Phillips v. Childers

Filing 81

OPINION and ORDER RULING ON REPORT AND RECOMMENDATION adopting 74 Report and Recommendation, granting 63 Motion to Sever. The Clerk is directed to docket Plaintiff's assault and battery claims as a new civil action. This matter is remanded to the Magistrate Judge for further pretrial proceedings. Signed by Honorable Cameron McGowan Currie on 7/17/2013. (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. 0:12-00532-CMC-SVH

OPINION and ORDER

Through this action, Plaintiff Pauline A. 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”). Plaintiff also alleges claims of
assault and battery against Thomas Childers (“Childers”), a former employee of Shaw.1 The matter
is before the court on Shaw’s motion to sever. Dkt. No. 63.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2), D.S.C., this matter
was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings and a
Report and Recommendation (“Report”). On June 6, 2013, the Magistrate Judge issued a Report
recommending that Shaw’s motion to sever be granted. Dkt. No. 74. Plaintiff filed timely
objections on June 24, 2013 (Dkt. No. 77), to which Shaw responded on July 11, 2013 (Dkt. No. 80).
For reasons stated below, the court adopts the Report and grants Shaw’s motion to sever.
BACKGROUND

1

The court previously dismissed Plaintiff’s assault and battery claims against Shaw. Dkt.

No. 59.
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Plaintiff 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 was terminated as part of an alleged reduction in force on March 4, 2010. Id. ¶¶
25-27. A few weeks after her termination, she alleges she was replaced with a male Journeyman.2
Id. ¶ 28.
Plaintiff also alleges that, during her employment in January 2010, foreman Childers
“forcibly grabbed” her arm “in front of others.” Id. ¶ 14. Plaintiff 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, Plaintiff alleges
Childers was verbally abusive to her “in front of others.” Id. ¶ 16. Two months after the armgrabbing incident, Plaintiff alleges that she was transferred to a different crew with a different
supervisor. Id. ¶ 18. Plaintiff alleges that as a result of the assault and battery, “she has been
damaged.” Id. ¶¶ 39, 43.
STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make 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

2

According to Shaw, foreman Berlin Pierpoint made the decision to terminate Plaintiff. Dkt.
No. 63-3 at 20-3.
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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).
DISCUSSION
Pursuant to Rule 21 of the Federal Rules of Civil Procedure, when parties have been
misjoined, a court may, on motion or on its own, “add or drop a party” or “sever any claim against
a party.” Fed. R. Civ. P. 21. Under Rule 20(a)(2), defendants may be joined in one action if “(A)
any right to relief is asserted against them jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any
question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).
Shaw filed a motion to sever Plaintiff’s claims, arguing that they arise from different
transactions or occurrences and share no questions of law or fact. The Magistrate Judge agrees with
Shaw and recommends that Plaintiff’s gender discrimination claim against Shaw be severed from
Plaintiff’s assault and battery claims against Childers. Specifically, the Report found that “the only
link between the allegations against Shaw and Childers is that they occurred during Plaintiff’s
employment with Shaw.” Report at 5. The Report also found that “there are no common questions
of fact because the facts related to the alleged arm-grabbing incident would have no bearing on the
elements necessary to prove gender discrimination and vice versa.” Id. at 7. As explained in the

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Report, the arm-grabbing incident happened months before Shaw’s decision to terminate and not to
rehire Plaintiff.
Plaintiff objects to the Report and argues that (1) Shaw’s motion is untimely because
discovery is ongoing; (2) the claims arise from the same transaction or occurrence, or series of
transactions; (3) there are common questions of fact; and (4) the issues of fairness, judicial economy,
prejudice, and threat of duplicative litigation must be considered. The court addresses Plaintiff’s
objections below.
(1) Timeliness of Shaw’s Motion. Plaintiff argues that Shaw’s motion is premature because
Plaintiff has not had the benefit of completing discovery. Dkt. No. 77 at 2-3. Plaintiff alleges in her
Amended Complaint that she was treated differently than her male counterparts. Dkt. No. 24 at ¶¶
19, 23, 26, 32. Plaintiff argues that she should have an opportunity “to pursue discovery relating to
[different treatment] including the incident giving rise to the assault and battery claims.” Dkt. No.
77 at 3. Shaw’s motion is not premature because the court may consider a motion to sever “at any
time.” Fed. R. Civ. P. 21. Further, Plaintiff has not convinced the court that delaying this motion
until after the close of discovery would lead to a different result. The court, therefore, rejects
Plaintiff’s objection to the timeliness of Shaw’s motion.
(2) Arising From the Same Transaction or Occurrence. Plaintiff objects to the Report’s
finding that her gender discrimination claim and her assault and battery claims do not arise from the
same transaction or occurrence. Plaintiff argues that her claims “all arise from Plaintiff’s
employment with Shaw.” Dkt. No. 77 at 3. As explained in the Report, that fact is insufficient to
establish that the claims arose from the same transaction or occurrence. Report at 5. Plaintiff also
attempts to link the arm-grabbing incident to her gender discrimination claim by arguing that the
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arm-grabbing incident is an example of the discrimination she experienced at Shaw. Plaintiff argues
that this incident will “show the discriminatory animus of Shaw and discriminatory culture and
atmosphere wherein male employees are treated better than female employees.” Dkt. No. 77 at 3.
As explained in the Report, Plaintiff has not administratively exhausted a hostile work environment
claim. Report at 5. Plaintiff’s gender discrimination claim is based on her termination or Shaw’s
failure to rehire her.3
Plaintiff does not allege in her Amended Complaint any connection between the armgrabbing incident and Shaw’s decision to terminate her. In fact, Plaintiff does not allege that the
arm-grabbing incident was motivated by her gender. Plaintiff similarly does not allege Childers had
any role in Shaw’s decision to terminate her or not to rehire her on or around July 1, 2010, or that
the decision maker somehow relied on the arm-grabbing incident when deciding to terminate
Plaintiff.4 Even after the briefing submitted in opposition to Shaw’s motion to sever and in its
objections to the Report, Plaintiff has failed to present any theory of connection between the two

3

Plaintiff does not argue that she administratively exhausted a hostile work environment
claim. Rather, Plaintiff argues that she should be allowed to present evidence of disparate treatment
to prove her gender discrimination claim:
Even assuming, arguendo, that Plaintiff failed to exhaust her administrative remedies
for a hostile work environment claim; the Plaintiff is not precluded from using
evidence of disparate treatment to support her properly exhausted Title VII claim.
Failure to exhaust in such a scenario merely would preclude Plaintiff from bringing
a claim[,] not evidence[,] supporting the properly exhausted claim.
Dkt. No. 77 at 4. The court need not decide at this point what evidence Plaintiff may use to prove
her gender discrimination case. Instead, the court must determine whether Plaintiff’s gender
discrimination claim arises from the same transaction or occurrence as her assault and battery claims
to satisfy Rule 20(a).
4

In its Answer to Plaintiff’s First Set of Interrogatories, Shaw states that Berlin Pierpoint,
not Childers, selected Plaintiff for termination. Dkt. No. 63-3. Further, Shaw has submitted a
separation notice indicating that Childers’ last day at Shaw was March 4, 2010. Dkt. No. 63-6.
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events, except that the incident should be allowed as evidence of “discriminatory culture and
atmosphere.” The court, therefore, rejects Plaintiff’s objection and concludes that Plaintiff’s claim
of gender discrimination against Shaw does not arise out of the same transaction or occurrence, or
series of occurrences, as her claims of assault and battery against Childers.5
(3) Common Questions of Fact. Plaintiff objects to the Report’s finding that there are no
common questions of fact between her gender discrimination claim and her assault and battery
claims.6 Plaintiff’s main argument is that “[a]ll of the witnesses in Plaintiff’s Title VII claim are the
same as the witnesses in her claims against Childers.” Common witnesses alone, however, do not
indicate common questions of fact. As explained in the Report, the facts necessary to prove gender
discrimination are different than the facts necessary to prove assault and battery.7 See Report at 6-7.

5

Plaintiff argues that the Report failed to recognize “a presumption in favor of the
nonmoving party that all claims in a case will be resolved in a single trial and not be severed.” Dkt.
No. 77 at 4 (citing Equal Rights Ctr. v. Equity Residential, 483 F. Supp. 2d 482, 489 (D. Md. 2007).
Equal Rights, however, was a case brought by a single plaintiff against a single developer and its
wholly-owned subsidiary for violations of the Fair Housing Act and the Americans with Disabilities
Act, involving 300 apartment complexes. Defendants moved to sever the claims for each complex,
turning the case into 300 separate actions. The court denied the motion to sever. The court found
that severance would create duplicative litigation because the claims were essentially the same for
each building as they shared common design elements. Here, Plaintiff is suing Shaw and a former
employee of Shaw. Severing the claims against Shaw and Childers would not result in duplicative
litigation as in Equal Rights.
6

Plaintiff appears to concede that there are no common questions of law. Report at 6.

7

As explained in the Report:

To establish a prima facie case of gender discrimination under Title VII, Plaintiff
must prove: (1) she is a member of a protected class; (2) she was performing
satisfactorily; (3) she suffered an adverse employment action; and (4) similarlysituated employees received more favorable treatment. Coleman v. Maryland Ct. of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010). To prove assault under South Carolina
law, Plaintiff must prove that Childers’ conduct placed her in reasonable fear of
bodily harm. See Gathers v. Harris-Teeter Supermarket, 317 S.E.2d 748, 754–55
6

The court, therefore, rejects Plaintiff’s objection to the Report’s finding that there are no common
facts to Plaintiff’s gender discrimination claim and assault and battery claims.
(4) Fairness, Judicial Economy, Prejudice, and Duplicative Litigation. Plaintiff objects
to the Magistrate Judge’s conclusion that the issues of fairness, judicial economy, prejudice, and
threat of duplicative litigation need not be considered when the claims sought to be severed do not
arise from the same transaction or occurrence and there are no common issues of law or fact. The
court agrees that these considerations need not be weighed in this case because these claims do not
satisfy the preconditions under Rule 20(a)(2). See Coleman v. Quaker Oats Co., 232 F.3d 1271,
1296 (9th Cir. 2000) (explaining that if the two preconditions are met under Rule 20, “a district
court must examine whether permissive joinder would ‘comport with the principles of fundamental
fairness’ or would result in prejudice to either side.”). In any event, the court finds that these
considerations support severance because Shaw would be prejudiced without severance and there
is no threat of duplicative litigation. Further, Plaintiff has made no argument that severance would
be unfair, except that severance “will cause her to have to try the same case twice.” Dkt. No. 77 at
6. Based on the findings in the Report and as stated above, there is no apparent overlap between
these claims or Defendants. Accordingly, the above-listed considerations weigh in favor of
severance.

(S.C. Ct. App. 1984). To prove battery, she must prove that Childers inflicted
forcible contact on her. Id. at 754.
Report at 6-7.
7

CONCLUSION
For reasons stated above and in the Report, the court grants Shaw’s motion to sever the
gender discrimination claim against Shaw and the assault and battery claims against Childers. The
Clerk is directed to docket Plaintiff’s assault and battery claims as a new civil action. This matter
is remanded 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
July 17, 2013

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