United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
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
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
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).
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.
Magistrate Judge's Report and Recommendation
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).
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").
has alleged that he was subject to disparate
discipline 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.
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)).
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).
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 ...