South Carolina Cases January 05, 2022: Lusby v. Savannah River Nuclear Sols.

Case Description

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

The plaintiff, Richard Lusby, brings this employment case asserting claims for discrimination and retaliation pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. , against the defendant, Savannah River Nuclear Solutions, LLC. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion for summary judgment (ECF No. 25). Lusby filed a response in opposition (ECF No. 30), and the defendant replied (ECF No. 34). Having reviewed the parties' submissions and the applicable law, the court finds that the defendant's motion should be granted.

BACKGROUND

The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. The plaintiff began working at the Savannah River Site in 1991. In 1995 he took medical leave for thyroid cancer. Ten years later, he was promoted to a First-Line Manager position in the Radiation Protection Department. In 2009, he was again diagnosed with cancer and took medical leave from August 2009 to January 2010. He subsequently returned to his job duties without the need for accommodation, and, following his

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return from leave, routinely consulted with SRS Occupational Health Services to ensure he was fit for duty.

In October 2012, the plaintiff was involuntarily transferred to the Health Physics Services area in connection with a reorganization due to budget concerns. Ken Boyle, a higher paid employee, was placed in the plaintiff's former position as a department transfer. The plaintiff submitted an internal complaint about his transfer. Through alternative dispute resolution, the plaintiff accepted a position as an Emergency Preparedness Specialist in December of 2013. In September 2014, the plaintiff renewed his concerns regarding his former transfer from the Radiation Protection Department.

In February of 2013, the plaintiff sought compensation from the federal Department of Labor based on his cancer, which was ultimately approved. The defendant was aware of this claim.

In February of 2016, the plaintiff filed a complaint with the Department of Energy alleging retaliation for his former complaint regarding his transfer from the Radiation Protection Department. Specifically, he asserted that the defendant had failed to promote him into any of the fourteen positions for which he had since applied. After pursuing his administrative remedies, he filed the instant Complaint in federal district court.

DISCUSSION

A. Summary Judgment

Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

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admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[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 there be no genuine [dispute] of material fact .” Ballinger v. N.C. Agric. Extension Serv. , 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.

In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc. , 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).

B. Methods of Proof in Employment Cases

A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins.Co.,

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416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973); Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc. , 53 F.3d 55, 58 (4th Cir. 1995) (holding that the McDonnell Douglas framework applies to claims brought under the ADA). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight , 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves , 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappear[s], and the sole remaining issue [is] discrimination vel non .” Id. (internal quotation marks and citations omitted).

In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext for discrimination.” Merritt , 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt , 601 F.3d at 294 (quoting Burdine , 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co. , 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine , 450 U.S. at 256.

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“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves , 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred, ” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt , 601 F.3d at 294-95.

C. Lusby's Claims

1.Failure to Promote

Lusby asserts discrimination under the ADA based on the defendant's repeated failure to promote him. As an initial matter, the defendant correctly points out that any claim based on promotions denied to Lusby before April 14, 2018 are time barred. Lusby agrees that is the case;

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the defendant is therefore entitled to summary judgment as to claims based on those discrete acts of failing to promote Lusby.

As to the timely claims, to establish a prima facie case of failure to promote under the ADA, the plaintiff must show that: (1) he is within the ADA's protected class; (2) he applied for the position in question; (3) he was qualified for that position; and (4) the defendant rejected his application under circumstances that give rise to an inference of discrimination. See Honor v. Booz-Allen & Hamilton, Inc. , 383 F.3d 180, 189 (4th Cir. 2004) (Title VII); Heiko v. Colombo Savings Bank , 434 F.3d 249, 258 (4th Cir. 2006) (applying the McDonnell Douglas prima facie case to ADA failure-to-promote claims). The defendant challenges Lusby's ability to show the first and fourth elements. And for at least one of the positions at issue, the defendant also appears to contend that Lusby cannot satisfy the third element-that he was qualified for the position.

As to the first element, to be within the ADA's protected class, Lusby must show that he is a qualified individual. The ADA prohibits a covered employer from discriminating “against a

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qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A plaintiff is a “qualified individual” if he, “with or without reasonable accommodation, can perform the essential functions” of the job that he “holds or desires.” 42 U.S.C. § 12111(8). Under the ADA, a “disability, ” with respect to an individual, includes:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment . . . .

42 U.S.C. § 12102(1).

Here, Lusby rests his claims on the contention that his cancer history gave him a record of impairment, and that the defendant regarded him as having a disability. But as the defendant points out, no evidence tends to show that any actual decision maker for the promotions at issue regarded Lusby as disabled based on his cancer treatments in 1995 and 2009. See , e.g. , Bishop v. Tomas Howard & Co. , C/A No. 3:05-3612-JFA-JRM, 2008 WL 687493, at *10 (D.S.C. Mar. 11, 2008) (stating that the analysis of a “regarded as” claim “focuses on the reactions and perceptions” of the decision makers); Arthur v. Am. Showa, Inc. , No. 1:13-cv-382, 2014 WL 5609842, at *6 (S.D. Ohio Nov. 4, 2014) (“A disability plaintiff must show that the actual decision-maker knew of his disability, or regarded him as being disabled. It is not enough to show that someone at his employer may have known about it.”), aff'd , 625 Fed.Appx. 704 (6th Cir. 2015); see also Haulbrook v. Michelin N. Am. , 252 F.3d 696, 703 (4th Cir. 2001). Furthermore, Lusby himself testified that after his cancer treatments, he returned to work with no restrictions and was physically able to do his job. (Lusby Dep. at 86, 76, 293, ECF No. 25-2 at 11, 5, 25.) Accordingly, Lusby cannot meet the elements of a prima facie case for failure to promote.

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Even if Lusby could meet the prima facie test, he has not shown that the defendant's proffered legitimate, nondiscriminatory reasons for failing to promote him were pretextual. Of the claims based on positions Lusby was denied, only three are timely: 3633BR (Radiological Controls); 4192BR (Training Manager), and 4255BR (Facility Manager). See supra text accompanying note 1. And with respect to these three positions, the defendant has offered two reasons for not promoting Lusby: (1) that Lusby interviewed poorly; and (2) that the selected candidate had better qualifications.

As to position 3633BR, Lusby argues the proffered reason is false. He cites evidence that Scott Craft, the source of the defendant's proffered reason that Lusby interviewed poorly, emailed Lusby the day after his interview commending him. ( Compare Craft Decl. ¶ 11, ECF No. 25-5 at 2, with Pl.'s Mem. Opp'n Ex. L, ECF No. 30-12.) He further argues that Craft repeated the complimentary remarks about Lusby's interview when Craft called Lusby to inform him that he had not been selected. (Pl.'s Mem. Opp'n Ex. N, ECF No. 30-14.) Further, Lusby contends that Craft's contemporaneous notes from the interview contradict the declaration submitted by the defendant. (Pl.'s Mem. Opp'n Ex. M, ECF No. 30-13.)

Courts have recognized that a showing that an employer has dissembled about the proffered reason can be evidence of pretext. See Reeves , 530 U.S. at 148 (“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”); E.E.O.C. v Sears Roebuck & Co. , 243 F.3d 846, 852-53 (4th Cir. 2001) (“[T]he fact that [the employer] has offered different justifications at different times for its failure to hire [the plaintiff] is, in and of itself, probative of pretext.”). However, consideration of all the factors discussed in Reeves leads to the conclusion that Lusby's evidence in this regard is insufficient to overcome the defendant's well-

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supported motion for summary judgment. Reeves , 530 U.S. at 148-49 (stating that the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law”). As discussed above, Lusby fails to establish a prima facie case with respect to the defendant's failure to promote him to position 3633BR, and even if he could meet those elements, the prima facie case would be weak at best. Any inconsistencies in the explanation by Craft are only mildly probative, as Craft was only one of three decision makers with respect to that position. Moreover, the undisputed evidence in the record shows that the person selected for the position performed better in his interview than Lusby. ( See Williams Interview Form, ECF No. 30-15) (showing that Williams received an overall weighted score of 84 in his interview compared to Lusby's score of 38).

Regarding 4192BR, which encompassed two positions for Training Manager in different departments, the defendant stated that Lusby did not possess the requisite management experience. Lusby takes issue with this proffered reason because the person ultimately selected for one of the Training Manager positions, John Denton, had similar experience to Lusby's. Both had worked for the defendant since 1991. Further, according to Lusby, his educational experience was superior to Denton's, but they received the same score for that category.

Similarly, with respect to position 4255BR, the Facility Manager position, the defendant asserts that Lusby had insufficient experience. As with the other positions, Lusby attempts to show

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pretext by arguing that other evidence undermines or contradicts the defendant's stated reason. And he makes much of the fact that the decision maker consulted with the human resources department before responding to Lusby's inquiry about why he was not selected.

Again, however, he cannot show that his self-assessment was shared by the decision makers. See Carrier-Tal v. McHugh , Action No. 2:14cv626, 2016 WL 9016633, at *15 (E.D. Va. Apr. 15, 2016) (finding that the adamant beliefs of the plaintiff and an individual involved in the selection process that the plaintiff was more qualified than the individual selected was insufficient to establish pretext as it is the perception of the decision maker which is relevant). To the contrary, as the defendant points out, the evidence is consistent that Lusby was passed over because he lacked experience in the areas deemed significant by the decision makers. (Pifer Dep. at 42-45, Def.'s Mot. Summ. J. Ex. N, ECF No. 25-15 at 5-7) (stating that Lusby did not have as much experience with environmental compliance, the current visual data system, or management above the FLM level as those who were interviewed and the person ultimately selected); see also Scaria v. Rubin , 117 F.3d 652, 654-55 (2d Cir. 1997) (granting summary judgment where the defendant selected the candidate with more relevant experience over the plaintiff who had more education). Contrary to Lusby's argument, the spreadsheet which details the scores received in various categories by the candidates for the 4255BR position supports rather than undermines the defendant's stated reason. (Pl.'s Resp. Opp'n Ex. U, ECF No. 30-21 at 2) (awarding more points to other candidates in both the “relevant work experience” and “additional skills and strengths” categories).

To carry his burden to show pretext in this scenario, Lusby must show that his qualifications were demonstrably superior to the chosen candidate's. Similar backgrounds will not meet that burden. Heiko v. Colombo Sav. Bank, F.S.B. , 434 F.3d 249, 261-62 (4th Cir. 2006).

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Further, “[w]hen a plaintiff asserts job qualifications that are similar or only slightly superior to those of the person eventually selected, the promotion decision remains vested in the sound business judgment of the employer.” Id. at 261. Additionally, the plaintiff “cannot establish h[is] own criteria for judging h[is] qualifications for the promotion. [H]e must compete for the promotion based on the qualifications established by h[is] employer.” Anderson v. Westinghouse Savannah River Co. , 406 F.3d 248, 269-71 (4th Cir. 2005) (affirming the award of summary judgment to the defendants where plaintiff made a strong showing that some of her qualifications were demonstrably superior, but they were not the criteria that the employer based its decision upon). Here, Lusby has failed to show that he possessed demonstrably superior qualifications for any of the positions at issue.

The defendant is therefore entitled to summary judgment on Lusby's claims based on failure to promote, as Lusby has failed to forecast evidence to support a finding of intentional discrimination based on a disability. See Merritt , 601 F.3d at 294-95 (“Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.”).

2.Retaliation

The requisite elements for a prima facie case of retaliation under the ADA typically include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against him; and (3) there was a causal connection between the protected activity and the asserted adverse action. Reynolds v. Am. Nat'l Red Cross , 701 F.3d 143, 154 (4th Cir. 2012). “Importantly, a plaintiff is not required to prove the conduct he opposed was actually an ADA violation. Rather,

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he must show he had a ‘good faith belief' the conduct violated the ADA.” Id. (citing Freilich v. Upper Chesapeake Health , 313 F.3d 205, 216 (4th Cir. 2002)).

Lusby's retaliation claim fails on the first and third elements. As the defendant meticulously chronicles in its memoranda, Lusby cannot identify any activity protected by the ADA that occurred prior to the adverse acts of which he complains. ( See Def.'s Reply at 12-15, ECF No. 34 at 12-15); see also Morrall v. Gates , 370 Fed.Appx. 396, 398 n.2 (4th Cir. 2010) (holding that summary judgment is appropriate on a retaliation claim when the protected activity occurred after the adverse acts). Similarly, he identifies no evidence suggesting that the decision makers knew of any complaints. See Wright v. Sw. Airlines , 319 Fed.Appx. 232, 234 (4th Cir. 2009) (declining to impute knowledge to the actual decision makers where other corporate officials were aware of the plaintiff's protected activity); see also Dowe v. Total Action Against Poverty in Roanoke Valley , 145 F.3d 653, 657 (4th Cir. 1998) (“Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case.”). Therefore, he cannot establish any causal connection. To the extent he relies on the fact that he filed a workplace claim asserting that his job duties caused his cancer, such a claim does not constitute protected activity under the ADA. See Coker v. Int'l Paper Co. , C/A No. 2:08-1865-DCN-BM, 2009 WL 6057269, at *8 (D.S.C. Sept. 23, 2009) (Report and Recommendation) (finding that filing a workers compensation claim is not protected activity under the ADA), adopted by 2010 WL 1072643 (Mar. 18, 2010).

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RECOMMENDATION

The plaintiff cannot establish a prima facie case of disability discrimination and, even if he could, the evidence in the record does not permit a reasonable inference that the defendant's stated reason for failing to promote the plaintiff were pretextual. The motion for summary judgment should therefore be granted.

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Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n 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.' ” Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

901 Richland Street

Columbia, South Carolina 29201

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn , 474 U.S. 140 (1985); Wright v. Collins , 766 F.2d 841 (4th Cir. 1985); United States v. Schronce , 727 F.2d 91 (4th Cir. 1984).

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