MARGARET B. SEYMOUR, Senior District Judge.
On September 18, 2013, Plaintiff Yolanda Mims brought this action against her employer, Defendant Sam's East, Inc., alleging that she had been discriminated against on the basis of her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Kaymani D. West for pretrial handling.
Plaintiff, who is black, contends that she was passed over for promotions or transfers and that she was subjected to discipline because of her race.
Defendant filed a motion for summary judgment on September 8, 2014. Plaintiff filed a response in opposition on October 3, 2014, to which Defendant filed a reply on October 13, 2015. On May 19, 2015, the Magistrate Judge issued a Report and Recommendation in which she determined that Plaintiff had failed to make out a claim of race discrimination as to her failure to promote and transfer claims, and that Plaintiff had failed to establish disparate treatment as to her verbal counseling claims. Accordingly, the Magistrate Judge recommended that Defendant's motion for summary judgment be granted. Plaintiff filed objections to the Report and Recommendation on June 5, 2015, to which Defendant filed a reply on June 22, 2015.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court.
Plaintiff asserts that the Magistrate Judge erred in finding that Plaintiff failed to establish the fourth prong of a prima facie case of failure to promote with respect to the Technology Team Lead position. The court disagrees.
A plaintiff can establish a prima facie case by showing that (1) she is a member of a protected group, (2) she applied for the position in question, (3) she was qualified for that position, and (4) the defendant rejected her application under circumstances that give rise to an inference of unlawful discrimination.
With respect to the fourth prong of the test, Plaintiff asserts that Turosik gave her negative performance reviews that were used as pretext to prevent Plaintiff from moving into other areas of management and learning other aspects of Defendant's operation. However, the only competent evidence in the record indicates that Assistant Manager Jennifer Montville made the decision not to hire Plaintiff as Technology Team Lead. According to Montville, Plaintiff made several negative remarks during their interview indicating that Plaintiff "merely sought to escape her front end Lead [Check Out Supervisor] position rather than being genuinely interested in the Technology Team Lead Position." Decl. Of Jennifer Montville ¶ 3, ECF No. 29-6, 3. Montville stated that she previously had "less than pleasant interactions" with Plaintiff wherein Plaintiff made snide comments.
Plaintiff asserts the Magistrate Judge erred in finding that the verbal counselings she received did not establish a claim for race discrimination. The court disagrees.
To make out a prima facie case of discriminatory disparate treatment, Plaintiff must show: (1) membership in a protected class; (2) satisfactory job performance; (3) an adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.
An "adverse employment action" is one that negatively affects "the terms, conditions, or benefits" of employment.
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Plaintiff contends that she received disparate treatment because "no manager or supervisor at any location during the history of her twenty (20) year career ever thought she was `negative' other than George Turosik." Pl. Objections to Report and Recommendation 4, ECF No. 37, 4. Plaintiff also contends that "at least one candidate who was selected for a position desired by Plaintiff was given the job before Plaintiff was even interviewed."
Plaintiff simply has adduced no evidence to demonstrate that a similarly situated employee outside Plaintiff's protected class received more favorable treatment than she did. As the Magistrate Judge properly held, Plaintiff's allegations are speculative and based on rumor. Plaintiff's objections are without merit.
Finally, Plaintiff contends that the Magistrate Judge erred in relying on hearsay testimony in Smith-Brown's declaration regarding Turosik's expectations and perceptions of Plaintiff. To the contrary, Smith-Brown's declaration recites her personal knowledge of what transpired during the joint meeting on April 4, 2012. Plaintiff's objections are without merit.
The court adopts the Report and Recommendation and incorporates it herein by reference. For the reasons stated herein and in the Report and Recommendation, Defendant's motion for summary judgment (ECF No. 29) is