Young v. Roper St Francis Healthcare

Filing 97

ORDER adopting in part 91 Report and Recommendation; granting in part and denying in part 77 Motion for Summary Judgment. The Court grants summary judgment as to Plaintiff's Second Cause of Action (ADA Claim), Fi fth Cause of Action (Wages Act Claim), Sixth Cause of Action (Defamation), Eighth Cause of Action (Abuse of Process), and Ninth Cause of Action (Malicious Prosecution). The Court denies summary judgment as to Plaintiff's First Cause of Action ( Race/National Origin Discrimination - Wrongful Termination and Hostile Work Environment Claims), Third Cause of Action (Retaliation), and Seventh Cause of Action (False Imprisonment). Signed by Honorable Richard M Gergel on 9/29/2014.(ssam, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Paula Young,
Plaintiff,
vs.
CareAlliance Health Services d/b/a Roper
St. Francis Healthcare,
Defendant.

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No.2: 12-2337-RMG
ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 91), recommending that Defendant's Motion for Summary Judgment
be granted with respect to Plaintiffs' federal claims and that the Court decline jurisdiction over
Plaintiff's state law claims. For the reasons stated below, the Court adopts only portions of the
R & R and grants in part and denies in part Defendant's motion.
Ie BACKGROUND)
Plaintiff was a registered nurse at Defendant's Bon Secours St. Francis Hospital location
in its Neuro-Spine Center. She was hired on May 9, 2010, and terminated in May of2011.
Plaintiff received a "fully successful" rating on her 2010 performance review issued on January
23,2011. However, in February of2011 Plaintiff's narcotic administration practices were called
into question, and a subsequent audit and investigation revealed a number of incidents of
The Magistrate Judge laid out the facts and evidence supporting them in the R & R,
which neither party objected to and which the Court adopts. (Dkt. No. 91 at 1-5). The Court
sees no need to repeat the details here and only gives a brief overview. The Court also adopts the
facts related to Plaintiff s 2010 performance review delineated at page 10 of the R & R. To the
extent that the Court considers additional facts in its analysis, such facts are explicitly stated in
the Discussion section below.
I

mishandling narcotic medication and controlled substances during a six-week period. In
conjunction with a drug test performed in March of2011, an inventory of Plaintiffs locker
revealed that she was in possession of two patient armbands that contained personal health
information, which Defendant claims violates its internal HIPAA policy. Defendant cites these
issues as well as other various job performance issues as its reasons for terminating Plaintiff.
Plaintiff contends that she was suspended and eventually fired on account of her race and
national origin and on account of her disability. Plaintiffs supervisor attempted to meet with her
to terminate her in early April of2011. However, Plaintiffs mother suffered a stroke, and
Plaintiff left the country. Plaintiff was ultimately terminated by letter in May of 20 11.
Plaintiffs Second Amended Complaint alleges ten causes of action: (1) Discrimination
on the Basis of Race or National Origin, (2) Discrimination on the Basis of Disability, (3)
Retaliation under Title VII, (4) Breach of Contract, (5) Violation of the South Carolina Payment
of Wages Act, (6) Defamation, (7) False Imprisonment, (8) Abuse of Process, (9) Malicious
Prosecution, and (10) Intentional Infliction of Emotional Distress. (Dkt. No. 25). The Court
previously dismissed Plaintiff's claim of race discrimination and retaliation under the South
Caroline Human Affairs Law, Plaintiff's breach of contract claim, and Plaintiffs claim for
intentional infliction of emotional distress. (Dkt. No. 29). Defendant filed a motion for
summary judgment as to all remaining claims. (Dkt. No. 77).
The Magistrate Judge recommended granting summary judgment as to Plaintiffs federal
causes of action and declining jurisdiction over Plaintiffs state causes of action. (Dkt. No. 91).
Both parties filed timely objections. (Dkt. Nos. 93, 94). Plaintiff contends that summary
judgment should be denied on all causes of action. (Dkt. No. 94). Defendant objects to the
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Magistrate Judge's recommendation to decline jurisdiction over state law claims and to the R &
R's failure to address additional grounds for granting its motion for summary judgment on
Plaintiff's retaliation claim. (Dkt. No. 93).
II. LEGAL STANDARD

A. Report & Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modifY, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those
portions of the R & R or specified proposed findings or recommendations to which objection is
made. Diamondv. Colonial Life & Acc. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (quoting 28
U.S.C. § 636(b)(I)); accord Fed. R. Civ. P. 72(b).
As to portions of the R & R to which no specific objection has been made, this Court
"must 'only satisfY itself that there is no clear error on the face of the record in order to accept the
recommendation.'" Id (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the
absence of specific objections to the R & R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198, 199­
200 (4th Cir. 1983).

B. Summary Judgment
Summary judgment is appropriate "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 oflaw." Fed. R. Civ. P.

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56(a). Only material facts-those "that might affect the outcome of the suit under the governing
law"-will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute about a material fact is genuine, "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party." Id.
At the summary judgment stage, the court must "construe the evidence, and all reasonable
inferences that may be drawn from such evidence, in the light most favorable to the nonmoving
party." Dash v. Mayweather, 731 F.3d 303,310 (4th Cir. 2013). However, "the nonmoving
party must rely on more than conclusory allegations, mere speculation, the building of one
inference upon another, or the mere existence of a scintilla of evidence." Id. at 311.

III. DISCUSSION
A. RaceINational Origin Discrimination
Plaintiff proceeds under a McDonnell Douglas analysis. To establish a prima facie case
of racial discrimination, Plaintiff must show that (1) she was a member of a protected class; (2)
that she suffered an adverse employment action; (3) that she was performing her job duties at a
level that met her employer's legitimate expectations at the time of the adverse employment
action; and (4) other employees who are not members of the protected class were retained under

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apparently similar circumstances. 2 Harris v. Home Sales Co., 499 F. App'x 285,291-92 (4th
Cir. 2012); Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002). Defendant
contends that Plaintiff fails to meet the third and fourth prong.

1. Whether Plaintiff was meeting Defendant's legitimate expectations.

It is undisputed that Plaintiff received a "fully successful" rating on her 2010 performance
review issued in January of2011. It is also undisputed that after an incident on February 11,
2011, 3 an audit and investigation revealed a number of incidents related to the mishandling of
narcotics and that Plaintiffs locker contained two patient armbands, which Defendant
determined violated its internal HIPAA policy. Defendant claims that these incidents in 2011 are

2 The Fourth Circuit has not been consistent in its statement of the fourth factor ofa prima
facie case for racial discrimination claim where an adverse employment action was taken.
Compare Hollandv. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) (stating that the
fourth element is showing that "the position remained open or was filled by similarly qualified
applicants outside the protected class") with Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124,
133 (4th Cir. 2002) (stating that the fourth element is showing that "other employees who are not
members of the protected class were retained under apparently similar circumstances") and
Taylor v. Virginia Union Univ., 193 F.3d 219,234 (4th Cir.1999) (en banc) (providing a three­
prong prima facie test involving comparators), abrogated on other grounds by Desert Palace,
Inc. v. Costa, 539 U.S. 90 (2003); but see Laing v. Fed Exp. Corp., 703 F.3d 713, 720 (4th Cir.
2013) ("[P]laintiff is not required as a matter of law to point to a similarly situated comparator in
order to succeed on a discrimination claim.") (internal quotations omitted). Both the Bryant and
Holland fourth factors require Plaintiff to show that her termination occurred under
circumstances giving rise to an inference of discrimination, while Laing recognizes that other
forms of evidence may be used to support a Plaintiff's claim of pretext.
The Magistrate Judge used the fourth element as described in Bryant, neither party has
objected to this statement of the fourth element, and both parties have argued under it.
Therefore, the Court will apply the fourth element as described in Bryant.
3 On February 2011, night nursing supervisor, Debbie Dingler, assisted with the lumbar
drain in one of Plaintiff's patients. Plaintiff allegedly responded inappropriately to a question
relating to her administration of narcotic medication to the patient, and Dingler was so troubled
that she requested an audit of Plaintiffs medication administration records and reported the
incident to Plaintiff's direct supervisor. (Dkt. No. 91 at 2).

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the reasons it tenninated Plaintiff and relies on these incidents to support its motion for summary
judgment on the third prong.
The Magistrate Judge found that "the Plaintiff, through a satisfactory 2010 review has
certainly created some issue of fact as to the quality of her perfonnance prior to the 2011
incidents." (Dkt. No. 91 at 12). He went on to find that if the 2011 perfonnance accusations "are
properly considerable, then the Plaintiff cannot establish the third element. ... If, however, the
Plaintiffs perfonnance up to the point of her allegedly faltering perfonnance in 2011 is only
relevant, then the element is satisfied."4 (!d.). The Magistrate Judge declined to detennine
whether the 2011 conduct should be considered but based his recommendation on the fourth
element, addressed below.
The Fourth Circuit has held that, in evaluating the third prong of a prima facie case,
courts can consider evidence of unsatisfactory job perfonnance, even if the alleged deficient
perfonnance was the event that sparked the tennination. Warch v. Ohio Cas. Ins. Co., 435 FJd
510,515-16 (4th Cir. 2006). Thus, the Court will consider the 2011 events under the third prong
of a prima facie case. However, the Court disagrees that considering these events mandates
summary judgment for Defendant. In Warch, the Fourth Circuit went on to note that the
McDonnell Douglas inquiry was flexible and "meant only to aid courts and litigants in arranging
the presentation of evidence." Id. at 517 (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S.
977,986 (1988».

4 Neither party objected to this finding, though Plaintiff attempts to construe the R & R as
holding an issue of material fact exists as to the third element. (See Dkt. No. 94 at 3).

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The Warch court was explicitly "cognizant of the danger that courts might apply the
'expectations' or 'qualification' element of the prima face too strictly in some cases, resulting in
the premature dismissal of potentially meritorious claims of unlawful discrimination" and used
the Cline 5 hypothetical to illustrate.
In the Cline hypothetical, a truck driver who loses her driver's license is
terminated. A narrow application of the "expectation" or "qualification" element
would appear to foreclose the driver from proving her prima facie case, since with
no driver's license she would not be able to show that she met the job
qualifications or legitimate expectations of her employer for a position as truck
driver. Yet, even though the driver's case would never get past the prima facie
stage, the employer could have still used the loss of the license as a pretext for
illegal discrimination. Evidence tending to show this pretext might be that
similarly situated men who lost their licenses were not terminated but, instead,
were temporarily suspended until they received new licenses or were transferred
to other jobs within the company.

Id. at 516. The Warch court rejected Cline's remedy to this problem, which was to look at
whether an employee met her employer's legitimate expectations prior to the events that sparked
termination. Id. However, the Fourth Circuit agreed that truck driver's claim should survive
summary judgment. It reached the same result by holding that if a defendant's expectations were
a "sham designed to hide the employer's discriminatory purpose," then the expectations were not
"legitimate." See id. at 518 (quoting Brummett v. Lee Enter., Inc., 284 F.3d 742, 745 (7th
Cir.2002)); accord McCallum v. Archstone Cmtys LLC, No. JFM-12-01529, 2013 WL 5496837
at *8 (D. Md. Oct. 2, 2013). Applied to the Cline hypothetical, the plaintiff created an issue of
fact as to whether the expectation of a driver's license was simply a "sham designed to hide the
employer's discriminatory purpose" and, thus, created an issue of fact as to whether this
expectation was "legitimate." See id at 517.

5

Cline v. Catholic Diocese o/Toledo, 206 F.3d 651 (6th Cir. 2000).

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Here, as in the Cline hypothetical, Plaintiff has submitted evidence of a comparator that
creates an issue of fact as to pretext. This same evidence creates an issue of fact as to whether
the 2011 events-the stated reasons for Plaintiffs termination-were simply a "sham designed to
hide the employer's discriminatory purpose," and, therefore, not "legitimate." See Brown v. City

a/Columbia, No. 3:10-2860,2012 WL 3835389 at *3 n.3 (D.S.C. July 19,2012) (citing Warch
and addressing prima facie elements and pretext together where the employer's stated reason for
terminating plaintiff was poor work performance), adopted by 2012 WL 3838109 (D.S.C. Sept.
4,2012). Therefore, summary judgment is not appropriate on the third prong of Plaintiffs prima
facie case.
2. Whether Plaintiff has identified a proper comparator
To meet the fourth element of her prima facie case, Plaintiff identifies Kimberly
Harrelson as a comparator. The Magistrate Judge found that Harrelson was not a proper
comparator and that Plaintiff, therefore, failed to create an issue of fact as to the fourth element
of the prima facie case or as to pretext. (Dkt. No. 91 at 16). Plaintiff objects to this finding.
(Dkt. No. 94).
Plaintiffs must show that "they are similar in all relevant respects to their comparator."

Haywood v. Locke, 387 F. App'x 355, 359 (4th Cir. 2010). "Such a showing would include
evidence that the employees 'dealt with the same supervisor, [were] subject to the same standards
and ... engaged in the same conduct without such mitigating circumstances that would
distinguish their conduct or the employer's treatment of them for it. '" ld. (quoting Mitchell v.

Toledo Hasp., 964 F.2d 577, 583 (6th Cir.1992)); accord Wardv. City a/North Myrtle Beach,
457 F. Supp. 2d 625, 643 (D.S.C. 2006).

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Such comparisons "will never involve precisely the same set of work-related offenses
occurring over the same period of time and under the same sets of circumstances." Cook v. CSX
Transp. Corp., 988 F.2d 507,511 (4th Cir.1993). However, a plaintiff can only draw a

comparison where "discipline [is] imposed for like offenses." Id.; see also Lightner v. City of
Wilmington, NC., 545 F.3d 260,265 (4th Cir. 2008) ("The similarity between comparators and

the seriousness of their respective offenses must be clearly established in order to be
meaningful."). "In determining whether a plaintiff's misconduct is comparable in seriousness to
that of employees outside the protected class, a court should consider 'the gravity of the offenses
on a relative scale.'" Charlot v. Donley, No.3: 11-00579,2013 WL 1339594 at *4 (D.S.C. Mar.
29,2013) (quoting Moore v. City ofChar/otte, 754 F.2d 1100, 1107 (4th Cir. 1985».
Harrelson is a white female of non-Hispanic and non-Chilean descent. Plaintiff and
Harrelson held the same position, both were supervised by Brannigan, and both were subject to
the same standards. (Dkt. No. 91 at 13). They were also the only two Registered Nurses
working on the Neurospine floor seventy percent (70%) of the time. (Id.).6 Thus, the only
question is whether Harrelson engaged in sufficiently similar conduct.
The Employee Conference Record, ultimately sent to Plaintiff by mail with a termination
letter, lists the following misconduct or job deficiencies:
(1) Multiple incidents involving medication administration:
(a) four instances of missing or unaccounted for doses of narcotic medication;
(b) one instance of erroneous documentation of administration of narcotic
medication;
6 These facts are taken from the R & R. No party has objected to these particular facts or
contradicted them in objections to the R & R.

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(c) four instances of delayed return andlor wasting of narcotic medication;
(d) three instances of administration of narcotic pain mediation without
documentation of the patient's condition required by the Defendant's Pain
Management Policy; 7
(2) Two patient armbands containing personal health information were found in
Plaintiffs locker, which Defendant claims was a violation of its internal HIPAA policies;
(3) Plaintiff "put the unit into a critical situation" by leaving the only set of keys to
peA machines in her locker when she went home;
(4) multiple complaints by coworkers, physicians and other personnel about Plaintiff s
inability to work independently, poor organizational skills, inability to effectively
communication pertinent patient information to the next shift nurses or to physicians,
inability to finish her work during shift hours, and visible frustration and lack of
confidence while on the job;
(5) Plaintiff did not properly respond to a Rapid Response Team call;

(6) Plaintiff did not properly notify a physician of a patient's increased temperature as
ordered on admission orders.
(Dkt. No. 77-8 at 17-21).
Harrelson also had "disorganization on the clinical side with taking care of patients," had
trouble getting her work done and had "sloppy medication administration practice." (Dkt. No. 84
at 10-12). In particular, Harrelson "wasted,,8 medications inappropriately. (ld. at 15). Harrelson
also had severe absenteeism problems, received complaints that she openly displayed frustration

7

Neither party objected to these characterizations of the listed incidents by the Magistrate

Judge.
8 Per hospital policy, certain medications are secured in Pyx is, an automated medication
dispensing system. If medication is removed from Pyxis and not given in a timely manner, the
medication must be "wasted," or disposed of properly according to policy. (R & R, Dkt. No. 91
at 14 n.2 (citing to the record».
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on the job, and failed to conduct a pain reassessment after an intervention was performed. (Dkt.
No. 85-1).
The Magistrate Judge found that, "[i]t is a close call whether Harrelson should be
considered as similarly situated and a relevant comparator." (Dkt. No. 91 at 16). He went on to
state that
There is a substantial degree of overlap in the admitted conduct, including
undisputed incidences of medication wasting, poor documentation, and other
generalized performance issues. Notwithstanding, there are two glaring
distinctions in the performance portfolios of the Plaintiff and Harrelson, namely
the four instances of missing and unaccounted for narcotics ... and two patient
armbands found in the Plaintiffs locker, which constituted a violation of the
Defendant's HIP AA policy.
(Dkt. No. 91 at 61). The Magistrate Judge found that, given these two additional acts of
misconduct, "allowing a jury to use Harrelson as a barometer of measure against the Defendant's
conduct would be a step too far." (Id.).
The Court disagrees. While the offenses at issue are not exactly the same, there is
substantial overlap, and an exact overlap is not required. Just like unaccounted for narcotics, not
properly disposing of (or "wasting") narcotics raises the concern that narcotics are being
diverted. The Court finds these two offenses sufficiently similar to send the matter to a jury.
While Harrelson did not also violate company policy by having patient armbands in her locker, it
is too much to expect that a comparator will have the exact same list of offenses.
In the context of race-based peremptory strikes ofjurors, the Supreme Court held that a
rule requiring individuals to be exactly identical would make claims of discrimination
"inoperable" because "potential jurors are not products of a set of cookie cutters." Miller-EI v.

Dretke, 545 U.S. 231,247 n.6 (2005). The Sixth Circuit has held that this reasoning applies with
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equal force to the employment-discrimination context. Wright v. Murray Guard, Inc. 455 F.3d
702, 710 (6th 2006). And this Court agrees. The Court finds that offenses involving the possible
diversion of narcotics are at least as serious as having confidential patient information locked in a
nurse's locker where third parties cannot access it. Under these circumstances, whether a
comparator is similarly situated is left to the jury. See Coleman v. Donahoe, 667 F.3d 835, 846­
47 (7th Cir. 2012). Thus, the Court finds that Plaintiff has made a prima facie case of
discrimination.
3. Legitimate, Non-Discriminatory Reason
Neither party objects to the Magistrate Judge's finding that Defendant has put forward
legitimate, non-discriminatory reasons for Plaintiff s termination. This Court agrees that the
Defendant has done so. Specifically, Defendant has identified the reasons listed in the Employee
Conference Record.
4. Pretext
Once an employer has identified a legitimate, non-discriminatory reason for its
employment action, "the burden shifts back to the employee to show that the given reason was
just a pretext for discrimination." E.g, Evans v. Tech. Apps. & Servo Co., 80 F.3d 954,959 (4th
Cir. 1996). Comparator evidence is "'especially relevant' to a showing of pretext." Laing V.

Federal. Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013) (quoting McDonnell Douglas Corp.
Green, 411 U.S. 792, 804 (1973)), Valid comparator evidence, like that presented here, is
generally enough to create an issue of fact for the jury. Id. at 719-20

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V.

However, Defendant has raised the "same actor" inference, and the Magistrate Judge held
that this inference applied. The Magistrate Judge's conclusion that Plaintiff had failed to create
an issue of pretext was not based solely on the existence of the same actor inference, but was
bolstered by it. (Dkt. No. 91 at 18). Therefore, the Court address the inference and whether it
mandates summary judgment under the circumstances present here.
The Fourth Circuit has recognized a "strong inference that discrimination was not a
determining factor in a discharge decision when (1) the person who hired the plaintiff knew of
the plaintiff's protected condition when the hiring decision was made, (2) the person who hired
the plaintiff also fires him (3) within a relatively short time span following the hiring, and (4) the
employer advances a legitimate and nondiscriminatory reason for the discharge." Adams v.
Greenbrier OldsmobilelGMCI Volkswagen, Inc., 172 F.3d 43 (table decision), 1999 WL 34907 at

*5 (4th Cir. 1999).
"The relevance of the fact that the employee was hired and fired by the same person
within a relatively short time span comes at the third stage of the [McDonnell Douglas]
analysis." Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). While this fact creates "a strong
inference that the employer's stated reason for acting against the employee is not pretextual," the
plaintiff "still has the opportunity to present countervailing evidence of pretext." Id.
Plaintiff objects to the Magistrate Judge's finding that this "same actor" inference applies.
First, Plaintiff argues that individuals other than Brannigan were involved in the decisions to hire
and fire Plaintiff. (Dkt. No. 94 at 11). Brannigan testified that a peer interview team provided
their preferences on who to hire but that she made the final decision. (Dkt. No. 77-8 at 2).
Brannigan as well as Penny Peralta (Brannigan's supervisor and Vice President of Nursing) and
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Nancy lnabinett (Human Resources officer) were "involved in the decision to fire Paula Young."
(Dkt. No. 84 at 24). Defendant has pointed to evidence that the idea of termination originated
with Brannigan (see Dkt. No. 96 at 15), but it is not clear from the record before the Court who
made the final decision to terminate Brannigan. This ambiguity raises a question of fact as to
whether the inference should apply See Burgess v. Bowen, 466 F. App'x 272, 280 nA (4th Cir.
2012) ("Viewed in the light most favorable to [plaintiff], the evidence presents a genuine issue of
fact as to who made the decision to terminate [plaintiff], and thus whether the same actor
inference should apply."). Furthermore, at least one district court in the Fourth Circuit has found
that the influence of others is relevant to whether the same actor inference applies. See Hoffman
v. Baltimore Police Dep't, No. WMN-04-3072, 2009 WL 167144 at *14 (D. Md. Jan. 21, 2009)

("[W]hile Zollicoffer technically may have had authority as the 'sole' decision maker, the record
does not support the conclusion that, in making his decision, he was immune from the influence
of others.").
Even if the inference does apply, Plaintiff "still has the opportunity to present
countervailing evidence of pretext." Proud, 945 F.2d at 798. Here, Plaintiff has presented
comparator evidence, which the Fourth Circuit has recently held to be "a particularly probative
means for discerning whether a given adverse action was the product of a discriminatory
motive." Laing, 703 F.3d at 719. The Court finds that the lack of information on who made the
final decision to terminate Plaintiff combined with probative comparator evidence is enough to
preclude summary judgment. See Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 573-74
(6th Cir. 2003) ("[W]here ... the factfinder decides to draw the same-actor inference, it is
insufficient to warrant summary judgment for the defendant if the employee has otherwise raised
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a genuine issue of material fact."); see also Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183
(10th Cir. 2006) ('" [S]ame actor' evidence gives rise to an inference, rather than a presumption,
that no discriminatory animus motivated the employer's actions."). Therefore, the Court denies
summary judgment as to Plaintiffs claim of discrimination based on race or national origin.

B. ADA Discrimination Claim
Plaintiff also claims that she was terminated because of her disability. The Magistrate
Judge found that Plaintiff could not create an issue of fact regarding pretext. (Dkt. No. 91 at 23).
This Court agrees that Plaintiff has failed to put forward evidence from which a reasonable jury
could conclude she was terminated based on an actual or perceived disability.
Plaintiff's comparator evidence does not help her survive summary judgment on her
ADA claim. First, Harrelson was admittedly disabled-she had depression apparently related to
the relatively recent birth of a child, was placed on FMLA leave and was going to see a
psychologist. (Dkt. No. 77-8 at 14). Plaintiff argues that Harrelson's depression developed after
Plaintiff's termination so she is a proper comparator because Harrelson had "no disability, actual
or apparent, at any point during Young's employment." (Dkt. No. 83 at 25). However, the
misconduct which makes Harrelson a comparator also occurred after Plaintiff's termination.
Other than absenteeism and the fact that, after 7 days on the job under an orienting nurse in 2005,
Harrelson had not yet shown adequate progression toward "independently providing care for her
patient assignment," all of Harrelson's misconduct occurred after Plaintiff was terminated. (Dkt.
No. 85-1; Dkt. No. 84 at 7). Specifically, Harrelson's misconduct regarding medication
administration practice, which is essential to Plaintiff's comparator analysis, occurred after

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Plaintiff was tenninated and in 2012, when Plaintiff concedes Harrelson's depression developed.
(Dkt. No. 84 at 6-9).
Furthennore, to the extent Plaintiff claims Defendant discriminated against her based on a
perceived disability of substance abuse,9 Plaintiff has gone out of her way to point to evidence
that Defendant perceived Harrelson as having a substance abuse problem. (See Dkt. No. 94 at 7).
While this evidence may help her race discrimination claim, it undercuts her ADA claim and
leads to the inference that Plaintiffs treatment was not due a perceived substance abuse problem.
Plaintiff has not put forward a non-disabled comparator who received more favorable
treatment than she did. Nor has she put forward any other evidence that raises an inference that
she was tenninated for a perceived or actual disability. Plaintiff contends that having her drug
tested and sent home in cab creates an inference that she was fired for current substance abuse.
(Dkt. No. 82 at 25). However, as explained above current drug use is not a protected disability.
Plaintiff has provided no evidence that she was tenninated for an addiction not involving current
drug use. The only circumstances that Plaintiff puts forward as evidence that raises an inference
of unlawful discrimination as to her hearing loss is that Brannigan singled Plaintiff out for

9 The Court also notes that the behavior of current substance abuse is not a protected
disability. The Fourth Circuit and others have held that drug addiction and alcoholism constitute
an impainnent under the ADA. A Helping Hand, LLC v. Baltimore Cty, MD, 515 F.3d 356,367
(4th Cir. 2008). However, the distinction between a drug addiction and current illicit drug use is
an important one. A drug addict or alcoholic may have received treatment and may not be
currently using the substance(s) to which she is addicted. As the Fourth Circuit explained in the
Fair Housing Act context, Congress intended to treat drug addiction as a significant impainnent
but excluded protection for "current, illegal use of or addiction to a controlled substance."
United States v. S. Mgmt. Corp., 955 F.2d 914,919 (4th Cir. 1992) (emphasis added). Congress
has also explicitly excluded protection under the ADA for individuals engaged in the current use
of illegal drugs. "[A] qualified individual with a disability shall not include any employee or
applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on
the basis of such use." 42 U.S.C. § 12114(a).
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shadowing, while other non-disabled coworkers were not singled out. (Dkt. No. 83 at 25).
However, Plaintiff merely makes this conclusory statement in brief. Plaintiff has not pointed to a
non-disabled coworker about whom Brannigan received similar complaints but who Brannigan
did not shadow. The Court finds that Plaintiff has failed to create an issue of fact as to whether
her discharge occurred under circumstances that raise a reasonable inference of unlawful
discrimination to and failed to create an issue of fact as to pretext. Therefore, the Court grants
summary judgment on Plaintiffs ADA claim.

c. Hostile Work Environment
To establish a hostile work environment claim, Plaintiff must show that the offending
conduct was: (1) unwelcome; (2) based on her race; (3) sufficiently severe or pervasive to alter
the conditions of her employment and create an abusive atmosphere; and (4) imputable to the
defendant. EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). Defendant
claims that Plaintiff cannot create an issue of fact as to the third or fourth element of her claim.
(Dkt. No. 77-1 at 10-13). The Magistrate Judge found that Plaintiff failed to create an issue of
fact as to the third element. (Dkt. No. 91 at 19-21). The Court agrees with the Magistrate Judge
in so far as the incidents raised before him. However, Plaintiff raises additional incidents in her
objections to the R & R that the Court must consider, and the Court finds that these events create
an issue of fact on the third prong.

IOTo establish a prima facie case of discrimination in the ADA context, a Plaintiff must
show that "(1) she was in the protected class; (2) she was discharged; (3) at the time of the
discharge, she was performing her job at a level that met her employer's legitimate expectations;
and (4) her discharge occurred under circumstances that raise a reasonable inference of unlawful
discrimination." E.g., Fields v. Verizon Servs. Corp., 493 F. App'x 371, 375 nA (4th Cir. 2010);
Ennis v. Nat'l Ass'n a/Bus. & Educ. Radio, Inc., 53 F.3d 55,58 (4th Cir. 1995).
-17­

"The 'severe or pervasive' element of a hostile work environment claim 'has both
sUbjective and objective components.'" E.E.o.C. v. Sunbelt Rentals, Inc., 521 F.3d 306,315 (4th
Cir. 2008) (quoting Ocheltree v. Scollon Prods., Inc., 335 F.3d 325,333 (4th Cir. 2003) (en
banc)). "[W]hen determining whether the harassing conduct was objectively severe or pervasive,
we must look at all the circumstances, including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance." Id. (internal
quotations omitted). No single factor is dispositive. Id. "[S]imple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment." Faragher v. City ofBoca Raton, 524 U.S. 775, 788
(1998) (internal quotations and citations omitted).
Thus, the Court's task on summary judgment is "to identifY situations that a reasonable
jury might find to be so out of the ordinary as to meet the severe or pervasive criterion. That is,
instances where the environment was pervaded with discriminatory conduct aimed to humiliate,
ridicule, or intimidate, thereby creating an abusive atmosphere." Sunbelt, 521 F.3d at 316.
Plaintiff puts forward two incidents where Nicole Risher Ani allegedly made comments
that could be interpreted by a jury as unwelcome harassment based on her race. Plaintiff testifies
that in the summer of 2010, Ani was complaining about a patient's wife and when Plaintiff asked
why, Ani responded that "I'm sure you and her talk your Hispanic slang." (Dkt. No. 83-2 at 140­
41). In December of201O, Ani remarked that "I hate people with accents." (Id. at 142).
The Court agrees with the Magistrate Judge that a reasonably jury could not find that
these two incidents approximately six months apart were "sufficiently severe or pervasive to alter
-18­

the conditions of her employment and create an abusive atmosphere." This conduct is not
frequent. The incidents are "mere offensive utterances" rather than physically threatening or
humiliating. There is no evidence that these comments interfered with Plaintiff s work
performance. Therefore, these two incidents are not enough for Plaintiffs claim to survive. See,

e.g., Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997) (affirming the entry of
summary judgment for the employer where, over a three-month period, the female plaintiffs
male co-workers made the following comments: (1) that the male employees had made every
female employee "cry like a baby" and would do the same to her; (2) that more "buxom" women
were needed at the office; (3) asking the plaintiff if she would become a "mini van driving
mommy;" and (4) that plaintiff should go home to "fetch [her] husband's slippers like a good
little wife."); Skipper v. Giant Food, Inc., 68 F. App'x. 393,398 (4th Cir. 2003) (finding
manager who harassed plaintiff by following him around and referring to him by a racial slur on
one occasion, coupled with daily exposure to racist graffiti and the Plaintiff overhearing other
employees use the same slur thirteen times in a four year period insufficient to preclude summary
judgment).
Plaintiff also puts forward a conversation with Brannigan, her supervisor, where
Brannigan told her that "no one liked her" and she would have to "change." (Dkt. No. 83-2 at
78). Plaintiff complains that she "cannot understand how somebody, as a manager, called you on
the phone, after you work 12 hours, and tell you [that] on the phone." (Jd. at 79). The Court
agrees with the Magistrate Judge that there is no evidence whatsoever that these comments were
based on race.!! As the Magistrate Judge stated, "Plaintiff is neither entitled to be liked nor

11

No party objected to this particular finding.
-19­

shielded from the knowledge of such dislike" by anti-discrimination laws. (Dkt. No. 91 at 21),
Thus, this incident does not change the outcome of Plaintiffs claim. See Harsell, 123 F.3d at
771 (dismissing out-of-hand several allegedly offensive comments not related to the plaintiffs
gender and not considering them when determining whether the remaining behavior was
sufficiently severe or pervasive).
Plaintiff does not object to the Magistrate Judge's finding that these three instances fail to
create an issue of fact on her hostile work environment claim, but objects that the Magistrate
Judge did not consider the events of March 18, 2011, where Plaintiff was accused of diverting
patient medication, underwent a drug screen, was escorted out of the hospital by security guards
and not allowed to drive her own vehicle, but forced her to have to take a cab, 12 (Dkt. No. 94 at
14-15). The Magistrate did not consider these events because Plaintiff never raised them before
the Magistrate Judge. (See Dkt. No. 83 at 18-19). Nevertheless, the Court must consider the
argument that they create an issue of fact as to Plaintiffs hostile work environment claim. See

United States v. George,971 F.2d 1113, 1118 (4th Cir. 1992) (When a proper objection is made
to a particular issue, "a district court is required to consider all arguments directed to that issue,
regardless of whether they were raised before the magistrate.").
Defendant argues that nothing about these events suggest that they were due to race.
(Dkt. No. 96 at 18). However, Plaintiffs comparator evidence allows a jury to infer that these

Plaintiff also raises the fact that Plaintiff was later accused of a patient confidentiality
violation for having patient armbands in her locker. (Dkt. No. 94 at 14-15). However, this
incident cannot contribute to a hostile work environment because it occurred while she was on
leave without pay and not while Plaintiff was at the workplace. See Pueschel v. Peters, 577 F.3d
558,565-66 (4th Cir. 2009) (holding conduct that occurred while Plaintiff was on leave without
pay could not contribute to a hostile work environment because it occurred after she left the
workplace).
12

-20­

actions were based on Plaintiff's race. Harrelson was not required to take a drug test, escorted
from the premises by security guards, or forced to take a taxi home. The Court finds that,
viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude
that the events of March 18, 2011, were "so out of the ordinary as to meet the severe or pervasive
criterion," that these events were "aimed to humiliate, ridicule, or intimidate." Sunbelt, 521 F.3d
at 316. Because it was Brannigan, Plaintiffs supervisor, that subjected her to this treatment on
March 18,2011, (Dkt. No.

77~ 7

at 42-43), and these actions "culminate[d] in a tangible

employment action," Defendant is strictly liable under the fourth prong. Vance v. Ball State Un.,
133 S.Ct. 2434,2439 (2013). Therefore, the Court denies summary judgment as to Plaintiffs
hostile work environment claim.
D. Retaliation Claim

1. Exhaustion
The Magistrate Judge found that Plaintiff had not exhausted her administrative remedies
for a Title VII retaliation claim because she only raised a disability-based retaliation claim in her
EEOC Charge. (Dkt. No. 91 at 24). The Court disagrees.
In any subsequent lawsuit alleging unlawful employment practices under Title VII, a

federal court may only consider those allegations included in the EEOC charge."13 Balas v.

Huntington Ingalls Indus., Inc., 711 F.3d 401,407 (4th Cir. 2013). This EEOC charge "defines
the scope of her subsequent right to institute a civil suit" and she may only advance claims that
are "reasonably related to her EEOC charge and can be expected to follow from a reasonable

In determining what claims a plaintiff has properly alleged before the EEOC, a court
may only look to the charge and not to the intake questionnaire or other documents sent to the
EEOC. Id. at 408.
13

-21­

administrative investigation." Smith v. First Union Nat 'I. Bank, 202 F.3d 234, 247 (4th Cir.
2000). However, because lawyers do not typically complete the administrative charges, courts
construe them liberally. Chacko v. Patuxent Inst., 429 F.3d 505,509 (4th Cir. 2005).
In determining whether a claim has been raised, a court focuses on the factual allegations
made in the EEOC charge. See Chacko, 429 F.3d at 509 ("Our cases make clear that the/actual
allegations made in formal litigation must correspond to those set forth in the administrative
charge.") (emphasis added). "[I]fthe factual allegations in the administrative charge are
reasonably related to the factual allegations in the formal litigation, the connection between the
charge and the claim is sufficient." Id.
Here, Plaintiff's EEOC Charge states:

I.

I was hired by the above named employer on May 10, 2010, as a Clinical
Nurse. I met the standards for this position. During my employment,
Supervisor, Ms. Risher, made comments about me speaking to a patient
and stated, "I'm sure you and her talk your Hispanic slang," and "I hate
people with accents!" On January 11,2011, I was harassed by my
immediate supervisor, Cathy Brannigan. She stated that no one liked
working with me and asked if! had problems. On March 18,2011,1 was
wrongly accused, in front of my co-workers, of diverting drugs from my
patients, and was forced to take a drug test. I was removed of my badge
and sent home. On March 22, 2011, I was informed that I was on leave
without pay, for an indefmite time. On March 28,2011, I was called to a
meeting with Ms. Brannigan and a Privacy Officer (name unknown), and
told I was being investigated. On April 1, 2011, I reported these incidents
to Human Resources.

II.

The Privacy Officer said that I was being investigated for a HIP AA
violation. No other reasons were given for the discriminatory actions
described above.

III.

I believe that I have been discriminated against because of my national
origin, Chilean, in violation of Title VII of the Civil Rights Act of 1964, as
amended. I also believe 1 have been discriminated against because of my

-22­

disability, and in retaliation for opposing unlawful employment practices,
in violation of the Americans with Disabilities Act of 1990, as amended.
(Dkt. No. 25-2). While the Court agrees with the Magistrate Judge that the third paragraph of
this charge only references retaliation in violation of the ADA, that is not the end of the Court's
inquiry. The Court must determine whether Plaintiffs Title VII retaliation claim is "reasonably
related" to the EEOC charge "and can be expected to follow from a reasonable administrative
investigation" of that charge. See Sydnor v. Fairfax County, Va., 681 F.3d 591,594 (4th Cir.
2012) ("[S]o long as a plaintiffs claims in her judicial complaint are reasonably related to her
EEOC charge and can be expected to follow from a reasonable administrative investigation, she
may advance such claims in her subsequent civil suit.") (internal quotes omitted).
As Defendant notes, the only factual allegation pertaining to protected activity that could
form the basis of a retaliation claim is the April 1, 2011, letter. (Dkt. No. 96 at 21). It is
undisputed that this letter does not mention a disability but only claims that Plaintiff was
discriminated against based on her race or national origin. (See Dkt. No. 88-1 at 18). Plaintiffs
Title VII retaliation claim that she was terminated for submitting the April 1, 2011 letter can be
expected to follow from a reasonable investigation of Plaintiffs factual allegations. See Bonds v.

Leavitt, 629 F.3d 360,379-80 (4th Cir. 2011) (holding that, despite the fact that the EEOC
charge did not mention the CSRA, EEOC charge adequately exhausted Plaintiff's administrative
remedy as to her CSRA claim because it was "firmly grounded" in the factual allegation that "I
was notified that 1 would be fired ... after 1 was accused of doing something that 1 did not do");

Josey v. Wal-Mart Stores East, L.P., No. 0:11-2993, 2013 WL 5566035 at *5 (D.S.C. Oct. 8,
2013) (holding race discrimination claim was exhausted when the EEOC charge contained the

-23­

factual allegation that "a white employee was provided an accommodation and was not harassed"
even though race was not mentioned in the description of the alleged discrimination and the
"race" box was not checked), ajJ'd by 566 F. App'x 209 (4th Cir. 2014). Therefore, the Court
finds that Plaintiffs retaliation claim is exhausted.
2. Prima Facie Case
In order to establish a prima facie claim of retaliation in violation of Title VII, a plaintiff
must show that "1) the employee engaged in protected activity; 2) the employer took adverse
employment action against the employee; and 3) a causal connection existed between the
protected activity and the adverse action." Munday v. Waste Mgmt. ofNorth Am., Inc., 126 F.3d
239, 242 (4th Cir. 1997). "The employer may then rebut the prima facie case ...by showing that
there was a legitimate non-discriminatory reason for the adverse action ... after which the
burden shifts back to the plaintiff to show that those reasons are pretextual." Id. (internal
citations omitted).
The parties agree that Plaintiff engaged in two protected activities: her letter of April 1,
2011, and the filing of a charge of discrimination. (Dkt. No. 96 at 23). Plaintiff's act of retaining
an attorney is also a protected activity. 14 See Connell v. Bank ofBoston, 924 F.2d 1169, 1179
(1st Cir. 1991). It is undisputed that Plaintiff was terminated and was reported to the state

The Court finds that Plaintiff's conversation with Ani in December of2010 and
Plaintiff's telephone conversation with Brannigan in January of2011 were not protected activity.
Complaining to one's co-workers about unlawful employment practices constitutes protected
activity, as long as those comments are passed on to management. Neiderlander v. Am. Video
Glass Co., 80 F. App'x 256, 260-61 (3d. Cir. 2003); Mondaine v. Am. DrugStores, Inc., 408 F.
Supp. 2d 1169, 1190 (D. Kan. 2006). However, while related to race, neither of these
conversations included complaints about discrimination or other unlawful employment practices.
14

-24­

nursing board, which satisfies the second prong. IS (Dkt. No. 96 at 29). Close temporal proximity
between the protected act and the adverse employment action, which is undisputably present
here, is sufficient to establish the third prong. Zann Kwan v. Andalex Group LLC, 737 F.3d 834,
845 (2d. Cir. 2013) ("[T]he but-for causation standard does not alter the plaintiffs ability to
demonstrate causation at the prima facie stage on summary judgment or at trial indirectly through
temporal proximity."); Adams v. City ofMontgomery, 569 F. App'x 769, 773 (11 th Cir. 2014);

Clarkv. Jackson Hosp. & Clinic, Inc., No. 2: 12-CV-836, 2013 WL 5347450 at * 5 (M.D. Ala.
Sept. 23, 2013).
3. Pretext
Relying on Univ. ofTex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), Defendant
argues Plaintiff cannot create an issue of fact on whether Plaintiffs protected activity was the
"but-for" cause of her tennination and the report to the state nursing board. In Nassar, the
Supreme Court held that to prevail on a Title VII retaliation claim, a plaintiff "must establish that
his or her protected activity was a but-for cause of the alleged adverse action by the employer."

Id. at 2534. Showing that retaliation was one of the employer's motives, even a substantial one,
is not sufficient. Id. (overturning substantial motivating factor standard). However, this
standard "does not require proof that retaliation was the only cause of the employer's action, but
only that the adverse action would not have occurred in the absence of the retaliatory motive."

Zann Kwan v. Andalex Group LLC, 737 F.3d 834,846 (2d. Cir. 2013) (emphasis added).

Because the first protected conduct in which Plaintiff engaged occurred on March 20,
2011, (infonning Defendant she had retained an attorney), only alleged retaliatory acts after this
date are relevant to Plaintiffs claim. The Court also agrees with Defendant that infonning
Plaintiff it had inadvertently neglected to pay her WOW pay and paying such wages does not
constitute retaliatory conduct.
15

-25­

To survive summary judgment, Plaintiff must present evidence from which a reasonable
jury could conclude that Defendant tenninated her or reported her to the state nursing board
because of the April 1, 2011 letter, her EEOC charge or her retention of an attorney and would
not have tenninated or reported her otherwise. See, e.g., Zann Kwan, 737 F.3d at 846; Hobgood
v. Ill. Gaming Bd., 731 F.3d 635,643 (7th Cir. 2013); Rattigan v. Holder, 982 F. Supp. 2d 69,
80-81 (D.D.C. 2013). More than a temporal connection is required to present a genuine factual
issue on pretext in a retaliation case where the employee was accused of misconduct before she
engaged in the protected activity. Hervey v. ely ofKoochiching, 527 F .3d 711, 723 (8th Cir.
2008).
As evidence of pretext, Plaintiff points to her comparator evidence, the fact that the April
1, 2011 letter was "received with visible and audible laughter," and that there is at least an issue
of fact as to whether an investigation was conducted about the concerns raised in Plaintiffs
letter. 16 (Dkt. No. 94 at 27-29). In particular, Ani was never asked about the racially offensive
comments that she allegedly made. 17 (Dkt. No. 83-4 at 12,24). This evidence combined with
the fact that Defendant finalized its decision to tenninate Plaintiff five days after the Aprill,
2011 letter (see Dkt. No. 77-1 at 6) is enough for a reasonable jury to conclude that Defendant's

Plaintiff also points to the fact that the discipline stated on the draft Employee
Conference Records changed from a two-day suspension to tennination. However, this change
took place before Plaintiff engaged in any protected activity. (See Dkt. No. 77-3 at ~ 14, Dkt.
No. 77-3 at 36-41).
16

This fact is disputed. Defendant claims that Inabinet interviewed Ani among others in
April of2011 when investigating Plaintiffs accusations. (Dkt. No. 77-5 at 2). However, Ani's
testimony creates an issue of fact on this issue, and viewed in the light most favorable to
Plaintiff, a jury could find Defendant did not conduct an adequate investigation.
17

-26­

allegedly retaliatory conduct would not have occurred but for Plaintiffs protected activity.
Therefore, the Court denies summary judgment.

E. South Carolina Payment of Wages Act Claim l8
1. Facts
As of July 5, 2010, Plaintiff started on the WOW shift; however, because no Personnel
Action form was filed at the time, Plaintiff did not receive the pay increase associated with the
WOW shift. (Dkt. No. 77-6 at 1-2, 6-7). Human Resources discovered the mistake on March
28,2011, as part ofa routine audit. (Id. at,-r 3). Human Resources proceeded to calculate the
amount owed to Plaintiff and, on April 12, 2011, notified Plaintiff that she could expect the
amount to be deposited into her account on April 29, 2011. (Id. at,-r,-r 5-6). It is undisputed that
Plaintiff never notified Defendant that there was any error in her paycheck. (Id. at 12).
2. Discussion
The South Carolina Payment of Wages Act ("the Wage Act") requires employers to "pay
all wages due at the time and place designated" by the employer at the time of hiring. S.C. Code
Ann. § 41-10-40(D). If an employer fails to pay wages due under the Act, the employee "may
recover ... three times the full amount of the unpaid wages, plus costs and reasonable attorney's
fees as the court may allow." S.C. Code Ann. § 41-1 0-80(C). This penalty is discretionary with
the judge. Rice v. Multimedia, Inc. 456 S.E.2d 381, 383 (S.C. 1995).

18 Because he recommended granting summary judgment on all of Plaintiffs federal
claims, the Magistrate Judge recommended declining to exercise jurisdiction over Plaintiff's state
law claims. (Dkt. No. 91 at 24). Because the Court denies summary judgment as to three of
Plaintiff s federal claims, it addresses the state claims as well.

-27­

The purpose of the Wage Act is "to protect employees from the unjustified and wilful
retention of wages by the employer." Id. Thus, an employer "is protected from penalties if there
is a good faith dispute over wages allegedly due." Id. "[T]he relevant date for detennining
whether the employer reasonably withheld wages is the time at which the wages were withheld,
Le., when the employer allegedly violated the Act." Mathis v. Brown & Brown o/S.c., Inc., 698
S.E.2d 773, 782 (2010). Thus, the court looks to whether, at the time the employer withheld the
wages, "it had a good faith reason for doing so." Id.
Plaintiff has put forward no evidence of bad faith on the part of Defendant. Plaintiff
attempts to create an inference of bad faith from the fact that she was notified of the error after
she retained counsel and submitted her April 1, 2011 letter. (Dkt. No. 83 at 26). However, the
appropriate time frame for evaluating bad faith is when the wages were actually withheld. Here,
a portion of Plaintiffs wages were not timely paid from July of 2010 through March 18, 2011.19
This time period was prior to her notifying Defendant that she obtained an attorney and prior to
her April 1, 2011 letter. The withholding of the WOW differential occurred for a full six months
prior to any of the events that led to this law suit, and Plaintiff has put forward no evidence of
bad faith on the part of Defendant during that period of time.
Without any such evidence, there is no material question of fact. The question for this
Court whether, under the circumstances here, the penalty is warranted. The Court finds that it is
not. Here, the employer negligently failed to timely pay full wages when they were due, had an
audit procedure in place to catch such errors, did in fact discover the error from those audit
procedures, and immediately paid the wages due upon discovering the error. There is no evidence

19 Plaintiff was placed on unpaid leave on March 18, 2011.

-28­

of bad faith or that the employer intentionally or wilfully withheld wages. Under these particular
circumstances, the Court finds that "[t]he imposition of treble damages ... would be unjust and
harsh." See Rice, 456 S.E.2d at 383; see also id. at 384 ("Here, Trial Court, finding no evidence
that [the employer] acted intentionally or in bad faith, refused to award treble damages. We find
no abuse of discretion in this ruling."); MathiS, 698 S.E.2d at 782 ("The question before this
Court, therefore, is whether, at the time that Appellant reduced Mathis's compensation, it had a
reasonable good faith reason for doing so."). Therefore, the Court grants summary judgment on
this claim.

F. Defamation
A plaintiff must prove four elements to recover on a claim for defamation: "(1) a false
and defamatory statement was made; (2) the unprivileged publication was made to a third party;
(3) the publisher was at fault; and (4) either actionability of the statement irrespective of special
harm or the existence of special harm caused by the publication." Fountain v. First Reliance

Bank, 730 S.E.2d 305, 309 (S.C. 2012).
1. "Diverting Drugs" comment

While Plaintiff was charting outside of a patient room, Ms. Brannigan approached her and
said "we have a reason to believe that you are diverting drugs." (Dkt. No. 77-7 at 42,49, 74).
Defendant argues that this statement cannot be the basis of a defamation claim because it was
true. In her deposition, Plaintiff admitted that the information in Paragraph 1 of the Employee
Conference Record, including the incidents of missing medication, was accurate. (Dkt. No. 77-7
at 56, 64). Thus, Defendant did have a reason to believe that Plaintiff was diverting drugs.
Plaintiff does not argue that this statement is false, but attempts to combine it with a later
-29­

statement that Brannigan had "plenty of proof," which Plaintiff claims was false. These two
statements did not occur in the same location, in the same conversation, or in front of the same
people. Therefore, the Court considers them separately. As there is no dispute that the statement
that Defendant had reason to believe that Plaintiff was diverting drugs was true, it cannot serve as
the basis for a defamation claim. See Fountain, 730 S.E.2d at 310 (holding that a statement
"could not be deemed defamatory because it was unquestionably true").
2. "Plenty ofproof' comment
After Brannigan approached Plaintiff and stated that they had reason to believe she was
diverting drugs, Brannigan escorted Plaintiff downstairs, and Plaintiff provided a urine sample.
(Dkt. No. 77-7 at 42-43). After Plaintiff gave the urine sample, Plaintiff said, "this is wrong.
This is wrong," and Brannigan replied, "I have plenty of proof." (Id. at 43). Defendant argues
that there is no evidence that this comment was published to a third party. (Dkt. No. 86 at 14).
The Court agrees. It is undisputed that Plaintiff and Brannigan had gone downstairs at this point
and were no longer in the location where the "diverting drugs" comment was made. Plaintiff
also testifies that Ms. Dingler and the private security officer come back after the comment was
made. (Dkt. No. 77-7 at 43). A technician administered the drug test, but there is no evidence
that he or she was still present for the discussion at issue. (See Dkt. No. 77-7 at 46). As Plaintiff
has failed to put forward any evidence of publication to a third party, her claim must fail on
summary judgment.
3. Non-verbal statements
Finally, Plaintiff claims that Defendant's actions "in causing [Plaintiff] to be physically
escorted throughout the hospital and into a cab by a fully uniformed security officer and to other
-30­

coworkers as if she were a criminal ... constitute non-verbal false statements that patients,
visitors, and coworkers all witnessed." (Dkt. No. 83 at 31-32). However, Plaintiff has cited no
authority for the proposition that non-verbal actions can constitute defamation. Such non-verbal
actions may be relevant to whether a verbal statement was defamatory by innuendo. See
Fountain, 730 S.E.2d at 310. However, Plaintiff has cited no authority the proposition the acts
themselves are actionable. See Hoon v. Pate Constr. Co., Inc., 607 So.2d 423, 429 (Fl. Ct. App.
1992) ("[W]e have been cited no authority for the proposition that ... any similar 'non-verbal'
act, constitutes legally actionable defamation. "). Therefore, the Court grants summary judgment
on Plaintiff s defamation claim.
G. False Imprisonment
1. Facts

After Brannigan informed Plaintiff that they had reason to believe she was diverting
drugs, Brannigan told her that "[y]ou have to come with me" and escorted her downstairs for a
drug test. (Dkt. No. 77-7 at 42). Plaintiff asked whether she had to "be here when they are
searching my locker." (Id.). Brannigan replied "[n]o, you have to come here, right now, with
me," and Plaintiff "knew I didn't do anything wrong. So I just said, Okay, let's go." (Id.).
After submitting a urine sample, Ms. Dingler and/or a security officer told Plaintiff that
she could not drive her car home and asked if she could call her husband. (ld. at 43). Plaintiff
replied that he was working, and Dingler and/or the security officer told her that they would call
a cab for her. (ld.). Then the security officer, Ms. Dingler and another nurse escorted Plaintiff
out ofthe building to wait for the cab. (ld.). Plaintiff was not allowed to go back inside the
hospital. (Id. at 47,50). Plaintiff wanted to get her wallet out of her car, and the security officer
-31­

escorted her to and from her car. (ld. at 43). Those who escorted Plaintiff told the cab driver to
take her home, and either they or Plaintiff provided the cab driver with her address. (Id. at 50­
51). The cab took Plaintiff home. (Id. at 43). It is undisputed the no one touched Plaintiff
during these events. (Dkt. No. 77-7 at 46, 47).
2. Discussion
"In order to recover under a theory of false imprisonment, the complainant must establish
(1) the defendant restrained him; (2) the restraint was intentional; and (3) the restraint was
unlawfuL" Jones by Robinson v. Winn-Dixie Greenville, Inc., 456 S.E.2d 429, 432 (S.C. Ct.
App. 1995). The tort "does not require an actual injurious touching. False imprisonment may be
committed by words alone, or by acts alone or by both, and by merely operating on the will of the
individual, or by personal violence, or by both." /d. "It is not necessary that the individual be
confined within a certain area, or that he be assaulted, or even touched." Gathers v. Harris

Teeter Supermarket, Inc., 317 S.E.2d 748, 231 (S.C. Ct. App. 1984).
However, a false imprisonment claim does not lie where the plaintiff has consented to
restraint. /d. at 754-755. "Where the evidence as to whether consent was given is conflicting,
ambiguous, or inconsistent, it becomes a question of fact for the jury." Id. at 754.
Defendant argues that to constitute false imprisonment, the restraint must be against
Plaintiffs will and voluntarily accompanying another to clear oneself of suspicion or
accommodate the desires of others is not imprisonment. (Dkt. No. 77-1 at 29). Multiple
jurisdictions have held that it is not enough for plaintiff to feel "mentally restrained" by the
actions of the defendant. Hart v. Seven Resorts Inc., 947 P.2d 846, 856 (Ariz. Ct. App. 1997);

Newsom v. Thalhimer Bros., Inc., 901 S.W.2d 365,368 (Tenn. Ct. App. 1994); Faniel v.
-32­

Chesapeake and Potomac Tel. Co. ofMd., 404 A.2d 147, 151 (D.C. 1979). Rather, "it is
essential that the restraint be against the plaintiffs will." Miller v. Kroger Co., 105 S.W.3d 789,
794 (Ark. Ct. App. 2003); accord Kulich-Grier v. OhioHealth Corp., 2014 WL 4460278 at *5
(Ohio Ct. App. Sept. 11,2014); see also Gathers, 317 S.E.2d at 231 (no false imprisonment
where plaintiff has consented). Thus, "[s]ubmission to the mere verbal direction of another,
unaccompanied by force or threats of any character, does not constitute false imprisonment."

G 'Sell v. Carven, 724 F. Supp. 2d 101, 110 (D.D.C. 2010); McDonald's Corp. v. Ogborn, 309
S.W.3d 274, 288 (Ky. Ct. App. 2009); Miller, 105 S.W.3d at 794; Newsome, 901 S.W.2d at 368;

Faniel, 404 A.2d at 152; Mullins v. Rinks, Inc., 272 N.E.2d 152, 152 (Ohio Ct. App. 1971).
As the South Carolina Supreme Court has explained,
The essential thing is the restraint of the person. This may be caused by threats, as
well as by actual force; and the threats may be by conduct or by words. If the
words or conduct are such as to induce a reasonable apprehension of force and the
means of coercion are at hand, a person may be as effectually restrained and
deprived of liberty, as by prison bars.

Westbrook v. Hutchison, 10 S.E.2d 145, 148 (S.C. 1940); see also Miraliakbari v. Pennicooke,
561 S.E.2d 483,488 (Ga. Ct. App. 2002) ("The restraint constituting a false imprisonment may
arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force
will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the
person threatened."). 20

However, the fear or threat of losing one's job is not a basis for claim of false
imprisonment; such fear is not sufficient to invalidate consent or render an employee's decision
not to leave involuntary. E.g., Miraliakbari, 561 S.E.2d at 489; Hart, 947 P.2d at 856 n.21;
Reavis v. Slominski, 551 N.W.2d 528, 551-52 (Neb. 1996); Foley v. Polaroid Corp., 508 N.E.2d
72, 77-78 (Mass. 1987).
20

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The Court finds that whether Plaintiff was "restrained" under this definition is a question
for the jury. The presence of a security guard with "means of coercion at hand" could induce "a
reasonable apprehension of force." Whether Plaintiff had a "reasonable apprehension of force"
with the "means readily at hand," causing her to be restrained or simply submitted to the verbal
directions of others is a question for the jury.
Defendant next argues that "[t]o be actionable, the restraint must be complete, rather than
the mere obstruction of the right to go where the plaintiff pleases, or the placing [of] plaintiff in a
room with a reasonable means of escaping or exiting." (Dkt. No. 77·1 at 29 (citing Restatement
(Second) of Torts, § 36; Prosser and Keeton on Rots, 5th ed. § 11)). Merely "preventing another
from going in a particular direction" is not false imprisonment. Watchtower Bible and Tract
Society ofNew York, Inc. v. Sagardia de Jesus, 634 F.3d 3, 16 (Ist Cir. 2011). "Whether the area
from which the actor prevents the other from going is so large that it ceases to be a confinement
within the area and becomes an exclusion from some other area may depend upon the
circumstances of the particular case and be a matter for the judgment of the court or jury."
Restatement (Second) of Torts § 36.
Here, simply excluding Plaintiff from entering the hospital would not constitute false
imprisonment, as she would be free to walk or drive away. See Watchtower Bible, 634 F.3d at
16. However, if Plaintiff was compelled, by the apprehension of force, to accompany Defendant
personnel to the lab for a drug test and to stay at the ER exit and not leave once they exited the
building, these acts could constitute false imprisonment. See Restatement (Second) of Torts § 36
("If the actor by force or threats of force, or by exerting legal authority, compels another to
accompany him from place to place, he has as effectively confined the other as though he had
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locked him in a room."); Gathers, 317 S.E.2d at 231 ("It is not necessary that the individual be
confined within a certain area. "). As explained above, whether Plaintiff had "reasonable
apprehension of force" if she attempted to leave the building earlier or walk away from the ER
exit, or whether she simply complied with the directives of others is a question for the jury.
Finally, Defendant contends that the alleged restraint was not unlawful because the
Defendant "enjoys the right of any property owner and employer to control its premises." (Dkt.
No. 77-1 at 29). Defendant cites to Wright v. United Parcel Service, Inc., 445 S.E.2d 657, 659
(S.c. Ct. App. 1994). Wright held that if an employee is asked to leave and remains on the
property, she becomes a trespasser, and having the employee arrested is not false imprisonment.

Id. at 523. Here, however, Plaintiff was never asked to leave. Indeed, her claim is based on the
premise that she was not allowed to leave but compelled to stay with a security officer until
placed in cab. Furthermore, Defendant did not simply expel her from the premises but, viewed in
the light most favorable to Plaintiff, forced her to accompany personnel to particular places and
did not allow her to leave the hospital except by cab which would take her directly to her home.
Therefore, the Court finds that there are material questions of fact as to Plaintiffs false
imprisonment claim and denies summary judgment.

H. Abuse of Process
"The tort of abuse of process is intended to compensate a party for harm resulting from
another party's misuse of the legal system." Pallares v. Seinar, 756 S.E.2d 128, 133 (S.C. 2014).
The elements of the tort are "(1) an ulterior purpose, and (2) a wilful act in the use of the process
that is not proper in the regular conduct of the proceeding." Id.

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Plaintiff claims that Defendant's report to the South Carolina Board of Nursing
(hereinafter "LLR complaint")21 was an abuse of process. (Dkt. No. 83 at 28). Defendant claims
that it is entitled to qualified immunity under S.C. Code Ann. § 40-1-90, that filing of the LLR
complaint is not "process," and that Plaintiff has no evidence to establish either prong of the tort.
(Dkt. No. 77-1 at 31-32).
1. Definition of Process

As Defendant notes, the Court ruled on this issue when considering Defendant's Motion
to Dismiss. (See Dkt. No. 29). However, the Court addresses it briefly here with additional
authority since the Court's 2012 decision. In Pallares v. Seinar, the South Carolina Supreme
Court explained that, '" [p]rocess,' as used in this context, has been interpreted broadly to include
the entire range of procedures incident to the litigation process." 756 S.E.2d 128 at 133; see also
Food Lion, Inc. v. United Food & Commercial Workers Int's Union, 567 S.E.2d 251, 253 (S.C.
Ct. App. 2002) ("In our view, 'process,' as it pertains to the abuse of process tort, embraces the
full range of activities and procedures attendant to litigation.").
As the Court explained in its prior Order, "while the initial complaint to the Board may
seem preliminary, it is no less a part of a 'process' than a store 'manager's directive to call the
police, which resulted in the employment of the criminal process' on an accused shoplifter."
(Dkt. No. 29 at 7 n.4 (quoting Food Lion, 567 S.E.2d at 254 n.3)). As Defendant notes, a
complaint to the Board of Nursing can lead to a formal charge by the Board. (Dkt. No. 5-2 at
24). Such a charge is resolved before an administrative tribunal, whose decision is appealable to

The parties refer to this complaint as the LLR complaint. The South Carolina Board of
Nursing is a part of the South Carolina Department of Labor, Licensing and Regulation (LLR).
For ease of reference, the Court will also refer to this complaint as the LLR complaint.
21

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the Administrative Law Court. See S.C. Code Ann. § 410-1-160. Preclusive doctrines like
collateral estoppel apply to findings made in such proceedings. Hainer v. Am. Med. Int'I., Inc.,
465 S.E.2d 112, 144 (S.C. Ct. App. 1995), aff'd as modified by 492 S.E.2d 103 (S.C. 1997).
Given the South Carolina Supreme Court's directive that "process" be "interpreted
broadly to include the entire range of procedures incident to the litigation process," the Court
finds that making a charge to the Board of Nursing is "incident to the litigation process" and can
be the basis of an abuse of process claim. See Pal/ares, 756 S.E.2d at 133.
2. Qualified Immunity
A complaint to the LLR "is privileged and no action or proceeding, civil or criminal, may
be brought against the person, by or on whose behalf the communication is made, except upon
proof that the communication was made with malice." S.C. Code Ann. § 40-1-190. That a
report is true and statutorily required is not dispositive of whether it was filed with malice.

Hainer v. Am. Med. Int'I., Inc., 492 S.E.2d 103, 106 (S.c. 1997). In order to defeat this statutory
immunity, "a plaintiff must demonstrate the defendant made the communication with common
law actual malice." Id. "Actual malice can mean the defendant acted recklessly or wantonly, or
with conscious disregard of the plaintiffs rights" or that "the defendant was actuated by ill will
in what he did, with the design to causelessly and wantonly injure the plaintiff; or ... such
recklessness as to show a conscious indifference towards plaintiffs rights." Id. at 107; see also

Erickson v. Jones Street Publishers, L.L.c., 629 S.E.2d 653,666 (S.C. 2006) (defining common
law malice as "an evil intent or a motive arising from spite or ill will").
Here, Plaintiff has put forward no evidence of malice. She did not address Defendant's
argument regarding qualified immunity in briefing or point to any evidence of malice. (Dkt. No.

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83 at 27-31). Plaintiff has put forward evidence that Defendant threatened to report her to the
nursing board if she did not voluntarily resign. 22 (Dkt. No. 84-10 at 4). While such evidence
may indicate an ulterior motive (Le., Defendant improperly used this threat in negotiations in an
attempt to coerce Plaintiff to resign), it does not indicate that the LLR complaint was ultimately
filed with "an evil intent," "spite" or "ill-will." Therefore, the Court finds that Defendant is
entitled to qualified immunity and grants summary judgment on this claim.
I. Malicious Prosecution
In an action for malicious prosecution, the plaintiff must establish: "(1) the institution or
continuation of original judicial proceedings; (2) by or at the instance of the defendant; (3)
termination of such proceedings in [the] plaintiff s favor; (4) malice in instituting such
proceedings; (5) lack of probable cause; and (6) resulting injury or damage." Pal/ares v. Seinar,
756 S.E.2d 128, 131 (S.C. 2014). Plaintiff cannot show that the LLR proceedings terminated in
her favor. It is undisputed that these proceedings are still pending. (Dkt. No. 77-7 at 59; Dkt.
No. 82 at 27). Therefore, the Court grants summary judgment on this claim.
IV. CONCLUSION
The Court adopts pages 1-6 of the R & R, the Section "Legitimate, Non-Discriminatory
Reason" on page 17, the Section "Hostile Work Environment" on pages 18-21,23 and the section
"ADA Discrimination Claim" on pages 22-23 of the R & R. The Court declines to adopt the

22 This fact is hotly contested, but the Court must view the evidence in the light most
favorable to Plaintiff for the purposes of this motion.
23 While the Court adopts this section of the R & R, it does not adopt the recommendation
to grant summary judgment on Plaintiffs Hostile Work Environment claim because of additional
arguments raised by Plaintiff in her objections to the R & R.

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remaining portions of the R & R. The Court GRANTS IN PART AND DENIES IN PART
Defendant's Motion for Summary Judgment (Dkt. No. 77).
The Court grants summary judgment as to Plaintiff s Second Cause of Action (ADA
Claim), Fifth Cause of Action (Wages Act Claim), Sixth Cause of Action (Defamation), Eighth
Cause of Action (Abuse of Process), and Ninth Cause of Action (Malicious Prosecution).24 The
Court denies summary judgment as to Plaintiffs First Cause of Action (RacelNational Origin
Discrimination - Wrongful Termination and Hostile Work Environment Claims), Third Cause of
Action (Retaliation), and Seventh Cause of Action (False Imprisonment).

IT IS SO ORDERED.

Richard Mark Gerge
United States District Ju

September 2:!, 2014
Charleston, South Carolina

e

24 The Court previously dismissed Plaintiff's Fourth Cause of Action (Breach of
Contract) and Tenth Cause of Action (Intentional Infliction of Emotional Distress). (Dkt. No.
29)

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