Stewart v. American Credit Acceptance LLC
ORDER RULING ON REPORT AND RECOMMENDATION granting 56 Motion for Summary Judgment, filed by American Credit Acceptance LLC; adopting 66 Report and Recommendation. Signed by Honorable Bruce Howe Hendricks on 9/25/17. (alew, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Helwig A. Stewart,
American Credit Acceptance, LLC,
Civil Action No. 7:15-4208
This matter is before the Court upon Plaintiff Helwig A. Stewart’s (“Plaintiff” or
“Stewart”) complaint alleging a claim of racial discrimination in violation of 42 U.S.C. § 1981
and a state law claim for libel or slander per se. On November 7, 2016, Defendant
American Credit Acceptance, LLC (“Defendant” or “ACA”) filed a motion for summary
judgment. Plaintiff filed a response in opposition to Defendant’s motion, and Defendant
filed a reply.
The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(g), D.S.C. On July 25, 2017,
Magistrate Judge Kevin F. McDonald issued a report and recommendation (“Report”),
outlining the issues and recommending that the Court grant Defendant’s motion for
summary judgment. After being granted an extension of time, Plaintiff filed objections to
the Report, and after being granted an extension of time, Defendant filed a reply to
STANDARDS OF REVIEW
The Magistrate Judge’s Report
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight.
The responsibility for making a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). 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 Judge or may
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
The Court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
In the absence of a timely filed, specific objection, the Magistrate Judge’s
conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
A court shall grant summary judgment if a party shows that there is no genuine
dispute as to any material fact and the party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). The judge is not to weigh the evidence, but rather to determine if there
is a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If
no material factual disputes remain, then summary judgment should be granted against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which the party bears the burden of proof. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence should be viewed in the light most
favorable to the non-moving party. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121,
123-24 (4th Cir. 1990).
In his written objections, Plaintiff first objects to the Magistrate Judge’s recitation of
the facts and asserts that the Magistrate Judge failed to consider the facts in the light most
favorable to him. Next, Plaintiff objects to the Magistrate Judge’s legal conclusions. The
Court will consider both Plaintiff’s factual objections and his legal objections below.
Plaintiff’s Factual Objections
In the Report, the Magistrate Judge included a detailed, 15-page explanation of the
facts presented. As the Magistrate Judge noted, Defendant hired Plaintiff, who is a black
male of Jamaican origin, on April 1, 2013, to work as Portfolio Reporting Manager for
Spartan Financial, a division of ACA. About two months later, Plaintiff’s supervisor, Mark
VanGeison, informed Plaintiff that there was a problem at ACA in the Collections
Department, and that Plaintiff’s name had come up as someone who could help. The next
day, Curt Sidden, Chief Executive Officer (“CEO”) of ACA, met with Plaintiff and told him,
“I want you to go over there and improve communication, fix the processes, and look at
ways you can improve what they are doing.” (ECF No. 59-2 at 40.)
Chris Shelley, ACA’s Director of Servicing at the time, had been interviewing
candidates for a new position, Collections Manager. Mr. VanGeison, Mr. Sidden, and Tom
Holgate, Chief Operating Officer of ACA, asked Mr. Shelley to interview Plaintiff for the
position. Mr. Shelley interviewed Plaintiff, and Mr. Shelley testified that he believed
Plaintiff’s position was being eliminated but that ACA wanted to retain Plaintiff as an
employee because it believed he had good vision and values. According to Mr. Shelley,
Plaintiff was “good with people, good with processes, good with the core business.” (ECF
No. 56-3 at 49.)
ACA sent Plaintiff an offer letter for the Collections Manager position on June 20,
2014, and Plaintiff accepted the position. Plaintiff asserts that he informed Mr. Shelley that
he was concerned about working in an area where he did not understand the process.
Plaintiff began employment as Collections Manager on July 14, 2014. The position
reported directly to Mr. Shelley but was only three levels of management below the CEO.
Plaintiff was responsible for managing multiple departments, supervisors, team leaders,
and approximately 30 to 40 employees.
On Plaintiff’s first day, Mr. Shelley met with Plaintiff to discuss his expectations for
Plaintiff’s performance. According to Mr. Shelley, he expected Plaintiff to “run it like you
own it” and to manage the department with little supervision. (Id. at 54-55.) Plaintiff,
however, hoped to have more interaction with and direction from Mr. Shelley. According
to Plaintiff, he and Mr. Shelley interacted at least one time per day, but the interactions
were primarily meetings and were not about the actual job. According to Mr. Shelley, he
and Plaintiff regularly interacted.
Mr. Shelley was dissatisfied with Plaintiff’s performance as Collections Manager in
the first ninety days and documented performance issues on August 15; September 2, 18,
and 22; and October 9, 2014. Mr. Shelley, at Plaintiff’s request, met with Plaintiff on
October 10, 2014, to review his performance and Mr. Shelley’s expectations. On October
15, 2014, Mr. Shelley noted another performance issue, and he sent a summary of the
issues to Sharon Ponder, ACA’s Human Resources Business Partner.
informed Ms. Ponder that he believed Plaintiff had been moved into a role that was more
difficult than his previous position and recommended that “given his lack of performance
in Spartan where he was set to be laid off, . . . we continue with the initial layoff and
(ECF No. 56-3 at 50.)
Mr. Shelley also discussed his
recommendation with Mr. Holgate, and Mr. Holgate elevated these concerns to the CEO,
Mr. Sidden. Mr. Sidden reviewed the request and told Mr. Shelley to spend more time
coaching and developing Plaintiff and to give him more time to succeed.
In paragraphs one through three of his objections, Plaintiff asserts that his testimony
contradicts the narrative both that Plaintiff was to be laid off at the time of his transfer to
Collections Manager and that Chris Shelley had anything to do with his hiring. Plaintiff also
asserts that the Magistrate Judge’s factual recitation “unfairly gives the impression that Mr.
Shelley did not take issue with Plaintiff from the beginning, which is drawing a directly
contested inference in favor of Defendant.” (ECF No. 70 at 2.) Plaintiff asserts that Mr.
Shelley did not ease him into the job or allow him to build his skills, and Plaintiff asserts that
he testified extensively about the lack of interaction with and support from Mr. Shelley.
Likewise, Plaintiff asserts that the paragraph about Mr. Shelley’s characterization of
Plaintiff’s performance issues “skews the evidence in Defendant’s favor and totally ignores
all parts of the record that are favorable to Plaintiff.” (Id.)
Although Plaintiff challenges the Magistrate Judge’s depiction of the facts, nowhere
does he cite to his own testimony or other evidence to contradict the Report. In addition,
although Plaintiff contends that Mr. Shelley took issue with him from the beginning and that
Mr. Shelley did not ease him into the job, this fact is actually apparent from the Magistrate
Judge’s Report. As previously mentioned, the Magistrate Judge noted that Plaintiff hoped
to have more interaction with Mr. Shelley, and that Mr. Shelley took issue with Plaintiff’s
performance within the first ninety days of his employment as Collections Manager.
Likewise, Plaintiff asserts that Mr. Shelley’s attempt to have Plaintiff fired was rejected
because ACA’s CEO determined that Plaintiff needed more time to develop.
Magistrate Judge specifically noted that Mr. Sidden reviewed Mr. Shelley’s complaints
about Plaintiff (and Mr. Shelley’s desire to have Plaintiff laid off) and told Mr. Shelley to
spend more time coaching and developing Plaintiff and to give him more time to succeed.
Finally, to the extent Plaintiff disputes the testimony of those involved in hiring Plaintiff, the
Court agrees with Defendant that because Plaintiff was not involved in those discussions,
he cannot rely on his own testimony to dispute that evidence. Overall, the Court finds no
merit to Plaintiff’s objections in paragraphs one through three.
The Magistrate Judge’s recitation of the facts continues as follows: Plaintiff testified
that when he was out of sick leave, Mr. Shelley made arrangements for him to move to the
Titles Department without consulting him, and that when he returned from sick leave, the
Manager of the Titles Department came to him and told him that there were problems in
that department and that he wanted Plaintiff to fix them. Plaintiff went to Mr. Sidden, who
told him to stay in his current position and that “no one is going to make you change until
I say that.” (ECF No. 59-2 at 71.) Ms. Ponder testified that Mr. Shelley and Mr. Holgate
were “considering” moving Plaintiff to the Titles Department at some point and that Mr.
Shelley mentioned it “in passing.” (ECF No. 60-2 at 26.)
The record indicates that Plaintiff had established a good relationship with Mr.
Sidden, who is white, and Plaintiff testified that there was nothing that would make him
think that Mr. Sidden would let race be a factor in his decisions. (ECF No. 56-2 at 36-37.)
On December 18, 2014, Plaintiff won the Goldman Award, which recognizes “an
associate who exemplifies: a strong sense of community, determination towards excellence
and teamwork, a foundation of respect and integrity, [and] commitment to customer
service.” (ECF No. 60-7.) According to Mr. Shelley, the award recognizes “the top one or
two people within the company each year for their outstanding community service, great
attitude and things of that nature.” (ECF No. 59-4 at 108.)
On January 19, 2015, Mr. Shelley issued Plaintiff’s first annual performance
evaluation, which included Plaintiff’s work in the Spartan Division as well as his work as
Collections Manager. According to Mr. Shelley, he spoke with Mr. VanGeison, Plaintiff’s
supervisor at Spartan, who stated that Plaintiff “was great organizationally and had good
management skills,” but that he “struggled in the group from a technical perspective.” (ECF
No. 56-3 at 35-36.) Mr. Shelley noted that Plaintiff had moved from Spartan into his current
position mid-year, and that it was a position in which Plaintiff “had no previous experience,
resulting in a progressive learning environment managing supervisors rather than individual
contributors.” (ECF No. 56-3, Ex. 1.) Mr. Shelley rated Plaintiff as “partially meets
expectations” in certain performance factors in the areas of “job knowledge & development”
and “productivity & quality.” (Id.) In the areas of “communication & teamwork,” “customer
service (external and internal),” and “leadership & associate engagement,” Mr. Shelley
gave Plaintiff the highest possible rating of “greatly exceeds expectations.” (Id.) Mr.
Shelley highlighted the fact that Plaintiff had an outgoing and friendly personality and an
ability to motivate his employees, which Mr. Shelley stated helped offset the fact that this
was one of his own weaknesses. (Id. at 39.) In an area entitled “communication &
teamwork - builds and maintains effective working relationships,” Mr. Shelley commented,
“Performance is good in this area, ensure employee confidentiality is maintained to
maintain trust with associates at all levels.” (Id. Ex. 1.) Mr. Shelley testified that this
comment was in reference to an incident where he counseled Plaintiff about not sharing
confidential information regarding his subordinate employees. (Id. at 31-35.) Specifically,
Mr. Shelley testified that Plaintiff had a disagreement with a subordinate, Ashley Rhone,
and that Ms. Rhone became upset with Plaintiff. Ms. Rhone’s co-workers overheard her
yelling and Plaintiff told Ms. Rhone’s co-workers why she was upset. (ECF No 56-2.)
Plaintiff explained what had happened to Mr. Shelley, who brought Plaintiff and Ms. Rhone
into his office to talk about it. Ms. Rhone complained to Mr. Shelley that Plaintiff had been
making negative comments about her performance and her work ethic to her co-workers.
(ECF No. 56-3.) According to Mr. Shelley, after Ms. Rhone left the meeting, Mr. Shelley
counseled Plaintiff on the importance of not discussing confidential employee issues with
his subordinate, non-management employees. (Id. at 33-35.)
In paragraph four of his objections, Plaintiff takes issue with the Magistrate Judge’s
depiction of the Ashley Rhone incident, and he asserts that he was not formally counseled
or disciplined regarding the incident. (ECF No. 70 at 3.) Plaintiff asserts that the Rhone
incident was “an after-the-fact attempt to justify jumping over several steps in the
progressive discipline policy.” (Id.)
Here, although the Magistrate Judge referred to Mr. Shelley’s testimony where Mr.
Shelley indicated he “counseled” Plaintiff on the importance of not discussing confidential
employee information, the Magistrate Judge did not find that Plaintiff was formally
counseled or disciplined. In addition, the Magistrate Judge also cited Plaintiff’s deposition
when discussing the Ashley Rhone incident and discussed both the negative and the
positive portions of Plaintiff’s first performance evaluation. Ultimately, the Court does not
agree with Plaintiff that the Magistrate Judge somehow skewed the evidence unfairly.
The Magistrate Judge’s outline of the facts continues as follows: According to
Plaintiff’s testimony, during his evaluation Mr. Shelley told him, “I cannot understand you.
I cannot understand the way you talk.” (ECF No. 59-2 at 57.) When Plaintiff asked why
Mr. Shelley could not understand him, Mr. Shelley responded, “Because you have a third
Plaintiff further testified that, on another occasion, they were
discussing Barbados because Mr. Shelley was trying to go there, and Mr. Shelley stated,
“I don’t think I’ll survive there around those coons.” (Id. at 59.) Plaintiff testified that
another time Mr. Shelley stated that an African-American female employee’s tattoos looked
like “jailhouse tattoos.” (Id. at 59.) According to Plaintiff, Mr. Shelley once asked him why
he was hiring so many black people. (Id. at 62.) Plaintiff responded that he was hiring the
best people he could, and Plaintiff stated that Mr. Shelley had the final say in who was
hired. Plaintiff testified that on another occasion a man with albinism interviewed for a
position, and Mr. Shelley stated, “I’m interviewing for someone to be our bitch. . . . [B]ut I
wouldn’t hire that guy. I mean, look at him. He is an albino.” (Id. at 189.)
On March 24, 2015, Ms. Rhone informed Ms. Ponder that Plaintiff told her about a
situation where three of Ms. Rhone’s co-workers had come to Plaintiff because they heard
from someone outside the workplace that they were going to be fired. Ms. Rhone stated
that Plaintiff told her that one of those co-workers, Vanessa Scott, was manipulative. Ms.
Rhone felt that Plaintiff behaved inappropriately by discussing with her the conversation he
had with her three co-workers. Ms. Ponder spoke with two of the three co-workers, Ms.
Scott and Lea Burnett, and documented her investigation. According to Ms. Ponder,
Plaintiff’s conduct was inappropriate because employee concerns communicated to
management were supposed to be kept confidential. (ECF No. 56-4 at 33-34.) Because
Plaintiff had previously been counseled on employee confidentiality, Ms. Ponder decided
to elevate this incident to a final written warning. (Id. at 38-39.)
Ms. Ponder testified that she handled the investigation because Ms. Rhone and Ms.
Scott had come to her, and after she decided what action was needed, she talked to Mr.
Shelley, who agreed with the recommendation of a final warning and signed it. (Id.) Ms.
Ponder further testified that she told Mr. Shelley she would like for him to present the
warning to Plaintiff as his supervisor and she would sit in on the presentation. (Id.) On
March 26, 2015, the final written warning was presented to Plaintiff, and Ms. Ponder
testified that, during the presentation of the final warning, Plaintiff admitted telling Ms.
Rhone about the meeting he had with her three co-workers, but he denied calling Ms. Scott
manipulative. (Id. at 34, 52.) The final written warning states in pertinent part, under
“reason for warning” that “Employee confidentiality was addressed in your performance
appraisal on 1/19/2015.” (Id. Ex. 2.)
The final written warning also references that Plaintiff “was coached in December
2014 regarding risk in giving your associates rides home which could result in the
perception of favoritism as well as additional liability.” (Id.) Plaintiff testified that an
associate, Fannita Harris, did not have a car and that she found out that Plaintiff drove by
her house on his way home. (ECF No. 59-2 at 74-75.) Plaintiff had requested that
employees work overtime, and Ms. Harris went to Plaintiff and asked if he would give her
a ride home so she could work overtime. (Id.) Plaintiff did not think there was anything
wrong with it, and he gave her a ride home a couple of nights. (Id.) On one occasion, Ms.
Harris was crying and told Plaintiff she did not have any money for food and her child was
hungry. Plaintiff paid for some food for her because he felt sorry for her. When Plaintiff
mentioned the situation to a friend who worked in Human Resources, the friend told Plaintiff
he should not give Ms. Harris rides. Plaintiff then told Ms. Harris that he could no longer
give her rides. (Id.)
In April of 2015, Vanessa Scott resigned. Ms. Scott completed the company's exit
interview form, and Ms. Ponder conducted an exit interview with her. In the interview, Ms.
Scott alleged that Plaintiff acted unprofessionally as a manager and that he flirted with
female employees and said vulgar things. She said that Plaintiff told her that he and his
wife slept in separate beds and that he “danced with an old friend” and “his penis got hard.”
She also said that Plaintiff made an inappropriate comment to her and Lea Burnett about
a woman's backside and tight pants during a fire drill. (ECF No. 56-4 at 52, Ex. 4; ECF No.
56-6 at 156-59, Ex. 7.)
Based on Ms. Scott's allegations, Ms. Ponder interviewed Ms. Burnett who
confirmed that she heard Plaintiff whisper to Ms. Scott during a fire drill, “boy look at her
butt in those pants,” and that she observed Plaintiff staring at a woman’s “backside” on
another occasion. (ECF No. 56-2, Ex. 6; ECF No. 56-4 at 65, 74, Ex. 5.) According to Ms.
Scott, Plaintiff regularly made these types of comments. (ECF No. 56-6 at 157-58.)
Plaintiff does not dispute that Ms. Scott and Ms. Burnett provided this information to
Defendant; however, he does dispute whether the information is true. (ECF No. 56-2 at
Mr. Shelley was not involved in Ms. Scott’s exit interview, the subsequent
investigation, or any decisions on how to respond. (ECF No. 56-3 at 82-83, 92; ECF No.
56-4 at 72-73.) Ms. Ponder testified that Vice President of Human Resources, Andrea
Forino, told her to pull emails between Ms. Scott and Plaintiff to find out if they could
confirm any of Ms. Scott’s allegations, but nothing was found in the emails. (ECF No. 60-2
at 69-70). Todd Trawick, Mr. Shelley’s supervisor and current COO of ACA, and Ms.
Forino reviewed the allegations of Ms. Scott and Ms. Burnett and then met with Plaintiff.
(ECF No. 56-4 at 71-73; ECF No. 56-3 at 92; ECF No. 56-7 ¶ 3.) Plaintiff denied making
the alleged comments. (ECF No. 56-2 at 96-97.) Ms. Forino informed Plaintiff that this was
his last chance and that any other confirmed misconduct would result in his termination.
(Id.; ECF No. 56-7 ¶ 3.) Plaintiff did not receive a written warning or any other documented
discipline related to the reports of Ms. Scott and Ms. Burnett, and according to Mr. Trawick,
he and Ms. Forino “decided to give [Plaintiff] the benefit of the doubt and not issue any
discipline,” but they informed Plaintiff “that he was being given one last chance and that any
other confirmed behavior issues would result in termination of his employment.” (ECF No.
56-7 ¶ 3.) Plaintiff understood that he “would have to be a tightrope walker” and that if he
did anything inappropriate it could cost him his job. (ECF No. 56-2 at 97-100.) Plaintiff told
one of his subordinate employees that he was on his “last strike.” (ECF No. 56-8 at 70.)
In her exit interview and form, Ms. Scott also alleged that she “heard racist talk” from
her former supervisor, Angela Preuter, who is a white female. Specifically, she alleged that
she overheard Ms. Preuter talk about a “black girl who got drunk and knocked on a guy’s
door” and was shot through the door, saying the girl got what she deserved. She also
claimed that Ms. Preuter stated that the “character of Satan looked like Obama, and she
always had something to say about Obama’s law & his appearance.” (ECF No. 56-4 at 34,
Ex. 4.) Ms. Ponder testified that she talked with Mr. Shelley and that he had a conversation
with Ms. Preuter regarding making comments on the floor that were inappropriate. (ECF
No. 60-2 at 61-62.) Ms. Ponder did not investigate the other complaints regarding Ms.
In paragraphs five and six of his objections, Plaintiff contends that the Magistrate
Judge unfairly described the incident for which Plaintiff received a final warning. (ECF No.
70 at 3.) Plaintiff contends that the evidence developed during discovery was not clear
about why Plaintiff received a final warning. Importantly, however, Plaintiff points to no
contradictory evidence. In any event, Plaintiff contends that the Magistrate Judge accepted
Ms. Ponder’s version of the events and portrayed her testimony in the light most favorable
to Defendant. While the Court does not agree with Plaintiff’s assessment because it
appears that the Magistrate Judge simply outlined Ms. Ponder’s testimony, the fact remains
that Plaintiff has not alleged that Ms. Ponder had any discriminatory animus. Thus, the fact
that he disagrees with her version of the events is not relevant.
Moreover, the Court does not agree with Plaintiff that the Magistrate Judge afforded
too much weight to the comments Ms. Scott made about Plaintiff during her exit interview.
Rather, the Magistrate Judge simply outlined the specific complaints Ms. Scott made about
Plaintiff and indicated that Plaintiff denied engaging in the conduct complained of by Ms.
Scott. The Court finds Plaintiff’s objections in paragraphs five and six without merit.
The Magistrate Judge’s outline of the facts continues as follows: On April 24, 2015,
Brenda Massaquoi, who is African-American and one of Plaintiff’s subordinates, went to
Ms. Ponder and complained that her supervisor, Ms. Preuter, had denied her request for
time off. (ECF No. 60-2 at 87-94.) Ms. Massaquoi stated that Ms. Preuter was a racist.
(Id. at 91.) During the meeting, Ms. Massaquoi also reported to Ms. Ponder that there were
rumors that Plaintiff was “sleeping with” one of his female subordinates. She reported that
Plaintiff talked to this subordinate all the time; that he was in this subordinate’s office all the
time; that he went to lunch with her and took her to pick up her car; and that there was a
rumor that he paid her rent. She reported that he also may have an inappropriate
relationship with another female subordinate. (ECF No. 56-2, Ex. 7.) Ms. Ponder sent Ms.
Forino an email regarding Ms. Massaquoi’s statements. (Id.)
Based on the report from Ms. Ponder, Ms. Forino approved the review of Plaintiff's
work email account. (ECF No. 56-9 ¶ 6.) Ms. Ponder conducted this review and did not
inform Mr. Shelley prior to the review. Ms. Ponder's review of Plaintiff's emails revealed
the following communications between Plaintiff and two subordinate female employees:
E-mails with Lakendra Wallace
1. 1/22/15 - No Subject
Plaintiff - So you going on a cruise with me?
Plaintiff - Stop playing . . . I am serious
Wallace - *lol
Plaintiff - What does that mean? You scared of Shawn? [referring to Ms.
Wallace - I told you yes. No I'm not scared.
2. 1/28/15 - Subject “2/2"
Plaintiff- It's your birthday? What do you want from me?
Wallace-Thank you. Yes it is. I want a million dollars! Lol . . .
Seriously, I don't ask for much, Helwig. A card, balloon or lunch will be fine.
Plaintiff- Ok . . . you can have whatever you want . . . minus the $1MM
3. 2/2/15 - Subject "Happy Birthday and Doughnuts"
Plaintiff - What did you get for your birthday? When do you want my
Wallace - I had a mini vacay this weekend at Embassy Suites in NC, money
and necklace. You didn't get me anything.
4. 3/23/15- Subject "hey"
Plaintiff - I thought about you this weekend. Something you said.
Wallace - I hope you feel better. My weekend could've been longer.
Plaintiff - Mine too. But it is a good thing . . . I get to see you.
5. 4/13/15- Subject "Not me"
Plaintiff - Why were you upset? I was upset this weekend, waiting for you to
Wallace - *lol, That is so funny! I was a little upset too.
Plaintiff - You send the email to someone else. Not me. Hmmm . . . I
(ECF No. 56-2, Ex. 9.)
E-mails with Katisha Gill
1. 11/18/14 - Subject "expression"
Gill - Are you okay?
Plaintiff - What time are you leaving? I am so mad ...... .
Gill - At 7PM I see your frustration on your face .
Plaintiff - Sorry to show my frustrations like that but these folks are pissing
me off. Too much Chiefs and not enough Indians.
Gill - I've been saying that since I have been on this team. Now I see that
this is across the board.
2. 12/5/14- Subject "What are you doing for lunch?"
Plaintiff sent with subject only.
Gill - I apologize for my tardiness of responding. I'm going to get
Plaintiff - Ok . . . no lunch for you . . . (speaking in the Soup Nazi guys voice)
Gill- That's not nice, but it could be nice if you go get and then we eat in the
back like the other day.
3. 12/9/14 - Subject "LUNCH"
Gill - What you doing for lunch?
Plaintiff - Nothing . . . what do you want to do?
Gill - I don't know. I was thinking Mexican. Do u have coupon?
Plaintiff- Yes I do . . . Monterey's. Have to pick up your daughter today?
Gill - No that's why I asked about lunch?
Plaintiff- Ok missy . . . . . when do you want to go?
Gill - We need a 3rd person for nothing will be said you think?
4. 12/29/14 - Subject “Ashley Rhone's behavior.”
The plaintiff forwarded Ms. Gill e-mails from Human Resources about the
discipline and issuance of a written warning to his subordinate Ashley Rhone.
He then referred to Ms. Rhone as rude and disrespectful and that he did not
want her on his team.
5. 12/10/14 - Subject “Gift for you.”
Plaintiff - Brought two miniature bananas for you.
Gill - I rather not have banana today. I had enough last night. smile
Plaintiff - I know you did.
Gill - Will if you say so . . . so u enjoy the little bananas. .
Plaintiff - You wish!!!!
Gill - Ha ha . . it’s okay your secret is safe with me. .
Plaintiff - I will hold my comments . . . know the medium I am using.
Gill - Well. Enjoy your afternoon.
(ECF No. 56-2, Ex. 10).
Plaintiff testified that he was joking about going on a cruise with Ms. Wallace and
that the conversation with Ms. Gill regarding “little bananas” was not sexual on his part, and
he doubted it was sexual on her part. (ECF No. 56-2 at 131-33, 155-58.)
Ms. Ponder provided a copy of these emails to Ms. Forino. (ECF No. 56-9 ¶ 7; ECF
No. 56-4 at 100-01.). Ms. Forino reviewed the emails and determined that Plaintiff had
improper communications with his subordinates.
(ECF No. 56-9 ¶ 7.)
recommended terminating Plaintiff's employment that day.
In an email to Ms. Ponder and Mr. Trawick, Ms. Forino stated that she did not
believe it was necessary to interview the subordinate female associates with whom Plaintiff
had emailed because she thought the emails were sufficient objective evidence to show
that Plaintiff had engaged in conduct unbecoming a manager. (Id.; ECF No. 56-2, Ex. 11.)
Ms. Forino requested and received approval from Mr. Trawick to proceed with termination
that day. According to Mr. Trawick, he considered the emails “to constitute serious
misconduct.” (ECF No. 56-7 ¶ 4.)
Ms. Forino testified that, at the time of Plaintiff's termination, she was not aware of
any complaints by Plaintiff regarding Mr. Shelley, and Mr. Shelley was not involved in the
decision to terminate Plaintiff’s employment. (ECF No. 56-9 ¶ 8.) Ms. Forino, Mr. Trawick,
Ms. Ponder, and Mr. Shelley all testified that Mr. Shelley was not in any way involved in the
decision to terminate Plaintiff. (Id.; ECF No. 56-4 at 104; ECF No. 56-3 at 93; ECF No.
56-7 ¶ 6.) Mr. Shelley was not informed of the matter until the day of Plaintiff's termination
when he was told about the emails and was told to terminate Plaintiff for conduct
unbecoming a manager. (ECF No. 56-3 at 93; ECF No. 63-3 at 96; ECF No. 56-7 ¶ 6.)
Plaintiff was told he was being terminated for engaging in conduct unbecoming a manager.
(ECF No. 56-2 at 163.)
In paragraph seven of his objections, Plaintiff asserts that the Magistrate Judge
misconstrued the evidence regarding Ms. Massaquoi and that the Magistrate Judge “did
not provide any context reflecting the absurdity of taking adverse employment action
against Plaintiff based on Ms. Massaquoi’s complaints.” (ECF No. 70 at 3.) Plaintiff
asserts that the Magistrate Judge failed to include a description of Ms. Massaquoi’s “tirade
in which she accused Greg Evans, a white supervisor, of “treating [her] like a slave.” (Id.)
Plaintiff contends that neither Mr. Evans nor Ms. Preuter was investigated based on Ms.
Massaquoi’s allegations of racism and that he was the only one investigated.
Next, in paragraphs eight and nine of this objections, Plaintiff contends that the
Magistrate Judge’s discussion of his emails was “unfairly slanted negatively towards
Plaintiff” and that the emails themselves are not objectively inappropriate. (Id.) Plaintiff
contends that the Magistrate Judge’s analysis failed to provide context for Plaintiff’s
gregarious personality, and that the Magistrate Judge’s recitation of the facts leaves out
“anything potentially favorable to Plaintiff.”
After review, the Court finds Plaintiff’s objections in paragraphs seven, eight, and
nine without merit. The Court finds no error in the Magistrate Judge’s explanation of the
incident involving Ms. Massaquoi. The Magistrate Judge explained Ms. Massaquoi’s
specific complaints regarding Plaintiff, and contrary to Plaintiff’s assertion, the Magistrate
Judge did include the fact that Ms. Massaquoi called Ms. Preuter was a racist. It does not
appear that the Magistrate Judge drew negative inferences against Plaintiff in outlining
these facts; rather, a review of the Magistrate Judge’s report indicates that he simply
outlined the sequence of events as indicated by the testimony. The evidence indicates that
Ms. Massaquoi raised specific issues about Plaintiff and others, and Defendant ultimately
investigated whether Plaintiff was having any inappropriate relationships with his
subordinates and discovered what Defendant considered to be inappropriate emails.
Although Plaintiff asserts that “the portrayal of the disciplinary incidents leading to Plaintiff’s
termination, in particular, gives no frame of reference for reality,” nowhere does Plaintiff cite
to any specific evidence that portrays another reality. (ECF No. 70 at 4.) Overall, the Court
finds Plaintiff’s factual objections without merit.
Plaintiff’s Legal Objections
As the Magistrate Judge noted, in his complaint Plaintiff alleges race-based
discrimination in violation of 42 U.S.C. § 1981 based on the theories of disparate treatment
and hostile work environment. In his Report, the Magistrate Judge evaluated Plaintiff’s
claims and determined, with respect to Plaintiff’s disparate treatment claim, that Plaintiff
failed to establish a prima facie case because he failed to show that he was treated
differently than other similarly situated employees outside the protected class. (ECF No.
66 at 17.) In addition, the Magistrate Judge determined that even if Plaintiff could establish
a prima facie case of disparate treatment, his claim still failed because Plaintiff could not
show that Defendant’s stated reason for terminating his employment was pretext for racial
discrimination. With respect to Plaintiff’s hostile work environment claim, the Magistrate
Judge determined that Plaintiff failed to show that Mr. Shelley’s comments were sufficiently
severe or pervasive to alter his conditions of employment. Lastly, with respect to Plaintiff’s
claim for libel or slander, the Magistrate Judge noted that Plaintiff conceded that discovery
did not yield sufficient evidence to support the claim.
Thus, the Magistrate Judge
recommended that the Court grant summary judgment on all of Plaintiff’s claims.
Plaintiff’s Disparate Treatment Claim
To establish a prima facie claim for disparate treatment, a plaintiff must show that:
(1) he is a member of a protected class; (2) he was performing his job satisfactorily; (3) he
suffered an adverse employment action; and (4) similarly situated employees outside the
protected class received more favorable treatment or evidence exists giving rise to an
inference of unlawful discrimination. Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190
(4th Cir. 2010). If Plaintiff can establish a prima facie case, then the burden shifts to
Defendant to produce a legitimate, nondiscriminatory reason for its actions against Plaintiff.
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-55 (1981). If Defendant meets
this burden, then Plaintiff must show by a preponderance of the evidence that the proffered
reason was pretext for discrimination. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 147 (2000).
As previously mentioned, the Magistrate Judge determined that Plaintiff failed to
establish a prima facie claim for disparate treatment because he failed to show that he was
treated differently than other similarly situated employees outside his protected class. (ECF
No. 66 at 17.) In addition, the Magistrate Judge determined that even if Plaintiff could
establish a prima facie case of disparate treatment, his claim still failed because Plaintiff
could not show that Defendant’s stated reason for terminating his employment was pretext
for racial discrimination.
In paragraphs ten through fifteen of his objections, Plaintiff complains about the
Magistrate Judge’s analysis of his disparate treatment claim and asserts that the Magistrate
Judge took an “overly rigid approach to the white comparators identified by Plaintiff.” (ECF
No. 70 at 4.) Plaintiff again complains that Mr. Evans was not investigated based on Ms.
Massaquoi’s complaints while he was, and with respect to Ms. Preuter, Plaintiff contends
that the Magistrate Judge improperly concluded that Ms. Scott’s allegations against her
were less specific and less severe than Ms. Scott’s allegations against Plaintiff. (Id. at 5.)
In addition, Plaintiff complains that no one else’s email was searched, and he argues that
the Magistrate Judge disregarded evidence that Mr. Shelley’s obvious animus towards
Plaintiff colored the entire human resources process, although he does not cite to specific
evidence in this regard. (Id. at 6.)
With respect to Mr. Evans, the Magistrate Judge noted that he was a team leader
under Plaintiff’s supervision and that a female employee told a co-worker that Mr. Evans
was pursuing her and reported the matter to Defendant.
A Human Resources
representative conducted a review and told Plaintiff to meet with Mr. Evans because
Plaintiff was his supervisor. Plaintiff told Mr. Evans that the employee felt uncomfortable
and that Mr. Evans needed to be conscious of his interactions with her. Ultimately, the
Magistrate Judge determined that Mr. Evans was not similarly situated to Plaintiff because
the female employee who complained of Mr. Evans’ behavior was not subordinate to Mr.
Evans and did not work in the same department as Mr. Evans, whereas the individuals with
whom Plaintiff communicated in the emails that were found to be inappropriate were
Plaintiff’s subordinates. In addition, the Magistrate Judge noted that Plaintiff’s position was
a higher management position.
The Magistrate Judge also found that Ms. Preuter was not similarly situated to
Plaintiff because Plaintiff was in a higher level management position and because Plaintiff
was on a final warning whereas there was no evidence that Ms. Preuter was on a final
warning. Moreover, the Magistrate Judge determined that Ms. Scott’s complaints against
Plaintiff were more specific than her complaints against Ms. Preuter.
Ultimately, the Court finds no error in the Magistrate Judge’s analysis. Despite
Plaintiff’s contention that Mr. Evans and Ms. Preuter were in the same basic managerial
chain and responded to the same human resources department and senior managers, the
evidence indicates that Plaintiff was higher up in the organizational chain and subject to
different standards, and that the general nature of the claims against Plaintiff differed from
that of the claims against Mr. Evans and Ms. Preuter. See Haywood v. Locke, 387 F. App’x
355, 358 (4th Cir. 2010) (noting that for a plaintiff to show that he is similar in all relevant
aspects to a comparator “would include evidence that the employees ‘dealt with the same
supervisor, [were] subject to the same standards and . . . engaged in the same conduct
without such differentiating or mitigating circumstances that would distinguish their conduct
or the employer’s treatment of them for it’”) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577,
583 (6th Cir. 1992)).
Importantly, however, even if the Magistrate Judge did err in finding that Mr. Evans
and Ms. Preuter were not similarly situated to Plaintiff, the Court nevertheless agrees with
the Magistrate Judge that Plaintiff still cannot show that Defendant’s stated reason for
terminating him was pretext for racial discrimination. In the Report, the Magistrate Judge
considered Plaintiff’s arguments regarding pretext, and the Magistrate Judge considered
the fact that Plaintiff and the individuals with whom Plaintiff communicated all denied
engaging in inappropriate relationships. However, as the Magistrate Judge noted, the fact
that Ms. Wallace, Ms. Gill, and Ms. Harris testified at the employment hearing that they did
not consider Plaintiff’s behavior to be inappropriate is insignificant as “[i]t is the perception
of the decisionmaker that is relevant,” not the opinions of Plaintiff’s co-workers. Smith v.
Flax, 618 F.2d 1062, 1067 (4th Cir. 1980); see also Evans v. Technologies Apps. & Serv.
Co., 80 F.3d 954, 960 (4th Cir. 1996) (rejecting the plaintiff’s unsubstantiated allegations
and personal opinions concerning her qualifications and noting that the relevant perception
is that of the decision maker). Here, Ms. Ponder testified that Plaintiff was not terminated
from employment because of a confirmed affair but that he was terminated for engaging
in conduct that Defendant deemed unbecoming of a manager based on what Defendant
considered to be inappropriate emails. Plaintiff contends that his emails alone do not
present a legitimate, nondiscriminatory reason for termination, and he argues that the
Magistrate Judge completely disregarded evidence that Mr. Shelley’s obvious animus
against Plaintiff infected the entire human resources process. However, after review of the
record, the Court finds these unsupported allegations without merit. The Magistrate Judge
clearly considered Mr. Shelley’s feelings about Plaintiff, and, as the Magistrate Judge
noted, even if Plaintiff could demonstrate racial animus on the part of Mr. Shelley, the
record contains no evidence to show that Mr. Shelley had any involvement in Plaintiff’s
termination, or that Mr. Shelley’s feelings in any way “infected” the human resources
process. In other words, despite Plaintiff’s bald assertions, the uncontradicted testimony
from Mr. Shelley, Ms. Forino, and Mr. Traywick indicates that Mr. Shelley was not involved
in the investigation into Plaintiff’s emails or the ultimate decision to terminate Plaintiff. (ECF
No. 66 at 21-22.) The Court agrees with the Magistrate Judge that Plaintiff has not shown
that Defendant has offered shifting or changing reasons for his termination, and that
Plaintiff has not shown by a preponderance of the evidence that Defendant’s stated reason
for terminating him was pretext for unlawful discrimination.
Plaintiff’s Hostile Work Environment Claim
To avoid summary judgment on his hostile work environment claim, Plaintiff must
point to evidence that would allow a reasonable jury to conclude that:(1) he was harassed
based on his race; (2) the harassment was unwelcome; (3) the harassment was sufficiently
severe or pervasive to create an abusive working environment; and (4) some basis exists
for imputing liability to the employer.
Equal Emp’t Opportunity Comm’n v. Central
Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009).
Here, the Magistrate Judge determined that Plaintiff failed to show that the
harassment was sufficiently severe or pervasive to alter Plaintiff’s conditions of
employment. In so finding, the Magistrate Judge considered the Fourth Circuit’s decision
in Boyer-Liberto v. Fontaineblue Corp., 786 F.3d 264 (4th Cir. 2015) (en banc), where the
court found that even though “hostile work environment claims often involve repeated
conduct,” an “isolated incident of harassment can amount to discriminatory changes in the
terms and conditions of employment, if that incident is extremely serious.” 786 F.3d 264,
277 (4th Cir. 2015) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998))
(internal quotations omitted).1 Specifically, with regard to Boyer-Liberto, the Magistrate
In Faragher, the Supreme Court stated that “‘simple teasing,’ offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory changes
in the ‘terms and conditions of employment’”). 524 U.S. at 788; see also Jordan v.
Aternative Resources Corp., 458 F.3d 332 (4th Cir. 2006) (“Courts determine ‘whether an
environment is sufficiently hostile or abusive by looking at all the circumstances, including
the frequency of the discriminatory conduct; its severity; whether it is physically threatening
In Boyer-Liberto, a managerial employee berated the plaintiff in a physically
threatening manner, told the plaintiff she was going to make her sorry, and
called her either a “damn porch monkey” or a “dang porch monkey.” 786
F.3d at 270. The incident continued into the following day when the manager
again called the plaintiff a “porch monkey.” Id. In holding that the incident
could alter the conditions of employment and create a hostile work
environment, the Fourth Circuit recognized that “no single act can more
quickly alter the conditions of employment and create an abusive working
environment than the use of an unambiguously racial epithet . . . by a
supervisor in the presence of his subordinates.” Id. at 280.
Here, the only comment directed to the plaintiff personally was the comment
about his accent. The comment was made with no one else present, the
comment did not involve the use of an unambiguously racial epithet in the
presence of co-workers, no threat or profanity was used, and the plaintiff
does not allege that Mr. Shelley was berating him, angry, or physically
threatening when he made the comment. See Irani v. Palmetto Health, C.A.
No. 3:14-CV-3577-CMC, 2016 WL 3079466, at *26-27 (D.S.C. June 1, 2016)
(distinguishing Boyer-Liberto). While Mr. Shelley’s comment that he did not
think he could survive in Barbados “around those coons” was certainly
offensive, there is no evidence the comment was directed at the plaintiff
personally, that it was made with anyone else present, or that it was made
with threats, profanity, or while Mr. Shelley was berating or angry with the
plaintiff. Further, there is no evidence that the comments regarding the
employee’s tattoo or the applicant’s albinism were in any way related to the
plaintiff’s race. With regard to Mr. Shelley asking the plaintiff why he was
hiring so many black people to fill openings in his department, the plaintiff
testified that a majority of the employees in the department were
African-American (doc. 63-1, pl. dep. 63). Mr. Shelley had ultimate hiring
authority, and the plaintiff could not recall one African-American employee
who was qualified for the position whom Mr. Shelley did not hire because of
their race (id.).
(ECF No. 66 at 24-25.)
or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with
an employee’s work performance.’”) (citation omitted).
In the last section of his objections, Plaintiff asserts that the Magistrate Judge
misapplied Boyer-Liberto and unfairly minimized the severity and hostility of the slurs in this
case. (ECF No. 70 at 7.) Plaintiff contends that Mr. Shelley’s slurs were made in a context
at least as threatening as that in Boyer-Liberto because Mr. Shelley was Plaintiff’s
supervisor and had previously tried to have him fired.
As an initial matter, Plaintiff is correct that it is important to note that Mr. Shelley was
Plaintiff’s supervisor, as the Fourth Circuit in Boyer-Liberto clearly stated: “In measuring the
severity of harassing conduct, the status of the harasser may be a significant factor–e.g.,
‘a supervisor’s use of [a racial epithet] impacts the work environment far more severely
than use by co-equals.’” Id. at 278 (quoting Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668,
675 (7th Cir. 1993)). Nevertheless, the Court agrees with the Magistrate Judge that this
case is still distinguishable from Boyer-Liberto. As the Magistrate Judge noted, although
the use of the term “coon” was certainly offensive, it was not directed at Plaintiff or made
in front of Plaintiff’s co-workers, and there is no allegation that Mr. Shelley was using the
term to “cap explicit, angry threats that [he] was on the verge of utilizing [his] supervisory
powers to terminate” Plaintiff’s employment. Id. at 280. Thus, the Court agrees with the
Magistrate Judge that although the comment was rude and inappropriate, it was not on par
with the circumstances presented in Boyer-Liberto. Moreover, with respect to the other
alleged comments made by Mr. Shelley, considering the totality of the circumstances,
including the frequency of the comments, their severity, and whether the comments were
made in a threatening or humiliating manner or were merely offensive utterances, the Court
finds that Plaintiff’s evidence falls short of that needed to overcome summary judgment.
Finally, the Court also notes that Plaintiff has not objected to the Report’s analysis
of the subjective component of the severe or pervasive element. See Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21-22 (1993) (“Conduct that is not severe or pervasive enough to create
an objectively hostile or abusive work environment–an environment that a reasonable
person would find hostile or abusive–is beyond Title VII’s purview. Likewise, if the victim
does not subjectively perceive the environment to be abusive, the conduct has not actually
altered the conditions of the victim's employment, and there is no Title VII violation.”) As
the Magistrate Judge noted, there is no evidence that Plaintiff perceived his work
environment as hostile or abusive. Plaintiff testified that he did not “rely” on the comments,
and he “let it roll of [his] back.” (ECF No. 63-1 at 61-62.) Plaintiff also testified that he did
not have a lot of interaction with Mr. Shelley, and Plaintiff never reported this behavior to
anyone in a management position higher than Mr. Shelley.
Based on the foregoing, the Court agrees with the Magistrate Judge that Defendant
is entitled to summary judgment on Plaintiff’s hostile work environment claim.
Plaintiff’s Libel/Slander Claim
In response to Defendant’s motion for summary judgment, Plaintiff conceded that
discovery did not yield sufficient evidence to support his libel or slander claim, and Plaintiff
does not object to the Magistrate Judge’s recommendation that the Court grant summary
judgment on this claim.
For the foregoing reasons, the Court hereby ADOPTS the Magistrate Judge’s Report
(ECF No. 66); the Court overrules Plaintiff’s objections to the Report (ECF No. 70); and the
Court grants Defendant’s motion for summary judgment (ECF No. 56).
IT IS SO ORDERED.
s/Bruce H. Hendricks
The Honorable Bruce Howe Hendricks
United States District Judge
September 25, 2017
Greenville, South Carolina
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