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Taylor v. Fluor Corp.

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

September 27, 2019

Tara Taylor, Plaintiff,
v.
Fluor Corporation and Fluor Government Group International, Inc., Defendants.

          OPINION AND ORDER

          Bruce Howe Hendricks United States District Judge

         This matter is before the Court for review of the Report and Recommendation entered by United States Magistrate Judge Kevin F. McDonald on July 17, 2019 (“Report”). (ECF No. 73.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina, this case was referred to Magistrate Judge McDonald for pretrial handling. In his Report, the Magistrate Judge recommends that Defendants Fluor Corporation and Fluor Government Group International, Inc.’s (“Defendants” or “Fluor”) motion for summary judgment (ECF No. 54) be granted in part and denied in part. (See ECF No. 73.) The Report sets forth in detail the relevant facts and standards of law, and the Court incorporates them here without recitation.[1]

         BACKGROUND

         The Magistrate Judge entered his Report on July 17, 2019, recommending that Defendants’ motion for summary judgment (ECF No. 54) be granted as to the breach of contract (Count II) and breach of contract accompanied by a fraudulent act (Count III) causes of action in the amended complaint and be denied in all other respects. (ECF No. 73 at 42.) On July 30, 2019, Plaintiff filed objections challenging those portions of the Report that recommend summary judgment as to Counts II and III. (ECF No. 74.) On July 31, 2019, Defendants filed objections challenging those portions of the Report that recommend summary judgment be denied. (ECF No. 76.) Plaintiff filed a reply to Defendants’ objections on August 12, 2019. (ECF No. 78.) Defendants filed a reply to Plaintiff’s objections on August 13, 2019. (ECF No. 79.) The matter is ripe for consideration and the Court now makes the following ruling.

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge 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 recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must “only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         DISCUSSION

         The Court declines to repeat the cogent analysis of the Magistrate Judge with respect to every aspect of each claim and will confine its analysis to those portions of the Report to which the parties raise specific objections. Moreover, the Court assumes familiarity with the factual background as set forth, in depth, in the Report (see ECF No. 73 at 2–18) and specifically adopts the shorthand references to relevant individuals’ names and position titles without further explanation.

         A. Retaliation – Title VII and 42 U.S.C. § 1981

         The Magistrate Judge found that, viewing the evidence and drawing all inferences in a light most favorable to Plaintiff, there is sufficient evidence to establish genuine issues of material fact regarding whether retaliation for Plaintiff’s complaint against Riley and for her participation in the investigation of Johnson’s complaints was the but-for cause of Plaintiff’s demobilization and of Riley’s failure to promote her to the Prime Contracts Manager position. (See ECF No. 73 at 19–28.) Accordingly, the Magistrate Judge concluded that Defendants are not entitled to summary judgment on Plaintiff’s retaliation claim. (Id. at 28.) Moreover, the Magistrate Judge found that Plaintiff has presented evidence that, when viewed in a light most favorable to her, could lead a reasonable factfinder to determine that she engaged in activity protected under § 1981, and that summary judgment should be denied as to the § 1981 retaliation claim. (Id. at 28–30.)

         Defendants first object to the Magistrate Judge’s preliminary determination that Plaintiff could establish a prima facie case of retaliation. (See ECF No. 76 at 8–11.) Specifically, Defendants argue that Plaintiff cannot get past this initial step of the McDonnell Douglas proof scheme because she cannot establish a causal connection between her protected activity and later adverse employment action. (Id. at 8.) Defendants urge the Court to reject the Magistrate Judge’s recommendation that Plaintiff established a causal connection based on temporal proximity because approximately three months passed between Plaintiff engaging in protected activity and her position being eliminated, and because Riley allegedly did not know about Plaintiff’s protected activity at the time he transferred Hooks to the Prime Contracts Manager position at Bagram, thereby passing over Plaintiff. (Id. at 9–10.)

         The Court agrees with the Magistrate Judge that Plaintiff established the requisite causal connection to set forth a prima facie case. It is true that “[w]here a plaintiff rests [her] case on temporal proximity alone, the temporal proximity must be very close.” Penley v. McDowell Cty. Bd. of Educ., 876 F.3d 646, 656 (4th Cir. 2017)). It is also true that, while the Fourth Circuit has declined to adopt a bright temporal line in this regard, under certain circumstances the Court of Appeals has held that a three- or four-month lapse between the protected activity and the discharge was too long to establish a causal connection by temporal proximity alone. See Perry v. Kappos, 489 Fed.App’x 637, 643 (4th Cir. 2012); Pascual v. Lowe’s Home Ctrs., Inc., 193 Fed.App’x 229, 233 (4th Cir. 2006). Nevertheless, the Court agrees with the Magistrate Judge’s analysis that a very close succession of events in this case demonstrates the requisite connection to give rise to an inference of causation: (1) Plaintiff was interviewed in the investigations of Johnson’s complaints in late April and May 2014; (2) Plaintiff filed her own hotline complaint on June 2, 2014; (3) Smith interviewed Riley on July 8, 2014, to discuss the allegations of the hotline complaints by Plaintiff and Klimak; (4) at the end-of-July budget meeting, Riley told Project Controls Manager Howard for the first time that he planned to demobilize Plaintiff and Klimak; (5) sometime prior to August 5, 2014, Riley requested an SRF to eliminate Plaintiff’s position, and he returned the signed SRF to Badillo on August 11, 2014; (6) the investigation of Plaintiff’s complaint concluded on or about August 27, 2014; and (7) on September 4, 2014, Plaintiff was told that she was being demobilized. (See ECF No. 73 at 21–22.) Defendants arguments regarding a lack of temporal proximity oversimply the timeline and ignore the fact that Riley began taking necessary steps to demobilize Plaintiff almost immediately after being interviewed as part of the investigation of Plaintiff’s complaint regarding his conduct. The fact that Riley did not consummate the demobilization until early September 2014 is immaterial because intervening events between the protected activity and ultimate action can be demonstrative of retaliatory intent. See Lettieri v. Equant Inc., 478 F.3d 640 (4th Cir. 2007) (holding that evidence of recurring retaliatory animus in intervening period between discrimination complaint and termination satisfied causation element of prima facie case of retaliation). Moreover, Defendants’ bald assertion that Riley did not know about Plaintiff’s protected activity at the time he transferred Hooks into the Prime Contracts Manager position, is itself a disputed issue of fact preventing the entry of summary judgment on the failure to promote theory. (See Pl.’s Reply to Defs.’ Objections, ECF No. 78 at 5 n.4 (detailing Plaintiff’s evidentiary basis for the assertion that Riley’s decision to transfer Hooks directly followed his knowledge of Plaintiff’s complaint).) Accordingly, the objection is overruled.

         Defendants next object to the Magistrate Judge’s finding that Plaintiff presented sufficient evidence to establish pretext. (See ECF No. 76 at 11–14.) Defendants argue that the Magistrate Judge failed to consider evidence they offered to substantiate Fluor’s legitimate, non-retaliatory reason for eliminating Plaintiff’s position and erroneously stated that such evidence did not exist. (Id. at 11–12.) They further assert that the Magistrate Judge, when discussing pretext, failed to fully consider all of Fluor’s stated reasons why Plaintiff’s specific position was selected for elimination, including the budget constraints Fluor was facing at the time and the fact that Plaintiff was the highest paid person performing the work of a Prime Contracts Specialist. (Id. at 12)

         These arguments miss the mark. The question under consideration with regard to pretext is whether Plaintiff can make an adequate showing that retaliation was a but-for cause of her demobilization and her being passed for promotion. “The Supreme Court has recently reiterated that a cause need not work in isolation to be a but-for cause.” Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216–17 (4th Cir. 2016) (emphasis in original) (citing Burrage v. United States, 571 U.S. 204, 211 (2014) (“Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.”)). Thus, even assuming budget constraints and Plaintiff’s rate of pay were part of the calculus that led to her position being selected for elimination, Plaintiff need only produce evidence sufficient to show that her position would have been retained without the incremental effect of the alleged retaliation. After reviewing the evidence relevant to the pretext inquiry in depth (see ECF No. 73 at 24– 28), the Magistrate Judge concluded that “there is sufficient evidence that while the [D]efendants’ stated reasons may have played a part in [Plaintiff’s] demobilization, without the ‘incremental effect’ of retaliation for her complaint and her participation in the investigations of Johnson’s complaints, she would not have been demobilized.” (Id. at 28.) The Court agrees and finds no error in the Magistrate Judge’s reasoning and analysis. There is evidence to show that: (1) Riley promoted Plaintiff to the position of Prime Contracts Supervisor a short time prior to her engaging in protected activity; (2) Riley intended to keep Plaintiff at Bagram, as reflected in his projected makeup of the department during the closing of FOBs and reduction of staffing in Afghanistan; (3) an organizational chart dated May 28, 2014, the day before Plaintiff was interviewed regarding Johnson’s complaint, showed Plaintiff as reporting directly to Riley as “Country GCS, ” a position of seniority within the Prime Contracts department, whereas a chart dated July 14, 2014, shortly after Plaintiff lodged her own complaint, shows Plaintiff as a “GCS” and the lowest Prime Contracts employee on the organizational chart; (4) prior to Plaintiff’s own complaint, Riley made various statements demonstrating his intent to retain Plaintiff in a “closeout position, ” which would keep her onsite in Afghanistan until the end of the project; (5) Riley’s demeanor and conduct toward Plaintiff, as well as his plans for the maintenance of her position, changed immediately following her complaint and her participation in the investigation of Johnson’s complaints; (6) upon hearing that ...


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