Sumter v. Jenny Craig Inc et al

Filing 44

OPINION AND ORDER adopting 30 Report and Recommendation, granting 22 Motion for Summary Judgment. Signed by Honorable Cameron McGowan Currie on 6/21/2016. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Selena Sumter,

C/A. No. 3:14-cv-4460-CMC-SVH

Plaintiff
v.
Jenny Craig, Inc., Tamara Draut,
Krystian Ellisor, and Josephine Lenartz,
in their individual capacities,

Opinion and Order

Defendants.

Through this action, Plaintiff Selena Sumter (“Plaintiff”) seeks recovery from her former
employer, Jenny Craig, Inc. (“JCI”), for alleged employment discrimination based on her race,
pursuant to 42 U.S.C. § 2000e, et seq.; for discrimination based on her age, pursuant to 29 U.S.C.
§ 621, and for defamation. ECF. No. 1, Attachment 1. She also asserts a claim of civil conspiracy
against Tamara Draut (“Draut”), Krystian Ellisor (“Ellisor”), and Josephine Lenartz (“Lenartz”),
collectively, the “Individual Defendants.” Id. The matter is before the court on Defendants’
Motion for Summary Judgment, filed December 16, 2015. ECF No. 22. Plaintiff filed her
response in opposition on January 4, 2016. ECF No. 24. Defendants filed a reply on January 11,
2016. ECF No. 25.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(g), D.S.C., this
matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings
and a Report and Recommendation (“Report”). On March 23, 2016, the Magistrate Judge issued
a Report recommending that Defendant’s motion for summary judgment be granted. ECF No. 30.
The Magistrate Judge advised the parties of the procedures and requirements for filing objections
to the Report and the serious consequences if they failed to do so. Plaintiff was granted an

extension of time to file objections to the Report (ECF No. 38), and filed her objections on April
25, 2016. ECF No. 39. Defendants filed a reply on May 9, 2016. ECF No. 40. This matter is
now ripe for resolution.
I.

Standard
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). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is 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. 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
Summary Judgment is appropriate “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). On a motion for summary judgment, the district court must “view the evidence in the light
most favorable to the nonmoving party.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
562, 568 (4th Cir. 2015) (citing Tolan v. Cotton, 134 S.Ct. 1861, 1868 (2014) (per curiam)).
“Summary Judgment cannot be granted merely because the court believes that the movant will
prevail if the action is tried on the merits.” Id. Therefore, the court cannot weigh the evidence or
make credibility determinations. Id. at 569. The district court may not “credit[] the evidence of
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the party seeking summary judgment and fail[] properly to acknowledge key evidence offered by
the party opposing that motion.” Id. at 570. However, a party “cannot create a genuine issue of
material fact through mere speculation or the building of one inference upon another.” Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, “[m]ere unsupported speculation . . . is not
enough to defeat a summary judgment motion.” Ennis v. National Ass’n of Bus. & Educ. Radio,
Inc., 53 F.3d 55, 62 (4th Cir. 1995).
After conducting a de novo review as to the objections made, and considering the record,
the applicable law, and the Report and Recommendation of the Magistrate Judge, the court agrees
with the Report’s recommendation that Defendants’ motion for summary judgment should be
granted. Accordingly, the court adopts the Report by reference in this Order, going beyond the
reasoning of the Report where necessary to address the entirety of Plaintiff’s claims. For the
reasons stated in the Report and as further addressed below, Defendants are entitled to summary
judgment on all claims.
II.

Discussion
Plaintiff presents three objections to the Report, essentially arguing that the Magistrate

Judge’s findings regarding each of her claims were error and that all claims should survive
summary judgment. The objections are discussed below in turn.
a. Plaintiff’s Federal Discrimination Claims
Plaintiff argues that the Magistrate Judge erred in finding that her race and age
discrimination claims fail as a matter of law. This objection focuses on the Report’s finding that
Plaintiff did not offer valid comparators to establish the fourth element of her prima facie case in
the pretext framework for demonstrating discrimination. ECF No. 39, at 8; ECF No. 30, at 10-12.

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Specifically, Plaintiff argues that Ellisor is a valid comparator, and that the Magistrate
Judge did not consider the totality of the evidence regarding this issue. However, this court finds
that, while Ellisor later occupied the same supervisory position from which Plaintiff resigned, and
complaints were made about her as a supervisor, there is simply not enough evidence of similarity
to consider Ellisor a valid comparator. First, there is no evidence as to the nature of the complaints
against Ellisor. Therefore, the court is unable to determine whether the complaints against Ellisor
were as serious in nature as those against Plaintiff. In addition, while Plaintiff argues that a specific
employee made seven complaints against Ellisor, and only one complaint about Plaintiff when she
was in the same position, it is undisputed that Plaintiff was the subject of complaints made by other
employees as well, and was written up at least once regarding a complaint. Finally, there is no
evidence regarding JCI’s response to any of the complaints against Ellisor to determine whether
the employer treated Plaintiff differently, either during or after its investigation of any complaint,
or if any complaint was serious enough for JCI to write Ellisor up or otherwise discipline her.
Therefore, as Plaintiff does not have sufficient evidence regarding her only alleged comparator,
she is unable to show she was treated differently. Thus, Plaintiff is unable to state a claim for
discrimination based on race or age.
Plaintiff does not specifically object to any other aspect of the race or age discrimination
claims. Although Plaintiff “further relies on the evidence and arguments presented in her brief to
establish pretext for summary judgment, which the Plaintiff cites to and incorporates herewith,”
de novo review is not required when objections are general and conclusory. Smith v. Nuth, 98 F.3d
1335 (Table), 1996 WL 593792 at *1 (4th Cir. 1996) (citing Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir.1982)). Specific objections are necessary in order to focus the court's attention on disputed
issues. Thomas v. Arn, 474 U.S. 140, 147-48 (1985). Because general objections do not direct the
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court's attention to any specific portions of the report, general objections to a magistrate judge's
report are tantamount to a failure to object. Smith, 98 F.3d at 1335; Howard v. Secretary of Health
& Human Servs., 932 F.2d 505, 509 (6th Cir.1991).
Therefore, while the court has considered Plaintiff’s objection de novo, it reviews the
remainder of the discrimination portion of the Report for clear error only. Finding none, the court
adopts this portion of the Report in its entirety and grants summary judgment to Defendants on the
race and age discrimination claims.
b. Defamation Claim
Regarding Plaintiff’s defamation claim, Plaintiff argues that the Magistrate Judge erred in
finding that Plaintiff failed to present a valid claim because her evidence is inadmissible hearsay.
In support of her defamation claim, Plaintiff presents affidavits averring that she and two other
affiants (Ogbuewe and Sparks) were told that Plaintiff threw a chair or hit an employee and was
fired because of it. However, neither Plaintiff nor Ogbuewe had personal knowledge or awareness
of this alleged statement, and Plaintiff has not produced an affidavit or testimony from anyone
who allegedly originated this information; instead, it is only third-hand that any of the persons
submitting affidavits heard this rumor.1 Such statements, even when contained in sworn affidavits,
are hearsay and thus are not proper support for an opposition to a summary judgment motion. See
Fed. R. Civ. P. 56(c)(4) (“Supporting. . . affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant
is competent to testify to the matters stated therein.”); see also Greensboro Prof. Fire Fighters

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Plaintiff produced one affidavit from affiant Sparks who heard this statement directly. This
evidence will be addressed below.
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Ass’n v. Greensboro, 64 F.3d 962, 967 (4th Cir. 1995) (inadmissible hearsay “is neither admissible
at trial nor supportive of an opposition to a motion for summary judgment”). In fact, most of the
statements cited by Plaintiff in support of this claim are double hearsay.
Although Plaintiff argues that the statements in the affidavits constitute “non-hearsay
original evidence or fall within an exception to the hearsay rule or otherwise allowed to the
extent it is characterized as hearsay,” none of these end-runs around the hearsay rule is availing.
i. Rule 801(d)
The averments by Plaintiff and Ogbuewe are double hearsay and are not exclusions as
found in Fed. R. Evid. 801(d)(2)(D) for an opposing party’s statement, as there is no evidence
that they were authorized by JCI or made within the scope of employment. To introduce a
statement under Rule 801(d)(2)(D) the record must reveal “independent evidence establishing
the existence of the agency.” Sutton v. Roth, L.L.C., 361 F. App'x 543, 547-48 (4th Cir. 2010)
(citing United States v. Portsmouth Paving Corp., 694 F.2d 312, 321 (4th Cir. 1982)). Neither
do the statements qualify as non-hearsay under Fed. R. Evid. 801(d)(2)(E) as statements of coconspirators (see further discussion in Section c, below).
Sparks’ averment that she heard the statement regarding Plaintiff’s purported termination
directly from Lenartz, however, is different. In her objections to the Report, Plaintiff cites a
paragraph in Sparks’ affidavit that states: “During my employment with Jenny Craig, Inc., I
received a phone call from Centre Director Josey Lenartz who told me that Selena Sumter was
terminated from her employment with Jenny Craig, Inc., because Selena struck another employee.”
Sparks Affidavit ¶ 9 (ECF No. 39 at 4). If Lenartz, a Centre Director at a different JCI location,
was acting as an agent of JCI at the time she made the statement, JCI could potentially be held
liable for the alleged defamatory statement. See Murray v. Holnam, 542 S.E.2d 743, 748 (S.C. Ct.
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App. 2001) (under South Carolina law, “a principal may be held liable for defamatory statements
made by an agent acting within the scope of his employment or within the scope of his apparent
authority.”).
In order to prove that an alleged defamatory statement was made within the scope of an
employee’s employment, a plaintiff must prove that the act was both: reasonably necessary to
accomplish the purpose of the employee’s employment, and in furtherance of the master’s
business.” Park v. Se. Serv. Corp., 771 F.Supp.2d 588, 592 (D.S.C. 2011); see also Armstrong v.
Food Lion, Inc., 639 S.E.2d 50, 53 (S.C. 2006).
In this case, Plaintiff simply has not produced sufficient evidence that Lenartz’s statement
to Sparks, as relayed in Sparks’ affidavit, was “reasonably necessary to accomplish the purpose of
the employee’s employment and in furtherance of the master’s business.” Park, 771 F.Supp.2d
592 (citing Armstrong, 639 S.E.2d at 52). First, Lenartz neither worked at the same location as
Plaintiff, nor was she Plaintiff’s supervisor. Second, as to the timing of the statement, Sparks
recalled only that it was “during her employment with JCI” when Lenartz called and made the
statement regarding Plaintiff. The statement was clearly made after Plaintiff resigned, and there
is no evidence that Lenartz had any role in her resignation. Therefore, it was not reasonably
necessary to accomplish Lenartz’s employment. Third, Plaintiff has no deposition testimony or
documentation showing Lenartz’s purpose was to serve her employer when she allegedly made
the defamatory statement. For these reasons, Plaintiff has failed to show that the alleged
defamatory statement was made in the scope of Lenartz’s employment, as required to hold JCI
accountable for the statement.

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ii. Hearsay Exception Rule 803(21)
Next, Plaintiff argues that if the affidavit statements are hearsay, they fall under the
exception in Fed. R. Evid. 803(21) as statements as to reputation and character. Plaintiff does not
expand on her assertion as to how this applies, and these statements do not pertain to Plaintiff’s
character among her associates or in the community. For example, they are not statements
regarding her truthfulness or honesty. Plaintiff instead seeks to admit these statements because
they purportedly contain the defamation against her. This is undoubtedly hearsay and not within
this exception.
iii. Rule 807
Finally, Plaintiff argues that the statements should be considered “to meet the interests of
justice” under Fed. R. Evid. 807. These statements clearly do not meet the requirements of that
rule, as the statements do not have “equivalent circumstantial guarantees of trustworthiness,” and
are not “more probative on the point for which [they are] offered than any other evidence that the
proponent can obtain through reasonable efforts.” Fed. R. Evid. 807.
iv. Defamation Conclusion
Plaintiff’s affidavits supporting her defamation claim contain hearsay statements that
cannot be used as evidentiary support in opposition to summary judgment. While the Magistrate
Judge recommended summary judgment, this court goes beyond the findings of the Magistrate
Judge in order to address the agency and scope of employment issue. Having determined that
summary judgment is appropriate, this court adopts the conclusion of the Magistrate Judge and
grants summary judgment to Defendants on this claim.

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c. Civil Conspiracy Claim
Plaintiff also objects to the Magistrate Judge’s findings regarding her civil conspiracy
claim. Specifically, Plaintiff claims that the Magistrate Judge erred in finding that Plaintiff “fails
to identify additional acts in furtherance of the conspiracy and fails to provide special damages
distinct from her other claims.” ECF No. 39, at 5 (citing ECF No. 30, at 14-16).
Plaintiff argues that her evidence of the civil conspiracy is sufficient to infer that a
conspiracy against her existed. However, as noted by the Magistrate Judge, Plaintiff’s evidence
of this conspiracy consists almost entirely of inadmissible hearsay and inferences drawn from that
inadmissible evidence. See ECF No. 39, at 6 (“Plaintiff testified that she was specifically told. . .;
[a]nother employee then came to Plaintiff and said. . . “). The only other evidence cited by Plaintiff
in her objections was an averment by affiant Sparks, noting the “tension she observed between
Draut and Plaintiff,” (Id.) which is clearly insufficient to establish a claim for civil conspiracy.
i. Hearsay
Although the Magistrate Judge identified the statements made in Plaintiff’s affidavit as
hearsay evidence, Plaintiff argues that these statements are not hearsay because they are statements
of co-conspirators; or, if they are hearsay, that they should be allowed as an exception to the
hearsay rule in the interests of justice. However, the statements do not qualify as statements of coconspirators under Fed. R. Evid. 801(d)(2)(E).
For a statement to be admitted under Rule 801(d)(2)(E), the existence of a conspiracy must
be shown by independent evidence before the hearsay statement is admitted. See Bourjaily v.
United States, 483 U.S. 171, 175 (1987) (“There must be evidence that there was a conspiracy
involving the declarant and the nonoffering party, and that the statement was made ‘during the
course and in furtherance of the conspiracy.””); U.S. v. Shores, 33 F.3d 438, 442 (4th Cir. 1994);
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U.S. v. Hines, 717 F.2d 1481, 1488 (4th Cir. 1983) (“[The statement’s] admissibility turns on the
existence of substantial evidence of the conspiracy other than the statement itself.”). Although the
existence of a conspiracy may be supplemented by the disputed hearsay statement, the party
seeking to admit the statement must prove the existence of a conspiracy by a preponderance of the
evidence before a hearsay statement can be admitted under Fed. R. Evid. 801(d)(2)(E). Campbell
v. Lyon, 26 F. App’x 183, 189 (4th Cir. 2001) (citing Bourjaily, 483 U.S. at 175). In this case, the
only arguable non-hearsay evidence in support of the alleged conspiracy is that Plaintiff was
written up, and that she “disagreed with” the write-up which she contends was in furtherance of
the conspiracy to replace her with Ellisor. However, Plaintiff offers no evidence regarding the
write-up, including the reason for it and whether it was legitimate. Plaintiff’s proffered evidence
is simply not sufficient to prove the existence of a conspiracy by a preponderance of the evidence.
In addition, as explained above, the statements do not meet the requirements to be admitted
in the interests of justice under Fed. R. Evid. 807. Therefore, Plaintiff has failed to provide
sufficient, admissible evidence to support her civil conspiracy claim.
ii. Special Damages
Plaintiff argues that she has sufficiently pled special damages, and that the Magistrate
Judge erred in finding that she did not. Plaintiff asserts that her special damages for this claim
include “being ostracized, blacklisted, incurring costs and fees and she sought counseling and
suffered physical impairment, pain and suffering, and emotional distress related to her civil
conspiracy claim.” ECF No. 39, at 7. However, the Magistrate Judge fully considered these
damages, and found that they did not qualify as special damages as required for a civil conspiracy
claim. This court has reviewed the portion of the Report regarding special damages and Plaintiff’s
objections de novo, and, considering the record and the applicable law, agrees with the Report’s
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recommendation on this issue. Accordingly, the court adopts by reference the portion of the Report
regarding special damages.
Plaintiff has failed to introduce admissible evidence to support her civil conspiracy
claim on summary judgment. Further, she has failed to establish special damages as required for
a civil conspiracy claim. Therefore, summary judgment on this claim is proper.
III.

Conclusion
Having conducted a de novo review of the Report and underlying motion and related

memoranda, and having fully considered Plaintiff’s objections, the court adopts the conclusions of
the Report, although going beyond the reasoning of the Report to reach the same result on the
defamation claim. Defendants’ motion for summary judgment is granted and this matter is
dismissed with prejudice.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
June 21, 2016

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