In Moore v. Pegasus Steel, LLC, Case No. 2:22-cv-3096-RMG, 2024 WL 277779 (D.S.C. Jan. 25, 2024), the court, inter alia, adopted a Magistrate’s Report & Recommendation to deny defendant’s partial motion to dismiss plaintiff’s retaliation claim.
From the decision:
To establish a prima facie case of retaliation, a plaintiff must show “(1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action.” Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010). Once a plaintiff establishes a prima facie case, the burden shifts back to the employer to proffer a legitimate, non-discriminatory reason for taking the adverse action. If the employer carries its burden, the plaintiff must prove that the legitimate reasons were pretextual. Matavia v. Bald Head Island Mgmt., Inc., 259 F.3d 261 (4th Cir. 2001).
Here, the Magistrate Judge found that Plaintiff sufficiently pled a claim for retaliation by alleging that after Plaintiff reported disparate treatment between himself and his white colleagues, Defendant presented Plaintiff with inaccurate disciplinary forms to sign and threatened Plaintiff with termination if he did not sign the forms. (Dkt. No. 29 at 7). The Magistrate Judge relied on a Fourth Circuit case, Barnes v. Charles Ct. Pub. Schools, 747 Fed. App’x 115, 119 (4th Cir. 2018), which held that “a letter of warning did amount to an adverse action because [plaintiff’s supervisor] warned [plaintiff] that future disciplinary actions could result in further discipline, including termination.” The Magistrate Judge reasoned that, similarly, the threat of termination if Plaintiff failed to sign the form here could also be found to be an adverse action. (Dkt. No. 29 at 7).
Defendant objected to the Magistrate Judge’s recommendation. (Dkt. No. 30). Defendant argues that Plaintiff’s allegations are not like the facts in Barnes because the disciplinary form itself did not include a threat of further discipline. (Id. at 2-3). That is not a meaningful distinction. The fact the threat of termination was given verbally instead of included in the disciplinary form does not alter the Court’s analysis. Accordingly, the Court overrules this objection.
Defendant further argues that Plaintiff’s allegations mirror facts of other cases in the Fourth Circuit finding that written warnings, even those accompanied by a threat of termination, do not constitute adverse employment actions in the retaliation context. (Id. at 4).
Adverse employment actions must be “ ‘materially adverse’, which means the plaintiff must show ‘significant’ harm that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Noonan v. Consolidated Shoe Co., 84 F.4th 566, 575 (4th Cir. 2023) (quoting Israelitt v. Enter. Servs. LLC, 78 F.4th 647, 656 (4th Cir. 2023). “In making this determination, context matters.” Noonan, 84 F.4th at 575.
In Noonan, the Fourth Circuit found that a supervisor inaccurately telling an employee that knowing a co-worker’s pay was a fireable offense under the employee handbook was not a sufficiently adverse employment action. Id. at 574-75 The Fourth Circuit reasoned that no reasonable juror would conclude that such a one-off statement from a supervisor would dissuade a reasonable worker from making a charge of discrimination. Id. at 575.
The context alleged here is different. Here, the alleged threat of termination was made to Plaintiff if he did not sign inaccurate disciplinary forms. (Dkt. No. 23 ¶¶ 20-21). Plaintiff alleged that he previously received disciplinary treatment, but those allegations did not state that the reasons for discipline were inaccurate. (Id., ¶¶ 13-18). Instead, those allegations stated that Plaintiff was written up for “minor weld mistakes” while his “Caucasian counterparts” were not reprimanded for the same infractions. (Id.) Plaintiff only alleges that the disciplinary forms were inaccurate after he reported the disparate treatment to Defendant’s Human Resource Officer. (Id., ¶ 20). Additionally, Plaintiff only alleges that he was threatened with termination for not signing the reports after he reported the disparate treatment. (Id., ¶ 21). Accordingly, the Court finds, at this stage, that Plaintiff has sufficiently pled a claim for retaliation and overrules Defendant’s objections.
The court did, however, dismiss plaintiff’s hostile work environment claim, finding that plaintiff’s allegations were “conclusory” and “not sufficient to show that the alleged harassment was severe or pervasive.”