Morrow v. Carolina Urologic Research Center LLC et al

Filing 59

ORDER adopting 53 Report and Recommendation, as modified; granting 25 Motion for Summary Judgment as to Plaintiffs Title VII and § 1981 federal law claims. Signed by the Honorable R Bryan Harwell on 9/24/2014. (hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Tamuera Morrow,

)
)
Plaintiff,
)
)
v.
)
)
Carolina Urologic Research Center, )
LLC and Stacey Harrelson,
)
)
Defendants.
)
)

Civil Action No.: 4:13-cv-695-RBH

ORDER

Plaintiff Tamuera Morrow (“Plaintiff”), represented by counsel, filed this action in state court
on February 27, 2013 seeking recovery against Defendants Carolina Urologic Research Center, LLC
and Stacey Harrelson (“Defendants”). See Compl., ECF No. 1-1. Plaintiff was formerly employed
at Carolina Urologic Research Center, LLC (“CURC”), and Stacey Harrelson (“Harrelson”) was her
supervisor. Defendants removed the action from the Horry County Court of Common Pleas to this
Court on March 15, 2013. See Notice of Removal, ECF No. 1. In her Complaint, Plaintiff asserts
claims for race discrimination, hostile work environment, and retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. and 42 U.S.C. § 1981. See ECF No. 1-1.
Plaintiff also alleges state law claims for intentional infliction of emotional distress and defamation.1
See id.
On January 21, 2014, Defendants filed a motion summary judgment. See Def.’s Mot. for
Summ. J., ECF No. 25. Plaintiff timely filed a response in opposition on February 17, 2014, see ECF
No. 36, and Defendants filed a reply on February 21, 2014, see Reply, ECF No. 38. The matter is

1

The Complaint also pled a state law claim for breach of contract, but Plaintiff withdrew this claim in
her response in opposition to Defendant’s motion for summary judgment. See Pl.’s Resp., ECF No.
36 at 32–33.

now before the Court after the issuance of the Report and Recommendation (“R & R”) of United
States Magistrate Judge Thomas E. Rogers, III.2 See R & R, ECF No. 53. In the R & R, the
Magistrate Judge recommends the Court grant Defendants’ Motion for Summary Judgment on all of
the federal claims, decline to exercise supplemental jurisdiction over the remaining state law claims,
and remand the matter back to state court. See id. at 21.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court.

The

recommendation has no presumptive weight. The responsibility to make a final determination
remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The district
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 with instructions. 28 U.S.C. §
636(b)(1).
The district court is obligated to conduct a de novo review of every portion of the Magistrate
Judge’s report to which objections have been filed. Id. However, the court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not direct the
[C]ourt to a specific error in the [M]agistrate’s proposed findings and recommendations.” Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court reviews only for clear error in the absence of
a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005).

2

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.
2

SUMMARY JUDGMENT STANDARD
Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The moving party has the burden of proving that summary judgment is
appropriate. Once the moving party makes the showing, however, the opposing party must respond
to the motion with “specific facts showing there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
When no genuine issue of any material fact exists, summary judgment is appropriate. Shealy
v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the
evidence must be viewed in the light most favorable to the non-moving party. Id. However, “the
mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)).
In this case, Defendants “bear[] the initial burden of pointing to the absence of a genuine issue
of material fact.” Temkin v. Frederick Cnty. Comm’rs, 845 F.2d 716, 718 (4th Cir. 1991) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If Defendants carry this burden, “the burden
then shifts to the non-moving party to come forward with fact sufficient to create a triable issue of
fact.” Id. at 718–19 (citing Anderson, 477 U.S. at 247–48).
“Once the moving party has met its burden, the nonmoving party must come forward with
some evidence beyond the mere allegations contained in the pleadings to show there is a genuine
issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874–75 (4th Cir. 1992). The
nonmoving party may not rely on beliefs, conjecture, speculation, of conclusory allegations to defeat

3

a motion for summary judgment. See id; Doyle v. Sentry, Inc., 877 F. Supp. 1002, 1005 (E.D. Va.
1995). Rather, the nonmoving party is required to submit evidence of specific facts by way of
affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a genuine and
material factual issue for trial. See Fed. R. Civ. P. 56(c), (e); Baber, 977 F.2d at 875 (citing Celotex,
477 U.S. at 324)). Moreover, the nonmovant’s proof must meet “the substantive evidentiary
standard of proof that would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d
1310, 1316 (4th Cir. 1993); DeLeon v. St. Joseph Hosp., Inc., 871 F.2d 1229, 1223 n.7 (4th Cir. 1989).
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the
non-moving party’s favor. See Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th
Cir. 2002).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts of this case, including citations to the record, were completely and accurately set
forth in the Magistrate Judge’s Report and Recommendation unless otherwise noted. See ECF No.
53 at 1–7. Briefly stated, Plaintiff was employed by CURC from April 14, 2008 to January 28,
2011.3 See Aff. of Tamuera Morrow, ECF No. 36-1 at ¶ 5; Termination Letter, ECF No. 30-9.
Plaintiff’s title at CURC was clinical research coordinator. See Ex. 1 to Pl.’s Dep., ECF No. 26-3.

3

Plaintiff’s last day of work was January 26, 2011, as she was placed on administrative leave on that
date. See Stmt. of Mildred Longieliere, ECF No. 28-3; Email Chain, ECF No. 28-4. As Plaintiff
pointed out in her objections, at one point the Magistrate Judge incorrectly stated that Plaintiff’s last
day of work was January 26, 2006. See ECF No. 53 at 4. The Magistrate Judge, however, went on
to discusses events that occurred on her last day of work, January 26, 2011, immediately following
this oversight. See id. The Court notes that this misstatement appears to have been unintentional
and, in any event, had no effect on the Magistrate Judge’s analysis.
4

During the course of her employment, Plaintiff alleges that she suffered discrimination and
harassment, and was treated less favorably than other employees because of her race. See Pl.’s
Mem., ECF No. 36 at 20–24, 29–32. She also alleges that her termination was in retaliation for
reporting harassment. See id. at 24–29.
Plaintiff has specifically objected to portions of the Magistrate Judge’s description of the
facts. Rather than repeat the undisputed facts, the Court will adopt the unobjected-to portions of the
Magistrate Judge’s description of the facts as its own, and will only address the disputed facts herein.
Plaintiff first makes a general objection that the Magistrate Judge did not “present the facts in a light
favorable to the Plaintiff.”

See Pl.’s Objs., ECF No. 54 at 4. Plaintiff then points out specific

examples where she alleges the facts were not presented in a favorable light. Plaintiff notes that the
Magistrate Judge discussed corrective actions Plaintiff received in 2009 and April of 2010, but that
she did not receive any other disciplinary measures until January of 2011. See ECF No. 54 at 4.
Plaintiff did go a considerable length of time without receiving any additional disciplinary measures.
However, these corrective actions are relevant, the employer had many other legitimate,
non-discriminatory reasons for terminating Plaintiff, as set forth in more detail below.
Plaintiff then notes that the Magistrate Judge stated Michael Asbill and Harrelson testified
that “it is extremely inappropriate to interrupt a physician while he is treating a patient,” due to the
confidential and personal nature of medical treatment, see ECF No. 53 at 4, but she argues that this is
not what they said in their depositions. Rather, Asbill only stated that you do not interrupt a
physician, see Asbill Dep., ECF No. 27-10 at 2; the “extremely inappropriate” language came from
Defendants’ brief, see ECF No. 25-1 at 6. Plaintiff acknowledges that Harrelson testified that
interrupting “is just something that you don’t do,” Harrelson Dep., ECF No. 27-10 at 3, but Plaintiff

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argues that neither individual asserted that the confidential nature of treatment was the reason for not
interrupting, see ECF No. 54 at 4–5. These facts do not appear to have had a bearing on the
Magistrate Judge’s ultimate conclusions.

However, the Court agrees with Plaintiff that the

Magistrate Judge’s portrayal of Asbill and Harrelson’s testimony does appear to have been in error.
Accordingly, the Magistrate Judge’s description of the facts is modified to reflect the correct
testimony.
Plaintiff then asserts that the Magistrate Judge presented the emails Plaintiff sent on her last
day of work in a light that was not most favorable to Plaintiff. See id. at 5. The Court notes,
however, that the Magistrate Judge extensively quoted from these emails and they are a part of the
record. See ECF No. 53 at 5–6; Email Chain, ECF No. 26-10; Email Chain, ECF No. 28-4. This
objection is without merit as the emails speak for themselves.

Plaintiff also argues that the

Magistrate Judge “fails to address any of the facts that evidence the Plaintiff’s causes of action.” See
ECF No. 54 at 5. The Court notes that, upon an independent review of the record, the Magistrate
Judge does appear to address all of the relevant facts concerning Plaintiff’s causes of action. Aside
from the items discussed in this Order, Plaintiff points to no specific facts which the Magistrate Judge
failed to address. Accordingly, this objection is also without merit. Plaintiff then claims that
Defendants contend she conceded the corrective action write-ups were proper, see id. at 5, but that
Plaintiff specifically testified that she “didn’t agree with the write up,” see Pl. Dep., ECF No. 27-2 at
2. The Magistrate Judge, however, did not address this contention of Defendants in the R & R.
Thus, this “objection” is irrelevant, as it does not relate to the R & R.
Finally, Plaintiff asserts that the Court “specifically cites to Defendant’s recitation that the
Plaintiff was the aggressor in all actions.” See ECF No. 54 at 5. Plaintiff argues, however, that this

6

is in “direct contradiction to the other employees and what they testified to.” See id. Plaintiff
asserts that her coworkers, Jennifer Baiden and Jake Lowery, “both testified contrary to that
information.” See id. The Court has reviewed the deposition testimony cited by Plaintiff. Baiden
specifically testified that Plaintiff “would try to involve me in her personal problems with Stacey a
lot.” See Baiden Dep., ECF No. 36-5 at 2. Lowery testified that he did not have any personality
conflicts with Plaintiff and did not remember Plaintiff being threatening. See Lowery Dep., ECF No.
36-10 at 5. He did testify that he witnessed an altercation between Plaintiff and Harrelson, and
vaguely remembered Plaintiff getting upset and Harrelson having to “come in and try to rectify the
situation.” See id. at 6. The Court agrees with Plaintiff that this deposition testimony does not
necessarily suggest that Plaintiff was the aggressor. In the R & R, however, the Magistrate Judge
cited to notes from a CURC staff meeting and Asbill’s deposition for the fact that employee
interviews revealed Plaintiff was to blame for the tension with Harrelson, and that Harrelson was not
the aggressor. See Notes and Asbill Dep., ECF No. 30-4. This evidence does support the fact that
several employees believed Plaintiff to be the root of the tension at CURC. See id. The Court,
however, agrees with Plaintiff that it does not go so far as to establish Plaintiff as the “aggressor.”
These facts do not appear to be relevant to the Magistrate Judge’s legal analysis and recommendation.
Nevertheless, out of an abundance of caution, the R & R is modified to remove the reference to
Plaintiff being the “aggressor.”
DISCUSSION
I.

R & R and Objections
The Magistrate Judge recommends the Court grant Defendants’ Motion for Summary

Judgment on Plaintiff’s federal claims, decline to exercise supplemental jurisdiction over the

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remaining state law claims, and remand the case back to state court. As previously noted, Plaintiff
asserts federal claims for race discrimination, harassment/hostile work environment, and retaliation in
violation of Title VII and 42 U.S.C. § 1981. See ECF No. 1-1. The Magistrate Judge first found
that Plaintiff presented sufficient evidence to create an issue of fact as to whether CURC and an
affiliated entity, Atlantic Urology Clinics, LLC, constitute a single employer for the purpose of
meeting the numerosity requirement under Title VII.4 See ECF No. 53 at 9. The Magistrate Judge
then determined that Plaintiff failed to present any direct evidence of discrimination, and thus must
rely on the framework set forth in McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802 (1973).
See ECF No. 53 at 12. He found that Defendants did not challenge whether Plaintiff set forth a prima
facie case, but met their burden of setting forth a legitimate, non-discriminatory reason for
terminating her. See id. at 13. The Magistrate Judge then determined that Plaintiff failed to show
that Defendants’ proffered reasons were a mere pretext for discrimination. See id. at 14–15.
The Magistrate Judge next turned to Plaintiff’s hostile work environment claim.

The

Magistrate Judge recommends the Court grant summary judgment on this claim as well. In the R &
R, he determined that Plaintiff’s claim fails because she did not present sufficient evidence to create
an issue of fact as to whether the offending conduct was based on her race or was sufficiently severe
or pervasive enough to alter the conditions or her employment. See id. at 15–18. Finally, the
Magistrate Judge also recommends the Court grant summary judgment on Plaintiff’s retaliation
claim. He determined that Plaintiff’s retaliation claim must fail because she had not demonstrated
that she engaged in protected activity, and thus she failed to establish a prima facie case. See id. at
19–20. Furthermore, the Magistrate Judge noted that, even if she had established a prima facie case,
4

Neither party objected to this determination. Accordingly, finding no clear error, the Court adopts
this analysis as its own and will proceed to reviewing the merits of Plaintiff’s claims.
8

Defendants presented a legitimate, non-retaliatory reason for terminating her and Plaintiff’s evidence
failed to create an issue of fact as to whether Defendants’ reasons were merely pretextual. See id.
Therefore, the Magistrate Judge found that each of Plaintiff’s federal claims fail, and thus he
recommends the Court grant Defendants’ motion on these claims. The Magistrate Judge then
recommends that, if the Court dismisses the federal claims, it should decline to exercise supplemental
jurisdiction, and remand any remaining state law claims. See id. at 20–21.
Plaintiff timely filed objections to the R & R.5 See Pl.’s Objs., ECF No. 54. Plaintiff first
objects to the Magistrate Judge’s determination that she failed to present any direct evidence of racial
discrimination. See id. at 6. Plaintiff then takes issue with the Magistrate Judge’s finding that she
did not suffer disparate treatment, as she argues that she was the only black employee and other,
similarly situated white employees were treated more favorably. See id. Plaintiff also objects to the
Magistrate Judge’s finding that her hostile work environment claim fails, citing to evidence which she
argues demonstrates such an environment. See id. at 6–8. She asserts that she met both the
objective and subjective components of a hostile work environment claim. See id. at 7–8. Finally,
she argues that her retaliation claim should survive summary judgment because Defendants retaliated
against her for reporting various issues with the work environment. See id. at 9.
II.

Race Discrimination
Plaintiff asserts in her objections that she presented sufficient evidence of race discrimination

to survive summary judgment. A plaintiff may show a violation of Title VII or Section 1981 through
either direct or circumstantial evidence. The Magistrate Judge found that Plaintiff had not presented
direct evidence of race discrimination and thus was proceeding under the McDonnell Douglas
5

Plaintiff’s first few objections relate to the Magistrate Judge’s description of the factual
background. The Court previously addressed those objections supra.
9

framework. See ECF No. 53 at 12. Plaintiff objected, asserting that a remark made by Dr. Neal D.
Shore, CURC’s medical director, was direct evidence of discrimination. See ECF No. 54 at 6.
“Evidence is direct if it ‘both reflect[s] directly the alleged discriminatory attitude and . . . bear[s]
directly on the contested employment decision.’” Young v. United Parcel Serv., Inc., 707 F.3d 437,
446 (4th Cir. 2013) (quoting Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)). “Thus,
evidence is direct if it establishes discriminatory motive with no need for an inference or a
presumption.” Id. The Court agrees with the Magistrate Judge that Plaintiff’s testimony that
Harrelson told her that, after her interview, Dr. Shore made a comment that “[t]here’s only one
problem. She’s black,” see Pl. Dep., ECF No. 38-1, at 2, is not direct evidence of discrimination.
This statement had no bearing on the contested employment decision, Plaintiff’s termination, and was
merely an isolated remark unrelated to the challenged employment practice.

See Brinkley v.

Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999). This purported statement was made
after Plaintiff’s initial interview by the very person who made the decision to hire her.6 See Pl. Dep.,
ECF No. 38-1, at 2; Shore Dep., ECF No. 25-8 at 3. Accordingly, Plaintiff’s assertion that this
constitutes direct evidence of discrimination is without merit.
When direct evidence is lacking, a plaintiff may produce circumstantial evidence and proceed
under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). The McDonnell Douglas framework may be used for race discrimination

6

This statement was made by Dr. Shore immediately after Plaintiff’s interview with him and two
other individuals, nearly three years prior to Plaintiff’s termination. See Shore Dep., ECF No. 32-4
at 3. Moreover, Dr. Shore testified that this comment was made in jest, and that the sole purpose
“was to get a rise out of” the other two individuals who interviewed Plaintiff. See id. He explained
that it was “clearly a very exaggerated joke” which was “not meant to have any impact” as he was
going to hire Plaintiff. See id. He noted that he understood “how someone would not find it funny”
but that this “was the nature of [his] humor.” Id.
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claims. See, e.g., Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (“[T]he McDonnell
Douglas framework, developed for Title VII, has been used to evaluate race discrimination claims . .
. .”). Moreover, courts utilize the same test and proof scheme for Title VII and § 1981. See Gairola
v. Va. Dep’t of Gen. Servs., 753 F.2d 1281, 1285–86 (4th Cir. 1985) (applying Title VII
burden-shifting proof scheme to actions brought pursuant to § 1981). Pursuant to this framework,
once the plaintiff establishes a prima facie case of a violation of Title VII, the burden shifts to the
defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action.
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). If the defendant
meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action,
the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence “that the
neutral reasons offered by the employer ‘were not its true reasons, but were a pretext for
discrimination.’” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
1. Prima Facie Case
As the Magistrate Judge noted, Defendants did not address whether Plaintiff presented
sufficient evidence to establish a prima facie case of race discrimination. Because Defendants did
not challenge whether Plaintiff set forth a prima facie case, the Court finds no clear error with the
Magistrate Judge proceeding to the next stage of the burden shifting framework.
2. Legitimate, Non-Discriminatory Reason
The Magistrate Judge recommends the Court find that Defendants met their burden of
demonstrating a legitimate, nondiscriminatory reason for terminating Plaintiff. See Merritt v. Old
Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). Plaintiff has not addressed this

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recommendation and, finding no clear error, the Court agrees with the Magistrate Judge that
Defendant sufficiently met its burden.
3. Pretext
The only remaining issue, therefore, is pretext. The Magistrate Judge recommends the Court
find that Plaintiff failed to show that Defendants’ legitimate, non-discriminatory reasons were pretext
for discrimination. See ECF No. 53 at 13–15. Defendants asserted that they terminated Plaintiff
because she violated company policy by using her work computer for personal reasons, see Pl. Dep.
and Exhibits, ECF No. 31-9, at 2–16, interrupted Dr. Shore while he was seeing a patient, see Pl. Dep.
and Email, ECF No. 27-9 at 2–6, committed acts of insubordination by working unauthorized
overtime, see Pl. Dep. and Corrective Action, ECF No. 31-8, refused to go home on the afternoon of
January 26, 2011 after being ordered to leave, see id., and sent several emails complaining about
Harrelson, calling Harrelson a “liar” and “fool,” see Email Chain, ECF No. 26-10; Email Chain, ECF
No. 28-4.
The Magistrate Judge found Plaintiff’s argument that these reasons were mere pretext was
without merit. See ECF No. 53 at 13–15. As he explained, Plaintiff failed to provide sufficient
evidence that Harrelson’s behavior was motivated by racial animus. See id. at 13. Moreover, Dr.
Shore, not Harrelson, made the decision to terminate Plaintiff. See id. The Magistrate Judge also
explained that Plaintiff failed to present sufficient evidence establishing similarly situated employees
were treated more favorably. See id. at 13–14. Plaintiff asserted that Harrelson, a white employee,
was treated more favorably than her, but the Magistrate Judge noted Harrelson was Plaintiff’s direct
supervisor and thus was not “similarly situated.” See id. at 14. The Magistrate Judge further
explained that Plaintiff’s pretext discussion did not address all of the reasons for her termination, such

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as interrupting Dr. Shore, working unauthorized overtime, and remaining at work after being told to
leave. See id. Finally, the Magistrate Judge noted that Dr. Shore made the decision to both hire and
fire Plaintiff, meaning there was a powerful inference that he was not motivated by discrimination.
See id.
In her objections, Plaintiff again argues she was “treated differently than every other
employee in the office.” See ECF No. 54 at 5. She asserts that white employees received more
favorable treatment, and “objects to the Court’s determination that Plaintiff has presented no
information regarding similarly situated individuals. All individuals employed used their computers
for personal use.”

Id. at 5–6. She also argues that Dr. Shore’s comment, in conjunction with her

treatment and termination, is evidence of discrimination. See id. at 6.
The Court notes that in order to show pretext, Plaintiff must demonstrate Defendants’
explanation is “unworthy of credence.” See Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004).
The Court agrees with the Magistrate Judge that Plaintiff has not demonstrated Defendants’ reasons
are unworthy of credence. Plaintiff still has not made any attempt to show pretext with regard to
several of the reasons that Defendants gave for terminating her. Moreover, Plaintiff’s generalized
assertions that white employees received more favorable treatment is not sufficient to create an issue
of fact. In her memorandum opposing summary judgment, Plaintiff asserts that Harrelson engaged
in “much more aberrant behavior” but was “not disciplined for her unprofessional and inappropriate
behavior.”

See ECF No. 36 at 24–25.

As the Magistrate Judge noted, however, Plaintiff’s

supervisor is not considered a “similarly situated” employee. See Lloyd v. New Hanover Reg’l Med.
Ctr., 405 Fed. App’x 703, 705 (4th Cir. 2010) (affirming district Court’s determination that Plaintiff
failed to “show that she was similarly situated with a comparator who received less severe discipline

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from the same supervisor for essentially the same conduct”); Flateau v. S.C. Comm’n for the Blind,
50 Fed. App’x 653, 655 (4th Cir. 2002) (citing favorably Seventh Circuit case holding that “plaintiff
must demonstrate that the same supervisor was involved in comparable situations to demonstrate
disparate treatment of similarly situated employees”) (citing Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617-18 (7th Cir. 2000)).
Furthermore, Plaintiff’s objections provide no support for her assertion that “all employees”
used their computers for personal use, aside from a claim in her deposition that Harrelson sent
personal emails and kept her Facebook page open. See Pl. Aff., ECF No. 36-1 at ¶ 23. Plaintiff
does not provide any evidence indicating that other employees were not punished for their personal
use of company computers except a generalized assertion that the computer policy “was not
enforced.” See id. Therefore, the Court agrees with the Magistrate Judge that Plaintiff has failed to
meet her burden of demonstrating that Defendants’ legitimate reasons for terminating her were
pretextual. As the Fourth Circuit has explained, “a self-serving opinion . . . cannot, absent objective
corroboration, defeat summary judgment.” Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir.
2004). Accordingly, summary judgment is appropriate on the race discrimination claim.
III.

Hostile Work Environment
Plaintiff then argues that the Magistrate Judge erred in determining that she failed to establish

a hostile work environment claim. To establish a claim for a racially hostile work environment,
Plaintiff must show there is a genuine issue of material fact as to whether the offending conduct was:
(1) unwelcome, (2) based on her race, (3) sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive work environment, and (4) imputable to her employer. Freeman
v. Dal-Tile Corp., 750 F.3d 413, 420 (4th Cir. 2014) (quoting EEOC v. Cent. Wholesalers, Inc., 573

14

F.3d 167, 175 (4th Cir. 2009)). The Magistrate Judge found that Plaintiff failed to establish a
genuine issue of material fact as to whether the purported discrimination was based upon race or was
sufficiently severe or pervasive. See R & R, ECF No. 53 at 15–18. The Magistrate Judge noted
that, while Plaintiff alleged multiple incidents of harassment by Harrelson, she did not present
sufficient evidence demonstrating the harassment was in any way racially motivated. See id. at 15–
16. As the Magistrate Judge explained, the mere fact that Plaintiff was the only black employee does
not, standing alone, establish that the purported harassment was based on race. See id. at 16. The
Magistrate Judge also found Plaintiff failed to show that any white employees were treated more
favorably. See id. at 17. Finally, the Magistrate Judge determined that the alleged harassment was
not sufficiently severe or pervasive. See id.
In her objections, Plaintiff asserts the Magistrate Judge improperly determined that she had
not presented specific incidents of discrimination, as she “specifically addressed different problems
with Stacey Harrelson.” See ECF No. 54 at 6. Plaintiff argues Harrelson’s actions must be taken in
their totality, and argues that a hostile work environment claim may be shown through events
occurring over a series of days or perhaps even years. See id. at 7. She claims Defendants’ actions
clearly altered the conditions of her employment, and “a reasonable person could have seen the work
environment as objectively hostile.”

Id. at 7–8.

Plaintiff argues that, looking to all the

circumstances, Defendant subjected her to a hostile work environment. See id.
The Court notes that Plaintiff’s objections are utterly devoid of any explanation of how
Harrelson’s purported harassment was “based on race.” As the Fourth Circuit has explained, to
show that the conduct was “based upon” race, Plaintiff “must show that ‘but for’ [her] race . . . [she]
would not have been the victim of the alleged discrimination.” Gilliam v. S.C. Dep’t Of Juvenile

15

Justice, 474 F.3d 134, 142 (quoting Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998)). Plaintiff
simply has not provided any evidence that Harrelson’s purported actions would not have occurred but
for Plaintiff being black. Cf. Gilliam, 474 F.3d at 143 (finding plaintiff’s allegations that another
employee disliked her and made her job more stressful was insufficient to establish a hostile work
environment claim “absent some independent evidence of racial animosity”). Even if Harrelson
harbored some personal dislike of Plaintiff that “made her job more difficult or stressful,” a hostile
work environment claim will not survive if there is not “sufficient evidence of racial harassment.”
Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281 (4th Cir. 2002). The Court agrees with the Magistrate
Judge that Plaintiff has not presented sufficient evidence that the harassment was based on her race.
The Court also agrees with the Magistrate Judge that Plaintiff has not satisfied the
“sufficiently severe or pervasive prong.” The Fourth Circuit has explained that “[w]orkplaces are
not always harmonious locales, and even incidents that would objectively give rise to bruised or
wounded feelings will not on that account satisfy the severe or pervasive standard.” EEOC v.
Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). Clearly Plaintiff and Harrelson did not get
along, but in her objections Plaintiff does not point to any specific incidents which show severe or
pervasive harassment based on race. Rather, she simply argues that the circumstances must be taken
as a whole and, when they are, it shows the harassment was severe or pervasive. The Court finds that
the Magistrate Judge properly considered all of Plaintiff’s evidence, and considered the totality of
Plaintiff’s allegations of harassment in reaching his conclusion that it was not sufficiently severe or
pervasive. Accordingly, this objection is without merit.
Therefore, the Court agrees with the Magistrate Judge that summary judgment is appropriate
on Plaintiff’s claim for hostile work environment.

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IV.

Retaliation
Finally, Plaintiff argues that the Magistrate Judge erred in determining her retaliation claim

should be dismissed. See ECF No. 54 at 9. In the R & R, the Magistrate Judge found that Plaintiff
was proceeding under the McDonnell Douglas framework for her retaliation claim. See ECF No. 53
at 18. Plaintiff did not object to this analysis and the Court finds no clear error. Appling the
McDonnell Douglas framework, the Magistrate Judge determined that Plaintiff failed to establish a
prima facie case of retaliation because she had not shown she engaged in a protected activity. See id.
at 20. Moreover, the Magistrate Judge found that, even if she established a prima facie case, she
failed to demonstrate that Defendants’ legitimate, non-retaliatory reasons for terminating her were
merely pretextual. See id.
1. Prima Facie Case
In order to establish a prima facie case for retaliation under Title VII, a plaintiff must show the
following: “(1) she engaged in a protected activity; (2) the employer took an adverse employment
action against her; and (3) a causal connection existed between the protected activity and the asserted
adverse action.” Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 271 (4th Cir. 2011) (quoting
Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir. 2001)) (internal quotation marks omitted).
Courts have attempted to reconcile the recent holding of the United States Supreme Court in
University of Texas Southwest Medical Center v. Nassar with the McDonnell Douglas framework.
In Nassar, the Supreme Court held that in the Title VII retaliation context, a plaintiff must prove a
claim “according to traditional principles of but-for causation,” meaning she must show “the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of the
employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S. Ct. 2517, 2533 (2013). In

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other words, a plaintiff must demonstrate that “her protected activity was a but-for cause of the
alleged adverse action by the employer.” Id. at 2534. In so holding, the Supreme Court rejected the
argument that a Title VII retaliation claim could be proven according to the lessened
“motivating-factor” causation standard applicable to some status-based Title VII causes of action.
See id. at 2533-34; see also Maliik v. Sebelius, 964 F. Supp. 2d 531, 550 (D. Md. 2013) (discussing
Nassar and explaining the but-for causation standard “means that the employer would not have taken
the adverse employment action against the plaintiff if the employer were not trying to retaliate against
the plaintiff for engaging in a protected activity”). In a previous Order, this Court found that Nassar
requires a plaintiff to establish the third element of her prima facie case, the causation element,
pursuant to the but-for standard. See Askins v. Belissary, No. 4:12-cv-1856-RBH, 2014 WL 507279,
at *5 (D.S.C. Feb. 6, 2014), aff’d 564 Fed. App’x 46, 47 (4th Cir. 2014). However, other courts have
applied the Nassar “but-for” requirement to the pretext stage. See e.g., Ferguson v. Waffle House,
Inc., __ F. Supp. 2d __, 2014 WL 1870785, at *18 (D.S.C. May 8, 2014) (“In order to show pretext,
Plaintiff must show that ‘but for’ the Defendant’s intent to retaliate against him because of his having
engaged in protected activity, he would not have been subjected to the employment actions at
issue.”); Cason v. S.C. State Ports Auth., No. 2:11-cv-2241-RMG, 2014 WL 588065, at *4 (D.S.C.
Feb. 14, 2014) (“[I]n contrast to Plaintiffs’ prima facie case, Nassar does effect the Court’s pretext
analysis.”).
The Magistrate Judge found that Plaintiff failed to show she engaged in any protected activity.
As he explained, protected activity consists of “complaints of discrimination based upon ‘race, color,
religion, sex or national origin.’” Landino v. Sapp, 520 Fed. App’x 195, 198 (4th Cir. 2013) (quoting
Balazs v. Liebenthal, 32 F.3d 151, 159 (4th Cir. 1994)). “Making general workplace complaints,

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[however], is not protected activity.” Albero v. City of Salisbury, 422 F. Supp. 2d 549, 560 n.43 (D.
Md. 2006). The Magistrate Judge found that while Plaintiff made general complaints against
Harrelson, she never complained of discrimination based on her race or other protected classification.
See ECF No. 53 at 19. Plaintiff did assert that in October 2008 she overheard two race-related
comments made by her coworkers. See Pl. Aff. Ex. 3, ECF No. 36-4 at 1. She stated that she
reported these comments to Harrelson in “late summer or fall 2009.” Pl.’s Dep., ECF No. 38-1 at 2–
3. The Magistrate Judge found, however, Plaintiff had not shown that this complaint was causally
connected to her termination, which occurred approximately a year and a half later.

As the

Magistrate Judge explained, the passage of time tends to negate any inference of a causal connection.
See Clark Cnty. Sch. Dist. v. Breeden, 532 U .S. 268, 273–74 (2001) (noting that temporal proximity
must be “very close” to infer causality at prima facie stage) (citing Richmond v. ONEOK, Inc., 120
F.3d 205, 209 (10th Cir. 1997) (three month period insufficient to prove causal connection); Hughes
v. Derwinski, 967 F.2d 1168, 1174–1175 (7th Cir. 1992) (four month period insufficient)).
Plaintiff objects, asserting that the January 26, 2011 complaint about Harrelson was not her
only complaint, and noting she made other complaints “regarding the harassment of Stacey
Harrelson.” See ECF No. 54 at 9. Plaintiff argues that she reported to Michael Asbill that she felt
like she was being harassed by Harrelson and requested his advice about what to do. See id. She
asserts Asbill told her she needed to go to Dr. Shore, and that she reported anxiety caused by the work
environment to Dr. Shore. See id. Plaintiff asserts that he never did anything about it though. See
id.
Yet again, Plaintiff continues to assert that she was harassed by Harrelson and that she
reported the harassment. And yet again the Court must note that mere harassment is insufficient if it

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was not due to Plaintiff’s status as a member of a protected class. Plaintiff simply has not shown that
she ever complained of any discrimination by Harrelson which was based upon Plaintiff’s race, color,
sex, or national origin. Therefore, she has failed to demonstrate that she engaged in protected
activity. Moreover, Plaintiff’s objections do not even attempt to address the Magistrate Judge’s
analysis regarding a causal connection. Therefore, the Court agrees with the Magistrate Judge that
she has failed to establish a prima facie case.

Applying Nassar, Plaintiff certainly has not

established that “but for” Defendants’ discriminatory motive she would not have been terminated.
2. Legitimate, Non-Retaliatory Reason
The Magistrate Judge then recommends the Court find that, even if Plaintiff set forth a prima
facie case, Defendants met their burden of demonstrating a legitimate, nondiscriminatory reason for
their employment action. See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th
Cir. 2010). Plaintiff has not addressed this recommendation and, finding no clear error, the Court
agrees with the Magistrate Judge that Defendants sufficiently met their burden.
3. Pretext
If Defendants articulate a legitimate, non-retaliatory reason for their action, Plaintiff then
bears the final burden of proving that the reason given by Defendants was a pretext for unlawful
retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In Reeves, the
Supreme Court clarified a plaintiff’s burden to show pretext once the employer articulates a
legitimate reason for its adverse action. The Court held that a “plaintiff may attempt to establish that
he was the victim of intentional discrimination ‘by showing that the employer’s proffered explanation
is unworthy of credence.’” Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 256). “The
ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer’s

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proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the
plaintiff’s proffered reason . . . is correct.’” Reeves, 50 U.S. at 146–47 (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 524 (1993)). “Certainly there will be instances where, although the
plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s
explanation, no rational factfinder could conclude that the action was discriminatory.” Reeves, 530
U.S. at 148.
The Magistrate Judge determined that Plaintiff failed to show that Defendants’ legitimate,
non-retaliatory reasons for terminating her were pretextual.

Plaintiff does not address this

determination aside from her general objection to the Magistrate Judge’s recommendation that
summary judgment be granted on the retaliation claim. After a thorough review of the record, the
Court agrees with the Magistrate Judge that Plaintiff has failed to meet her burden of showing pretext.
At the pretext stage Plaintiff undoubtedly must show that retaliation was the motivating factor behind
her termination. See Nassar, 133 S. Ct. 2517, 2533 (Plaintiff must prove a retaliation claim
“according to the traditional principles of but-for causation,” meaning she must show “the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of the
employer.”). It is not necessary for the Court to decide whether Defendants’ reasons were wise, fair,
or even correct, ultimately, so long as it truly was the reason for the decision. Hawkins v. PepsiCo,
Inc., 203 F.3d 274, 279 (4th Cir. 2000). Plaintiff has not presented sufficient evidence to create a
genuine issue of material fact as to whether Defendants’ reasons were false or that discrimination was
the real reason for her termination.
After review of the evidence, the Court agrees with the Magistrate Judge that Plaintiff’s
retaliation claim fails.

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V.

State Law Claims
Plaintiff does not object to the Magistrate Judge’s recommendation that, in the event the

federal claims are dismissed, the Court decline to retain jurisdiction over Plaintiff’s state law claims.
See ECF No. 53 at 20–21. As the Fourth Circuit has explained, “trial courts enjoy wide latitude in
determining whether or not to retain jurisdiction over state claims when all federal claims have been
extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Finding no clear error with
this recommendation, the Court adopts it as its own and declines to retain jurisdiction over the state
law claims.
CONCLUSION
The Court has thoroughly reviewed the entire record, including Defendants’ Motion for
Summary Judgment, Plaintiff’s Response in Opposition, Defendants’ reply to Plaintiff’s response,
the R & R, and Plaintiff’s objections to the R & R, and Defendants’ reply to Plaintiff’s objections.
For the reasons stated above and by the Magistrate Judge, the Court hereby overrules Plaintiff's
objections and adopts the Magistrate Judge’s R & R, as modified.
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment is
GRANTED as to Plaintiff’s Title VII and § 1981 federal law claims.

IT IS FURTHER

ORDERED that the Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining
state law claims for international infliction of emotional distress and defamation. This action is
REMANDED to the Horry County Court of Common Pleas for further proceedings regarding
Plaintiff’s remaining causes of action.

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IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
September 24, 2014

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