United States District Court, D. South Carolina, Columbia Division
Shirley I. O'Neal, Plaintiff,
John M. McHugh, Secretary of the Army, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
In this employment discrimination case, Shirley I. O'Neal ("Plaintiff"), a former employee of the Department of the Army at Fort Jackson, is suing John K. McHugh in his capacity as the Secretary of the Army ("Defendant"). Plaintiff alleges sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). [Entry #23]. This matter comes before the court on Defendant's motion for summary judgment filed on August 29, 2014. [Entry #60]. On September 2, 2014, the undersigned advised the parties that the court did not anticipate granting any extensions of the briefing schedule. [Entry #62]. To date, Plaintiff has failed to file a response to Defendant's motion for summary judgment.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Because the motion for summary judgment is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court grant Defendant's motion for summary judgment.
I. Factual Background
From October 2004 until her retirement on September 3, 2010, Plaintiff was employed as an Education Specialist by the Army at Fort Jackson in the Army Continuing Education Services ("ACES"). [Entry #60-1 at 3]. Robert Youmans was Director of Human Services and was Plaintiff's direct supervisor from 2004 until spring 2010, when Lonnie Stinson became her first line supervisor. Pl. Dep. at 26:15-27:2. Although Youmans was Plaintiff's first line supervisor, they did not work in the same building. [Entry #60-1 at 3].
On February 17, 2009, Youmans forwarded Plaintiff an email requesting that she nominate employees to attend a conference in July 2009. Id. at 4. Youmans requested Plaintiff provide by Friday, February 20, 2009, a brief summary of the benefits of this conference and recommendation as to who should attend. Id. On the following Monday, Plaintiff responded with her recommendation that she should be chosen to attend the conference. Id. On February 25, 2009, Youmans approved Plaintiff to nominate herself to attend the conference. [Entry #60-3 at 36-37]. Peggy Pen, Human Resources Administrative Officer, asked Plaintiff to provide administrative information regarding the conference no later than March 2, 2009. Id. at 36. This date was extended to May 22, 2009, but Plaintiff did not provide the requested information until May 29, 2009. Id. at 35-36. Plaintiff was permitted to attend the training. [Entry #60-1 at 4]. According to Defendant and undisputed by Plaintiff, the delays in the approval process were due to Plaintiff's failure to provide information in a timely manner. Id.
Youmans counseled Plaintiff as early as 2007 on proofreading and writing style. [Entry #60-6]. Plaintiff's grammar and punctuation mistakes persisted and Youmans continued to counsel Plaintiff on her need to improve. Id. Additionally, Plaintiff was counseled for missed deadlines. Id. On August 24, 2009, Youmans determined that Plaintiff had failed to accomplish the performance standards of two of her three job objectives and placed her on a Performance Improvement Plan (PIP). [Entry #60-3 at 17-20].
The PIP stated that Plaintiff needed to improve her writing skills and proofread her emails and documents. Id. Youmans recommended that she take advantage of various training courses and that she schedule correspondence training for herself and her staff. Id. at 20. The PIP allowed her 90 days, until November 21, 2009, to bring her performance up to an acceptable level and notified her that continued unacceptable performance could lead to removal from her position and reassignment, involuntary reduction in grade and reassignment, or removal from federal service. Id. at 17. According to Defendant, Plaintiff admitted that she did not comply with the specific objectives from the August PIP, including that she did not schedule the correspondence training or take any additional training at this time. [Entry #60-1 at 6]. Defendant states that Plaintiff established a system to track actions as required, although she admitted it was ineffectual, and she did not establish a system for passing information to staff. Id.
On November 17, 2009, Youmans observed that Plaintiff's performance remained unacceptable and extended the PIP an additional 90 days, until February 15, 2010, for Plaintiff to improve her performance. [Entry #60-1 at 6]. Defendant states that although Plaintiff continued to work on the objectives outlined in the PIP, she admitted that she was unable to comply with all of them. Id. at 6-7; #60-3 at 21. Plaintiff was ill and out of work from January 29 through April 16, 2010. Id. at 7. On May 18, 2010, Youmans extended Plaintiff's PIP again, providing another 90 day opportunity for improvement. [Entry #60-3 at 21-23]. He explained that he was providing this additional opportunity because Plaintiff had been on extended leave and because the Army had converted from the National Security Personnel System to the General Schedule system. Id. This PIP reiterated Youmans' continued concerns about Plaintiff's unacceptable performance. Id. According to Defendant, Plaintiff admitted that she did not comply with all of the specific objectives and standards detailed in the PIPs. [Entry #60-1 at 7].
Plaintiff was issued a Notice of Proposed Removal on August 18, 2010. [Entry #60-3 at 24-28]. The reasons stated for removal included Plaintiff having provided inaccurate information regarding actions and taskings, inappropriate delegation of actions and taskings contrary to guidance, and not completing actions in an accurate and timely manner. Id. Youmans provided 27 separate instances of unsatisfactory performance and failure to follow supervisory instructions to support the proposed removal. Id. Defendant represents that Plaintiff retired on September 2, 2010. [Entry #60-1 at 7].
Plaintiff's Harassment Allegations and EEO Activity
While on medical leave, Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor on February 25, 2010. [Entry #60-3 at 7]. It appears she gave a "Sexual Harassment/Sexual Assault" timeline to the EEO counselor on March 23, 2010. Id. at 8-10. According to the timeline, Plaintiff alleges: (1) Youmans stated in May 2009 that he would deny Plaintiff's request to attend the July 2009 conference unless he could go with her, and he continued to "deny the conference training" in June 2009; (2) Youmans asked Plaintiff in July 2009 if he could join her at the conference; (3) Youmans rubbed Plaintiff's hand and back and said that her top could be a little lower in August 2009; (4) in September 2009, Youmans suggested that Plaintiff return to work after hours for no reason, asked if she was working late, and asked if she could stay late at the office until he completed the Retiree Council Meeting; (5) Youmans told Plaintiff in October 2009 that if she did not improve her performance, he would "break [her] down;" and (6) Youmans asked Plaintiff in December 2009, if he could spend time with her before she took leave. Id. at 9-10.
Plaintiff also alleged in the timeline that on an uncertain date in September 2009, Youmans "touched his penis in front of me, and then said, Oh! I shouldn't do that!' I continued to pull away from him, but he continued to pursue me." Id. at 9. Plaintiff did not report this incident to anyone. Pl. Dep. at 100. At her deposition, Plaintiff alleged for the first time that during this incident, Youmans exposed his penis to her, but said that she was at her desk and Youmans was next to the picture window in her office. Pl. Dep. at 97-99. At her deposition, she also testified about an additional incident that was not disclosed in the ...