South Carolina Cases June 22, 2022: Johnson v. S.C. Highway Patrol

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. 24.] Plaintiff alleges claims of race discrimination and racial harassment/hostile working conditions under Title VII of the Civil Rights Act of 1964 (“Title VII”). [Doc. 1-1 at 5-6.] 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 brought suit in the Anderson County Court of Common Pleas on December 4, 2020. [Doc. 1-1.] Defendant removed the action to this Court on February 10, 2021, on the basis of federal-question jurisdiction. [Doc. 1.] On March 14, 2022, Defendant filed a motion for summary judgment. [Doc. 24.] On April 11, 2022, Plaintiff filed a response opposing the motion, and on April 18, 2022, Defendant filed a reply. [Docs. 28; 30.] Accordingly, the motion is now ripe for review.

BACKGROUND

Plaintiff is an African-American male. [Docs. 1-1 ¶ 4; 5 ¶ 4.] On January 19, 2003, the South Carolina Department of Public Safety hired him as a trooper. [Doc. 24-3.] He was initially assigned to Troop 3, Post C in Greenville County. [Doc. 24-5 at 5, 7.] On

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January 3, 2008, Plaintiff was reclassified to the rank of lance corporal. [Doc. 24-7.] Then in early 2012, he applied for another promotion, to the rank of corporal, and he was selected. [Docs. 24-5 at 14-15; 24-8.] Plaintiff served as a corporal for Troop 3, Post C for approximately five years. [Doc. 24-5 at 39.]

During his first few years as a corporal, Plaintiff enjoyed good working relationships with his supervisors. [Doc. 24-9 at 2.] However, on August 9, 2016, he provided a letter to Sierrah Oates in to Human Resources explaining that some of these relationships had been harmed as a result of an apparent dispute between his supervisors and a belief that he had a personal relationship with a major who failed to promote one of his supervisors to captain. [Docs. 24-5 at 21; 24-9 at 2.] He also maintained that he had received different treatment because some of his supervisors thought that he had previously complained about a scheduling issue. [Docs 24-5 at 38; 24-9 at 2.] Human Resources reviewed his complaint and advised Plaintiff to attempt to improve his communications with his supervisors. [Doc. 24-5 at 38.]

In early 2017, Plaintiff was promoted to the rank of sergeant. [ Id. at 39-40; Doc. 2410.] Plaintiff's job as sergeant required him to supervise the subordinate corporals and the trooper teams that reported to the corporals. [Doc. 24-5 at 41.] In approximately October 2017, the first sergeant/post commander for Post B in Pickens/Oconee deployed with the military. [ Id. at 46-47.] As a result, Plaintiff requested a lateral transfer from Post C in Greenville to Post B in Pickens/Oconee, where he would continue to serve as sergeant but would serve as a de facto interim first sergeant/post commander. [ Id. at 47-49.] Plaintiff's request was granted, and he served in that position for three or four months. [ Id. at 46-47.]

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Shortly thereafter, a vacancy opened up for the position of first sergeant/post commander position for Post A in Anderson and Plaintiff applied and interviewed for the position. [ Id. at 42.] Colonel Christopher Williamson, who is African-American, was responsible for making the hiring decision. [Docs. 24-6 at 3, 5, 19, 20; 24-11.] Both Captain Stacey Craven, who is white, and Major Michael Warren, who is African-American, recommended Plaintiff for the promotion. [Docs. 24-5 at 23; 24-6 at 5.] Williamson agreed with their recommendations and, on February, 23, 2018, he offered Plaintiff the position, and Plaintiff accepted. [Docs. 24-6 at 6; 24-11.] In his new position, Plaintiff was the highest-ranking official in Post A and responsible for the post's daily operations. [Doc. 24-5 at 19, 43.]

Only a few months after Plaintiff began the new position, Warren informed Williamson that Plaintiff was having problems, including that Plaintiff believed Craven was allowing troopers to bypass him regarding decisions. [Doc. 24-6 at 6.] Trooper Richard Finch also told Williamson that Plaintiff was having difficulties and that Finch believed that the troopers in Plaintiff's post had not been supportive of Plaintiff because Plaintiff had been promoted to the first sergeant/post commander position ahead of another candidate who had worked in Post A for many years. [ Id. at 14-15.]

As a result of these reports, Williamson set up a meeting in his office on November 27, 2018, with Plaintiff, Lieutenant Colonel Mark Wright, Warren, and Craven. [ Id. at 6-7; Doc. 24-5 at 56.] In that meeting, Plaintiff asserted that Craven had allowed troopers in his post to bypass him and that Plaintiff's troopers were not following Plaintiff's directives. [Doc. 24-6 at 6, 8-9.] Craven denied that he was undermining Plaintiff's authority and emphasized that he had recommended Plaintiff for his most recent promotion and

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maintained that he continued to support him. [ Id. at 12.] Williamson expressed disbelief at Plaintiff's description of the problems and did not understand why Plaintiff had not recommended that the troopers not following his directives be punished. [ Id. at 9-10.] In fact, Plaintiff's inability to take appropriate steps to address these issues caused Williamson to conclude that Plaintiff was “very weak when it came to leadership and managing people.” [ Id. at 10.]

Plaintiff also complained during the meeting concerning an incident in which he found two notes affixed to the cubicle of Corporal Wilson that stated “No one likes you!” and “I kinda hate you! . . . a lot” (“the Note Incident”). [ Id. at 10-11; 24-14 at 5 (internal quotation marks omitted).] Despite the fact that the notes were on Corporal Wilson's cubicle, Plaintiff claimed that the notes were directed toward him. [Docs. 24-6 at 10-11; 24-14 at 5.] Reviewing the facts, Williamson found nothing discriminatory about the incident, and when he asked Plaintiff whether he had asked any questions about who had put the notes on Wilson's cubicle or what the notes were about, Plaintiff responded that he had not asked any such questions. [Doc. 24-6 at 10-11.] When Craven made some inquiries after the meeting, he learned that the notes were the result of two troopers in the office who liked to play pranks on one another, and that the notes were not directed toward Plaintiff. [ Id. at 11.]

On August 11, 2019, approximately 10 months after the meeting in Williamson's office, Plaintiff submitted a complaint to Defendant's Office of Professional Responsibility (“OPR”). [Docs. 24-5 at 49-50; 24-12.] In his complaint, Plaintiff repeated some of the

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allegations that he had raised during the earlier meeting, in addition to some others. [Doc. 24-12.] OPR Chief Kenneth D. Phelps opened five investigations to address various claims made in Plaintiff's complaint, none of which uncovered any evidence of racial animus or discrimination against Plaintiff. [Docs. 24-14-24-18.] Following Plaintiff's filing of the complaint with OPR, Plaintiff returned to Post A in Anderson and experienced no further problems, and he continues to serve as the first sergeant/post commander for Post A. [Doc. 24-5 at 52-53.]

At some point Plaintiff applied for a promotion to the rank of lieutenant. [Docs. 24-5 at 58; 24-6 at 20.] However, Williamson selected Kevin Brown, a white man, for the position. [Docs. 24-1 at 16; 24-6 at 20; 28 at 8.]

On September 24, 2019, Plaintiff filed a charge (“the Charge”) with the Equal Employment Opportunity Commission (“EEOC”) alleging race discrimination. [Doc. 24-19.] In the Charge, Plaintiff complained of the Note Incident and the failure of his superiors to improve his work environment. [ Id. ] He also complained in the Charge that certain writeups and reprimands that he had submitted for troops in his post had not been properly documented. [ Id. ]

Plaintiff's Complaint before this Court alleges two causes of action under Title VII, one for race discrimination (“the Discrimination Claim”) and another for a racially hostile work environment (“the Hostile Environment Claim”). [Doc. 1-1 ¶¶ 14-25.] Plaintiff cites as support the issues referenced in the Charge. [ Id. ] In addition, the Complaint alleges:

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Plaintiff has been repeatedly treated disparately in scheduling by Defendant's supervisors making Plaintiff work more third shift assignments than his Caucasian peers. In doing so, [Defendant's] agents prevented Plaintiff from getting his regular duty work done, and then Plaintiff's supervisors used Plaintiff's inability to attend his normal work as an excuse for downgrading him on certain areas of his annual reviews (EPMS). Plaintiff's ratings on his annual EPMS deleteriously affected both Plaintiff's salary and compensation (and will affect his retirement pay as well) and affected his promotional abilities.

[ Id. ¶ 13.] For his relief, Plaintiff seeks money damages, including punitive damages, as well as attorneys' fees and costs. [ Id. at 7.]

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).

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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). 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.

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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.

DISCUSSION

Defendant asserts it is entitled to summary judgment on both of Plaintiff's claims for a number of reasons. [Doc. 24-1 at 10-24.] Initially, Defendant argues that Plaintiff failed to exhaust his administrative remedies regarding either claim because the Charge was not timely filed. [ Id. at 10-11.] Defendant also argues that even assuming the Charge was timely filed, the Discrimination Claim and the Hostile Environment Claim both fail on their merits. [ Id. at 11-15, 18-24.] Defendant also notes that Plaintiff asserts, for the first time in his deposition, that the Discrimination Claim is based on the denial of his application for a promotion to the rank of lieutenant. [ Id. at 15.] Defendant argues that Plaintiff cannot avoid summary judgment under this new theory, however, because Plaintiff failed to exhaust his administrative remedies as to that claim. [ Id. ] Alternatively, Defendant contends the claim fails on its merits. [ Id. at 15-18.]

The Court concludes that, even assuming the Charge was timely filed, Defendant is entitled to summary judgment on both claims. The Court will address the Discrimination Claim and the Hostile Environment Claim seriatim.

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The Discrimination Claim

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). Defendant first argues that Plaintiff cannot establish a prima facie case of race discrimination because he has failed to identify any adverse employment action. [Doc. 24-1 at 13.] In his response opposing summary judgment, Plaintiff addresses only his denial of promotion to the rank of lieutenant [Doc. 28 at 11-13], and the Court agrees this is the only adverse employment action arguably alleged in Plaintiff's Complaint.

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As noted, Defendant maintains that it is entitled to summary judgment on Plaintiff's failure-to-promote theory of liability because Plaintiff failed to exhaust his administrative remedies concerning this claim. [Doc. 24-1 at 15.] The Court agrees.

Before filing suit under Title VII, a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC. Smith v. First Union Nat'l Bank , 202 F.3d 234, 247 (4th Cir. 2000). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R. Co. , 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge” (internal quotation marks omitted)). Because the EEOC has the authority to investigate charges and take necessary action to reach a resolution of the claims, permitting a federal complaint to include allegations outside the scope of the predicate EEOC charge would circumscribe the EEOC's purpose as well as deprive the employer of notice of the plaintiff's charges. See Dorsey v. Pinnacle Automation Co. , 278 F.3d 830, 838 (8th Cir. 2002). Accordingly, only those claims stated in the initial administrative charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Evans v. Techs. Applications & Serv. Co. , 80 F.3d 954, 963 (4th

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Cir. 1996) (affirming the district court's dismissal of some of the plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time barred). In this regard, a claim will “typically be barred if the administrative charge alleges one type of discrimination-such as discriminatory failure to promote-and the claim encompasses another type-such as discrimination in pay and benefits.” Chacko v. Patuxent Inst. , 429 F.3d 505, 509 (4th Cir. 2005).

Here, the Charge alleged discrimination based on race, and he listed the earliest date that discrimination took place as November 18, 2018, and the latest date that discrimination took place as August 11, 2019. [Doc. 24-19.] Although the briefing from the parties does not provide a date when Plaintiff was denied the promotion to lieutenant and Brown was offered the promotion to lieutenant, the record includes a November 5, 2019, Level I Reprimand memorandum from Williamson to First Sergeant Kevin Brown. [Doc. 24-18 at 3.] Thus, as of November 5, 2019, Brown had not been promoted to the position that both he and Plaintiff applied for. [ See Doc. 29-1 at 177 (Plaintiff's testimony that he had applied “for the promotion that Lieutenant Brown received”); see also Doc. 24-18 at 10 (investigation interview notes dated October 9, 2019, referring to First Sergeant Brown).] Accordingly, the Charge, filed on September 24, 2019 [Doc. 24-19], could not have included his failure-to-promote claim, and Defendant is entitled to summary judgment on this claim because Plaintiff has failed to exhaust it. See Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 114 (2002) (holding that a failure to promote is a discrete act requiring administrative exhaustion); Walton v. Harker , 33 F.4th 165, 174 (4th Cir. 2022) (“Failure-to-promote is a distinct type of [discrimination] claim that [the Fourth Circuit has]

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said has to be explicitly raised and investigated.”); Wilkes v. Buncombe Operations, LLC , No. 1:20-cv-376-MR-WCM, 2021 WL 7540164, at *6 (W.D. N.C. Nov. 4, 2021) (holding that a plaintiff did not exhaust her administrative remedies on a constructive-discharge claim because her EEOC charge was filed three weeks before she gave notice of her resignation and nearly two months before her actual resignation), Report and Recommendation adopted by 2022 WL 812384 (W.D. N.C. Mar. 16, 2022). That Plaintiff checked the box for “continuing action,” [Doc. 24-19], does not save his claim because the continuing violation doctrine does not apply to a failure-to-promote claim, Williams v. Giant Food Inc. , 370 F.3d 423, 429 (4th Cir. 2004).

The Court therefore concludes that Plaintiff cannot avoid summary judgment on the Discrimination Claim under a failure-to-promote theory. Because Plaintiff has not identified any other adverse employment action taken against him because of his race, the Court recommends that Defendant's summary judgment motion be granted as to the Discrimination Claim.

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The Hostile Environment Claim

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

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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.” Title VII creates liability for a discriminatorily hostile or abusive environment. Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993) (internal quotation marks omitted). Title VII is not a “general civility code.” Oncale v. Sundowner Offshore Servs., 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

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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).

Defendant argues that Plaintiff has failed to forecast evidence that could establish any of the elements needed to survive summary judgment on the Hostile Environment Claim. [Doc. 24-1 at 19-24.] The Court agrees with Defendant that it is entitled to summary judgment on this claim.

To the extent that Plaintiff complains about any specific actions of others, he offers nothing that would suggest that any of the actions were racially motivated. Plaintiff has not forecasted any evidence that anyone he worked with harbored any racial animus, made any race-based comments, or directed race-based jokes or innuendos toward him. [Doc. 24-5 at 60-61.] He also testified that he does not have any evidence that any decisions regarding his employment were made because of his race. [ Id. ] The centerpiece of the

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Hostile Environment Claim is Plaintiff's allegations concerning the Note Incident. [Doc. 1-1 ¶ 22.] As noted, however, investigations revealed that the incident was simply the result of two troopers playing pranks on each other; the notes in question had been affixed to the cubicle of one of these troopers rather than in Plaintiff's workspace; they were not directed toward Plaintiff; and they made no reference at all to Plaintiff or to the issue of race. [Docs. 24-6 at 10-11; 24-14 at 17-19.] Plaintiff has not forecasted any evidence that contradicts these conclusions.

Regarding Plaintiff's allegation that troopers in his post were bypassing him in favor of Craven, Williamson testified that any tension between Plaintiff and some of the troopers under his charge was likely due to the fact that the troopers resented that Plaintiff was promoted from outside their post over a candidate from their post. [Doc. 24-6 at 13.] Plaintiff has not forecasted any evidence suggesting that any tension was the result of racial animus.

Additionally, even assuming that some of the conduct Plaintiff complained of was racially motivated, Plaintiff still has not forecasted evidence that any harassment was sufficiently severe or pervasive to alter the conditions of his employment.

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See Sunbelt Rentals, 521 F.3d at 315-16 (collecting cases holding that complaints of rude treatment, callous behavior by superiors, or differences of opinion or personality conflicts with supervisors 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 satisfactorily shown that she experienced severe or pervasive harassment when the plaintiff alleged“nitpicking” by her superior, being chastised in front of a patient, and ongoing friction with her superior). Indeed, as noted, Plaintiff has not forecasted any evidence of any racially hostile acts whatsoever. For both of these reasons, the undersigned concludes that Defendant is entitled to summary judgment as to the Hostile Environment Claim.

RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that Defendant's motion for summary judgment [Doc. 24] be GRANTED.

IT IS SO RECOMMENDED.