McLeod v. McCormick

Robert McLeod, Plaintiff,

v.Deron McCormick; Dean Benenhaly; Herbert Williams; and City of Sumter, Defendants.

C/A No. 3:11-174-CMC-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Dated: September 7, 2012

REPORT AND RECOMMENDATION

The plaintiff, Robert McLeod ("McLeod"), filed this action pursuant to 42 U.S.C. § 1981 and § 1983 against the named defendants alleging claims of race discrimination and retaliation for exercising his First Amendment rights.¹ This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the defendants' motion to dismiss and/or for summary judgment. (ECF No. 58.) McLeod filed a response in opposition. (ECF No. 67.) The defendants filed a reply (ECF No. 68), as well as a supplement to their motion providing intervening relevant case law (ECF No. 74). Having reviewed the parties' submissions and the applicable law, the court finds that the defendants' motion should be granted.

BACKGROUND

The following facts are either undisputed or are taken in the light most favorable to McLeod, to the extent they find support in the record. McLeod, an African American male, was employed bythe City of Sumter's Sanitation Department as a heavy equipment operator from June of 1995 until he was terminated in April of 2009 for the stated reason of unsatisfactory job performance. During his employment with the City, McLeod had criticized or complained about alleged safety violations stemming from the City's policies as well as various employment issues, such as the failure to pay overtime compensation, lack of breaks, and general work conditions. Also during his tenure, McLeod received at least six reprimands or disciplinary notices for a variety of issues, including failing to follow instructions of his supervisors, insubordination, careless use of City property, failure to report for duty at the assigned time, and failure to complete his duties in a timely manner. In this action, McLeod contends that his employment was terminated in violation of 42 U.S.C. § 1981 and § 1983² because he is black and in violation of 42 U.S.C. § 1983 and the First Amendment to the United States Constitution in retaliation for speaking out against the City.

DISCUSSION

A. Service of Process

As a threshold matter, Defendants McCormick, Williams, and Benenhaly³ properly assert that McLeod's claims against them should be dismissed for lack of service of process under Rules 4(m) and 12(b)(5). Although McLeod argues that the defendants waived or accepted service by filing an Answer and defending against his claims, the individual defendants raised this defense in their Answer, see Federal Rule of Civil Procedure 12(h), and the docket shows that McLeod has neverfiled proof of service with regard to these defendants. Accordingly, the individual defendants are subject to dismissal from this case. Moreover, even if they had been properly and timely served, they are entitled to summary judgment for all of the reasons discussed below.

B. Summary Judgment Standard

Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact." Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (emphasis in original) (internal quotation marks & citation omitted). A fact is "material" if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.

In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determinewhether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that "[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory").

C. Burden Shifting Framework

The burden shifting framework developed for Title VII may also be applied to § 1981 and § 1983 claims. See Lightner v. City of Wilmington, N.C., 545 F.3d 260, 263 n.* (4th Cir. 2008). A plaintiff may demonstrate discrimination through direct or circumstantial evidence. When direct evidence is lacking, a plaintiff may produce circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. Warch v. Ohio Casualty Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). The defendant's burden "is a burden of production, not persuasion." Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, "the McDonnell Douglas frame-work—with its presumptions and burdens—disappear[s], and the sole remaining issue [is] discrimination vel non." Id. (internal quotation marks & citations omitted).

In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence thatthe proffered reason was " 'not its true reason[], but [was] a pretext for discrimination.' " Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext " 'merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.' " Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005). To meet this "merged" burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.

"[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. at 148. However, "if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred," summary judgment is appropriate. Id. Accordingly, the court must evaluate "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Id. at 148-49. "Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination." Merritt, 601 F.3d at 294-95.

D. McLeod's Discrimination Claim

The parties agree that to establish a prima facie case of disparate treatment based on race, a plaintiff must show: (1) he is a member of a protected class, (2) his job performance was satisfactory, (3) he suffered an adverse employment action, and (4) he was treated differently from similarly situated employees outside his protected class. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (Title VII). The defendants challenge McLeod's ability to demonstrate the second and fourth prongs of this test. Because the defendants' proffered reason for terminating McLeod's employment is his work performance, the court addresses the issue of the second element of the prima facie case and the question of pretext together. See Warch, 435 F.3d at 516 (noting the flexibility of the McDonnell Douglas framework and finding "no impermeable barrier that prevents the employer's use of such evidence [of an employee's unsatisfactory work performance] at different stages of the McDonnell Douglas framework").

It is well settled that in determining satisfactory job performance, it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff. King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (stating th...