UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAY LINDA HEYWARD; EARL SAMUEL,
Plaintiffs-Appellants,

v.

MICHAEL C. MONROE, individually
and in his official capacity as
District Director of Health
                                                                   No. 97-2430
Education for the South Carolina
Department of Health and
Environmental Control; SOUTH
CAROLINA DEPARTMENT OF
HEALTH AND ENVIRONMENTAL
CONTROL,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Patrick Michael Duffy, District Judge.
(CA-95-3400-23-3)

Submitted: October 27, 1998

Decided: December 7, 1998

Before ERVIN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hemphill P. Pride, II, Columbia, South Carolina, for Appellants.
Hardwick Stuart, Jr., William K. Witherspoon, BERRY, ADAMS,
QUACKENBUSH & STUART, P.A., Columbia, South Carolina, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

May Linda Heyward and Earl Samuel appeal the district court's
judgment awarding summary judgment to the Defendants and dis-
missing their civil complaint. Heyward, who worked for the Defen-
dant South Carolina Department of Health and Environmental Control
("DHEC"), alleged she was discriminated against because of her race
and gender and retaliated against for having filed an informal com-
plaint with the South Carolina Human Affairs Commission in viola-
tion of Title VII, 42 U.S.C.A. §§ 2000e-2000e-17 (West 1994 &
Supp. 1998) ("Title VII") and 42 U.S.C. § 1983 (1994). She also
alleged state law claims of breach of contract, breach of implied cove-
nant of good faith and fair dealing, and violation of South Carolina
public policy. Samuel alleged loss of consortium. Finding no revers-
ible error, we affirm.

Heyward, a black female, was employed by the DHEC in Septem-
ber 1987. In November 1988, Michael C. Monroe, a white male, was
given a promotion Heyward sought. Monroe became Heyward's
supervisor. In March 1989, Monroe reprimanded Heyward for not
meeting with him concerning her performance appraisal. Heyward
was attending another meeting which Monroe had previously
instructed her not to attend.

In April 1989, Heyward met with Bobby Gist of the South Carolina
Human Affairs Commission and complained that Monroe was harass-
ing her because of her race. As a result of this contact, a meeting was
arranged among Monroe, Gist and Alan Pregnall, Assistant Director

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of Personnel Services for the DHEC. Pregnall agreed to investigate
Heyward's complaints and see what could be done.

In May 1991, Monroe issued Heyward an action plan in order to
address proper use of her work time. Among other things, the action
plan required Heyward to indicate specifically the places and persons
she was visiting when she was out of the office. She was also
informed that Monroe reserved the right to make unannounced visits
to places where she was scheduled to be. Monroe did make such
unannounced visits, and at least one other employee thought the visits
were excessive. (J.A. at 105).

On January 22, 1992, Heyward notified her office that she was ill
and taking the day off to go to the doctor. Heyward did not report to
work for the next three work days between January 23 and January
27, nor did she contact the office. On January 27, 1992, Monroe con-
cluded that Heyward had abandoned her job because she did not
report to work or notify anyone of her whereabouts for three consecu-
tive work days and terminated her employment pursuant to DHEC
policy. Heyward contends that other similarly situated white employ-
ees were provided with notice of pending termination due to abandon-
ment and more time to resolve the matter.

Heyward married Samuel on April 4, 1992. The instant complaint
was filed in October 1995. The magistrate judge concluded that Hey-
ward established a genuine issue of material fact as to whether her ter-
mination was based upon Heyward's gender and race. As for her
retaliation claim, the magistrate judge found that Heyward failed to
raise an inference of retaliation because her protected conduct
occurred two years before she was disciplined. The magistrate judge
also concluded that the § 1983, breach of contract, and breach of cov-
enant of good faith claims were barred by South Carolina's three-year
statute of limitations. With regard to the public policy claim, the mag-
istrate judge recommended it be dismissed because Heyward had stat-
utory remedies. As for the loss of consortium claim, the magistrate
judge found Samuel was not entitled to relief because he was not mar-
ried to Heyward at the time of the alleged injury. He also concluded
the claim was barred by the three-year statute of limitations.

The district court largely adopted the magistrate judge's report and
recommendation. However, it dismissed the discriminatory termina-

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tion claims because it found Heyward was not similarly situated to
those individuals who were not terminated in the same manner she
was.

We review the grant of summary judgment de novo. See Shaw v.
Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Summary judgment is
appropriate if the pleadings and evidence of record"show that there
is no genuine issue of material fact and that the moving party is enti-
tled to judgment as a matter of law." See Fed. R. Civ. P. 56(c). In
evaluating a motion for summary judgment, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are to be
drawn in [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).

In order to demonstrate a prima facie case of disparate disciplinary
practices, Heyward must show that: (1) she is a member of a pro-
tected class; (2) the prohibited conduct in which she engaged was as
serious as the misconduct of employees outside the protected class;
and (3) the employer imposed harsher disciplinary measures against
her than against employees outside the protected class. See Cook v.
CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993).

Evidence showed that other employees were treated more leniently
than Heyward. In addition to Heyward, seven other employees, one
white male, one black male, two white females, and three black
females were terminated for abandonment during the period of Hey-
ward's employment. The seven employees were either given notice of
pending termination or more time to resolve the matter; however, all
were eventually terminated. Monroe was not involved in the termina-
tion of the seven other employees. Nor was there any evidence that
any of the seven employees had a disciplinary history similar to Hey-
ward's.

Heyward has not shown that either the two male employees or the
two white female employees were similarly situated. She must show
that they are similar in all relevant respects. There is no evidence that
the employees "dealt with the same supervisor,[were] subject to the
same standards and . . . engaged in the same conduct without such
mitigating circumstances that would distinguish their conduct or the
employer's treatment of them for it." Mitchell v. Toledo Hosp., 964

                     4
F.2d 577, 583 (6th Cir. 1982); see also Arambru v. Boeing Co., 112
F.3d 1398, 1404 (10th Cir. 1997). None of the other employees were
supervised or disciplined by Monroe. See Shumway v. United Parcel
Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (employees were not simi-
larly situated because they were not supervised by the same person).
If different decision makers are involved, employees are generally not
similarly situated. See Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343,
350 n.3 (7th Cir. 1997).

As far as the two white female employees are concerned, there
appear to be mitigating circumstances regarding the difference in
treatment, in addition to having different supervisors. One employee
was on leave of absence status due to a family illness, the other
employee went on medical leave without pay due to a work-related
injury. Heyward, on the other hand, did not provide her employer any
reason for her absence. Nor did she contact Monroe to inform him
that she would not attend a meeting between the two of them sched-
uled for January 27.

Presuming Heyward established a prima facie case, she did not
show that DHEC's legitimate reason for her termination was pretex-
tual. Black employees were treated as leniently as white employees
and female employees were treated as leniently as male employees.
See Hughes v. Bedsole, 48 F.3d 1376, 1384-85 (4th Cir. 1995) (evi-
dence that a female was treated more leniently than female plaintiff
undercuts argument that reason for discipline was pretext). Thus, we
conclude that summary judgment was appropriate on this claim.

Turning to Heyward's claim of retaliation for having complained
to South Carolina Human Affairs Commission in April 1989, in order
to establish a prima facie case of retaliation, Heyward must prove
that: (1) she engaged in a protected activity; (2) adverse employment
action was taken against her; and (3) a causal connection existed
between the protected activity and the adverse action. See Carter v.
Ball, 33 F.3d 450, 460 (4th Cir. 1994).

We find this claim fails because Heyward's complaint occurred
two years prior to her termination. See Carter , 33 F.3d at 460 (tempo-
ral proximity between protected activity and adverse employment
decision is element of causality). Moreover, there is no evidence link-

                    5
ing the protected activity with the adverse employment decision. The
evidence of any on-the-job harassment, beyond Heyward's conclu-
sory statements, is slight.

With regard to Heyward's § 1983 claims, there is no federal statute
of limitations for § 1983 actions; the analogous state statute governing
personal injury actions applies. See Wilson v. Garcia, 471 U.S. 261,
280 (1985). The statute of limitations for such causes of action arising
in South Carolina is three years. See S.C. Code Ann. § 15-3-530(5)
(Law. Co-op. Supp. 1997). Heyward's action accrued when she was
terminated on January 27, 1992. She did not commence this action
until more than three years later, in October 1995.

Heyward contends that because the parties were in negotiations
prior to the commencement of the action, the doctrine of equitable
estoppel prevents the Defendants from asserting a statute of limita-
tions defense. In applying the state statute of limitations, the court
must also apply state principles of tolling to that limitation period. See
Board of Regents v. Tomanio, 446 U.S. 478, 485-88 (1980).

The Defendants may be estopped from claiming a statute of limita-
tions defense if the delay is induced by the Defendants' conduct. This
may consist of either an express representation that the claim will be
settled without litigation or by conduct suggesting a lawsuit is unnec-
essary. See Vines v. Self Memorial Hosp., 443 S.E.2d 909, 911 (S.C.
1994). Settlement negotiations alone do not bar a statute of limitations
defense. Id. We agree with the district court that there is no evidence
supporting Heyward's contention that the Defendants made an
express representation that the claim would be settled. Accordingly,
Heyward's § 1983 claims are barred by the statute of limitations.
Likewise, the three-year statute of limitations bars Heyward's breach
of contract and breach of covenant of good faith claims. See § 15-3-
530(1).

We also find that Heyward's public policy claim was appropriately
dismissed. South Carolina permits an action under the public policy
exception when an at-will employee is terminated for refusing to vio-
late the law. It has not been extended to circumstances where there
is a statutory remedy for employment discrimination, as in this case.
See Dockins v. Ingles Mkts., Inc., 413 S.E.2d 18, 18 (S.C. 1992).

                     6
Finally, we find Samuel's action for loss of consortium also barred
by the three-year statute of limitations. His cause of action accrued
when he possessed "sufficient facts about the harm done to him that
reasonable inquiry will reveal his cause of action." See Brooks v. City
of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996). Even assuming
Samuel could not maintain this action until he was married, see S.C.
Code Ann. § 15-75-20 (Law. Co-op. 1977),* his own affidavit reveals
that the cause of action accrued on April 4, 1992, the date he and
Heyward married. (R. 24). Since he did not bring this action until
October 1995, it is time barred.

Accordingly, we affirm the judgment of the district court. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED
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*Section 15-75-20 permits a person to maintain a cause of action for
damages arising out of the loss of the right to companionship with their
spouse.

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