Sutton v. Vilsack

Filing 71

ORDER granting 57 Motion for Summary Judgment as to plaintiff's breach of settlement agreement and retaliation claims; adopting Report and Recommendations re 66 Report and Recommendation regarding the same claims. To extent defendant's motion and R&R did not discuss plaintiff's racial discrimination claim, this order does not affect that claim. Signed by Honorable David C Norton on 8/20/2014.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ORLANDO SUTTON,

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Plaintiff,
vs.
TOM J. VILSACK, Secretary of
Department of Agriculture,
Defendant.

No. 2:12-cv-01386-DCN

ORDER

This matter is before the court on Magistrate Judge Bristow Marchant’s Report
and Recommendation (“R&R”) that this court grant Secretary of Agriculture Tom J.
Vilsack’s (“the Secretary”) motion for summary judgment. Plaintiff Orlando Sutton
(“Sutton”) filed written objections to the R&R. For the reasons set forth below, the court
adopts the R&R and grants the Secretary’s motion for summary judgment as to Sutton’s
breach of settlement agreement and retaliation claims. However, because the Secretary
has not moved for summary judgment on Sutton’s racial discrimination claim, this order
does not affect that claim.
I. BACKGROUND
A.

Procedural History

On May 24, 2012, Sutton filed this action against the Secretary asserting claims
for breach of settlement agreement, as well as racial discrimination and retaliation in
violation of the Civil Rights Act of 1991, Title VII of the Civil Rights Act of 1964, and
42 U.S.C. § 1981. The Secretary moved for summary judgment on January 30, 2014.
Sutton responded on March 10, 2014 and supplemented his response on March 12, 2014.
The magistrate judge issued an R&R on June 25, 2014, recommending that this court
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grant the Secretary’s motion for summary judgment. Sutton filed objections to the R&R
on July 15, 2014 and supplemented his objections the next day. This matter is now ripe
for the court’s review.
B.

Factual Allegations1

Sutton is an African-American male who was at all relevant times employed as a
district ranger for the Department of Agriculture (“the Department”). Compl. Ex. A.
Sutton complained to the Equal Employment Opportunity Commission (“EEOC”) that
the Department was discriminating against him on the bases of race, color, and sex. Id.
At some time thereafter, Sutton entered into a settlement agreement with the Department
that resolved the issues raised in his initial filing with the EEOC. Compl. ¶ 7. The
settlement agreement stated that Sutton would receive certain training during 2010,
provided the training was available and that he coordinated the training with his
supervisor. Id. Sutton understood that completing such training would not guarantee him
a promotion. Id.
Sutton asserts that he has not received the training as set out in the settlement
agreement. Compl. ¶ 8. Additionally, he alleges that he has been retaliated against by
Department employees on numerous occasions since complaining that the Department
had breached the settlement agreement. Id. Specifically, he alleges that: he was not
allowed to attend various fire training exercises, even though Caucasians were allowed to
attend; he was not reimbursed for private automobile mileage, even though Caucasians
were reimbursed for such mileage; and the Department refused to process his worker’s

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The facts are considered and discussed in the light most favorable to Sutton, the
party opposing summary judgment. Pittman v. Nelms, 87 F.3d 116, 118 (4th Cir. 1996).
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compensation claim in a timely matter because of his race and prior protected activity.
Compl. ¶¶ 8-10.
II. STANDARD OF REVIEW
A.

Objections to R&R

This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In absence of a
timely filed objection to a magistrate judge’s R&R, this court need not conduct a de novo
review, but instead must “only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s
note). The recommendation of the magistrate judge carries no presumptive weight, and
the responsibility to make a final determination rests with this court. Mathews v. Weber,
423 U.S. 261, 270-71 (1976). This court may accept, reject, or modify the report of the
magistrate judge, in whole or in part, or may recommit the matter to him with instructions
for further consideration. 28 U.S.C. § 636(b)(1).
B.

Summary Judgment

Summary judgment is proper “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). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will

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not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary
judgment stage, the court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in his favor. Id. at 255.
C.

Pro Se Plaintiff

While plaintiff was originally represented by counsel, he is now proceeding pro se
in this case. Federal district courts are charged with liberally construing complaints filed
by pro se litigants to allow the development of a potentially meritorious case. See
Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se complaints are therefore held to a less
stringent standard than those drafted by attorneys. Id. Liberal construction, however,
does not mean that the court can ignore a clear failure in the pleading to allege facts that
set forth a cognizable claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 390-91
(4th Cir. 1990).
III. DISCUSSION
While Sutton’s pleadings are difficult to parse, it appears that he asserts three
claims against the Secretary. The court addresses each of these claims in turn.
A.

Breach of Settlement Agreement

The Secretary has interpreted Sutton’s complaint as asserting a cause of action for
breach of the settlement agreement. See Def.’s Mot. for Summ. J. 5. In his objections,
Sutton asserts that his complaint does not request the enforcement of the settlement
agreement, but rather seeks to reinstate his original discrimination complaint. Pl.’s
Objections 6.

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To the extent the complaint does advance a claim for breach of the settlement
agreement, the court agrees with the magistrate judge that Title VII does not provide a
cause of action against the government for such a cause of action. See Frahm v. United
States, 492 F.3d 258, 262 (4th Cir. 2007) (holding government’s waiver of sovereign
immunity in Title VII suits “does not expressly extend to monetary claims against the
government for breach of a settlement agreement that resolves a Title VII dispute”); see
also 29 C.F.R. § 1614.504(a) (limiting forms of relief a plaintiff may seek when alleging
breach of a settlement agreement to requesting the EEOC that the terms of the settlement
agreement be specifically implemented or that the complaint be reinstated for further
processing). Therefore, the court does not have jurisdiction to hear a claim for breach of
a settlement agreement.
Moreover, Sutton’s argument that he has reinstated his original discrimination
complaint fails. Before filing a Title VII suit in district court, a plaintiff must exhaust his
administrative remedies. Even assuming that Sutton properly exhausted his
administrative remedies with regard to his EEOC complaint, his complaint here contains
no absolutely no factual allegations relating to discrimination or retaliation that occurred
before the settlement agreement was breached. See Compl. ¶ 8-10 (describing events
“[s]ubseqent to complaining of the agreement being violated”). Therefore, to the extent
that Sutton is seeking redress for any events prior to his allegation that the settlement
agreement had been breached, his complaint is woefully inadequate.
Whether Sutton’s complaint is interpreted as asserting a breach of settlement
agreement claim or reinstating his original EEOC complaint, the Secretary is entitled to
summary judgment.

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B.

Retaliation

Sutton’s complaint alleges that “[s]ubsequent to complaining of the [settlement]
agreement being violated, the Plaintiff was retaliated against by the Defendant on
numerous occasions.” Compl. ¶ 8. Sutton gives three examples of such retaliation: he
was unable to attend various fire training exercises, he was not reimbursed for private
automobile mileage, and processing of his worker’s compensation claim was delayed.
Compl. ¶¶ 9-10.
A plaintiff lacking direct evidence of retaliation may utilize the McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), framework to prove a claim of retaliation.
Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004). In the McDonnell Douglas
framework, the plaintiff must first establish a prima facie case of retaliation. Id. To do
so, the plaintiff must show that (1) he engaged in a protected activity, (2) his employer
took adverse against him, and (3) a causal relationship existed between the protected
activity and the adverse employment action. Id. A plaintiff alleging retaliation “must
establish that his or her protected activity was a but-for cause of the alleged adverse
action by the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S. Ct.
2517, 2534 (2013). If the plaintiff establishes a prima facie case of retaliation, the burden
then shifts to the employer to establish a legitimate non-retaliatory reason for the action.
Price, 380 F.3d at 212. If the employer sets forth a legitimate, non-retaliatory explanation
for the action, the plaintiff then must show that the employer’s proffered reasons are
pretextual. Id.
When analyzing Sutton’s retaliation claim, the magistrate judge first assumed that
Sutton’s letter to the Director of Civil Rights complaining that the Department had not

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complied with the terms of the settlement agreement constituted protected activity and
that the three alleged instances of retaliation noted above were adverse employment
actions. R&R 7, 10. The magistrate judge noted that Sutton wrote the letter on October
26, 2010, and therefore any retaliation on the basis of writing the letter must have
occurred after that date. R&R 7-8; see Kenfield v. Colo. Dept. of Pub. Health & Env’t,
557 F. App’x 728, 733 (10th Cir. 2014) (“By its very nature, retaliatory conduct must
come after the protected activity.” (emphasis in original)). The magistrate judge found
that most of the evidence submitted by Sutton dealt with events, conduct, or proceedings
that occurred prior to October 26, 2010, and therefore could not support his retaliation
claim. R&R 10. The magistrate judge further found that although there were some
documents relating to Sutton’s worker’s compensation claim that post-date October 26,
2010, his claim had actually been denied before his October 26 letter and there was
nothing in the later documents raising an inference that his claim was denied because of
his protected activity. R&R 10-11. While Sutton’s requests for reconsideration were
denied after October 26, 2010, there was no evidence that those denials were because of
his letter. R&R 11. The magistrate judge similarly found that Sutton’s complaints about
his mileage reimbursements occurred both before and after his protected activity at issue
here. R&R 13. Because any evidence of retaliation was purely speculative, the
magistrate judge recommended granting the Secretary’s motion for summary judgment
with regard to Sutton’s retaliation claim. R&R 16.
Sutton’s objections are also difficult to decipher, and that difficulty is exacerbated
by lengthy attachments which are in no apparent order and erratically cited.
Notwithstanding his many extended digressions, Sutton has failed to point to any

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additional evidence tending to show that the actions complained of were the result of
unlawful retaliation. Any evidence of a causal connection is significantly weakened by
the fact that Sutton’s complaints about his worker’s compensation claim and mileage
reimbursement requests began long before his October, 26, 2010 letter. See Reynolds v.
Extendicare Health Servs., Inc., 257 F. App’x 914, 921 (6th Cir. 2007) (finding no causal
connection in Title VII retaliation case because even though adverse action occurred after
protected activity, the decision was made prior to protected activity). Moreover, there is
no evidence that any person in a decision-making position regarding the fire training
exercises, worker’s compensation claim, or mileage reimbursement request knew about
Sutton’s October 26, 2010 letter. See Dowe v. Total Action Against Poverty in Roanoke
Valley, 145 F.3d 653, 657 (4th Cir. 1998) (holding that an “employer’s knowledge that
the plaintiff engaged in a protected activity is absolutely necessary to establish the third
element of the prima facie case”).
In short, Sutton’s claim that he was retaliated against for complaining that the
Department of Agriculture breached the settlement agreement is based on nothing more
than his own belief and speculation. See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985) (holding that a party “cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another”); Gairola v. Com. of Va. Dep’t
of Gen. Servs., 753 F.2d 1281 (4th Cir. 1985) (holding that a plaintiff’s prima facie case
under Title VII cannot be “based on unfounded conjecture or the fanciful possibility that
her disfavorable treatment was the result of discrimination”). Therefore, the Secretary is
entitled to summary judgment on Sutton’s retaliation claim.

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C.

Race Discrimination

Even though Sutton was represented by an attorney at the time this action was
filed, his complaint is not a model of clarity. That said, the complaint can be reasonably
interpreted to advance not only claims for breach of the settlement agreement and
retaliation, but also a claim for race discrimination under Title VII. See Compl. ¶ 3
(seeking damages pursuant to § 703(a) of the Title VII, which makes it unlawful “to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race . . .”); id. ¶ 9 (“Plaintiff
was not allowed to attend various fire training exercises, notwithstanding the fact that
Caucasians were allowed to attend. The Plaintiff was not reimbursed for private
automobile mileage, while other persons, who were Caucasian, were reimbursed for those
types of mileage.”); id. ¶ 10 (“[T]he Defendant refused to process, in a timely fashion,
because of his race . . . , the Plaintiff’s worker’s compensation claim.”).
To the extent that Sutton’s complaint asserts a Title VII racial discrimination
claim, the Secretary did not seek summary judgment on it. As a result, that claim
survives the court’s present scrutiny.

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IV. CONCLUSION
Based on the foregoing, the court ADOPTS the R&R and GRANTS defendant’s
motion for summary judgment with regard to plaintiff’s breach of settlement agreement
and retaliation claims. Because defendant did not move for summary judgment with
regard to plaintiff’s racial discrimination claim, this order does not affect that claim.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 20, 2014
Charleston, South Carolina

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