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Farr v. South Carolina Electric & Gas Co.

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

March 21, 2018

John Allen Farr, Plaintiff,
South Carolina Electric and Gas Company, Defendant.


          Richard Mark Gergel United States District Court Judge

         This matter is before the Court on the Report and Recommendation ("R. & R.") of the Magistrate Judge (Dkt. No. 43) recommending that the Court grant in part and deny in part Defendant's motion for summary judgment (Dkt. No. 31). The Court adopts the R. & R. with respect to (1) the equitable tolling of the statute of limitations and (2) Plaintiffs failure to accommodate claim. The Court otherwise rules on Defendant's motion for summary judgment as set forth below.

          I. Background and Relevant Facts

          Plaintiff John Allen Far brings the following four claims against his former employer, Defendant South Carolina Electric and Gas ("SCE&G") pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq. ("ADA"): (1) disparate discipline; (2) hostile work environment; (3) failure to accommodate; and (4) retaliation. (Dkt. No. 1-1.) The Court adopts the facts as outlined at length in the R. & R. (Dkt. No. 43 at 2-8.)

         II. Legal Standard

         A. Summary Judgment

         The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).

         In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.

         B. Magistrate Judge's Report and Recommendation

          The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

         III. Discussion

         A. Timeliness

         The Magistrate Judge recommended that the statute of limitations relevant to Plaintiffs claims be equitably tolled. (Dkt. No. 43 at 10.) No. party has objected to the Magistrate Judge's recommendation, and the Court finds that the Magistrate Judge has correctly applied the controlling law to the relevant facts to the extent that Plaintiffs claims were untimely filed due to processing delays at the Equal Employment Opportunity Commission ("EEOC").

         B. Disparate Discipline

         Plaintiff has alleged that he was subject to disparate discipline[1] on three separate occasions: (1) when he received a corrective action in August 2013 due to failure to maintain his truck adequately (the "August 2013 Corrective Action"); (2) when he was reprimanded in July 2014 for using almost all of his paid time off ("PTO") by that date and for requesting PTO with too little notice (the "PTO Reprimand"); and (3) when he was terminated in December 2014.

         To establish a prima facie case of disparate discipline, Plaintiff must allege facts to show: (1) that he is disabled; (2) that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of employees outside the protected class; and (3) that the disciplinary measures enforced against [him] were more severe than those enforced against other similarly-situated employees. Iskander v. Dep't of Navy, 116 F.Supp.3d 669, 679 (E.D. N.C. 2015) (citing Cookv. CSX Tramp. Corp., 988 F.2d 507, 511 (4th Cir. 1993)).

         Along with these elements, demonstration of an adverse employment action is necessary element of a discrimination claim under the ADA. Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 430 (4th Cir. 2015) (a plaintiff must have suffered an adverse employment action of some kind to establish a disability-based discrimination claim); Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005) ("Regardless of the route a plaintiff follows in proving a [discrimination] action, ... the existence of some adverse employment action is required"); Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999) (dismissing claim due to the absence of an adverse employment action and noting that Congress did not intend for anti-discrimination laws "to provide redress for trivial discomforts endemic to employment"). "An adverse employment action is a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiffs employment." James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004).

         PTO Reprimand

         The admonishment Plaintiff received in July 2014 for what management perceived to be his inappropriate use of PTO cannot support a disparate discipline claim because it does not constitute an adverse employment action. On July 30, 2014, Plaintiff received a rating of "Does Not Meet" in the area of "operational effectiveness" on his mid-year performance evaluation. (Dkt. No. 31-4 at 14-15.) The evaluation indicates that in one area of operational effectiveness, management of PTO, Plaintiff had poorly managed his PTO by requesting time off with little or no notice and by using almost all of his PTO in the first half of the year. (Id.) Regardless of the parties' quibbles about the accuracy or fairness of that evaluation, Plaintiff has not made allegations which create a genuine dispute of material fact about whether he was subject to an adverse employment action. Plaintiff has not alleged any facts which show that this evaluation had any negative effect on the terms, conditions, or benefits of his employment. See Adams, 789 F.3d at 431 (performance evaluations, without any impact on the terms and conditions of employment, do not rise to the level of an adverse employment action); James, 368 F.3d at 377 (explaining that a downgrade in a ...

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