Phillips v. Shaw Group Inc et al

Filing 59

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 53 Report and Recommendation, granting 11 Motion to Dismiss for Failure to State a Claim: The court grants Shaw's partial motion to dismiss Phillips' assault and battery claims against Shaw. This matter is again referred to the Magistrate Judge for further pretrial proceedings. Signed by Honorable Cameron McGowan Currie on 1/15/2013. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Pauline A. Phillips,

)
)
Plaintiff,
)
)
v.
)
)
Shaw Constructors, Inc., and Thomas
)
Childers, in his individual capacity,
)
)
Defendants.
)
________________________________________ )

C/A No. 0:12-532-CMC-SHV

OPINION AND ORDER

Through this action, Plaintiff, Pauline A. Phillips (“Phillips”), seeks recovery from her
former employer, Shaw Constructors, Inc. (“Shaw”), for alleged gender discrimination in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Phillips also
alleges claims of assault and battery against Shaw and Thomas Childers (“Childers”).
The matter is before the court on Shaw’s partial motion to dismiss Phillip’s claims of assault
and battery against Shaw. Dkt. No. 11. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(e), (g), DSC, this matter was referred to United States Magistrate Judge Shiva V.
Hodges for pre-trial proceedings and a Report and Recommendation (“Report”). On October 31,
2012, the Magistrate Judge issued a Report recommending that Shaw’s motion to dismiss be granted.
Phillips filed timely objections on November 19, 2012 (Dkt. No. 56), to which Shaw responded on
December 6, 2012 (Dkt. No. 58). For the reasons stated below, Shaw’s motion to dismiss Phillips’
assault and battery claims against Shaw is granted.
STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility for making a final determination remains with the

court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Magistrate Judge’s Report and Recommendation to which a
specific objection is made. The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b). In the absence of an objection, the court reviews the Report
and Recommendation only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court
need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation”) (citation omitted).
BACKGROUND
Phillips alleges that she was hired by Shaw in July 2009 as a carpenter, and that during her
employment, she was treated differently than her male counterparts with respect to promotion to the
position of Journeyman. Dkt. No. 24 ¶¶ 8-9. She alleges that she was ultimately promoted to
Journeyman, but that she was terminated as part of an alleged reduction in force. Id. ¶¶ 25-27. A
few weeks after her termination, she alleges that she was replaced with a male Journeyman. Id. ¶
28.
Also, during her employment, she alleges that Defendant Childers, a foreman, “forcibly
grabbed” her arm “in front of others.” Id. ¶ 14. Phillips alleges that she reported the incident to her
supervisor, who informed her that he “wanted to keep the incident and complaint ‘within the
group.’” Id. ¶ 15. During the week following the arm-grabbing incident, Phillips alleges Childers
was verbally abusive to her “in front of others.” Id. ¶ 16. Two months after the arm-grabbing

2

incident, she alleges that she was transferred to a different crew with a different supervisor. Id. ¶ 18.
Phillips alleges that as a result of the assault and battery, “she has been damaged.” Id. ¶¶ 39, 43.
DISCUSSION
The Report recommends that Phillips’ assault and battery claims against Shaw be dismissed
because they are barred by the Workers’ Compensation Act (“the Act”). First, the Report finds that
claims for personal injuries arising out of assault and battery by a fellow employee are barred by the
exclusivity provision of the Workers’ Compensation Act.1 Dkt. No. 53at 4. Second, the Report
finds that Phillips does not allege any harm resulting from the alleged assault and battery, other than
for personal injuries. Id. at 5-6. Finally, the Report finds that, even if Phillips had alleged other
harms such as “dignitary and reputational harm,” there is no case law “for the proposition that assault
or battery claims can result in any injury other than personal injury,” that would take the claims
outside of the exclusivity provision of the Act. Id. at 6.

1

As the Report explains,
The South Carolina Supreme Court has affirmatively stated that claims for
“assault and battery caused by the action of another employee are within the
scope of the Act since these actions arise from personal injury.” Dickert v.
Metropolitan Life Ins. Co., 428 S.E.2d 700, 701 (S.C. 1993) (citing Loges v.
Mack Trucks, 417 S.E.2d 538 (S.C. 1992)). Liability will fall outside of the
Act, thereby allowing the employee to bring a tort action, only where the
co-employee responsible for the battery can be considered the “alter ego” of
the employer. Dickert, 428 S.E.2d at 701.
Dkt. No. 53 at 4. Defendant Childers is alleged to be a foreman, and Phillips does not
argue that he is the alter ego of Shaw. The assault and battery claims against Childers are,
therefore, not barred by the Workers’ Compensation Act as they are brought against Childers
individually.
3

Phillips objects to the Report’s recommendations that (1) Phillips did not plead “proprietary
loss”2; (2) Phillips should not be allowed to amend her Amended Complaint to plead proprietary loss
because it would be futile; (3) assault and battery claims cannot result in any injury other than
personal injury, such as reputational harm; and (4) the exclusivity provision of the Worker’s
Compensation Act bars Phillips’ assault and battery claims against Shaw. Shaw responds by arguing
the Report correctly concludes that (1) Phillips did not allege proprietary harm; (2) amendment to
add proprietary harm would be futile because proprietary harm is not recoverable for assault and
battery under South Carolina law; and (3) assault and battery claims are compensable under the
Workers’ Compensation Act and, therefore, subject to the Act’s exclusivity provision.
Phillips’ primary objection is that the Magistrate Judge concluded that her assault and battery
claims fall within the exclusivity provision of the Act. Even assuming Phillips pled reputational or
proprietary loss in her Amended Complaint, Phillips has failed to establish that such loss is
recoverable under assault and battery claims. As explained in the Report, Phillips “has cited no
authority for the proposition that assault or battery claims can result in any injury other than personal
injury.” Dkt. No. 53 at 6. In her Objections, Phillips cites one case in response to this portion of the
Report

a 1967 Texas Supreme Court case in which the court held that mental suffering is

compensable for willful torts, including battery. Dkt. No. 56 at 4 (citing Fisher v. Carrousel Motor
Hotel, Inc., 424 S.W.2d 627 (Tex. 1967)). That case, however, provides the court with no guidance
as to whether reputational or proprietary harm is compensable for assault or battery in South Carolina
or otherwise excluded from the Act.
2

Phillips refers to reputational harm as “proprietary loss” in her Objections. Dkt. No. 56 at
2. See also Dkt No. 20 at 3 (in her response to Shaw’s motion to dismiss, referring to “proprietary
damages” as “those over which the plaintiff claims a property interest like her reputation and right
to be free from embarrassment and humiliation”).
4

In the absence of any South Carolina case law indicating that reputational or proprietary harm
is compensable for assault and battery, the court finds that Phillips’ injuries from the alleged assault
and battery are personal injuries, and that personal injuries arising out of and in the course of
employment, including mental damages resulting from an assault and battery, are subject to the
exclusivity provision of the Act. See, e.g., Loges v. Mack Trucks, Inc., 417 S.E.2d 538 (S.C. 1992);
Doe v. S.C. State Hospital, 328 S.E.2d 652 (S.C. Ct. App. 1985). The court, therefore, overrules
Phillips’ objections and adopts the Report.3
CONCLUSION
For the reasons set forth above, the court adopts and incorporates the Report. The court,
therefore, grants Shaw’s partial motion to dismiss Phillips’ assault and battery claims against Shaw.4
This matter is again referred to the Magistrate Judge for further pretrial proceedings.
IT IS SO ORDERED.

S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
January 15, 2013

3

To the extent that Phillips requests leave to amend her Amended Complaint, that request
is denied as amendment to allege reputational or proprietary harm is futile for the reasons stated
above.
4

Phillips’ gender discrimination claim against Shaw and her assault and battery claims
against Childers are unaffected by this order.
5