United States District Court, D. South Carolina, Greenville Division
Angela Palomino, Plaintiff: Melvin R Hutson, LEAD ATTORNEY,
Melvin Hutson Law Office, Greenville, SC.
Concord Hospitality Enterprises Company, Choice Hotels
International Inc, Defendants: Amy Yager Jenkins, LEAD
ATTORNEY, McAngus Goudelock and Courie, Mt Pleasant, SC.
M. Herlong, Jr., Senior United States District Judge.
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. 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.
Factual and Procedural History
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" ). (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" ). (Pl. Mem. Opp'n Summ.
J. Ex. 9 (Palomino Dep.99-100), ECF No. 22-9.)
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
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. (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.)
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.)
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.)
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.)
Report and Recommendation
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.)