South Carolina Cases June 15, 2022: Harris v. S.C. Revenue & Fiscal Affairs Office

Case Description

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REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Jacquelyn D. Austin United States Magistrate Judge

This matter is before the Court on Defendant's motion for summary judgment. [Doc. 34.] Plaintiff alleges race discrimination and retaliation claims pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). [Doc. 1-1 at 6-8 ¶¶ 25-37.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

Plaintiff filed this action on December 8, 2020, in the Richland County Court of Common Pleas. [Doc. 1-1.] Defendant removed the case to this Court on December 23, 2020 [Doc. 1], and filed a motion for summary judgment on November 30, 2021 [Doc. 34]. Plaintiff filed a response in opposition to the motion on December 23, 2021 [Doc. 38], and Defendant filed a reply on January 4, 2022 [Doc. 39]. Accordingly, the motion for summary judgment is ripe for review.

BACKGROUND

Plaintiff, a black male, began working for Defendant in April 2018. [Docs. 1-1 at 4 ¶¶ 6-7; 6 ¶¶ 6-7; 38-1 at 2:23-24.] He had previously worked for the South Carolina

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Senate, and he informed a senator and the Senate clerk that he wanted to pursue a different direction in his career. [Doc. 34-18 at 2:1-25.] Frank Rainwater, Defendant's Executive Director, received a call from the Senate asking if Defendant would hire Plaintiff. [Docs. 1-1 at 4 ¶ 9; 34 at 2; 34-20 at 3:3-19.] Rainwater had interacted with Plaintiff when Plaintiff worked for the Senate and when he had previously been a reporter, and Rainwater felt they had a good relationship. [Doc. 34-20 at 3:12-4:18.] Therefore, Rainwater created a communications manager position and hired Plaintiff to fill the position. [ Id. at 3:24-4:7.]

Plaintiff Addresses Diversity and Perceived Discriminatory Pay

On September 5, 2018, Plaintiff sent an email to Rainwater with the subject line, “Creating diverse teams,” and included information from an article about diversity in the workplace specifically related to the correlation between managers' ethnicity and the ethnicity of their direct reports. [Doc. 34-2.] Rainwater responded that he would share the information with Debbie Glenn, Defendant's human resources director. [ Id. ] Rainwater and Glenn then talked about Plaintiff's email, and Glenn subsequently followed up with the State's human resources department to ensure Defendant was not “missing any opportunity.” [Doc. 34-20 at 5:1-6:1.] Glenn and the State human resources department determined that Defendant was “doing everything that [it] could.” [ Id. at 6:1-4.]

On February 8, 2019, Plaintiff sent an email to Rainwater, following up on a previous conversation, raising concerns about a lack of pay increase for an African-American woman who was a supervisor for Defendant, asserting that “discrimination [was] at play,” and indicating that white employees had received pay increases and been hired and promoted. [Doc. 34-3.] Rainwater responded to Plaintiff's email, stating, “Let's talk

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Monday” [ id. ], and then talked to Glenn about the email and how to respond given that Plaintiff was not in a supervisory or other role where Rainwater could share information about personnel decisions [Doc. 38-2 at 6:13-10:1].

Plaintiff's Floor-wide Email and Subsequent Counseling

On June 20, 2019, after an incident where his potato chips disappeared from the break room, Plaintiff sent the following email to the fourth floor staff:

To whomever took - stole - my two small bags of Classic Lays potato chips that [I] put on the small round table in the break room while I stepped away briefly around 5 p.m. today, I hope you enjoyed them. And, I hope you took them because you were hungrier than I was even though I have not eaten all day. That said, my wife would probably tell you I didn't need those Classic Lays potato chips - especially two bags. And, maybe you didn't either.

[Doc. 34-4.] On June 27, 2019, Paul Athey, Plaintiff's supervisor, met with Plaintiff “concerning appropriate use of email and improving communication with his immediate supervisor.” [Docs. 34 at 4; 38-7; see Doc. 38-8 at 2:3-14 (Athey's testimony, explaining that he prepared a memorandum “pretty soon after the meeting” as “a way . . . to track what [he] said” and “remember the conversation”).] Athey summarized the conversation as follows:

• I began the conversation by asking [Plaintiff] if he'd received any feedback from the incident so far and that our Executive Director indicated he would review security tapes of the breakroom area as [Plaintiff] had requested

• I discussed two concerns related to the email he sent that day:

• The Acceptable Use Policy as it relates to sending email messages that are disparaging or defamatory

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• Effective communication with immediate supervisor to resolve issues

• I noted that it would be premature to assume someone intentionally took someone else's property when that area in the breakroom is frequently used by staff to place items they are offering to anyone who wants them

• I stated that the tone and words used in the email could be perceived as disparaging given the previous point mentioned above

• I asked him to reach out to me first as his supervisor in the future if a situation needed to be addressed or resolved so l could provide assistance

• He stated that he believed his email was perfectly acceptable and that he felt like he had done nothing wrong

• He stated that he felt like the staff here thought of him as “the angry black man” in the office, to which I responded that I did not believe that was the case and certainly not the way I viewed him

• At this point, I listened to him complain for a significant amount of time about the office; his tone was harsh and negative

• At the end of the conversation, I told him I thought it would be best to request a different supervisor for him because I felt like any time I had to offer him guidance or direction, his response always seemed to be negative and include accusations of unfair treatment

[Doc. 38-7.] Plaintiff then submitted a memorandum on July 12, 2019, documenting his thoughts about the incident as follows:

This memorandum supplements our recent discussion when you gave me an oral reprimand related to the email I sent seeking insight into who in the office took my property from the break room without my consent. As I indicated privately and which I now memorialize, I do not agree the email, written with self-deprecating humor, was in any way defamatory,

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accusatory or in violation of agency policy. Therefore, I am asking that the reprimand be withdrawn.

My entire career rests on a foundation of a mastery of the English language and journalism. I am a good communicator. Because I did not know who took my property, it is inconceivable that I accused, threatened or disparaged the individual. Further, my use of the word “stole” is appropriate because property was taken and, to this date, has not been restored. It begs the question: How can I disparage someone by stating the person took something the individual did not have permission to take when that is exactly what the person did?

Beyond the incident of the theft of my property, what also troubles me is my concerns about the loss of my property were minimized. I was blamed for my loss and I was accused of wrongdoing, while the person who took my property was cast as the victim with me as the assailant. I am troubled deeply by this mischaracterization of me. But based on your actions toward and portrayal of me, your concern about disparaging the person's reputation and the timing of the reprimand, I strongly suspect the person who took my property is a white woman.

After all, just last year I reported to you and others in upper management what I thought were serious issues of race discrimination or bias within the agency and did so in good faith; seemingly with upper management's approval. I am concerned that it is possible those discussions were used as a basis for this recent reprimand - the only discipline I have received while working in this office. I hope that it is not the case. As you know, I received a superlative evaluation for my first year's performance.

I do not know whether the oral reprimand was put in writing and placed in my personnel file. If so, I ask that this memorandum be placed with it. But it is my hope this reprimand and action be withdrawn. I assure you and all those concerned of my continued support and involvement to promote the forward direction of this agency.

[Doc. 38-9.]

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Defendant's Reorganization

On September 4, 2019, Athey sent a memorandum to Glenn, requesting a division reorganization. [Doc. 34-7.] Specifically, Athey requested that a new strategic communications section be created; that some changes be made to the IT section based on an information security audit that had been conducted by Soteria, a third-party cyber security firm; and that a mapping services unit be created to absorb the duties of a retiring manager. [ Id. ] On September 16, 2019, Defendant's Board voted to approve a proposed organizational structure, effective October 1, that reflected “the recommendations made by Soteria and also a change to combine Strategic Planning, Communication and administrative duties for the BEA and RFA Boards into one Section.” [Doc. 34-10 at 3.] As part of that reorganization, Plaintiff's communications manager position moved to the new strategic planning and communications section, and he reported to Sandra Kelly, who was the section manager. [Doc. 38-11 at 3-4.] Kelly, in turn, reported to Athey. [ Id. at 3.]

Plaintiff's Grievance

On October 29, 2019, Plaintiff submitted a Request for Grievance Review and provided the following facts:

Please accept this document as a request for a formal grievance of my demotion/reclassification effective Oct. 17, 2019. Although my salary was not adjusted, my position has been reorganized under the organizational structure, a change which I believe to be punitive as my opportunities for moving forward, including, but not limited to, growth within the agency, have been diminished greatly.

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[Doc. 34-12.] For his relief, Plaintiff requested that the communications manager position report directly to the executive director. [ Id. ] He further asserted that the “change, which reflects the organizational structure in other state agencies, also should be voted on and approved by [Defendant's] Board.” [ Id. ] On November 5, 2019, Glenn responded to Plaintiff's grievance, indicating that he was “not subject to a demotion and/or reclassification”; instead, his position was moved on the organization chart and he then reported to a different supervisor. [Doc. 34-13.] Therefore, the action was not grievable. [ Id. ] The parties appear to agree that Plaintiff's appeal to the State Human Resources office was dismissed for the same reason. [Docs. 34 at 7; 38 at 6.]

Plaintiff and Kelly's Email Exchange, Resulting Investigation, and Written Reprimand

On November 13, 2019, Plaintiff and Kelly exchanged email messages after Kelly asked Plaintiff for a time to meet and talk. [Doc. 34-8.] Kelly informed Plaintiff that she wanted to discuss the following subjects:

• The conversation we had last week concerning FOIA - you seemed angry and I want to discuss

• The survey for the website from GWW - you didn't respond with any input and I really need your input on this project

• I didn't see you at the managers meeting this morning - you may have been there but if not, I wanted to discuss

[ Id. at 3.] Plaintiff responded,

I'm available to meet with you at 3 p.m. today - if that time is convenient for you. In the interim, I feel it is important and necessary for me to address the issues or concerns you raised.

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First, please know the sudden concern over my well-being is misplaced. As you are aware, you approached me for an opinion on the FOIA matter in the midst of work on the press release for the BEA meeting. It was a press release that had undergone several revisions and/or updates. That said, I gave you my quick assessment of the issue, which was it was a non-issue. [Defendant] is not considered a part of legislative staff and, therefore, its work on behalf of legislators is not exempt from FOIA. That's my opinion based on a plain reading of the law.

Now, I'm sorry if I didn't smile enough, speak softly enough, make some witty comment or do some other requisite gesture that I, as an African American, apparently failed to do for you, as [a] white American, to put you at ease simply because I didn't agree with your assessment of the issue. But, I'm entitled to my opinion. To me, you seemed shocked that I didn't agree with your assessment of the issue and I have to wonder whether that astonishment colored your perception of the situation.

Regardless, I do not believe a simple differing of opinion between you and another white individual on [Defendant's] staff would warrant the need for a meeting or some other type of session. And, I am writing at length on this matter because your actions seem to be an attempt to further the racist narrative, which I was subject to under Division Director Paul Athey, that I am an angry black man.

Next, as far as the survey for the website goes, I didn't offer any feedback because I simply didn't have any to offer. In your Nov. 12 email, you asked me and several others to “provide any feedback this afternoon if possible.” Further, you wrote, “If you are unable to respond today but would like to [emphasis added] respond, let me know.” Again, I had no comments or suggestions to offer and I don't know why it is a major issue.

But, more importantly, I want to push back against your statement of “I really need your input on this project” because the implication is that I have not been providing input, which is not true. I, for instance, repeatedly have offered my thoughts about the vendor and its handling of the tree testing. I feel you have been dismissive of my concerns. So, your positions

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seem contradictory: you wrongly chastise me for not contributing, but are dismissive when I do.

Lastly, you didn't see me at the managers meeting because I was not there.

Let me state plainly that I believe these matters you want to discuss are manufactured controvers[]ies designed to tarnish my employment at - or possibly terminate my employment with - [Defendant].

Since you have afforded me this opportunity, I want to bring a matter of deep concern to your attention. For at least several weeks now, you have displayed a habit of standing in the doorway of my office or sitting in the chair in my office and staring at me in silence for an uncomfortable period [of] time. Usually, I am the one who has to say something to break this uncomfortable silence. Please know I find the practice disturbing, demeaning, unprofessional and just plain creepy. And, I ask that it please come to an end.

Now, if we still need to meet, I am more than happy to do so at your convenience.

[ Id. at 2-3.] Kelly was taken aback by the email and reported it to Athey. [Doc. 38-12 at 5:8-19.] The matter was subsequently reported to Glenn. [ Id. at 5:20-6:1.]

It was determined that concerns Plaintiff raised in his email regarding “actions of a racial narrative warranted an investigation under [Defendant's] Anti-Harassment Policy and Procedures.” [Doc. 34-14.] In a letter dated December 19, 2019, Glenn informed Plaintiff that, because Plaintiff had twice told her he did not want to participate in the investigation process, she “had to use factual findings and draw a conclusion without the benefit of [his] input.” [ Id. ] She further informed Plaintiff that she had “concluded that there were no illegal acts of discrimination to address,” that she wanted “to impress upon [him] the importance of reporting any discriminatory acts or unwelcome conduct to [his] supervisor[]

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or another member of management,” and that he should let her know if he had “any questions or concerns about [the] investigation or its outcome.” [ Id. ]

On January 7, 2020, Plaintiff, Kelly, and Glenn met to discuss the November 13th email. [ See Doc. 34-9 at 2.] Kelly subsequently issued Plaintiff a formal written reprimand “to confirm in writing [his] inappropriate use of [Defendant's] email as a means of addressing intrapersonal issues in a disparaging and disrespectful context and to document [Kelly's] expectations for future communication.” [ Id. ] The written reprimand also reminded Plaintiff that he had been counseled twice before by Athey for similar issues, that “differences with management and/or other employees should be addressed in person to allow for all parties involved to communicate their intent, thoughts, and perceptions . . . to work towards a resolution,” and that “[t]he use of email to express accusations based on . . . personal assumptions without the courtesy of conversation [is] more likely to impede communication, negatively impact the work environment, and be counter-productive to resolving . . . concerns.” [ Id. at 3.] The written reprimand explained that if Plaintiff felt like an electronic record was important, he could always send a follow-up email summarizing what was discussed during an in-person meeting. [ Id. ] Finally, the written reprimand included copies of the relevant policies with violations highlighted and informed Plaintiff that the written reprimand would become part of his personnel file, that he had two weeks to attach additional comments, and that future violations might result in further disciplinary action up to and including termination. [ Id. ] Plaintiff refused to sign the written reprimand to acknowledge receipt. [ Id. ]

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Plaintiff's Charge of Discrimination

Plaintiff filed a Charge of Discrimination (“the Charge”) with the Equal Employment Opportunity Commission and South Carolina Human Affairs Commission in January 2020, alleging race discrimination and retaliation. [Doc. 38-15.] The parties represent in their memoranda that Plaintiff received his Dismissal and Notice of Rights on or about September 2020. [Docs. 34 at 9; 38 at 7.]

Plaintiff's Compensation

On October 14, 2020, Plaintiff sent an email to Kelly following up on a conversation they had had related to his compensation. [Doc. 34-15.] Plaintiff provided links to compensation information from the State human resources website and argued that, even though he had more experience than the average person in the Public Information Director II position, he earned significantly less than the average person in that job category. [ Id. ] Kelly requested a compensation analysis, and on November 12, 2020, after conducting the analysis, Glenn reported that Plaintiff's then-current “salary of $61,200 accurately reflect[ed] the Communications Manager's position duties and responsibilities within the agency's organizational structure.” [Doc. 38-17.] Glenn further clarified that Plaintiff's position was considered a Program Manager I position and that, although Plaintiff's “duties include[d] similar tasks[,] the tasks were not found to be comparable in the scope and depth of responsibility, public interface, workload, and media platform skill requirements among other differences” because “[t]he Public Information Director II classification is

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reserved for use in agencies that require major public information programs such as higher education or other state agencies that interface directly with the public.” [ Id. ]

Plaintiff's Title VII Action

As stated, Plaintiff filed this action on December 8, 2020, alleging race discrimination and retaliation in violation of Title VII. [Doc. 1-1.] For relief, he seeks actual and compensatory damages, pre-judgment interest, and attorney's fees and costs. [ Id. at 8.]

APPLICABLE LAW

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (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. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).

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Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson , 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only 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. Further, Rule 56 provides in pertinent part:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) 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

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.

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DISCUSSION

As stated, Plaintiff's Complaint asserts causes of action for race discrimination in violation of Title VII and for Title VII retaliation. With respect to his race discrimination claim, Plaintiff alleges he was subjected to disparate pay, disparate treatment, demotion, and a hostile work environment. [Doc. 1-1 at 6 ¶¶ 28, 30.] With respect to his retaliation claim, Plaintiff alleges he was subjected to demotion and a hostile work environment. [ Id. at 8 ¶ 35.] The Court addresses these claims seriatim.

Discrimination Claims

Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Absent direct or indirect evidence of discrimination, a Title VII plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), to establish a claim of employment discrimination. Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310, 318 (4th Cir. 2005). Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas , 411 U.S. at 802. If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993) (citing Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 255 (1981)).

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If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination. McDonnell Douglas , 411 U.S. at 804.

Disparate Pay

Defendant argues that it is entitled to summary judgment on Plaintiff's disparate-pay claim because Plaintiff cannot establish a prima facie case of disparate pay in that he has produced no evidence that he was paid less than similarly situated employees. [Doc. 34 at 24-25.] In response, Plaintiff argues that this is a matter of first impression in that there is no similarly situated employee to use as a comparator because he was the only communications manager employed by Defendant and, thus, he “looked to the next best evidence[,] the State government salary database[,] . . . to determine that he was being paid at a disparate rate compared to his Caucasian counterparts at other State agencies.” [Doc. 38 at 18.] The Court agrees that Plaintiff cannot establish a prima facie case of disparate pay.

To prove a prima facie case of pay disparity under Title VII, a plaintiff must establish “(1) []he is a member of a protected class, (2) []he was performing h[is] job satisfactorily, (3) an adverse employment action occurred, and (4) the circumstances suggest an unlawfully discriminatory motive.” Spencer v. Va. State Univ. , 919 F.3d 199, 207 (4th Cir. 2019). “Where . . . the prima facie case of wage discrimination is based on comparators, the plaintiff must show that []he is paid less than [employees outside the protected class] in similar jobs.” Id.

Here, Plaintiff has established neither that he was paid less than non-black employees nor that the circumstances surrounding his pay otherwise suggest an unlawfully

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discriminatory motive. As an initial matter and as Plaintiff concedes, no comparators exist because the position was created for him. Therefore, no one preceded him as the communications manager, and he was the only communications manager during his employment. Because no comparators exist, Plaintiff represents that he “looked to the next best evidence[,] the State government salary database[,] . . . to determine that he was being paid at a disparate rate compared to his Caucasian counterparts at other State agencies.” [Doc. 38 at 18.] However, Title VII requires that compared jobs be similar , and in determining whether jobs are similar, “courts consider whether the employees (i) held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications-provided the employer considered these latter factors in making the personnel decision.” Spencer , 919 F.3d at 207 (internal quotation marks omitted). Plaintiff has not shown that employees at other State agencies-with different supervisors, different job descriptions, and different standards-are similar for purposes of Title VII.

Moreover, even if the Court were to agree with Plaintiff that it should look to the “next best evidence” in this case to determine whether he was being paid at a disparate rate compared to his Caucasian counterparts at other State agencies, Plaintiff has failed to direct the Court to any evidence in the record demonstrating that he was paid at a disparate rate compared to these counterparts. Instead, Plaintiff relies on his conclusory

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and self-serving opinion that, “based on his evaluation, [his salary] should have been approximately $70,000.00.” [Doc. 38 at 19.] Plaintiff's opinion is based on his belief that his position was comparable to a Public Information Director II position [ see Doc. 34-15]; however, as Glenn explained following a compensation analysis, Plaintiff's position was classified as a Program Manager I position and his duties were not comparable to a Public Information Director II classification “in the scope and depth of responsibility, public interface, workload, and media platform skill requirements among other differences” [Doc. 38-17]. Plaintiff has failed to put forth any contradictory evidence or any other evidence to suggest that he was paid less because of his race. Accordingly, Defendant's motion for summary judgment should be granted with respect to Plaintiff's disparate-pay claim.

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Disparate Treatment

Defendant argues that it is entitled to summary judgment on Plaintiff's disparate-treatment claim because Plaintiff has failed to provide evidence of an adverse employment action or that he was treated differently from similarly situated employees. [Doc. 34 at 25-26.] Plaintiff counters that, on two occasions, he “was not provided the same ‘due process' as his white counterparts and was otherwise the only employee subjected to disciplinary action.” [Doc. 38 at 19-20.] More specifically, Plaintiff asserts that, after he sent the email about the missing potato chips in June 2019 and after he sent the email to Kelly in November 2019, Rainwater and human resources employees met with the other employees involved in the incidents but did not meet with Plaintiff to get his perspective. [ Id. ] Additionally, Plaintiff contends that he was the only employee to be reprimanded in each of these instances. [ Id. ] The Court agrees that Plaintiff cannot establish a prima facie case of disparate treatment.

To establish a prima facie case of disparate treatment, “a plaintiff must show that (1) []he is a member of a protected class; (2) h[is] employer took an adverse action against h[im]; (3) []he had been fulfilling h[is] employer's legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination.” Sempowich v. Tactile Sys. Tech., Inc. , 19 F.4th 643, 649-50 (4th Cir. 2021). With respect to a discrimination claim, “[a]n adverse employment action is a discriminatory act which ‘adversely affect[s] “the terms, conditions,

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or benefits” of the plaintiff's employment.'” James v. Booz-Allen & Hamilton, Inc. , 368 F.3d 371, 375 (4th Cir. 2004) (second alteration in original) (quoting Von Gunten v. Maryland , 243 F.3d 858, 865 (4th Cir. 2001)).

“[A] written reprimand does not constitute an adverse employment action absent a significant detrimental effect on the plaintiff's conditions of employment.” Drake v. Sci. Applications Int'l Corp. , No. 2:17-cv-02664-DCN-MGB, 2019 WL 1574264, at *7 (D.S.C. Mar. 4, 2019) (citing cases), Report and Recommendation adopted by 2019 WL 1571635 (D.S.C. Apr. 11, 2019). Plaintiff does not argue or demonstrate that either the June 2019 verbal counseling or the January 2020 written reprimand had any significant detrimental effect on the terms of his employment. Thus, Plaintiff has not established that these reprimands constituted adverse employment actions for purposes of Title VII. Nor has Plaintiff established that he was reprimanded under circumstances that raise a reasonable inference of unlawful discrimination. Plaintiff has failed to identify any employees outside his protected class who were not reprimanded after violating Defendant's IT-Acceptable Use Policy. And Plaintiff has failed to identify any other basis on which a trier of fact could

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conclude that race played any role in the decision to reprimand Plaintiff. Accordingly, it is recommended that Defendant's motion for summary judgment be granted with respect to Plaintiff's disparate treatment claim based on his reprimands.

Demotion

Defendant argues that it is entitled to summary judgment on Plaintiff's demotion claim because Plaintiff has failed to provide evidence of an adverse employment action. [Doc. 34 at 23.] In his response opposing the motion for summary judgment, Plaintiff confirms that his demotion claim is based on Defendant's reorganization, which he contends resulted in a demotion for him. [Doc. 38 at 5-6.] However, Plaintiff appears to argue that his purported demotion constitutes an adverse action only with respect to his retaliation claim. [ Id. at 9-10 (asserting that the standard for establishing adverse action in a retaliation claim is whether the action “well might have dissuaded a reasonable worker from engaging in protected conduct” (internal quotation marks omitted)); id. at 15-23 (under the heading “Discrimination,” addressing claims for disparate pay, disparate treatment with respect to not being provided due process, and hostile work environment); see also Doc. 34-17 at 17:19-25 (Plaintiff's testimony that his demotion “was in retaliation for claims that [he] made about disparate treatment and disparate pay and issues of discrimination”).] The Court agrees that the reorganization did not constitute an adverse employment action for purposes of a Title VII discrimination claim because Plaintiff testified that after the reorganization, he held the same job title-communications manager-and had the same salary, he experienced only slight changes to his duties by receiving some additional duties related to developing an internal website and by the percentage of time

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spent on specific job functions shifting, and there was an additional supervisor between Plaintiff and Athey. [R. 34-17 at 11-15]; see James, 368 F.3d at 376 (holding that a “reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect” and that without “any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one's salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position” (internal quotation marks omitted)); Chapman v. Geithner , No. 1:11-CV-1016 (GBL/TRJ), 2012 WL 1533514, at *22 (E.D. Va. Apr. 30, 2012) (concluding that the plaintiff's Title VII claims based on her reassignment to new supervisors failed because the plaintiff “failed to show that these actions had a significant detrimental effect on her or her employment status or were otherwise materially adverse”), aff'd, 507 Fed.Appx. 299 (4th Cir. 2013). Accordingly, because Plaintiff has failed to establish a prima facie case with respect to his discrimination claim related to his purported demotion, Defendant's motion for summary judgment should be granted as to this claim.

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Hostile Work Environment

Defendant argues Plaintiff cannot establish a hostile work environment claim. [Doc. 34 at 26-27.] The Court agrees.

Title VII prohibits creating or allowing a hostile work environment based on race, color, religion, sex, or national origin. See Baqir v. Principi , 434 F.3d 733, 746 n.14 (4th Cir. 2006). To prove a hostile work environment based on race, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Boyer-Liberto v. Fountainebleau Corp. , 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (internal quotation marks omitted).

In Faragher v. City of Boca Raton , 524 U.S. 775 (1998), the Supreme Court reaffirmed the standard for determining when a plaintiff has established a hostile work environment, stating that a plaintiff must establish that the environment was “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher , 524 U.S. at 787. Actionable harassment occurs when the workplace is “permeated with <discriminatory intimidation, ridicule, and insult.'” Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 65 (1986)). Title VII is not a

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“general civility code.” Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75, 80 (1998). “Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.” EEOC v. Sunbelt Rentals, Inc. , 521 F.3d 306, 315 (4th Cir. 2008). Complaints based on nothing more than rude treatment by co-workers, callous behavior by supervisors, or a routine difference of opinion and personality conflict with supervisors are not actionable under Title VII. Id.

When considering a plaintiff's claim that he was subjected to a hostile work environment, the Court must consider the totality of the circumstances. Harris , 510 U.S. at 23. Relevant factors “may include the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. “To be actionable, the conduct must create an objectively hostile or abusive work environment, and the victim must also perceive the environment to be abusive.” Spriggs v. Diamond Auto Glass , 242 F.3d 179, 184 (4th Cir. 2001).

Here, Plaintiff has not established a hostile work environment based on race. As an initial matter, some of the conduct that Plaintiff asserts created a hostile work environment was also cited by Plaintiff to establish his disparate treatment claim, and a

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disparate treatment claim “cannot be transformed into a hostile work environment claim unless the facts alleged meet the separate criteria for a hostile work environment claim.” Bailey v. Int'l Paper , No. 2:11-3013-PMD-BM, 2012 WL 405719, at *3 (D.S.C. Jan. 13, 2012), Report and Recommendation adopted by 2012 WL 405713 (D.S.C. Feb. 8, 2012). Rather, a plaintiff must show that his “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.” Oncale , 523 U.S. at 78 (citation and internal quotations omitted); see also Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 114-16 (2002). Plaintiff has not established that the conduct complained of in this case was sufficiently severe or pervasive to create an abusive atmosphere and alter the conditions of his employment. See Sunbelt Rentals , 521 F.3d at 315-16 (citing cases holding that complaints based on rude treatment, callous behavior by superiors, or a difference of opinion or personality conflict with a supervisor are not actionable under Title VII); Harvey v. Saluda Smiles Family Dentistry , 210 F.Supp.3d 812, 821 (D.S.C. 2016) (finding that the plaintiff had not established she experienced severe or pervasive harassment where the plaintiff alleged ?nitpicking” by her superior, being chastised in front of a patient, and ongoing friction with her superior).

Nor has Plaintiff provided any explanation or legal analysis regarding how any complained-of conduct was because of Plaintiff's race. Indeed, in his memorandum opposing summary judgment, Plaintiff does not specifically address this element of a hostile work environment claim or direct the Court to any evidence to support an inference

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that any complained-of conduct was motivated by race. [Doc. 38 at 20-23.] Accordingly, for all of these reasons, Defendant's motion for summary judgment should be granted as to Plaintiff's Title VII discriminatory hostile work environment claim.

Retaliation Claims

Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The purpose of this antiretaliation provision is to prevent “an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 63 (2006). The McDonnell

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Douglas burden-shifting framework applies to Title VII retaliation claims. Foster v. Univ. of Md.-Eastern Shore , 787 F.3d 243, 249 (4th Cir. 2015).

Demotion

Defendant argues that it is entitled to summary judgment on Plaintiff retaliation claim regarding his purported demotion because Plaintiff cannot establish a prima facie case of retaliation in that he did not participate in any protected activity and has not produced any evidence of a causal link between his complaints and the reorganization. [Doc. 34 at 14-18.] Additionally, Defendant argues that even if Plaintiff can establish a prima facie case of retaliation, he cannot show that Defendant's legitimate, non-retaliatory reason for the reorganization is a pretext for unlawful retaliation. [ Id. at 18-20.] Plaintiff counters that he has established his conduct leading up to the reorganization amounts to protected activity, that the temporal proximity between his July 12th memorandum and the decision to reorganize the division establishes a causal link, and that a reasonable factfinder could find the offered reason for the reorganization to be pretext. [Doc. 38 at 10-15.] The Court agrees that Plaintiff has failed to establish a genuine issue of material fact regarding whether Defendant's proferred reason for the reorganization is a pretext for retaliation.

To establish a prima facie case of retaliation, a plaintiff must demonstrate “(1) [ ]he engaged in a protected activity, (2) the employer acted adversely against h[im], and (3) there was a causal connection between the protected activity and the asserted adverse action.” Hoyle v. Freightliner , LLC, 650 F.3d 321, 337 (4th Cir. 2011). Here, even assuming Plaintiff can establish a prima facie case of retaliation, Defendant has

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articulated a legitimate, nonretaliatory reason for the reorganization. Specifically,

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Defendant asserts that it restructures once per year and that the decision to restructure in 2019 was a business decision to better its operations, based in part on recommendations by Soteria and in part on Rainwater's desire to combine staff with similar roles in a single department. [Doc. 34 at 18-19.] Because Defendant has articulated a legitimate, nonretaliatory reason for the reorganization, the Court will consider whether Plaintiff has met his burden of demonstrating that Defendant's proffered reason is merely a pretext for retaliation, which would indicate whether Plaintiff could meet his ultimate burden of persuasion and demonstrate retaliation vel non. See Merritt v. Old Dominion Freight Line, Inc. , 601 F.3d 289, 294 (4th Cir. 2010).

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To survive summary judgment on a retaliation claim, a plaintiff must show that the protected activity was a but-for cause of the adverse action. Guessous v. Fairview Prop. Invs., LLC , 828 F.3d 208, 218 (4th Cir. 2016). The plaintiff must demonstrate ?a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Id. at 217.

Here, Plaintiff has failed to demonstrate a genuine factual dispute on the question of pretext. As previously noted, the burden for establishing causation at the pretext stage is more onerous. Foster , 787 F.3d at 251. Although “temporal proximity of events may establish a prima facie case for retaliation, ‘temporal proximity alone does not rebut [a defendant's] legitimate, and uncontested, ground of termination.'” Dziwulski v. Mayor & City Council of Baltimore , No. DLB-18-277, 2020 WL 1034539, at *11 (D. Md. Mar. 3, 2020) (citing cases). Here, Plaintiff relies heavily on temporal proximity to support his speculation that Athey wanted Plaintiff to be assigned a different supervisor because Plaintiff had complained about race discrimination. [Doc. 38 at 14-15 (“Stated differently, after this singular meeting about a particular, isolated instance and no record of Athey having ongoing issues with [Plaintiff], it seems likely that Athey had no interest in supervising the perceived disgruntled African American employee.”).] However, Plaintiff has directed the Court to no evidence to support this speculation. Nor does the timeline support this speculation.

Athey first mentioned that he thought it would be best for Plaintiff to have a different supervisor at the end of a meeting with Plaintiff on June 27, 2019, during which Athey “listened to [Plaintiff] complain for a significant amount of time about the office” in a harsh

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and negative tone. [Doc. 38-7.] At that point, Plaintiff had not complained to Athey about race discrimination, and Athey did not know about Plaintiff's February complaint to Rainwater. [ See Doc. 38-8 at 6:12-23 (Athey's testimony that the first time he knew that Plaintiff complained of race discrimination or bias was when he read Plaintiff's July 12th memorandum)]; see Roberts v. Glenn Indus. Grp., Inc. , 998 F.3d 111, 124 (4th Cir. 2021) (“In this Circuit, we have consistently required proof of a decisionmaker's knowledge of protected activity to support a Title VII retaliation claim.”). Moreover, Athey testified that, after the June meeting with Plaintiff, he told Rainwater it would be better for someone else to supervise Plaintiff because of the combination of Athey's workload being stretched thin and his discomfort with his interactions with Plaintiff. [Doc. 38-8 at 8:16-9:7.] Athey further explained that he was uncomfortable with Plaintiff's tone and lack of respect during the June 27th meeting; that the meeting was not the first time he had experienced this tone and lack of respect; that anytime he tried to offer suggestions to Plaintiff regarding communication, Plaintiff responded that he was more of an expert than Athey so Athey should not offer advice; that Athey felt it was his responsibility as a supervisor to offer advice; and that Plaintiff needed a supervisor who could take more time with him. [Doc. 39-3 at 2:25-7:23.] Athey also agreed that Plaintiff could be described as combative and “almost insubordinate.” [ Id. at 7:24-25, 8:10-22.] Further, Rainwater testified that Athey had a lot on his plate and that the relationship between Athey and Plaintiff was “sour” and “they needed a fresh start.” [Doc. 38-2 at 11:22-12:12.] Plaintiff has failed to direct the Court to any evidence that contradicts testimony that this was a personality conflict

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between Athey and Plaintiff and instead relies on his speculation that, because Athey suggested that Plaintiff be assigned to a new supervisor after the contentious meeting, it must be retaliation.

Plaintiff also appears to argue that Defendant's reliance on Soteria's recommendations as a reason for the reorganization suggests the reorganization was a pretext for retaliation because Soteria's recommendations “did not touch on [Plaintiff's] position.” [Doc. 38 at 13-14.] However, even Defendant states that “the decision to restructure . . . was made in part by recommendations made by Soteria.” [Doc. 34 at 18 (emphasis added).] Accordingly, nowhere does Defendant argue that any change to Plaintiff's specific position was because of a recommendation by Soteria. Finally, Plaintiff contends that “it must be questioned why Rainwater made the decision [to reorganize] on August 7, 2019, informed Athey on August 8, 2019, informed Kelly on August 15, 2019, but withheld it from [Plaintiff] for over a month, not informing him until September 9, 2019.” [Doc. 38 at 15.] However, Plaintiff offers no explanation for how this delay in informing Plaintiff about the reorganization suggests pretext. Nor is the decision to tell Plaintiff, a

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non-supervisory employee, about the decision to reorganize after the supervisory level employees, enough for a reasonable factfinder to infer pretext.

For all of these reasons, Plaintiff has not demonstrated “a genuine dispute of material fact on the question of pretext sufficient to make [Defendant's] proffered justification a triable issue." Guessous , 828 F.3d at 217. Accordingly, Defendant's motion for summary judgment should be granted with respect to Plaintiff's Title VII retaliation claim based on his purported demotion.

Hostile Work Environment

Plaintiff's retaliatory hostile work environment claim fails for the same reason his discriminatory hostile work environment claim fails; he cannot establish that he was subjected to severe or pervasive harassment. See Wilkins v. Sessions , No. 8:17-403-TMC-KDW, 2018 WL 3131027, at *16 n.17 (D.S.C. June 8, 2018) (“To state a claim for retaliatory hostile work environment, . . . a plaintiff must show . . . (1) engagement in a protected activity; (2) that he was subjected to severe or pervasive retaliatory harassment by a supervisor; and (3) a causal link between the protected activity and the harassment.” (internal quotation marks omitted)), Report and Recommendation adopted by 2018 WL 3127323 (D.S.C. June 26, 2018). Accordingly, Defendant's motion for summary judgment should be granted as to this claim.

RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that Defendant's motion for summary judgment [Doc. 34] be GRANTED.

IT IS SO RECOMMENDED.