Hall v. Branham et al
Filing
38
OPINION and ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 30 Report and Recommendations; granting 22 Motion to Dismiss/Lack of Jurisdiction, Motion for Summary Judgment. Signed by Honorable Cameron McGowan Currie on 3/19/2012. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Ella R. Hall,
)
)
Plaintiff,
)
)
v.
)
)
Stacy Branham and Kershaw Health
)
Medical Center,
)
)
Defendants.
)
___________________________________ )
C/A NO. 3:10-2054-CMC-JRM
OPINION and ORDER
Plaintiff Ella R. Hall (“Plaintiff”) filed this action on August 6, 2010, against her employer,
KershawHealth (incorrectly identified as Kershaw Health Medical Center), and her direct supervisor
from September 2007 to December 2009, Stacy Branham (“Branham,” or collectively,
“Defendants”). Plaintiff seeks recovery under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000(e) et seq. (“Title VII”); the Age Discrimination in Employment Act of 1967, as
amended, 26 U.S.C. § 621 et seq. (“ADEA”); and the South Carolina Human Affairs Law
(“SCHAL”), S.C. Code Ann. § 1-13-10 et seq.
BACKGROUND
Plaintiff is a fifty-five year old African-American, female nurse. Plaintiff alleges that she
was subjected to disparate treatment and a hostile work environment (or harassment) as a nurse at
KershawHealth because of her age and race. From 2000-2007, Plaintiff was on the Baylor plan,
which is common in the nursing profession and provides a financial incentive to nurses to work
weekends by paying them for 32 hours when they work 24 hours (or two 12-hour shifts). Under
KershawHealth’s policies, “Baylor staff are required to work every weekend, two 12-hour shifts,
for a total of 24 hours.” Dkt. 22-5 at 21. However, “Baylor staff may receive six scheduled days
off per year by submitting vacation request and approval.” Id. Because of a trip to Oregon in 2007,
Plaintiff missed at least six consecutive days of work (over the course of three weekends) without
submitting a vacation request or receiving approval.1 Plaintiff was removed from the Baylor plan
in 2007 after she returned from her trip. Plaintiff alleges that she was removed from the Baylor plan
because of her race and age. She also claims that she was a denied a bonus that she earned in 2010
because of her race and age.
Her claim of harassment/hostile work environment is based on her allegation that she was
assigned more patients than other nurses because of her race and age and that she received patients
with a higher acuity. Plaintiff suggests that a patient with a higher acuity is one that requires more
time, care, or attention from a nurse.
Plaintiff also alleges that she was retaliated against because, in July 2007, she wrote a letter
to the Vice President of Nursing Services to complain about the firing of an older nurse. She claims
that she was removed from the Baylor plan in September 2007 after she wrote the letter (returning
to a schedule of working 32 hours a week) and that her supervisor retaliated against her by assigning
her more and higher acuity patients.2
In August 2009, Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), alleging race and age discrimination (but not retaliation). In
1
Plaintiff admits that she “failed to show up for work for several weekends” in 2007. Dkt.
No. 22-4 at 35 (Pl’s dep.). She contends that she informed her supervisor, Branham, by telephone
that she “was going out to Oregon and there was a possibility that I would not be coming back.”
Plaintiff did not submit evidence that she submitted any vacation request or received approval prior
to her absences, nor could Plaintiff recall whether she took a leave of absence. Dkt. No. 22-4 at 36
(“I think I was on, I took vacation or something. I forgot now exactly how it all transpired . . . .”).
2
The court notes that Plaintiff has taken inconsistent positions as to why she was removed
from the Baylor plan and allegedly subjected to a hostile work environment/harassment.
2
May 2010, the EEOC issued a notice of right to sue upon Plaintiff’s request. Plaintiff filed this
action on August 6, 2010. Dkt. No. 1.
On March 31, 2011, Defendants filed a motion to dismiss and for summary judgment. The
matter is currently before the court for review of the Report and Recommendation (“Report”) of
Magistrate Judge Joseph R. McCrorey, made in accordance with 28 U.S.C. § 636 (b) and Local Rule
73.02(B)(2)(g), D.S.C., filed on February 3, 2012. Dkt. No. 30. The Report recommends that the
court grant Defendants’ motion to dismiss and for summary judgment. Id. Plaintiff filed objections
to the Report through her attorney on March 8, 2012.3 Dkt. No. 37.
STANDARD
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Magistrate Judge’s Report and Recommendation to which a
specific objection is made. The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b). In the absence of an objection, the court reviews the Report
3
Objections to the Report were due on February 21, 2012. On February 22, 2012, the court
received a “Motion for Extension of Time to File Objection to Report and Recommendation” by
mail from Plaintiff (acting pro se) in which Plaintiff sought an additional 30 days to file objections
and asked the court to require her attorney to continue service as counsel. Dkt. No. 32. Plaintiff
attached correspondence from counsel, dated February 10, 2012, which advised Plaintiff that her
attorney intended to seek to be relieved as counsel. The court entered a docket text order requiring
counsel to file objections on behalf of Plaintiff, given the age of the motion, by March 8, 2012. Dkt.
No. 33. On March 8, 2012, counsel filed objections and attached Plaintiff’s additional handwritten
objections to the objections. Dkt. No. 37. The court addresses both counsel’s objections and
Plaintiff’s objections.
3
and Recommendation only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district 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”) (citation omitted).
DISCUSSION
The court has made a de novo review of the Report and underlying record as to all matters
to which Plaintiff lodged an objection and has reviewed the Report for clear error as to other matters.
Having done so, the undersigned finds no substantive errors in the Report and concurs with the
Report in its analysis. The court will, however, briefly address each of Plaintiff’s objections.
A. Individual Liability Against Defendant Stacy Branham
The Magistrate Judge concluded that Defendant Stacy Branham, an employee of
KershawHealth, is entitled to summary judgment because supervisory liability is barred under Title
VII, the ADEA, and SCHAL. Dkt. No. 30 at 9-10. The Fourth Circuit held in Lissau v. Southern
Foods Serv., Inc., 159 F. 3d 177 (4th Cir. 1998), that no supervisory liability exists in Title VII
cases. Plaintiff argues that, in Lissau, the Fourth Circuit did not overrule its prior holding in
Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d
27 (4th Cir. 1990), in which the court held that an individual supervisor with certain delegated
authority can qualify as an employer under Title VII. The court finds that the Magistrate Judge
correctly concluded that, under Lissau, Defendant Branham is not subject to liability under Title VII.
Even if Lissau did not overrule Paroline, there is no evidence that Defendant Branham exercised
significant control over Plaintiff’s hiring, firing, or conditions of employment such that Branham
4
qualifies as an employer under Paroline.4
Further, because the SCHAL tracks Title VII
jurisprudence, Branham cannot be held liable under SCHAL.5 See Birbeck v. Marvel Lighting
Corp., 30 F.3d 507, 510 (4th Cir. 1994).
Finally, the Fourth Circuit has held that the ADEA limits liability to employers and prohibits
individual liability against employees as agents of the employer. Birbeck v. Marvel Lighting Corp.,
30 F.3d 507, 510 (4th Cir. 1994). The Report correctly concluded that Branham is not subject to
liability under Title VII, SCHAL, and the ADEA.
B. Eleventh Amendment Bar to ADEA Claim Against KershawHealth
The Magistrate Judge concluded that Plaintiff’s ADEA claim against KershawHealth is
barred by the Eleventh Amendment. Dkt. No. 30 at 11-13. States, and their alter egos, are immune
from suit in federal court unless the state waives its immunity, Lapides v. Board of Regents, 535
U.S. 613 (2002), or Congress abrogates its immunity, Kimel v. Florida Bd. of Regents, 528 U.S. 62
(2000). Defendants have submitted uncontroverted evidence that KershawHealth is the alter ego
of the State of South Carolina for Eleventh Amendment purposes.6 See Dkt. No. 30 at 11-12.
4
Plaintiff states in her objections that Branham has the authority to hire and fire employees.
Dkt. No. 37-1 at 3 (“Reportedly Stacy Branham has been or has had the authority to hire and has
been instrumental in the discharge of employees.”). However, Plaintiff does not allege that Branham
hired or fired her. Neither has Plaintiff submitted evidence to support her contention.
5
In her objections, Plaintiff argues that an individual may be liable for age and race
discrimination under the New York Human Rights Law (“HRL”) and the California Fair
Employment and Housing Act (“FEHA”). Dkt. No. 37-1 at 2-3. These laws do not apply to Plaintiff
because the alleged discrimination occurred in South Carolina. The extent to which an individual
may be liable under HRL and FEHA is, therefore, irrelevant to this case.
6
Plaintiff contends in her objections that KershawHealth was not an agent of the State when
the alleged acts of age discrimination began. Dkt. No. 37-1 at 5-6. According to Plaintiff,
KershawHealth was previously named “Kershaw County, and County hospitals” and was not
entitled to Eleventh Amendment immunity. Id. Although it appears that KershawHealth was
previously named Kershaw County Medical Center, there is no evidence that the facility only
became an agent of the State when the name changed to KershawHealth. In fact, as explained in the
5
Plaintiff has submitted no evidence that the State has waived immunity for ADEA claims. Further,
the United States Supreme Court has held that Congress did not abrogate a state’s Eleventh
Amendment immunity when it enacted the ADEA. Kimel. 528 U.S. at 91. For the reasons stated
in the Report, the Magistrate Judge correctly concluded that KershawHealth is the alter ego of the
State of South Carolina for Eleventh Amendment purposes and is immune from suit under the
ADEA.
C. Disparate Treatment/Discrete Acts
In her complaint, Plaintiff claims that she “has not been given the same employment,
transfer, bonus, and/or advancement opportunities as white employees.” Dkt. No. 1 at 3, ¶9. The
Magistrate Judge concluded that Plaintiff’s disparate treatment claims under Title VII are
procedurally barred because they were neither specifically included in her EEOC charge nor
reasonably related to the claims in her EEOC charge.7 Dkt. No. 30 at 13-14. Plaintiff does not
specifically object to this finding.
The Magistrate Judge further concluded that even if these claims are not procedurally barred,
Plaintiff has failed to establish a prima facie case of disparate treatment based on race related to
hiring or firing, transfer, bonus, or promotions. Id. at 14. The Magistrate Judge also found that
Plaintiff has failed to establish a prima facie case of discriminatory discharge because she has not
been discharged by KershawHealth. Id. at 14 n.7.
Report, Defendants have submitted South Carolina statutes which indicate that “KershawHealth’s
Board was created by an Act of the South Carolina General Assembly [in 1954], has functions and
powers which are legislatively prescribed, and had its name[] changed through Acts of the General
Assembly.” Dkt. No. 30 at 11 n.6.
7
In the charge filed with the EEOC, Plaintiff complained that she is assigned more patients
than younger nurses or white nurses and that she receives more patients that require greater work,
such as patients being admitted. She does not allege that she failed to receive a bonus or that she
was removed from the Baylor plan.
6
Plaintiff’s counsel argues that Plaintiff’s disparate treatment claim can be demonstrated by
differences in patient assignments. Dkt. No. 37 at 5. However, the Magistrate Judge thoroughly
reviewed the assignment sheets submitted by Plaintiff as well as the affidavit of Stacy Collier, the
Director of Inpatient Nursing at KershawHealth, which contains Ms. Collier’s assessment of nurse
assignments.8 See Dkt. No. 30 at 18-19. The Magistrate Judge found that the evidence does not
indicate that Plaintiff was assigned more patients than younger, white nurses.9 Id. at 19. After
reviewing the evidence submitted to the Magistrate Judge and the evidence submitted by Plaintiff
with her objections, the court finds that the evidence does not support Plaintiff’s allegation that she
was assigned more patients than younger, white nurses. Plaintiff has similarly failed to provide
evidence to support her allegation that she was assigned more difficult patients or patients that
required more attention and/or time from a nurse.10
8
As the Magistrate Judge stated, Plaintiff submitted 16 Staffing Assignment sheets (from
16 dates) as evidence of being assigned more patients. Dkt. No. 30 at 17-18. The sheets do not
purport to list patient acuity. Defendants submitted evidence summarizing all of the Staffing
Assignment sheets when Plaintiff worked during the alleged period of discrimination. Id. at 18. The
alleged period of discrimination in Plaintiff’s EEOC charge was February 2009 to August 2009.
Based on a review of all Staffing Assignment sheets from that period, Plaintiff had an average of
5.01 patients per shift. There were seven white nurses in her unit that had higher patient averages
per shift. Using the time period from January 2008 to August 2010 (from the time Plaintiff alleges
the discrimination began until the filing of the lawsuit), Plaintiff was assigned an average of 5.07
patients per shift, with six white nurses having the same or greater average. Id.
9
According to Plaintiff, she may have been the only black nurse in the hospital on the
Baylor plan or even the only nurse on the Baylor plan. Dkt. No. 37-1 at 9. Further, Plaintiff claims
that she was the only employee to “max out” her hours to earn a bonus in 2010. Id. Plaintiff,
therefore, argues that her “transfer or bonus issues should not have been compared with those of
white employees as this was not the case; there has been some misunderstanding somewhere.” Id.
Even assuming these claims are true, Plaintiff has failed to establish that the hospital’s explanation
for removing Plaintiff from the Baylor plan (attendance problems) was pretext for race or age
discrimination. Plaintiff has similarly failed to provide evidence that the change in the requirements
to receive a bonus in 2010 was to harm Plaintiff in retaliation for her EEOC charge of age and race
discrimination or some other protected activity.
10
Plaintiff complains that she “always receive[ed] the first admissions, receiv[ed] patients
with high acuity or [was] assigned to whichever side the hall that had empty rooms (and would []
7
Plaintiff argues that the disparate treatment relates to her removal from the Baylor plan and
her failure to receive a bonus in November or December of 2010. Dkt. No. 37-1 at 6. Defendant
Branham testified that Plaintiff was removed from the Baylor plan because she missed six days of
work without advance permission. Dkt. No. 22-6 at 3. Plaintiff alleges that Defendants used her
absences as a coverup for race and age discrimination.
Although a demotion or change in benefits can be an adverse employment action, Plaintiff
has failed to establish a prima facie case of disparate treatment or that her removal from the Baylor
plan was because of her race or age. The evidence establishes that she was removed from the Baylor
plan because she missed six days of work without advance permission, in violation of the terms of
the Baylor plan. As explained below, Plaintiff has failed to provide evidence that this reason was
pretext for race or age discrimination.
Regarding Plaintiff’s lack of bonus in 2010, Plaintiff has failed to provide evidence to
establish that the bonus was eliminated because of Plaintiff’s race or age. Plaintiff alleges that she
received a bonus for “maxing out” her hours in 2009 but that the bonus was eliminated in 2010.
Dkt. No. 37-1 at 7-8. According to Plaintiff, she heard that she was the only person to “max out”
her hours in 2010, but that she did not receive the bonus because management increased the number
of hours required to “max out.” Id. Plaintiff contends that this was not included in her EEOC
charge because it occurred in November or December 2010, which was after she filed her EEOC
charge in August 2009. Id. at 8. As explained in the Report, assuming Plaintiff’s claim regarding
failure to receive a bonus is not administratively barred, Plaintiff has failed to show that any
similarly-situated employee received a bonus in 2010. Dkt. No. 30 at 15. In fact, Plaintiff testified
receive[] first admissions). Dkt. No. 37 at 5. Plaintiff claims that patients that are being admitted
(“first admissions”) require more time than admitted patients.
8
that she did not know if any other employee received a bonus that she did not receive. Id. Further,
Plaintiff has failed to submit evidence that the bonus requirements were altered to prevent Plaintiff
from receiving a bonus because of her age or race. The court finds that the Magistrate Judge
properly considered and understood Plaintiff’s allegations and found that Plaintiff did not establish
a disparate treatment claim under either Title VII or the ADEA.
D. Harassment/Hostile Environment Claims
The Magistrate Judge found that Plaintiff failed to establish a hostile work environment
claim based on her race or age because (1) Plaintiff failed to provide evidence to establish that the
alleged harassment or hostile work environment was because of her race or age, and (2) Plaintiff
failed to provide evidence to demonstrate that the alleged harassment was severe or pervasive. Dkt.
No. 30 at 15-20.
Plaintiff’s counsel argues that Plaintiff submitted “a diary of discrimination based on age and
race” which included “harassing behavior.” Dkt. No. 37 at 6. The exhibit cited is a two-page list
of thirteen nurses that is entitled “Examples of Nurses Discriminated Against Due to Race, And Or
Age.” Dkt. No. 25-1. This documents lists thirteen nurses (including Plaintiff), seven of whom are
white, three are black, and one is Asian. Two nurses do not have a race listed. Some of the ages
of the nurses are listed. This document fails to show that Ella Hall was subjected to harassment
based on race or age, but merely provides examples of nurses that Plaintiff believes experienced race
and/or age discrimination. This document is not supported by any evidence or affidavits from the
listed nurses. At most, this document, if its contents are accepted as true, demonstrates that many
nurses – white, black, and Asian nurses of all ages – suffered harassment. The court agrees with the
Magistrate Judge’s finding that this document does not establish harassment based on race or age.
Dkt. No. 30 at 16-17.
9
Plaintiff’s counsel also argues that Defendants’ conduct was severe or pervasive to alter the
conditions of employment as evidenced by the number of patients assigned to Plaintiff and the
patients with higher acuity. Dkt. No. 37 at 6. As explained above, the Magistrate Judge reviewed
the assignment sheets submitted by Plaintiff and found that the sheets did not establish that Plaintiff
received more patients or higher acuity patients than white or younger nurses.
The Magistrate Judge found that Plaintiff’s conclusory statements of harassment were not
supported by other evidence. Dkt. No. 30 at 19. Plaintiff’s counsel contends that another black
nurse, Betty Anthony, corroborated Plaintiff’s allegation that she was assigned more patients or
patients with higher acuity. Dkt. No. 37 at 6. Ms. Anthony has also filed a lawsuit alleging
discrimination against Defendant KershawHealth, and testified that admissions were not rotated
evenly among nurses. Ms. Anthony testified that she reported to Defendant Branham that Plaintiff
was receiving many first admissions. Dkt. No. 31 at 3. When asked why she felt Plaintiff was
harassed because of her race, Ms. Anthony said that she was assigned Plaintiff’s patients the
following day (presumably because she was also black) and that those patients were difficult, i.e.,
“basically incapacitated.” Id. at 4 (dep. p. 35). Although Ms. Anthony’s testimony corroborates
Plaintiff’s allegations that Plaintiff was receiving higher acuity patients, Ms. Anthony was unable
to provide any further evidence to support Plaintiff’s allegation that it was because Plaintiff was
black. Plaintiff admitted that it was not Plaintiff’s job responsibility to assess the acuity of patients
and that Plaintiff only learned of the acuity of patients during the report at the beginning of her
shifts. Dkt. No. 22-4 at 6. Plaintiff also admitted that she may not be present for the full report to
learn about the acuity of patients not assigned to her and that the acuity of patients may change
throughout a shift. Dkt. No. 22-3 at 46. Further, Ms. Anthony testified that a nurse does not know
the acuity of patient after the report is over, unless the nurse is treating the patient. Dkt. No. 22-7
10
at 3. The court finds that Ms. Anthony’s testimony provides little support for Plaintiff’s allegation
of harassment.
Plaintiff objects that the Magistrate Judge failed to consider all of the evidence she submitted
to establish harassment and lists 26 incidences of alleged harassment.11 Dkt. No. 37-2 at 2-10. The
court has reviewed the evidence submitted originally to the Magistrate Judge and the additional
evidence submitted by Plaintiff with her objections.12 The court finds that the additional evidence
does not change the result. The specific examples of harassment that she provided in her objections
are not supported by any evidence other than her statements. See Gilliam v. South Carolina Dept.
Of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007) (“Although [the plaintiff] made several
general statements of dissimilar treatment, she provided very few specifics. The few specific
examples [the plaintiff] did proffer were not supported by any evidence other than her own
statements, which often lacked detail.”).
E. Retaliation
The Magistrate Judge found that Plaintiff has not established a claim of retaliation. Dkt. No.
30 at 20-23. Plaintiff’s retaliation claim is based on her writing an email to the Vice President of
11
For example, Plaintiff alleges that she was discriminated against because she was not part
of the “click” (clique) or “clan” to which Defendant Branham belonged. Dkt. No. 37-2 at 3.
Plaintiff argues that she received many unnecessary phone calls when she was on call and that she
was called in to work more than white nurses when she was on call. Id. at 5, 10. She alleges that
she had to use paid time off to get “respite” to avoid being called in. Id. at 9. She also claims her
“right to Free Speech” was violated when she was placed on probation. Id. at 8. None of these
allegations have been supported by additional evidence.
12
Plaintiff has submitted additional pages from her diary explaining the number of patients
she had on particular dates as well one additional Inpatient Nursing Staffing Assignment dated
August 14, 2008. Dkt. No. 37-6 at 5. According to Plaintiff, this Staffing Assignment shows that
she was assigned seven patients, more than every other nurse. However, it appears from the Staffing
Assignment that she was assigned six patients during the day shift and six patients during the night
shift. The other nurses appear to have been assigned six patients each during the day and night
shifts.
11
Nursing Services (Ms. Keefe) concerning the firing of another nurse, Nurse Bock, in July 2007. Id.
at 20. According to Plaintiff, Nurse Bock was fired because of her age. Dkt. No. 37-3 at 3. Plaintiff
wrote a letter defending Nurse Bock but failed to mention age, race, or any other type of
discrimination in her letter to Ms. Keefe. Dkt. No. 22-5 at 35. Defendants, in turn, allegedly
removed her from the Baylor plan because of her letter.13
The Magistrate Judge concluded that Plaintiff’s claim of retaliation is procedurally barred
because it was neither included in her EEOC charge filed in 2009, nor like or related to any claim
included in her charge. Dkt. No. 30 at 21. Even if the claim is not procedurally barred, her
retaliation claim fails because (1) Plaintiff did not engage in protected activity when she complained
by letter about the firing of another employee because she made no reference to discrimination; (2)
Plaintiff cannot show that Defendant Branham knew about the letter to Ms. Keefe prior to Plaintiff’s
removal from the Baylor plan; and (3) Defendants have provided a legitimate, non-retaliatory reason
for removing Plaintiff from the Baylor plan and Plaintiff has failed to show that this reason is
pretext. Id. at 21-23.
Plaintiff argues that the reason provided by Defendants for removing Plaintiff from the
Baylor plan (attendance) was pretext. Dkt. No. 37-3 at 4. Although Plaintiff explains the nature of
her time off in 2007 that led to her absences,14 Plaintiff has failed to prove that she did not miss at
13
Plaintiff alleges that Defendants also retaliated against her through harassment, which
included assigning her more patients and higher acuity patients. Plaintiff’s counsel argues that
Plaintiff was subjected to“retaliatory work assignments” as documented in the nurse assignment
sheets, and in Plaintiff’s diaries and emails. Dkt. No. 37 at 7-8. However, as explained above, the
court does not find that Plaintiff was assigned more patients or higher acuity patients than white or
younger nurses.
14
Plaintiff contends that she took time off between August 30, 2007 and September 22, 2007
to travel across the country to Oregon with her husband. Dkt. No. 37-3 at 4. Plaintiff states that she
and her husband were considering relocating to Oregon and that they would have stayed in Oregon
had she been able to secure employment. Id. at 5. Plaintiff contends that her absences in 2007 were
12
least six days of work without authorization. Id. at 4-6. Neither has Plaintiff submitted evidence
that she submitted a “vacation request” and received “approval.” Despite Plaintiff’s belief that she
was removed from the Baylor plan because she was a black or older nurse, Plaintiff fails to submit
evidence to demonstrate that the reason for her removal from the Baylor plan was race or age
discrimination, and not her failure to comply with the terms and conditions of the Baylor plan. See
Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989) (“[A] plaintiff’s own assertions of
discrimination in and of themselves are insufficient to counter substantial evidence of legitimate
nondiscriminatory reasons for an adverse employment action.”).
To overcome the Magistrate Judge’s finding that Plaintiff did not engage in a protected
activity when she wrote a letter complaining about the firing of Nurse Bock to Ms. Keefe, Plaintiff
argues that she engaged in protected activity when Nurse Bock filed Plaintiff’s letter in support of
Nurse Bock’s charge of discrimination with the EEOC. Dkt. No. 37-3 at 3. Assuming this is a
protected activity, Plaintiff has failed to establish that any of the charge nurses or Defendant
Branham knew that this letter was submitted to the EEOC. Further, Nurse Bock filed her charge
of discrimination with the EEOC on February 19, 2010, years after Plaintiff was removed from the
Baylor plan or the alleged retaliatory work assignments began. See Dkt. No. 24 at 3; Dkt. No. 25
at 3. The court, therefore, rejects Plaintiff’s objection that she was retaliated against based on Nurse
Bock’s EEOC filing.
F. SCHAL
The Magistrate Judge found that Plaintiff’s claims under the SCHAL are procedurally barred
for failure to file a charge of discrimination with the State Human Affairs Commission. Dkt. No.
unusual and that they should not have been considered as regular absences. Id. However, Plaintiff
does not submit evidence that she received a leave of absence or resigned from the hospital.
13
30 at 24. Substantively, the Magistrate Judge found that Plaintiff’s SCHAL claims fail for the same
reasons her federal claims fail.15 Id. Plaintiff’s counsel does not object to the Magistrate Judge’s
finding regarding the SCHAL claims. Plaintiff objects that the SCHAL is not procedurally barred
because she filed an EEOC charge and the EEOC should have forwarded the charge to the SCHAL.
Dkt. No. 37-3 at 3; Dkt. No. 37-4 at 8. The court does not address this objection because the court
concludes that even if Plaintiff’s claims under the SCHAL are not procedurally barred, Plaintiff’s
SCHAL claims fail for the same reasons her Title VII claims fail.
CONCLUSION
For the reasons stated above, the court adopts the Report and grants Defendants’ motion to
dismiss and for summary judgment. Plaintiff’s claims are dismissed with prejudice.
IT IS SO ORDERED.
S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
March 19, 2012
15
Further, the Magistrate Judge found that Plaintiff abandoned her SCHAL claims as she
did not address them in her response to Defendants’ motion to dismiss and for summary judgment.
Dkt. No. 30 at 24.
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?