Davis v. New Penn Financial LLC

Deborah D. Davis, Plaintiff, v. New Penn Financial, LLC, d/b/a Shellpoint Mortgage Servicing, Defendant.

C/A No. 6:18-3342-TMC-KDW

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

May 25, 2021

REPORT AND RECOMMENDATION

Kaymani D. West, United States Magistrate Judge.

Plaintiff Deborah D. Davis (“Plaintiff” or “Davis”) filed this action against her former employer, Defendant New Penn Financial, LLC, d/b/a Shellpoint Mortgage Servicing (“SMS, ” “Shellpoint ” or “Defendant”), alleging Defendant violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., as amended by failing to rehire her; and alleging a state-law-based claim of defamation. Compl., ECF No 1-1.^[1] Defendant seeks summary judgment as to both claims. Mot Summ. J., ECF No. 52. Plaintiff filed a brief in opposition, ECF No. 59, to which Defendant filed a Reply, ECF No. 63. With the court's permission, Plaintiff then filed a short surreply, ECF No. 72, to which Defendant filed a short sur-sureply, ECF No. 77. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a report and recommendation (“R&R”) regarding Defendant's Motion for Summary Judgment. Having reviewed the parties' submissions and the applicable law, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 52, be granted and this matter be ended.

I. Factual overview^[2]

A. Plaintiff's employment by SMS

SMS manages residential mortgage loans after they are originated by mortgage lenders. On behalf of SMS's lender and investor clients, SMS collects principal, interest, and escrow payments from homeowners nationwide. Founded and based in Greenville, South Carolina, SMS has offices in Arizona, Florida, Texas, and Pennsylvania. Decl. of Ne'Lee Wilson, SMS Human Resources Dept. Director (“HR Director”) ¶¶ 2-3, ECF No. 52-2. From June 20, 2016 to January 27, 2017, SMS employed Plaintiff in the Foreclosure Litigation Department as a Litigation Foreclosure Specialist II. Id. ¶¶ 6, 8. In that role, Plaintiff was (1) a timeline manager responsible for managing a portfolio of uncontested foreclosures; (2) a custodian of business records to testify in foreclosure trials; and (3) additional support staff for miscellaneous tasks to assist the Foreclosure Litigation Department. Comp. ¶ 12, admitted in Answer, ECF No. 8. Plaintiff reported primarily to Kimberly Harmstad, one of the supervisors for the Foreclosure Litigation Department. Wilson Dep. 61-62, ECF No. 52-5.^[3]

Plaintiff was diagnosed with hearing loss at 18-months old. Pl. Dep. (Vol. 1) 15, ECF No. 59-1 (excerpts of Pl. Dep. (Vol. 1) also available at ECF No. 52-4). Shortly after beginning her job at SMS, Plaintiff informed Harmstad and others that she had a hearing disability. Comp. ¶ 19; Harmstad Decl. ¶ 7, ECF No. 52-3. While Plaintiff was employed at SMS, she never raised, reported, or complained of disability discrimination during her employment. Pl. Dep. (Vol. 1) 51; Wilson Decl. ¶ 6.^[4]

As set out by Defendant, Plaintiff received several written and verbal, formal and informal, reprimands for her work performance and violations of company policy during her employment with SMS.^[5] On August 11, 2016, Plaintiff received a written “Performance Coaching Form, ” and sat down with Harmstad to discuss Plaintiff's failure to follow instructions, improper and false communications with law firms, inappropriate internal email communications, improper instructions to other departments, and making unnecessary additions to existing processes. Harmstad Decl. ¶ 8 & ex. A thereto, ECF No. 52-3 at 9-12. Plaintiff also received negative feedback in SMS's quality audits for which she received counseling for performance improvement. Harmstad Decl. ¶¶ 8-9 & ex. B thereto, ECF No. 52-3 at 14-16. In the weeks prior to her resignation, Plaintiff was cited for inaccurately reporting her time in violation of SMS's timekeeping policy and for breaching SMS's Clean Desk Policy, which required employees to lock their desks every day. Harmstad Decl. ¶¶ 10-11 & exs. C, D thereto, ECF No. 52-3 at 18-22.

B. Plaintiff's January 2017 resignation and SMS's one-year rehire policy

In a January 16, 2017 letter to Harmstad, Plaintiff tendered her resignation, indicating her last day would be January 27, 2017. Jan. 16, 2017 Letter, ECF No. 52-9. Plaintiff advised that she was resigning from her position with SMS in order to study for the South Carolina February bar examination. Id.; Pl. Dep. (Vol. I.) 50. During Plaintiff's exit interview, Lindsey Wineguard, who worked in Defendant's HR Department, informed Plaintiff that she was eligible for re-hire after one year and that she was resigning in good standing with Defendant. Wineguard referenced SMS's one-year rehire policy for employees who resign from SMS; that policy requires an employee in good standing to wait one year from the date of his or her resignation to be eligible for rehire. Pl. Dep. (Vol. 1) 73-78.^[6]

SMS's one-year rehire policy, which is part of SMS's Hiring Policy and Procedure, provides in relevant part, “If an associate leaves the company in good standing and is eligible for rehire, there is a one year wait period. Any variations to this policy are left to the discretion of executive management of the business line and of Human Resources.” Policy Statement, Recruiting, Internally 4.1.1., ECF No. 52-2 at 13 (ex. to Wilson Decl.); see Wilson Decl. ¶ 9. The policy was available to Plaintiff on SMS's intranet. Wilson Dep. 34, 72.

Plaintiff was informed during her exit interview that there was a chance she could be rehired before the one-year period expired if there was an urgent need. Pl. Dep. (Vol. 1) 74-75. Wilson testified that exceptions to the one-year rehire policy have been made “[v]ery, very rarely, ” and that such exceptions would be reviewed on a case-by-case basis and “dependent on the business need and there would need to be a specific reason or skill set or some other reason that that person would need to rejoin and you couldn't find that elsewhere.” Wilson Dep. 34. Such determinations would be made by the area supervisor and that supervisor's supervisor. Id. at 34-35. In the case of a Foreclosure Specialist II like Plaintiff, supervisor Harmstad and Harmstad's supervisor would be involved in the “channels of approval.” Id. The decision would not be Harmstad's alone. Id. at 34.

C. Plaintiff's 2017 applications for rehire

After completing the February 2017 South Carolina bar examination, Plaintiff applied for several positions with SMS. She was not interviewed or hired for any of the positions. On March 6, 2017, Plaintiff applied for the Foreclosure Litigation Specialist II position (the position from which she had resigned), the TRAIL Rotational Program Position, and the Foreclosure Special Program Coordinator position. Compl. ¶ 40; Pl. Dep. (Vol. 2) 84-85. On March 6, 2017, Plaintiff received a denial email for the TRAIL Rotational Program Position. Mar. 6, 2017 email, ECF No. 59-5 (indicating Defendant “decided another candidate is a better fit for the position”). On March 13, 2017, Plaintiff received a similar denial email for the Foreclosure Special Program Coordinator position. Mar. 13, 2017 email, ECF No. 59-6. As explained by HR Director Wilson, “SMS made the decision to not consider [Plaintiff's] applications for these positions, as SMS did not have the business need and Plaintiff did not have the work record or skillset to warrant a departure from SMS's one-year rehire policy.” Wilson Aff. ¶ 12; see also Wilson Dep. 41.

Plaintiff also references an email she received from SMS regarding Defendant's job fair on April 27, 2017, in which SMS indicated it was hiring in various departments, including the foreclosure department. Apr. 26, 2017 email, ECF No. 59-7. The email, sent from SMS HR and addressed to “All Job Seekers, ” was sent to Plaintiff at her savannahlawschool.org address. Id.

On May 1, 2017, Plaintiff again applied for the Foreclosure Litigation Specialist II position. May 1, 2017 email, ECF No. 59-8. On June 6, 2017, Plaintiff applied for the Attorney Network Manager position. June 6, 2017 email, ECF No. 59-9. On July 11, 2017, Plaintiff received a denial email for the Attorney Network Manager position. July 11, 2017 email, ECF No. 59-10. As noted above, HR Director Wilson explained Plaintiff was not considered for the positions for which she applied because “SMS did not have the business need and Plaintiff did not have the work record or skillset to warrant a departure from SMS's one-year rehire policy.” Wilson Aff. ¶ 12; Wilson Dep. 41. Plaintiff did not receive denial emails for her two applications for the Foreclosure Litigation Specialist II position. Compl. ¶ 47. Wilson indicated the one-year rehire policy was the reason Plaintiff was not rehired for that position, as well. Wilson Aff. ¶ 12.

To SMS's knowledge, no one hired to fill the positions for which Plaintiff applied in 2017 had a hearing disability. Wilson Dep. 29-30, 40, 51-52

None of those hired to fill the positions for which Plaintiff applied in 2017 were subject to the one-year rehire policy. SMS hired six individuals for the Litigation Foreclosure Specialist II position. Four of these individuals were new hires, one was an internal transfer, and one was a rehired employee who had left SMS in 2015 (and therefore was not subject to the one-year rehire policy). Similarly, the employees hired for the Attorney Network Manager, Foreclosure Special Coordinator, and TRAIL Rotational positions were all new hires. Wilson Decl. ¶ 13; Wilson Dep. 28, 30-31, 22.

D. Plaintiff's EEOC Charge and Complaint

Plaintiff filed a Charge of Discrimination with the South Carolina Human Affairs Commission and the Equal...