Brown v. The OMO Group Inc

Filing 68

ORDER granting 40 Motion to Dismiss for Lack of Jurisdiction; granting 44 Motion for Summary Judgment; adopting Report and Recommendations re 63 Report and Recommendation. Signed by Honorable David C Norton on March 28, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ROSE BROWN,
Plaintiff,
vs.
THE OMO GROUP, INC.,
Defendant and
Third-Party Plaintiff,
vs.
U.S. DEPARTMENT OF THE NAVY,
Third-Party Defendant.

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No. 9:14-cv-02841-DCN

ORDER

This matter is before the court on United States Magistrate Judge Kevin F.
McDonald’s report and recommendation (“R&R”), ECF No. 63, that the court grant the
motion to dismiss of third-party defendant U.S. Department of the Navy (“Navy”), ECF
No. 40, and grant the motion for summary judgment of defendant and third-party plaintiff
The OMO Group (“OMO”), ECF No. 44. For the reasons sets forth below, the court
adopts the R&R, granting the Navy’s motion to dismiss and granting OMO’s motion for
summary judgment. Additionally, the court adopts those portions of the R&R which are
not inconsistent with this Order.

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I. BACKGROUND1
A. Factual Allegations
The R&R ably recites the relevant facts, and it is unnecessary to review the details
of the complaint and depositions that constitute the factual record to this point. In short,
Rose Brown (“Brown”), an African-American female, began working in January 30,
2012 as a dental hygienist for OMO, a federal contractor that provides dental workers for
the Navy’s dental clinic at Parris Island in Beaufort, South Carolina. During Brown’s
pregnancy, she was rushed to the hospital in an ambulance and had emergency surgery to
remove cysts on her ovaries, losing an ovary in the process. ECF No. 66, Ex. 4. She was
later ordered to bedrest for the remainder of her pregnancy due to preeclampsia and
gestational hypertension. ECF No. 66, Ex. 4 at 3.
Brown filed a complaint against OMO on July 15, 2014, alleging pregnancy, race,
and sex discrimination2 in violation of the Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, along with a state law claim for breach of contract. ECF No.
1. On January 16, 2015, OMO filed an amended answer and third-party complaint
alleging causes of action for breach of contract and for indemnity against the Navy. ECF
No. 18. The Navy filed a motion to dismiss for lack of jurisdiction on May 24, 2016,
arguing that contract claims in excess of $10,000 can only be heard in the Court of
Federal Claims under the Tucker Act. ECF No. 40 at 2.

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Unless otherwise noted, the following background is drawn from the R&R.
The R&R analyzes only Brown’s pregnancy and race discrimination claims. It
does not analyze the sex discrimination claims. Brown did not object to this analysis, so
the court adopts the R&R’s interpretation of Brown’s complaint.
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This case is now before the court on the magistrate judge’s R&R, which
recommends that the court: (1) grant the Navy’s motion to dismiss for lack of subject
matter jurisdiction, and (2) grant OMO’s motion for summary judgment. ECF No. 63 at
16. Brown filed timely objections to the R&R, ECF No. 65, and OMO filed a response,
ECF No. 67. The Navy also filed a response, ECF No. 66. The matter is now ripe for the
court’s review.
II. STANDARDS OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s report to which specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28
U.S.C. § 636(b)(1). The magistrate judge’s recommendation does not carry presumptive
weight, and it is the responsibility of this court to make a final determination. Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). A party’s failure to object may be treated as
agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S.
140, 150 (1985).
Summary judgment shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will
not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]t the summary
judgment stage the judge’s function is not himself to weigh the evidence and determine
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the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at
249. The court should view the evidence in the light most favorable to the nonmoving
party and draw all justifiable inferences in its favor. Id. at 255.
“The party seeking summary judgment shoulders the initial burden of
demonstrating to the district court that there is no genuine issue of material fact.” Major
v. Greenville Hous. Auth., No. 6:12-cv-183, 2012 WL 3000680, at *1 (D.S.C. Apr. 11,
2012). Nevertheless, “when a properly supported motion for summary judgment is made,
the adverse party ‘must set forth specific facts showing that there is a genuine issue for
trial.’” Id. (quoting Fed. R. Civ. P. 56(e)). The plain language of Federal Rule of Civil
Procedure 56(c) “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, 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 that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[C]onclusory allegations or denials, without more, are insufficient to preclude
the granting of the summary judgment motion.” Major, 2012 WL 2000680, at *1.
III. DISCUSSION
The R&R found that Brown’s employment discrimination claim fails because
OMO’s perception that it was being pressured by the Navy to terminate Brown’s
employment was a legitimate, nondiscriminatory reason for her termination. ECF No. 63
at 14. All of Brown’s objections go to the R&R’s recommendation that the court grant
OMO’s motion for summary judgment as to the employment discrimination claim—she
makes no objections to the R&R’s recommendation that the court grant summary
judgment on either claim. In the absence of a timely filed objection, a district court need
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“only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (internal citations omitted). Upon review, the court is satisfied that there is no
clear error in the magistrate judge’s determination of the breach of contract claim and
adopts the R&R’s reasoning as to the breach of contract claim.
There were also no objections filed against the magistrate judge’s
recommendation that the court grant the Navy’s motion to dismiss for lack of subject
matter jurisdiction. Having carefully reviewed the Magistrate Judge’s detailed R&R,
relevant case law, and the relevant portions of the record, the court is satisfied that there
is no clear error and adopts the R&R’s reasoning as to the motion to dismiss.
A.

OMO’s Motion for Summary Judgment

Brown filed a number of objections to the magistrate judge’s recommendation
that the court grant OMO’s motion for summary judgment, arguing that the magistrate
judge erred by: (1) finding that OMO’s perception that it was being pressured by the
Navy to terminate Brown’s employment was a legitimate, nondiscriminatory reason for
her termination; (2) finding that no reasonable jury could conclude that OMO’s proffered
explanation is unworthy of credence; (3) finding that because the employment decision
maker, President and Chief Executive Officer of OMO Oluagba Omosowofa
(“Omosowofa”), is of the same race as Brown, the termination of Brown was not
discriminatory; (4) finding that Brown failed to identify any non-pregnant employees
who were given more favorable treatment by being allowed to take more than forty hours
of leave without pay (“LWOP”). ECF No. 65 at 1. The court addresses each objection in
turn.
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1.

OMO Group’s perception that it was being pressured by the
Navy to terminate Brown’s employment is not a legitimate,
nondiscriminatory reason for her termination

Brown argues that the R&R erred in finding that OMO articulated a legitimate,
non-discriminatory reason for terminating Brown—its belief that the Navy wanted Brown
replaced due to her leave without pay status because Brown had exceeded her allowable
40 hours of LWOP—for terminating Brown. ECF No. 63 at 14. The court disagrees.
“The ultimate question in every employment discrimination case involving a
claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 135 (2000).
A plaintiff can establish discrimination under Title VII “through direct and indirect
evidence” (i.e., the “mixed-motive” framework) or through the burden-shifting
framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) (i.e., the
“pretext” framework). Brown must establish causation at two different stages of the
McDonnell Douglas framework—in making a prima facie case and in proving pretext.
Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015). The R&R
found that Brown had proven a prima facie case of employment discrimination, so the
court focuses its analysis on the second prong of the framework—if OMO articulated a
legitimate, nondiscriminatory reason for the adverse employment action. ECF No. 63 at
13.
The standard within the Fourth Circuit is strict—under the prevailing McDonnell
Douglas test, if the defendant shows a legitimate, non-discriminatory reason for its
actions, the plaintiff has the burden to produce evidence that the defendant’s asserted
reasons for its actions are a mere pretext for its true discriminatory motives, and that the
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actions of the defendant were really based on the plaintiff's race. McDonnell Douglas
Corp., 411 U.S. at 802–05; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252
(1981). When an employer articulates a legitimate, non-discriminatory basis for its
action, the court does not “decide whether the reason was wise, fair, or even correct,
ultimately, so long as it truly was the reason for the [adverse employment action].”
Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000). In the briefing for the
summary judgment motion, OMO attaches communications with the Navy, including a
Navy memo and a Navy email where the Navy quoted provisions in the contract with
OMO outlining the specifics of its LWOP policy. ECF No. 44 at 14. The court agrees
with the R&R that this is enough for OMO to show a legitimate, non-discriminatory
reason for its termination of Brown. Reasonable or not, OMO believed that its contract
with the Navy—which outlined termination policies for those workers who took
excessive LWOP—and the Navy’s communications via email, made it “obvious” that no
waiver of the LWOP police was going to be granted and that OMO had to terminate
Brown. ECF No. 44 at 4.
Since OMO has offered a legitimate reason for Brown’s termination, the burden
then shifts to Brown to show that OMO’s stated reason was a pretext for unlawful
discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). She
has failed to do so. Although Brown does not frame her arguments as such, the court
reviewed the record to determine if there are any arguments to rebut OMO’s proferred
justification and demonstrate pretext. OMO’s position statement filed with the Equal
Employment Opportunity does offer additional reasons for Brown’s termination—that
Brown was terminated because she had performance problems including occasions where
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Brown ignored email messages and phone calls from supervisors and “fail[ed] to be a
team player.” ECF No. 47, Ex. 1 at 6. However, the OMO position statement also
includes an explanation of the LWOP system and how workers who take frequent LWOP
reduce overall revenue for OMO, an explanation that conforms to OMO’s proffered
justification for Brown’s termination. Id. During the pendency of Brown’s LWOP, the
Navy’s Contracting Officers’ Representative, John McDonald, sent OMO an email that
“[s]ince Brown is on LWOP for more than 40 hours, are we assuming Ms. Gugino will be
the next full time Dental Hygienist,” and included as an attachment to the email the
portion of the contract between the Navy and OMO that stated any healthcare worker
who “has been on LWOP status for a total of 40 hours” shall be replaced.3 ECF No. 44,
Ex. 16, Navy January 22, 2013 email.
Upon reviewing the record, the court finds that Brown has provided insufficient
evidence that discrimination was, in fact, the reason for her termination. Instead, Brown
simply states that “[the R&R’s finding] would say that employers are permitted to
discriminate if they simply claim ‘they told me I had to.’” ECF No. 65 and 2. At the

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The court notes that OMO failed to take advantage of the waiver process, which
would have exempted Brown from the LWOP policy. To explain this, Omosowofa
testified that “[i]t was obvious no waiver of the LWOP policy was being granted by the
Navy officer.” ECF No. 63 at 15. The court makes no finding on whether OMO’s belief
that the Navy wanted Brown to be terminated is sensible, as it is not within the purview
of the court to determine whether the decisionmaker’s proffered nondiscriminatory
justification is “wise, fair, or even correct.” Hawkins, 203 F.3d at 279. Instead, “it is the
perception of the decisionmaker which is relevant.” Holland v. Washington Homes, Inc.,
487 F.3d 208, 216 (4th Cir. 2007) (internal quotation marks and alteration omitted).
From OMO’s point of view, the Navy’s communications indicated that the Navy wanted
Brown terminated because of her excessive LWOP. There is plentiful evidence,
including emails, deposition testimony, and memoranda attesting to the Navy’s
communications with OMO expressing displeasure with Brown’s excessive LWOP. The
court’s inquiry into the relative merits of OMO’s reasoning need go no further.
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pretext stage of the McDonnell Douglas framework, Brown is required to show by a
“preponderance of the evidence” that OMO’s proferred explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000).
When combined with OMO’s legitimate reasoning for Brown’s termination and Brown’s
failure to present any evidence that OMO’s stated reason was pretextual, a reasonable
juror would be “hard-pressed” to conclude that Brown established pretext. Holland v.
Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007) (internal quotations omitted).
See also Price v. Thompson, 380 F.3d 209, 216 (4th Cir. 2004) abrogated on other
grounds by Zimmeck v. Marshall Univ. Bd. of Governors, 632 F. App’x 117 (4th Cir.
2015), cert. denied, 136 S. Ct. 2021 (2016)) (affirming district court’s grant of summary
judgment to employer where evidence of pretext was ambivalent); Tinsley v. First Union
Nat. Bank, 155 F.3d 435, 444 (4th Cir. 1998) abrogated on other grounds by Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (affirming grant of summary judgment
to employer in Title VII case where “uncontested evidence establishe[d] that [the
decisionmaker] honestly believed that [plaintiff] deserved to be discharged).
Accordingly, the court finds that this objection is without merit.4

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OMO appears to also argue that the Navy is the entity that had true control over
the hiring and firing decisions of OMO employees. Title VII does not allow for
employers to claim indemnity as a defense for discrimination. See E.E.O.C. v.
Blockbuster Inc., 2010 WL 290952, at *4 (D. Md. Jan. 14, 2010) (“The primary goal of
Title VII to eradicate discriminatory conduct would be thwarted if Blockbuster were
permitted to contract around its obligations and shift its entire responsibility for
complying with Title VII.”). While the ultimate holding in Blockbuster was about Title
VII’s bar on an employer’s contractual claim for indemnity, the language is persuasive
that the Congressional intent behind Title VII was to protect workers from
discrimination—an intent that would be undercut by an employer engaging in
discriminatory employment practices and defending its actions as directed by another
entity. The court refuses to allow such an interpretation of Title VII.
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2.

No reasonable jury could conclude that OMO’s proffered
explanation is unworthy of credence

Brown argues that there are “so many witnesses involved, and such a large
volume of testimony” that a reasonable jury could “very well” find OMO’s proffered
nondiscriminatory explanation unworthy of credence. ECF No. 65 at 2. Like Brown’s
first objection, this objection also attacks the McDonnel Douglass framework’s
requirement that a plaintiff prove pretext. Under the McDonnell Douglas framework
“[t]he ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450
U.S., at 253. Here, Brown has failed to satisfy this burden—she includes no specific cites
to the record to refute the emails, memoranda, and deposition testimony regarding the
Navy’s communications with OMO about Brown’s excessive LWOP to support an
inference that OMO’s explanation was pretextual. Brown’s general gesture at the “large
volume of testimony” is insufficient to prove that a rational trier of fact could conclude
that OMO’s proffered reason for Brown’s termination was pretext. Accordingly, this
objection fails.
3.

Brown’s termination was not discriminatory because
Omosowofa is of same race as Brown

The R&R noted that Omosowofa is of the same race as Brown, and factored this
into the finding that Brown’s termination was not discriminatory. Brown objects to the
R&R’s finding that Omosofwofa being of the same race as Brown “weakened” Brown’s
discrimination claim. ECF No. 65 at 2. Courts, including this one, have found that the
fact that the decisionmaker is a member of a plaintiff’s protected class weakens a possible
inference of discrimination. See, e.g., Reap v. Cont’l Cas. Co., 2002 WL 1498679, at
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*14 (D.N.J. June 28, 2002) (holding that the membership of the alleged discriminatory
decisionmakers were in the same protected age group as the petitioner diminished “any
possible inference” of age discrimination); Ferguson v. Waffle House, Inc., 18 F. Supp.
3d 705, 722 (D.S.C. 2014) (noting that where the decisionmaker is a member of
plaintiff’s own protected class “any possible inference of discrimination” is weakened)
(internal citations and quotations omitted). However, the R&R did not conclude that the
only reason that Brown’s termination was not discriminatory was because Omosowofa is
of the same race as Brown—instead, it focused much of its analysis on the legitimate,
non-discriminatory nature of Omosowofa’s proffered explanation for Brown’s
termination. As explained above, the court finds that the R&R properly found that
Omosowofoa’s proferred nondiscriminatory reason for terminating Brown was
legitimate, and that Brown failed to fulfill her burden of showing pretext. While the fact
that Omosowofa is a member of Brown’s protected race group diminishes an inference of
race discrimination, it is not dispositive of whether discrimination occurred, and the R&R
did not treat it as such.
Brown objects further that the magistrate judge failed to demonstrably appreciate
that at the time of her termination Brown was a pregnant African-American woman. In
other words, Brown argues that the magistrate judge erred by not considering that Brown
was at the intersection of two protected classes. Title VII prohibits employers from
discriminating against employees based on certain protected individual traits—race,
color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2. It also protects
individuals against discrimination based on the combination or “intersection” of two or
more protected classifications, even in the absence of evidence showing the defendant
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discriminated solely on the basis of one protected classification. Westmoreland v. Prince
George’s Cty., Md., 876 F. Supp. 2d 594, 604 (D. Md. 2012). The EEOC Compliance
Manual states:
Title VII prohibits discrimination not just because of one protected trait
(e.g., race), but also because of the intersection of two or more protected
bases (e.g., race and sex). For example, Title VII prohibits discrimination
against African American women even if the employer does not
discriminate against White women or African American men. Likewise,
Title VII protects Asian American women from discrimination based on
stereotypes and assumptions about them “even in the absence of
discrimination against Asian American men or White women.” The law
also prohibits individuals from being subjected to discrimination because
of the intersection of their race and a trait covered by another EEO
statute—e.g., race and disability, or race and age.
EEOC Compliance Manual, Section 15: Race and Color Discrimination, at
https://www.eeoc.gov/policy/docs/race-color.html (Last visited Feb. 22, 2017). Courts
have explained that the “intersectional” discrimination theory applies to plaintiffs who
have been discriminated against because of distinct stereotypes associated with persons
belonging to two or more protected classes. See Wis. Dept. of Workforce Dev., 690 F.
Supp. 2d 765, 769–771 (E.D. Wis. 2010) (“It is sometimes mistakenly thought that the
black male experience represents a mere racial variation on the white male experience
and that black men suffer from discrimination only because they are black.
Conceptualizing separate over-lapping black and male categories has sometimes
interfered with the recognition that certain distinctive features of being black and male
serve as the target for discrimination”) (emphasis added).
All this being said, it is unclear here what, if any, error in the R&R’s reasoning
Brown is asserting based on the intersectional discrimination theory. An objection on the
basis that intersectionality theory exists is insufficient to mount a specific objection
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against the R&R—indeed, Brown makes no reference to any portion of the R&R that
misapplied the intersectionality theory, nor does she reference any portion of the R&R
that should have applied the intersectionality theory and failed to do so. 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 [judge]’s
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982).
Brown also objects to the R&R on the basis that Omosowofa, who is originally
from Nigeria, and Brown, who was born in the United States to an African-American
father and a Panamian mother, do not share a common cultural background. ECF No. 65
at 2. Brown asserts that “a shared complexion does not guarantee racial solidarity, and
for the purposes of an employment discrimination claim, it should be left to the jury to
decide whether Mr. Omosowofa’s biases or prejudices played a part” in Brown’s
termination. Id. The court takes into consideration the social science data that Brown
attached to her objections showcasing the difference in attitudes and inter-group biases
between African immigrants and African-Americans. However, much like Brown’s
objection regarding intersectionality theory, the court is unsure what Brown is asking the
court to do with this information. Brown contends that it “should be left to the jury to
decide whether [Omosowofa’s] biases or prejudices played a part in [Brown’s]
termination,” ECF No. 65 at 2, but as explained above Brown failed to put forth sufficient
evidence showing that OMO’s proferred legitimate explanation for terminating Brown
was pretext. The additional exhibits that Brown attaches to her objections are not
sufficient to fulfill this evidentiary burden.
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Additionally, a review of the briefing in the summary judgment motion reveals
that Brown made no mention of the “social and cultural rift” between African immigrant
and African-American communities before the magistrate judge. Courts have frowned
upon objections to R&Rs that make new arguments that serve as a new basis for
summary judgment. See, e.g., Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)
(finding that requiring a district court to consider new arguments raised in objections
would unfairly benefits litigants who change their tactics in response to an unfavorable
recommendation from the magistrate); Murr v. United States, 200 F.3d 895, 902 n. 1 (6th
Cir. 2000) (a party’s failure to raise an argument before the magistrate judge constitutes
waiver); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (finding that issues
raised for the first time in objections are waived); Paterson-Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st Cir. 1988) (“We hold categorically that
an unsuccessful party is not entitled as of right to de novo review by the judge of an
argument never reasonably raised before the magistrate.”). Thus, Brown’s failure to raise
this argument before the magistrate judge serves as an independent basis to set aside her
objection.
4.

Brown failed to identify any non-pregnant employees who were
given more favorable treatment by being allowed to take more
than forty hours of LWOP

Brown’s objection regarding the R&R’s finding that Brown failed to identify any
non-pregnant employees who were given more favorable treatment by being allowed to
take more than forty hours of LWOP misunderstands the R&R. The R&R specifically
finds that Brown has proven her prima facie case, noting that “white employees were
allowed to take LWOP in excess of 40 hours and keep their jobs, and [Brown] was
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replaced by a white employee who was not pregnant at the time of her hire.” ECF No. 63
at 13. The R&R points to Alexia Gugino, Brown’s replacement, who was not pregnant at
the time that she was hired but who subsequently became pregnant and took 80 hours of
LWOP during the time of her pregnancy. ECF No. 63 at 13. Additionally, the R&R
states that Anna Wrenn-Bruton, a white dental hygienist, took more than 40 hours of
unpaid leave while pregnant and was not terminated. ECF No. 63 at 12. It is at the
pretext prong of the McDonnell Douglas test where Brown fails. As discussed above, the
court finds that Brown has failed to provide sufficient evidence that OMO’s articulated
reasons for Brown’s termination are false and that discrimination was in fact the reason
for Brown’s termination. Therefore, this objection fails.

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IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the R&R, GRANTING the
Navy’s motion to dismiss and GRANTING OMO’s motion for summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 28, 2017
Charleston, South Carolina

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