United States District Court, D. South Carolina, Spartanburg Division
Helwig A. Stewart, Plaintiff,
American Credit Acceptance, LLC, Defendant.
HONORABLE BRUCE HOWE HENDRICKS UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Plaintiff Helwig A.
Stewart's (“Plaintiff” or
“Stewart”) complaint alleging a claim of racial
discrimination in violation of 42 U.S.C. § 1981 and a
state law claim for libel or slander per se. On November 7,
2016, Defendant American Credit Acceptance, LLC
(“Defendant” or “ACA”) filed a motion
for summary judgment. Plaintiff filed a response in
opposition to Defendant's motion, and Defendant filed a
matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Local
Civil Rule 73.02(B)(2)(g), D.S.C. On July 25, 2017,
Magistrate Judge Kevin F. McDonald issued a report and
recommendation (“Report”), outlining the issues
and recommending that the Court grant Defendant's motion
for summary judgment. After being granted an extension of
time, Plaintiff filed objections to the Report, and after
being granted an extension of time, Defendant filed a reply
to Plaintiff's objections.
The Magistrate Judge's Report
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The Court is charged with making a de novo
determination of any portions of the Report and
Recommendation to which a specific objection is made. The
Court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or may recommit
the matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b)(1). The Court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
shall grant summary judgment if a party shows that there is
no genuine dispute as to any material fact and the party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The judge is not to weigh the evidence, but rather to
determine if there is a genuine issue of fact. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If no
material factual disputes remain, then summary judgment
should be granted against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which the party bears the
burden of proof. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). All evidence should be viewed in the light
most favorable to the non-moving party. See Perini Corp.
v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.
written objections, Plaintiff first objects to the Magistrate
Judge's recitation of the facts and asserts that the
Magistrate Judge failed to consider the facts in the light
most favorable to him. Next, Plaintiff objects to the
Magistrate Judge's legal conclusions. The Court will
consider both Plaintiff's factual objections and his
legal objections below.
Plaintiff's Factual Objections
Report, the Magistrate Judge included a detailed, 15-page
explanation of the facts presented. As the Magistrate Judge
noted, Defendant hired Plaintiff, who is a black male of
Jamaican origin, on April 1, 2013, to work as Portfolio
Reporting Manager for Spartan Financial, a division of ACA.
About two months later, Plaintiff's supervisor, Mark
VanGeison, informed Plaintiff that there was a problem at ACA
in the Collections Department, and that Plaintiff's name
had come up as someone who could help. The next day, Curt
Sidden, Chief Executive Officer (“CEO”) of ACA,
met with Plaintiff and told him, “I want you to go over
there and improve communication, fix the processes, and look
at ways you can improve what they are doing.” (ECF No.
59-2 at 40.)
Shelley, ACA's Director of Servicing at the time, had
been interviewing candidates for a new position, Collections
Manager. Mr. VanGeison, Mr. Sidden, and Tom Holgate, Chief
Operating Officer of ACA, asked Mr. Shelley to interview
Plaintiff for the position. Mr. Shelley interviewed
Plaintiff, and Mr. Shelley testified that he believed
Plaintiff's position was being eliminated but that ACA
wanted to retain Plaintiff as an employee because it believed
he had good vision and values. According to Mr. Shelley,
Plaintiff was “good with people, good with processes,
good with the core business.” (ECF No. 56-3 at 49.)
sent Plaintiff an offer letter for the Collections Manager
position on June 20, 2014, and Plaintiff accepted the
position. Plaintiff asserts that he informed Mr. Shelley that
he was concerned about working in an area where he did not
understand the process. Plaintiff began employment as
Collections Manager on July 14, 2014. The position reported
directly to Mr. Shelley but was only three levels of
management below the CEO. Plaintiff was responsible for
managing multiple departments, supervisors, team leaders, and
approximately 30 to 40 employees.
Plaintiff's first day, Mr. Shelley met with Plaintiff to
discuss his expectations for Plaintiff's performance.
According to Mr. Shelley, he expected Plaintiff to “run
it like you own it” and to manage the department with
little supervision. (Id. at 54-55.) Plaintiff,
however, hoped to have more interaction with and direction
from Mr. Shelley. According to Plaintiff, he and Mr. Shelley
interacted at least one time per day, but the interactions
were primarily meetings and were not about the actual job.
According to Mr. Shelley, he and Plaintiff regularly
Shelley was dissatisfied with Plaintiff's performance as
Collections Manager in the first ninety days and documented
performance issues on August 15; September 2, 18, and 22; and
October 9, 2014. Mr. Shelley, at Plaintiff's request, met
with Plaintiff on October 10, 2014, to review his performance
and Mr. Shelley's expectations. On October 15, 2014, Mr.
Shelley noted another performance issue, and he sent a
summary of the issues to Sharon Ponder, ACA's Human
Resources Business Partner. Mr. Shelley informed Ms. Ponder
that he believed Plaintiff had been moved into a role that
was more difficult than his previous position and recommended
that “given his lack of performance in Spartan where he
was set to be laid off, . . . we continue with the initial
layoff and severance package.” (ECF No. 56-3 at 50.)
Mr. Shelley also discussed his recommendation with Mr.
Holgate, and Mr. Holgate elevated these concerns to the CEO,
Mr. Sidden. Mr. Sidden reviewed the request and told Mr.
Shelley to spend more time coaching and developing Plaintiff
and to give him more time to succeed.
paragraphs one through three of his objections, Plaintiff
asserts that his testimony contradicts the narrative both
that Plaintiff was to be laid off at the time of his transfer
to Collections Manager and that Chris Shelley had anything to
do with his hiring. Plaintiff also asserts that the
Magistrate Judge's factual recitation “unfairly
gives the impression that Mr. Shelley did not take issue with
Plaintiff from the beginning, which is drawing a directly
contested inference in favor of Defendant.” (ECF No. 70
at 2.) Plaintiff asserts that Mr. Shelley did not ease him
into the job or allow him to build his skills, and Plaintiff
asserts that he testified extensively about the lack of
interaction with and support from Mr. Shelley. Likewise,
Plaintiff asserts that the paragraph about Mr. Shelley's
characterization of Plaintiff's performance issues
“skews the evidence in Defendant's favor and
totally ignores all parts of the record that are favorable to
Plaintiff challenges the Magistrate Judge's depiction of
the facts, nowhere does he cite to his own testimony or other
evidence to contradict the Report. In addition, although
Plaintiff contends that Mr. Shelley took issue with him from
the beginning and that Mr. Shelley did not ease him into the
job, this fact is actually apparent from the Magistrate
Judge's Report. As previously mentioned, the Magistrate
Judge noted that Plaintiff hoped to have more interaction
with Mr. Shelley, and that Mr. Shelley took issue with
Plaintiff's performance within the first ninety days of
his employment as Collections Manager. Likewise, Plaintiff
asserts that Mr. Shelley's attempt to have Plaintiff
fired was rejected because ACA's CEO determined that
Plaintiff needed more time to develop. The Magistrate Judge
specifically noted that Mr. Sidden reviewed Mr. Shelley's
complaints about Plaintiff (and Mr. Shelley's desire to
have Plaintiff laid off) and told Mr. Shelley to spend more
time coaching and developing Plaintiff and to give him more
time to succeed. Finally, to the extent Plaintiff disputes
the testimony of those involved in hiring Plaintiff, the
Court agrees with Defendant that because Plaintiff was not
involved in those discussions, he cannot rely on his own
testimony to dispute that evidence. Overall, the Court finds
no merit to Plaintiff's objections in paragraphs one
Magistrate Judge's recitation of the facts continues as
follows: Plaintiff testified that when he was out of sick
leave, Mr. Shelley made arrangements for him to move to the
Titles Department without consulting him, and that when he
returned from sick leave, the Manager of the Titles
Department came to him and told him that there were problems
in that department and that he wanted Plaintiff to fix them.
Plaintiff went to Mr. Sidden, who told him to stay in his
current position and that “no one is going to make you
change until I say that.” (ECF No. 59-2 at 71.) Ms.
Ponder testified that Mr. Shelley and Mr. Holgate were
“considering” moving Plaintiff to the Titles
Department at some point and that Mr. Shelley mentioned it
“in passing.” (ECF No. 60-2 at 26.)
record indicates that Plaintiff had established a good
relationship with Mr. Sidden, who is white, and Plaintiff
testified that there was nothing that would make him think
that Mr. Sidden would let race be a factor in his decisions.
(ECF No. 56-2 at 36-37.)
December 18, 2014, Plaintiff won the Goldman Award, which
recognizes “an associate who exemplifies: a strong
sense of community, determination towards excellence and
teamwork, a foundation of respect and integrity, [and]
commitment to customer service.” (ECF No. 60-7.)
According to Mr. Shelley, the award recognizes “the top
one or two people within the company each year for their
outstanding community service, great attitude and things of
that nature.” (ECF No. 59-4 at 108.)
January 19, 2015, Mr. Shelley issued Plaintiff's first
annual performance evaluation, which included Plaintiff's
work in the Spartan Division as well as his work as
Collections Manager. According to Mr. Shelley, he spoke with
Mr. VanGeison, Plaintiff's supervisor at Spartan, who
stated that Plaintiff “was great organizationally and
had good management skills, ” but that he
“struggled in the group from a technical
perspective.” (ECF No. 56-3 at 35-36.) Mr. Shelley
noted that Plaintiff had moved from Spartan into his current
position mid-year, and that it was a position in which
Plaintiff “had no previous experience, resulting in a
progressive learning environment managing supervisors rather
than individual contributors.” (ECF No. 56-3, Ex. 1.)
Mr. Shelley rated Plaintiff as “partially meets
expectations” in certain performance factors in the
areas of “job knowledge & development” and
“productivity & quality.” (Id.) In
the areas of “communication & teamwork, ”
“customer service (external and internal), ” and
“leadership & associate engagement, ” Mr.
Shelley gave Plaintiff the highest possible rating of
“greatly exceeds expectations.” (Id.)
Mr. Shelley highlighted the fact that Plaintiff had an
outgoing and friendly personality and an ability to motivate
his employees, which Mr. Shelley stated helped offset the
fact that this was one of his own weaknesses. (Id.
at 39.) In an area entitled “communication &
teamwork - builds and maintains effective working
relationships, ” Mr. Shelley commented,
“Performance is good in this area, ensure employee
confidentiality is maintained to maintain trust with
associates at all levels.” (Id. Ex. 1.) Mr.
Shelley testified that this comment was in reference to an
incident where he counseled Plaintiff about not sharing
confidential information regarding his subordinate employees.
(Id. at 31-35.) Specifically, Mr. Shelley testified
that Plaintiff had a disagreement with a subordinate, Ashley
Rhone, and that Ms. Rhone became upset with Plaintiff. Ms.
Rhone's co-workers overheard her yelling and Plaintiff
told Ms. Rhone's co-workers why she was upset. (ECF No
56-2.) Plaintiff explained what had happened to Mr. Shelley,
who brought Plaintiff and Ms. Rhone into his office to talk
about it. Ms. Rhone complained to Mr. Shelley that Plaintiff
had been making negative comments about her performance and
her work ethic to her co-workers. (ECF No. 56-3.) According
to Mr. Shelley, after Ms. Rhone left the meeting, Mr. Shelley
counseled Plaintiff on the importance of not discussing
confidential employee issues with his subordinate,
non-management employees. (Id. at 33-35.)
paragraph four of his objections, Plaintiff takes issue with
the Magistrate Judge's depiction of the Ashley Rhone
incident, and he asserts that he was not formally counseled
or disciplined regarding the incident. (ECF No. 70 at 3.)
Plaintiff asserts that the Rhone incident was “an
after-the-fact attempt to justify jumping over several steps
in the progressive discipline policy.” (Id.)
although the Magistrate Judge referred to Mr. Shelley's
testimony where Mr. Shelley indicated he
“counseled” Plaintiff on the importance of not
discussing confidential employee information, the Magistrate
Judge did not find that Plaintiff was formally counseled or
disciplined. In addition, the Magistrate Judge also cited
Plaintiff's deposition when discussing the Ashley Rhone
incident and discussed both the negative and the
positive portions of Plaintiff's first performance
evaluation. Ultimately, the Court does not agree with
Plaintiff that the Magistrate Judge somehow skewed the
Magistrate Judge's outline of the facts continues as
follows: According to Plaintiff's testimony, during his
evaluation Mr. Shelley told him, “I cannot understand
you. I cannot understand the way you talk.” (ECF No.
59-2 at 57.) When Plaintiff asked why Mr. Shelley could not
understand him, Mr. Shelley responded, “Because you
have a third world accent.” (Id.) Plaintiff
further testified that, on another occasion, they were
discussing Barbados because Mr. Shelley was trying to go
there, and Mr. Shelley stated, “I don't think
I'll survive there around those coons.”
(Id. at 59.) Plaintiff testified that another time
Mr. Shelley stated that an African-American female
employee's tattoos looked like “jailhouse
tattoos.” (Id. at 59.) According to Plaintiff,
Mr. Shelley once asked him why he was hiring so many black
people. (Id. at 62.) Plaintiff responded that he was
hiring the best people he could, and Plaintiff stated that
Mr. Shelley had the final say in who was hired. Plaintiff
testified that on another occasion a man with albinism
interviewed for a position, and Mr. Shelley stated,
“I'm interviewing for someone to be our bitch. . .
. [B]ut I wouldn't hire that guy. I mean, look at him. He
is an albino.” (Id. at 189.)
March 24, 2015, Ms. Rhone informed Ms. Ponder that Plaintiff
told her about a situation where three of Ms. Rhone's
co-workers had come to Plaintiff because they heard from
someone outside the workplace that they were going to be
fired. Ms. Rhone stated that Plaintiff told her that one of
those co-workers, Vanessa Scott, was manipulative. Ms. Rhone
felt that Plaintiff behaved inappropriately by discussing
with her the conversation he had with her three co-workers.
Ms. Ponder spoke with two of the three co-workers, Ms. Scott
and Lea Burnett, and documented her investigation. According
to Ms. Ponder, Plaintiff's conduct was inappropriate
because employee concerns communicated to management were
supposed to be kept confidential. (ECF No. 56-4 at 33-34.)
Because Plaintiff had previously been counseled on employee
confidentiality, Ms. Ponder decided to elevate this incident
to a final written warning. (Id. at 38-39.)
Ponder testified that she handled the investigation because
Ms. Rhone and Ms. Scott had come to her, and after she
decided what action was needed, she talked to Mr. Shelley,
who agreed with the recommendation of a final warning and
signed it. (Id.) Ms. Ponder further testified that
she told Mr. Shelley she would like for him to present the
warning to Plaintiff as his supervisor and she would sit in
on the presentation. (Id.) On March 26, 2015, the
final written warning was presented to Plaintiff, and Ms.
Ponder testified that, during the presentation of the final
warning, Plaintiff admitted telling Ms. Rhone about the
meeting he had with her three co-workers, but he denied
calling Ms. Scott manipulative. (Id. at 34, 52.) The
final written warning states in pertinent part, under
“reason for warning” that “Employee
confidentiality was addressed in your performance appraisal
on 1/19/2015.” (Id. Ex. 2.)
final written warning also references that Plaintiff
“was coached in December 2014 regarding risk in giving
your associates rides home which could result in the
perception of favoritism as well as additional
liability.” (Id.) Plaintiff testified that an
associate, Fannita Harris, did not have a car and that she
found out that Plaintiff drove by her house on his way home.
(ECF No. 59-2 at 74-75.) Plaintiff had requested that
employees work overtime, and Ms. Harris went to Plaintiff and
asked if he would give her a ride home so she could work
overtime. (Id.) Plaintiff did not think there was
anything wrong with it, and he gave her a ride home a couple
of nights. (Id.) On one occasion, Ms. Harris was
crying and told Plaintiff she did not have any money for food
and her child was hungry. Plaintiff paid for some food for
her because he felt sorry for her. When Plaintiff mentioned
the situation to a friend who worked in Human Resources, the
friend told Plaintiff he should not give Ms. Harris rides.
Plaintiff then told Ms. Harris that he could no longer give
her rides. (Id.)
April of 2015, Vanessa Scott resigned. Ms. Scott completed
the company's exit interview form, and Ms. Ponder
conducted an exit interview with her. In the interview, Ms.
Scott alleged that Plaintiff acted unprofessionally as a
manager and that he flirted with female employees and said
vulgar things. She said that Plaintiff told her that he and
his wife slept in separate beds and that he “danced
with an old friend” and “his penis got
hard.” She also said that Plaintiff made an
inappropriate comment to her and Lea Burnett about a
woman's backside and tight pants during a fire drill.
(ECF No. 56-4 at 52, Ex. 4; ECF No. 56-6 at 156-59, Ex. 7.)
on Ms. Scott's allegations, Ms. Ponder interviewed Ms.
Burnett who confirmed that she heard Plaintiff whisper to Ms.
Scott during a fire drill, “boy look at her butt in
those pants, ” and that she observed Plaintiff staring
at a woman's “backside” on another occasion.
(ECF No. 56-2, Ex. 6; ECF No. 56-4 at 65, 74, Ex. 5.)
According to Ms. Scott, Plaintiff regularly made these types
of comments. (ECF No. 56-6 at 157-58.) Plaintiff does not
dispute that Ms. Scott and Ms. Burnett provided this
information to Defendant; however, he does dispute whether
the information is true. (ECF No. 56-2 at 99-100.)
Shelley was not involved in Ms. Scott's exit interview,
the subsequent investigation, or any decisions on how to
respond. (ECF No. 56-3 at 82-83, 92; ECF No. 56-4 at 72-73.)
Ms. Ponder testified that Vice President of Human Resources,
Andrea Forino, told her to pull emails between Ms. Scott and
Plaintiff to find out if they could confirm any of Ms.
Scott's allegations, but nothing was found in the emails.
(ECF No. 60-2 at 69-70). Todd Trawick, Mr. Shelley's
supervisor and current COO of ACA, and Ms. Forino reviewed
the allegations of Ms. Scott and Ms. Burnett and then met
with Plaintiff. (ECF No. 56-4 at 71-73; ECF No. 56-3 at 92;
ECF No. 56-7 ¶ 3.) Plaintiff denied making the alleged
comments. (ECF No. 56-2 at 96-97.) Ms. Forino informed
Plaintiff that this was his last chance and that any other
confirmed misconduct would result in his termination.
(Id.; ECF No. 56-7 ¶ 3.) Plaintiff did not
receive a written warning or any other documented discipline
related to the reports of Ms. Scott and Ms. Burnett, and
according to Mr. Trawick, he and Ms. Forino “decided to
give [Plaintiff] the benefit of the doubt and not issue any
discipline, ” but they informed Plaintiff “that
he was being given one last chance and that any other
confirmed behavior issues would result in termination of his
employment.” (ECF No. 56-7 ¶ 3.) Plaintiff
understood that he “would have to be a tightrope
walker” and that if he did anything inappropriate it
could cost him his job. (ECF No. 56-2 at 97-100.) Plaintiff
told one of his subordinate employees that he was on his
“last strike.” (ECF No. 56-8 at 70.) In her exit
interview and form, Ms. Scott also alleged that she
“heard racist talk” from her former supervisor,
Angela Preuter, who is a white female. Specifically, she
alleged that she overheard Ms. Preuter talk about a
“black girl who got drunk and knocked on a guy's
door” and was shot through the door, saying the girl
got what she deserved. She also claimed that Ms. Preuter
stated that the “character of Satan looked like Obama,
and she always had something to say about Obama's law
& his appearance.” (ECF No. 56-4 at 34, Ex. 4.) Ms.
Ponder testified that she talked with Mr. Shelley and that he
had a conversation with Ms. Preuter regarding making comments
on the floor that were inappropriate. (ECF No. 60-2 at
61-62.) Ms. Ponder did not investigate the other complaints
regarding Ms. Preuter. (Id.)
paragraphs five and six of his objections, Plaintiff contends
that the Magistrate Judge unfairly described the incident for
which Plaintiff received a final warning. (ECF No. 70 at 3.)
Plaintiff contends that the evidence developed during
discovery was not clear about why Plaintiff received a final
warning. Importantly, however, Plaintiff points to no
contradictory evidence. In any event, Plaintiff contends that
the Magistrate Judge accepted Ms. Ponder's version of the
events and portrayed her testimony in the light most
favorable to Defendant. While the Court does not agree with
Plaintiff's assessment because it appears that the
Magistrate Judge simply outlined Ms. Ponder's testimony,
the fact remains that Plaintiff has not alleged that Ms.
Ponder had any discriminatory animus. Thus, the fact that he
disagrees with her version of the events is not relevant.
the Court does not agree with Plaintiff that the Magistrate
Judge afforded too much weight to the comments Ms. Scott made
about Plaintiff during her exit interview. Rather, the
Magistrate Judge simply outlined the specific complaints Ms.
Scott made about Plaintiff and indicated that Plaintiff
denied engaging in the conduct complained of by Ms. Scott.
The Court finds Plaintiff's objections in paragraphs five
and six without merit.
Magistrate Judge's outline of the facts continues as
follows: On April 24, 2015, Brenda Massaquoi, who is
African-American and one of Plaintiff's subordinates,
went to Ms. Ponder and complained that her supervisor, Ms.
Preuter, had denied her request for time off. (ECF No. 60-2
at 87-94.) Ms. Massaquoi stated that Ms. Preuter was a
racist. (Id. at 91.) During the meeting, Ms.
Massaquoi also reported to Ms. Ponder that there were rumors
that Plaintiff was “sleeping with” one of his
female subordinates. She reported that Plaintiff talked to
this subordinate all the time; that he was in this
subordinate's office all the time; that he went to lunch
with her and took her to pick up her car; and that there was
a rumor that he paid her rent. She reported that he also may
have an inappropriate relationship with another female
subordinate. (ECF No. 56-2, Ex. 7.) Ms. Ponder sent Ms.
Forino an email regarding Ms. Massaquoi's statements.
on the report from Ms. Ponder, Ms. Forino approved the review
of Plaintiff's work email account. (ECF No. 56-9 ¶
6.) Ms. Ponder conducted this review and did not inform Mr.
Shelley prior to the review. Ms. Ponder's review of
Plaintiff's emails revealed the following communications
between Plaintiff and two subordinate female employees:
E-mails with Lakendra Wallace