Laurie v. Caldwell

• Decision Date: 31 March 2011
• Docket Number: C.A. No. 3:09-cv-218-MJP
• Parties: Laurie V. Caldwell, Plaintiff, v. South Carolina Law Enforcement Division, Defendant.
• Court: U.S. District Court — District of South Carolina

Laurie V. Caldwell, Plaintiff,

v.South Carolina Law Enforcement Division, Defendant.

C.A. No. 3:09-cv-218-MJP

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

DATED: March 31, 2011

ORDER

This matter is before the Court on Defendant South Carolina Law Enforcement Division's motion for summary judgment. (Docket Entry no. 25). In accordance with Local Rule 73.02(B)(2)(g), the case was referred to a magistrate judge for pretrial proceedings. The magistrate judge entered a report and recommendation on the motion for summary judgment on October 25, 2010, recommending that the motion be granted. (Docket Entry no. 39). The plaintiff filed objections to the report and recommendation on December 13, 2010 (Docket Entry no. 43), and the defendant filed a response to the Plaintiff's objections on December 30, 2010. (Docket Entry no. 47). The Court held a hearing on the Plaintiff's objections on March 24, 2011, at the conclusion of which the Court overruled the Plaintiff's objections, approved the Report and Recommendation, and directed that summary judgment be entered in the defendant's favor

This is an action arising under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. At all times relevant to this action, Laurie V. Caldwell (plaintiff) was an employee of the South Carolina Law Enforcement Division (defendant). In her amended complaint, the plaintiff alleged that the defendant denied her promotion to lieutenant in 2006 and again in 2007, subjected her to disparate wages and discipline, and subjected her to a "glass ceiling," all because of her gender. She also alleged that the defendant retaliated against her in various respects because she opposed gender discrimination.

In its memorandum in support of summary judgment, the defendant argued that the plaintiff could not litigate any claim of gender discrimination other than her claim that she was not promoted to lieutenant in September 2007 because that is the only claim that she administratively exhausted and timely filed with the Equal Employment Opportunity Commission ("EEOC"). The plaintiff did not contest the defendant's argument in this regard, and therefore the magistrate judge concluded that the Plaintiff's claim for gender discrimination was procedurally barred except with respect to the 2007 promotional opportunity.

The defendant also argued that the Plaintiff's claim of retaliation failed as a matter of law on the undisputed facts because, among other reasons, she failed to identify any "materially adverse action" within the meaning of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) that she experienced after she first complained of gender discrimination. Again, the plaintiff did not contest the defendant's argument in this regard, and the magistrate judge therefore concluded that the retaliation claim should be dismissed.

The Plaintiff's objections address only the magistrate judge's recommended disposition of her claim of gender discrimination as it relates to her failure to be promoted in September 2007. Hence, in light of the Plaintiff's failure to oppose dismissal either of the other aspects of her gender discrimination claim or her retaliation claim and in the absence of any objections to the magistrate judge's recommended dismissal of those claims, those recommendations are accepted and adopted. See Wallace v. Housing Authority of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992).

With respect to the single claim that the plaintiff contested on summary judgment her failure to be selected in 2007 for promotion to lieutenant in the Special Victims Unit headed by Captain Patsy Lightle - the plaintiff raises five objections to the magistrate judge's report and recommendation. While the Court has considered each of these objections, none has sufficient merit to defeat the defendant's motion for summary judgment.

The plaintiff's first objection faults the magistrate judge for rejecting what the plaintiff characterizes as "historical evidence of gender bias and discrimination throughout Chief Stewart's tenure as Chief of SLED. [Docket Entry no. 43, p. 2].¹ She maintains that historical evidence of gender discrimination is relevant in a Title VII proceeding even if the matters comprising that historical evidence were not litigated or made the subject of a timely charge. The Court agrees. A review of the magistrate judge's recommended disposition, however, does not support the Plaintiff's assertion that he "dismissed" or otherwise rejected historical evidence of gender discrimination by the defendant.

As earlier mentioned, the magistrate judge agreed with the defendant that under cases such as National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) and Chacko v. Patuxent Inst., 429 F.3d 505 (4^th Cir. 2005), the only gender discrimination claim that the plaintiff could pursue in this action was the claim that she was denied promotion to lieutenant in September 2007. He determined that any claim concerning the plaintiff's failure to be selected for promotion in 2006 was time-barred under Morgan and that any claim concerning discriminatory wages, discipline and/or a purported "glass ceiling" were procedurally barred under Chacko because those matters were not mentioned in the only administrative charge of discrimination that the plaintiff ever filed with the EEOC. The plaintiff did not contest the defendant's argument about these matters in the memorandum that she filed in opposition to the defendant's motion for summary judgment. She argued only that she had a viable claim of gender discrimination with respect to her failure to be promoted to lieutenant in September 2007. (Docket Entry no. 36).

Assuming that the plaintiff has not forfeited her right to challenge the purported rejection of "historical evidence of gender and bias discrimination", the Court finds no error by the magistrate judge. The magistrate did not find that the plaintiff could not support her claim of gender discrimination with historical evidence. He determined that the plaintiff could not litigate time-barred and procedurally barred claims of gender discrimination and that the plaintiff had not proffered sufficient evidence to withstand summary judgment with respect to the September 2007 promotion. While historical evidence of a pattern of gender discrimination can be offered as background evidence to support a disparate treatment claim, a Title VII claimant cannot avoid her summary judgment obligation to establish a prima facie case and/or establish a dispute of fact as to whether a facially neutral explanation is pretextual by historical evidence alone. That is, historical evidence of discrimination is not a substitute for a prima facie case or evidence of pretext.

In any event, the particular "historical evidence of gender bias and discrimination" that Plaintiff argues was erroneously dispatched by the magistrate judge does not, in fact, constitute evidence of discrimination in promotions at SLED. The plaintiff asks the Court to infer otherwise from discovery responses showing that, for the five years preceding this action, "only seven" of the twenty-six persons promoted to lieutenant, were female; that as of April 5, 2010, "only nine females . . . h[e]ld the position of lieutenant or above"; and that "[o]nly five females currently hold the position of captain or major within SLED." (Docket Entry no. 43, pp. 2-3) But as the defendant points out, the Fourth Circuit adheres to the view that evidence of the "low percentage of women in high-level positions [is] meaningless without evidence of [the] pool of qualified women applicants." Carter v. Ball, 33 F.3d 450, 456-57 (4^th Cir. 1995) (internal quotations omitted). So, the mere fact that seven of twenty-six persons promoted to lieutenant over the past five years were female, that as of April 2010 there were a total of nine female lieutenants at SLED, and that five females currently hold the rank of captain or major is not, as the plaintiff argues, "historical evidence of gender bias and discrimination" because the plaintiff has not offered any evidence as to the pool of qualified female applicants for these positions.

Thus, while the Court agrees with the plaintiff that historical evidence of gender discrimination is relevant in a Title VII action regardless of whether any of the individual employment actions comprising the evidence has ever been the subject of an EEOC charge, the magistrate judge did not find otherwise. Further, the information that the plaintiff cites as "historical evidence of gender bias and discrimination" is not properly characterized as such without evidence of the number of qualified female applicants for the lieutenant and higher-level positions at SLED, which evidence has not been offered by the plaintiff. Accordingly, the plaintiff's first objection is overruled.

The plaintiff's second objection is to the magistrate judge's conclusion that she has not made out a prima facie case of gender discrimination with respect to the September 2007 promotion to lieutenant because she was not ranked in the top 50% of applicants by the interview panel and therefore, under the defendant's promotion policy, was not eligible for selection by Chief Stewart. There is support for the magistrate judge's view that where, as here, promotion must be from a "list of eligibles," the failure of a Title VII plaintiff to establish that she was on the list of eligibles forecloses her prima facie case notwithstanding the fact that she met the minimum qualifications to apply for the position. See, e.g., Bailey v. Ann Arundel County, Md., 259 F.Supp. 2d 421, 426-28 (D.Md. 2003). But even if the magistrate judge should have credited The plaintiff with having established a prima facie case, the fact that the plaintiff was not ranked in the top 50% of applicants in...