Massaquoi v. American Credit Acceptance et al

Filing 85

ORDER RULING ON REPORT AND RECOMMENDATION granting 52 Motion for Summary Judgment, filed by American Credit Acceptance, adopting 67 Report and Recommendation. Signed by Honorable Bruce Howe Hendricks on 8/31/18. (alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Brenda Massaquoi,

)
)
Plaintiff,
)
)
vs.
)
)
American Credit Acceptance,
)
)
Defendant. )
_____________________________________ )

C/A No. 7:16-cv-02220-BHH

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for Summary Judgment.1
(ECF No. 52.) In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2),
(D.S.C.), this matter was referred to United States Magistrate Judge Jacquelyn D. Austin
for pre-trial proceedings. On February 9, 2018, the Magistrate Judge issued a Report and
Recommendation (“Report”) recommending that the Motion for Summary Judgment be
granted. (ECF No. 67.) The Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report. Plaintiff Brenda Massaquoi (“Plaintiff”) filed
objections on March 8, 2018. (ECF No. 75.) Defendant filed a reply, and Plaintiff
subsequently filed additional objections.2 (ECF Nos. 79 & 81.)
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The

1

Angela Preuter and Sharon Ponder were previously dismissed from this action without prejudice
and without issuance of service of process. (ECF No. 28.)
2

Plaintiff addresses Docket Entry Numbers 75 and 81 to the Fourth Circuit Court of Appeals;
however, because the Report is only a recommendation to this Court, it is not immediately appealable to
the Fourth Circuit. Accordingly, the Court has construed these filings as objections to the Report.

Court is charged with making a de novo determination of any portion of the Report 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 recommit the matter with
instructions. See U.S.C. § 636(b). The Court will review the Report only for clear error in
the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district
court need not conduct a de novo review, but instead must only satisfy itself that there is
no clear error on the face of the record in order to accept the recommendation” (citation
omitted)).
Plaintiff, proceeding pro se, brings this action alleging discrimination and retaliation
in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). (ECF No.
1.) The Magistrate Judge provides a thorough recitation of the facts of this case and the
applicable law in the Report, including a discussion of the summary judgment standard and
the requisite liberal construction of a pro se complaint, which the Court incorporates by
reference. The Magistrate Judge recommends granting summary judgment with respect
to both claims. (ECF No. 67 at 16.)
As an initial matter, it does not appear that Plaintiff challenges Magistrate Judge
Austin’s recommendation regarding her retaliation claim. Plaintiff’s objections do not point
the Court to any specific errors in the Magistrate Judge’s reasoning or analysis. Upon
review of the record, the applicable law, and the Report, the Court finds no error and
agrees with the recommendation that Defendant is entitled to summary judgment with
respect to this claim.

Turning to Plaintiff’s discrimination claim, the Magistrate Judge assumed without
deciding that Plaintiff could establish a prima facie case of discrimination on the basis of
race and national origin. (ECF No. 67 at 7.) She also found that Defendant provided a
legitimate, nondiscriminatory reason for Plaintiff’s termination and determined that Plaintiff
had not demonstrated that the proffered reason was mere pretext. (Id. at 8-13.) Plaintiff
makes several objections to the Magistrate Judge’s findings that she failed to demonstrate
the pretextual nature of the reason proffered for her termination, and failed to show that
discrimination was the real reason for her termination.
First, Plaintiff argues that it was Defendant’s responsibility to confirm that she had
moved to Charlotte before terminating her employment. (ECF Nos. 75 at 4 & 7; 81 at 1.)
Plaintiff has provided no support for her assertion that it was Defendant’s responsibility to
ascertain her whereabouts before terminating her employment. Regardless, Plaintiff was
provided an opportunity to confirm this information herself when Defendant sent her a letter
via email and overnight delivery informing her that she was being terminated and asking
her to call Sharon Ponder, Defendant’s Human Resources Business Partner, in the event
that there were extenuating circumstances that should be considered. (ECF No. 52-2 at
94.) Plaintiff does not dispute that she did not contact Defendant at that time to correct the
assumption that she had moved and would not be returning to work. After she emailed one
of Defendant’s employees that her termination violated her civil rights, Defendant’s
employee emailed her twice requesting that she contact Defendant to address these
concerns and perhaps return to work. Plaintiff failed to respond to these emails or contact
Defendant’s employee. In summary, the specific fact that Plaintiff had not yet actually

vacated her residence in South Carolina and taken up residence in Charlotte, North
Carolina, is immaterial to the question of whether Defendant’s proffered reason for
Plaintiff’s termination was a pretext for discrimination. Accordingly, this objection is
overruled.
Second, Plaintiff contends that the Magistrate Judge erred in failing to review voice
messages Plaintiff alleges she left with Defendant informing Defendant that she was calling
in sick and would be back at work. (ECF No. 75 at 4, 8.) Plaintiff asserts that she had
sufficient paid time off to cover her absence; accordingly, because she called in, she was
entitled to take leave. (See id.) It appears to the Court that this voice message has not
been provided by Plaintiff for the Court’s review. The Magistrate Judge has no duty to
conduct discovery on behalf of any party. Accordingly, Plaintiff’s conclusory allegation,
without more, is insufficient to preclude the entry of summary judgment. See Ross v.
Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985) (“Unsupported allegations as
to motive do not confer talismanic immunity from Rule 56.”), abrogated on other grounds
by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Third, Plaintiff objects to the Magistrate Judge’s consideration of Defendant’s
argument that its employees believed Plaintiff had moved to Charlotte because there were
no personal items on her desk; Plaintiff contends that she never had any personal items
on her desk. (ECF Nos. 75 at 4, 9; 81 at 1.) Liberally construing this objection, Plaintiff may
be arguing that this putative lack of personal items is evidence that Defendant’s proffered
legitimate, nondiscriminatory reason for terminating her was mere pretext. However,
Plaintiff fails to assert or provide any evidence that the decision maker knew Plaintiff did

not have any personal items on her desk. Even assuming that Plaintiff did not keep
personal items at work, at most she argues that Defendant’s employees were mistaken in
their belief that she cleaned out her desk. This is insufficient to demonstrate that
discrimination was the real reason for her termination and the objection is overruled. See
Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (holding that, generally, to
prove an employer’s articulated reason is a pretext for discrimination, a plaintiff “must prove
‘both that the reason was false, and that discrimination was the real reason’ for the
challenged conduct” (emphasis in original) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 515 (1993))).
Next, Plaintiff objects to the Magistrate Judge’s reliance on the statement by one of
Defendant’s employees that, after her termination, the employee who took over Plaintiff’s
work reported that Plaintiff was behind in her paperwork. (ECF No. 75 at 4, 10.) It does not
appear that the Magistrate Judge considered this statement when rendering her
recommendations, mentioning it only obliquely in a footnote, and only to say that she was,
essentially, granting Plaintiff the benefit of the doubt by assuming without deciding that
Plaintiff established a prima facie case of discrimination. (See ECF No. 67 at 7-8 n.4)
Further, even assuming that Plaintiff was not behind in her paperwork and that Defendant’s
employee’s statement was false, Plaintiff has not alleged that this assertion was known to
Defendant at the time of her termination or played any role in the decision to terminate her
employment. Thus, the objection is overruled.3

3

In the last page of her objections, Plaintiff states that the Magistrate Judge failed
to properly consider the facts of the case and the evidence submitted in opposition to the
motion. While this is not a specific objection, after a thorough review of the record, the

In her supplemental objections to the Report, Plaintiff appears to argue that three
other employees were treated differently than Plaintiff.4 (ECF No. 81 at 2.) She contends
that,
ACA CEO, a white man lives in Charlotte, North Carolina with
immunity[;] Shannon Kirkpatrick, a black American woman
called off with occurrences, without PTO time and did several
“no calls no shows,” then was called back to work with ACA
with immunity[;] Pam, a white American woman, was given
reasonable pay raises even though she was months behind on
her work while consistently working unlimited overtime.
Id. First, Plaintiff has failed to establish that she is similarly situated to Defendant’s Chief
Executive Officer. See Edwards v. Newport News Shipbuilding, 166 F.3d 1208 (4th Cir.
1998) (unpublished table decision) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th
Cir. 1992), for the proposition that to be similarly situated, employees must have the same
supervisors and must have engaged in the same conduct without differentiating or
mitigating circumstances). Next, Plaintiff’s allegation that Pam was behind in her work but
continued to receive raises is irrelevant to the present action because, as explained above,
Plaintiff has not alleged that any adverse action was taken against her because Defendant
or its employees believed she was behind in her work. Finally, the Magistrate Judge
specifically addressed Plaintiff’s argument that Shannon Kirkpatrick (“Kirkpatrick”) is
similarly situated to Plaintiff. The Magistrate Judge found Kirkpatrick’s alleged

applicable law, and the Report, the Court finds that the Magistrate Judge properly
considered the evidence and the law in issuing the Report.
4

Evidence that an employer treated similarly situated individuals differently can
be evidence of pretext. See, e.g., Laing v. Fed. Express Corp., 703 F.3d 713, 721 (4th
Cir. 2013) (stating that such comparator evidence “would be ‘especially relevant’ to a
showing of pretext”).

situation–namely, where Kirkpatrick failed to inform Defendant that she was taking time off,
was terminated, and then permitted to return to work–was sufficiently different from
Plaintiff’s situation. Specifically, the Magistrate Judge noted that Plaintiff failed to respond
to Defendant’s three attempts to communicate with her about possibly returning to work.
(ECF No. 67 at 12 (citing ECF Nos. 51-1 at 12; 52-2 at 54-55, 61–63, 94, 98-99; 52-6 at 7;
52-8 at 3-4)). Upon review of the record and the applicable law, the Court agrees with the
Magistrate Judge’s determination that Plaintiff has not established that she and Kirkpatrick
are similarly situated. Accordingly, the supplemental objections are overruled.
CONCLUSION
For the reasons set forth above, the Court adopts and incorporates herein the
Report and Recommendation (ECF No. 67) of the Magistrate Judge. Therefore,
Defendant’s Motion for Summary Judgment (ECF No. 52) is GRANTED.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
United States District Judge
August 31, 2018
Charleston, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3
and 4 of the Federal Rules of Appellate Procedure.