pl. Dep. 33, 36, 39. Plaintiff indicates that “[o]n or around November 2018” she was at a training where Slaughter made a negative statement towards her. Plaintiff did not respond to the comment, and Bergdorf “threw up his arms and said ‘awe Shirley come on,' suggesting that if were him [Plaintiff] would have reacted and giving Mr. Slaughter the impression that [Plaintiff] was a bad employee.” Pl. Decl. ¶ 4. Plaintiff notes that Slaughter worked for Bergdorf from “around April 2016 to November 2018” and that the two had a “close relationship[.]” Id. ¶ 5.
Plaintiff looks to the “close relationship” between Bergdorf and Slaughter to show that Slaughter had knowledge of Plaintiff's pre-2018 EEO activity. See Compl. ¶¶ 27, 29. In her deposition, though, Plaintiff acknowledged that she was assuming Bergdorf had told Slaughter about her prior EEO activity. Pl. Dep. 80. Plaintiff also acknowledges she does not know whether Martin or Keels had prior knowledge of her previous EEO activity at the time she filed the 2018 EEO Complaint. Pl. Dep. 62, 76-77. Instead, Plaintiff indicates she was “imputing knowledge” to her managers-Slaughter, Martin, and Keels-based on the fact that they would have had access to her prior EEO files. Pl. Dep. 104.
On the other hand, Keels indicates she had no knowledge of Plaintiff's EEO activity prior to her filing the 2018 EEO Complaint, nor did she advise Slaughter or Martin of the prior (2005, 2006, 2010) EEO activity prior to the filing of the 2018 EEO Complaint. Keels Decl. ¶ 4. Both Slaughter and Martin indicated they had no knowledge of Plaintiff's 2005, 2006, or 2010 EEO Complaints prior to her filing the 2018 EEO Complaint, nor did they have supervisory authority over her at that time. Slaughter Decl. ¶ 4; Martin Decl. ¶ 4.
Defendant does not dispute that Keels and Slaughter had knowledge of the 2018 EEO Complaint at the time Plaintiff filed the 2020 EEO Complaint.
Martin was District Manager for the Greater South Carolina District from August 2014 to July 2019. Martin Decl. ¶ 3.
As the Fourth Circuit made clear in Roberts v. Glenn Industrial Group, Inc., 998 F.3d at 122-25, speculation about how a supervisor may have “constructive knowledge” of prior EEO activity is insufficient. As to the 2018 EEO Complaint, then, Plaintiff has not established the requisite actual knowledge required to establish prima facie causation, nor can she show that the complained-of actions in 2018 and 2019 were in any manner temporally related to her 2005, 2006, or 2010 EEO Complaints.
As Plaintiff has pointed out, the 2018 EEO Complaint must also be considered to determine whether there could be a causal relationship between that February 2018 protected activity and the alleged actions complained of in the 2020 EEO Complaint, which was filed in October 2019 and complained of actions that took place in October 2019. However, “to prove a causal connection based on temporal proximity alone, the time between the protected activity and the adverse employment action must be ‘very close.'” Mahomes v. Potter, 590 F.Supp.2d 775, 785 (D.S.C. 2008) (citing Mitchell v. Sec'y Veterans Affairs, 467 F.Supp.2d 544, 553-54 (D.S.C. 2006)). The 20-month gap between the 2018 EEO Complaint and the events complained of in the 2020 EEO Complaint is too long to permit Plaintiff to show causation based on temporal proximity alone.
Plaintiff is unable to satisfy her burden of showing prima facie causation. Without further analysis, summary judgment as to the retaliation claim is appropriate. Even if the analysis were to continue to the pretext portion of the McDonnell Douglas proof framework, summary judgment remains appropriate.
4. Pretext framework
If a plaintiff succeeds in establishing a prima facie case, the burden then shifts to the employer to articulate some “legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. By providing such an explanation, the employer rebuts the presumption of discrimination created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). Once the employer articulates a legitimate, nondiscriminatory and nonretaliatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext and that discrimination or retaliation was the true reason for the action. McDonnell Douglas, 411 U.S. at 804. Failure to produce sufficient evidence to rebut the employers asserted nondiscriminatory reasons at the summary judgment stage results in judgment in favor of the defendant. Mitchell v. Sec'y Veterans Affairs, 467 F.Supp.2d 544, 554 (D.S.C. 2006).
In opposing summary judgment Plaintiff argues that Defendant “failed to set out the legitimate non-discriminatory reasons for” the complained-of actions, and submits this defeats Defendant's bid for summary judgment. Pl. Mem. 5. To the contrary, Defendant has set out legitimate, nondiscriminatory reasons for its actions related to Plaintiff. In his Declaration Slaughter indicated that he counseled Plaintiff various times, including on April 9, 2018 and other times regarding her need to follow directions in allocating hours for a custodian, regarding leave procedures, and regarding her conduct and professionalism. Slaughter Decl. ¶¶ 5, 6. Slaughter discusses the actions in October 2019 that are referenced in Plaintiff's 2020 EEO Complaint concerning discipline matters related to Gautier Williams. Id. ¶¶ 8-10. He indicates the purposes of these counseling sessions were not to discipline Plaintiff but to “make it clear to [Plaintiff] and Ms. Gautier Williams that they must treat each other with dignity and respect and refrain from arguing on the workroom floor.” Id. ¶ 9 (regarding February 2018 and October 2019 meetings).
To the extent that Plaintiff argues that the factual bases upon which Defendant took certain actions were incorrect, whether Defendant's reasons for taking certain actions were correct is immaterial. “It is not a court's province to decide whether an employer's reason [] was wise, fair, or even correct, ultimately, so long as it truly was the reason [].” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 211 (4th Cir. 2014) (punctuation and citation omitted). “Merely questioning the wisdom or correctness of a personnel action does not show that the proffered reason was false or unsupportable.” Cornelius v. City of Columbia, 663 F.Supp.2d 471, 478 (D.S.C. 2009), aff'd sub nom. Cornelius v. Columbia, City of, S.C., 399 Fed.Appx. 853 (4th Cir. 2010). “It is the perception of the decisionmaker which is relevant, not the self-assessment of the plaintiff.” Palomino v. Concord Hosp. Enters. Co., 126 F.Supp.3d 647, 654-55 (D.S.C. 2015) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)). “If ‘instead of producing evidence that shows [the supervisor's] assessment of her performance was dishonest or not the real reason for her termination-as the law requires-[the plaintiff] disputes the merits of [the] evaluations, then the plaintiff's objections are immaterial.” Id. (citing Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000)).
Here, Plaintiff takes issue with how Slaughter handled the discipline of Gautier Williams and how she was counseled. This is not sufficient to demonstrate pretext, however. Plaintiff has presented no evidence in the record that would support a finding that the legitimate reasons Defendant has articulated for taking the allegedly adverse actions are not the true reasons. “[T]he ‘ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination' remains with the plaintiff.” Sanders v. McLeod Health Clarendon, No. 2:18-cv-1344-DCN-MGB, 2020 WL 3467886, at *3 (D.S.C. June 25, 2020) (citing Lettieri v. Equant, Inc., 478 F.3d at 646). Here, Plaintiff is unable to satisfy this burden and Plaintiff's claims of retaliation cannot survive summary judgment.
B. Retaliatory harassment
Defendant also seeks summary judgment as to Plaintiff's claim of retaliatory harassment- also known as a retaliatory hostile work environment. As noted above, the existence of a hostile work environment-if established-can be considered the “adverse action” required for a Title VII retaliation claim. Von Guten, 243 F.3d at 869, abrogated on other grounds by Burlington N., 548 U.S. 53. To establish a prima facie case of retaliatory harassment, Plaintiff must establish: “(1) engagement in a protected activity; (2) subjection to severe or pervasive retaliatory harassment by a supervisor; and (3) a causal link between the protected activity and the harassment.” Pritchard v. Metro. Washington Airports Auth., No. 118CV1432AJTTCB, 2019 WL 5698660, at *10 (E.D. Va. Nov. 4, 2019), aff'd, 860 Fed.Appx. 825 (4th Cir. 2021).
Here, Defendant argues Plaintiff has not shown conduct that satisfies the “severe or pervasive” requirement. Def. Mem. 10-12. Plaintiff contends that she need not prove severe or pervasive conduct in order to meet her burden of proof, and that Defendant has cited cases overruled by Babb. Pl. Mem. 7 (arguing the “severe or pervasive” requirement is no longer applicable to federal employees based on Babb's “interpreting the much broader language” and “lower standard” applicable to federal employees, but acknowledging the Fourth Circuit has not ruled on this point).
As with the Title VII retaliation analysis discussed above, the undersigned finds that Babb has done nothing to “overrule” existing controlling Title VII precedent requiring an employee to establish “severe or pervasive” conduct by the employer in seeking to establish a hostile work environment for purposes of a retaliation claim (or otherwise). No case in the Fourth Circuit has suggested otherwise. See generally Pritchard v. Metro. Wash. Airports Auth., 860 Fed.Appx. 825, 827 (4th Cir. 2021) (decided after Babb; affirming summary judgment where plaintiff failed to support a prima facie case of retaliatory harassment with anything more than “minor workplace harms,” rather than the requisite “severe or pervasive retaliatory harassment”); Farmer v. Miller, No. 5:20-CV-00677-M, 2022 WL 857040, at *6 (E.D. N.C. Mar. 22, 2022) (post-Babb decision applying “severe or pervasive” standard in dismissing Title VII retaliatory harassment claim brought by government employee); Chand v. Harker, No. CV 3:20-01578-MGL, 2021 WL 1115912, at *4 (D.S.C. Mar. 24, 2021) (post-Babb decision, applying “severe or pervasive” standard to retaliatory harassment claim brought by government employee and dismissing same for failing to allege such conduct).
In making this recommendation, the court notes the Eleventh Circuit's finding on remand of Babb that Babb impacted then-existing Eleventh Circuit Title VII precedent such that the “less onerous ‘might have dissuaded a reasonable worker' test” of Burlington Northern, rather than the “severe or pervasive” test would apply to a retaliatory harassment claim. Babb v. Sec 'y, Dep't of Veterans Affs., 992 F.3d at 1196. However, as with the Title VII retaliation analysis discussed above, the Fourth Circuit has not revisited this issue.
Considering all evidence in the light most favorable to the nonmoving Plaintiff, the undersigned finds she cannot establish a prima facie claim of retaliatory harassment. The incidents and complaints she raises simply are not enough to show a “severe or pervasive” atmosphere. To establish a prima facie case of a hostile work environment, Plaintiff must show that the complained-of conduct “was sufficiently severe or pervasive to alter the conditions of” employment “and create an abusive work environment.” Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir. 2008). The analysis is two-fold; the alleged occurrences must be both severe and frequent for Title VII purposes. See, e.g., Shields v. Fed. Express Corp., 120 Fed.Appx. 956, 961 (4th Cir. 2005); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). There exists a “high bar in order to satisfy the severe or pervasive test” to state a prima facie case of hostile work environment. Sunbelt Rentals, 521 F.3d at 315. Indeed, there must be a showing that “the environment was pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.” EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 176 (4th Cir. 2009) (internal quotations omitted). Taken in the light most favorable to Plaintiff, she simply has not satisfied this “high bar.”
In support of her claim of retaliatory harassment, Plaintiff points to the following:
• her being called in for what she terms an investigative interview by Slaughter;
• her not having been provided with the “tools to succeed at her job”;
• her having been spoken to by Keels in a “loud disrespectful tone” during a conference call; and
• management's having sided with Gautier Williams over Plaintiff as to various decisions, including Plaintiff's plan to keep Gautier Williams from going on a detail assignment.See Pl. Mem. 8 (listing these actions). Most of these alleged actions or nonactions have been discussed above and do not rise to the level of a severe or pervasive environment. As to Keels' allegedly having addressed Plaintiff in a loud disrespectful tone, Keels has explained she recalls having to speak loudly because she was speaking from her automobile. Keels Decl. ¶ 7. In any event, none of these claims rises to the level of severe or pervasive. “[P]laintiffs must clear a high bar in order to satisfy the [objective] severe or pervasive test.” Perkins v. Int'l Paper, 936 F.3d 196, 207-08 (4th Cir. 2019) (citing Sunbelt Rentals, 521 F.3d at 315). “[I]ncidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.” Id. (citing Sunbelt Rentals, 521 F.3d at 315). “Rude treatment [] callous behavior by [one's] superiors, or a routine difference of opinion and personality conflict with one's supervisor, are not actionable under Title VII.” Id. (citing Sunbelt Rentals, 521 F.3d at 315-16). “The standards for judging hostility are sufficiently demanding to ensure that [the anti-discrimination statutes] do[] not become a general civility code.” Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
Here, even assuming, arguendo, Plaintiff could show that she subjectively felt she was being harassed in a “severe or pervasive” manner, the complained-of acts amount to no more than “personality conflicts” or isolated remarks that would not be perceived as hostile by a reasonable person. In fact, the undersigned finds these allegations could not satisfy even the somewhat-less-burdensome “might have dissuaded a reasonable worker from participating in protected activity” test urged by Plaintiff.
Further, even if Plaintiff could establish the “severe or pervasive” prong of her prima facie case, she cannot establish the requisite causation for the same reasons set out above in connection with the Title VII retaliation claim. Beyond that, even if a prima facie case were presumed, Plaintiff cannot establish her causal burden at the pretext stage. Windham v. Med. Univ. of S.C., No. CV 2:19-1306-RMG, 2022 WL 522204, at *6 (D.S.C. Feb. 22, 2022) (granting summary judgment as to Plaintiff's Title VII retaliation claims, noting that Plaintiff “bears the ultimate burden of proving the proffered reason is pretext for unlawful retaliation.”) (citing Marzett v. Charleston Cnty. Sch. Dist., No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at * 10 (D.S.C. Jan. 27, 2017), adopted, 2017 WL 589110 (D.S.C. Feb. 14, 2017), aff'd, 697 Fed.Appx. 186 (4th Cir. 2017)). Summary judgment is appropriate as to Plaintiff's claim for retaliatory harassment.
IV. Conclusion
For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 31, be granted and this matter be ended.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”