Casey v. Plastic Omnium Auto Exterior LLC

Filing 145

ORDER RULING ON REPORT AND RECOMMENDATION, granting 101 Motion for Summary Judgment, filed by Plastic Omnium Auto Exterior LLC, denying 143 Motion for Extension of Time to File Response/Reply, filed by Tessie Theressa Casey, adopting 131 Report and Recommendation. Signed by Honorable Henry M Herlong, Jr on 1/31/2013. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Tessie Theressa Casey,
Plaintiff,
vs.
Plastic Omnium Auto Exterior, LLC,
Defendant.

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C.A. No. 8:11-1432-HMH-KFM
OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Kevin F. McDonald, made in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02 of the District of South Carolina.1 Tessie Theressa Casey (“Casey”) alleges that
the Defendant violated her rights under the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101, et seq. Defendant Plastic Omnium Auto Exterior, LLC (“Plastic Omnium”)
filed a motion for summary judgment on June 1, 2012. Magistrate Judge McDonald
recommends granting Plastic Omnium’s motion for summary judgment. After review, the court
adopts the magistrate judge’s Report and Recommendation and grants Plastic Omnium’s motion
for summary judgment.

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The magistrate judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making
a de novo determination of those portions of the Report and Recommendation 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. See 28
U.S.C. § 636(b)(1).
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I. FACTUAL AND PROCEDURAL HISTORY
Casey began her employment with Plastic Omnium on December 6, 1999. (Am. Compl.
2, ECF No. 21.) During her time with Plastic Omnium, Casey worked in multiple departments
and capacities, including the assembly department and service department. (Id. at 2-4.)
Casey’s employment with Plastic Omnium continued without interruption until July 20,
2007, when she had a doctor’s appointment due to ongoing health problems. (Def. Mem. Supp.
Mot. Summ. J. 2, ECF No. 101-1.) Soon thereafter, on August 3, 2007, Casey was admitted to
the hospital and diagnosed with lupus. (Id.) She remained on Family and Medical Leave Act
(“FMLA”) leave from July 20, 2007, until October 1, 2007, when she returned to work with
certain physical restrictions. (Id.) Plastic Omnium accommodated the restrictions imposed by
her various doctors. (Id.)
On February 1, 2008, Casey was informed by Plastic Omnium’s human resources
manager, Karen Beasley (“Beasley”), that her department was changing from a 40-hour work
week to a 50-hour work week consisting of five 10-hour days. (Am. Compl. 2, ECF No. 21.) In
response to the change in work schedule, Dr. Muthamma Machimada, Casey’s rheumatologist,
provided a note limiting her to only eight-hour shifts. (Def. Mot. Summ. J. Ex. A (Pl. Dep. 5455), ECF No. 101-2.) Plastic Omnium accommodated Casey’s restrictions, but in accordance
with its FMLA policy, required Casey to use vacation hours in place of her missed time. (Def.
Mem. Supp. Mot. Summ. J. 2-3, ECF No. 101-1.)
Five days later, on February 6, 2008, Casey requested that Beasley move her into a
department that only worked 40 hours per week. (Id. at 3.) Beasley honored Casey’s request,
and according to Plastic Omnium’s records, Casey was placed in the service department less than
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three weeks later. (Id.) When Casey transferred into the service department, she was supervised
by Rick Wallace (“Wallace”), until Wallace left the company on August 16, 2008. (Id. at 4.)
Casey continued working in the service department for the duration of her employment with
Plastic Omnium. (Id.)
On May 7, 2008, Casey missed a portion of the workday because of her illness. (Def.
Mem. Supp. Mot. Summ. J. 4, ECF No. 101-1.) The following day, Dr. Jack Cole, Casey’s
internist, ordered that she remain out of work through at least May 15, 2008, until she was
reevaluated by her rheumatologist and neurologist. (Def. Mot. Summ. J. Ex. A (Pl. Dep. 62),
ECF No. 101-2.) Plastic Omnium allowed Casey to take leave for those dates. (Def. Mem.
Supp. Mot. Summ. J. 4, ECF No. 101-1.)
After returning to work following her ordered leave, Casey alleges that she was later
discharged by Plastic Omnium on August 4, 2008, because the service department was moving to
10-hour shifts. (Am. Compl. 4, ECF No. 21.) Plastic Omnium has no record of Casey being
discharged at that time. (Def. Mem. Supp. Mot. Summ. J. 4, ECF No. 101-1.) Plastic Omnium’s
payroll records indicate that Casey only worked three hours the week of August 4, 2008 to
August 10, 2008. (Id. at 4-5.) Casey worked 32.5 hours the following week. (Id. at 5.) Plastic
Omnium denies that Casey was discharged in August 2008, and Casey suffered no break in
service or benefits during August 2008. (Id.)
Casey’s employment, however, was terminated in December 2008. (Am. Compl. 4, ECF
No. 21.) She alleges that Beasley informed her that she was being discharged because of her
poor attendance. (Id.) Plastic Omnium argues that Casey’s dismissal was part of an overall
reduction in force, due to a change in work schedule by one of its largest customers, BMW
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Manufacturing Company (“BMW”), and also a decision by Plastic Omnium to transfer a large
portion of its service department work to its Norcross, Georgia facility. (Def. Mem. Supp. Mot.
Summ. J. 5-6, ECF No. 101-1.) Pursuant to the reduction in force, Plastic Omnium discharged
16 full-time employees and 34 temporary employees between December 17 and 20, 2008. (Id. at
6.) According to Plastic Omnium, because it terminated employees in its production department
as well, it needed to retain employees that were skilled and trained in multiple positions,
including logistics, production, and service. (Id.) When she was terminated, Casey still had 24
hours of accrued vacation leave. (Id. at 7.) Plastic Omnium compensated Casey for her accrued
vacation leave and also made nine separate payments in the total amount of $5,868.00 as part of a
severance agreement, which Casey received and retained. (Id.)
Thereafter, Casey filed a charge of discrimination on February 13, 2009, alleging
discrimination based on her race and her alleged disability. (Def. Mot. Summ. J. Ex. A (Pl. Dep.
57), ECF No. 101-2.) There are three allegedly discriminatory acts included in Casey’s charge:
1) requiring her to use vacation time concurrently with FMLA leave in February 2008; 2) the
August 2008 termination; and 3) the December 2008 termination. (Id.) Casey made additional
allegations in her amended complaint, alleging that Plastic Omnium failed to promote her in
2007 and that Wallace mistreated her when he was her supervisor in the service department.
(Am. Compl. 2-3, ECF No. 21.)
II. DISCUSSION OF THE LAW
A. Summary Judgment Standard
Summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(a). In deciding whether a genuine issue of material fact exists, the evidence of the
non-moving party is to be believed and all justifiable inferences must be drawn in her favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude the entry
of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Id. at 248.
A litigant “cannot create a genuine issue of material fact through mere speculation or the
building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
“Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, disposition by summary judgment is appropriate.” Monahan v. County of
Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996). “[T]he mere existence of some alleged factual
dispute between parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Ballenger v. N.C.
Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987).
B. Objections to the Amended Report and Recommendation
Casey filed objections to the Amended Report and Recommendation. Objections to the
Report and Recommendation must be specific. Failure to file specific objections constitutes a
waiver of a party’s right to further judicial review, including appellate review, if the
recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94
& n.4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation
of the magistrate judge, the court is not required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
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Upon review, the court finds that many of Casey’s objections are non-specific, unrelated
to the dispositive portions of the magistrate judge’s Report and Recommendation, or merely
restate her claims. However, Casey submits one specific objection to the Report and
Recommendation. Casey alleges that the magistrate judge erred in concluding her December
2008 termination was not disability discrimination, because she was cross-trained in welding to
the same extent as three of the retained employees. (Casey Objection 7-8, ECF No. 140.)
When Casey’s employment was terminated in December 2008, along with several other
employees of Plastic Omnium, the service department was reduced from thirteen to eight
employees. (Def. Mem. Supp. Mot. Summ. J. 6, ECF No. 101-1.) Casey’s particular shift in the
service department, the first shift, only retained four employees. (Id. at 24.) The four employees
retained by Plastic Omnium were selected based upon their skill sets and adaptability to multiple
positions in the logistics, production, and service departments. (Id.) All four employees either
served as a team leader, were experienced in operating forklifts, or had extensive training in
welding. (Id.) Casey contends that she was equally trained in welding as those employees
retained. (Casey Objection 7-8, ECF No. 140.)
To establish a case of disability discrimination in a reduction in force case, Casey must
show:
(1) [s]he was an individual with a disability; (2) [s]he was selected from a larger
group of candidates; (3) [s]he was performing at a level substantially equivalent to the
lowest level of that in the group retained; and (4) the selection process produced a
residual work force that contained some unprotected persons who were performing
at a level lower than that at which the plaintiff was performing.
Eckhardt v. Bank of America, N.A., No 3:06cv512, 2008 WL 5100843, at *14 (W.D.N.C.
Nov. 26, 2008) (unpublished) (citing Corti v. Storage Tech. Corp., 304 F.3d 336, 340 n.6 (4th
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Cir. 2002); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995); Mitchell v.
Data Gen. Corp., 12 F.3d 1310, 1315 (4th Cir. 1993); 42 U.S.C. § 12112(a)). Casey alleges that
at one point the company was “doing a time study [and] we had to rotate every so many hours[,]
[and] welding was part of it.” (Casey Objection 8, ECF No. 140.) However, this does not
demonstrate that Casey was performing at a level substantially equivalent to the lowest level in
the group retained, or that the selection process produced a residual work force that included an
unprotected person that was performing at a comparably lower level. When asked if she knew
whether those employees retained were more or less qualified than her, she responded, “No.
Because I don’t know who was left or who was laid off. So I wouldn’t have no idea.” (Def. Mot.
Summ. J. Ex. A (Pl. Dep. 149), ECF No. 101-2.) Three out of the four employees retained by
Plastic Omnium in the first shift of the service department had extensive welding experience, two
of which could operate a forklift as well. (Id. Ex. D (Hunter Aff. ¶¶ 10-13), ECF No. 101-5.)
The fourth employee retained served as the team leader of the service department, and could also
operate a forklift. (Id. Ex. D (Hunter Aff. ¶ 9), ECF No. 101-5.) Casey never served as a team
leader in the service department, and was not trained to operate a forklift. (Id. Ex. A (Pl. Dep.
29), ECF No. 101-5.) Thus, Casey is unable to prove that she was as skilled or was performing at
a higher level than the retained employees.
Further, Plastic Omnium has articulated a legitimate, nondiscriminatory basis for
terminating her. Plastic Omnium argues that Casey’s termination was a result of an overall
reduction in force caused by decreased output requirements, which required it to retain only
employees cross-trained in several different departments. (Def. Mem. Supp. Mot. Summ. J. 2324, ECF No. 101-1.) Casey fails to demonstrate that Plastic Omnium’s proffered reasons for
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termination were a mere pretext for unlawful discrimination. See Ennis v. Nat’l Ass’n of Bus.
and Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that the burden-shifting framework
requiring the claimant to demonstrate that the employer’s nondiscriminatory reasons for
termination were in fact pretext, established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973), applies to a claim brought under the ADA). Based on the foregoing, Casey cannot
establish a prima facie case of disability discrimination. Therefore, after a thorough review of the
magistrate judge’s Report and the record in this case, the court adopts Magistrate Judge
McDonald’s Report and Recommendation.
Therefore, it is
ORDERED that Plastic Omnium’s motion for summary judgment, docket number 101, is
granted. It is further
ORDERED that Casey’s motion for extension of time to file additional objections to the
Report and Recommendation, docket number 143, is denied.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
January 30, 2013
NOTICE OF RIGHT TO APPEAL
The Plaintiff is hereby notified that she has the right to appeal this order within thirty (30)
days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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