Govan v. Caterpillar Inc
Filing
49
ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting in part 45 Report and Recommendation re 32 Motion for Summary Judgment. The court grants defendant's motion for summary judgment with respect to Plainti ff's claims for hostile work environment and intentional infliction and emotional distress and denies Defendant's motion for summary judgment as to Plaintiff's claim for sex and pregnancy discrimination. The Clerk of Court is directed to place the within action on the November 2012 trial roster. Signed by Chief Judge Margaret B Seymour on 9/26/2012. (asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Lakeisha J. Govan,
)
)
Plaintiff,
)
v.
)
)
Caterpillar, Inc.
)
)
Defendant.
)
______________________________)
Civil Action No. 3:10-03132-MBS
ORDER AND OPINION
Plaintiff Lakeisha J. Govan (“Plaintiff”) filed this action against her former employer,
Caterpillar, Inc. (“Defendant”), alleging that she was subjected to discrimination and a hostile
work environment because of her sex and pregnancy in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000e-17, and the Pregnancy Discrimination Act
of 1978 (“PDA”), 42 U.S.C. § 2000e(k). (ECF No. 1.) Plaintiff also asserts a state law claim for
intentional infliction of emotional distress. (Id.) This matter is before the court on a motion for
summary judgment pursuant to Fed. R. Civ. P. 56 by Defendant, which motion was filed on
January 10, 2012.
(ECF No. 32.)
Plaintiff opposes Defendant’s motion, asserting that
Defendant has failed to show that it is entitled to judgment as a matter of law on her claims.
(ECF No. 36.)
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 D.S.C., the matter was
referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. On August 13,
2012, the Magistrate Judge issued a Report and Recommendation in which she recommended
that the court grant Defendant’s motion on all Plaintiff’s claims. (ECF No. 45.) Plaintiff filed
objections to the Report and Recommendation asking the court to decline accepting the
1
Magistrate Judge’s recommendation. (ECF No. 46.) For the reasons set forth below, the court
adopts, in part, the Report and Recommendation of the Magistrate Judge and GRANTS
Defendant’s Fed. R. Civ. P. 56 motion for summary judgment as to Plaintiff’s claims for hostile
work environment and intentional infliction of emotional distress.
The court DENIES
Defendant’s motion for summary judgment as to Plaintiff’s claim for sex and pregnancy
discrimination.
I.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The facts as viewed in the light most favorable to Plaintiff are discussed in the Report
and Recommendation. The court concludes, upon its own careful review of the record, that the
Magistrate Judge’s factual summation is accurate. The court adopts this summary as its own,
and will only reference facts pertinent to the analysis of Plaintiff’s claims.
Defendant is the world’s largest manufacturer of construction and mining equipment,
diesel and natural gas engines, and industrial gas turbines. (ECF No. 32-14, p. 1.) Defendant
operates a hydraulic parts assembly plant in Sumter, South Carolina (the “Sumter facility”).
(ECF No. 32-2, pp. 8-9.) In July 2004, Defendant hired Plaintiff to work at the Sumter facility.
(ECF No. 32-2, p. 13.) Plaintiff mainly worked for Defendant as a “kitter,” which position
required Plaintiff to act as a runner and sorter, perform preliminary assembly, and supply parts
for piston heads and rods to rod builders.1 (ECF No. 32-2, pp. 8-10.) Plaintiff usually worked
second shift at the Sumter facility, where she was primarily supervised by David Johnson
(“Johnson”). (ECF No. 32-3, pp. 9-10.)
1 According to Plaintiff, rod builders finish assembling the piston heads and rods, and then give these completed components to “Group Build”
who put the parts in hydraulic cylinders. (ECF No. 32-2, pp. 8-10.)
2
During her employment with Defendant, Plaintiff became pregnant on three separate
occasions, which maternity resulted in childbirth on July 19, 2006, October 23, 2007, and May
28, 2009.
(Id. at pp. 13-14.)
On December 28, 2005, during Plaintiff’s first pregnancy,
Plaintiff’s physician stated that Plaintiff “needs to be able to sit down when needed due to
abdominal pain and left leg pain with pregnancy.” (ECF No. 32-14, p. 5.) In an attempt to
reasonably accommodate Plaintiff in accordance with her doctor’s instructions, Defendant
transferred Plaintiff to a first shift job in the shipping and receiving area (the “Logistics
Department”) and placed her under the supervision of Tim Faulling (“Faulling”). (Id. at pp. 1516.) After delivering her first baby on July 19, 2006, Plaintiff returned to her duties as a kitter
on September 11, 2006. (ECF No. 32-14, p. 9.)
During Plaintiff’s second pregnancy, Defendant again moved Plaintiff to the Logistics
Department on the first shift. (ECF No. 32-2, p. 17.) On the first day that Plaintiff rejoined the
Logistics Department, Ed Johns (“Johns”), the first shift supervisor, met with employees in the
department to notify them that Plaintiff would be joining the group. (ECF No. 32-11, pp. 7-8.)
Johns told the individuals at this meeting that Plaintiff was pregnant again and “it will continue
to be that way until she figured out that it was not coming from the water.” (ECF No. 36-1, p.
12.) In response to Johns’ statement, a co-worker approached Johns and said that another
employee in the Logistics Department had found his comments offensive. (ECF No. 32-11, pp.
9-10.)
After delivering her second baby on October 23, 2007, Plaintiff returned to work as a
kitter under Johnson on December 19, 2007. (ECF Nos. 32-3, pp. 9-10; 32-14, p. 16.) In late
2008, Plaintiff learned that she was pregnant again. (ECF No. 32-3, p. 12.) Thereafter, Plaintiff
had a conversation with Virginia Dority (“Dority”), the supervisor of the Human Resources
3
Department at the Sumter facility, who suggested that Plaintiff see the Sumter facility’s in-house
nurse, Lisa Osborne (“Osborne”). (ECF No. 32-2, pp. 5-6.) During her conversation with
Plaintiff, Osborne learned that Plaintiff did not want to have any more children. (Id. at p. 18.) In
response to this information, Osborne said that she could help Plaintiff get rid of the child
without her husband finding out about it. (Id.) Osborne further implied that Plaintiff could lose
her job due to her pregnancy because Defendant did not like employees missing work. (Id. at pp.
18-19.)
As news of Plaintiff’s pregnancy spread to her co-workers, Johnson began to make
comments to Plaintiff about her repeated pregnancies. Johnson stated on one occasion that all
Plaintiff knew how to do was have babies. (ECF No. 32-3, p. 8.) Johnson further stated to
Plaintiff that her stomach was big and she should stay on the plant floor so visitors to the Sumter
facility could not see her. (ECF No. 32-2, p. 20.) Johnson also told Plaintiff that his mother had
seventeen kids and if Plaintiff kept it up, she would catch up with his mom. (Id. at p. 22.)
Finally, Johnson stated to Plaintiff on a few occasions that she wobbled when she walked and he
repeatedly called Plaintiff “Prego.” (ECF Nos. 32-2, p. 25; 32-3, p. 1.)
Following Johnson’s example, other co-workers commented to Plaintiff about her
pregnancy.
Lisa Mims and Herb McCatherer called Plaintiff “Fertile Myrtle” on several
occasions. (ECF No. 36-1, pp. 25-26.) McCatherer also stated on one occasion that all Plaintiff
knew how to do was have babies. (Id. at p. 28.) David Garcia, another co-worker of Plaintiff,
commented to Plaintiff on two or three occasions that her baby was “not my baby.” (Id. at p.
27.) Finally, Faulling asked Plaintiff on a daily basis whether she was going to have her tubes
tied. (ECF No. 32-3, pp. 8-9.)
In January 2009, Plaintiff was selected for a position on a new production line at the
4
Sumter facility that made smaller hydraulic parts. (ECF No. 32-3, pp. 9-10.) The new position
was on first shift and Plaintiff again was supervised by Faulling. (Id.) However, on March 31,
2009, Plaintiff had to begin her maternity leave due to complications with her pregnancy. (ECF
Nos. 32-2, pp. 4-7; 32-14, p. 18.)
Also in 2009, the demand for hydraulic cylinders decreased significantly resulting in
lower production requirements at the Sumter facility. (ECF No. 32-10, pp. 8, 10.) Defendant
determined that it needed to lay-off some portion of its full-time workforce. (Id.) Ryan Howard
(“Howard”), the operations manager at the Sumter facility, had the responsibility of determining
the size of the workforce needed at the Sumter facility, which duty required him to communicate
with the supervisors to determine candidates for lay-off. (Id. at pp. 10-11.)
In the context of kitters, there were four kitters - Cassandra Chambers, Nitrella Thames,
Wanda Green, and Plaintiff - working at the Sumter facility, and Howard determined that only
two were needed based upon the reduced demand. (ECF Nos. 32-8, pp. 12-14; 32-10, p. 12.)
Howard met with Johns, Johnson, and Faulling to discuss who of the kitters would be retained
and who would be laid off. (ECF No. 32-10, p. 11.) Howard, Johns, Johnson, and Faulling
agreed that Plaintiff was a weaker performer, lacked the necessary work ethic, and should be laid
off. (ECF Nos. 32-15, pp. 2-3; 36-3, pp. 6-7, 11.) In contrast, Chambers was retained as a kitter
because she had received an overall rating of “Outstanding” in her final performance review
before the lay-off selection. (ECF No. 32-15, pp. 6-7.) Thames was retained over Plaintiff even
though they had the same performance review score, because Thames did not have any scores of
“Improvement Needed” unlike Plaintiff, and Howard, Johns, Johnson, and Faulling considered
Thames to be a strong employee whose motivation, initiative, and willingness to help were
considered great assets at the Sumter facility. (ECF Nos. 32-15, pp. 3, 9-10; 36-5, pp. 3-4.)
5
After delivering her third baby on May 28, 2009, Plaintiff was cleared to return to work
on July 23, 2009. (ECF No. 32-14, p. 20.) On July 27, 2009, Plaintiff met with Dority, who
informed Plaintiff that she was being laid off. (ECF No. 32-3, p. 23.)
On August 7, 2009, Plaintiff filed a charge of race, sex, and pregnancy discrimination
with the South Carolina Human Affairs Commission (“SCHAC”) and the U.S. Equal
Employment Opportunity Commission (“EEOC”), alleging that she was laid off “after returning
from maternity leave” and “the majority of the employees chosen for lay-off are Black.” (ECF
No. 36-8, p. 1.) After receiving notice of the right to sue, Plaintiff commenced this action on
December 9, 2010. (See ECF No. 1, p. 2.) Defendant answered Plaintiff’s complaint on January
31, 2011. (ECF No. 9.) On January 10, 2012, Defendant moved for summary judgment
pursuant to Fed. R. Civ. P. 56 as to Plaintiff’s claims. (ECF No. 32.) Plaintiff filed opposition
to Defendant’s motion on February 14, 2012, to which Defendant filed a reply in support of the
motion on March 2, 2012. (ECF Nos. 36, 41.)
II.
A.
LEGAL STANDARD AND ANALYSIS
Standard
1.
Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections
are filed, and reviews those portions which are not objected to—including those portions to
which only “general and conclusory” objections have been made—for clear error. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
6
200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
2.
Summary Judgment
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect the
disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248–49 (1986). A genuine question of material fact exists where, after reviewing the record as a
whole, the court finds that a reasonable jury could return a verdict for the nonmoving party.
Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121,
123-24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment
with mere allegations or denials of the movant’s pleading, but instead must “set forth specific
facts” demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v.
Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that “sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’
differing versions of the truth at trial.”
Anderson, 477 U.S. at 249.
“Mere unsupported
speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat’l Ass’n of
Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue
of material fact solely with conclusions in his or her own affidavit or deposition that are not
7
based on personal knowledge. See Latif v. The Community College of Baltimore, No. 08-2023,
2009 WL 4643890, at *2 (4th Cir. Dec. 9, 2009).
3.
Claim of Discrimination under Title VII
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin; . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff can establish a
claim of discrimination under Title VII in one of two ways, either by directly showing that
discrimination motivated the employment decision, or, as is more common, by relying on the
indirect, burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973).
Where there is direct evidence of discrimination, the McDonnell Douglas
burden-shifting framework does not apply. Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 121 (1985).
To establish a prima facie case of discrimination under Title VII in a reduction-in-force
(“RIF”) context, a plaintiff must show that: (1) she was protected under Title VII; (2) she was
selected from a larger group of candidates; (3) she was performing her job duties at a level
substantially equivalent to the lowest level of that in the group retained; and (4) the process of
selection produced a residual workforce that contained some unprotected persons who were
performing at a level lower than that at which the plaintiff was performing. Corti v. Storage
Tech. Corp., 304 F.3d 336, 340 n. 6 (4th Cir. 2002). Pursuant to this burden-shifting framework,
once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment
action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant
8
meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment
action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence
that the proffered reason was “not its true reason[ ], but [was] a pretext.” Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Though intermediate evidentiary burdens shift
back and forth under this framework, the ultimate burden of persuasion that the defendant
engaged in intentional discrimination remains at all times with the plaintiff. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
4.
Claim of Hostile Work Environment under Title VII
Title VII prohibits an employer from subjecting an employee to a hostile work
environment because of her sex. 42 U.S.C. § 2000e-2(a)(1). To state a prima facie case of a
hostile work environment based on sex, a plaintiff must demonstrate that: (1) she experienced
unwelcome harassment; (2) the harassment was based on her sex; (3) the harassment was
sufficiently severe or pervasive to alter the conditions of employment and create an abusive
atmosphere; and (4) there is some basis for imposing liability on the employer.” Chao v.
Rivendell Woods, Inc., 415 F.3d 342, 347 (4th Cir. 2005); White v. BFI Waste Servs., LLC, 375
F.3d 288, 297 (4th Cir. 2004); Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003).
To meet the causation element, a plaintiff must show that “but for” the protected
characteristic, she would not have been a victim of harassment. See Causey v. Balog, 162 F.3d
795, 801 (4th Cir. 1998). The “severe or pervasive” third element of a hostile work environment
claim “has both subjective and objective components.” Ocheltree v. Scollon Prods., Inc., 335
F.3d 325, 333 (4th Cir. 2003). First, a plaintiff must show that she “subjectively perceive[d] the
environment to be abusive.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993).
9
Second, a plaintiff must demonstrate that the conduct was such that “a reasonable person in the
plaintiff's position” would have found the environment objectively hostile or abusive. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998). Actionable harassment occurs
when the workplace is “permeated with discriminatory intimidation, ridicule, and insult.”
Harris, 510 U.S. at 21. Title VII is not a “general civility code.” Oncale, 523 U.S. at 80.
Further, when analyzing the third element, courts examine the totality of the circumstances,
considering such factors as the frequency of the discriminatory conduct and its severity; whether
it is physically threatening or humiliating or merely constitutes offensive verbal statements; and
whether it unreasonably interferes with an employee’s work performance. See Harris, 510 U.S.
at 23; Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996); see also E.E.O.C.
v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (stating that complaints that would
objectively give rise to bruised or wounded feelings or incidents that are premised on nothing
more than rude treatment, callous behavior, or a routine difference of opinion and personality
conflict will not satisfy the severe or pervasive standard).
5.
Claim of Discrimination under the PDA
The PDA amended Title VII. In pertinent part, the PDA states as follows:
The terms “because of sex” or “on the basis of sex” include, but are not limited to,
because of or on the basis of pregnancy, childbirth, or related medical conditions;
and women affected by pregnancy, childbirth, or related medical conditions shall
be treated the same for all employment-related purposes, including receipt of
benefits under fringe benefit programs, as other persons not so affected but
similar in their ability or inability to work, and nothing in section 2000e–2(h) of
this title shall be interpreted to permit otherwise.
The PDA makes it clear that Title VII encompasses pregnancy-based discrimination. Barnes v.
Hewlett–Packard Co., 846 F. Supp. 442, 443 (D.Md. 1994) (“Title VII, as amended by the
Pregnancy Discrimination Act of 1978 (PDA), makes it illegal to discriminate ‘against any
10
individual with respect to . . . conditions of . . . employment . . . because of or on the basis of
pregnancy, child birth, or related medical conditions.’”) (quoting 42 U.S.C. § 2000e(k)). A
pregnancy discrimination claim is analyzed in the same fashion as any other sex discrimination
claim brought pursuant to Title VII. DeJarnette v. Corning, Inc., 133 F.3d 293, 297 (4th Cir.
1998) (“A claim of discrimination on the basis of pregnancy must be analyzed in the same
manner as any other sex discrimination claim brought pursuant to Title VII.”).
6.
Exhaustion of Administrative Remedies
In order to bring a lawsuit in the United States District Court under Title VII, a plaintiff
is first required to properly exhaust his or her administrative remedies. Specifically, Title VII
requires that a claimant file a charge of discrimination with the EEOC within one hundred and
eighty (180) days of the alleged discriminatory act or acts, or, if the alleged discrimination
occurred in a “deferral state,” within three hundred (300) days from the alleged discriminatory
act or acts if the claimant initially institutes proceedings with the appropriate state agency, or
within thirty (30) days of the state agency’s termination of its proceedings, whichever is earlier.
See 42 U.S.C. § 2000e-5(e).
B.
Analysis
1.
Plaintiff’s Claim of Discrimination
Plaintiff alleges sex and pregnancy discrimination as a result of Defendant’s decision to
lay her off on July 27, 2009. Plaintiff attempts to establish her claims with both direct evidence
of the alleged discrimination and by using the McDonnell Douglas indirect, burden-shifting
method. In terms of direct evidence of discrimination, Plaintiff asserts that discriminatory
comments regarding her pregnancies were made by Johnson, Johns, and Faulling, who were
responsible for selecting her for layoff. (ECF No. 36, pp. 16-17.) Plaintiff further asserts that
11
her evidence establishes a prima facie case of discriminatory discharge in the context of a RIF
and a reasonable jury could conclude that Defendant’s stated reason for her lay-off was merely a
pretext for discrimination. (Id. at pp. 21-24.)
Upon her review of Plaintiff’s direct evidence, the Magistrate Judge concluded that there
were insufficient facts in the record for a reasonable jury to find that any remarks by Johnson,
Johns, or Faulling regarding Plaintiff’s pregnancies were causally connected to the RIF decision.
(ECF No. 45, p. 12.) The Magistrate Judge stated that there was not any evidence showing that
Plaintiff’s pregnancies were ever mentioned in any of the discussions pertaining to the RIF. (Id.
(cf. Baqir v. Principi, 434 F.3d 733, 744-45 (4th Cir. 2006) (finding that discriminatory remarks
of board members made at the meeting where the employment decision was discussed could be
attributed to the medical director who made the ultimate decision))) The Magistrate Judge found
that Plaintiff did not present sufficient evidence of any clear nexus between the discriminatory
remarks of others and the adverse employment action she suffered. (Id. at p. 12.) As a result,
the Magistrate Judge determined that Plaintiff’s direct evidence case fails because it relied on
remarks unconnected to the ultimate decision maker - or even the decision making process which are insufficient as a matter of law. (Id.)
In the context of her McDonnell Douglas analysis, the Magistrate Judge found that
Plaintiff failed to establish a prima facie case of discrimination because she could not show that
she was performing her job duties at a level substantially equivalent to Cassandra Chambers and
Nitrella Thames, the kitters retained by Defendant. (ECF No. 45, pp. 13-14.) Moreover, even if
Plaintiff could establish a prima facie case of discrimination in the RIF context, the Magistrate
Judge concluded that a reasonable jury would not find that Defendant’s reasons for laying off
Plaintiff were pretextual and that she was the victim of unlawful discrimination based upon her
12
pregnancies. (Id. at p. 14 (citing Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 29495 (4th Cir. 2010)).)
Therefore, the Magistrate Judge recommended granting Defendant’s
motion for summary judgment on Plaintiff’s sex and pregnancy discrimination claims related to
her lay-off. (Id. at p. 15.)
In her objections to the Magistrate Judge’s recommendation, Plaintiff asserts that her
direct evidence of discrimination could result in a reasonable jury finding that “the remarks of
Mr. Johnson, Mr. Johns or Mr. Faulling were casually connected to the Plaintiff’s termination.”
(ECF No. 46, p. 3.) In support of this assertion, Plaintiff argues that the decision to lay her off
was made by Johnson, Johns, Faulling, and these individuals were responsible for the
discriminatory animus exhibited towards her. (Id. at p. 4.) Plaintiff further argues that a
reasonable jury could conclude that the discriminatory animus exhibited by Johnson, Johns, and
Faulling towards Plaintiff directly and proximately resulted in her termination from employment
with Defendant. (Id. at p. 5.)
Also, in her objections to the Magistrate Judge’s recommendation, Plaintiff asserts that a
reasonable jury could find that she was performing at a level substantially equivalent to Thames.
(ECF No. 46, p. 6.) Plaintiff further asserts that the Magistrate Judge erroneously concluded that
a reasonable jury could not find that Defendant’s reasons for terminating Plaintiff were
pretextual. (Id. at p. 8.) In this regard, Plaintiff asserts pretext is established by (1) Howard’s
claims that he made the decision to terminate Plaintiff when Johnson’s testimony shows that he,
Johns, Howard, and Faulling made the decision to lay-off Plaintiff; (2) the close temporal
proximity between Plaintiff’s return from maternity leave and her termination; and (3) none of
Plaintiff’s performance evaluations ever indicated that she was not performing at a level which
met Defendant’s expectations. (Id. at pp. 8-10.) As a result of this evidence of pretext, Plaintiff
13
urges the court to reject the Magistrate Judge’s recommendation and deny Defendant’s motion
for summary judgment.
The court disagrees with the Magistrate Judge’s finding that direct evidence does not
exist to support a finding that Plaintiff’s lay-off on July 27, 2009 was motivated by her sex or
pregnancy. Plaintiff’s evidence that Johnson, Johns, and Faulling selected her for lay-off after
previously making discriminatory comments about her pregnancies raises a genuine issue of
material fact as to whether Plaintiff’s sex and/or pregnancy actually played a role in the
decision-making process and had a determinative influence on the outcome. See Fuller v.
Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995) (“What is required . . . is evidence of conduct or
statements that both reflect directly the alleged discriminatory attitude and that bear directly on
the contested employment decision.”). In this regard, a reasonable jury could return a verdict for
Plaintiff after finding that Johnson, Johns, and Faulling maintained a discriminatory attitude
towards pregnant women and that discriminatory attitude impacted the ultimate decision to layoff Plaintiff during the RIF.
To obscure the role of Johnson, Johns, and Faulling in Plaintiff’s lay-off, Defendant
claims that the ultimate decision regarding Plaintiff’s employment was made by Howard. (ECF
No. 32-1, p. 29 (citing ECF No. 32-15, p. 2).) However, Defendant’s assertion is contradicted by
testimonial evidence from Johnson that he, Johns, Faulling, and Howard all made the ultimate
decision to lay-off Plaintiff. (ECF No. 36-3, p. 6.) “The focus of . . . [the] inquiry is whether the
employer’s stated reason was honest, not whether it was accurate, wise, or well-considered.”
Anderson v. Ziehm Imaging, Inc., C/A No. 7:09-02574-JMC, 2011 WL 1374794, at *5 (D.S.C.
Apr. 12, 2011) (citing Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000)). Therefore, the
court finds that Plaintiff has presented sufficient evidence which, accepted as true for the
14
purposes of Defendant’s motion, establishes that the discriminatory perception of her as a
pregnant woman maintained by Johnson, Johns, and Faulling directly contributed to the adverse
employment action that Plaintiff suffered.
The court also disagrees with the Magistrate Judge’s finding that, assuming Plaintiff can
establish a prima facie case of discrimination in the context of a RIF, Plaintiff has not produced
sufficient evidence to meet her burden of proving that the reasons asserted for the RIF were a
pretext for sex and/or pregnancy discrimination. As outlined above, Plaintiff has provided
sufficient evidence that a reasonable jury could find that sex and/or pregnancy discrimination
was the real reason for her lay-off instead of the reasons cited by Defendant. Love-Lane v.
Martin, 355 F.3d 766, 788 (4th Cir. 2004) (“The ultimate question is whether the employer
intentionally discriminated . . . .”) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 146-47 (2000)) (internal citations omitted). Accordingly, the court must deny Defendant’s
motion for summary judgment on Plaintiff’s claim for sex and pregnancy discrimination.
2.
Plaintiff’s Claim of Hostile Work Environment
As part of her Title VII and PDA claims, Plaintiff alleges that Defendant intentionally,
maliciously, and recklessly created and/or allowed to occur “a work environment that was
hostile towards pregnant/female employees.”
(ECF No. 1, p. 2.)
Defendant argues that
Plaintiff’s claim for hostile work environment is subject to dismissal for failure to exhaust
administrative remedies. (ECF No. 32-1, p. 20.)
Upon her review, the Magistrate Judge found that Plaintiff’s hostile work environment
claim was not reasonably related to the allegations in her EEOC charge of discriminatory
discharge and, therefore, was beyond the scope of her charge and any reasonable investigation
that would follow. (ECF No. 45, p. 6.) As a result, the Magistrate Judge concluded that the only
15
properly exhausted claim before the court was Plaintiff’s claim that she was discharged on July
27, 2009 in violation of Title VII. (Id.) Accordingly, the Magistrate Judge recommended
granting Defendant’s motion for summary judgment because Plaintiff failed to administratively
exhaust her hostile work environment claim.
In her objections to the Magistrate Judge’s recommendation, Plaintiff asserts that the
Magistrate Judge erred in concluding that Plaintiff’s claim of hostile work environment should
be dismissed because it was outside the scope of her administrative charge of discrimination.
(ECF No. 46, p. 1.) Plaintiff argues that her hostile work environment claim has been exhausted
because it is reasonably related to the discrimination claim set forth in her administrative charge,
and because a reasonable investigation of her administrative charge would have covered this
claim. (Id. at p. 3.)
After careful review of the record, the court agrees with the Magistrate Judge that
Plaintiff’s claim for hostile work environment is procedurally barred from consideration by this
court. It is undisputed that Plaintiff filed an administrative charge asserting the following:
I worked for the above employer from July 2004, as a Technician until I was laid
off July 27, 2009. During my employment my performance was above average
and I had no disciplines or warnings.
July 27, 2009, after returning from maternity leave I was informed I was laid-off.
No reason was given for my selection. I am aware the majority of the employees
chosen for lay-off are Black.
I believe I have been discriminated against because of my sex, female, pregnancy
and my race, Black in violation of Title VII of the Civil Rights Act of 1964, as
amended.
(ECF No. 32-5, p. 1.)
A plain reading of Plaintiff’s administrative charge confirms that she did not include any
allegations about harassment or a hostile work environment created by Defendant prior to filing
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her lawsuit in this court. (Id.) Factual allegations made in formal litigation must correspond to
those set forth in the administrative charge. Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th
Cir. 2005). A plaintiff's claim will be barred “if the administrative charge alleges one type of
discrimination - such as discriminatory failure to promote - and the claim encompasses another
type - such as discrimination in pay and benefits.” Id. Here, Plaintiff specifically alleged in her
charge a discrete act of racial, sex, and/or pregnancy discrimination in the context of her lay-off
on July 27, 2009. Additionally, Plaintiff's specification of July 27, 2009 as both the earliest and
latest date of occurrence of the discrimination substantiates that Plaintiff did not allege a claim
of hostile work environment. See id. at 511 (finding a Plaintiff’s harassment allegations barred
as the acts alleged did not fall within time span listed on EEOC charge). In this regard, a
reasonable investigation would not have uncovered the harassment allegation that Plaintiff now
sets forth in formal litigation.
Id. at 512.
Therefore, because Plaintiff has failed to
administratively exhaust her claim for hostile work environment, Defendant is entitled to
summary judgment.
3.
Plaintiff’s Claim of Intentional Infliction of Emotional Distress
Plaintiff alleges that Defendant intentionally and recklessly inflicted upon her severe
emotional distress.
(ECF No. 1, p. 4.)
In response to Defendant’s motion for summary
judgment, Plaintiff stated that she “is no longer pursuing a claim for intentional infliction of
emotional distress against the Defendant.” (See ECF No. 36, p. 7 n. 2.) Accordingly, Defendant
is entitled to summary judgment on this claim.
III. CONCLUSION
Upon careful consideration of the entire record, the court hereby GRANTS Defendant’s
motion for summary judgment with respect to Plaintiff’s claims for hostile work environment
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and intentional infliction of emotional distress. (ECF No. 32.) The court DENIES Defendant’s
motion for summary judgment as to Plaintiff’s claim for sex and pregnancy discrimination. (Id.)
The court adopts, in part, the Magistrate Judge’s Report and Recommendation and incorporates
it herein by reference. The Clerk of Court is directed to place the within action on the November
2012 trial roster.
IT IS SO ORDERED.
/s/Margaret B. Seymour___________________
MARGARET B. SEYMOUR
CHIEF UNITED STATES DISTRICT JUDGE
September 26, 2012
Columbia, South Carolina
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