Colebrooke v. T-Mobile USA, Inc.

• Decision Date: 26 May 2021
• Docket Number: Civil Action No. 2:20-00397-RMG-MGB
• Parties: Cathy D. Colebrooke, Plaintiff, v. T-Mobile USA, Inc., Defendant.
• Court: U.S. District Court — District of South Carolina

Cathy D. Colebrooke, Plaintiff, v. T-Mobile USA, Inc., Defendant.

Civil Action No. 2:20-00397-RMG-MGB

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

May 26, 2021

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Cathy D. Colebrooke ("Plaintiff"), through counsel, filed this lawsuit alleging: age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"); race discrimination in violation of Title VII of the Civil Rights Act ("Title VII") and 42 U.S.C. § 1981 ("Section 1981"); and retaliation in violation of the ADEA and Title VII. (Dkt. No. 1-1; Dkt. No. 8.) Plaintiff originally filed this action in the Charleston County Court of Common Pleas on December 23, 2019. (Dkt. No. 1; Dkt. No. 1-1.) The case was removed to federal court on January 31, 2020. (Dkt. No. 1.)

Defendant's Motion for Summary Judgment (Dkt. No. 36) and Motion to Strike (Dkt. No. 46) are currently before the Court. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons stated below, the undersigned denies Defendant's Motion to Strike (Dkt. No. 46) and recommends granting Defendant's Motion for Summary Judgment (Dkt. No. 36).

FACTUAL SUMMARY

This civil action arises from Defendant's alleged discrimination and retaliation against Plaintiff, a former employee of Defendant. (Dkt. No. 1-1; Dkt. No. 8.) Plaintiff is an African American female over forty years old. (Dkt. No. 8 at 4.) She was hired by Defendant on November 6, 2012 as an entry level Customer Service and Sales Representative. (Id. at 5.) On September 15, 2013, she was promoted to Senior Analyst, Business Support. (Id; Dkt. No. 36 at 2.) She was terminated on April 2, 2019. (Id. at 4-5; Dkt. No. 36 at 9.)

Plaintiff alleges that she was denied training and development opportunities throughout her employment with Defendant. (See generally Dkt. No. 8.) She contends that she complained to management that she never would be promoted because she was "the wrong Age, Race, and Sex to be promoted." (Id. at 6-7, 10.) She further contends that Defendant treated her significantly different because of her age, race, sex, and sexual orientation, and that Defendant had numerous policies and procedures concerning discrimination and retaliation, which Defendant failed to follow. (Id. at 6-8.) More specifically, Plaintiff asserts that she "witnessed [her supervisor] provid[ing] support to all other members of the team except for her," that her supervisor refused to allow her to apply for a "stretch assignment"¹ that would develop her professionally, and that she was terminated shortly after complaining about her supervisor's conduct. (Dkt. No. 44 at 9-12.) Plaintiff alleges that Defendant's failure to professionally develop her wasdiscriminatory, and that her termination was discriminatory and retaliatory. (See generally Dkt. No. 8; Dkt. No. 44.)

PROCEDURAL HISTORY

As noted, Plaintiff filed this action in the Charleston County Court of Common Pleas on December 23, 2019, (Dkt. No. 1-1), and the case was removed to federal court on January 31, 2020 (Dkt. No. 1). Plaintiff's original complaint brought claims for: age discrimination in violation of the ADEA (First Cause of Action); race discrimination in violation of Title VII and Section 1981 (Second Cause of Action); retaliation in violation of the ADEA and Title VII (Third Cause of Action); hostile work environment and breach of contract in violation of the ADEA and Title VII (Fourth Cause of Action); and sex discrimination in violation of Title VII (Fifth Cause of Action). (Dkt. No. 1-1.) Plaintiff subsequently amended her complaint to correct Defendant's name. (Dkt. No. 8.) On February 7, 2020, Defendant filed a Motion to Dismiss Plaintiff's Fourth and Fifth Causes of Action, along with its Answer to Plaintiff's Amended Complaint. (Dkt. No. 9; Dkt. No. 10.) On February 23, 2020, Plaintiff filed a Motion to Amend/Correct her Amended Complaint. (Dkt. No. 13.) On May 7, 2020, the Court denied Plaintiff's Motion to Amend/Correct and granted Defendant's Partial Motion to Dismiss. (Dkt. No. 30.)

As such, Plaintiff's remaining causes of action are:

• First Cause of Action for Age Discrimination in Violation of the ADEA;

• Second Cause of Action for Race Discrimination in Violation of Title VII and Section 1981; and

• Third Cause of Action for Retaliation in Violation of the ADEA and Title VII.

(Dkt. No. 8; Dkt. No. 30.)

Now before the Court is Defendant's Motion for Summary Judgment on all remaining causes of action, which was filed on September 29, 2020. (Dkt. No. 36.) After requesting and receiving an extension of time to respond, Plaintiff filed a Response in Opposition to Defendant's Motion for Summary Judgment on October 23, 2020. (Dkt. No. 44.) On October 30, 2020, Defendant filed its Reply to Plaintiff's Response in Opposition, along with a Motion to Strike Plaintiff's Affidavit. (Dkt. No. 46; Dkt. No. 47.) Plaintiff filed her Response in Opposition to Defendant's Motion to Strike on November 13, 2020, (Dkt. No. 48), and Defendant timely replied (Dkt. No. 49). Accordingly, the motions before the Court have been fully briefed and are ripe for disposition.

DISCUSSION

I. Defendant's Motion to Strike

While a court may consider facts established through an affidavit in evaluating a motion for summary judgment, supporting and opposing affidavits must be based on personal knowledge and must set forth facts that would be admissible in evidence. Fed. R. Civ. P. 56(c)(4); see also Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) ("Generally, an affidavit filed in opposition to a motion for summary judgment must present evidence in substantially the same form as if the affiant were testifying in court. Federal Rule of Civil Procedure 56(e) specifically requires that affidavits submitted on summary judgment contain admissible evidence and be based on personal knowledge.") Thus, a court generally may not consider statements in an affidavit that are hearsay, conclusory, and/or irrelevant absent a specific exception in the rules of evidence. See id. (finding that the district court properly disregarded those portions of theaffidavit that it deemed inadmissible in evaluating the defendant's motion for summary judgment).

In the instant case, Defendant argues that the Court should strike Exhibit 6 (Plaintiff's affidavit) to Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment in whole or in part because the document contains new or inconsistent statements, inadmissible hearsay, and speculation. (Dkt. No. 46 at 1.) Plaintiff counters that "[e]ach of the statements made by Plaintiff were in response to the Defendant's statements in their memorandum regarding the Plaintiff's employment and what happened to her while she was an employee." (Dkt. No. 48 at 5.) Plaintiff argues that "the affidavit is an actual clarification of the information in the Plaintiff's deposition" and that "it is based on personal knowledge." (Id. at 6.)

As a threshold issue, the undersigned notes that this affidavit was created after the close of discovery and that the undersigned therefore cannot consider statements therein that conflict with the affiant's prior deposition testimony.² See Alba v. Merrill Lynch & Co., 198 F. App'x 288, 300 (4th Cir. 2006) ("It is well recognized that a plaintiff may not avoid summary judgment by submitting an affidavit that conflicts with earlier deposition testimony."). In addition, several of the statements in Plaintiff's affidavit are inadmissible hearsay and cannot be used as evidentiary support to defeat a summary judgment motion. See, e.g., Evans, 80 F.3d at 962 (holding that summary judgment affidavits cannot be conclusory or based upon hearsay); Md. Highways Contractors Ass'n, Inc. v. State of Md., 933 F.2d 1246, 1251 (4th Cir. 1991) ("[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.").

More specifically, Plaintiff attempts to introduce out of court statements supposedly made to her by Nick Kyger, Isha Lo, and Janique Prioleau through her affidavit. (Dkt. No. 44-6 at 1, 3.) Plaintiff offers certain of these out of court statements as true and does not point to an exception to the hearsay rule that would allow these statements as evidence admissible at trial. (Id.) As such, the statements are inadmissible hearsay that cannot be considered by the undersigned in ruling on Defendant's Motion for Summary Judgment. Fed. R. Evid. 801(c); see, e.g., LeBlanc v. Sunset Mgmt., Inc., No. 3:16-cv-577-SVH, 2017 WL 2974020, at *4 (D.S.C. July 12, 2017) (dismissing retaliation claim because there was no evidence plaintiffs' employer "was [] aware of their claims of sexual harassment" prior to plaintiffs' termination, stating "Plaintiffs attempt to create an issue of fact by submitting their own affidavits stating that Maas told them that he had informed [the employer] of their alleged complaints. However, such statements are inadmissible hearsay and cannot be used as evidentiary support to defeat a summary judgment motion."); Sumter v. Jenny Craig, Inc., No. 3:14-cv-4460-CMC-SVH, 2016 WL 3397588, at *3 (D.S.C. June 21, 2016) ("Plaintiff's affidavits supporting her defamation claim contain hearsay statements that cannot be used as evidentiary support in opposition to summary judgment."); Bronitsky v. Bladen Healthcare, LLC, No. 7:12-cv-147-BO, 2013 WL 5327447, at *2 (E.D.N.C. Sept. 20, 2013) ("Plaintiff has presented no admissible evidence of the statements made by [defendant] to Dr. Block. Instead he attempts to rely on inadmissible hearsay. Plaintiff only cites his own testimony that Dr. Block told him that [defendant] told Dr. Block certain things about plaintiff. This is plainly inadmissible hearsay.")

As such,...