Sanders v. Lowe's Companies, Inc. et al

Filing 231

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION accepting 187 Report and Recommendation; granting 139 Motion for Summary Judgment, denying as moot 148 Motion in Limine, denying with prejudice 190 Motion to Stay, denying with prejudice 195 Motion to Amend/Correct, denying with prejudice 201 Motion to Amend/Correct, denying with prejudice 206 Motion for Discovery. Signed by Honorable J Michelle Childs on 4/20/2018. (asni, ) (Main Document 231 replaced on 4/20/2018) (asni, ). Modified to edit text on 4/20/2018 (asni, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Eric Alan Sanders,

)
)
Plaintiff,
)
)
v.
)
)
Lowe’s Home Centers, LLC,
)
)
)
Defendant.
)
____________________________________)

Civil Action No.: 0:15-cv-02313-JMC

ORDER AND OPINION

This matter is before the court on review of the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 187), filed on January 31, 2018, recommending that the
court grant Defendant’s Motion for Summary Judgment (ECF No. 139) with regard to Plaintiff’s
federal law claims. Additionally, the Report recommends that the court should deny Plaintiff’s
Motion in Limine (ECF No. 148) as moot. For the reasons stated below, the court ACCEPTS the
Report. 1
I.

FACTUAL AND PROCEDURAL BACKGROUND

The court concludes upon its own careful review of the record that the factual and
procedural summation in the Report (ECF No. 187) is accurate, and the court adopts this summary
as its own. The court will only recite herein facts pertinent to the court’s review of the Report
(ECF No. 187). On January 31, 2018, Magistrate Judge Paige J. Gossett filed the Report (ECF
No. 187), and on February 16, 2018, Plaintiff timely filed an Objection (ECF No. 203). On

1

The court previously accepted the Report only as to its recommendation that Plaintiff’s Motions
for Default Judgment (ECF No. 136, 143, 145) be denied. (ECF No. 226.) The court notes that in
the initial paragraph of its Order (ECF No. 226 at 1) accepting the Report, the court misidentified
Plaintiff’s Motions for Default Judgment as Motions for Summary Judgment. Plaintiff did not file
a motion for summary judgment.
1

February 28, 2018, Defendant replied. (ECF No. 214.)
Plaintiff was discharged after Defendant mailed two (2) letters via certified and regular
mail to Plaintiff in an attempt to establish whether he was returning to work, neither of which were
answered by Plaintiff. (ECF No. 139-7 at 6-7.) 2 On June 12, 2015, because Plaintiff missed five
(5) consecutive shifts without contacting his manager, Defendant treated his absenteeism as a
voluntary resignation from his position. (Id. at 7.)
II.

JURISDICTION

The court has jurisdiction over Plaintiff’s claims via 28 U.S.C. § 1331, as they arise under
laws of the United States. Plaintiff brings his claims pursuant to the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et seq., and Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e, et seq. 3

2

The first letter, sent on June 1, 2015, stated that Plaintiff needed to contact Human Resources
Manager Rayvon Irby by June 5, 2015 in order to establish whether Plaintiff wanted to continue
to work for Defendant. Plaintiff asserts that he came to the store on June 4, 2015 and met with Irby
(ECF No. 164-5 at 2) and was ejected from the store (ECF No. 203 at 23), but the court has no
evidence that Plaintiff came to the store for the purpose of complying with the June 1, 2015 letter.
Moreover, whether Plaintiff complied with the letter is not relevant to establishing his constructive
discharge claim.
3

Plaintiff’s only federal claims are for “discriminatory constructive discharge” and “retaliatory
constructive discharge” as noted by the Report (ECF No. 187 at 1 n.1) and reconfirmed by
Plaintiff’s objections (ECF No. 203 at 11). Plaintiff has also alleged that Defendant has violated
several South Carolina state laws: South Carolina Human Affairs Law § 1-13-80 (2014) (ECF No.
16 at 5 ¶ 24), S.C. Code Ann. § 16-7-150 (1976) for slander and libel (id. at 6-7 ¶ 28), S.C. Code
Ann. § 16-17-560 (1993) for intimidation on account of exercise of civil rights (id. at 7 ¶ 31), S.C.
Code Ann. § 16-17-410 (1993) for conspiracy (id. at 8 ¶ 37), and S.C. Code Ann. § 15-75-20
(1969) for loss of companionship of his spouse (id. at 10 ¶ 44). On September 27, 2016, the court
dismissed Plaintiff’s claims as to S.C. Code Ann. §§ 16-7-150, 16-17-410, 16-17-560, and 15-7520. (ECF No. 103 at 8.) The Report recommends that the court decline to exercise supplemental
jurisdiction over the remaining state law claim (South Carolina Human Affairs Law § 1-13-80).
(ECF No. 187 at 11-12.) Neither party objected to this recommendation, therefore, the court
ACCEPTS the Report’s recommendation as to declining to exercise supplemental jurisdiction
over Plaintiff’s state law claim. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to
2

III.

LEGAL STANDARD

a. Report and Recommendation
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02(B)(2)(c) for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive weight. The responsibility to make a
final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
The court is charged with making a de novo determination of those portions of the Report to which
specific objections are made. Fed. R. Civ. P. 72(b)(2)-(3). As Plaintiff is a pro se litigant, the
court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se plaintiff’s “inartful
pleadings” may be sufficient enough to provide the opportunity to offer supporting evidence.)
b. Summary Judgment
Summary judgment should be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if proof of its existence or nonexistence would affect the disposition of
the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248–49 (1986).
A genuine question of material fact exists where, after reviewing the record as a whole, the court
finds that a reasonable jury could return a verdict for the nonmoving party. Id. at 248.
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124
(4th Cir. 1990) (citing Pignons S.A. De Mecanique v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir.

exercise supplemental jurisdiction over other claims[:] if the district court has dismissed all claims
over which it has original jurisdiction.”).
3

1981)). The nonmoving party may not oppose a motion for summary judgment with mere
allegations or denials of the movant’s pleading, but instead must “set forth specific facts”
demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Anderson, 477 U.S. at 252. 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 (citing First Nat’l Bank of
Arizona v. Cities Serv. Co., 391 U.S. 253 (1968)). “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). “[T]he burden [to show no genuine issue of material fact] on the
moving party may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S.
at 325.
“In [ ] a situation [where a party fails to make a showing sufficient to establish an essential
element of their case, on which they will bear the burden of proof at trial], there can be ‘no genuine
issue as to any material fact,’ since a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is
‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a
sufficient showing on an essential element of their case with respect to which she has the burden
of proof.” Id. at 322–23.
IV.

ANALYSIS

Plaintiff specifically objects to the Report on the basis that the Magistrate Judge did not
have jurisdiction to file the Report because he had appealed a Text Order by the Magistrate Judge
(ECF No. 158). (ECF No. 203 at 12.) The Magistrate Judge’s Text Order (ECF No. 158)

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terminated as moot Plaintiff’s Motion for Protective Order and granted Plaintiff’s Motion for an
Extension of Time to Respond to Defendant’s Motion for Summary Judgment (ECF No. 139).
(ECF No. 149.) 4 However, the United States Court of Appeals for the Fourth Circuit denied
Plaintiff’s appeal for lack of jurisdiction after Plaintiff had already filed his objections to the
Report. (ECF No. 223 at 3.) Therefore, the court will not address this objection. Plaintiff also
specifically objects to the Magistrate Judge’s application of the law in analyzing Plaintiff’s
discriminatory and retaliatory constructive discharge claim under Title VII and the ADA by
focusing on intent rather than intolerability (id. at 21-23). 5
Constructive Discharge
The court finds that the Magistrate Judge erred by citing the incorrect law regarding
constructive discharge, therefore, the court will address Plaintiff’s constructive discharge claim
under the correct law. (See ECF No. 187 at 10 n.4.)
Plaintiff alleges that he was discriminated against on the basis of race (ECF No. 16 at 3 ¶
14), disability (id. at 4 ¶ 17), and gender (id. at 4 ¶ 20). As a result of this alleged discrimination,

4

Plaintiff filed a Motion for Protective Order and Motion for Extension of Time in the same
document (ECF No. 149).
5

Plaintiff also specifically objects to the Magistrate Judge’s finding that he did not properly
respond to Defendant’s Motion for Summary Judgment (ECF No. 139) because he filed a letter
and several exhibits with the court. (ECF No. 187 at 2.) However, the Magistrate Judge considered
Plaintiff’s exhibits and submissions as a response to Defendant’s Motion for Summary Judgment
(ECF No. 139), and analyzed these exhibits and submissions in making her recommendation to
the court. Therefore, the court will not address this objection. Additionally, Plaintiff objects to the
Magistrate Judge’s application of the third prong of the McDonnell Douglas framework in the
context of at-will employment. (ECF No. 203 at 17.) However, as will be explained below,
because the court does not reach the third prong of the McDonnell Douglas framework, the court
does not need to address this objection.
5

Plaintiff asserts that he was constructively discharged in violation of Title VII and the ADA. 6
(ECF No. 203 at 11.)
“A claim of constructive discharge [ ] has two basic elements. A plaintiff must prove first
that he was discriminated against by his employer to the point where a reasonable person in his
position would have felt compelled to resign[,] but [second] he must also show that he actually
resigned.” Green v. Brennan, 136 S. Ct. 1769, 1777 (2016). The standard for constructive
discharge requires “objective intolerability”, but not “deliberateness, or a subjective intent to force
a resignation.” U.S. Equal Employment Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d
131, 144 (4th Cir. 2017), cert. denied sub nom. Consol Energy Inc. v. E.E.O.C., 138 S. Ct. 976
(2018) (quoting Green 136 S. Ct. at 1779-80)).
In order to establish that Plaintiff was constructively discharged, Plaintiff must first prove
that Defendant discriminated against him. To prove a violation of Title VII, Plaintiff can utilize
the McDonnell Douglas framework. 7 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). To establish
discrimination under Title VII, “[t]he complainant . . . must carry the initial burden under the
statute of establishing a prima facie case of [ ] discrimination.” McDonnell Douglas Corp., 411
U.S. at 802. If Plaintiff is able to establish a prima facie case of discrimination, then the burden

6

Title VII encompasses both race and gender discrimination. See 42 U.S.C. § 2000e-2(a).

7

“A plaintiff may establish a discrimination claim under Title VII through two avenues of proof[,
(1) through the mixed-motive framework, utilizing direct or circumstantial evidence, or (2)
through the McDonnell Douglas pretext framework.]”. Thomas v. Delmarva Power & Light Co.,
715 F. App’x 301, 302 (4th Cir. 2018) (unpublished opinion) (internal citations omitted). Plaintiff
has not presented direct evidence of discrimination or retaliation, and the indirect evidence
presented is not “of sufficient probative force to reflect a genuine issue of material fact [as to
Defendant’s alleged discrimination]” as detailed below. See Thomas, 715 F. App’x at 302 (quoting
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 577 (4th Cir. 2015)). Therefore, the
court will analyze Plaintiff’s claims under the McDonnell Douglas framework.
6

shifts to Defendant to articulate some legitimate, nondiscriminatory reason for the adverse action.
See McDonnell Douglas Corp., 411 U.S. at 803; Merritt v. Old Dominion Freight Line, Inc., 601
F.3d 289, 294 (4th Cir. 2010). If Defendant is able to carry this burden, “. . . then Plaintiff has the
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.” Merritt, 601 F.3d at
294 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
i.

Title VII Claims

Plaintiff must establish a prima facie case of discrimination by showing that ‘(1) [he] is a
member of a protected class; (2) [he] suffered adverse employment action; (3) [he] was performing
[his] job duties at a level that met [his] employer’s legitimate expectations at the time of the adverse
employment action; and (4) the position remained open or was filled by similarly qualified
applicants outside the protected class.’” Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005)
(quoting Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004) (en banc)
abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)).
It is undisputed that Plaintiff is a member of a protected class, being male and AfricanAmerican. (ECF No. 139-1 at 8.) The parties dispute whether Plaintiff suffered an adverse
employment action. “An adverse employment action is a discriminatory act which adversely
affects the terms, conditions, or benefits of the plaintiff’s employment.” Melendez v. Bd. of Educ.
for Montgomery Cty., 711 F. App'x 685, 688 (4th Cir. 2017) (unpublished opinion) (quoting James
v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)). “A constructive discharge—
an allegation that the employer made the employee’s working conditions so intolerable that [the

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employee] was forced to quit her job—may constitute an adverse employment action.” Lacasse
v. Didlake, Inc., 712 F. App’x 231, 239 (4th Cir. 2018) (unpublished opinion). 8
“The constructive-discharge doctrine contemplates a situation in which an employer
discriminates against an employee to the point such that his ‘working conditions become so
intolerable that a reasonable person in the employee’s position would have felt compelled to
resign.’” Green, 136 S. Ct. at 1776 (quoting Pennsylvania State Police v. Suders, 542 U.S. 129,
141 (2004)).

“Whether an employment environment is intolerable is determined from the

objective perspective of a reasonable person.” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249,
262 (4th Cir. 2006) (citing Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004)).
“Dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or
unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.”
Williams, 370 F.3d at 434 (quoting Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994)).
The only alleged adverse employment action presented is Plaintiff’s assertion that he was
constructively discharged. (ECF No. 16 at 7 ¶ 31; ECF No. 203 at 11.) Plaintiff must not rely on
his pleadings, but must present specific evidence of his constructive discharge, meaning that he
must present evidence of intolerability. 9 See Celotex Corp., 477 U.S. at 324; Green 136 S. Ct. at
8

See also Cronin v. S.C. Dep’t of Corr., No. CA 3:11-471-MBS-SVH, 2013 WL 5315983, at *8
(D.S.C. Sept. 20, 2013) (“Constructive discharge is recognized as a type of adverse employment
action in the context of a disparate treatment claim under Title VII.”); Abrams v. Wachovia Corp.,
No. CA 3:08-4073-JFA-PJG, 2010 WL 2622437, at *4 (D.S.C. June 25, 2010) (“Constructive
discharge constitutes an adverse employment action.”); Bowen v. Maryland, Dep’t of Pub. Safety
& Corr. Servs., No. CV RDB-17-1571, 2018 WL 1784463, at *9 (D. Md. Apr. 12, 2018) (court
treated constructive discharge as a type of adverse employment action within a Title VII
discrimination claim).
9

Plaintiff asserts that his Complaint is a “verified complaint.” “[A] verified complaint is the
equivalent of an opposing affidavit for summary judgment purposes, when the allegations
contained therein are based on personal knowledge.” Williams v. Griffin, 952 F.2d 820, 823 (4th
Cir. 1991). “[A] verified complaint that alleges facts that are made on belief or information and
belief is insufficient to oppose summary judgment.” Walker v. Tyler Cty. Comm’n, 11 F. App’x
8

1777. Plaintiff presents evidence of a complaint he made to Michael Greek, an Area Human
Resources Manager for Defendant, regarding an incident involving his coworkers yelling at him
and being rude, with one coworker allegedly “pulling up” close to him with a forklift. (ECF No.
164-5 at 22.) He also provides evidence of an e-mail he wrote to Vincent Alexander, an Employee
Relations & Compliance Consultant for Defendant, in which he detailed different instances of
harassment and retaliation that he allegedly suffered, stating that the store was a “toxic
environment.” (Id. at 58.) Further, Plaintiff also provides a copy of what the court construes as
his letter of resignation (id. at 41-43) which also details different instances of harassment and
Defendant’s failure to correct them.
The court finds that Plaintiff has not provided sufficient evidence to establish that he
worked under intolerable conditions. Plaintiff asserts that his coworkers yelled at him, they were
rude, they made comments about how he was “derelict” in performing his job; and his manager
violated company policy by having a conversation about Plaintiff’s work performance. (ECF No.
164-5 at 41-43.) These assertions do not establish “objectively intolerable working conditions,”
therefore, Plaintiff cannot establish that he was constructively discharged. See Williams, 370 F.3d
at 434 (“[Plaintiff] alleged that her supervisors yelled at her, told her she was a poor manager and
gave her poor evaluations, chastised her in front of customers, and once required her to work with
an injured back. We agree with the district court that these allegations, even if true, do not establish
the objectively intolerable working conditions necessary to prove a constructive discharge.”).
Because Plaintiff fails to establish that he was constructively discharged, he also fails to establish

270, 274 (4th Cir. 2001). The court finds that Plaintiff’s Complaint is not a verified complaint
because the court cannot assess whether each allegation is made on personal knowledge.
Therefore, Plaintiff must provide the court with sufficient specific evidence to establish that there
is a disputed material question of fact regarding his alleged constructive discharge.
9

that Defendant discharged him in a discriminatory manner. Therefore, summary judgment should
be granted as to this claim.
ii.

ADA Claim

To establish a prima facie case of discriminatory termination under the ADA, a plaintiff
must show: “(1) he ‘was a qualified individual with a disability’; (2) he ‘was discharged’; (3) he
‘was fulfilling h[is] employer’s legitimate expectations at the time of discharge’; and (4) ‘the
circumstances of h[is] discharge raise a reasonable inference of unlawful discrimination.’”
Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 150 (4th Cir. 2012) (quoting Rohan v. Networks
Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir. 2004)).
Plaintiff provides several documents regarding medical impairments from which he suffers
(see ECF No. 164), but the crux of Plaintiff’s Complaint is that he was “constructively discharged.”
Therefore, the court will address the second prong of the prima facie case for discriminatory
termination under the ADA. The constructive discharge analysis is the same under Title VII and
the ADA, as both require proof of “discharge” or an “adverse employment action.” See Miles, 429
F.3d at 485, Reynolds, 701 F.3d at 150; see also Robinson v. BGM Am., Inc., 964 F. Supp. 2d 552,
575 (D.S.C. 2013) (accepting Magistrate Judge’s finding that the plaintiff’s failure to provide
sufficient evidence of constructive discharge establishes that the plaintiff cannot survive summary
judgment on his wrongful termination claim under the ADA). The court has already determined
that Plaintiff has not provided sufficient evidence of a constructive discharge, therefore, Plaintiff
also cannot establish that he was discriminatorily discharged under the ADA. As a result, summary
judgment must be granted as to this claim.

10

Retaliation Claim10
“Title VII prohibits an employer from both (i) discriminating against an employee on the
basis of sex, and (ii) retaliating against an employee for complaining about prior discrimination or
retaliation.” Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015) (citing 42
U.S.C. §§ 2000e-2(a)(1), 2000e-3(a)). Plaintiff can prove retaliation using the McDonnell Douglas
framework or the “mixed-motive” framework as described above. 11 See Id.
To prevail under the McDonnell Douglas framework as to retaliation, Plaintiff must first
establish a prima facie case by showing: “(i) that [he] engaged in protected activity, (ii) that
[Defendant] took adverse action against [him], and (iii) that a causal relationship existed between
the protected activity and the adverse employment activity.” 12 Foster, 787 F.3d at 250 (quoting
Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004)). “A plaintiff [establishes that the defendant
took an adverse action against him or her] if ‘a reasonable employee would have found the
challenged action materially adverse,’ meaning that it ‘might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” 13 Pyatt v. Harvest Hope Food Bank, No.

10

Plaintiff’s claim of “retaliatory constructive discharge” fits within the second prong of the
retaliation framework.
11

The court analyzes Plaintiff’s claims under the McDonnell Douglas framework for the same
reasons as noted in footnote seven (7).
12

The court undertakes the same analysis for Plaintiff’s retaliation claims under Title VII and the
ADA. See Haulbrook v. Michelin N. Am., 252 F.3d 696, 706 (4th Cir. 2001) (“A retaliatory
discharge claim under the ADA has three prima facie elements: [the plaintiff] must show (1) that
he engaged in protected activity; (2) that his employer took an adverse action against him; and (3)
that a causal connection existed between the adverse activity and the protected action.”).
13

The standard for an “adverse employment action” under a Title VII retaliation claim is different
than the standard for that same adverse employment action under a Title VII disparate treatment
(or discrimination) claim. Pyatt v. Harvest Hope Food Bank, No. CA 3:10-2002-MBS-PJG, 2012
WL 1098632, at *4 (D.S.C. Feb. 1, 2012), report and recommendation adopted, No. CA 3:102002-MBS, 2012 WL 1098627 (D.S.C. Mar. 29, 2012).
11

CA 3:10-2002-MBS, 2012 WL 1098627, at *9 (D.S.C. Mar. 29, 2012) (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
It is undisputed that Plaintiff engaged in a protective activity by filing two EEOC
Complaints (ECF No. 164-2 at 111-14) that are pertinent to this case prior to his alleged
constructive discharge. (See ECF No. 164-5 at 28); see also Aronberg v. Walters, No. 84-2388,
1985 WL 15447, at *1 (4th Cir. July 8, 1985) (filing a complaint with the EEOC is a protected
activity). At issue is whether Defendant took an adverse action against Plaintiff. Plaintiff asserts
that Defendant’s employees physically retaliated against him by ejecting him from the store on
June 4, 2015, but the court has no evidence of this fact. Moreover, Plaintiff’s absenteeism led to
Defendant’s determination that Plaintiff voluntarily resigned.

(ECF No. 139-7 at 7).

Further, the court has determined that Plaintiff has not provided sufficient evidence of constructive
discharge.
The court finds that Plaintiff has failed to provide evidence that Defendant took any action
to “dissuade Plaintiff from making or supporting a charge of discrimination.” See Pyatt, 2012 WL
1098627, at *9. Therefore, because Plaintiff fails to provide sufficient evidence, as opposed to
allegations, of an adverse employment action, summary judgment must be granted as to this claim.
V.

CONCLUSION

For the reasons stated above, the court ACCEPTS the Report (ECF No. 187) and
GRANTS Defendant’s Motion for Summary Judgment (ECF No. 139) as to Plaintiff’s federal law
claims. Additionally, Plaintiff’s Motion in Limine (ECF No. 148) is DENIED AS MOOT.
Furthermore, Plaintiff’s Motion to Stay or Alternatively to Extend Time for Filing Objections to
Orders 182-188 (ECF No. 190), Plaintiff’s Motion to Amend/Correct Amended Complaint (ECF
No. 195), Plaintiff’s Motion to Reconsider the Orders in ECF Nos. 27, 42, 103, 187, pursuant to

12

Fed. R. Civ. 54(b) (ECF No. 195), Plaintiff’s Amended Motion to Amend/Correct Amended
Complaint (ECF No. 201), and Plaintiff’s Motion for Discovery (ECF No. 206) are DENIED
WITH PREJUDICE.
IT IS SO ORDERED.

United States District Judge
April 20, 2018
Columbia, South Carolina

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