Jefferies v. Westinghouse Electric Company LLC

Filing 56

ORDER RULING ON REPORT AND RECOMMENDATION accepting 40 Report and Recommendation; granting 25 Motion for Summary Judgment. Signed by Honorable J Michelle Childs on 3/1/2016. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Sarah J. Jeffries,
Plaintiff,
v.
Westinghouse Electric Company, LLC,

Defendant.
____________________________________
I.

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Civil Action No. 3:14-cv-01317-JMC

ORDER

INTRODUCTION

Defendant Westinghouse Electric Company, LLC (“Defendant”) moves for summary
judgment on Plaintiff Sarah Jeffries’s (“Plaintiff”) discrimination claims regarding Defendant’s
alleged failure to promote her in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e, et seq. (2012) (“Title VII”), and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621, et seq. (“ADEA”), as well as on Plaintiff’s retaliation
claims under both Title VII and the ADEA. (ECF No. 25.) This matter is before the court on the
Magistrate Judge’s Report and Recommendation (“Report”) recommending that this court grant
Defendant’s motion. (ECF No. 40 at 21.) 1
For the reasons below, this court ADOPTS the Magistrate Judge’s findings and
GRANTS Defendant’s Motion for Summary Judgment (ECF No. 35).

1

The Parties, in addition to submitting briefing, appeared before this court to argue this matter on
February 26, 2015.

II.

JURISDICTION

Because Plaintiff’s claims arise under federal law, this court has personal and subject
matter jurisdiction under 28 U.S.C. § 1331 (2012). Venue is proper in the Columbia Division of
the United States District Court for the District of South Carolina under 28 U.S.C. § 1331
(2012).
III.

LEGAL STANDARDS

A. Magistrate Judge’s Report
The Magistrate Judge makes only a recommendation to this court that 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 to which specific objections are filed, and it reviews those portions
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, 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
Magistrate Judge’s recommendation or recommit the matter with instructions. See 28 U.S.C. §
636(b)(1).
B. 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 affects the
disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248–49 (1986).

More specifically, a genuine question of material fact exists where, after

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reviewing the record as a whole, the court finds that a reasonable factfinder could return a verdict
for the non-moving 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. However, “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).
IV.

RELEVANT BACKGROUND AND THE MAGISTRATE’S REPORT 2

Plaintiff is a 59-year-old, white American currently employed as a Planning Specialist at
Defendant’s Columbia, South Carolina facility. (See generally ECF No. 32-1.)

Defendant

employer first hired Plaintiff on July 31, 2000, as a Health Physicist. (Id.) On May 29, 2012,
Plaintiff applied for a Senior Engineer position. (Id. at 60.) Hiring managers of Defendant
employer wanted the position to include engineering responsibilities so that Defendant could
adapt to anticipated regulatory changes. (See ECF No. 32-10 at 13–14.) Defendant’s hiring
2

Other specific facts of this matter are discussed in the Report and Recommendation. (ECF No.
40.) The court concludes, upon its own careful review of the record, that the Magistrate Judge’s
factual summation is accurate and incorporates it by reference. The court will only reference
herein additional facts viewed in the light most favorable to Plaintiff that are pertinent to the
analysis of her claims.
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managers hired Eris Speights (“Speights”), a black, Liberian 44-year-old female, who had been
working for Defendant on a contract basis for eight years. (ECF No. 25-8 at 5.) Defendant
stated that they hired Speights instead of Plaintiff because Speights had superior academic and
work credentials, as well as a better work record. (ECF No. 25-1 at 11, 19.)
Between 2009 and 2010, Plaintiff complained to a supervisor about an alleged consensual
romantic relationship Rosser had with a subordinate. (ECF No. 32-1 at 41–44.) After Plaintiff
learned that Speights received the Senior Engineer position, Plaintiff contacted Human
Resources. (ECF No. 32-1 at 45–46.) Plaintiff testified that she communicated to Human
Resources “something to the effect of - - that there is inappropriate behavior” between one of her
supervisors and his subordinates. (ECF No. 32-1 at 45.) Plaintiff alleges that the supervisor she
reported to Human Resources must have learned that she reported him and that he, in retaliation,
forced another supervisor to assign her a low performance review so that she would not get the
Senior Engineer position in dispute. (ECF No. 32-1 at 76–77.) Plaintiff admits she has no
factual evidence supporting her theory, and she has no evidence that the supervisor she reported
had any input in the Senior Engineer hiring decision or was even aware that Plaintiff ever
complained about him. (Id.)
With these facts as background, Plaintiff’s claims can be summarized as allegations that
Defendant unlawfully failed to promote her to the engineering-related management position in
June 2012 and in November 2012 because she is White, because she is fifty-seven (57) years of
age, and because she reported “discriminatory concerns” to the management of Defendant
employer. (See generally ECF No. 1.) Because Plaintiff alleges that she was the victim of
discrimination when Speights, a black woman, instead was promoted to the Senior Engineering

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position, her claims can be characterized as those of “reverse discrimination.” See, e.g., Lucas v.
Dole, 835 F.2d 532, 532 (4th Cir. 1987).
In his Report, the Magistrate Judge made several findings regarding Plaintiff’s legal
claims and Defendant’s Motion for Summary Judgment (ECF No. 25). These findings included
that:
•

Plaintiff’s June 2012 failure to promote claims were time-barred (ECF No. 40 at 11);

•

Plaintiff’s November 2012 claim of failure to promote based on race, national origin,
and age discrimination lacked merit because Plaintiff cannot make out a prima facie
case for such discrimination under Title VII or ADEA, nor can she show that
Defendant’s proffered reasons for denying her the promotion was pretext 3 (ECF No.
40 at 11–17); and

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The Magistrate Judge correctly summarized the applicable standard for Plaintiff’s
discrimination claims under Title VII and the ADEA. (ECF No. 40 at 12–13.) A plaintiff
generally proves her Title VII and the ADEA claims of discrimination under the burden-shifting
analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell
Douglas, a plaintiff first must establish by a preponderance of evidence each element of her
prima facie case of discrimination. Id. at 802. To state a prima facie case of discriminatory
failure to promote under Title VII or the ADEA, a plaintiff must prove that: (1) she is a member
of a protected group, (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. Anderson v. Westinghouse Savannah River Co., 406 F.3d
248, 268 (4th Cir. 2005); Gurganus v. Beneficial N. Carolina, Inc, 25 F. App’x. 110, 111 (4th
Cir. 2001) (applying Title VII proof scheme to ADEA failure-to-promote claim). Upon
demonstrating a prima facie case, the burden shifts to the defendant to produce a legitimate,
nondiscriminatory reason for its employment decision, id., after which the burden shifts back to
the plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason
produced by the defendant is pretext for discrimination. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000). Throughout the McDonnell Douglas burden-shifting scheme,
Plaintiff has the ultimate burden of proving that Defendant intentionally discriminated against
her and presenting evidence from which a reasonable jury could conclude Defendant
intentionally discriminated against her.
5

•

Plaintiff’s November 2012 claim of failure to promote based on retaliation also
lacked merit because she could not make out a prima facie case of retaliation under
Title VII or the ADEA. 4

Plaintiff filed an Objection (ECF No. 43) to the Report, to which Defendant filed a Reply
(ECF No. 44).
IV.

ANALYSIS

A. Time-Bar of Plaintiff’s June 2012 Discrimination and Retaliation Claims
Plaintiff first objects to the Magistrate Judge’s determination that her June 2012
promotion claim was time-barred because, she argues, the initial Equal Employment Opportunity
Commission (“EEOC”) questionnaire she filed regarding her discrimination claims was
“validated by the subsequent charge.” (ECF No. 43 at 4.) She argues that, alternatively, the
deadline to file her charge of discrimination (“Charge”)—300 days after she learned Defendant
would not be promoting her 5—should have been equitably tolled. (Id.)
4

The Magistrate Judge also correctly summarized the applicable standard for Plaintiff’s
retaliation claims. (ECF No. 40 at 17–18.) Under Title VII and the ADEA, an employer cannot
discriminate against an employee because the employee “opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e–3(a); see 29 U.S.C. § 623(d) (forbidding the same under the ADEA). To
establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in protected
activity, (2) the employer took adverse employment action against her, and (3) a causal
connection existed between the protected activity and the adverse action. Laughlin v. Metro.
Washington Airports Auth., 149 F.3d 253, 258 (4th Cir. 1998). Once Plaintiff establishes the
elements of her prima facie case, the burden shifts to Defendant to proffer a legitimate, nondiscriminatory reason for taking the adverse employment action. Id. Plaintiff then has the
burden to show that Defendant’s legitimate, non-retaliatory reason is pretextual. See Matvia v.
Bald Head Island Mgmt., 259 F.3d 261, 271 (4th Cir. 2001).
5
Under 42 U.S.C. § 2000e-5(e)(1) (2012), a Title VII or ADEA Charge must be filed with the
EEOC within 300 days “after the alleged unlawful employment practice occurred.” Whitaker v.
Nash Cnty., 504 Fed. Appx. 237, 240 (4th Cir. 2013) (internal quotations omitted). When the
Charge is not timely filed, the claims underlying the charge are time-barred and can no longer be
asserted in court. See, e.g., Kelley v. Int’l Bhd. of Teamsters, 2013 U.S. Dist. LEXIS 179776, at
*9–10 (D.S.C. 2013) (citations omitted).
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Plaintiff’s claims fail.

Plaintiff filed her Intake Questionnaire with the Equal

Employment Opportunity Commission (“EEOC”) on March 13, 2013, (ECF No. 32-11 at 1), but
she did not file her Charge until June 1, 2013. (ECF No. 25-2 at 82–83.) Therefore, Plaintiff’s
June 1, 2013 Charge was file filed three hundred and fifty-eight (358) days after she learned that
she had not been promoted to the position in dispute in June 2012. As the Magistrate Judge
correctly noted, none of the circumstances exist in this case to permit Plaintiff’s intake
questionnaire to satisfy the charge-filing requirement for her June 2012 claim. (See ECF No. 40
at 9–11 (citing relevant case law).) Plaintiff provides no argument or other persuasive authority
as to how any of these circumstances exist, nor does she provide any law supporting her
assertion that her claim is not time-barred because her initial EEOC questionnaire was “validated
by the subsequent charge.” (ECF No. 43 at 4.)
Plaintiff, however, does explicitly argue that “the 300 days should be equitably tolled to
allow the Plaintiff’s claim for the June 2012 promotion” because she should not be “penalized
for delays caused by the EEOC when she timely pursued her claims.” (Id.) But after reviewing
the record, this court can find no evidence that the EEOC caused delays such that equitable
tolling is warranted for Plaintiff’s June 2012 claims. See Coleman v. Talbot Cty. Det. Ctr., 242
F. App'x 72, 74 (4th Cir. 2007) (explaining that a plaintiff must show both that she has been
diligently pursuing her rights and that extraordinary circumstances stood in her way, but further
recognizing the rare circumstances under which equitable tolling should be granted). Indeed, as
Defendant notes, “Plaintiff was represented by counsel throughout the process and plainly
advised by the Intake Questionnaire on how to timely file a charge.

Despite such legal

representation and direction, Plaintiff still did not timely file.” (ECF No. 44 at 4–5 (citing Pl.

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Opposition, Ex. G, p. 2 (Dkt. No. 32-11)).) The Magistrate Judge was correct to determine that
Plaintiff’s June 2012 discrimination claims are time-barred.
While the Magistrate Judge made no explicit finding that Plaintiff’s November 2012
discrimination claim also was time-barred, Defendant maintains that her “failure to timely file a
charge with respect to the June 8, 2012 hiring forecloses all of her claims.” (Id. at 5.) Defendant
argues:
[T]he decision to hire Speights only occurred once, on June 8, 2012. See
Dkt. No. 25-1 (hereinafter, “Def. SJ Mem.”), pp. 10-11; Report, p. 6.
Plaintiff understood this, and also understood that the position’s reposting
in October 2012 was merely a formality to process Speights’ hiring after
her immigration were resolved. See Def. SJ Mem., pp. 12-14, FN10
(discussing Plaintiff’s testimony that she understood the October 2012
posting to be a formality necessary to hire Speights). In short, Plaintiff
knew of the complained about hiring decision as of June 8, 2012, but did
not file her charge of discrimination until June 1, 2013, nearly one year
later.
(Id.)
This argument by Defendant, however, is not of much import here because Plaintiff’s
November 2012 discrimination and retaliation claims, as discussed below, fail on the merits.
B. Plaintiff’s November 2012 Discrimination Claims
Based on the Title VII and ADEA requirements for showing a prima facie case of
employment discrimination discussed supra note 1, the Magistrate Judge found that Plaintiff had
failed to demonstrate to Defendant that she was qualified for the job. (ECF No. 40 at 14.) As
part of her objections, Plaintiff contends that the Magistrate Judge was wrong to conclude that
Plaintiff could not prove she was qualified for the job because she had the requisite experience.
(ECF No. 43 at 5–6.)

Plaintiff relies, in response, on what she terms the job postings’

“boilerplate language” describing the “two to six years of applicable engineering experience”
that is “typically” required, arguing that this language suggests that engineering experience is not

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always required for the employment position in dispute. (Id. at 5.) Plaintiff argues that because
the posting does not state what experience “actually” is required, she needed only to fulfill the
“minimum requirements” of “3 years experience in the nuclear industry or other appropriate user
facility,” presumably, to show that she was “qualified.” (Id. at 5 (citations omitted).)
This is a tenuous argument that this court ultimately does not find availing. Specifically,
Plaintiff fails to adequately explain how the fulfillment of the minimum requirements of
“experience in the nuclear industry or other appropriate user facility,” (ECF No. 43 at 5), equates
to or altogether excuses the additional stated standard requirements of engineering experience
and a bachelor’s degree in engineering, a related technical discipline, or an equivalent, (ECF No.
32-3 at 1–6)—neither of which Plaintiff has, (see ECF No. 32-1 at 60–67)) 6—for the “Senior
Engineer” position for which she was passed up. 7
And like the Magistrate Judge, this court also finds that even if Plaintiff could show that
she was qualified for the position based on the record’s evidence, granting summary judgment on
her claims still would be appropriate under the Title VII and ADEA standards for making out a
discrimination claim.

(ECF No. 40 at 14–17.) As part of his Report, the Magistrate Judge

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Contrastingly, Speights had a bachelor’s degree in computer science and other experience
Defendant believed made her more ideal for the programming duties of the Senior Engineering
position. (ECF No. 25-5 at 19–22.)
7
Moreover, because this is a reverse discrimination case, this court takes note of the fact that
while the Fourth Circuit has not reached the specific issue, see Lucas v. Dole, 835 F.2d 532, 534
(4th Cir. 1987); Weeks v. Union Camp Corp., 2000 WL 727771, at *6, n. 13 (4th Cir 2000), the
Court of Appeals for the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits require an enhanced
prima facie showing of Plaintiffs with reverse discrimination claims. See, e.g., Gore v. Indiana
Univ., 416 F.3d 590, 592 (7th Cir. 2005); Leadbetter v. Gilley, 385 F.3d 683, 690 (6th Cir.
2004); Hammer v. Ashcroft, 383 F.3d 722, 724 (8th Cir. 2004); Stover v. Martinez, 382 F.3d
1064, 1076 (10th Cir. 2004); Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001).

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specifically found that Plaintiff could not show that Defendant’s reason for hiring another
employee instead of Plaintiff was pretext for discrimination, (see id.), that which Title VII also
requires of her. See supra note 1 (outlining the requirements of Title VII and the ADEA for
making out an employment discrimination claim).
In response to this issue of pretext, Plaintiff generally objects that the Magistrate Judge
did not “consider the evidence in the light most favorable to the [her]” and “consider the totality
of the evidence rather than in isolation.” (ECF No. 43 at 6.) Plaintiff specifically challenges the
following:
•

the Magistrate Judge’s conclusion that Plaintiff’s assertion that she was “more qualified”
than the person promoted was “speculative” (id. at 6.);

•

the Magistrate Judge’s finding that the “alteration of Plaintiff’s performance review
rating . . . was not probative of pretext or discrimination.” (id. at 7.);

•

the Magistrate Judge’s finding that Defendant employer’s alleged quota-based
affirmative action policy was not pretext (id. at 9); and

•

the Magistrate Judge’s apparent decision to “ignore” as evidence of pretext the fact that
“Defendant bent over backwards for [the person hired for the position] despite the
numerous [citizenship] issues related to her hiring.” (id. at 9–10.)
If, upon Plaintiff’s hypothetical demonstration of a prima facie case, Defendant produced

a legitimate, nondiscriminatory reason for hiring another employee instead of Plaintiff, then Title
VII requires Plaintiff to demonstrate by a preponderance of the evidence that Defendant’s reason
is pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000). Here, Defendant stated that they hired another person instead of Plaintiff because that
person had superior academic and work credentials, as well as a better work record. (ECF No.

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25-1 at 19.) The Magistrate Judge found that Plaintiff, despite her litany of claims, failed to
show any evidence of pretext and that therefore no reasonable juror could believe Plaintiff’s
explanation of intentional discrimination. (ECF No. 40 at 17.)
This court similarly finds that assuming, arguendo, that Plaintiff could demonstrate a
prima facie case for her discrimination claims, she still fails to raise a genuine issue of material
fact on the issue of pretext for the purposes of the summary judgment determination before this
court. This is because what essentially can be summarized as Plaintiff’s disagreement with
Defendant’s assessment of her credentials, (ECF No. 43 at 6–7), does not equate to a legal claim.
And Plaintiff simply does not offer enough evidence of her assortment of claims, including
claims that her employment reviews were conspiratorially modified, that she was not promoted
for the sake of preserving an affirmative action quota of which the hiring manager testified he
was not aware, (see ECF No. 35-4 at 3), or that Defendant’s various justifications for not
promoting her as well as their rehiring of Speights after her citizenship issues were resolved 8 is
proof of pretext. In short, viewing the evidence in the light most favorable to Plaintiff and
considering the “totality” of her evidence, (ECF No. 43 at 6), even if Plaintiff could demonstrate
her prima facie case, her claims of pretext would fail. Therefore, Defendant’s Motion for

8

The court incorporates here the Report’s summary of this specific issue: “Speights was born in
Liberia, but grew up in Atlanta, Georgia. Her father became naturalized when Speights was a
child and Speights believed that she also became a citizen as his dependent child. Unbeknownst
to Speights, her father’s naturalization had not affected her citizenship. The employment
eligibility issue had not come up for Speights in the past because she believed she was a U.S.
citizen and always had the requisite paperwork to complete an IRS Form I-9 Employment
Eligibility Verification, including a driver’s license and social security card. The error was only
discovered when Defendant ran her information through the E-Verify system. When Defendant
discovered that Speights was not eligible to work in the plant as a non-U.S. citizen, it
immediately terminated her employment pending her ability to secure such eligibility. In or
around October 2012, Speights resolved her employment eligibility issues and Defendant rehired
her to the Senior Engineer position.” (ECF No. 40 at 7–8 (citations omitted).)
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Summary Judgment (ECF No. 25) must be granted as to Plaintiff’s Title VII and ADEA
discrimination claims.
C. Plaintiff’s November 2012 Retaliation Claims
Based on the requirements for showing a prima facie case of employment discrimination,
see supra note 2, the Magistrate Judge found that Plaintiff’s retaliation claims fail. (ECF No. 40
at 17–20.) Specifically, the Magistrate Judge determined that Plaintiff could not show that she
engaged in “protected activity,” as required by Title VII and the ADEA. (ECF No. 43 at 18–19.)
In response, Plaintiff objects to the Magistrate Judge’s suggestion that Plaintiff, herself,
expressed that she did not find retaliatory the hiring of Speights instead of her. (ECF No. 43 at
10–11.) But Plaintiff’s contention bears little on the Magistrate Judge’s apt conclusion that
Plaintiff’s complaint about a consensual romantic relationship between other colleagues does not
qualify as protected activity for the purposes of a retaliation claim. (See ECF No. 40 at 18.)
Moreover, this court agrees that the record reflects no evidence that “quid pro quo sexual
harassment” took place or affected Plaintiff. (Id.)
The Magistrate Judge also determined that Plaintiff’s retaliation claim failed given the
“insufficien[cy]” of the “temporal proximity of five months” between her complaints and her
being passed over for the promotion. (Id.) Plaintiff contends, however, that she “is not relying
on mere temporal proximity alone,” but rather “temporal proximity combined with other
evidence and reasonable inferences drawn therefrom.” (ECF No. 43 at 11.) The court finds no
need to address this objection as it joins the Magistrate Judge’s conclusion that Plaintiff did not
engage in any “protected activity” to support a retaliation claim.

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V. CONCLUSION
As “drastic” as Plaintiff might find granting summary judgment, (ECF No. 43 at 3), this
court, upon reviewing the record as a whole, finds that a reasonable factfinder could not return a
verdict for Plaintiff in light of the evidence before the court.

For this reason, this court

ACCEPTS the Magistrate Judge’s recommendation, (ECF No. 40 at 21), and GRANTS
Defendant’s Motion for Summary Judgment (ECF No. 25) on Plaintiff’s discrimination and
retaliation claims.
IT IS SO ORDERED.

United States District Judge
March 1, 2016
Columbia, South Carolina

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