Gainey et al v. BlueCross BlueShield of South Carolina

Filing 40

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 38 Report and Recommendations, denying 32 Motion to Strike, granting 25 Motion for Summary Judgment. Signed by Honorable Joseph F Anderson, Jr on 09/14/2010. (bshr, )

G a i n e y et al v. BlueCross BlueShield of South Carolina

D o c . 40

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

Jo h n J. Gainey; and Donald W. Nugent, P l a i n t if f s , vs. B lu e C ro s s and BlueShield of South Carolina, D e f e n d a n t. ____________________________________

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C/A: 3:09-986-JFA-JRM

ORDER

T h e plaintiffs, John J. Gainey and Donald W. Nugent, bring this employment d isc rim in a tio n action against their former employer, BlueCross and BlueShield of South C a ro lin a (BCBS). The plaintiffs allege they were victims of race and sex discrimination in v io la tio n of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. T h e plaintiffs also assert a claim for defamation under South Carolina law. T h e Magistrate Judge assigned to this action 1 has prepared a comprehensive Report a n d Recommendation and suggests that the defendant's motion for summary judgment s h o u ld be granted. The Report sets forth in detail the relevant facts and standards of law on th is matter, and the court incorporates such without a recitation. The plaintiffs were both employees of the defendant's Technology Support Center

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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(T S C ) of BCBS's Information Systems Department (I/S). Nugent was the manager of the In te rn a l Services Section and Gainey was a TSC technical support analyst. Gainey and N u g e n t, both white males, worked with Kortney Murray, a black female, who was also a TSC s u p p o rt analyst. Plaintiffs and Murray apparently became workplace friends and socialized o c c as io n a lly outside of the workplace. Over time, the three exchanged hundreds of personal te x t messages on their personal cell phones. Some of these messages included sexual banter o r innuendo. E v e n tu a lly, Murray reported to Nugent's direct supervisor, Loretta Hazel, that she had re c eiv e d sexual overtures from Nugent and Gainey, as well as an inappropriate visual m e ss a g e and inappropriate text messages which she showed to Hazel. Ultimately, the matter w a s referred to BCBS's human resources department. Both plaintiffs were suspended from w o rk without pay, while the human resources department investigated the allegations. The s u s p e n sio n s were later changed to "with pay." Both plaintiffs apparently took the position th a t the cell phone texting was all consensual and that Murray had participated without o b j e c ti o n . A f te r a full investigation, BCBS notified the plaintiffs that their employment was ter m in a ted due to "unprofessional behavior in the workplace" in violation of corporate p o l i c y. While the investigation was pending, Murray was suspended and allegations against h e r were also investigated. Upon her return from her paid suspension, Murray was presented w ith a written counseling memorandum, was transferred to another team, and demoted from

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T e a m Lead. Soon thereafter, she resigned from BCBS. O n this record, the Magistrate Judge suggests that the defendant's motion for su m m a ry judgment should be granted. He is of the opinion that the plaintiffs have failed to a d v a n ce a prima facie case of race or sex discrimination on the record assembled during d is c o v e ry in this case. C e n tra l to the plaintiffs' claim of unlawful discrimination is the allegation that M u rra y, the alleged victim of the sexual overtures, was disciplined less severely for similarly s e r io u s offenses. The Magistrate Judge suggests that Murray is not an appropriate

c o m p a ra to r in that her prohibited conduct was not of similar seriousness to that of Nugent, w h o was Murray's supervisor. As the Magistrate Judge notes, courts have found that the m is c o n d u c t was not similarly serious where the plaintiff was a supervisory employee and the c o m p a ra to r was not. As to Gainey, who was a team lead along with Murray, the Magistrate Ju d g e points out that Gainey had previously been issued an employee corrective action report f o r sending inappropriate electronic communications to a co-worker. Thus, Murray was not a similar comparator to Gainey, who had a previous infraction on his record whereas Murray d id not. T h e plaintiffs also allege that other BCBS employees who, according to the plaintiffs w e r e similarly situated to them, engaged in equivalent conduct that was not subject to e q u iv a l e n t discipline. The plaintiffs point to Josie Heilman, Beth Snell, and Susan Temples, a s employees who were disciplined less severely for similarly serious conduct. The

M a g is tra te Judge discusses in detail how each of these three comparators engaged in conduct

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th a t was not substantially similar to that of the plaintiffs. As to the defamation claim, the Magistrate Judge suggests that this claim must fail b e c a u se the plaintiffs have not shown that BCBS "published" (either by words or conduct) th a t Gainey and Nugent were terminated for sexual harassment. As the Magistrate Judge o b s e rv e s , plaintiffs appear to argue that this statement was published because BCBS c o n d u c te d sexual harassment training with employees several weeks after plaintiffs' te rm in a tio n s , and because at least two employees heard from management that Gainey and N u g e n t were terminated for sexual harassment. After careful inspection of the record in this case, the Magistrate Judge is of the o p inion that the facts, even viewed in the light most favorable to the plaintiffs, do not support th e assertion that they were the subject of the tort of defamation. Based on his careful a n a lys is of the record in this case, the Magistrate Judge suggests that the defendant's motion f o r summary judgment should be granted in all respects. Within the time prescribed by the local rules for this district, the plaintiffs filed o b jec tio n s to the Report and Recommendation and the matter is now before the court for its re v ie w . In challenging the Magistrate Judge's recommendation on the two federal claims of ra c e and sex discrimination, the plaintiffs suggest that the Magistrate Judge's analysis is f la w e d . Plaintiffs contend that the fact that Nugent was a manager and that Gainey had prior c o u n se lin g for unprofessional behavior is of no consequence because the defendant did not rely on these factors in determining that a dismissal of both plaintiffs was proper. The court

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is unpersuaded by this argument. In determining who is and who is not a proper comparator to the plaintiffs, the court is entitled to look at all of the relevant facts and circumstances. T h e fact that one of the plaintiffs was a supervisor and the other had been previously c o u n se led for unprofessional behavior similar to what occurred with Ms. Murray, is u n q u e stio n ab ly of significance in determining whether similarly situated employees were tre a te d differently. The court is not convinced that these two factors, which the court deems to be of critical importance in the decision to terminate the plaintiffs here, constitutes in a p p ro p ria te post hac rationales for BCBS's employment decision. In their second objection, the plaintiffs challenge the Magistrate Judge's failure to a d d re ss an argument advanced before the Magistrate Judge. Specifically, plaintiffs contend th a t there is evidence in the record that BCBS was concerned about the prospects of a black f e m a le employee (Murray) filing a Title VII action based on conduct of the plaintiffs. T h e court finds plaintiffs' reliance upon Ricci v. Destefano, 129 S.Ct. 2658 (2009) to b e misplaced. Although it is true that the court in Ricci indicated that fear of litigation alone c a n n o t justified a city's reliance on race to the detriment of individuals who passed e x a m in a t io n s and qualified for promotions, it should be noted that Ricci was a disparate im p a c t case. In other words, disregarding the test results in that case had a disparate impact o n a set of minority employees which the Court found to be unlawful. T h is case is not a disparate impact case. The employer, BCBS, was faced with two s e ts of employees who had misbehaved: the plaintiffs and, to a lesser extent, Ms. Murray. B o th sets of employees were disciplined: the plaintiffs by termination and Ms. Murray, by

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s u s p e n sio n , counseling, transfer to another team, and demotion from Team Lead. The fact th a t potential litigation from Murray might have entered the discussions of how to discipline th e two groups of employees should not be held against BCBS. The record in this case c le a rly and unequivocally establishes that the plaintiffs in this action had engaged in conduct th a t warranted a more severe sanction. The record does not disclose that fear of litigation by M s . Murray prompted BCBS's decision to terminate the plaintiffs. T h e plaintiffs have not objected to the Magistrate Judge's recommended disposition o f the defamation claim, and therefore the court accepts the recommendation on this claim w ith o u t objection. H a v in g considered and rejected the plaintiffs' objections to the Report and R e c o m m e n d a tio n , the court incorporates the Report in this order by reference and hereby g ra n ts the defendant's motion for summary judgment. IT IS SO ORDERED.

S ep tem b er 14, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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