South Carolina Cases January 31, 2023: Gomez v. Easlan Mgmt.

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. 109.] Plaintiff, represented by counsel, brings this action alleging race/national origin discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and race discrimination pursuant to 42 U.S.C. § 1981. [Doc. 10.] 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 this employment discrimination action are referred to the undersigned United States Magistrate Judge for consideration.

Plaintiff filed this action on June 5, 2020, and filed an Amended Complaint on August 5, 2020. [Docs. 1; 10.] Defendant filed a motion for summary judgment on April 11, 2022. [Doc. 109.] Plaintiff filed a response in opposition to the motion on April 27, 2022, and filed additional attachments to her response on May 4, 2022. [Docs. 112; 116.] Defendant filed a reply on July 5, 2022. [Doc. 129.] The motion is ripe for review.

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BACKGROUND

In ruling on a motion for summary judgment, this Court reviews the facts and reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris , 550 U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward , 711 F.3d 426, 433 (4th Cir. 2013). Viewed in the light most favorable to Plaintiff, the summary judgment record reveals the following facts.

Plaintiff's Employment with Defendant

Plaintiff, who is of Puerto Rican descent, began working at an apartment complex known as Hampton Forest (“the Property”) in April 2018. [Docs. 10 ¶ 4; 11 ¶ 4; 112-8 ¶¶ 2-3.] In December 2018, 2007WH, LLC purchased the Property, planned for significant upgrades to rebrand the Property as 2207 North, and hired Defendant to provide property management services. [Docs. 109-3 at 20:11-14, 35:4-6; 109-5 at 67:18-68:11; 109-6 at 11:22-25; 112-8 ¶ 3.]

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Defendant hired Plaintiff and Sheena Gaskin, who is black, to continue in their roles as property manager and leasing agent at the Property, respectively. [Docs. 112-8 ¶¶ 4, 6; 112-37.]

As property manager, Plaintiff was responsible for, among other duties, checking messages and following up on calls, checking and following up on emails, checking and following up on internet leads, walking the grounds to ensure they were clean and orderly, marketing the Property, showing and leasing apartments, scheduling cleaning, utilizing Yardi software to keep track of lease and occupancy information, depositing checks, processing rental applications, following up with walk-in guests, checking pending utilities, handling maintenance requests, updating weekly rental reports, completing incident reports, conducting staff meetings, submitting invoices for payment, preparing for monthly social events, handling move-in gifts, ensuring show units were properly lit and comfortable, and making refreshments available for guests. [Doc. 109-4 at 17:8-20:20, 67-71.] She delegated the leasing tasks to the leasing agent, but Plaintiff was ultimately responsible for these job duties. [ Id. at 18:5-19:7.]

When Plaintiff began her employment with Defendant, she reported directly to Sally Garza, regional manager. [Doc. 112-8 ¶ 4.] Defendant's regional managers are responsible for overseeing various properties; serving as the liaison between the property manager, Defendant, and the owners of the individual properties; communicating leasing performance, occupancy, and other operational information to Defendant and the owners

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of the properties; and conveying expectations and directives to the property manager so that the property manager can ensure operations meet expectations. [Doc. 109-2 at 3 ¶ 6.]

Renovations at the Property

In January or February 2019, renovations began at the Property. [Doc. 109-5 at 25:18-20.] The renovations included upgrading to granite countertops and stainless steel appliances, installing luxury vinyl tile, adding washers and dryers in buildings that had connections, pouring new concrete around the mailboxes, changing out all resident windows, renovating the interior of the leasing office, redoing the hallways, changing out lighting, replacing the roof, cleaning the gutters, painting the exterior of the buildings, and cleaning up landscaping. [Docs. 109-3 at 66:18-68:6; 109-5 at 67:22-68:7.] During the renovations, Plaintiff was responsible for updating a spreadsheet that the construction team also updated to keep track of the renovation progress. [Docs. 109-4 at 10:17-11:5; 109-7 at 103:1-23; 112-8 ¶ 42.] The spreadsheet “was a working document between the renovation team and the onsite team to help with communication” about which units were vacant and ready to be renovated, which units were in the process of being renovated, and which units were renovated and available to lease. [Docs. 109-4 at 10:17-11:5; 109-7 at 59:8-20, 103:1-23; 112-8 ¶ 42.]

The renovations impacted the number of units available for rent and, as a result, the occupancy rate for the Property. The Property's occupancy rate in January 2019 was 93.10%. [Doc. 109-2 at 5.] However, residents were asked to move out and not renew leases so that apartments could be renovated. [Doc. 109-5 at 65:10-66:6.] Renting units also became “difficult because, even if . . . a renovated unit [was available] to show,

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prospective tenants complained about the construction noise and debris in the same building.” [Doc. 112-8 ¶ 29.]

Elisha Codrington as Leasing Agent

Gaskin stopped working for Defendant in March 2019, and Defendant replaced her by bringing on Elisha Codrington, who is black, through a temporary staffing agency. [ Id. ¶ 6.] In early May 2019, Plaintiff wanted Defendant to hire Codrington directly for the leasing position. [Doc. 112-19.] At the time, Defendant would have had to pay the temporary staffing agency a $2,193.75 buyout to hire Codrington directly; however, that amount would decrease with every hour Codrington worked through the staffing agency. [ Id. ] Garza passed along Plaintiff's wishes to hire Codrington, and it was decided that they should keep her as a temporary employee until her buyout was $0 and then extend her an offer. [ Id .]

The Property Owners' Focus on Occupancy Rate

On June 24, 2019, Randazzo sent an email to the owner of the construction company, Garza, Plaintiff, and others, stating that the focus needed to be on “getting occupancy up to greater than 90%.” [Doc. 109-4 at 72.] Randazzo further stated that the then-current occupancy rate was 72%, outlined the number of units that were move-in ready versus under construction, and indicated that “[t]o get to 90% occupancy [they]

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need[ed] to lease the 4 available, 5 quick turns, and pre lease 6 of the 15 under renovation.” [ Id. (footnote added).]

Aubrey Leonard as Regional Manager

In late June or early July 2019, Aubrey Leonard, who is white, became the regional manager responsible for the Property. [Docs. 109-5 at 23:14-19; 109-7 at 23:1-4, 58:25-59:7; 112-8 ¶ 26; see Doc. 112-21.] The Property was underperforming at that time, and the Property's owners asked Defendant about changing the regional manager because of the Property's performance issues. [Docs. 109-3 at 51:18-24; 109-4 at 72 (noting that the occupancy rate was 72% and the goal was 90%); 109-7 at 57:17-25.]

Soon after Leonard became the regional manager over the Property, she implemented a Monday Morning Report (“MMR”), which was a report property managers completed to be sent to property “owners on Mondays to . . . show . . . how the property ha[d] produced for the week prior.” [Doc. 109-7 at 36:10-37:11, 97:4-15; see also Doc. 109-4 at 76-77 (example MMR).] This weekly report showed the occupancy goal; the budgeted occupancy; the actual occupancy rate; the pre-leased rate; the occupancy trend; the number of additional move ins necessary to achieve the occupancy goal; the traffic numbers; the number of leases completed, denied, and canceled; and the reasons given for not leasing. [Doc. 109-4 at 76-77.] Plaintiff pulled the information for the MMR from Yardi, the property management software program Defendant used. [ Id. at 28:10-11, 34:5-35:18.] The MMR was also discussed on a weekly call with Plaintiff, Leonard, the

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Property's owners, and others that occurred on Monday mornings at 10:00 a.m. to discuss the Property's performance. [ Id. at 102; Doc. 109-7 at 97:4-15.]

Plaintiff and Leonard also used “hot sheets” “to give the team target units to lease.” [Doc. 109-7 at 114:11-13.] These were spreadsheets that listed specific units that had special pricing “to help the team progress” and increase occupancy. [ Id. at 114:11-24; Doc. 109-4 at 9:20-24.]

Lauren Burton as Assistant Property Manager

Leonard and the Property's owners decided not to utilize a third-party staffing agency anymore. [Doc. 109-7 at 53:11-19.] Leonard testified that she did not hire Codrington as a direct employee because, after analyzing the Property's performance, including the marketing and goal to increase occupancy, Defendant “wanted to make sure that [Plaintiff] was going to be successful in her position” and “felt that it would be helpful to have an assistant onsite that knew the market and had experience with running social media and external marketing campaigns.” [ Id. at 54:13-25, 61:24-62:15.] Therefore, Leonard asked Plaintiff to call the staffing agency “and tell them that [Defendant] no longer needed Codrington.” [Doc. 112-8 ¶ 11.] Leonard also told Plaintiff “that Codrington did not attract ‘the right demographic.'” [ Id. ¶ 13.]

On July 17, 2019, Leonard sent Randazzo an email regarding staffing, informing him that she had an assistant manager candidate, Lauren Burton, who had reached out to her for a position, that Leonard had worked with Burton before and thought she was amazing, that Leonard thought Burton would work well with Plaintiff and “balance her knowledge,” and that Burton “kn[ew] how to market and attract the resident base that w[ould] fit the new rents and [wa]s a wiz at leasing.” [Doc. 112-62 at 2.] Leonard testified that Burton had

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previous experience working at another property “in Greenville that had undergone a significant renovation, rebranding, and lease-up, which was very similar to what 2207 was going through.” [Doc. 109-7 at 72:20-73:2.] Defendant hired Burton, who is white, as the assistant property manager in late July 2019. [ See Docs. 109-2 at 34; 109-6 at 37:12-13, 20-25; 112-10 ¶ 1; 112-24.]

The Property's Performance and Plaintiff's Concerns Regarding Construction

As previously stated, the renovations impacted the Property's occupancy rate. Over the time period from January 2019 through October 2019, the occupancy rates were as follows:

Month	Jan.	Feb.	Mar.	Apr.	May	June	July	Aug.	Sept.	Oct.
Occ. Rate	93.1%	86.9%	74.6%	73.1%	69.2%	69.2%	72.3%	73.8%	76.9%	75.4%

[Doc. 109-2 at 5-35, 41-45, 50-58.] Also as stated, Leonard was brought in as regional manager in late June or early July 2019 at the Property's owners' request to change the regional manager because of their concerns about the Property's performance. [Docs. 109-3 at 51:18-24; 109-4 at 72; 109-5 at 23:14-19; 109-7 at 23:1-4, 57:17-25, 58:25-59:7.]

The renovation did not occur without issues. There were issues with units not being completed on time. [Doc. 112-8 ¶ 33.] The construction also “created a mess,” leaving “the hallways cluttered and dirty.” [Doc. 112-9 ¶ 16.] On May 21, 2019, Garza sent an email to Randazzo, letting him know that there were no renovated units ready for move-in and

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that it was “critical for renovated units to be ready as quickly as possible.” [Doc. 112-12.] She also noted that they had discussed renting non-renovated units to help with leasing efforts. [ Id. ]

At some point, Plaintiff informed Leonard that it was challenging to get leases and that she thought it was in part due to the renovations. [Doc. 109-7 at 78:16-19.] Leonard told Plaintiff that they “had seen some issues and that [they] were addressing those with the [Property's owners], that it would be [Leonard's] position to take care of those issues to enable [Plaintiff] to be successful where she was, and that [Leonard] would communicate that with the [Property's owners] and the renovation team, which [she] did.” [ Id. at 78:19-79:1.] After she communicated with the Property's owners and the renovation team, they restructured how some of the renovation would occur. [ Id. at 79:1-3.] During the renovations, Plaintiff expressed concerns about pre-leasing units that may not be ready and available on time. [Docs. 112-8 ¶¶ 30-33; see also Doc. 112-14 at 1 (Plaintiff's email questioning the contractor's statement that pre-leased units could be ready 30 days after the application date).] However, Leonard advised her to “continue to lease two weeks out and update the construction team once [a unit was] leased[ because t]hey should be able to finish them . . . or call in additional support.” [Doc. 112-35 at 1.] Leonard further advised not to “lease more than five with the same make ready week” but reiterated that they needed to continue leasing new units and stay on top of the process and that, if there were concerns a unit would not be ready by the move-in date, Leonard would have a conversation with the Property's owners and the contractor. [ Id. ] Leonard also testified that it was Defendant's employees' job to overcome some of the obstacles created by the renovations. [Doc. 109-7 at 118:11-14.] She explained,

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We weren't supposed to be showing units that weren't ready. [Plaintiff] was given a model unit to show our potential prospects, and then we gave her timelines that we were also holding the renovation team accountable to. So if [Plaintiff] is speaking of issues that were there in the beginning, those were issues that we had worked to resolve through the process, and just because a unit is not ready that day, we typically lease units ahead of time or by notices. Rule of thumb, it's going to be complete. I'm not going to say there are never going to be issues in any sort of situation where you are preleasing units. It does happen.... It's pretty standard in our industry to overcome things like [issues created by construction].

[ Id. at 118:14-120:14.] Additionally, Leonard clarified that some of the issues that frustrated Plaintiff during the renovation, such as when Plaintiff was dissatisfied with something the construction team had purportedly not done, were actually items that Defendant's maintenance team, who reported to Plaintiff, was responsible for. [ Id. at 79:11-81:11.]

On September 9, 2019, Leonard sent an email to Plaintiff and Burton about the then-current occupancy trend of around 75% and informed them that they would need to lease and move in 19 units over the next four weeks to reach the goal of 90%. [Doc. 112-16 at 1.] Leonard further broke the goal down to five leases per week to achieve the 90% occupancy goal. [ Id. ] She also asked them to complete a Daily Report to “ensure [they were] moving in the right direction” by “keep[ing] up with things in real-time [to] help [them] make quick decisions.” [ Id. ] The Daily Report tracked similar metrics as the MMR but on a daily rather than weekly basis. [Doc. 109-4 at 82.] Leonard testified that she requires a Daily Report from properties that are not meeting their owners' expectations. [Doc. 109-7 at 38:6-12.]

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Plaintiff's Termination and Subsequent Property Managers

Plaintiff was terminated on October 4, 2019, for poor performance and not meeting expectations. [Docs. 112-7 at 25:15-26:8; 112-8 ¶¶ 70-71; 112-38.]

On October 1, 2019, Defendant offered Burton the property manager position at the

Property. [Doc. 112-36.] She remained the property manager until Hannah Whitt, who is white, became the property manager at some point in 2020. [ See Docs. 109-7 at 30:25-31:3; 112-10 at 1.] Over the time period from October 2019 through May 2020, the occupancy rates were as follows:

Month	Oct.	Nov.	Dec.	Jan.	Feb.	Mar.	Apr.	My
Occ. Rate	75.4%	79.2%	87.7%	87.7%	86.9%	88.5%	87.6%	89.2%

[Doc. 109-2 at 54-63, 68-92.]

Plaintiff's Charge of Discrimination and This Action

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission and has received a Notice of Right to Sue. [Docs. 10 ¶ 24; 11 ¶ 24; 112-23.] Thereafter, Plaintiff commenced this action for discrimination and asserts causes of action for race/national origin discrimination under Title VII [Doc. 10 ¶¶ 26-29] and discrimination under § 1981 [ id. ¶¶ 30-32].

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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). 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

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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.

DISCUSSION

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). And 42 U.S.C. § 1981 outlaws race discrimination in the making and enforcement of private contracts. 42 U.S.C. § 1981(a). Race discrimination claims under 42 U.S.C. § 1981 are evaluated under the same framework that applies to Title VII claims, Middlebrooks v. Univ. of Md. , 166 F.3d 1209, at *4 (4th Cir. 1999) (unpublished table decision), so it is to that framework that the Court now turns.

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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). If the employer articulates a

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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.

To establish a prima facie case of disparate treatment, “a plaintiff must show that (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her 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, including because the employer left open the position or replaced the plaintiff with someone outside the protected class.” Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 649-50 (4th Cir. 2021). Here, even assuming Plaintiff can establish a prima facie case of discrimination, Mandengue v. ADT Sec. Sys., Inc. , No. ELH-09-3103, 2012 WL 892621, at *16 (D. Md. Mar. 14, 2012) (“[I]t is a common practice of the Fourth Circuit to assume, without deciding, that the plaintiff has established a prima facie case in cases where the employer has proffered evidence of a legitimate reason for its adverse action in its motion for summary judgment.” (citing cases)), Defendant has articulated a legitimate, nondiscriminatory reason for terminating Plaintiff. Specifically, Defendant asserts that Plaintiff was terminated because of her poor performance as property manager. [Doc. 109-1 at 31.] Ginni Wilkerson testified that she told Plaintiff “that she was being terminated for poor performance” that was not “meeting the company's expectations” and that she believed Leonard had given Plaintiff “specifics as to how her

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performance was not meeting company expectations.” [Doc. 112-7 at 26:1-13.] Plaintiff avers that Leonard told her she was terminated “because of the performance of the [P]roperty.” [Doc. 112-8 ¶ 71.] There is no dispute that, at least as of June 24, 2019, Plaintiff was aware of the goal to “get[] occupancy up to greater than 90%” [Doc. 109-4 at 72], and that during July, August, and September, the months leading up to Plaintiff's termination, the occupancy rate at the Property never rose above 76.9% [Doc. 109-2 at 31-35, 41-45, 50-53 (reports showing the occupancy rate at 72.30% in July 2019, 73.80% in August 2019, and 76.90% in September 2019).] Because Defendant has met its burden to articulate a legitimate, nondiscriminatory reason for terminating Plaintiff, the Court will consider whether Plaintiff has met her burden of demonstrating that Defendant's proffered reason is merely a pretext for discrimination, which would indicate whether Plaintiff could meet her ultimate burden of persuasion and demonstrate discrimination vel non. See Merritt v. Old Dominion Freight Line, Inc. , 601 F.3d 289, 294 (4th Cir. 2010).

Generally, to prove an employer's articulated reason is a pretext for discrimination, a plaintiff “must prove ‘ both that the reason was false, and that discrimination was the real reason' for the challenged conduct.” Jiminez v. Mary Washington Coll. , 57 F.3d 369, 378

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(4th Cir. 1995) (quoting St. Mary's Honor Ctr. , 509 U.S. at 515). However, “a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 148 (2000). Ultimately, to survive summary judgment on a discrimination claim, a 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.” Guessous v. Fairview Prop. Invs., LLC , 828 F.3d 208, 217 (4th Cir. 2016). Here, Plaintiff has failed to demonstrate a genuine factual dispute on the question of pretext.

Plaintiff first argues that Leonard's claims about Plaintiff's performance contradict what Leonard told Plaintiff about her performance during her employment. [Doc. 112 at 30-31 (citing id. at 8-9).] More specifically, Plaintiff argues that Leonard never complained to Plaintiff about her performance and never issued any warnings to Plaintiff and that nobody told Plaintiff that her performance was deficient or that her job was in jeopardy. [ Id. at 8-9.] As an initial matter, although Defendant never issued a formal warning to Plaintiff, as Leonard testified, there were emails “where [they] had been trying to get the performance on point.” [Doc. 109-7 at 165:12-14; see also id. at 44:6-13, 45:3-8.]

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Moreover, the cases cited by Plaintiff to support her contradiction argument are distinguishable. In Mooberry v. Charleston Southern University , the plaintiff's employment contract was not renewed, and the employer asserted that the plaintiff, a Division I collegiate women's volleyball coach, did not have the characteristics of a Division I coach, received negative feedback from team members, and had an unimpressive win-loss record. No. 2:20-769-RMG-MGB, 2021 WL 5911333, at *2, 5 (D.S.C. Nov. 4, 2021), Report and Recommendation adopted by 2022 WL 123005 (D.S.C. Jan. 13, 2022). The Court found a triable issue of fact regarding whether those reasons were pretextual based on evidence that none of the reasons had been communicated to Plaintiff either during her employment or at the time of her termination, that no one had talked to Plaintiff about her winning percentage or other concerns with her coaching, that the defendant's human resources director had asked the decisionmaker for information relating to the plaintiff's poor performance because the human resources department had not previously received any, and that the decisionmaker had testified that he found it important to document performance issues but had not documented any in that instance. Id. at *6. In contrast, in this case, the record establishes that Plaintiff understood the 90% occupancy goal but failed to make significant progress toward it despite special pricing of some units and the regional manager's breaking down the goal into smaller, more achievable pieces; that Plaintiff missed or had to be reminded about multiple Monday morning calls where

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marketing and other topics to increase occupancy rates were discussed ; and that Plaintiff had to be reminded to send MMRs and other reports. Accordingly, this is not a situation where there is “no documentation indicating that Plaintiff had ever been counseled.” Cade v. Astrue , No. 2:11-cv-3498-PMD-BM, 2014 WL 4635568, at *6 (D.S.C. Sept. 15, 2014).

Plaintiff also relies on emails where Leonard purportedly praised Plaintiff to argue that Leonard's claims about Plaintiff's performance contradict what Leonard told Plaintiff about her performance during her employment. The first email Plaintiff relies on states, “Great job on two leases this week!! Keep going!! It looks as that trend is getting stronger!” [Doc. 112-63.] Notably, this email was sent directly to Burton with a carbon copy to Plaintiff. [ Id. ] At the very least, it was sent to both women, as was the second email Plaintiff relies on, which states, “Great Job 2207 Team for this quick turn around on today's marketing efforts!! This is how we move the needle!! Keep up the great work and keep making that impact!” [Doc. 112-32.] Nothing in these emails contradicts the evidence that the Property's occupancy rate never rose to the 90% goal while Plaintiff was property manager, that she knew that was the goal, and that she was ultimately responsible for the Property's performance as property manager.

Next, Plaintiff contends that Leonard's “[p]ost-complaint nitpicking” and Defendant's failure to follow a policy that permitted less severe sanctions establish pretext. [Doc. 112 at 31-32.]

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However, Plaintiff has failed to direct the Court to any policy that Defendant failed to follow. Indeed, Wilkerson testified that she was “aware of a[ ] situation other than [Plaintiff's] in which an . . . employee [of Defendant's] was terminated for performance without first receiving written warnings.” [Doc. 112-7 at 22:2-11.] And Leonard testified that Defendant implemented a discipline policy of giving a verbal warning and then a writeup in October 2020 [Doc. 109-7 at 146:19-25], one year after Plaintiff was terminated. Further, as stated, this is not a case where there is no contemporaneous documentation of performance problems and only “post-complaint nitpicking.”

Plaintiff also argues that comparator evidence establishes pretext because Plaintiff's successors were treated more favorably than Plaintiff. [Doc. 112 at 32-33.] Plaintiff's sole argument related to comparator evidence is that “[t]here [are], to put it mildly, serious issues about the documented deficiencies of [Plaintiff's] successors in areas cited by [Defendant] for which there were no such issues documented about [Plaintiff] during her employment.” [ Id. at 33.] It appears Plaintiff may be asserting that Burton was not terminated even though the occupancy rate decreased and the property upkeep declined when she became property manager and that Whitt was not terminated even though the Property's owners complained about her and she made other errors. [ Id. at 13-17.]

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However, the record evidence shows that, although the occupancy rate decreased in Burton's first month as property manager, the occupancy rate increased significantly more in the three months after Plaintiff was terminated than it did in when Plaintiff was property manager:

Occupancy Rates Under Plaintiff
Month	Jan. 2019	Feb. 2019	Mar. 2019	Apr. 2019	May 2019	June 2019	July 2019	Aug. 2019	Sept. 2019
Occ. Rate	93.1%	86.9%	74.6%	73.1%	69.2%	69.2%	72.3%	73.8%	76.9%

Occupancy Rates Under Subsequent Property Managers
Month	Oct. 2020	Nov. 2020	Dec. 2020	Jan. 2020	Feb. 2020	Mar. 2020	Apr. 2020	May 2020
Occ. Rate	75.4%	79.2%	87.7%	87.7%	86.9%	88.5%	87.6%	89.2%

[Doc. 109-2 at 5-35, 41-45, 50-63, 68-92.] Thus, Plaintiff cannot show that Burton and/or

Whitt were treated more favorably under similar circumstances.

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Next, Plaintiff contends that Defendant's raising new reasons and changing reasons for terminating Plaintiff establishes pretext. [Doc. 112 at 33.] However, the Court does not agree that Defendant has changed its reason for terminating Plaintiff. As stated, Wilkerson informed Plaintiff that she was being terminated for poor performance and not meeting expectations, and Leonard told Plaintiff that she was being terminated because of the Property's performance. [Docs. 112-7 at 26:1-13; 112-8 ¶ 71.] Although Defendant has since provided more specific examples of ways Plaintiff was not meeting expectations, as Defendant argues, these examples “demonstrate[] that Plaintiff lacked judgment in setting priorities and that management understandably lacked confidence in Plaintiff's ability to lead the [P]roperty” to its 90% occupancy goal. [Doc. 120 at 5.]

Finally, Plaintiff argues that Defendant's failure to produce certain “key documents” raises issues of fact and supports a finding of pretext. [Doc. 112 at 33.] However, Plaintiff fails to elaborate on this argument, nor has Plaintiff established nor even addressed the elements of spoliation. See Cytec Carbon Fibers LLC v. Hopkins , No. 2:11-217-RMG-BM, 2012 WL 6044778, at *1-2 (D.S.C. Oct. 22, 2012) (outlining the three elements for spoliation: (1) that the party with control over the evidence had a duty to preserve it when it was destroyed; (2) that the evidence was destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to a party's claim or defense), Report and Recommendation adopted by 2012 WL 6050595 (D.S.C. Dec. 5, 2012).

Plaintiff has failed to present sufficient evidence showing that the reasons given by Defendant for her termination were not the actual reasons, and she has also failed to raise

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a reasonable inference that race or national origin discrimination was the real reason for termination. The ultimate question in an employment discrimination case is whether the employer intentionally discriminated against the plaintiff on a prohibited basis. Reeves , 530 U.S. at 146. Although the Court has applied the McDonnell Douglas framework in this case, it has done so while keeping that ultimate question in mind. After careful review of the record and the applicable law, the Court concludes that Plaintiff has failed to establish a “genuine, triable issue,” Celotex , 477 U.S. at 327, as to whether Defendant discriminated against her on the basis of race or national origin. Accordingly, Defendant's motion for summary judgment should be granted.

CONCLUSION AND RECOMMENDATION

In light of the foregoing, the undersigned recommends that Defendant's motion for summary judgment [Doc. 109] be GRANTED.

IT IS SO RECOMMENDED.