South Carolina Cases October 19, 2021: Warren v. S.C. Dep't of Corr.

Case Description

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REPORT AND RECOMMENDATION

Shiva V. Hodges United States Magistrate Judge

In this employment discrimination case, an employee argues she was paid less than a male coworker in the same position and that he was thereafter unfairly promoted instead of her.

Angela C. Warren (“Plaintiff”) sues her employer South Carolina Department of Corrections (“SCDC”) and Director Bryan P. Stirling (“Stirling”) in his official capacity (collectively “Defendants”), asserting claims of discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq . (“Title VII”) and the South Carolina Human Affairs Law S.C. Code § 1-13-10, et seq. (“SCHAL”). Plaintiff also asserts discrimination and retaliation claims pursuant to the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”). This matter comes before the court on

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Defendants' motion for summary judgment. [ECF No. 25]. The motion having been fully briefed [ECF Nos. 26, 27], it is ripe for disposition.

All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Because the motion for summary judgment is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court grant Defendants' motion.

I. Factual Background

Before being hired by SCDC, Plaintiff worked in the South Carolina Department of Juvenile Justice (“DJJ”) and had a bachelor's degree and a master's degree. [ECF No. 25:2 at 13:13-24, 19:8-12]. Warren was encouraged to apply for the regional re-entry coordinator (“RRC”) position at SCDC after receiving a call from Virginia Barr (“Barr”), Division Director, who informed Warren that SCDC was starting a new program. Id. at 20:1524. Four applicants, all of whom came from DJJ, were ultimately hired for the available RRC positions: Paige Dowdle (“Dowdle”), Timothy Adams (“Adams”), James Meek (“Meek”), and Plaintiff. Id. at 22:15-23:6.

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Plaintiff was hired via letter dated October 27, 2011, at an annual salary of $42,000. [ECF No. 26-2]. Plaintiff testified that Dowdle and Adams also earned an annual salary of $42,000. [ECF No. 25-2 at 24:15-21, see also id. at 52:23-53:1]. Meek was hired at the same time as Plaintiff for the same position and negotiated a salary of $48,000. [ECF No. 26-4].

On May 17, 2014, Plaintiff received an employee performance review stating that she had “substantially exceeded expectations” concerning supervision of the Region's Intensive Supervision Officers. [ECF No. 26-8 at 3]. Plaintiff has submitted evidence that in September 2014 she complained to her supervisor Barr about the unequal pay between her and Meek. [ECF No. 26-7 at 2]. On May 17, 2015, Plaintiff received an employee performance review with a lower score compared to the year before concerning her supervision of the Region's Intensive Supervision Officers that stated “[i]t is recommended that Ms. Warren work to develop strategies to improve staff retention.” [ECF No. 26-9 at 3].

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In 2017, Plaintiff received a pay raise to $51,242 as part of a phaseincrease process based on merit and knowledge to improve staff retention. [ECF No. 26-3].

In March 2019, a manager of community services position became available, and the job posting identified the following minimum requirement:

Master's degree and three (3) years of supervision of field personnel engaged in community supervision of parolees or a Bachelor's degree and seven (7) years of supervision of field personnel engaged in community supervision of parolees.

[ECF No. 26-5 at 2].

Barr testified SCDC may receive “a hundred applications” for a given position, and a scoring process was used to secure an interview and then another scoring process was used during the hiring interview, as follows:

There was a form that would have what is the basic criteria of the job and that would include experience, education, primarily experience and education. Then there would be criteria that was more related to the job itself. So, it might be supervision of people, it might be money management. It could be any number of skills that the job might require. Each one of those categories would be weighted, what percentage for the job was going to be training people And then you would score each category

[ECF No. 26-10 at 10:20-11:5, 41:3-16]. Barr testified the scoring process did not determine the salary received by the person hired, but that in some

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instances a person could negotiate a higher salary prior to being hired. Id. at 12:12-13:5, 22:13-17.

In the interview process for the community services position, each interviewer gave Meek 5 points for his bachelor's degree and 6 points for having 10+ years related experience, between 17 and 19 points for supervision/leadership skills, and overall received the following scores from each interviewer, out of 100: 95, 90, 88. [ECF No. 26-6 at 1-3]. Plaintiff received 7 points for her master's degree and 6 points for having 10+ years related experience, and 10 to 15 points for supervision/leadership skills, and overall received the following scores from each interviewer out of 100: 76, 68, 66. Id. at 4-6. Of all the applicants who were interviewed, Meek had the highest scores. [ See ECF No. 27-1 (Meek total score of 273, Plaintiff total score of 210, Wagner total score of 260, and Little, who also had a master's degree that was appropriately scored like Plaintiff's, total score of 252)].

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Meek was chosen for the job, over Plaintiff, as well as another black female applicant Lori Bennet (“Bennet”), both of whom had master's degrees. [ECF No. 26-10 at 29:7-15, 38:1-10]. Bennet was not interviewed for the community services position, and she testified that she “had all leadership training that's offered by the Department of Corrections,” but that she had “applied for several positions within our division based on qualifications, but [had] not received an interview for them,” indicating Barr was the decisionmaker during the relevant time period. [ECF No. 26-12 at 23:12-13, 24:14-19; see also id. at 33:7-34:11].

Plaintiff submitted an email complaint to SCDC on June 17, 2019, complaining of unequal pay. [ECF No. 26-7]. In it, Plaintiff detailed her prior complaints to Barr concerning her perceived pay discrepancy dating back to 2014. [ECF No. 26-7, ECF No. 26-10 at 35:2-7 (Barr testifying that Plaintiff spoke to her about pay discrepancies between Plaintiff and Meek)].

Barr testified in the 9-10 years she worked in Plaintiff's department, there were multiple black female supervisors, but no black female supervisors on the level of assistant division director or manager of community services and for those positions, “we chose the best persons for the job.” [ECF No. 26-10 at 39:13-40:3].

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II. Discussion

A. Standard on Summary Judgment

The court shall grant summary judgment “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). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. 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

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the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

B. Analysis

1. Discrimination Claims

Absent evidence of direct discrimination, Plaintiff may use the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove her claim of Title VII discrimination. A plaintiff must show: (1) she is a member of a protected class; (2) she was performing her duties in a satisfactory manner; (3) she was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc. , 629 Fed.Appx. 466, 468 (4th Cir. 2015).

If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for its decision. Hemphill v. United Parcel Serv., Inc. , 975 F.Supp.2d 548, 557 (D.S.C. 2013). This is merely a burden of production, not of persuasion. St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 507 (1993). Once Defendant meets its burden by

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producing a legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non. ” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendant is not the true reason, but was pretext for discrimination. Id. Throughout the burden-shifting scheme set forth in McDonnell Douglas , the ultimate burden of proving that Defendant intentionally discriminated against Plaintiff remains at all times with Plaintiff.

For purposes of resolving Defendants' motion, the court assumes that Plaintiff has presented a prima facie case, where she has put forth evidence that she is a black female, was performing her duties well, and was paid less than a white male who had the same job title as her and was hired at the same time and was, unlike him, not promoted to the community services position.

However, Defendants have offered multiple legitimate, nondiscriminatory reasons that Meek was compensated higher than Plaintiff when hired, including that he was in a higher position at the DJJ, had more relevant experience, made more money prior to being hired, and negotiated for a higher salary when hired. Plaintiff does not address these reasons. Defendants also have offered the score sheets as evidence for hiring Meek,

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and not Plaintiff, for the community services position, further offering testimony as to the importance of relevant experience, which Meek had more of than Plaintiff. [See ECF No. 26-10 at 46:17-47:6 (Barr testifying that Meek had more relevant experience than Plaintiff); ECF No. 26-11 at 26:11-22 (Nichols testifying that education cannot replace on-the-job experience); see also ECF No. 25-2 at 38:8-39:3 (Plaintiff testifying that at the DJJ, Meek supervised other employees, but she did not)].

Plaintiff does not directly address these reasons, and instead focuses on her superior education and years of experience. However, Plaintiff does not dispute that Meek was more qualified than she was for the position and cannot dispute that her superior education, as well as her years of experience, were correctly scored on her scoring sheets. See Riley v. Honeywell Tech. Solutions, Inc. , 323 Fed.Appx. 276, 277 (4th Cir. 2009) (holding that a white employee's prior job experience, which the plaintiff lacked, was sufficient to defeat a claim of pretext where that experience was “critical” to the job); Evans v. Techs. Applications & Serv. Co. , 80 F.3d 954, 960 (4th Cir. 1996) (affirming trial court's ruling where “prior supervisory experience” was one basis for promoting a male over a female); Wileman v. Frank , 979 F.2d 30, 38 (4th Cir. 1992) (“[T]he employer has discretion to choose among equally qualified candidates provided the decision is not based upon unlawful criteria.”); Mack v. S.C. Dep't of Transportation ,

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C/A No. 3:12-2960-MGL-KDW, 2015 WL 1297836, at *1 (D.S.C. Jan. 28, 2015) (upholding the legality of paying similarly-situated employees on the basis of “similar background, duties, and experience”); see also Tavernier v. Healthcare Mgmt. Assocs., Inc. , C/A No. 0:10-01753, 2012 WL 1106751, at *9 (D.S.C. Mar. 30, 2012) (holding that defendant had articulated legitimate, nondiscriminatory reasons for paying a male more than plaintiff where he had more experience, the “salary was necessary to attract him to the position,” and where the offer was more than he was previously making), aff'd sub nom. Tavernier v. Health Mgmt. Assocs., Inc. , 498 Fed.Appx. 349 (4th Cir. 2012).

Plaintiff also argues that “the pattern and practice of Defendants, as evidenced by Defendants' treatment of Lorri Bennet as well as Plaintiff,” indicates Defendants' proffered reasons are pretext for discrimination. However, Plaintiff has failed to submit sufficient evidence in support of this argument. See, e.g., Lightner v. City of Wilmington, N.C. , 545 F.3d 260, 265 (4th Cir. 2008) (“[t]he similarity between comparators . . . must be clearly established in order to be meaningful.”). Although both women had master's degrees, had experience, and were not promoted by panels that included Barr, the record is devoid of any evidence concerning why Bennet did not receive an interview for the community services position or any other position. See Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o establish a valid comparator, the plaintiff must produce

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evidence that the plaintiff and comparator . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.” (citation omitted)). Instead, both Plaintiff and Defendants have submitted the scoring sheets from the interview process for the community services position, and this evidence shows both that Plaintiff's education level was properly scored and that Meek scored higher than any other candidate interviewed. [ See , e.g. , ECF No. 27-1].

Plaintiff additionally argues that although Barr advocated for Nichols to receive a position and higher pay, “Bennett did not receive interviews at all much less a position created for her, and Plaintiff complained of unequal pay and Virginia Barr did not advocate for her.” [See ECF No. 26 at 9-10]. However, the record does not indicate that Nichols and Bennet are valid

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comparators, and it is undisputed that Barr advocated for Nichols to receive more compensation before he was hired, not after. [ See ECF No. 26-11 at 23:15-21]. As Nichols and Barr both testified, in their experience at SCDC, no one negotiated increased compensation after accepting a certain salary. [ See ECF No. 26-10 at 21:8-22:5; ECF No. 26-11 at 16:5-17:3].

Here, Plaintiff has not carried her burden to prove SCDC's proffered reasons are pretext for discrimination. Accordingly, the undersigned recommends Defendants' motion be granted as to Plaintiff's Title VII and SCHAL discrimination claim.

2. Retaliation Claims

Title VII prohibits an employer from retaliating against an employee because the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a). To make a prima facie claim of retaliation, a plaintiff must show: (1) that she engaged in protected activity,

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(2) that the employer took a materially adverse action against her and (3) there is a causal connection between the protected activity and the adverse action. See Evans v. Int'l Paper Co. , 936 F.3d 183, 195 (4th Cir. 2019) (citing Burlington N & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)).

Plaintiff argues she engaged in protected acts by repeatedly complaining about the unequal pay she received, compared to Meek, and, in response, (1) she received a lower score on her performance evaluation in May 2015, after complaining in July 2014, and (2) she was not chosen for the community manager position given to Meek after March 2019. [ See ECF No. 26 at 11].

The Fourth Circuit has held “[a] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson , 380 F.3d 209, 213 (4th Cir. 2004)

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(citations omitted). Additionally, the “temporal proximity between an employer's knowledge of protected activity and an adverse employment action” must be “very close.” Clark Cnty. Sch. Dist. v. Breeden , 532 U.S. 268, 273 (2001) (citations omitted).

Here, Plaintiff has failed to establish a prima facie case where she offers no causal connection beyond temporal proximity, and the temporal proximity offered is too tenuous. See, e.g., Ali v. BC Architects Engineers, PLC , 832 Fed.Appx. 167, 173 (4th Cir. 2020), as amended (Oct. 16, 2020) (holding two weeks close enough, but three months “too tenuous to support a reasonable inference of causation”).

Accordingly, the undersigned recommends Defendants' motion be granted as to Plaintiff's Title VII and SCHAL retaliation claims.

3. EPA Claims

The EPA prohibits gender-based discrimination by employers resulting in unequal pay for equal work “except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1); Corning Glass Works v. Brennan , 417 U.S. 188, 195 (1974). A plaintiff establishes a prima facie

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case of discrimination under the EPA by demonstrating that (1) the defendant-employer paid different wages to an employee of the opposite sex (2) for equal work on jobs requiring equal skill, effort, and responsibility (3) performed under similar working conditions. U.S. Equal Empl. Opportunity Commn. v. Maryland Ins. Administration , 879 F.3d 114, 120 (4th Cir. 2018) (citations omitted). To obtain a remedy under the statute, an EPA plaintiff need not prove the employer acted with discriminatory intent. Id. “Once a plaintiff has made the required prima facie showing, under the EPA, the burdens of production and persuasion shift to the defendant-employer to show that the wage differential was justified by one of four affirmative defenses listed in the statute.” Id.

Here, as discussed above, Defendants have submitted evidence Meek was paid more than Plaintiff pursuant to a differential based on factors other than sex, namely that he was in a higher position at the DJJ, had more relevant experience, made more money prior to being hired, and negotiated for a larger salary when hired. As argued further by Defendants, and not disputed by Plaintiff:

While all of the employees had at least some relevant experience, not all of the employees had equal prior experience. For example, comparator Meeks had over twenty years of experience in law enforcement and supervisory experience, whereas the Plaintiff had little to none. These are important components of Defendant's mission, and expertise in these matters on the part of the Defendant's employees is preferred. Context is important

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here-this was a new program being offered by SCDOC that needed hands-on experience to launch. In this respect, the prior supervisory experience isn't just important, it is irreplaceable if the program were to have any lasting success.

[ECF No. 25-1 at 18-19].

Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's EPA claims.

III. Conclusion and Recommendation

For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion for summary judgment [ECF No. 25].

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.

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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).