United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
matter is before the court on Magistrate Judge Thomas E.
Rogers, III's Report and Recommendation (the
“R&R”), ECF No. 99, recommending that the
court grant defendants Stahl Crane Systems, Inc. and
Konecranes, Inc.'s (collectively,
“defendants”) motion for summary judgment. ECF
No. 81. Plaintiff Daniel McFadden (“McFadden”)
filed objections to the R&R. ECF No. 102. For the reasons
set forth below, the court adopts in part and rejects in part
the R&R, and grants in part and denies in part
defendants' motion for summary judgment.
own and operate an enterprise engaged in the manufacture of
wire rope and chain hoists used on cranes and other heavy
lifting equipment in the manufacturing industy, shipyards,
ports, and terminals. ECF No. 81-1, Defs.' Mot. 2.
McFadden began working for defendant Stahl Crane Systems,
Inc.'s (“Stahl”) as a “Production
Manager” at its Charleston, South Carolina location in
2002. ECF No. 81-2, McFadden Dep. 29:22-25. As a
Production Manager, McFadden performed primarily sales and
supply-chain management related functions, such as
“mak[ing] production schedules to meet promised
deliveries, ” “mak[ing] sure  the components
necessary to complete the equipment [were] available and on
hand, ” “keep[ing] current purchase agreements in
place and constantly trying to get better pricing and
delivery, ” improving the product “through
discussions and meetings with customers, ” and
participating in “sales calls” and “sales
meetings.” McFadden Dep. 57:23-58:21. McFadden was also
qualified to perform engineering and managerial functions.
ECF No. 82-12, Heeskins Dep. 37:16-19.
December of 2004, McFadden was diagnosed with colon cancer.
He underwent surgery and treatment while continuing to work
in his position as Production Manager. Following this
treatment, McFadden's cancer went into remission. In July
of 2008, McFadden learned his colon cancer had returned.
Faced with the prospect of again undergoing surgery and
treatment, McFadden requested and was granted a leave of
absence from his job with Stahl. ECF Nos. 82-6. Stahl placed
McFadden on short term disability while he was on leave.
McFadden Dep. 72:22-25; ECF No. 82-7, Letter re: Medical
Leave of Absence. In September or October of 2008, while
McFadden was still on leave, his supervisor, Robby Heeskens
(“Heeskens”), offered him a newly created
position as a Research and Development Engineering Manager
(“R&D Manager”). McFadden Dep. 116:10-17,
118:1-15. The position required McFadden to
“Americanize” defendants' products, which
were developed in Germany. Heeskens Dep. 48:1-12. McFadden
specifically asked Heeskens whether the position would be
phased out, and expressed his desire to remain in a permanent
position with the company. McFadden Dep. 117:11-118:15.
Heeskens assured McFadden that the position would not be
phased out, and that Stahl's managing director, Warren
Wagner (“Wagner”), supported the position.
Id. at 117:11-20. McFadden accepted the R&D
Manager position and returned to work in that role on
November 20, 2008. Id. at 126:10-24. McFadden's
old Production Manager position was filled by Scott Vogel
(“Vogel”), a younger employee who had been
covering McFadden's duties during his leave of absence.
Heeskens Dep. 38:1- 39:5. Notably, the R&D Manager
position provided McFadden with the same pay and benefits he
received as a Production Manager. McFadden Dep. 126:19-24.
2009, due to the “worldwide economic downturn, ”
Konecranes underwent significant internal restructuring.
Wagner Aff. ¶ D. As part of this restructuring,
Konecranes decided to eliminate all production operations at
Stahl's Charleston facility, leaving only the sales
office. Id. ¶ F. All of Stahl's production
operations were moved to a larger facility in Springfield,
Ohio and a number of positions- including the R&D Manager
position-were eliminated. Id. ¶ H. Konecranes
avers that “[t]he sole reason for the elimination of
these positions was to reduce costs because of the worldwide
economic crisis.” Id. ¶ I.
was terminated on October 23, 2009. McFadden Dep. 129:25-
130:2. Heeskens and Wagner met with McFadden to tell him that
his position was being eliminated. Id. at 130:3-7.
After being informed of his termination, McFadden told
Heeskens and Wagner that “[he] would take a job
anywhere in the U.S., [he] didn't care where, anywhere in
the world, anyplace they had a spot for [him], Dubai, [he]
didn't care.” Id. at 133:2-5. Wagner
responded that “[t]hey had nothing.” Id.
at 133:5-6. On November 11, 2009, McFadden's attorney,
Allan Holmes (“Holmes”), sent a letter to
KCI's president, Tom Sothard (“Sothard”),
informing Sothard that he believed McFadden had been the
victim of unlawful discrimination, seeking information
justifying defendants' decision to terminate
McFadden's employment, and informing Sothard that
McFadden “remain[ed] willing to accept a position with
your company or any of its affiliates anywhere in the
world.” ECF No. 81-11, Holmes Letter 2. Defendants did
not respond to the Holmes Letter.
filed a charge of discrimination with both the South Carolina
Human Affairs Commission and the Equal Employment Opportunity
Commission (“EEOC”), and received notice of his
right to sue on August 22, 2013. McFadden filed the instant
action on November 7, 2013. ECF No. 1. McFadden claims that
defendants have unlawfully discriminated against him based on
his advanced age and his disability-cancer-in violation of
the Age Discrimination in Employment Act, 29 U.S.C. §
623 (“ADEA”) and the Americans with Disabilities
Act, 42 U.S.C §§ 126, et seq.
(“ADA”), respectively. ECF No. 74, Am. Compl.
¶¶ 27, 28.McFadden also alleges that he was subjected
to unlawful retaliation under the ADA for his use of medical
leave to treat his disability and for the Holmes Letter.
Id. ¶ 28.
filed the instant motion for summary judgment on April 29,
2016. ECF No. 81. McFadden filed a response on May 16, 2016,
ECF No. 82, and defendants filed a reply on May 26, 2016. ECF
No. 84. McFadden filed a sur-reply on June 2,
2016. ECF No. 86. The magistrate judge issued
the R&R on January 31, 2017, recommending the court grant
defendants' summary judgment on all of McFadden's
claims. ECF No. 99. McFadden filed objections to the R&R
on February 14, 2017, ECF No. 102, and defendants filed a
reply on February 28, 2017. ECF No. 103. McFadden filed a
motion for leave to file a sur-reply-with a proposed
sur-reply attached-on March 7, 2017. ECF No. 104. The matter
is now ripe for the court's review.
De Novo Review
court is charged with conducting a de novo review of
any portion of the magistrate judge's R&R to which
specific, written objections are made. 28 U.S.C. 636(b)(1).
The court may adopt the portions of the R&R to which the
petitioner did not object, as a party's failure to object
is accepted as agreement with the conclusions of the
magistrate judge. Thomas v. Arn, 474 U.S. 140, 14-50
(1985). The recommendation of the magistrate judge carries no
presumptive weight, and it is this court's responsibility
to make a final determination. Mathews v. Weber, 423
U.S. 261, 270-71 (1976).
judgment shall be granted “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c). “By its
very terms, this standard provides that the mere existence of
some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “Only disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is
‘genuine, ' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Id. at 249. When the party moving for
summary judgment does not bear the ultimate burden of
persuasion at trial, it may discharge its burden by
demonstrating to the court that there is an absence of
evidence to support the non-moving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The non-movant must then “make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Id. at 322. The
court should view the evidence in the light most favorable to
the non-moving party and draw all inferences in its favor.
Anderson, 477 U.S. at 255.
ADEA and ADA Discrimination Claims
argues that defendants discriminated against him based on his
age and disability in violation of the ADA and ADEA when they
terminated his employment and frustrated his ability to seek
further employment with the company.
ADEA makes it unlawful for any employer: ‘to discharge
any individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's age.'” McKennon v. Nashville
Banner Pub. Co., 513 U.S. 352, 355 (1995) (quoting 29
U.S.C. § 623(a)(1)). Similarly, the ADA provides that
“[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to
job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a).
plaintiff may prove ADEA and ADA discrimination claims in two
ways: (1) through direct proof, or (2) through circumstantial
evidence, using the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Smith v. Strayer Univ. Corp., 79
F.Supp.3d 591, 598 (E.D. Va. 2015) (“In the employment
discrimination context, including under the ADA, to avoid
summary judgment in defendant's favor, a plaintiff must
either produce direct or circumstantial evidence of
defendant's discriminatory motivations, or proceed under
the two-step “pretext” framework set forth in
[McDonnell Douglas].”); Malina v.
Baltimore Gas & Elec. Co., 18 F.Supp.2d 596, 604-05
(D. Md. 1998) (“The Fourth Circuit has long held that
an employee may prove age discrimination in two ways: under
ordinary principles of proof using direct evidence relevant
to and probative of that issue; or under the McDonnell
Douglas circumstantial proof paradigm used in Title VII
cases.”). In this case, the parties proceed under the
McDonnell Douglas framework.
Fourth Circuit has explained the McDonnell Douglas
framework as follows:
[T]he plaintiff has the initial burden of proving a prima
facie case of discrimination by a preponderance of the
evidence. If the plaintiff succeeds in proving the prima
facie case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory explanation
which, if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of the
employment action. If the defendant meets this burden of
production, the presumption created by the prima
facie case “drops out of ...