Smith v. Martek Biosciences Kingstree Corporation

Filing 51

ORDER AND OPINION: The Court adopts the Report and Recommendation of the Magistrate Judge. Therefore, it is ORDERED that Defendant's Motion for Summary Judgment (ECF No. 24 ) is GRANTED and this action hereby DISMISSED. Signed by Honorable Mary G Lewis on 8/6/2013. (prou, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Veronica R. Smith,

) Civil Action No.: 4:11-3457-MGL
)
Plaintiff, )
)
vs.
)
ORDER AND OPINION
)
Martek Biosciences Kingstree
)
Corporation,
)
)
Defendant. )
______________________________ )
Plaintiff Veronica R. Smith (“Plaintiff”) filed this action against Martek Biosciences
Kingstree Corporation (“Defendant”) asserting claims against her former employer for race
and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. (“Title VII”).
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this
employment discrimination matter was referred to United States Magistrate Judge Thomas
E. Rogers, III, for consideration of pretrial matters. On October 22, 2012, Defendant filed
a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. (ECF No. 24.) Plaintiff filed a response in opposition on November 8, 2012
(ECF No. 26) and Defendant filed a reply on November 19, 2012. (ECF No. 28.) The
Magistrate Judge has prepared a thorough Report and Recommendation which
recommends that Defendant’s Motion for Summary Judgment be granted. For the reasons
set forth herein, this court adopts the Report and Recommendation to the extent consistent
with this order and Defendant’s Motion for Summary Judgment is GRANTED.

BACKGROUND AND PROCEDURAL HISTORY
The Report and Recommendation sets forth in detail the relevant facts and
standards of law on this matter, and the court incorporates them and summarizes below
in relevant part. Plaintiff filed this matter on December 20, 2011, alleging race and gender
discrimination related to her employment at Martek Biosciences Kingstree Corporation.
(ECF No. 1.) On October 22, 2012, Defendant moved for summary judgment arguing that
Plaintiff cannot establish a prima facie case because she cannot show that she was
performing to Defendant’s legitimate expectations. (ECF No. 24.) After consideration of
the response filed in opposition to the Motion for Summary Judgment (ECF No. 26) and
Defendant’s reply (ECF No. 28), the Magistrate Judge issued a Report and
Recommendation recommending that Defendant’s Motion for Summary Judgment be
granted as Plaintiff failed to meet her burden of creating a genuine issue of fact as to
whether her termination was based on her race or gender. (ECF No. 47.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this court.
recommendation has no presumptive weight.

The

The responsibility for making a final

determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
Parties are allowed to make a written objection to a Magistrate Judge’s report within
fourteen days after being served a copy of the Report and Recommendation. 28 U.S.C.
§ 636(b)(1). The court is charged with making a de novo determination of any portions of
the Report and Recommendation to which a specific objection is made. The court may
accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate

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Judge or may recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b)(1).
DISCUSSION
Plaintiff filed objections to the Magistrate Judge’s Report and Recommendation.
(ECF No. 48.) Plaintiff objects to the following findings of the Magistrate Judge: 1) Plaintiff
failed to present sufficient evidence to create an issue of fact as to whether Plaintiff was
meeting her employer’s expectations; 2) Plaintiff failed to create a dispute of fact as to
whether similarly situated employees were treated more favorably; and 3) Plaintiff failed to
create a dispute of fact as to whether other evidence exists that create an inference of
discrimination.

(ECF No. 48 at 4.)

Plaintiff also objects to the Magistrate Judge’s

determination that Plaintiff’s evidentiary support was insufficient and also to the Magistrate
Judge’s application of the prima facie case factors. (ECF No. 48 at 4.) The court
addresses these objections in turn.
1. Employer’s Expectations.
Plaintiff claims that the Magistrate Judge failed to make an inquiry as to whether the
employer’s expectations of Plaintiff were legitimate in light of complaints being made
against Plaintiff’s supervisor when he performed similar job functions. (ECF No. 48 at 5.)
Plaintiff claims that any analysis of her performance in 2008 with respect to her 2010
termination was in error. (ECF No. 48 at 5.) Plaintiff also contends that the Magistrate
Judge failed to focus on evidence that indicated Plaintiff’s desire to obtain more direction,
help, and training. (ECF No. 48 at 5.) Plaintiff maintains that if this evidence had been
taken into account and construed in a light most favorable to her, there would have been
a finding that a question of fact exists as to whether the employer’s expectations for her
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were reasonable. (ECF No. 48 at 6.)
The Magistrate Judge correctly set forth the applicable standards of law for proving
discrimination on the basis of race and gender under Title VII. Because Plaintiff has not
produced any direct evidence of discrimination, the Magistrate Judge properly utilized the
burden-shifting method of proof established in McDonnell Douglas Corporation v. Green,
411, U.S. 792, 802-805 (1973). (ECF No. 47 at 11.) Plaintiff does not appear to contest
the applicability of the McDonnell Douglas test to this case but instead argues that the
Magistrate Judge applied the test too rigidly. (ECF No. 48 at 11-12.)
Under the McDonnell Douglas test, the plaintiff has the initial burden of establishing
a prima facie case of discrimination by presenting facts showing that: 1) she is a member
of a protected class; 2) she suffered adverse employment action; 3) she was performing
her job duties at a level that met her employer’s legitimate expectations at the time of the
adverse employment action; and 4) the position remained open or was filled by similarly
qualified applicants outside the protected class. Bonds v. Leavitt, 629 F.3d 369, 386 (4th
Cir. 2011) (internal citations omitted). If the plaintiff meets this burden, the burden then
shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Id. If the employer is able to do so, the plaintiff must then show that
the employer’s stated reasons were not its true reasons, but were instead a pretext for
discrimination. Id.; see also Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,
285 (4th Cir.2004)(noting that the burden-shifting method is a means of averting summary
judgment).
Plaintiff’s first objection relates to one of these elements of the prima facie case:
whether the employer’s expectations for her were reasonable. (ECF No. 48 at 6.) In
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particular she points to “evidence” by way of numerous emails requesting help, direction,
and training, as well as complaints made against her supervisor, which purportedly
establish the third prong of the test. The record, however, establishes otherwise. The
Magistrate Judge discussed the significant evidence in the record revealing that Plaintiff’s
job performance fell below her employer’s expectations and that she needed significant
improvement. (ECF No. 47 at 13-14.)
In her objections, Plaintiff also argues that the Magistrate Judge improperly
considered past performance to determine whether Plaintiff was meeting Defendant’s
legitimate expectations as it relates to her 2010 termination. (ECF No. 48 at 5.) O’Connor
v. Consolidated Coin Caterers Corporation, 56 F.3d 542 (4th Cir. 1995), the Fourth Circuit
case cited by Plaintiff in support of her argument, held that the employee failed to make a
prima facie case because a previous positive employment evaluation was irrelevant when
considered against a more recent negative performance evaluation. O'Connor v. Consol.
Coin Caterers Corp., 56 F.3d 542, 547 (4th Cir.1995), rev’d on other grounds, 517 U.S. 308
(1996). Although Plaintiff makes the suggestion that the O’Connor case does not limit its
holding to only the use of past positive reviews and thus, all past performance reviews are
irrelevant to performance proximate to the termination, the case law does not support the
inference. As explained by the Magistrate Judge, Plaintiff had a history of negative
performance evaluations. Surely, a history of poor performance reviews leading up to
Plaintiff’s termination is relevant to the question of whether Plaintiff was meeting
Defendant’s legitimate expectations. See Glymph v. C.F. Sauer Co., No. 89–2056, 1990
WL 12686, at *2 (4th Cir. Feb.6, 1990) (holding that the plaintiff failed to make a prima facie
case that he was meeting expectations; “[i]ncluded in this proof are the performance ratings
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for the previous nine years which spell out certain inadequacies, [and] records of
discussions with [the employee] regarding these shortcomings”). Plaintiff has not offered
any evidence that it was illegitimate for Defendant to ask Plaintiff to respond to work
requests in a timely, efficient, and customer-friendly manner.1 Additionally, the fact that
Plaintiff felt she was in need of additional help, direction, and training does not mean that
her employer’s expectations of her were not legitimate. See Evans v. Technologies
Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir.1996) (“It is the perception of the
decision maker which is relevant, not the self-assessment of the plaintiff.” (citations
omitted)). Further, Plaintiff’s efforts to compare her work performance with her supervisor
Joe Weatherford only (if at all) goes to the issue of whether similarly-situated employees
outside the protected class received more favorable treatment. The comparison is simply
not relevant to the question of whether Plaintiff was performing her job duties at a level that
met her employer’s legitimate expectations at the time of the adverse employment action.
Consequently, Plaintiff’s objection is overruled. Because Plaintiff has failed to show
satisfactory job performance, her prima facie case fails and Defendant is entitled to
summary judgment as recommended by the Magistrate Judge. Although not necessary
based on this finding, the court will briefly address Plaintiff’s remaining objections.
2. Absence of similarly situated employees.
Plaintiff claims that the Magistrate Judge failed to discuss the Fourth Circuit standard

1

The term “legitimate” means that expectations cannot be a “sham designed to hide the
employer’s discriminatory purpose.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 518 (4th Cir.
2006). As long as the requirements imposed are “bona fide expectations,” as they are here, “it
is no business of the court in a discrimination case to decide whether an employer demands
‘too much’ of his workers.” Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir.1997)
(Posner, J.).

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for situations where there are no similarly situated employees to offer as a basis for
comparison. (ECF No. 48 at 7.) Plaintiff argues that it would be unjust for Plaintiff’s claim
to be dismissed for failure to demonstrate that similarly situated employees were treated
better where no similarly situated employees exist. (ECF No. 48 at 7.) Plaintiff uses this
logic to explain her use of her supervisor as a comparator, apparently relevant to the fourth
prong of the prima facie case. (ECF No. 48 at 7-8.) Even adopting the rationale applied
by the Second Circuit, as cited by Plaintiff, in the unique hypothetical case where an
employer has only one employee, Plaintiff still fails to create an “inference of discrimination
based on other pertinent facts.” See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,
467 (2d Cir. 2001). (ECF No. 48 at 7.) The rationale simply does not aid Plaintiff in
satisfying the fourth prong of the test. The Magistrate Judge applied the relevant Fourth
Circuit law and found that Plaintiff and her comparator were not “similarly situated,” in fact,
he was her supervisor and the two had different job titles and duties. The court finds no
error as Plaintiff has not established the fourth element of the prima facie test.
3.

Pretext.

Plaintiff also contends that there is a question of fact as to whether Plaintiff was
discharged for a legitimate reason when other employees who also committed infractions
remained employed.2 (ECF No. 48 at 9.) Plaintiff generally states there is a question of
fact as to whether the employer could have believed Plaintiff was failing to perform, when
she had conflict with the person issuing her annual evaluation and recommending
corrective action, and also takes issue with Defendant’s investigative process and

2

Plaintiff fails to make helpful and meaningful comparisons here: “[t]he similarity between
comparators and the seriousness of their respective offenses must be clearly established in
order to be meaningful.” Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir.2008).

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treatment of certain employees. (ECF No. 48 at 10.) As a method for averting summary
judgment, under the “pretext” framework, an employee, “after establishing a prima facie
case of discrimination, demonstrates that the employer’s proffered permissible reason for
taking an adverse employment action is actually a pretext for discrimination.” Hill, 354 F.3d
at 285 (emphasis added). Here, as noted above, Plaintiff has not even established a prima
facie case of discrimination and thus, the question of whether Defendant’s proffered reason
is pretextual need not even be addressed.
Even assuming she did establish a prima facie case—shifting the burden to
Defendant—Defendant has articulated a non-discriminatory reason for the termination
based on Plaintiff’s performance. See Blair v. Colonnas Shipyard, Inc., 52 F.Supp.2d 687,
695 (E.D.Va.1999), aff’d 203 F.3d 819 (4th Cir.2000) (holding that plaintiff’s provision of
false information to his employer was a legitimate, nondiscriminatory reason for his
discharge). Plaintiff ultimately produces no evidence—only general and unsupported
assertions— that the proffered reason was pretextual. Accordingly, Plaintiff has not carried
her burden of proving by the preponderance of the evidence that Defendant’s reasons for
the termination were pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142–43 (2000). This court will not “sit as a kind of super-personnel department
weighing the prudence of employment decisions made by firms charged with employment
discrimination.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)(internal
citation and quotation omitted). This objection is also overruled.
4.

Evidence of inference of discrimination.

Plaintiff next contends that the Magistrate Judge failed to consider the pattern of
discrimination complained of by other employees as evidence. (ECF No. 48 at 10.) The

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Magistrate Judge squarely addressed Plaintiff’s argument claiming an alleged pattern and
practice of discrimination. (ECF No. 47 at 19.) In reviewing the record, the Magistrate
Judge acknowledged Plaintiff’s references to other employees who have filed discrimination
charges but ultimately found that Plaintiff failed to present evidence sufficient to show that
racial discrimination was part of Defendant’s normal operating procedures. (ECF No. 47
at 20.) As the Magistrate Judge explained, in order to prove a “pattern and practice” of
discrimination, the Plaintiff must “prove more than the mere occurrence of isolated or
‘accidental’ or sporadic discriminatory acts.” Int'l Brotherhood of Teamsters v. United
States, 431 U.S. 324, 336 (1977). Plaintiff instead must “establish by a preponderance of
the evidence that racial discrimination was the company’s standard operating
procedure—the regular rather than the unusual practice.” Id. Even still, the Fourth Circuit
has cautioned that “pattern and practice evidence has little, if any relevance in an individual
disparate treatment action.” McClosky v. Prince George’s County, Md., No. 95–2913, 1996
WL 726854, at *1 (4th Cir. Dec.18, 1996). The court finds no error in the Magistrate
Judge’s well-reasoned and supported analysis.
5.

Rigid application of McDonnell Douglas analysis is not practical in this case.

Finally, Plaintiff apparently claims that the Magistrate Judge has been overly rigid
in his application of the McDonnell Douglas analysis in this case. The court disagrees. The
Magistrate Judge’s analysis evidences the great amount of care taken to evaluate the
evidence in light of the applicable factors and standards of law. The court’s analysis here
simply focuses on whether Plaintiff was performing her job duties at a level that met her
employer’s legitimate expectations at the time of her termination.

“The burden of

establishing a prima facie case of disparate treatment is not onerous.” Texas Dept. of

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Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Plaintiff has not made a sufficient
showing on this element and thus has not established a prima facie case of discrimination.
CONCLUSION
The Court has carefully reviewed the objections made by Plaintiff and has conducted
the required de novo review. After considering the motion, the record, and the Report and
Recommendation of the Magistrate Judge, this court determines that the Magistrate
Judge’s recommended disposition is correct and the Report and Recommendation is
adopted and incorporated herein by reference to the extent it is consistent with this order.3
Therefore, it is ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 24)
is GRANTED and this action hereby DISMISSED.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge

Spartanburg, South Carolina
August 6, 2013

3

Note 4 of the Report is merely a scrivener’s error and is not incorporated in the instant

order.

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