Sancho v. Anderson School District Four

Filing 61

ORDER RULING ON REPORT AND RECOMMENDATION for 47 Report and Recommendation as to 34 Motion for Summary Judgment filed by Anderson School District Four, 50 Motion to Compel, filed by Anne R Culbreath. GRANTING motion for summary judgment, GRANTING motion to compel. Signed by Honorable Henry M Herlong, Jr on 8/3/16. (sfla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION

Ri’Cha ri Sancho,
Plaintiff,
vs.
Anderson School District Four,
Defendant.

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C.A. No. 8:15-1353-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 Ri’Cha ri Sancho (“Sancho”), proceeding
pro se, filed a complaint against Anderson School District Four (the “District”) asserting the
following employment discrimination claims: disparate treatment, hostile work environment,
and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). In addition,
Sancho alleges a state law claim for defamation.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Sancho is an African-American female who practices a traditional African religion.
(Def. Mot. Summ. J. Ex. 10 (Pl. Dep. 11, 215), ECF No. 34-10.) She began working for the
District as a substitute teacher during the 2004-2005 school year, and was hired by the District in

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The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. Mathews v. Weber, 423 U.S.
261, 270 (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. The court may accept,
reject, or modify, in whole or in part, the recommendation made by the magistrate judge or
recommit it with instructions. 28 U.S.C. § 636(b)(1).
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August 2005 as a business teacher at Pendleton High School (“PHS”). (Id. Ex. 6 (Merck Aff.
¶¶ 2-3), ECF No. 34-6.) Sancho transferred schools within the District after accepting a position
at Riverside Middle School (“RMS”) for the 2007-2008 school year. (Id. Ex. 10 (Pl. Dep. 39),
ECF No. 34-10.) In July 2013, Sancho requested and was granted an unpaid leave of absence
for the 2013-2014 school year from the District’s Board of Trustees. (Id. Ex. 9 (D’Andrea Aff.
¶¶ 10-11, Exs. I, J), ECF No. 34-9.) There is no evidence that Sancho returned to her teaching
position with the District following the 2013-2014 school year. Sancho’s stated reason for
requesting a leave of absence was “to study for the first year of [her] PhD.” (Id. Ex. 9
(D’Andrea Aff. ¶ 10, Ex. I), ECF No. 34-9; Objection 44-45, ECF No. 56.) However, Sancho
submits that the underlying reason was due to her several complaints of discrimination, hostile
work environment, retaliation, and defamation at PHS and RMS, all of which were not resolved
to her satisfaction. Sancho alleges that she “considered this request [for a leave of absence] her
only recourse to avoid breaking her contract, but felt the safety of her family and herself was of
the utmost important.” (Objections 45, ECF No. 56.)
Sancho subsequently filed a request for unemployment benefits, which was denied.
(Def. Mot. Summ. J. 7, ECF No. 34.) Additionally, Sancho filed a charge of discrimination with
the Equal Employment Opportunity Commission, which was dismissed on the basis that it was
unable to conclude any violations of statutes had occurred. (Id., ECF No. 34; Ans. Special
Interrogatories, ECF No. 16.)
Sancho filed the complaint in this action on March 24, 2015. (Compl., generally, ECF
No. 1.) On November 4, 2015, the District filed the instant motion for summary judgment.
(Def. Mot. Summ. J., ECF No. 34.) Sancho responded on December 11, 2015. (Resp. Opp’n
Def. Mot. Summ. J., ECF No. 38.) On December 21, 2015, the District replied. (Reply Supp.

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Def. Mot. Summ. J., ECF No. 42.) Magistrate Judge McDonald issued his Report and
Recommendation on June 20, 2016, recommending that the District’s motion for summary
judgment be granted. (Report & Recommendation 26, ECF No. 47.) Sancho filed objections on
July 25, 2016. (Objections, ECF No. 56.) Additionally, on June 30, 2016, the mediator filed a
motion to compel Sancho to pay mediation fees. (Mot. Compel, ECF No. 50.) Sancho failed to
respond within the deadline for filing a response to the motion to compel. This matter is now
ripe for review.
II. THE REPORT AND RECOMMENDATION
First, Magistrate Judge McDonald recommends granting the District’s motion for
summary judgment on the Title VII disparate treatment claim, because Sancho failed to establish
essential elements of a prima facie case of disparate treatment that a materially adverse
employment action or that an alleged adverse action occurred under circumstances that raise a
reasonable inference of unlawful discrimination. (Report & Recommendation 15-19, ECF No.
47.) Similarly, the magistrate judge recommends granting summary judgment, because Sancho
failed to show that other similarly situated employees received more favorable treatment, which
is a required element of a prima facie case of disparate treatment through discriminatory
discipline. (Id. 19-21, ECF No. 47.) Second, Magistrate Judge McDonald recommends granting
the District’s motion for summary judgment on the Title VII hostile work environment claim,
because there is no evidence that any of the alleged conduct was based on Sancho’s race, color,
religion, sex, or national origin and that the alleged harassment did not constitute severe or
pervasive conduct, both of which are essential elements for a hostile work environment cause of
action. (Id. 21-23, ECF No. 47.) Third, Magistrate Judge McDonald recommends granting the
District’s motion for summary judgment on the Title VII retaliation claim, because Sancho

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failed to establish an adverse employment action or any causal connection, both of which are
required elements for a Title VII retaliation claim. (Id. 23-25, ECF No. 47.) Lastly, Magistrate
Judge McDonald recommends granting the District’s motion for summary judgment on the state
law defamation claim, because Sancho failed to raise any genuine issues of material fact as to
actual malice or that any alleged defamatory statements were made to a third party, both of
which are required elements for a defamation cause of action. (Id. 25-26, ECF No. 47.)
III. OBJECTIONS
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, this court is not required to give any explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Sancho
did not file any objections to the defamation claim. Thus, the court adopts the magistrate
judge’s recommendation to grant summary judgment on the state law defamation claim.
However, Sancho raised objections with respect to her three Title VII claims. Upon
review, the court finds that many of Sancho’s objections are non-specific, unrelated to the
dispositive portions of the magistrate judge’s Report and Recommendation, or merely restate her
claims. However, the court was able to glean several specific objections. Sancho objects raising
new allegations of discrimination and argues that her initial allegations support a new Title VII
claim that was not considered by the magistrate judge.
As an initial matter, when a party objecting to a report and recommendation provides
new or additional evidence, the district court’s decision “whether to consider such evidence rests

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within the sound discretion of the district court.” Doe v. Chao, 306 F.3d 170, 183 n.9 (4th Cir.
2002), aff’d, 540 U.S. 614 (2004). Further, “attempts to introduce new evidence after the
magistrate judge has acted are disfavored,” though the district court may allow it “when a party
offers sufficient reasons for so doing.” Caldwell v. Jackson, 831 F. Supp. 2d 911, 914
(M.D.N.C. 2010) (listing cases). Because Sancho is proceeding pro se and out of an abundance
of caution, the court will consider her new allegations of discrimination.
IV. LEGAL DISCUSSION
A. STANDARD OF REVIEW
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. 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).
“[W]here 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. Cty. of
Chesterfield, Va., 95 F.3d 1263, 1265 (4th Cir. 1996) (internal quotation marks and citation
omitted). “[T]he 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

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there be no genuine issue of material fact.” Ballenger v. N.C. Agric. Extension Serv., 815 F.2d
1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted).
B. TITLE VII - DISPARATE TREATMENT
“Absent direct evidence, the elements of a prima facie case of discrimination under Title
VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse
employment action; and (4) different treatment from similarly situated employees outside the
protected class.” Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
aff’d, 132 S. Ct. 1327 (U.S. 2012). “An adverse employment action is a discriminatory act that
adversely affects the terms, conditions, or benefits of the plaintiff’s employment.” Holland v.
Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation marks and
citation omitted). Typical examples of adverse employment actions include “discharge,
demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced
opportunities for promotion.” Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999).
First, Sancho claims she was assigned to develop a curriculum map for the Integrated
Business Applications (“IBA”) course, which she had taught for several years, but that this task
was subsequently reassigned to a “new Caucasian IBA teacher” (the “task reassignment
allegation”). (Objections 20, ECF No. 56.) Similarly, Sancho claims her transfer from PHS to
RMS, i.e. from a high school to middle school level teaching position, was a “demotion” (the
“school reassignment allegation”). (Id. 29, ECF No. 56.) Further, Sancho raises several
instances of her courses changing during her teaching tenure, ranging from reducing her class
sizes and phasing out certain courses she taught to increasing her class load and changing the
credit-level of courses she taught (the “course reassignment allegations”). (Id. 27, 29-31, 33-36,
ECF No. 56.) “[R]eassignment of job duties is not automatically actionable.” Burlington N. &

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Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) (retaliation context). Further, mere
dissatisfaction with work assignments or reassignments does not establish an adverse
employment action, especially when there is no evidence of adverse affect on the terms,
conditions, or benefits of employment. See Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th
Cir. 2004) (constructive discharge context); Monk v. Stuart M. Perry, Inc., Civ. Act. No.
5:07CV00020, 2008 WL 2901347, at *4 (W.D. Va. July 18, 2008) (unpublished) (retaliation
context), report and recommendation adopted, Civ. Act. No. 5:07CV00020, 2008 WL 4450220
(W.D. Va. Sept. 29, 2008) (unpublished).
Under these allegations, Sancho does not provide any evidence that these task, school, or
course reassignments produced any injury or harm to her or equate to a “discharge, demotion,
decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced
opportunities for promotion.” Boone, 178 F.3d at 255. Thus, the task reassignment allegation,
school reassignment allegation, and course reassignment allegations do not establish an adverse
employment action and these allegations are without merit under the disparate treatment claim.
Second, after several unsatisfactory parent-teacher meetings that included District
administrators, Sancho alleges she received letters of reprimand, which constituted adverse
employment actions. Sancho claims letters of reprimand: “generate a documented trail of
behavior that can be used to promote or deny promotion to any employee”; can be examined
when writing letters of recommendation; can be used as “ammunition for biased treatment”;
“substantiate an atmosphere of negative impact on employees”; and “create an atmosphere of
undue stress to force [an] employee to resign her position” (collectively, “letters of reprimand
allegations”). (Objections 27, ECF No. 56.) Assuming without deciding that these letters were
indeed disciplinary in nature, Sancho has still failed to cite any legal precedent to support her

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claim. As the magistrate judge cited, “[t]o the extent the letter[s] could be construed as a letter
of reprimand, courts have held that letters of reprimand and admonishment are not actionable
adverse employment actions.” Livingston v. Wix, No. 3:13-CV-02695-JMC, 2014 WL
7369502, at *10 (D.S.C. Dec. 29, 2014) (unpublished); Johnson v. Danzig, No. 99-2614, 2000
WL 458887, at *2 (4th Cir. Apr. 24, 2000) (unpublished) (“[T]he letters of reprimand and
admonishment and the denial of training are not actionable adverse employment actions . . . .”);
Dawson v. United States, 549 F. Supp. 2d 736, 741-42 (D.S.C. 2008), aff’d, No. 08-1352, 2010
WL 727648, at *1 (4th Cir. Mar. 3, 2010) (unpublished). Thus, the letters of reprimand
allegations do not establish an adverse employment action and these allegations are without
merit under the disparate treatment claim.
Third, in the application process for a Department of Defense position, Sancho alleges
she received a negative recommendation from a District administrator, which Sancho claims
establishes an adverse employment action (“letter of recommendation allegation”).2 (Objections
30-31, ECF No. 56.) There is no evidence that Sancho was offered the Department of Defense
position. Unlike letters of reprimand, negative letters of recommendation can establish an
adverse employment action. See, e.g., Hillig v. Rumsfeld, 381 F.3d 1028, 1035 (10th Cir. 2004)
(retaliation context); Taylor v. Geithner, 703 F.3d 328, 339 (6th Cir. 2013) (retaliation context);
Pawlow v. Dep’t of Emergency Servs. & Pub. Prot., No. 3:14-CV-1282 (CSH), 2016 WL
1170908, at *6 (D. Conn. Mar. 23, 2016) (comparing internal notices of discipline with negative
external employment recommendations); but cf. Belton v. City of Charlotte, Nos. 05-1268, 051450, 05-1459, 2006 WL 1444394, at *14-15 (4th Cir. May 23, 2006) (unpublished) (affirming

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This letter of recommendation allegation was considered under the Title VII hostile
work environment claim by the magistrate judge, but not under the Title VII discrimination
claim. (Report & Recommendation 22-23, ECF No. 47.)
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the lower court’s holding that a failure to write a letter of recommendation did not constitute an
adverse employment action in the retaliation context).
However, in her affidavit, the District administrator states that she described Sancho in
the Department of Defense recommendation form as “extremely intelligent and intuitive” with
“tremendous work ethic and passion for helping young people” and that Sancho would be an
“asset to this program.” (Def. Mot. Summ. J. Ex. 7 (Avery Aff. ¶ 4, Ex. A), ECF No. 34-7.)
The District administrator does admit that she checked the box “No” in an answer to the
question of whether she would reemploy Sancho, but she states this response was marked
“inadvertently” and was a “mistake.” (Id. Ex. 7 (Avery Aff. ¶ 4, Ex. A), ECF No. 34-7.) Under
these facts, it is difficult for the court to find that this particular recommendation rises to the
level of an adverse employment action. However, even assuming without deciding that this
recommendation does establish an adverse employment action, the District, through the District
administrator, has articulated a legitimate, nondiscriminatory reason for its action. Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (setting forth that when a prima facie
case of discrimination has been established, the burden shifts to the defendant to articulate some
legitimate, nondiscriminatory reason for its action). Moreover, Sancho has not shown by a
preponderance of the evidence that the District’s reason was not true, but a pretext for
discrimination. Id. at 253 (setting forth that if the defendant carries their burden, the plaintiff
has an opportunity to prove by a preponderance of the evidence that the defendant’s reason was
not true, but a pretext for discrimination). Thus, this letter of recommendation allegation does
not establish an adverse employment action and this allegation is without merit under the
disparate treatment claim.

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Lastly, Sancho initially claimed she was subjected “to harsher disciplinary measures than
her Caucasion counterparts.” (Resp. Opp’n Def. Mot. Summ. J. 21, ECF No. 38.)
[T]o establish a prima facie case of discriminatory discipline under Title VII, the
plaintiff must show: (1) she is part of a class protected by Title VII; (2) her
prohibited conduct was comparably serious to misconduct by employees outside
the protected class; and (3) the disciplinary measures taken against her were more
harsh than those enforced against other employees.
Prince-Garrison v. Md. Dep’t of Health & Mental Hygiene, No. 08-1090, 2009 WL 667421, at
*2 (4th Cir. Mar. 13, 2009) (unpublished) (citing Cook v. CSX Transp. Corp., 988 F.2d 507,
511 (4th Cir. 1993)). “An allegation of discriminatory discipline however, does not necessarily
require proof of an adverse employment action.” Id. The magistrate judge recommends
granting the District’s motion for summary judgment on this discriminatory discipline claim,
because Sancho “failed to present evidence that permits the necessary comparison.” (Report &
Recommendation 20, ECF No. 47.)
In her objections, Sancho raises several instances of disciplinary comparison (the
“disciplinary comparison allegations”). (Objections 17-19, 25, ECF No. 56.) However, in most
of these instances, Sancho has failed to present evidence that permits the necessary comparison.
Further, to the extent that letters written by supervisors summarizing Sancho’s various
interactions with administrators and parents can be considered disciplinary measures, these
letters were written in response to her argumentative and defensive responses to incidents rather
than the underlying events. Sancho alleges that when another Caucasian teacher referred to
African-Americans as “thugs” in front of an African-American student, this teacher was not
reprimanded, but was forced to apologize to the parent of the student the same day. (Id. 24-25,
ECF No. 56.) Sancho compares this alleged disciplinary measure to the alleged one she
received by the District after attempting to enter the District Office. (Id. 25, ECF No. 56.) In

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the 2012-2013 school year, a new policy was implemented that required District employees to
show their identification card to gain entry into the District office, which was communicated to
all District employees through several emails. (Def. Mot. Summ. J. Ex. 9 (D’Andrea Aff. ¶ 6),
ECF No. 34-9.) On February 28, 2013, Sancho had a meeting at the District office, but the
receptionist would not let her enter, because she did not have her identification card. (Id. Ex. 9
(D’Andrea Aff. ¶ 7), ECF No. 34-9; Objections 25, ECF No. 56.) The receptionist reported to
the District superintendent that Sancho was rude to her when she told Sancho that she had to
have identification to enter the District office. (Def. Mot. Summ. J. Ex. 9 (D’Andrea Aff. ¶ 7),
ECF No. 34-9.) In response, the District superintendent sent an email to all District employees
informing them that entry into the District office required showing their identification card and
that rudeness would not be tolerated. (Id. Ex. 9 (D’Andrea Aff. ¶ 7), ECF No. 34-9.) The
District superintendent did not include Sancho’s name or otherwise identify her in the email.
(Id. Ex. 9 (D’Andrea Aff. ¶ 7), ECF No. 34-9.) These two events are not comparable. The
former incident was an internal school event while the latter is a District event, and more
fundamentally, the court finds that this email does not establish a disciplinary measure against
Sancho. Ultimately, Sancho has failed to show that any other employee of a different race,
religion, gender, or national origin received more favorable treatment under similar
circumstances. Based on the foregoing, the disciplinary comparison allegations are without
merit under the disparate treatment claim.
C. TITLE VII - HOSTILE WORK ENVIRONMENT
The elements of a hostile work environment claim under Title VII are: (1) harassment
on the basis of race, color, religion, sex, or national origin; (2) the harassment was unwelcome;
(3) the harassment was sufficiently severe or pervasive to alter the conditions of employment

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and create an abusive atmosphere; and (4) some basis exists for imputing liability to the
employer. See E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). The
hostile or abusive nature of the work environment is “determined only by looking at all the
circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993).
Sancho asserts various allegations previously discussed, including the task reassignment
allegation, school reassignment allegation, course reassignment allegations, letters of reprimand
allegations, and disciplinary comparison allegations. (Objections 43, ECF No. 56.) Further,
Sancho also asserts that she received an email informing her that her pay would be docked for
incremental sums totaling over $1,000 after pursuing a grievance with a District administrator
(the “docked pay allegation”).3 (Id. 44, ECF No. 56.) However, the District has proffered
evidence establishing that this email was sent to several employees and was subsequently
retracted. (Def. Mot. Summ. J. Ex. 7 (Avery Aff. ¶ 5), ECF No. 34-7.) Ultimately, none of the
allegations evidence any physically threatening or humiliating conduct, or much less a mere
offensive utterance. Further, none of the allegations unreasonably interfered with Sancho’s
work performance or were severe. Further, Sancho has failed to establish that any of these
allegations were conducted on the basis of her race, color, religion, sex, or national origin.
Based on the foregoing, Sancho’s objections are without merit and she has failed to establish a
hostile work environment claim.

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This docked pay allegation was considered under the Title VII retaliation claim by the
magistrate judge, but not under the Title VII hostile work environment claim. (Report &
Recommendation 24, ECF No. 47.)
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D. TITLE VII - RETALIATION
The elements of a prima facie case of retaliation under Title VII are: (1) a plaintiff
engaged in protected activity; (2) the employer took an adverse employment action against the
plaintiff; and (3) that a “causal relationship existed between the protected activity and the
adverse employment activity.” Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 253 (4th
Cir. 2015).
Sancho asserts two allegations previously discussed, the course reassignment allegations
and task reassignment allegation. (Objections 45-46, ECF No. 56.) As previously stated above,
these allegations fail, because there was no adverse employment action. Sancho also complains
that the District granted her “request for a leave of absence without requesting documentation of
planned studies, proof of enrollment in a documented doctoral program, or field of study,”
which prompted Sancho “to believe the [District] was on a course to force her to resign her
post.” (Objections 47, ECF No. 56.) The court finds that the grant of Sancho’s request for a
leave of absence was not an adverse employment action. Therefore, Sancho’s objections are
without merit and she has failed to establish a Title VII retaliation claim.
After a thorough review, the court adopts Magistrate Judge McDonald’s Report and
Recommendation and incorporates it herein by reference. Based on the foregoing, the court
grants the District’s motion for summary judgment on all claims.
E. MOTION TO COMPEL PAYMENT OF MEDIATOR’S FEES
Lastly, on June 30, 2016, the mediator that conducted the mediation filed a motion to
compel Sancho to pay mediation fees. (Mot. Compel, ECF No. 50.) Sancho failed to respond
within the deadline for filing a response to the motion to compel. According to the mediator,
Sancho was responsible for $975.63 of the mediation fee and Sancho still owes the remaining

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balance of $895.63 after more than six months have passed since the mediation conference. (Id.,
ECF No. 50.) The court grants this motion to compel payment of mediator’s fees.
Therefore, it is
ORDERED that the District’s motion for summary judgment, docket number 34, is
granted. It is further
ORDERED that the mediator’s motion to compel payment of mediation fees in the
amount of $895.63, docket number 50, is granted.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
August 3, 2016

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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