Addison v. Sumter County Sheriff's Office
Filing
83
ORDER denying 59 Motion for Reconsideration re 55 Order on Report and Recommendation, Order on Motion for Summary Judgment. Signed by Honorable Donald C Coggins, Jr on 11/20/2018.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Melissa Addison,
Plaintiff,
vs.
Sumter County Sheriff’s Office,
Defendant.
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C/A No. 3:17-cv-00540-DCC
ORDER
Pending before the Court is Defendant’s motion to reconsider the Court’s Order,
ECF No. 55, adopting in part and declining to adopt in part the Report and
Recommendation of the United States Magistrate Judge, ECF No. 48. ECF No. 59.
Plaintiff filed a response in opposition and Defendant filed a reply. ECF Nos. 62, 63.
Having carefully considered the motions, the response, the record, and the applicable
law, it is the judgment of the Court that Defendant’s motion is denied.
BACKGROUND
United States Magistrate Judge Paige J. Gossett issued a Report recommending
Defendant’s motion for summary judgment be granted. ECF No. 48. Plaintiff filed
objections and a hearing was held on July 13, 2018. ECF No. 54. On August 9, 2018,
this Court entered an Order adopting in part and declining to adopt in part the
recommendation of the Report; the Court granted summary judgment in favor of
Defendant with respect to all claims except for Plaintiff’s retaliation claim. ECF No. 55.
APPLICABLE LAW
“An interlocutory order is subject to reconsideration at any time prior to the entry
of a final judgment.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462,
1469 (4th Cir. 1991); see Fed. R. Civ. P. 54(b) (“[A]ny order . . . that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties . . . may be
revised at any time before the entry of a judgment adjudicating all the claims and all the
parties' rights and liabilities.”).
While the precise standard governing motions to
reconsider an interlocutory order is unclear, the Fourth Circuit has stated that Rule 54(b)
motions are “not subject to the strict standards applicable to motions for reconsideration
of a final judgment.” Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir.
2003).
“Compared to motions to reconsider final judgments pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure, Rule 54(b)'s approach involves broader flexibility to
revise interlocutory orders before final judgment as the litigation develops and new facts
or arguments come to light.” Carlson v. Boston Scientific Corp., 856 F.3d 320, 325 (4th
Cir. 2017) (citations omitted).
However, “the discretion Rule 54(b) provides is not limitless.” Id. “For instance,
courts have cabined revision pursuant to Rule 54(b) by treating interlocutory rulings as
law of the case.” Id. “Thus, a court may revise an interlocutory order under the same
circumstances in which it may depart from law of the case: (1) 'a subsequent trial
produc[ing] substantially different evidence'; (2) a change in applicable law; or (3) clear
error causing 'manifest injustice.'“ Id. (quoting Am. Canoe Ass'n, 326 F.3d at 515).
Motions to reconsider are not “opportunities to rehash issues already ruled upon because
a litigant is displeased with the result.” R.E. Goodson Constr. Co., Inc. v. Int'l Paper Co.,
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No. 4:02-4184-RBH, 2006 WL 1677136, at *1 (D.S.C. June 14, 2006) (citing Tran v. Tran,
166 F. Supp. 2d 793, 798 (S.D.N.Y. 2001)).
DISCUSSION
Retaliation
Defendant argues that this Court erred in finding Plaintiff’s allegations raised a
genuine issue of material fact sufficient to survive a motion for summary judgment with
respect to her retaliation claim. ECF No. 59 at 4–13. Regarding Plaintiff’s three-day
suspension, Defendant asserts that the lapse in time of two months and 29 days between
the protected activity and adverse action is too long to establish a causal connection by
temporal proximity alone in light of the fact that Plaintiff provided no other evidence that
her suspension was motivated by her charge of discrimination. The Court has ruled on
this argument and again finds that the time between Plaintiff’s protected activity and her
suspension is not too long to foreclose a finding that Plaintiff has established a causal
connection.1 See Pascual v. Lowe’s Hone Centers, Inc., 193 F. App’x 229 (4th Cir. 2006)
(holding that the plaintiff had failed to establish a causal connection by temporal proximity
alone when “at least three or four months” separated the claims protected activities and
the termination of the plaintiff’s employment).
The Court takes this opportunity to clarify the portion of its Order upon which
Defendant seems to most heavily rely. The Court stated that “Plaintiff has provided no
rebuttal for her suspension”; accordingly, Defendant contends that the suspension cannot
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The Court notes that Plaintiff also provided the affidavit of Latasha Reed in
support of causation.
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be used to establish temporal proximity and, therefore, Plaintiff fails to establish a causal
connection by way of temporal proximity between her protected activity and her
termination, which occurred seven months and 19 days apart. Upon review, the Court
clarifies that while Plaintiff did not offer a direct rebuttal to Defendant’s proffered legitimate
non-retaliatory reason for the suspension—that Plaintiff was insubordinate to the Sheriff—
it is clear from her arguments and the evidence in the record that Plaintiff alleges she and
the Sheriff had a history of communications wherein Plaintiff complained about other
employees’ behavior and questioned reprimands that she had received. For example,
she argued that she should not have been given a written reprimand by her superior in
2015 by submitting a 67-page rebuttal letter that included details of her co-workers’
private lives and accusations of dishonesty. The Sheriff responded by declining to adopt
her superior’s recommendation that she be demoted and issued identical written warnings
to Plaintiff, Captain Robert B. Burnish, and Sergeant Wayne Dubose. However, once
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission and then engaged in similar behavior, she received a suspension. The Court
finds that these facts are sufficient to create a genuine issue of material fact as to
retaliation.
Defendant argues that two intervening events break any potential causal
connection between Plaintiff’s protected activity and her termination. It contends that her
conversation with the Sheriff about missing the Sumter Fair and complaints from other
employees about her demeanor occurred after she filed her Charge and had a direct
bearing on the adverse employment action. As explained above, Plaintiff’s conversation
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with the Sheriff does not serve to break the causal connection. The Court further finds
that the complaints from her co-workers fail to break the causal connection between
Plaintiff’s protected activity and the adverse employment action. To the contrary, this
evidence juxtaposed against Plaintiff’s testimony and the Reed affidavit create an issue
of fact and a credibility determination for the jury.
Defendant further contends that Plaintiff failed to rebut the proffered reasons for
her non-renewal. The Court has ruled on this argument and again finds that Plaintiff
offered lengthy explanations for each of the proffered reasons given by the Sheriff for her
non-renewal; considering the totality of the record, including Plaintiff’s intervening
suspension and the standard of review for a motion for summary judgment, Plaintiff has
created a genuine issue of material as to whether Defendant’s proffered reasons for her
non-renewal are mere pretext. Accordingly, Defendant’s Motion to Reconsider is denied
with respect to this argument.
After-Acquired Evidence
Turning to Defendant’s argument regarding after-discovered evidence, the Court
agrees that its prior Order failed to specifically address this argument.
Defendant
contends that any potential damages Plaintiff might recover should be limited by the afteracquired evidence doctrine. Defendant states that its policies prohibit employees from
surreptitiously recording one another. Defendant argues it provided discovery responses
that the Sheriff would have terminated Plaintiff is he had known that she was making
recordings of him and other employees, both because of the act of recording them and
for lying to him when he asked her if she were making recordings. Defendant contends
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that, because it would have unquestionably terminated Plaintiff’s employment if it had
known she was making recordings, Plaintiff’s potential damages should be limited to
those incurred from the date of her termination, January 3, 2017, until the date Defendant
learned that she had been making recordings while employed, June 8, 2017. The Court
disagrees.
The after-acquired evidence doctrine “concerns the effect of evidence of employee
misconduct acquired by the employer after the employee has been terminated for a
discriminatory reason.” Miller v. AT & T Corp., 250 F.3d 820, 837 (4th Cir. 2001). The
doctrine “does not provide a complete bar to recover”; rather, “[t]he rule merely limits the
‘calculation of backpay from the date of the unlawful discharge to the date the new
information was discovered.’” Francisco v. Verizon South, Inc., 756 F.Supp.2d 705, 729
(E.D. Va. 2010) (quoting McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 362–
63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)). Further, the doctrine “requires the defendant
to establish that the wrongdoing was of such severity that the employee in fact would
have been terminated on those grounds alone.” Id. (internal quotations omitted).
While Defendant asserts that the Sheriff would have fired Plaintiff had he known
that she was making recordings, upon review, a material question of fact arises with
respect to whether the Sheriff gave Plaintiff permission to record unspecified events after
he spoke to an attorney. See ECF No. 62-1 at 7 (wherein Plaintiff described a meeting
with the Sheriff during which they discussed tape-recording and Plaintiff stated that the
Sheriff told her it was “okay to record”); ECF No. 20-9 at 5, 7; see also Richards v.
Healthcare Resources Group, Inc., No. 2:15-cv-134-RMP, 2016 WL 5109520, at *14
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(E.D. Wash. Sept. 20, 2016) (holding that, at the summary judgment stage, the defendant
must provide sufficient evidence to demonstrate a genuine issue of material fact as to
whether it would have terminated the plaintiff for failing to reveal his prior criminal
conviction on his employment application); McLaughlin v. Innovative Logistics Grp., Inc.,
No. 05-72305, 2007 WL 313531, at *12 (E.D. Mich. Jan. 30, 2007) (“When an employer
has reason to know of the wrongful conduct prior to the date of termination, the alleged
conduct cannot be utilized as ‘after-acquired’ evidence.”). As Plaintiff has submitted
sufficient evidence to raise a genuine issue of material fact regarding whether the plaintiff
would have been terminated for recording conversations, Defendant’s motion for
summary judgment as to its after-acquired evidence defense is denied.
CONCLUSION
Accordingly, based on the foregoing, Defendant’s [59] motion to reconsider is
DENIED.
IT IS SO ORDERED.
s/Donald C. Coggins, Jr.
United States District Judge
November 20, 2018
Spartanburg, South Carolina
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