Brown v. Sam's East Inc

Filing 49

ORDER AND OPINION adopting 45 Report and Recommendation and granting 38 Motion for Summary Judgment. Signed by Honorable Margaret B Seymour on 9/24/2015.(mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Tyisha T. Brown,

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) C/A No. 3:13-1149-MBS
Plaintiff,
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vs.
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)
ORDER AND OPINION
Sam’s East, Inc.,
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Defendant.
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____________________________________)
On April 29, 2013, Plaintiff Tyisha T. Brown filed the within action against her employer,
Defendant Sam’s East, Inc., asserting that she was discriminated against on the basis of her
pregnancy and her race, in violation of Title VII of the Civil Rights of 1964, as amended, 42 U.S.C.
§§ 2000e, et seq. 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 Kaymani D. West for pretrial handling.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff, who is black, has been employed by Defendant since 2005. Plaintiff currently
works full time as a cashier in Defendant’s Columbia, South Carolina store. Plaintiff contends that
she was discriminated against by George Turosik, a white store manager, during his tenure at
Defendant’s store commencing in approximately August 2011 until he was transferred to a different
location in February 2013. Specifically, Plaintiff contends that in February 2012 she was pregnant
and was discriminated against because (1) she was not placed in a full-time position in the tire
mounting area (TMA) at Defendant’s store, and (2) she received a verbal warning for failing to
transfer six 25-pound bags of flour from a customer’s cart to another cart, in accordance with store

policy. Plaintiff further alleges that Turosik (1) showed preferential treatment to a white cashier, and
(2) hired two white females into positions for which they allegedly were not qualified.
This matter came before the court on motion for summary judgment filed by Defendant on
September 8, 2014. Plaintiff filed a response in opposition to Defendant’s motion on October 3,
2014, to which Defendant filed a reply on October 13, 2014. On May 19, 2015, the Magistrate Judge
issued a Report and Recommendation in which she determined that Plaintiff failed to establish a
prima facie case of pregnancy discrimination as to the tire department position. The Magistrate
Judge also found that Plaintiff had failed to exhaust her administrative remedies as to her verbal
warning claim. The Magistrate Judge further determined that Plaintiff failed to establish a prima
facie case of race discrimination. Accordingly, the Magistrate Judge recommended that Defendant’s
motion for summary judgment be granted.

Plaintiff filed objections to the Report and

Recommendation on June 5, 2015, to which Defendant filed a reply on June 22, 2015.
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). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id.
II. DISCUSSION
A.

Pregnancy Discrimination Claim
Plaintiff contends that the Magistrate Judge erred in concluding that she did not make out a

claim of pregnancy discrimination. The court disagrees.
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“‘[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.’” DeJarnette v. Corning Inc.,
133 F.3d 293 (4th Cir. 1998) (quoting Boyd v. Harding Academy, 88 F.3d 410, 413 (6th Cir. 1996)).
In a Title VII discrimination case, the plaintiff bears the ultimate burden of persuading the court that
she has been the victim of intentional discrimination. Id. (quoting Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981)).
As to Plaintiff’s contention that she was denied the TMA position because of her pregnancy,
Plaintiff must follow the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under the McDonnell Douglas framework, a plaintiff can establish a prima
facie case by showing that (1) she was a member of a protected group, i.e., pregnant women; (2) she
applied for the position in question; (3) she was qualified for that position; and (4) the defendant
rejected her application under circumstances that give rise to an inference of unlawful discrimination.
If a prima facie case is established, the burden then shifts “to the employer to articulate some
legitimate, nondiscriminatory reason” for the decision not to promote. Id. at 802. After the employer
states a reason for its decision, the plaintiff must show that the stated reason is a pretext for
discrimination. Id. at 804. In a pregnancy discrimination case, the plaintiff thus bears the ultimate
burden of establishing that the defendant discriminated against her “because of” her pregnancy.
Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005) (citing 42 U.S.C.
§§ 2000e–2(a)(1) & (2)).
In this case, the Magistrate Judge found that, construing the facts in the light most favorable
to Plaintiff, Plaintiff met the first two prongs of proving a prima facie case. However, as to the third
prong, the Magistrate Judge noted that the TMA position included dismounting, mounting, and
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balancing tires sold by Defendant. Plaintiff testified in her deposition that she had no prior
experience with automobile or tire maintenance. Pl. Dep. 69, ECF No. 43-1, 18. Plaintiff testified
that she was “pretty sure somebody could have helped me, you know, change the tire.” Pl. Dep. 35,
ECF No. 43-1, 10. Plaintiff contends in her objections that her deposition testimony “meant that she
would only require a one-time showing of how to change a tire in order to continue performing that
activity[.]” Pl. Objections, ECF No. 47, 4. Regardless of Plaintiff’s ability to learn the skills
necessary for the TMA position, it is undisputed that Plaintiff was not qualified for the position at
the time she expressed an interest.
The Magistrate Judge further observed that, even if Plaintiff had made out a prima facie case
of discrimination, she did not set forth evidence to overcome Defendant’s proffered
nondiscriminatory reasons for not choosing Plaintiff for the TMA position.

The burden of

production on Defendant to articulate a legitimate nondiscriminatory reason does not require the
employer to persuade the court by a preponderance of the evidence that it was motivated by the
proffered reason. Monroe v. Burlington Indus., Inc., 784 F.2d 568, 571 (4th Cir. 1986) (citing Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Here, among other things, Defendant
contends that the person hired for the TMA position was more qualified than Plaintiff because he
had general knowledge of automobile maintenance, which Plaintiff testified she did not.
Ultimately, the Magistrate Judge concluded that no reasonable jury would consider Plaintiff’s
application to have been rejected under circumstances giving rise to an inference of unlawful
discrimination. Plaintiff asserts that Magistrate Judge impermissibly placed herself in the position
of factfinder in reaching this conclusion. The court disagrees.
The fact that an employer hires a male into a position does not establish an affirmative
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inference that the employer passed over the pregnant woman because of her pregnancy. See Miles
v. Dell, Inc., 429 F.3d 480, 490 n. 7 (4th Cir. 2005). Further, the record discloses that two other
employees in the tire mounting area as well as the decision-maker were pregnant at the time Plaintiff
expressed an interest in the tire technician position. The Magistrate Judge properly concluded that
summary judgment should be granted as to this issue.
Plaintiff next contends that the Magistrate Judge erred in finding Plaintiff had failed to
exhaust her administrative remedies with respect to receiving a verbal warning while she was
pregnant. Plaintiff concedes that the charge of discrimination makes no references to the verbal
warning at issue. However, Plaintiff asserts that she has exhausted her administrative remedies
because she included a reference to the verbal warning on the intake questionnaire she submitted to
the EEOC.
Prior to pursuing a Title VII claim in federal court, a plaintiff must exhaust her
administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC). Hentosh v. Old Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014) (citing
Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir.2009)). “‘[A] failure by the plaintiff to
exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject
matter jurisdiction over the claim.’” Id. (quoting Hentosh, 767 F.3d at 416). The allegations
contained in the administrative charge of discrimination generally limit the scope of any subsequent
judicial complaint. Id. (citing King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir.1976)
(stating that a subsequent civil suit may encompass only the discrimination stated in the EEOC
charge itself or developed in the course of a reasonable investigation of that charge)).
The primary objective of exhaustion requirements is to put parties on notice of the allegations
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against them. Jones v. Southpeak Interactive Corp. of Delaware, 777 F.3d 658, 670 (4th Cir. 2015).
Defendant contends that it did not receive a copy of the intake questionnaire completed by Plaintiff,
and there is no evidence to suggest the contrary. The Magistrate Judge properly determined that
Plaintiff failed to exhaust her administrative remedies as to the verbal warning. See Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th Cir. 2013) (noting that the “intake
questionnaire and letters submitted by the plaintiff to the EEOC cannot be read as part of her formal
discrimination charge without contravening the purposes of Title VII). The Magistrate Judge
properly concluded that summary judgment should be granted as to this issue.
B.

Race Discrimination Claim
Plaintiff contends that the Magistrate Judge erred in finding Plaintiff failed to make out a

prima facie case of race discrimination. The court disagrees.
To withstand a motion for summary judgment, the nonmoving party must produce competent
evidence to reveal the existence of a genuine issue of material fact for trial. Whitaker v. Nash Cnty.,
504 F. App’x 237, 239 (4th Cir. 2013). The Magistrate Judge determined that Plaintiff’s allegations
lacked specificity and were merely speculative. Plaintiff contends that the Magistrate Judge “again
plac[ed] herself in the role of fact-finder.” Pl. Objections, ECF No. 47, 7. Plaintiff contends that
she and one purported comparator, Rachel, “were both generally employed as cashiers, were similar
in age and experience, and that Rachel and Becky are white whereas Plaintiff is African-American.”
Id. However, as the Magistrate Judge properly determined, Plaintiff’s unsubstantiated testimony
does not suffice. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.2002)
(“Conclusory or speculative allegations do not suffice, nor does a mere scintilla of evidence in
support of [the non-moving party’s] case.”)). The Magistrate Judge properly concluded that
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summary judgment should be granted as to this issue.
III. CONCLUSION
The court adopts the Report and Recommendation of the Magistrate Judge and incorporates
it herein by reference. For the reasons stated herein and in the Report and Recommendation,
Defendant’s motion for summary judgment (ECF No. 38) is granted.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge

Columbia, South Carolina
September 24, 2015

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