Tonkin v. Shadow Management Inc

Filing 50

ORDER RULING ON REPORT AND RECOMMENDATION adopting in part 45 Report and Recommendation, denying 37 Motion for Summary Judgment, and notifying parties the case will be calendared for trial during the two-month termof court beginning on May 8, 2014. Signed by Honorable Joseph F. Anderson, Jr. on 03/28/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Jordan M. Tonkin,

C/A No. 3:12-cv-00198-JFA

Plaintiff,
vs.
Shadow Management, Inc., d/b/a
Platinum Plus,

Order

Defendant.
In this employment discrimination case, Jordan M. Tonkin (“Plaintiff”) has sued her
former employer, Shadow Management, Inc., d/b/a Platinum Plus (“Defendant”), asserting
claims of pregnancy discrimination and retaliation under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., as amended by the Pregnancy Discrimination
Act, 42 U.S.C. § 2000e(k) (“PDA”).
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the case
was referred to the Magistrate Judge for pretrial handling.1

Before the Magistrate Judge,

Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure, ECF No. 37, which is the motion currently before this court.
On January 10, 2014, the Magistrate Judge issued a Report and Recommendation
(“Report”) wherein she recommends that this court deny Defendant’s motion for summary
judgment as to the pregnancy discrimination claim and grant Defendant’s motion as to the
retaliation claim. ECF No. 45. Plaintiff filed an objection, arguing that the Report incorrectly

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The Magistrate Judge makes only a recommendation to this court. The recommendation has no
presumptive weight, and the responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976).

concludes that her retaliation claim failed as a matter of law. ECF No. 47. Defendant replied in
opposition. ECF No. 48. Thus, this matter is ripe for the court’s review.
The court is charged with making a de novo determination of those portions of the Report
to which specific objections are made, and the court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b)(1). The Report sets forth in detail the relevant
facts and standards of law on this matter, and the court incorporates those without a recitation.
I.

Analysis
In the Report, the Magistrate Judge suggests that Plaintiff has failed to make out a prima

facie case of retaliation. The Report finds that Plaintiff presented evidence that her employer
considered her ineligible for re-hire because she filed this lawsuit, but that Plaintiff presented no
evidence that she actually ever sought re-employment with Defendant, thereby failing the second
element of a retaliation claim. See Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (requiring
a plaintiff in a retaliation case to show that “(1) she engaged in a protected activity; (2) the
employer acted adversely against her; and (3) there was a causal connection between the
protected activity and the asserted adverse action”). As a result, the Report concludes that
Plaintiff did not present evidence of adverse action following a protected activity.
In her objection, Plaintiff submits first that she was terminated after she made known her
Title VII claim. Second, Plaintiff argues that she was under no obligation to seek re-employment
because she already had the right to return after the birth of her child under Title VII.
As properly stated in the Report, a jury question exists as to the disputed telephone
conversation in September 2010 between Plaintiff and Defendant, precluding summary judgment
on Plaintiff’s pregnancy discrimination claim. As stated in the Report, if a jury were to believe

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Plaintiff’s version of the telephone call, it reasonably could conclude that Plaintiff’s pregnancy
was a motivating factor for Defendant’s decision to place her on maternity leave. Although
Defendant’s version of events dramatically differs from Plaintiff’s, the Report properly states
that credibility determinations are the province of a jury. Thus, summary judgment is not proper.
This court reaches a different conclusion on the retaliation claim based on a slightly
different view of the record. The court finds that both the letter sent to Defendant by Plaintiff’s
attorney (seeking to resolve the matter and threatening litigation) and Plaintiff’s subsequent
filing of the lawsuit were protected activities for purposes of a retaliation claim. However,
viewing the evidence in a light most favorable to Plaintiff, the court finds that there is a genuine
dispute as to when exactly Defendant took adverse action against Plaintiff, which presents a
material fact as to the underlying claim. Therefore, this court finds that summary judgment is
improper for the retaliation claim.
II.

Conclusion
Accordingly, the court adopts the Report as modified and hereby denies Defendant’s

motion for summary judgment. This case will be calendared for trial during the two-month term
of court beginning on May 8, 2014.

IT IS SO ORDERED.

March 28, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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