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Blythe v. Harris Teeter LLC

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

April 3, 2019

Joey N. Blythe, Plaintiff,
v.
Harris Teeter, LLC, Defendant.

          REPORT AND RECOMMENDATION

          Bristow Marchant, United States Magistrate Judge

         This action has been filed by the Plaintiff asserting (1) a workers' compensation retaliation claim in violation of S.C. Code Ann. § 41-1-80 (First Cause of Action); (2) retaliatory discharge in violation of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, et. seq. (Second Cause of Action); (3) disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101-12213 (Third Cause of Action); (4) disability retaliation and coercion in violation of the ADA, 42 U.S.C. § 12203 (Fourth Cause of Action); and (5) age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626, et seq. (Fifth Cause of Action). Plaintiff seeks monetary damages and injunctive relief. See generally, Complaint.

         The Defendant has filed a motion for summary judgment, asserting that all of Plaintiff's claims are without merit, and Plaintiff has filed a memorandum in opposition to the Defendant's motion. In Plaintiff's response in opposition to summary judgment, he concedes that he cannot establish his workers' compensation retaliation claim (First Cause of Action), his retaliatory discharge in violation of the Family and Medical Leave Act claim (Second Cause of Action); and his disability discrimination in violation of the Americans with Disabilities Act claim (Third Cause of Action). Therefore, those causes of action are no longer before the Court and should be dismissed.

         Defendant's motion as to the Plaintiff's remaining two claims is now before the Court for disposition.[1]

         Background and Evidence[2]

         Plaintiff was hired by the Defendant as a dairy clerk in 1978. See Plaintiff's Deposition, pp. 18-19. Over the next ten years, Plaintiff began a meat cutting training program that eventually led to his employment as the market manager in Defendant's meat department. See Plaintiff's Deposition, pp. 20-24. For several years, he worked as a meat manager in the Defendant's stores in the Myrtle Beach area, where he has resided for the last thirty-seven years. See Plaintiff's Deposition, pp. 14, 24, 29. Upon the closure of all of the Harris Teeter stores in Myrtle Beach, Plaintiff was offered a position at one of Defendant's stores in Charleston, South Carolina. See Plaintiff's Deposition, p. 32. Plaintiff accepted the position on July 11, 2001, but did not move to Charleston. Rather, he commuted every day from his home in Myrtle Beach. See Plaintiff's Deposition, pp. 35, 210-211. Plaintiff's most recent and final transfer occurred on August 15, 2001, from the Harris Teeter store on Long Point Road to Store #277 on East Bay Street, where Plaintiff's wife also worked. See Plaintiff's Deposition Exhibit 2. During all times relevant to his Complaint, Sean Bagwell was the store manager at the East Bay store location where Plaintiff worked as his market manager. See Plaintiff's Deposition, p. 36; Bagwell Deposition, p. 11, 17.

         On March 23, 2015, Plaintiff injured his back picking up a box of New York strips while he was working. See Plaintiff's Deposition, pp. 72-73. The next morning, Plaintiff went to Doctor's Care in Surfside Beach and was placed on a “no work” status for one week. See Plaintiff's Deposition, pp. 77-78, 83-84; See Plaintiff's Deposition Exhibit 14. Later that day, Plaintiff was informed that he needed to see a workers' compensation doctor in Charleston. See Plaintiff's Deposition, p. 79. Plaintiff saw Dr. Emily Mika at Concentra, and she issued numerous restrictions for him, including no driving for prolonged periods of time (less than 20-30 minutes) and no sitting longer than 20 minutes. See Plaintiff's Deposition Exhibit 15. Dr. Mika also held Plaintiff out of work for a week and referred him to physical therapy near his home. See Plaintiff's Deposition, p. 88. Dr. Mika contacted Bagwell, whom she noted on her report would contact the corporate office to get permission for Plaintiff to do physical therapy closer to his home so he could avoid long periods of time in the car. See Plaintiff's Deposition, pp.88-89; See Plaintiff's Deposition Exhibit 15.

         On March 25, 2015, Plaintiff spoke to Bagwell, informed him of his injury, provided him with his doctor's notes, and filed a workers' compensation claim. See Plaintiff's Deposition, pp. 77-78, 87, 216; See Plaintiff's Deposition Exhibit 17. Plaintiff testified that Bagwell threatened him when he discussed filing a workers' compensation claim. See Plaintiff's Deposition, pp. 77-78, 87, 216. Plaintiff also testified that Bagwell asked him to wait to file the workers' compensation claim, explaining that it would come out of their bonuses. See Plaintiff's Deposition, p. 186. Plaintiff testified that he told Bagwell that he wanted to come back to work on “light duty” and would stay with his brother-in-law (who lived in Charleston) a couple of days a week to see how his back reacted to light duty. However, Plaintiff testified that Bagwell told him there was no light duty available. See Plaintiff's Deposition, pp. 208-209, 217.

         The Defendant's Risk Management associate, Marie Nichols, informed Gallagher Bassett (the third -party administrator that handled Defendant's worker compensation claims) of Plaintiff's workers' compensation claim and that the Defendant could accommodate Plaintiff's restrictions for lifting, but that there was no store in the area where he lived so he would have a significant drive. See Plaintiff's Deposition, pp. 205-206; Plaintiff's Deposition, Exhibit 18. Since Plaintiff lived in Myrtle Beach, where there are no stores, his drive time would have been around two to two and a half hours to the store where he could work. See Plaintiff's Deposition, pp. 210-211; Plaintiff's Deposition Exhibit 18.[3] Plaintiff testified he then requested a medical leave of absence due to the Defendant's refusal to accommodate his condition - specifically a “light duty” assignment. See Plaintiff's Deposition, p. 113. Plaintiff also alleges that Bagwell continued to tell Plaintiff there were no light duty jobs available for the Plaintiff, despite numerous meat market employees being provided “light duty” status over the years. See Livengood Deposition, p. 19; Bagwell Deposition, p. 27.

         Beginning at the end of June through early July 2015, Plaintiff attended several medical appointments wherein he afterwards would always inform Bagwell of his status and continued to request “light duty”. Shortly thereafter, Bagwell called Plaintiff to let him know his position was being posted; see Plaintiff's Deposition, pp. 145-146; following which Plaintiff's position was filled by Shannon Wrenn, a younger, market manager trainer.[4]It is undisputed that in this position, Wren was paid more than Plaintiff's last pay rate at that position. See Plaintiff's Deposition Exhibits 2 and 40; see also Plaintiff's Deposition, pp. 47, 171, 338. However, Plaintiff conceded that prior to replacing Plaintiff, Wren had already been earning more in his prior position as a trainer than Plaintiff made at the time he was injured. See Plaintiff's Deposition, p. 339.

         Plaintiff contends that after numerous delays in treatment by the Defendant's workers' compensation company, he was terminated in May 2016 when he reached 52 weeks of leave. See Plaintiff's Deposition, p. 227. After receiving a Right to Sue letter from the EEOC, Plaintiff filed this lawsuit.

         Discussion

         The Defendant has moved for summary judgment on both of Plaintiff's remaining claims. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, to avoid summary judgment the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992).

         Here, after careful review and consideration of the arguments and evidence presented, the undersigned finds and concludes for the reasons set forth hereinbelow that the Defendant is entitled to summary judgment in this case.

         (Disparate Treatment Claim)

         In his disparate treatment claim, Plaintiff asserts that he was discriminated against on account of his age in violation of the ADEA when he was terminated from his position. See generally, Plaintiff's Fifth Cause of Action. This claim requires proof of intentional discrimination, either by direct evidence or by the structured analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).[5]

         Plaintiff first contends that he has direct evidence of age discrimination.[6]Specifically, Plaintiff contends that the Defendant's employees made age-related comments regarding the Plaintiff on at least three occasions; i.e. that he was told by three of his co-workers that his supervisor, Sean Bagwell, said he was going to “get rid of [his] old ass.” See Plaintiff's Deposition, pp. 46-47, 246-248. However, while Plaintiff contends that Bagwell made this statement to his co-workers, Plaintiff has not submitted any evidence from the three people he contends allegedly heard this remark directly from Bagwell, confirming that they did.[7] Accordingly, this testimony does not support Plaintiff's claim, as it constitutes substantively inadmissible hearsay. See Junfei Li v. Univ. of Texas Rio Grande Valley, No. 15-0534, 2018 WL 706472, at *6 (S.D. Tex. Feb. 2, 2018), appeal dismissed sub nom. Junfei Li v. Bailey, No. 18-40204, 2018 WL 4242264 (5th Cir. Apr. 9, 2018)[Finding that proffered direct evidence of discrimination was not cognizable because it was substantively inadmissible hearsay with no obvious exception.]. Plaintiff concedes that Bagwell never personally said or did anything to him to lead him to believe that he had issues with people over forty. See Plaintiff's Deposition, pp. 47, 62-64. Therefore, Plaintiff has failed to submit any probative direct evidence that Bagwell had an age animus, either as to Plaintiff specifically or in general.

         Plaintiff also argues that he has other direct evidence of age discrimination consisting of other employees referring to him as “old”, and that Greg Daniels, a former employee of the Defendant, sent him a text message referring to him as “old.” However, Plaintiff's text message from Daniels reads, “Good luck at the doctor's office this morning, old man”, and while Plaintiff now submits Daniels' comment as evidence of age discrimination, Plaintiff testified in his deposition that he believed Daniels used this phrase just to lighten things up a little bit, that Daniels was one of his former reports who was his friend and like a son. Moreover, Plaintiff testified that was the only time Daniels had called him “old man.” See Plaintiff's Deposition, pp. 247, 299-300, 307; see also Monaco v. Fuddruckers, Inc., 1 F.3d 658, 660 (7th Cir. 1993)[supervisor's age-based remarks insufficient to preclude summary judgment for the employer absent a showing that they were “related to the employment decision in question”]. This text message is not direct evidence that Plaintiff was terminated because of age discrimination. As for Plaintiff's remaining claim that other employees called him “old”, Plaintiff does not cite the Court to any evidence in the record where other employees called him old or made similar type comments. See Carmen v. San Fran. United Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) [The Court is “not required to comb through the record to find some reason to deny a motion for summary judgment”] (quotation omitted).[8] Therefore, the undersigned does not find that Plaintiff has submitted any direct evidence of age discrimination.

         In the alternative, Plaintiff argues that he can prove his claim under the McDonnell Douglas standard. To survive summary judgment under this standard, Plaintiff must have circumstantial evidence sufficient to create a genuine issue of fact as to whether his termination occurred because of his age.[9] The United States Supreme Court articulated a three-part formula for analyzing discrimination cases in McDonnell Douglas. First, Plaintiff must establish a prima facie case of discrimination. If a prima facie case is established, a rebuttable presumption is created that the Defendant unlawfully discriminated against him. Second, once this presumption has been established, the burden of production shifts to the Defendant to show a legitimate, non-discriminatory reason for its actions. Third, if the Defendant shows a legitimate, non-discriminatory reason for its actions, the burden is then on the Plaintiff to come forward with evidence that the Defendant's asserted reasons for its actions are a mere pretext for its true discriminatory motives, and that the actions of the Defendant were really based on (in this case) Plaintiff's age. McDonnell Douglas Corp., 411 U.S. at 802-805; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981); Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 234-235 (4th Cir. 1991).[10]

         Prima facie. In order to meet the first prong of the McDonnell Douglas formula and establish his prima facie case of age discrimination, Plaintiff must show (1) that he is a member of a protected class; (2) that he was performing his job satisfactorily; (3) that he was subjected to an adverse employment action; and (4) that he was replaced by someone from outside of his protected class, or there is some other evidence giving rise to an inference of unlawful discrimination. See generally, Austen v. HCA Health Services of Virginia, Inc., No. 00-2359, 2001 WL 242203 at **1 (4th Cir. Mar. 12, 2001); Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995), cert. denied, 516 U.S. 870 (1995). See also Gilbert v. Penn-Wheeling Closure Corp., 917 F.Supp. 1119 (N.D.W.Va. 1996). Here, it is undisputed that Plaintiff is a member of a protected class [over forty years of age[11], that he was performing his job satisfactorily prior to his accident, that he was subjected to an adverse employment action when he was discharged, and that he was replaced by an individual twelve years younger than him. As such, Defendant does not challenge that Plaintiff has established his prima facie case for purposes of summary judgment. See Defendant's Memorandum in Support of Summary Judgment, p. 24. Therefore, Plaintiff has established his prima facie case.

         Legitimate, non-discriminatory reason. The evidence before the Court reflects that the Defendant has set forth a legitimate, non-discriminatory reason for the action taken. Specifically, the Defendant has submitted evidence to show that Plaintiff was terminated in accordance with its leave of absence policy because he was unable to return to work after being out for more than 12 months due to a continuing disability. See Plaintiff's DepositionExhibits 2and 6. ...


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