United States District Court, D. South Carolina
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For Barry Robinson, Plaintiff: Pheobe A Clark, Wukela Law Firm, Florence, SC.
For BGM America Inc, doing business as Beneteau USA Inc, Defendant: Richard J Morgan, LEAD ATTORNEY, McNair Law Firm, Columbia, SC; Robert Hayne Hodges, III, Gignilliat Savitz and Bettis, Columbia, SC.
Kaymani D. West, United States Magistrate Judge.
REPORT AND RECOMMENDATION
Plaintiff Barry Robinson (" Plaintiff" or " Robinson" ) filed this action in the United States District Court, Florence Division, on December 20, 2011, based on the court's federal question jurisdiction. Plaintiff seeks recovery against Defendant BGM America Inc., d/b/a Beneteau USA, Inc. (" Defendant" or " Beneteau" ). He alleges causes of action for race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e et seq. (" Title VII" ) and S.C. Human Affairs Law, S.C. Code Ann. § § 1-13-20 and 1-13-80(a)(1), and discrimination in violation of the Americans with Disabilities Act of 1990 (" ADA" ), 42 U.S.C. § § 12101, 12112(b).  This matter comes before the court on Defendant's Motion for Summary Judgment. ECF No. 30. The undersigned conducted a hearing on Defendant's motion on June 20, 2013, at which Plaintiff and Defendant appeared through counsel. Having considered the parties' briefs and argument, the undersigned
submits this Report  recommending Defendant's Motion be granted.
I. Factual Background
Defendant Beneteau, a yacht manufacturer, opened its manufacturing facility in Marion, South Carolina in 1986. Def.'s Mem. 2, ECF No. 30-1. Plaintiff, a Black male, was hired by Beneteau in 1986. Pl.'s Resp. to Mot. for Summ. J. 2, ECF No. 32. Prior to 1996, Plaintiff was promoted to a first-line supervisor on one of Defendant's manufacturing lines. ECF No. 30-1. On July 3, 1996 Plaintiff filed a Charge of Discrimination with the South Carolina Human Affairs Commission in which he alleged that he had been subjected to discriminatory terms and conditions of employment by a Beneteau production manager on the basis of race. ECF No. 33-14. Plaintiff later withdrew that complaint, and in a note dated July 30, 1996, wrote that he did not believe he was discriminated against on the basis of race. ECF No. 30-4 at 38.  Plaintiff remained employed with Beneteau continuously until the time of his resignation from the company. Pl.'s Dep. 117:5-10, ECF No. 30-3 at 50. During his employment Plaintiff received regular pay raises, bonuses, performance evaluations, and satisfactory or close-to-satisfactory performance reviews. Id. at 117:11-25.
Faced with difficult economic times in the late 2007/early 2008 time-frame, Defendant took measures including reductions-in-force (" RIFs" ), furloughs, and job reassignments to match the work force with business demands. See Human Resources (" HR" ) Director Jennifer Reinman (" Reinman" ) Dep. 27:2-28:17, 30:8-31:4, 31:23-33:13; ECF No. 33-1. Reinman testified that employees were selected for layoff or reassignment based on their present skills, transferable skills, training, accident and attendance records, and performance reviews. Id. at 30:4-22, 31:1-4. Defendant experienced a second RIF in late 2008 and the same criteria were used for determining which employees would be laid off. Id. at 32:1-5.
After the first RIF in 2008 but before the second 2008 RIF, Defendant reconfigured its manufacturing process from one with multiple production lines to one with a single, continuous production line. This more streamlined " lean manufacturing" configuration was thought to be more efficient. At the end of the continuous line was the Deck Hardware area, where hardware such as rails, windows, and hinges would be put on the yachts. See id. at 27:2-28:17, 29:15-21.
In early-to-mid 2008,  Plaintiff was moved from the position of being a line supervisor to being a crew leader of Deck Hardware. Id. at 32:25-33:10. It is Plaintiff's understanding that his prior position as a line supervisor then was eliminated, so it was not filled by another.
On September 23, 2008, while a crew leader in the Deck Hardware Department, Plaintiff received a Written Employee Reprimand and three-day unpaid suspension for failure to " consistently follow SOP procedures for work in process in his department" and for failure to " accept responsibility
for the results of work performed by his employees." ECF No. 33-3 at 1-2. As set out in a November 14, 2008 note by HR Director Reinman, Plaintiff and his then-supervisor, Andy Thatcher, met with Reinman and Defendant's President, Wayne Burdick, on September 23, 2008 regarding that reprimand and suspension. Internal Mem. 3-4, ECF No. 33-3 (internal memo from Reinman recounting meeting). According to Reinman's notes, Plaintiff recounted that, on or around September 17, 2008, Thatcher and Plaintiff met in Thatcher's office, and Thatcher told Plaintiff he would " get him." Id. at 3 (noting Plaintiff's words in quotation marks). In the September 23, 2008 meeting with Plaintiff, Reinman, and Burdick, Thatcher denied making such a comment and said Plaintiff was lying. Id. As set out by Reinman in her internal memorandum, Plaintiff explained: " Yes, you did [say that] when I asked you to have a meeting you said 'don't worry about it cause I will get you in due time.'" Id. (noting Plaintiff's words regarding Thatcher's statement in quotation marks). Reinman's notes also recount an October 14, 2008 meeting between Plaintiff, Burdick, and Reinman, at which Plaintiff further explained his September 17, 2008 encounter with Thatcher. Plaintiff explained that Thatcher told him there had been complaints that he [Plaintiff] had not responded to quality-control issues regarding windows. Id. In response, Plaintiff asked that Thatcher call a meeting with those involved. At that time, Thatcher told Plaintiff a meeting would be unnecessary " at that time[,] and he would get to it." Id. (Reinman's phrasing in her internal memorandum, not quoting Plaintiff). Reinman's internal memorandum further indicates a meeting later that same week among Thatcher, and Burdick, and herself. Id. Thatcher recalled having told Plaintiff he held Plaintiff " totally accountable" for the leaking windows and would discuss it further with him at a later date. Id. (Reinman quoting Thatcher). Thatcher explained his comment to Plaintiff meant that he planned to wait until further testing had been performed concerning the quality-control issue. Id. Reinman's notes also indicate she questioned the supervisor Plaintiff " allegedly confided in after the discussion with [Thatcher, and] that supervisor did not recall [Plaintiff] giving him any specifics[.]" Id. (Reinman's phrasing in internal memorandum).
As part of the lead-up to the November 2008 RIF and reassignments, Defendant eliminated a number of salaried positions through attrition or resignation. Among those were the following: Mold Room Manager (White male); Marketing Communications (White male); Hiring Coordinator (White male); MIS Programmer (White male), and an Assembly Line Supervisor (White male). Reinman Dep. 83:4-85:9, ECF No. 33-1; Def.'s ex. 2 to Reinman Dep., ECF No. 30-5 at 45-50. In November 2008, Defendant terminated 44 team members who were paid an hourly wage. Ex. 9 to Pl.'s Dep., ECF No. 30-4 at 3. In addition, Defendant eliminated the following four salaried positions at that time: Deck Hardware Supervisor (Plaintiff's position); Grinding Supervisor (Black male); Stockroom Supervisor (White female); and Customer Service Receptionist (White female). Three of these four held supervisor positions; only the White female supervisor was terminated. The supervisory reductions continued several months later when three more White male supervisors were moved to hourly positions when business did not improve. See Def.'s ex. 2 to Reinman Dep., ECF No. 30-5 at 45-50.
In early November 2008, Defendant gave Plaintiff the option of being demoted or laid off. See Pl.'s Dep. 41:15-42:25,
ECF No. 30-3. Plaintiff chose to remain in Defendant's employ. Id. at 43:1-3. A November 7, 2008 letter from Defendant's President to Plaintiff indicates that, effective November 10, 2008, Plaintiff would begin work as a Component Installer Crew Leader which was an hourly, rather than salaried, position. Nov. 7, 2008 Ltr. to Pl., ECF No. 33-2. As Component Installer crew leader, Plaintiff's job duties were a combination of line supervisor and component installer. Reinman Dep. 21:16-25; 22:6. A crew leader would perform the duties of an installer and also make sure the work was done properly. Id. at 22:7-9. Because of its economic situation, Beneteau did not view the change from supervisory to hourly positions as demotions; however, Plaintiff considered his change to an hourly employee as a demotion. See id. at 37:16-25. Plaintiff's pay was reduced. See Nov. 7, 2008 Ltr. to Pl., ECF No. 33-2 (referencing a reduction in pay).
In late summer or early fall of 2009, Plaintiff mentioned to a supervisor and/or another employee of Defendant that he planned to leave the company at the end of the year to start his own business. Pl.'s Dep. 75:8-25; 76:1-3, ECF No. 30-3. Although Plaintiff had not provided any written communication to the company about resigning, on September 9, 2009, Reinman sent an email to Defendant's president, Burdick, noting that Plaintiff would " be giving his final notice next month for Dec. 31st as he is starting his own business." Def.'s ex. 1 to Reinman Dep., ECF No. 30-5 at 44.
On October 29, 2009, Plaintiff called in to the employee reporting phone line and left a message stating that his right calf was hurting and he was going to the doctor. Pl.'s Dep. 108:12-16, ECF No. 30-3. On October 30, 2009, Plaintiff again called in and left a message that he was under a doctor's attention, and had his son drop off a doctor's excuse. Id. at 108:17-24. The excuse from Dr. Gerard Jebaily was dated October 29, 2009, and read: " Low back pain, Light duty off 10/29, 10/30." ECF No. 33-5. Plaintiff did not return to work during the month of November because he was scheduled to be off on voluntary furlough. Pl.'s Dep. 82:10-22, ECF No. 30-3.
Defendant's attendance policy operates on a point system. If an employee accrues five points then the employee receives a verbal warning. Reinman Dep. 46:4-6, ECF No. 30-5. After seven points, the employee receives a first notice, after nine points the employee receives a second notice, after 11 points the employee receives a third notice, and after 12 points the employee is terminated. Id. at 46:8-10. As of October 23, 2009, Plaintiff was aware that, through September 17, 2009, he had accumulated eight-and-one-half points. Pl.'s Dep. 80:8-12, ECF No. 30-3; Employee Warning Notice, ECF No. 30-4 at 1-2 (signed by Plaintiff and indicating " 8 ½ pts. as of 9/17/09" ).  In late October 2009, after running attendance reports, Reinman issued attendance notices. Id. at 47:12-13. Because Plaintiff had not returned to work, Reinman sent a letter to Plaintiff dated December 11, 2009, attaching his second and third written notices for absences through October 16, 2009, and October 31, 2009, respectively. ECF No. 33-11. As of October 16, 2009, Plaintiff had accumulated nine-and-one-half points, and as of October 31, 2009, Plaintiff had accumulated 12 points. Id.
Plaintiff replied to Reinman in a letter dated December 14, 2009, and stated that the " accumulated attendance points
against me is (sic) not accurate, and needs to be corrected." ECF No. 33-13 at 1. Plaintiff stated in the letter that he was " still under [his] doctor" and that the MRI from his " reinjury" had not yet been read. Id. Plaintiff also set out his concerns regarding his alleged demotion, harassment, and unfair treatment and intent to resign, stating the following:
Here are some concerns I want you to be aware of After being in Management for 22 years[,] I was informed on November 5, 2008 that I would be demoted [sic] or layed [sic] off. While it was my intent to retire from Beneteau, I had to make a decision to provide a detailed letter of resignation. I have been harassed and not treated fairley [sic] through October 28, 2009 and continuing. My work has been criti[ci]zed more than the performance of similarly situated employees. I performed as well as and even better than they did. I continued to have problems no matter what I did. The Agreement in my new position as a new component installer crew leader was not followed as agreed. Because of these conditions I could not perform my job more effectively and correctly. I am known to be a true Beneteau employee.
Id. Reinman testified that she contacted Plaintiff to follow-up on the attendance issues, and consulted with the appropriate Beneteau personnel regarding Plaintiff's claims of harassment and unfair treatment. Reinman Dep. 50:12-25, 52:1-22, 69:5-70:2, ECF No. 33.
In a four-page typewritten letter dated December 15, 2009, Plaintiff provided Beneteau with written notice of his formal resignation. ECF No. 33-13 at 2-5. Referring to his November 2008 new position as a demotion, Plaintiff alleged that " while performing physical labor in this position, [he] suffered an on the job injury and reinjured [his] back." Id. at 3. Plaintiff also alleged harassment, unfair treatment, and racial discrimination. Id. at 3-4.
After filing a complaint with the U.S. Equal Employment Opportunity Commission (" EEOC" ), Plaintiff received a Notice of Suit Rights dated September 22, 2011. Compl. ¶ 11, ECF No. 1. On November 27, 2011, Plaintiff was awarded disability benefits through the Social Security Administration with a disability onset date of October 28, 2009. ECF No. 33-9. Plaintiff filed the instant suit on December 20, 2011, alleging discrimination on the basis of race, retaliation, and failure to accommodate his disability.
A. Standard of Review