United States District Court, D. South Carolina, Charleston Division
REPORT OF MAGISTRATE JUDGE
F. McDONALD UNITED STATES MAGISTRATE JUDGE
matter is before the court on the defendant's motion for
summary judgment (doc. 22). Pursuant to the provisions of
Title 28, United States Code, Section 636(b)(1)(A), and Local
Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in
employment discrimination cases are referred to a United
States Magistrate Judge for consideration.
plaintiff, who is represented by counsel, filed a complaint
in state court on February 5, 2018, alleging causes of action
for disability discrimination in violation of the Americans
with Disabilities Act (“ADA”); (2) age
discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”); (3) retaliation for
protected activity, in violation of the ADA and the ADEA; and
(4) hostile work environment based on disability and age, in
violation of the ADA and the ADEA (doc. 1-1 at 5-23). The
matter was removed by the defendant to federal court on March
16, 2018, based on federal question jurisdiction (doc. 1).
The defendant filed the instant motion for summary judgment
on January 14, 2019 (doc. 22). After requesting and receiving
extensions of time, the plaintiff filed a response in
opposition to the motion on February 13, 2019 (doc. 33). The
defendant then filed a reply on February 20, 2019 (doc. 35).
plaintiff, who was born on January 15, 1958, first began
working for the defendant when he was 19 years old and worked
for several years in the Ramp Department until 1999, when he
quit (doc. 22-2, pl. dep. 12-13, 18-19). In 2002, he sought
employment again with the defendant and accepted the role of
Operations Supervisor in Hartford, Connecticut (id.
20-21). The following year, the plaintiff began reporting to
Doug Currie, who had accepted the position of Station Manager
in Hartford (id. 24). By 2007, Currie had been
promoted to Regional Director with responsibility for
Hartford (among other stations), and he called the plaintiff
to ask him to fill the Station Manager position in Hartford
(id. 24-25). The plaintiff accepted the Station
Manager position and served in that role through 2010
(id. 25). During this period of time (2003-2010),
the plaintiff and Currie had a good working relationship; the
plaintiff never had any problems with Currie (id.
January 2011, the plaintiff was offered and accepted the role
of Station Manager in Charleston, South Carolina (doc. 22-2,
pl. dep. 25, 32). As in Hartford, the plaintiff was in charge
of the station - he was the highest on-site authority in
Charleston for the defendant (id. 28, 43). He was
responsible for managing all three departments: Ramp,
Customer Service, and Operations, and managed anywhere from
44 to 47 employees, including supervisors who reported to him
(id. 46, 137). In 2014, the plaintiff began
reporting to Currie again, and from 2014 through 2016, they
had a good working relationship; the plaintiff testified that
he had no problems with Currie during this time (id.
58, 203-204). The plaintiff received positive performance
evaluations from Currie for the years 2014, 2015, and 2016,
having most recently received an “outstanding”
rating for his performance between February 1, 2016, and
January 31, 2017 (id. 58-63; doc. 33-5).
his employment, the plaintiff received copies of and had an
opportunity to review the defendant's policy concerning
harassment and discrimination, and he was comfortable raising
any issues to the Employee Relations department (doc. 22-2,
pl. dep. 41, 50-52; doc. 22-4 at 3). He also understood, as
outlined in the Station Manager job description, that he was
expected to “Live the Southwest Way” by
Warrior Spirit - Work Hard, desire to be the best, be
courageous, display a sense of urgency, persevere, innovate.
Servant's Heart - Follow The Golden Rule, adhere to the
Basic Principles, treat others with respect, put others
first, be egalitarian, demonstrate proactive Customer
Service, embrace the SWA Family.
(Doc. 22-4 at 4; doc. 22-2, pl. dep. 53-54). As a leader, he
also knew additional responsibilities and expectations were
placed on him and that he was expected to develop people,
which included knowing his people, communicating
consistently, and providing timely, candid feedback; to build
great teams; and to think strategically (doc. 22-2, pl. dep.
54-57; doc. 22-4 at 4).
February 1, 2017, the plaintiff was approached by a
supervisor regarding “an overtime issue that needed to
be covered in [O]perations” (doc. 22-2, pl. dep.
67-68). The plaintiff told the supervisor to call Danielle
Chapman, an Operations Agent, to see if she could come in,
but to make sure that she knew she did not have to come in
since she was on vacation (id. 68). The plaintiff
testified that the defendant's contract with the union
does not allow him to give mandatory overtime to an agent out
on a vacation day (id.). Chapman testified that the
first supervisor who called her told her that it was
mandatory overtime, but when she questioned this since she
was on vacation, the first supervisor said she would call her
back (doc. 33-10, Chapman dep. 9). When a second supervisor
called her, he told Chapman that he could not make her come
in, and it would be voluntary overtime (id. 10).
Chapman testified that she “was under the
assumption” that it was mandatory overtime, since that
is what the first supervisor had stated (id.).
Chapman worked the overtime (doc. 22-2, pl. dep. 68). Her
time was initially recorded as mandatory overtime (paying
double time), or “MOT, ” but the plaintiff
instructed the supervisor to change it to voluntary overtime
(paying time and a half), or “VOT, ” because
Chapman came in voluntarily and was not, therefore, supposed
to be paid double time (id. 69-70; doc. 22-4 at 6).
The plaintiff did not speak with Chapman or instruct anyone
else to speak with her prior to telling the supervisor to
change her pay from double time to time and a half (doc.
22-2, pl. dep. 71).
February 21, 2017, Chapman raised an issue with the plaintiff
about not being paid double time, stating that she did not
understand that she was not going to be paid double time
(doc. 22-2, pl. dep. 68). The plaintiff agreed to pay her
double time (id.). Chapman was advised by her Union
Representative, Ryan Wagener, to put the agreement regarding
her pay in writing (doc. 33-10, Chapman dep. 10-11).
According to the plaintiff, it was a common practice for
Wagener “to go back behind something and try to stir it
up”; however, the plaintiff did not have a more
contentious relationship with Wagener than he did with other
union representatives (doc. 22-2, pl. dep. 82-84).
summarized what had happened with regard to the overtime
issue in an email, which she sent to the plaintiff on
February 22, 2017 (doc. 22-4 at 6-8). The plaintiff testified
that he “was a little frustrated” with
Chapman's email because he “had already taken care
of the problem” (doc. 22-2, pl. dep. 77). The plaintiff
responded in an email the next morning, stating in relevant
I do not understand why you feel it is necessary to send this
to me in writhing [sic]. I have already told you that we will
take care of this pay. However, since you have decided that
you must put this in writing I must now set the record
straight .....If there is any lack of communication here, it
is on your part. I love having you hear [sic] Danielle, but I
do not expect this kind of attitude from such a new employee,
and I do not understand why you felt it was necessary to put
this in writing after you were told it would be taken care
of. . . . We are not obligated to pay you MOT, but we have
decided to pay you MOT based on your lack of understanding of
what VOT is. . . . I am  copying my Director on this since
our folks have an open line to call him with these kinds of
Grady E. Glover
(Doc. 22-4 at 6) (emphasis in original). When asked if he
could see how his email could be perceived as aggressive or
critical, the plaintiff testified that he sent it at a time
when he “was a little upset” and that, upon
reading it later, he probably should not have sent it (doc.
22-2, pl. dep. 124).
same day, on February 23, 2017, Wagener sent an email to
Currie and Currie's boss, Steve Goldberg, expressing
concern over the plaintiff's email and other
“issues with [the plaintiff] over the last couple of
years” (doc. 22-4 at 9). He requested a meeting with
them to discuss the issues further (id.; doc. 22-2,
pl. dep. 88-90). Currie thanked Wagener for reaching out and
told him he would be in touch with him the following week
(doc. 22-4 at 9). Currie did not discuss Wagener's email
with the plaintiff (doc. 22-2, pl. dep. 90).
plaintiff testified in his deposition that on March 8, 2017,
he was informed by two supervisors that Chapman was refusing
mandatory overtime (doc. 22-2, pl. dep. 90; see doc. 33-4 at
19). While the plaintiff typically would not get involved in
these sorts of issues, he “felt it was necessary”
to speak with her because he was concerned “she
didn't realize what she was doing . . . that she could be
issued discipline for refusing mandatory overtime”
(doc. 22-2, pl. dep. 90-91). The plaintiff approached Chapman
in the Operations office; once Wagener got there, they
stepped in together, and the plaintiff shut the door
(id. 92). Chapman was at the filing cabinet when the
plaintiff said, “I need to speak to you about the
mandatory overtime” (id. 93). Chapman walked
by the plaintiff and said “I can hear you, ” and
then she sat down at the desk with her back to the plaintiff
(id.). The plaintiff thought Chapman's behavior
was inappropriate, and he “asked her to turn around and
look at [him] while [he] was talking to her”
(id. 93, 106). Chapman repeated that she could hear
him just fine, to which he again asked her to turn around and
stated that he “was giving her a direct work order to
turn around and look at [him], and that if she didn't
look at [him] so [he] could have this conversation with her
that it would be considered insubordination and [he] would
have to pull her badges and send her home”
(id. 106). Wagener then asked Chapman to turn
around, which she did, and they were able to have the
conversation that the plaintiff intended to have with her
(id. 93-94, 106). At this point, the plaintiff
realized Chapman was upset and “saw a tear come down
her eye” (id. 107). The plaintiff asked
Chapman if she was refusing the mandatory overtime, and
Chapman stated that nobody had told her what the overtime
assignment was, so how could she refuse it? (id. 94,
107). The plaintiff told Chapman that he was telling her
right then what the mandatory overtime was and asked her if
she was telling him that she would not work it (id.
94, 108). Chapman responded that she was going to refuse it.
The plaintiff informed Chapman and Wagener they would have to
have a “fact-finding” and left (id. 94,
testified in her deposition that during this incident the
plaintiff was standing over her and yelling at her, and
Wagener stepped in between them (doc. 22-5, Chapman dep.
18-19). She testified that she had recently been in a car
accident and could not “move [her] neck and back in
certain ways, ” and after the meeting with the
plaintiff, she left work and went straight to the doctor
on March 8, 2017, Chapman filed a complaint against the
plaintiff, alleging that he had created a hostile work
environment and retaliated against her for her February email
about the overtime issue (doc. 22-4 at 20-21.) Specifically,
she reported that the plaintiff's treatment of her caused
her to feel threatened, scared, targeted, and harassed
(id.). The following day, Chapman forwarded her
complaint to Denise Gutierrez, Employee Relations Senior
Investigator. Gutierrez forwarded the email to Mike Holcomb,
Human Resources Business Partner for the Region, and
recommended that Holcomb speak with Chapman and the plaintiff
about the issue (id. at 19-21; doc. 22-2, pl. dep.
March 9, 2017, the plaintiff contacted Vance R. Foster, the
Manager of Labor Relations, to find out what level of
discipline was appropriate for Chapman to receive for her
attitude when he discussed the mandatory overtime with her
the previous day (doc. 22-1, pl. dep. 126). Based on the
plaintiff's email, Foster replied that he agreed Chapman
deserved discipline, and he told the plaintiff to call him
(doc. 22-4 at 29). The plaintiff sent Currie an email
“keeping [him] in the loop” and letting him know
that he had discussed the incident with Foster who agreed
that a warning letter should be issued to Chapman for her
conduct/attitude on March 8th (doc. 33-14 at 8).
He also stated that he would be holding a fact-finding with
Chapman on March 13th regarding her refusal of
mandatory overtime. Currie replied, “Thanks”
(id.). The plaintiff drafted and prepared a letter
of warning with input from Foster (id. at 10-14).
Melissa Pitstick, a Ramp Agent who worked daily with the
plaintiff, testified that a few days after the incident
between the plaintiff and Chapman, she overheard Wagener
state that “he was going to get rid of [the
plaintiff]” (doc. 33-9, Pitstick dep. 7-11).
fact-finding was held on March 13, 2017, to discuss
Chapman's refusal of mandatory overtime (doc. 22-2, pl.
dep. 94-96). The plaintiff testified that they were not doing
a fact-finding on Chapman's attitude, as he had already
drafted a letter of warning for her attitude (id.
95-96, 113). Chapman had also had a weight and balance error
that was discovered in an audit, and the plaintiff had
already drafted a letter of instruction for that error
(id.). At the fact-finding, the plaintiff presented
Chapman with the letter of warning for her overall attitude
toward him on March 8, 2017 (doc. 22-2, pl. dep. 116; doc.
22-4 at 14-15). Chapman did not sign the letter of warning;
rather, she wrote: “I do not agree with the statements
written.” Later that day, she filed a formal grievance
asking that it be removed from her file (doc. 22-4 at 16-18).
The plaintiff testified that he was not aware she filed a
grievance (doc. 22-2, pl. dep. 130). The fact-finding
concluded with a heated exchange between the plaintiff and
Wagener with regard to Wagener's claim that the plaintiff
yelled at Chapman on March 8, 2017, and the plaintiff's
claim that he did not (id. 120). The plaintiff
told Wagener, “you know that's a lie, ” and
Wagener “started swearing and going off”
(id.). An unsigned summary of the fact-finding that
was apparently created by attendee Emily Stevens states that
Wagener “was very unprofessional with his language and
yelling at the end of the meeting, ” and the plaintiff
“never raised his voice or yelled during the whole
meeting” (doc. 33-14 at 20).
March 16, 2017, Currie traveled to the Charleston Station to
investigate the March 8th incident between the
plaintiff and Chapman (doc. 22-2, pl. dep. 134, 141-42; doc.
33-14 at 3). Currie first met with Chapman and Wagener; his
meeting with them lasted most of the day (doc. 22-2, pl. dep.
135-36). Afterwards, the plaintiff drove Currie to his hotel,
and Currie conveyed to the plaintiff Chapman's and
Wagener's version of the events on March 8th
(id. 137-38). The plaintiff told Currie that their
version was not what happened, and Currie told the plaintiff,
“Well, their perception is their reality”
(id. 138). The plaintiff took this to mean that
Currie's mind was made up, and “he was going to
take their word on it” (id. 138). When the
plaintiff asked Currie what he thought the problem was,
Currie stated that he thought the problem was due to a
“generational gap” (id. 139, 224, 226,
243). The plaintiff understood Currie's
comment as telling him that he “had lost touch with the
younger generation because [he was] too old”
(id. 139). The plaintiff recalled attending training
classes on “discussing the different generational gaps
. . . trying to recognize what a different generation
believes or how they - how they relate to the
workforce” (id. 223-24). Currie also told the
plaintiff that, as the Station Manager, he needed to rise
above and de-escalate the situation (id. 140).
Currie did not indicate that he was there to determine
whether any disciplinary action against the plaintiff was
warranted (id. 140-41; doc. 22-3, Currie dep. 48).
Their conversation in the car concluded with an agreement to
discuss the matter further (doc. 22-2, pl. dep. 140).
March 17, 2017, the plaintiff informed Currie via email that
he was going to have a supervisor issue Chapman the results
of the fact-finding for refusing mandatory overtime (doc.
22-2, pl. dep. 147-48; doc. 22-4 at 39). Currie responded
that a “discussion log” was justified for refusing
mandatory overtime, but “the letter of warning for her
not making eye contact” was not (doc. 22-4 at 39).
After the plaintiff sought confirmation, Currie reiterated in
a followup email that he was instructing the plaintiff to
remove the letter of warning from Chapman's file
(id.). The plaintiff did not notify Chapman that the
letter was removed (doc. 22-2, pl. dep. 151-52). He testified
that he was waiting to see either Wagener or Chapman to let
them know (id. 152-53).
plaintiff stated in his affidavit submitted with his response
in opposition to the motion for summary judgment that, on
March 21, 2017, Labor Relations completed an investigation
into Chapman's complaints about him and determined that
he “did nothing wrong” (doc. 33 at 13, 17, 28)
(citing doc. 33-2, pl. aff. ¶ 17).
March 29-30, 2017, the plaintiff was in the hospital for
evaluation for chest/ abdominal symptoms, with a return to
date of April 3, 2017 (doc. 33-15).
testified that he felt the plaintiff “wasn't
understanding the severity of the situation with [Chapman]
that could have been handled more appropriately” (doc.
22-3, Currie dep. 56). Currie asked the plaintiff to come to
Houston to meet with him face-to-face, so he could
“emphasize that point” (id.; doc. 22-2,
pl. dep. 154). Prior to their meeting, the plaintiff drafted
a three-page letter to Currie, dated April 6th,
with 25 pages of attachments, which he planned to present to
Currie at the meeting in Houston (doc. 22-2, pl. dep. 160,
165-66; doc. 33-14 at 2-4). In the letter, the plaintiff
outlined the ways in which he disagreed with Currie's
management and overall handling of the Chapman issue, stating
that Currie “undermined [his] authority in the station,
” “blew this so out of proportion, ” and
“muddied the waters and made this a complicated
mess” (doc. 33-14 at 2-4). The plaintiff stated in the
letter that he felt Currie's statement that the issue was
“generational” was hurtful and discriminatory as
he took it to mean that Currie thought he was “too old
to relate to the younger generation, and that this is why the
break down occurred” (id. at 3). The plaintiff
also stated that making him fly to Houston left him “in
a threatened state, to imagine the worst”
(id.). He stated that it caused him “great
anxiety” and put him in the hospital (id.). He
stated that requiring him to go to Houston “was a
bullying tactic that violates the Companies [sic] Bullying
and Hazing Policy” (id.). The plaintiff
concluded by stating: “I do not know how this is to be
fixed, but I do know that I didn't create this mess and I
am powerless to realign the situation to regain peace and
harmony. Only you can fix it” (id. at 4).
plaintiff and Currie met in Houston on April 6, 2017 (doc.
22-2, pl. dep. 160). While the plaintiff decided not to give
the letter to Currie, he testified that he discussed with
Currie nearly everything written in the letter during their
meeting (see, e.g., Id. 160, 162, 239-40). The
plaintiff testified that the only thing he did not discuss
with Currie that was in the letter was “out of fear, .
. . the age discrimination part” (id. 240).
Currie stressed to the plaintiff the importance of winning
Chapman and Wagener's trust and taking the high road to
get past the situation (id. 164-65). Currie
instructed the plaintiff to sit down and meet with Chapman
and Wagener, and the plaintiff testified that was what he had
planned to do (id. 169). The plaintiff testified
that he understood that he needed to go back and “make
this right with Danielle and Ryan” (id.).
Because Currie “told [him] there would not be any
discipline issued” to him, the plaintiff did not give
Currie the letter he had prepared (id. 166, 169).
Currie testified that he already informed Chapman that the
letter of warning was going to be removed from her file (doc.
33-3, Currie dep. 60).
called the plaintiff on April 19, 2017, to ask him if he had
met with Chapman (doc. 22-2, pl. dep. 177). The plaintiff
understood from that conversation that Currie was upset that
he had not yet spoken with Chapman, and Currie indicated that
he should speak to her as soon as possible (id.
187). The plaintiff sent Currie an email explaining that,
given his schedule and Chapman's, the only opportunity he
had to speak with her was on April 11th, but he
missed that opportunity (doc. 22-4 at 46). Later that day,
the plaintiff met with Chapman (doc. 22-2, pl. dep. 177). He
told Chapman that Currie had planned to come to Charleston
but was unable to do so, so Currie asked the plaintiff to sit
down with her and talk to her about what they were going to
do with the letter (id. 179).
April 20, 2017, Currie sent the plaintiff an email asking him
whether he had at any time between returning from Houston and
April 19th communicated to Chapman that he
intended to speak to her. The plaintiff replied that he had
not because the only time he saw her was on April
11th, but he did not want to bring up the issue
then because they were in a room full of people (doc. 22-4 at
Friday, May 5, 2017, Currie emailed the plaintiff a letter of
expectation based upon the plaintiff's failure to
“defuse an emotional situation” between himself
and Chapman in March, and his subsequent failure to
“communicate [his] intentions to speak with [Chapman]
until April 20th, ” despite Currie's
“directive to return to Charleston and meet with the
ops agent” (doc. 22-2, pl. dep. 66-67; doc. 22-4 at 23,
25). Currie also noted that when the plaintiff ultimately met
with Chapman, he prefaced the conversation by stating that
Currie directed him to have the conversation (doc. 22-4 at
25). Currie stated that the plaintiff failed “to
display emotional intelligence, make Employees [sic] concerns
a priority, promptly address issues, and take ownership and
responsibility when speaking with Employees”
(id.). The letter stated that “[a]ny future
incidents of this nature will result in disciplinary action
up to, and including, termination” (id.). The
plaintiff responded to Currie that he needed to speak with
him the following Monday, May 8th (id. at
8th, the plaintiff sent Currie an email, copying
Toni Hamilton in Employee Relations, stating that it was 5:00
p.m., and he had not heard from Currie to discuss the letter
of expectation, and the pressure Currie was putting on him
was affecting his health and blood pressure (doc. 22-4 at
23). The plaintiff stated that he was left with no choice but
to report Currie's behavior to Employee Relations in
hopes they would “stop the harassment, bullying, and
retaliation” (id.). The plaintiff stated that
he was attaching the April 6th letter that he had
not given to Currie earlier because he believed that they had
“reached an understanding of what happened
between” the plaintiff and Chapman and “that no
discipline would be issued”
(id.). The plaintiff returned the letter of
expectation to Currie on the same date with a notation on it
that he signed “under duress” and was reporting
Currie's behavior to Employee Relations (id. at
plaintiff was out of work on May 11-12, 2017, for medical
reasons (doc. 33-15).
review, Employee Relations determined that there was nothing
in the plaintiff's complaint (i.e. April 6th
letter) that raised a protected issue, and Hamilton relayed
the findings to the plaintiff on May 22, 2017 (doc. 22-2, pl.
dep. 207-209; doc. 22-4 at 55-56). Specifically, Hamilton
informed the plaintiff that she did not find Currie's
generational gap comment to be age discrimination because
“generational gaps are something [the defendant]
train[s] on” (doc. 22-2, pl. dep. 241-42).
Johnson, Currie's supervisor and the Senior Director for
Ground Operations, reviewed the plaintiff's concerns
about Currie's behavior, as outlined throughout the April
6th letter (doc. 22-6, Johnson dep. 19-21).
Johnson testified that he was aware of what had been going on
at the Charleston Station, as he had spoken with both Chapman
and Currie after Chapman lodged her complaint against the
plaintiff (id. 20, 24). Johnson reviewed the entire
situation again and spoke with Currie, Goldberg, Holcomb,
Hamilton, and the plaintiff (id. 19, 24, 30-31).
email to Hamilton in Employee Relations on May 16, 2017,
Currie stated that he had reviewed the situation with Johnson
and Goldberg and “determined that our best course of
action was to separate with [the plaintiff]” based on
“his ability to lead the station and
insubordination” (doc. 33-3, Currie dep. 72-74). Currie
testified that the defendant does not “take terminating
managers lightly, and there was a lot of deliberation and
conversation . . . [a]nd so we ultimately took a lot of time
to come to that ...