Miles v. Salvation Army et al

Filing 74

ORDER RULING ON REPORT AND RECOMMENDATION adopting 64 Report and Recommendation, granting 59 Motion for Summary Judgment and dismissing the complaint. Signed by Honorable J Michelle Childs on 9/23/2013. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Betty Kay Miles,

)
)
Plaintiff,
)
)
v.
)
)
)
Salvation Army, Angela Repass, and
)
David Repass,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 1:12-cv-00176-JMC
ORDER AND OPINION

Plaintiff Betty Kay Miles (“Plaintiff”), proceeding pro se and in forma pauperis, filed
this action alleging that her former employer and supervisors the Salvation Army (“the Army”),
Angela Repass, and David Repass (collectively referred to as “Defendants”) terminated her
employment, created a hostile work environment, and paid her discriminatory wages on the basis
of her race in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§
2000e to 2000e-17. Plaintiff also claims discrimination on the basis of her age in violation of the
Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634.
This matter is before the court for a review of the Magistrate Judge’s Report and
Recommendation (“Report”) [Dkt. No. 64], filed August 8, 2013, regarding Defendants’
renewed Motion for Summary Judgment1 [Dkt. No. 59], filed July 22, 2013. The Magistrate

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Plaintiff filed the instant action on January 18, 2012. [Dkt. No. 1]. Defendants filed an initial
Motion for Summary Judgment on November 2, 2012. [Dkt. No. 45]. The Magistrate Judge
recommended denial of the motion because Defendants failed to include any attachments and did
not support the motion by citations to evidence as prescribed by FED. R. CIV. P. 56(c)(1). [See
Dkt. No. 51]. The court accepted the Magistrate Judge’s recommendation and denied
Defendants’ motion without prejudice to allow Defendants to resubmit the motion in the proper
form. [See Dkt. No. 56]. Defendants subsequently submitted a renewed Motion for Summary
Judgment with the appropriate attachments. [Dkt. No. 59]. In the interest of fairness to Plaintiff,
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Judge’s Report recommends that the court grant Defendants’ renewed Motion for Summary
Judgment. Additionally, the Magistrate Judge recommends sua sponte dismissal of Angela
Repass and David Repass as defendants and sua sponte dismissal of Plaintiff’s hostile work
environment and discriminatory wages claims. Upon review of the Report and the record in this
case, the court GRANTS Defendants’ renewed Motion for Summary Judgment, DISMISSES
sua sponte Defendants Angela Repass and David Repass for lack of subject matter jurisdiction,
and DISMISSES sua sponte Plaintiff’s hostile work environment and discriminatory wages
claims.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes, upon its own careful review of the record, that the Magistrate
Judge’s factual and procedural summation is accurate. The court adopts this summary as its
own, and only references facts pertinent to the analysis of Plaintiff’s objections. The relevant
facts, viewed in a light most favorable to Plaintiff, are as follows.
Plaintiff worked for the Army as shelter director from May 1994 until either 1997 or
1998 when she left the Army for another job. [Dkt. No. 64 at 2-3]. Plaintiff returned to the
Army as shelter director in 1999 and remained in that position until 2008 when she left again
voluntarily. Id. at 3. In October 2009, Plaintiff returned to run the Army’s shelter until she was
terminated on June 20, 2011. Id. 3-6. From March of 2010 until her termination, Plaintiff was
written up for eight different disciplinary infractions. Id. On March 22, 2010, Plaintiff received
a disciplinary warning for allowing another employee to work overtime without receiving
approval from the captain. Id. at 3. While Plaintiff felt justified in her decision to allow the

Defendants were not allowed to make any substantive changes to the motion, and Plaintiff was
given the opportunity to respond. Plaintiff responded to Defendants’ motion on August 1, 2013.
[Dkt. No. 62].
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overtime, she admitted that she was aware she should have first cleared the decision with the
captain. Id. On May 4, 2010, Plaintiff was written up for allowing an employee to take home
confidential client information to perform data entry. Id. Plaintiff conceded that this write-up
was a proper remand. [Dkt. No. 59-10 at 45].

Plaintiff received another disciplinary report on

September 7, 2010, for failing to ensure the schedule was covered when she took time off due to
a death in her family. [Dkt. No. 64 at 4]. Plaintiff contends that the schedule was properly
handled and that she had done everything that was required of her. [Dkt. No. 59-10 at 49-50].
Plaintiff was written up again on January 20, 2011, for initialing a time card to ensure
that another employee could get paid. [Dkt. No. 64 at 4-5]. Plaintiff did not have the authority
to initial the time card, and Plaintiff testified that she knew she was wrong for doing so. [Dkt.
No. 59-10 at 55]. On May 14, 2011, Plaintiff was disciplined for neglecting to pick up a
donation from a grocery store. [Dkt. No. 64 at 5]. The disciplinary report mentioned that due to
Plaintiff’s error, the grocery store decided it would no longer donate to the Army. Id. Plaintiff
disagreed with this write-up because even though she failed to collect the donation, she was later
informed that the grocery store’s decision to end the donations was based on a completely
unrelated reason. [Dkt. No. 59-10 at 38, 56]. On June 13, 2011, Plaintiff was placed on a 60-day
probation, in part, for changing the schedule without the captain’s approval and failing to keep
the residents indoors as requested due to outdoor heat. [Dkt. No. 64 at 5]. On the same day,
Plaintiff submitted her two-week resignation notice. Id. at 6. On June 20, 2011, Plaintiff was
terminated for closing the Army’s soup kitchen for two days without permission. Id. Plaintiff
felt justified in closing the kitchen because the captain had scheduled the supervisor of the soup
kitchen off which Plaintiff felt created an unfair burden on her kitchen responsibilities. Id.
Plaintiff conceded that it would not have been difficult to obtain permission before closing the

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soup kitchen. Id.
Plaintiff brought the instant action under Title VII and the ADEA claiming she was
terminated by her employer, experienced a hostile work environment, and received
discriminatory wages on the basis of her race and age. [Dkt. No. 1 at 3-5]. Plaintiff is an
African-American woman over the age of forty. [Dkt. No. 64 at 11, 13]. Plaintiff complains of
constant harassment throughout her last period of employment with the Army. Id. at 6. She felt
the captain directed an unpleasant and petty attitude towards her. [Dkt. No. 59-10 at 73].
Plaintiff believed she was pushed out of her position because the captain wanted a younger white
woman who was less qualified to take over the position. [Dkt. No. 59-10 at 88]; [Dkt. No. 1 at
3]. Plaintiff contends that Defendants systematically fired or pushed out over twenty minorities
who were all over the age of forty. [Dk. No. 62 at 2]. Plaintiff also claims that her wages were
less than those of her white counterparts. [Dkt. No. 1 at 3].
STANDARD OF REVIEW
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter
with instructions. See 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a
waiver of a party’s right to further judicial review, including appellate review, if the
recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91,

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94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Magistrate Judge’s Report,
this court is not required to give any explanation for adopting the recommendation. See Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show 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). In determining whether a genuine issue has been raised, the court
must construe all inferences and ambiguities against the movant and in favor of the non-moving
party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the
district court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving
party, to survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings. Rather, the non-moving party must demonstrate that specific, material facts exist
which give rise to a genuine issue. See id. at 324. Under this standard, the existence of a mere
scintilla of evidence in support of the petitioner’s position is insufficient to withstand the
summary judgment motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Likewise, conclusory allegations or denials, without more, are insufficient to preclude the
granting of the summary judgment motion. See Ross v. Commc’ns Satellite Corp., 759 F.2d 355,
365 (4th Cir. 1985). “Only 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.” Anderson, 477 U.S. at 248.

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DISCUSSION
As Plaintiff is a pro se litigant, the court is required to liberally construe her arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
Subject Matter Jurisdiction over Defendants
The Magistrate Judge recommends that Angela Repass and David Repass be dismissed
from this action on the grounds that claims brought under either Title VII or the ADEA do not
provide for individual liability. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir.
1998) (holding that supervisors are not liable in their individual capacities for Title VII
violations); Birbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir. 1994) (holding that the
ADEA limits civil liability to the employer such that supervisors and other employers are not
proper defendants). As a result, the court does not have subject matter jurisdiction over the
individual Defendants.2 Therefore, the court accepts the Magistrate Judge’s recommendation
that the individual Defendants be dismissed from the case, leaving the Army as the only proper
defendant.
Hostile Work Environment and Discriminatory Wages Claims
The Magistrate Judge concluded that Plaintiff failed to proffer any evidence that
Defendants’ actions met each element of this claim. [Dkt. No. 64 at 15-16]. Specifically,
Plaintiff failed to demonstrate that the alleged conduct was based on her race or age or that the
conduct was sufficiently severe or pervasive to alter the conditions of her employment. Id. The

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Although Defendants failed to make this argument in either of their dispositive motions, the
court can make a finding that it lacks subject matter jurisdiction sua sponte. See Cook v.
Georgetown Steel Corp., 770 F.2d 1272, 1274 (4th Cir. 1985).
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Magistrate Judge similarly determined that Plaintiff failed to provide any supporting
documentation for her wage discrimination claim. Id. at 16. As a consequence, Plaintiff failed
to demonstrate that she was paid less than an employee who was outside of the protected class
and that the higher paid employee engaged in substantially similar employment. Id. The court
agrees with the Magistrate Judge’s analysis and accepts the recommendation of the Report to
dismiss Plaintiff’s hostile work environment and discriminatory wages claims sua sponte.
Discriminatory Discharge Claim
The Magistrate Judge recommends that the court find Plaintiff has failed to plead
sufficient facts to overcome Defendants’ summary judgment motion for her discriminatory
discharge claim. [Dkt. No. 64 at 12-14]. A plaintiff can establish claims of discrimination under
Title VII and the ADEA in one of two ways: either by directly showing that discrimination
motivated the employment decision, or, as is more common, by relying on the indirect, burdenshifting method set forth in McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973). Since
Plaintiff has not produced any direct evidence of discrimination, both her Title VII and ADEA
claims of discriminatory discharge are analyzed under the McDonnell Douglass Corp burdenshifting framework. Under this analysis, a plaintiff must first demonstrate a prima facie case of
discrimination. To establish a prima facie case of discriminatory discharge, a plaintiff must
show: (1) she is a member of a protected group; (2) she is qualified for her job and she met her
employer’s legitimate expectations; (3) she was fired despite her qualifications and performance;
and (4) she was replaced by someone who was not a member of the protected class and who had
comparable qualifications. Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998). Pursuant to the
burden-shifting framework, once the plaintiff establishes a prima facie case of discrimination, the

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burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for
the employment action. Texas Dep’t. of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason
for its employment action, the burden shifts back to the plaintiff to demonstrate by a
preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a
pretext for discrimination.” Id. Although intermediate evidentiary burdens shift back and forth
under this framework, the ultimate burden of persuasion that the defendant engaged in
intentional discrimination remains at all times with the plaintiff. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
In the instant case, the Magistrate Judge assumed without deciding that Plaintiff
established a prima facie case of discriminatory discharge under Title VII and the ADEA. [Dkt.
No. 64 at 11]. After reviewing the Army’s stated reasons for Plaintiff’s termination, namely, her
extensive disciplinary troubles, the Magistrate Judge found the Army met its burden of
demonstrating a legitimate, non-discriminatory reason for Plaintiff’s discharge. Id. at 12. The
Magistrate Judge concluded that Plaintiff did not make a sufficient showing that the Army’s
stated reasons were not valid and were instead pretext.

Id.

The Magistrate Judge found

Plaintiff’s assertions of age and racial bias too speculative and unsupported by evidence to create
a genuine dispute of material fact. Id.
Plaintiff’s objections to the Report specifically address the Magistrate Judge’s finding
that Plaintiff failed to establish that Defendants’ reasons for terminating her employment were
pretextual.

[Dkt. No. 71].

Plaintiff contends that the disciplinary records submitted by

Defendants were fabricated, and that this is evidenced by a date listed at the top of her records
that is later than her dates of employment. Id. at 1. Plaintiff also asserts justifications for many

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of the actions for which she was disciplined in an effort to show that she was disciplined unfairly
and for discriminatory reasons. Id. 1-3.
The court agrees with the Magistrate Judge that Plaintiff has failed, as a matter of law, to
establish a genuine issue of pretext.
Plaintiff’s poor disciplinary history.

Defendants have presented substantial evidence of
[Dkt. No. 64 at 3-6].

This includes Plaintiff’s final

infraction of unilaterally closing the shelter’s soup kitchen, the violation for which she was
terminated. Id. at 6.

Despite feeling justified for her actions, Plaintiff has conceded that she

failed to properly perform her duties in many of the instances for which she was reprimanded.
[See Dkt. No. 59-10 at 44, 45, 55, 70].
While Plaintiff contests the validity of her disciplinary records due to an allegedly
questionable date listed at the top of her write-ups3, this objection is without merit. Until now,
Plaintiff has acknowledged that she was written up for all of the infractions at issue. [See Dkt.
No. 59-10]. Moreover, Plaintiff signed and dated nearly all of the reports with dates that
properly coincide with her employment. [See Dkt. Nos. 59-14, 59-15, 59-17, 59-18, 59-19, 5920, 59-21].

And while Plaintiff’s objections offer further justifications for her violations,

Plaintiff does not negate that for many of her infractions she knew she was not acting in the
manner requested by the captain. Significantly, Plaintiff does not dispute that she erred in
closing the soup kitchen for two days without authorization, which was the principal reason for
her termination.

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The date of September 9, 2011 appears on several of Plaintiff’s disciplinary reports. [See, for
example, Dkt. 59-19]. Plaintiff was terminated June 21, 2011. [Dkt. No. 71 at 1]. While the
date listed at the top of Plaintiff’s disciplinary record does not correspond to her employment, it
appears to the court that the September date is not part of the original document. It may be that
the print at the top of Plaintiff’s disciplinary reports denotes a fax transmittal of the records
following Plaintiff’s termination.
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Thus, the court finds that Plaintiff has failed to aver material facts which give rise to a
genuine issue that Defendants’ stated reasons in terminating her employment were pretext for
discrimination. Additionally, the court finds that for the same reasons Plaintiff has failed to
establish prong two of a prima facie case: that at the time of her termination, Plaintiff met her
employer’s legitimate expectations. Accordingly, Defendants are entitled to summary judgment
for Plaintiff’s discriminatory discharge claims under Title VII and the ADEA.
CONCLUSION
For the reasons set forth above, the court ACCEPTS the Magistrate Judge’s Report and
Recommendation [Dkt. No. 64]. The court DISMISSES sua sponte Defendants Angela Repass
and David Repass for lack of subject matter jurisdiction and DISMISSES sua sponte Plaintiff’s
hostile work environment and discriminatory wages claims. Defendants’ renewed Motion for
Summary Judgment [Dkt. No. 59] is hereby GRANTED, and this action is DISMISSED with
prejudice.
IT IS SO ORDERED.

United States District Court Judge
September 23, 2013
Greenville, South Carolina

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