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Palomino v. Concord Hospitality Enterprises Co.

United States District Court, D. South Carolina, Greenville Division

August 27, 2015

Angela Palomino, Plaintiff,
Concord Hospitality Enterprises Company and Choice Hotels International, Inc., Defendants

          For Angela Palomino, Plaintiff: Melvin R Hutson, LEAD ATTORNEY, Melvin Hutson Law Office, Greenville, SC.

         For Concord Hospitality Enterprises Company, Choice Hotels International Inc, Defendants: Amy Yager Jenkins, LEAD ATTORNEY, McAngus Goudelock and Courie, Mt Pleasant, SC.

         OPINION & ORDER

         Henry M. Herlong, Jr., Senior United States District Judge.

         This matter is before the court with the Report and Recommendation of United States Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina.[1] Angela Palomino (" Palomino" ) alleges that the Defendants, Concord Hospitality Enterprises Company (" Concord" ) and Choice Hotels International, Inc. (" Choice" ), violated her rights under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101, et seq., and the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621, et seq. On November 14, 2014, the Defendants filed a motion for summary judgment. (Def. Mot. Summ. J., ECF No. 19.) In her July 30, 2015 Report and Recommendation, Magistrate Judge Austin recommends granting the Defendants' motion for summary judgment. (Report & Recommendation 17, ECF No. 41.) Palomino filed objections to the Report and Recommendation on August 17, 2015. (Objections, ECF No. 42.) The Defendants replied on August 20, 2015. (Reply to Objections, ECF No. 45.) After review and for the reasons stated below, the court adopts the Report and Recommendation and grants the Defendants' motion for summary judgment.

         I. Factual and Procedural History

         Palomino began her employment with Concord in November 2003, when Concord became the management company of the MainStay Suites hotel located at 2671 Dry Pocket Road in Greer, South Carolina (the " Hotel" ).[2] (Def. Mem. Supp. Mot. Summ. J. Ex. 5 (Pl. Dep. 20-24), ECF No. 19-5; Ex. 3 (Kreindler Aff. ¶ 8), ECF No. 19-3.) Palomino had previously worked at the Hotel under its prior management company and continued in her role as General Manager after Concord became the management company. (Id. Ex. 5 (Pl. Dep. 20-24), ECF No. 19-5.) As the general manager of the Hotel, Palomino supervised all Hotel staff, which consisted of eleven to fourteen employees, including a sales manager, a front desk supervisor, front desk clerks, housekeepers, a maintenance person, a breakfast attendant, and a van driver. (Id. Ex. 5 (Pl. Dep. 34-36), ECF No. 19-5.) In 2011 and 2012, Palomino reported to Michael Roberts (" Roberts" ), a regional manager for Concord; Roberts reported to Ken Polo (" Polo" ), a senior vice president of operations for Concord. (Id. Ex. 4 (Roberts Aff. ¶ ¶ 3, 6), ECF No. 19-4.) In summer 2011, Palomino informed Roberts and others at Concord that she had been diagnosed with multiple sclerosis (" MS" ).[3] (Pl. Mem. Opp'n Summ. J. Ex. 9 (Palomino Dep.99-100), ECF No. 22-9.)

         Throughout Palomino's employment, there had been oral complaints made by guests, managers, and staff about Palomino. (Def. Reply Mem. Supp. Mot. Summ. J. Ex. 1 (Hedlund Supp. Aff.) ¶ 17, ECF No. 24-1; Ex. 2 (Roberts Supp. Aff.) ¶ 14, ECF No. 24-2.) Roberts orally counseled Palomino about her tone and behavior in those instances. (Id. Ex. 2 (Roberts Supp. Aff.) ¶ 14, ECF No. 24-2.) The first complaint resulting in a written warning occurred on October 27, 2011, when the Hotel's front desk supervisor, Reggie Williams (" Williams" ), emailed a complaint to Concord about what Williams perceived as an " extremely hostile" work setting. (Def. Mem. Supp. Mot. Summ. J. Ex. 4 (Roberts Aff. ¶ 7), ECF No. 19-4.) He reported regular " degradation" and " belittling," as well as " backbiting," " name calling," " devaluing . . . of work skills," and " lack of professional respect." (Id. Ex. 4 (Roberts Aff. ¶ 7), ECF No. 19-4.) Upon request, Williams presented proof by submitting examples of hostile and derogatory memoranda authored by Palomino and another similar complaint written by Hotel employee Charlene Scott (" Scott" ). (Id. Ex. 7 (Hedlund Aff. ¶ ¶ 9-10), ECF No. 19-7.) Roberts reviewed the documentation and spoke with Williams and Scott about their complaints. (Id. Ex. 4 (Roberts Aff. ¶ 9), ECF No. 19-4.)

         As a result, Roberts issued a written disciplinary warning on November 9, 2011, which provided that Palomino would receive continued written warnings on the next offense related to her hostile tone and behavior and that " [f]urther documentation could result in termination," pursuant to company policy.[4] (Id. Ex. 4 (Roberts Aff. ¶ 10), ECF No. 19-4.) Roberts and Palomino discussed the warning in person. Roberts counseled Palomino on appropriate behavior, and Palomino admitted she sometimes had trouble controlling her temper. (Def. Mem. Supp. Mot. Summ. J. Ex. 4 (Roberts Aff. ¶ 10), ECF No. 19-4.) Palomino signed the warning and thereafter submitted her written response in which she attempted to justify her actions but also acknowledged that her tone in the memoranda had been " harsh." (Id. Ex. 4 (Roberts Aff. ¶ 11), ECF No. 19-4.) In March 2012, Roberts was informed that Palomino had used an inappropriate and unprofessional tone during a conference call. (Id. Ex. 4 (Roberts Aff. ¶ 12), ECF No. 19-4.) Roberts subsequently issued an oral warning to Palomino regarding her tone and the need to remain professional in her interactions. (Id. Ex. 4 (Roberts Aff. ¶ 12), ECF No. 19-4.)

         Prior to April 2012, Palomino missed only one day of work for conditions related to MS, due to being unable to " get out of bed" after receiving a shot of pain medication for a migraine. (Pl. Mem. Opp'n Summ. J. Ex. 9 (Palomino Dep. 158), ECF No. 22-9.) However, in April 2012 when she was scheduled to attend an out-of-town general manager's meeting, Palomino informed Roberts and human resources vice president Debra Punke (" Punke" ) that she would be unable to attend due to migraines caused by her MS. (Id. Ex. 9 (Palomino Dep. 116-17), ECF No. 22-9.) In an email to Palomino dated April 12, 2012, Punke stated: " I am so very sorry to hear this. I am also very concerned about you continuing to work in this state -- let's schedule time to discuss as a group." (Id. Ex. 13 (Emails), ECF No. 22-13.) Some time later, Palomino, Punke, Roberts and another Concord human resources representative participated in a conference call concerning Palomino's ability to continue working. (Id. Ex. 13 (Emails), ECF No. 22-13.)

         In May 2012, Roberts received oral and written complaints from Hotel employees Anna Hodges (" Hodges" ), the sales manager, and Amanda Eggleston (" Eggleston" ), a front desk and payroll employee. (Def. Mem. Supp. Mot. Summ. J. Ex. 4 (Roberts Aff. ¶ 13), ECF No. 19-4.) The complaints cited Palomino's creation of a " hostile work environment," her continued mistreatment of employees, her impeding their ability to work, as well as Palomino being the cause of some employees quitting and others looking elsewhere for employment. (Id. Ex. 4 (Roberts Aff. ¶ ¶ 13-14), ECF No. 19-4.) On May 30, 2012, Roberts issued Palomino her second written warning within a twelve-month period and a termination notice. (Id. Ex. 4 (Roberts Aff. ¶ 17), ECF No. 19-4.) Palomino and Roberts met in person to discuss the warning and termination, but Palomino did not sign the second warning, and did not submit a response or appeal the termination with Concord. (Id. Ex. 5 (Pl. Dep. 67), ECF No. 19-5.) Palomino was sixty-five years old at the time of her termination. (Id. Ex. 5 (Pl. Dep. 9), ECF No. 19-5.)

         On July 20, 2012, Palomino filed a charge of discrimination with the Equal Employment Opportunity Commission (" EEOC" ), in which she alleged her termination was due to discrimination on the basis of her age and disability. (Def. Mem. Supp. Mot. Summ. J. Ex. 5 (Pl. Dep. 94-96), ECF No. 19-5.) The EEOC investigated the allegations and, on November 19, 2012, it dismissed her case finding no cause to believe that discrimination had occurred. (Id. Ex. 5 (Pl. Dep. 102), ECF No. 19-5.) Palomino contacted her United States Senator and requested assistance in reopening her case, and thereafter, the EEOC reopened her file and issued a Notice of Intent to Reconsider. (Id. Ex. 5 (Pl. Dep. 102-03), ECF No. 19-5.) On January 28, 2014, the EEOC issued a second dismissal of her claim. (Id. Ex. 5 (Pl. Dep. 108-09), ECF No. 19-5.) Thereafter, on April 14, 2014, Palomino filed a complaint against the Defendants in this court. (Compl., ECF No. 1.)

         II. Report and Recommendation

         The magistrate judge's Report and Recommendation assumed without deciding that Palomino can establish a prima facie case. (Report & Recommendation 11, ECF No. 41.) The magistrate judge found that the Defendants articulated a legitimate, nondiscriminatory reason for terminating Palomino and that Palomino failed to establish a genuine issue of material fact as to whether the Defendants' articulated reason was pretext for unlawful discrimination. (Id. at 11-12, ECF No. 41.) Accordingly, the magistrate judge recommended that the Defendants' motion for summary judgment be granted. (Id. at 16, ECF No. 41.)

         III.Plaintiff's ...

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