Hilbert v. City of Columbia, C/A No. 3:19-73-JMC-PJG

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtPaige J. Gossett UNITED STATES MAGISTRATE JUDGE
PartiesJoshua Hilbert, Plaintiff, v. City of Columbia, Defendant.
Docket NumberC/A No. 3:19-73-JMC-PJG
Decision Date19 June 2020

Joshua Hilbert, Plaintiff,
City of Columbia, Defendant.

C/A No. 3:19-73-JMC-PJG


June 19, 2020


Plaintiff Joshua Hilbert, proceeding with counsel, filed this employment discrimination action. 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 on Defendant City of Columbia's ("the City") motion for summary judgment. (ECF No. 32.) Hilbert filed a response in opposition to the motion (ECF No. 41), and the City filed a reply (ECF No. 47). Having reviewed the record presented and the applicable law, the court concludes that the City's motion for summary judgment should be granted.


The following facts are either undisputed or are taken in the light most favorable to Hilbert, to the extent they find support in the record. Hilbert was employed as a parking enforcement monitor in the City's Parking Services Department from December 6, 2010 to December 19, 2014, and he was rehired on May 31, 2016. In February 2017, the City was made aware that another parking enforcement monitor, Eric Earles, who is white, made racist remarks when he got into an off-duty altercation with a bouncer at a local bar. The City did not take any disciplinary action against Earles, purportedly because Earles's conduct occurred outside of his employment with the City.

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Earles's racist comments created tension between Earles and the African-American parking enforcement monitors, which manifested itself in numerous conflicts, racially driven verbal altercations, and threats of violence involving Earles. Sometime in spring 2017, Hilbert, who is also white, reported to his supervisor that Earles continued to make racially derogatory comments at work. In March 2017, Earles and an African-American parking enforcement monitor, Michael Prophet, were involved in a verbal altercation in the monitor's breakroom that nearly became physical. Afterward, Hilbert described the incident to Parking Enforcement Supervisor Rodney Wingard on the phone and told Wingard that he was afraid of being confused with Earles because they are both white.

On May 9, 2017, Hilbert observed Prophet spray insect repellant on Earles's cup and exposed straw without Earles's knowledge while they were sitting in the break room. Earles approached Hilbert about his cup and straw smelling "funny," but Hilbert did not disclose that a co-employee had sprayed insect repellant on Earles's cup and straw, and instead told Earles that he could not help because his sinuses were clogged.

Earles eventually determined that insect repellant from the breakroom was sprayed on his cup and straw and reported to the Parking Enforcement Supervisor, Rodney Ingard, who reported the incident up the chain of command. Earles also reported the incident to the police, indicating that he believed a co-worker tried to poison him. The Director of Parking Services also reported the incident to police. Hilbert was interviewed by the police on May 12, 2017 and initially denied any knowledge of the insect repellant incident, but later admitted that he observed the incident when the police confronted him with the facts discovered during the investigation.

The City placed Hilbert and others involved in the incident on investigatory suspension for knowingly tampering with a co-worker's property with intent to harm. In his response to the

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suspension, Plaintiff wrote "I should have said something, instead of keeping my mouth shut." (Def.'s Mem. Supp. Summ. J., Ex. 11, ECF No. 32-12 at 3.) On May 18, 2017, Hilbert was offered the opportunity to resign in lieu of termination, but he declined. Hilbert was fired that same day for willful intent to harm another team member and failure to report a criminal act in a timely manner. (Def.'s Mem. Supp. Summ. J., Ex. 15, ECF No. 32-16 at 2.)

Hilbert filed this action on January 9, 2019, raising claims of retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.; gross negligence; defamation; and wrongful discharge in violation of public policy.


A. Summary Judgment

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) (internal quotation marks and 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.

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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 determine whether 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").

B. Methods of Proof in Employment Cases

A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that the McDonnell Douglas framework applies to retaliation claims under Title VII). 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) (Title VII). 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,

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nondiscriminatory reason, "the McDonnell Douglas framework—with its presumptions and burdens—disappear[s], and the sole remaining issue [is] discrimination vel non." Id. (internal quotation marks and 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 that the 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) (Title VII & 42 U.S.C. § 1981). 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

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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...

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