Fisher v. Westinghouse Electric Company LLC

Filing 67

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 63 Report and Recommendation, granting 53 Motion for Summary Judgment filed by Westinghouse Electric Company LLC. Signed by Honorable Margaret B Seymour on 3/29/2013. (asni, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Shirley Fisher,

)
)
Plaintiff,
)
)
vs.
)
)
Westinghouse Electric Company LLC,
)
)
Defendant.
)
______________________________________ )

C/A No. 3:11-01115-MBS-SVH

ORDER AND OPINION

On March 22, 2011, Shirley Fisher (“Plaintiff”) filed an action in the Court of Common
Pleas for Richland County, South Carolina against her employer, Westinghouse Electric
Company LLC (“Defendant”). ECF No. 1. Defendant removed the case to district court on May
9, 2011. Id. On September 20, 2011, Plaintiff filed an amended complaint asserting claims for
retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.
(“Title VII”), and the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq. (“FMLA”).1
ECF No. 28. Defendant filed an answer on October 4, 2011. ECF No. 29. On March 28, 2012,
Defendant filed a motion for summary judgment. ECF No. 53. Plaintiff responded on April 30,
2012, ECF No. 59, and Defendant replied on May 11, 2012. ECF No. 60. In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States
Magistrate Judge Shiva V. Hodges for pretrial handling. On December 3, 2012, the Magistrate
Judge issued a Report and Recommendation in which she recommended that the court grant
Defendant’s motion for summary judgment. ECF No. 63. Plaintiff filed objections on December
20, 2012, ECF No. 64, and Defendant replied on January 4, 2013. ECF No. 65.
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Plaintiff also alleged race discrimination under Title VII and disability discrimination under the Americans
with Disabilities Act, 42 U.S.C. §§ 12101, et seq., but has since withdrawn those claims.

I. FACTUAL BACKGROUND
Plaintiff is an African-American female who, in 1996, started working part-time as a
registered nurse in the medical department of Defendant’s Columbia, South Carolina facility.
ECF No. 59-1 at 2. In 1997, Plaintiff started working full-time for Defendant as a health services
administrator. Id. In 2004, Defendant promoted Plaintiff to senior health services administrator.
ECF No. 53-1 at 27.
As a senior health services administrator, Plaintiff was responsible for administering drug
tests to applicants for employment. ECF No. 59-1 at 2. At some point in 2008, a female,
Caucasian applicant tested positive for illegal drugs. Id. Plaintiff testified that a human
resources (“HR”) manager at Defendant’s Columbia facility, June Kerr, a Caucasian, permitted
the applicant to retake the drug test. Id. at 3. A week later, Plaintiff administered the applicant a
second drug test, and the results were negative. Id. A male, African-American applicant for the
same position failed his drug test and was not provided a second opportunity. According to
Plaintiff, “Kerr wanted to hire the [Caucasian applicant] until [Plaintiff] complained about the
obvious unlawful disparate treatment based on race.” Id. at 3. Kerr testified in her deposition
that Plaintiff never confronted her with such a complaint.. ECF No. 59-3 at 9.
In early 2009, Defendant hired Stephanie Hollingsworth, a nurse practitioner, to manage
and help restructure the medical department. ECF No. 53-2 at 37-38. Defendant hired
Hollingsworth as part of the “Green Belt project,” which was Defendant’s initiative to improve
the medical department. Id. at 50. On February 19, 2009, Hollingsworth issued Plaintiff a verbal
reprimand for her failure to timely process an employee’s disability paperwork, which caused the
employee to be without pay for a week. ECF No. 53-5 at 3. On May 13, 2009, Hollingsworth
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issued Plaintiff a written warning for dispensing the drug Pepto-Bismol to a pregnant employee,
which drug is known to have harmful side effects for pregnant women. Id. at 4. The written
warning provided that further misconduct would lead to discipline up to and including
termination of employment. Id.; ECF No. 53-5 at 5.
In May 2009, a male, Caucasian applicant for an internship position tested positive for
illegal drugs, but Defendant hired the applicant after permitting him to retake his drug test, which
he passed. ECF No. 53-2 at 100-01. Plaintiff testified in her deposition that she believed Kerr
wanted to hire the applicant because of his personal connections to one of Defendant’s senior
employees. Id. Plaintiff testified further that she complained the applicant’s treatment was
unfair to all other applicants who had not been permitted to retake their drug tests. Id. at 102. In
her affidavit, Plaintiff testified that she complained to Kerr and Sarah Mayle, a Caucasian HR
manager, of “racially biased treatment.” ECF No. 59-1 at 3.
On June 23, 2009, Defendant provided Plaintiff a performance appraisal for the period
between April 2008 and March 2009. ECF No. 53-5 at 6-12. The appraisal concluded that
Plaintiff had failed to satisfy a majority of her performance objectives and competencies. Id.
Plaintiff received an overall rating of “-P2,” which required that she be placed on a performance
improvement plan (“PIP”). Id. at 11. On June 30, 2009, Defendant issued Plaintiff a PIP that set
forth an explanation of the deficiencies in Plaintiff’s performance and outlined seven
performance objectives for her to achieve within a 45-day period. Id. at 13-14. Plaintiff
understood, and the PIP provided, that failure to achieve those objectives would result in the
termination of her employment. Id. at 14; ECF No. 53-2 at 58. Every two weeks during the PIP
period, Plaintiff met Hollingsworth and Mayle to review her progress. ECF No. 53-2 at 56-57.
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On July 14, 2009, Plaintiff received her first PIP review, which indicated she had failed to
achieve an acceptable score on any of the PIP’s seven objectives. ECF No. 53-5 at 15. On July
28, 2009, Plaintiff received her second PIP review, which indicated she had achieved an
acceptable score on two of the PIP’s objectives. Id. at 18. Plaintiff’s final PIP review, on August
17, 2009, indicated she had achieved an acceptable score on three of the PIP’s objectives. Id. at
20-21.
On August 20, 2009, after concluding that Plaintiff did not successfully complete the PIP,
Kerr and Hollingsworth met with Plaintiff to inform her that Defendant had decided to terminate
her employment. ECF No. 53-2 at 64-66. On the same day, Hollingsworth sent Plaintiff a
written notice of termination, informing Plaintiff she could challenge the termination decision
through the “peer review” process. ECF No. 59-5 at 4. On August 24, 2009, Plaintiff’s counsel
wrote Mayle a letter stating that Plaintiff believed Defendant terminated her for opposing activity
protected under Title VII, and that Plaintiff, with the assistance of counsel, was preparing to file
charges of discrimination and retaliation with the Equal Employment Opportunity Commission.
ECF No. 59-6 at 3. On August 28, 2009, Plaintiff challenged her termination and sought
reinstatement through Defendant’s peer review process. ECF No. 53-2 at 69-70. Plaintiff
complained to the peer review board that her termination was wrong, and informed the board of
HR’s practice of hiring employees that had tested positive for drugs. Id. at 70. Plaintiff testified
that she complained to the peer review board of “the difference in treatment between white and
blacks regarding drug testing and [her] belief that it was these complaints” that led to her
termination. ECF No. 59-1 at 3. The peer review board decided to reinstate Plaintiff, concluding
that the 45-day PIP period did not provide adequate time for Plaintiff to demonstrate
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improvement. ECF No. 59-8 at 3. The peer review board requested that the PIP be revised and
reissued for a period not to exceed 4 months. ECF No. 53-2 at 71. Defendant reinstated Plaintiff
on September 8, 2009, on the condition that failure to comply with any term or condition of the
revised PIP would result in immediate termination. Id. at 72.
Upon learning of Plaintiff’s reinstatement, Hollingsworth resigned because she felt her
nursing license would be at risk if she continued to work alongside Plaintiff in Defendant’s
medical department. ECF Nos. 59-3 at 13 & 53-4 at 5. Thereafter, Kerr served as Plaintiff’s
supervisor. ECF No. 53-2 at 74-75. Plaintiff testified that after reinstatement her supervisors, all
of whom were Caucasian, began treating her differently. ECF No. 59-1 at 4. Plaintiff testified
that her supervisors questioned her more extensively when she requested to take time off from
work; required that, before taking a break, she post a clock indicating when she would be
returning; criticized her in a harsh and unprofessional manner when she suggested new strategies
to assist in the performance of her job; and ceased all non-work communications. ECF No. 59-1
at 4. On December 3, 2009, Kerr notified Plaintiff in writing that she had successfully completed
the revised PIP. ECF No. 53-5 at 22. Kerr wrote, “Sarah Mayle and I continue to be supportive
of your success here at Westinghouse and wish you all the best in you future career endeavors.”
Id.
By late 2009, Kerr and April Taylor, a consultant in HR, began to consider different ways
of reforming the medical department, one of which involved outsourcing the entire department to
a third-party vendor. ECF Nos. 59-2 at 7 & 59-3 at 13-14. Between January and March 2010,
Julie Barr, a global supply chain manager, Dr. William Goldfarb, the director of medicine, and
Taylor, began evaluating the merits of a complete-outsourcing versus a hybrid-outsourcing
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approach, which Defendant had in place at the time, whereby the medical department was staffed
by employees, but a third-party vendor provided medical oversight. ECF No. 53-4 at 8-10.
Around this time, Defendant issued “request for proposals” that sought bids from vendors to
supply services under both the hybrid and complete outsourcing approaches. Id. Barr, Goldfarb,
and Taylor analyzed the bids against various criteria, including price, experience, services
provided, and quality of service, and recommended to Kerr that the medical department be
completely outsourced to a third-party vendor, Palmetto Health Works (“Palmetto”), which at the
time was providing Defendant medical oversight. ECF Nos. 53-6 at 5-7 & 53-4 at 8-10. An
executive committee reviewed the recommendation and, in May 2010, Cary Alstadt, the
Columbia facility plant manager, made the final decision to outsource the entire medical
department. ECF No. 53-4 at 12. At the time, the medical department had three employees,
including Plaintiff, all of whom were nurses. ECF No. 59-2 at 23. In the months that followed,
Defendant negotiated the details of an outsourcing agreement with Palmetto. ECF No. 53-4 at
14. Plaintiff was not involved in the decision-making process or the negotiations with Palmetto,
but Plaintiff testified in her deposition that she had heard rumors Defendant was going to “phase
out [her] position and bring in contract nurses.” ECF No. 53-2 at 88.
On July 6, 2010, Plaintiff e-mailed Kerr and Taylor to inform them that she would be
undergoing knee surgery on July 15, 2010, and would be out on medical leave for three to four
weeks. ECF Nos. 53-2 at 78 & 53-5 at 23. Defendant approved Plaintiff’s request for leave, and
HR processed Plaintiff’s FMLA paperwork. ECF No. 53-2 at 79. Plaintiff applied for disability
benefits during her medical leave, and Defendant approved her application. ECF No. 53-2 at 86.
While on medical leave, Plaintiff scheduled carpal tunnel surgery for August 12, 2010. Id. at
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108. Kerr advised Plaintiff that it would be fine for her to undergo the surgery and that she
should return to work after having fully recuperated. Id. at 108-09.
Around mid-August 2010, Defendant and Palmetto finalized an outsourcing agreement,
which was set to take effect on October 1, 2010. ECF No. 53-4 at 12 & 16. In September 2010,
Plaintiff’s supervisors, Kerr and Taylor, invited Plaintiff to lunch for the purposes of informing
her that Defendant had decided to outsource the medical department and that her termination
would take effect on October 1, 2010. ECF No. 59-2 at 13 & 21. Taylor testified in her
deposition that she and Kerr decided not to inform Plaintiff of the outsourcing when they learned
that Plaintiff intended to extend her medical leave again, as they were concerned that the
termination paperwork they had with them that day might require updating if Plaintiff’s
termination was to take effect while she was on medical leave. ECF No. 59-2 at 15-16. Kerr’s
testimony does not corroborate Taylor’s, nor does it provide a discernible explanation of why, on
that day, she and Taylor did not inform Plaintiff of her termination. ECF No. 59-3 at 17-19.
On September 30, 2010, the day before the outsourcing agreement with Palmetto was set
to take effect and while Plaintiff was still on medical leave, Defendant informed Plaintiff, by
letter and over the phone, of her termination. ECF Nos. 53-2 at 91 & 53-5 at 24-25. The letter
Plaintiff received stated:
As you are aware, Westinghouse began a comprehensive review of the Medical
Department at the Columbia, SC facility in December 2009. This review included
but was not limited to: the current infrastructure, services provided and needed at the
facility, financial cost structure, and all external vendors for supplies and services for
our Medical Department. As a result of this review, Westinghouss has made the
business decision to no longer staff or manage the Medical Department . . . .
Effective October 1, 2010, the staffing and management of Medical will be
relinquished to an external vendor.

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ECF No. 53-5 at 24. As a severance benefit, Defendant offered Plaintiff $19,000, which she
declined to accept. ECF No. 53-2 at 91. Because Plaintiff was the only nurse employed by
Defendant on September 30, 2010, Defendant terminated no other nurses on that date. ECF No.
59-2 at 23.
II. STANDARD OF REVIEW
A. The Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de
novo determination of any portions of the 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 may recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
B. Summary Judgment
The court shall grant summary judgment 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). The party seeking summary judgment bears the burden of initially coming forward
and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must
affirmatively demonstrate that there exists a genuine issue of material fact requiring trial.
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no
issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to
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return a verdict for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). A party
may not create a triable issue of fact at summary judgment by contradicting deposition testimony
with a subsequent affidavit. Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 438 (4th
Cir. 1999).
III. DISCUSSION
A. Retaliation Under Title VII
The Magistrate Judge concluded that Plaintiff has failed to make a prima facie showing of
retaliation under Title VII. The Magistrate Judge found that Plaintiff engaged in a protected
activity when, in 2008, she complained to Kerr that it was unfair to permit a Caucasian job
applicant to take a second drug test and not afford an African-American job applicant that same
opportunity. ECF No. 63 at 9-10. By contrast, the Magistrate Judge found that Plaintiff did not
engage in a protected activity when, in 2009, she reported that a Caucasian internship applicant
had been permitted to retake a drug test. Id. at 10. To reach that finding, the Magistrate Judge
relied on Plaintiff’s deposition testimony that she complained Defendant’s conduct was unfair to
all applicants, but did not credit Plaintiff’s contradictory affidavit testimony that she complained
of Defendant’s “racially biased treatment.” Id. n.5. Further, the Magistrate Judge found that
Plaintiff has not produced sufficient evidence to convince a jury that Plaintiff’s protected activity
caused her termination. Id. In this regard, the Magistrate Judge observed that Plaintiff’s
protected activity in 2008 was too remote in time from her termination on October 1, 2010, to
support a causal connection based on temporal proximity. Id. at 10-11. The Magistrate Judge
recognized that, in cases where temporal proximity is missing, courts may look to the intervening
period between the protected activity and the adverse employment action for evidence of
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retaliatory animus. Id. (citing Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007)). The
Magistrate Judge found that the length of time between the first alleged instance of retaliatory
animus, the issuance of the PIP on June 30, 2009, and Plaintiff’s 2008 protected activity, negates
an inference of retaliatory animus. Id. Finally, Plaintiff’s testimony that her white supervisors
treated her poorly after Defendant reinstated her employment on September 8, 2009, the
Magistrate Judge found, was insufficient evidence of retaliatory animus to connect Plaintiff’s
2008 protected activity to her termination on October 1, 2010. Id. Accordingly, the Magistrate
Judge recommended that Defendant’s motion for summary judgment be granted as to Plaintiff’s
Title VII claim for retaliation. Id.
Plaintiff objects to the Report and Recommendation on several grounds. First, Plaintiff
objects to the Magistrate Judge’s finding that Plaintiff’s 2008 complaint concerning Defendant’s
disparate treatment of African-American and Caucasian job applicants in the administration of
drug tests constitutes protected activity, but Plaintiff’s similar complaint in 2009 does not. ECF
No. 64 at 2. In this regard, Plaintiff contends that the Magistrate Judge erred by failing to credit
her affidavit testimony that, in 2009, she complained to Kerr and Mayle in HR about the
preferential treatment a white job applicant received during the drug screening process on
account of his race. Id. Plaintiff further contends that the Magistrate Judge incorrectly found
that Plaintiff’s affidavit testimony contradicted her deposition testimony. Id. at 2-3. Even if the
court decides not to credit her affidavit testimony, Plaintiff contends that, in light of her 2008
complaint, Defendant would have understood that Plaintiff’s 2009 complaint concerned racial
discrimination. Id. at 3.

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Second, Plaintiff objects to the Magistrate Judge’s finding that Plaintiff has not produced
sufficient evidence of a causal connection between her protected activity and her termination. Id.
at 4. Plaintiff contends that, had the Magistrate Judge found that Plaintiff’s 2009 complaint
constitutes a protected activity, the Magistrate Judge would also have found that the 2009
complaint was causally connected to her termination on October 1, 2010. Id. Plaintiff notes that,
although her termination occurred more than a year following her 2009 complaint, the record
contains evidence of retaliatory animus during the intervening period. Id. (citing Lettieri v.
Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007). As evidence, Plaintiff cites the following: that
Defendant issued Plaintiff a PIP on June 30, 2009; that Plaintiff was terminated on August 20,
2009, after Hollingsworth, Kerr and Mayle determined she had failed to successfully complete
her PIP, which termination was overturned by Defendant’s peer review board; that, during her
appeal to the peer review board, she informed the board of her earlier complaints regarding racial
discrimination in Defendant’s drug screening process; and that, upon reinstatement, Plaintiff was
treated poorly by her supervisors. Id. at 5-6.
Third, Plaintiff objects that, because the Magistrate Judge erred in holding that Plaintiff
has failed to make a prima facie showing of retaliation, the Magistrate Judge failed to address her
evidence that the explanation Defendant proffered for terminating her employment was
pretextual. Id. at 6. Plaintiff contends that the delay between the time Defendant decided to
outsource its medical department in May 2010, and when it informed Plaintiff of her termination
on September 30, 2010, casts doubt on Defendant’s motives. Id. at 7. As further evidence of
pretext, Plaintiff notes that Kerr, to whom she addressed her 2009 complaint, was an early

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proponent of outsourcing the medical department and that Plaintiff’s position was “essentially”
the only position that was outsourced as a result of Defendant’s decision. Id. at 8.
1. Legal Standard
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 . . . . ” 42
U.S.C. § 2000e–2(a)(1). A plaintiff can establish claims 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). 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
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.” Tex. 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).
Title VII also protects individuals from retaliation by making it unlawful for an employer
to discriminate against an employee for opposing an unlawful employment practice or because
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the employee “made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing.” 42 U.S.C. § 2000e–3(a). As with a claim for
discrimination, a plaintiff may offer direct evidence of retaliation or use the McDonnell Douglas
burden-shifting framework. Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006). To
demonstrate a prima facie case of retaliation under Title VII, a plaintiff must show: “(1) that she
engaged in protected activity; (2) that her employer took an adverse employment action against
her; and (3) that a causal connection existed between the protected activity and the asserted
adverse action.” See Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997).
The final element of the test may be satisfied merely by close temporal proximity between the
protected activity and the adverse employment action. See Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001). The Fourth Circuit has found that a period of three to four months
between the protected activity and the termination was too long to establish a causal connection
by temporal proximity alone. See Pascual v. Lowe's Home Ctrs., Inc., 193 F. App'x 229, 233
(4th Cir. 2006) (unpublished). The Fourth Circuit has also found that, “[i]n cases where
temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts
may look to the intervening period for other evidence of retaliatory animus.” Lettieri v. Equant,
Inc., 478 F.3d 640, 650 (4th Cir. 2007) (internal quotation omitted).
2. Analysis
After careful review of the record, the court concurs with the Magistrate Judge’s
recommendation. With respect to the first element of Plaintiff’s prima facie case, the court finds
that Plaintiff has produced sufficient evidence that her 2008 complaint regarding Defendant’s
discriminatory administration of the drug screening process constitutes a protected activity, but
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that her 2009 complaint regarding Kerr’s decision to permit a Caucasian internship applicant to
retake a drug test does not constitute one. Plaintiff testified in her deposition that she complained
Kerr’s 2009 decision was unfair to all the other applicants. ECF No 53-2 at 102. To complain
that an employment practice adversely affects all applicants, without suggesting that members of
a protected class are disproportionately impacted, is not a charge of discrimination but, rather,
unfairness. In this way, Plaintiff’s deposition testimony contradicts her affidavit testimony that
she complained Defendant’s conduct was “racially biased.” ECF No. 59-1 at 3. Because a party
may not stave off summary judgment by contradicting its deposition testimony with a subsequent
affidavit, the court finds that Plaintiff has not produced sufficient evidence to show that her 2009
complaint was a protected activity. See Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d
432, 438 (4th Cir. 1999). Plaintiff also cites evidence in her objections that, when challenging
her first termination in August 2009, she informed the peer review board of her earlier
complaints concerning discrimination in the administration of the drug screening process.2 The
Magistrate Judge did not address that evidence; however, the court finds that Plaintiff’s conduct
before the peer review board was a protected activity.
With respect to the second element of Plaintiff’s prima facie case, the court finds that
Plaintiff’s 2008 complaint is too far removed from Plaintiff’s termination on October 1, 2010, to
support an inference of causation based on temporal proximity. In addition, the court agrees with
the Magistrate Judge’s finding that the June 30, 2009 PIP is not evidence of retaliatory animus in

2

After careful review of all Plaintiff's submissions, the court finds it difficult to discern whether Plaintiff
intends to argue that she engaged in a protected activity when she informed the peer review board of
discriminatory practices in Defendant's administration of the drug screening process. Nevertheless, for the
purposes of resolving summary judgment, the court construes Plaintiff's submissions as advancing that
argument.

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the intervening period between Plaintiff’s protected activity and termination, so as to show that
those two events are causally related. The gap of at least seven months between Plaintiff's 2008
complaint and the PIP precludes an inference that Defendant issued the PIP as retaliation. See
Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007); see also Pascual v. Lowe's Home
Ctrs., Inc., 193 F. App'x 229, 233 (4th Cir. 2006) . Moreover, Plaintiff has produced no other
evidence to suggest that the issuance of the PIP was retaliatory, rather than the result of Plaintiff's
poor performance appraisal for the period between April 2008 and March 2009 and the two
reprimands she received in 2009. Because the evidence does not support a finding that the PIP
was retaliatory, it is not an event that can link Plaintiff’s 2008 complaint to her termination wellover a year later.
However, the court finds that Plaintiff has produced sufficient evidence that a causal
connection exists between her conduct before the peer review board in August 2009, and her
termination on October 1, 2010. Causality is not supported by temporal proximity but, instead,
through evidence of recurring retaliatory animus. According to Plaintiff’s testimony, upon
reinstatement in September 2009, her supervisors subjected her to harsh criticism; eliminated all
personal communications with her; and excessively scrutinized her requests for time off.
Moreover, the record is undisputed that, even though Plaintiff was not terminated until October
1, 2010, discussions about outsourcing the medical department started in late 2009/early 2010,
around the same time Plaintiff’s supervisors began to treat her unfavorably. Although the
evidence of causality is not abundant, it is sufficient to sustain Plaintiff’s prima facie case of
retaliation at the summary judgment stage.

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Nevertheless, Plaintiff’s claim for retaliation fails as she has not produced sufficient
evidence that the legitimate, nonretaliatory explanation Defendant proffered for terminating
Plaintiff’s employment, that for business reasons Defendant had decided to outsource its medical
department, was pretextual. Defendant’s evidence shows that, in May 2010, after at least six
months of research, discussion, and reviewing bids from potential vendors, Defendant decided
that it would be optimal for business to outsource the medical department to Palmetto. Although
Kerr was an early proponent of outsourcing the medical department, the evidence shows that
several other employees, none of whom are alleged to have had any involvement in Plaintiff’s
complaints regarding discrimination in the drug screening process, recommended, based on
independent analysis, that outsourcing would cut costs and improve the quality of health services
at the Columbia facility. Defendant’s evidence also shows that Alstadt, Defendant’s Columbia
facility plant manager, who is also not alleged to have had any involvement in Plaintiff’s
complaints, made the final decision to outsource the medical department. In response, Plaintiff
argues that Defendant’s decision to inform Plaintiff of her termination the day before
Defendant’s outsourcing contract with Palmetto was set to take effect evidences pretext.
Although the record does not make clear why Defendant waited until September 30, 2010, to
inform Plaintiff of her termination, the court does not find that this action constitutes pretext. In
addition the court does not find the fact that Plaintiff was the only employee whose employment
was affected by the outsourcing to be evidence of pretext. The evidence is uncontroverted that,
when Defendant made the decision to outsource, there were several nurses employed in the
medical department. Although Defendant was the only employee who Defendant terminated
because of the decision to outsource the medical department, as the other nurses left before the
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outsourcing took effect, it is not disputed that the consequence of the decision was to ensure all
future nurses working at Defendant’s Columbia facility after October 1, 2010, would be contract
nurses employed by Palmetto. That multiple positions were affected by Defendant’s decision to
outsource underscores the court’s conclusion that Defendant sought to improve how it provided
health services, rather than punish Plaintiff for engaging in a protected activity. For those
reasons, the court discerns no evidence of pretext.
Accordingly, Defendant’s motion for summary judgement is granted as to Plaintiff’s Title
VII claim for retaliation.
B. Retaliation Under the FMLA
The Magistrate Judge concluded that Plaintiff has established a prima facie case of
retaliation under the FMLA because Plaintiff has shown she was subject to an adverse
employment action, termination, while on FMLA leave. ECF No. 63 at 13. However, the
Magistrate Judge found that Plaintiff has failed to produce sufficient evidence to show that the
legitimate, non-retaliatory reason that Defendant proffered for terminating Plaintiff’s
employment was pretextual. Id. The Magistrate Judge observed that Defendant’s proffered
reason was its decision to outsource the entire medical department, a decision which Defendant
made in May 2010, before Plaintiff invoked her rights under the FMLA. Id. The Magistrate
Judge rejected Plaintiff’s contention that Defendant’s decision to wait until September 30, 2010,
the day before the outsourcing agreement with Palmetto was set to take effect, is evidence of
pretext. Id. In this regard, the Magistrate Judge discerned no evidence of pretext in Taylor’s
deposition testimony that when she and Kerr went to lunch with Plaintiff in September 2010,
they had initially planned to inform Plaintiff of the outsourcing but decided not to when Plaintiff
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told them that she intended to extend her medical leave. Id. Accordingly, the Magistrate Judge
recommended that Defendant’s motion for summary judgment be granted as to Plaintiff’s claim
for retaliation under the FMLA. Id. at 14.
Plaintiff objects to the Report and Recommendation, arguing that the Magistrate Judge
incorrectly found that Plaintiff has failed to produce sufficient evidence that Defendant’s
proffered reason for terminating Plaintiffs’s employment was pretextual. ECF 64 No. 9. In this
regard, Plaintiff’s objection is similar to the related argument she puts forth in support of her
retaliation claim under Title VII. Id. As evidence of pretext, Plaintiff cites the fact that
Defendant waited until the day before the outsourcing agreement with Palmetto was set to take
effect before informing Plaintiff of her termination. Id. Plaintiff also points out that neither Kerr
nor Taylor has been able to offer a clear explanation of why, when the three women met for
lunch in September 2010, they did not inform Plaintiff that her employment would be terminated
as a result of the outsourcing.
1. Legal Standard
A claim for retaliation under the FMLA is analogous to such a claim under Title VII, and
so it is subject to the McDonnell Douglas burden-shifting framework. Yashenko v. Harrah's NC
Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006). A prima facie case for retaliation under
the FMLA exists where: (1) the plaintiff engaged in a protected activity; (2) the defendant took
adverse action against her; and (3) the adverse action was causally connected to the plaintiff’s
protected activity. Id. at 551 (citing Cline v. Wal–Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir.
1998)).

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2. Analysis
After a careful review of the record, the court concurs with the Magistrate Judge’s finding
that Plaintiff has failed to produce sufficient evidence that Defendant’s proffered, nonretaliatory
reason for terminating Plaintiff was pretextual. For the reasons articulated in the court’s Title VII
analysis, the court discerns no evidence that Defendant’s decision, in May 2010, to outsource its
medical department was not genuinely motivated by business concerns. Moreover, the timing of
the decision to outsource, before Plaintiff invoked her rights under the FMLA in July 2010,
precludes a finding that Plaintiff’s termination was an act of retaliation.
III. CONCLUSION
After a careful review of the record, the court concurs with the Magistrate Judge’s
findings. The court adopts the Report and Recommendation and incorporates it herein by
reference. Defendant’s motion for summary judgment is granted and Plaintiff’s objections are
denied.

IT IS SO ORDERED.

s/ Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
March 29, 2013

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