Dunlap et al v. TM Trucking of the Carolinas, LLC et al
Filing
97
ORDER denying 70 Motion for Summary Judgment as to Plaintiffs' claim for hostile work environment, denying 70 Motion for Summary Judgment as to the claim of Plaintiffs Dunlap, Good and Neal for constructive discharge a nd granting 70 Motion for Summary Judgment on Plaintiff Elam's claim for constructive discharge; adopting in part Report and Recommendations re 78 Report and Recommendation and incorporating by reference. Signed by Honorable J Michelle Childs on 12/12/2017.(vdou, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Rodney R. Dunlap; Kevin Good;
Bernard Elam; Joe Neal; Mack
Thompson,
)
)
)
)
Plaintiffs,
)
v.
)
)
TM Trucking of the Carolinas, LLC, )
TNT Trucking of the Carolinas, Inc., )
T-N-T Trucking of York County,
)
Inc., TNT Propane, Inc., and Tony )
McMillan, individually,
)
)
Defendants.
)
_____________________________ )
Civil Action No. 0:15-cv-04009-JMC
ORDER AND OPINION
Plaintiffs Rodney R. Dunlap, Kevin Good, Bernard Elam, Joe Neal and Mack Thompson
(collectively “Plaintiffs”) filed this civil rights action against Defendants TM Trucking of the
Carolinas, LLC, TNT Trucking of the Carolinas, Inc., T-N-T Trucking of York County, Inc.,
TNT Propane, Inc. and Tony McMillan (“McMillan”) (collectively “Defendants”) pursuant to 42
U.S.C. § 1981 alleging claims for hostile work environment and constructive discharge. (ECF
No. 1 at 14 ¶¶ 80–83.)
This matter is before the court on Defendants’ Motion for Summary Judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure.1 (ECF No. 70.) Specifically, Defendants
assert that “there is no genuine issue of material fact and that they are entitled to summary
judgment on each Plaintiffs’ claim.” (Id. at 1.) In accordance with 28 U.S.C. § 636(b) and Local
Rule 73.02(B)(2)(g) (D.S.C.), the matter was referred to United States Magistrate Judge Shiva V.
Hodges for pretrial handling. On August 24, 2017, the Magistrate Judge issued a Report and
1
The court observes that from this point forward, “Rule” refers to the Federal Rules of Civil
Procedure.
Recommendation (ECF No. 78) recommending that “Defendants motion be granted as to
Plaintiffs’ constructive discharge claim and denied as to Plaintiffs’ claims for hostile work
environment.” (Id. at 14.) Both Plaintiffs and Defendants filed Objections to the Magistrate
Judge’s Report and Recommendation, which Objections are presently before the court. (ECF
Nos. 80 & 81.) For the reasons set forth below, the court ACCEPTS IN PART the Magistrate
Judge’s recommendation and DENIES Defendants’ Motion for Summary Judgment as to
Plaintiffs’ claim for hostile work environment and DENIES Defendants’ Motion for Summary
Judgment as to the claim of Plaintiffs Dunlap, Good and Neal for constructive discharge.
I.
RELEVANT BACKGROUND TO PENDING MOTION
Defendants TM Trucking of the Carolinas, LLC,2 TNT Trucking of the Carolinas, Inc.,3
T-N-T Trucking of York County, Inc.,4 TNT Propane, Inc.5 (collectively “Corporate
Defendants”) are all engaged in the business of transporting/hauling goods. (ECF No. 74-1 at
20:22–21:5.) Corporate Defendants are all physically located at 605 Albright Road in Rock Hill,
South Carolina. (Id. at 19:9–23.) McMillan is the one hundred per cent owner of Corporate
Defendants. (Id. at 18:3–23.) McMillan possesses ultimate hiring and firing authority as to
Corporate Defendants. (Id. at 32:4–15 & 73:10–74:5.) McMillan is the only individual with
check writing authority for Corporate Defendants. (Id. at 28:3–10.) McMillan is the individual
responsible for “implementing the human resources functions” and for ensuring that Corporate
2
TM Trucking of the Carolinas, LLC “is a licensed short-haul carrier using dump trucks to
transport construction materials to and from construction sites for third-party vendors.” (ECF
No. 70-1 at 3.)
3
TNT Trucking of the Carolinas, Inc. “is a licensed long haul carrier transporting dry freight to
and from construction sites for third-party vendors.” (ECF No. 70-1 at 3.)
4
T-N-T Trucking of York County, Inc. “is a licensed short haul carrier using dump trucks to
transport construction materials to and from construction sites for third-party vendors.” (ECF
No. 70-1 at 3.)
5
TNT Propane, Inc. “provides home heating services by delivering propane tanks to residential
customers.” (ECF No. 70-1 at 4.)
2
Defendants are “compliant with federal and state equal employment opportunity laws.” (Id. at
32:25–33:8.) Additionally, McMillan is responsible for dispatching trucks and assigning their
drivers. (Id. at 34:12–20.)
Plaintiff Dunlap drove a dump truck for Defendants T-N-T Trucking of York County,
Inc. and/or TNT Trucking of the Carolinas, Inc. (together the “TNT Defendants”) from June 21,
2013, through January 25, 2014. (ECF No. 71-1 at 5:20:6, 11:44:9–24 & 19:76:16–21; ECF No.
74-1 at 58:14–17.) Plaintiff Neal was employed as a dump truck driver by TNT Defendants
from May 29, 2012, through May 10, 2013. (ECF No. 71-4 at 7:27:21–28:17 & 8:31:22–23;
ECF No. 74-1 at 62:10–19 & 63:24–65:11; ECF No. 74-5 at 4:22–23.) Plaintiff Good worked
for TNT Defendants as a dump truck driver from August 15, 2012, to February 4, 2014. (ECF
No. 71-3 at 9:33:8–20, 11:44:11–16 & 14:54:18–25; ECF No. 74-1 at 68:6–11.) Plaintiff Elam
was employed as both a long haul driver and dump truck driver for TNT Defendants from
September 16, 2010, until December 13, 2013. (ECF No. 71-2 at 9:36:19–10:37:11; ECF No.
74-1 at 69:8–70:12 & 72:1–3; ECF No. 74-3 at 8:13–15.) Finally, Plaintiff Thompson worked as
a driver for TM Trucking of the Carolinas, LLC on six (6) separate occasions, the last period
lasting from January 9, 2012 to March 2014. (ECF No. 71-5 at 6:22:9–14 & 8:30:6–13; ECF
No. 74-1 at 77:5–8.)
During their employment, Plaintiffs assert that McMillan used the term “nigger” in the
work environment thereby subjecting Plaintiffs to a racially-hostile and abusive working
environment and causing the constructive discharge of Dunlap, Good, Elam and Neal. The
following is a comprehensive summation of Plaintiffs’ allegations:
3
Dunlap testified that on a typical day, he and the other drivers would report to
work at 7:00 a.m. and would gather in the break room until they were dispatched
by McMillan. Dunlap Dep. at 51:18–25. Dunlap testified that the duration of
time he spent in the break room with McMillan and the other employees varied
depending upon weather conditions. Id. at 51-56.
Dunlap testified that he first heard McMillan use the word “nigger” in July 2013.
Dunlap Dep. 69:18–24. He states that he was in the breakroom while McMillan
was talking to some of the black employees and McMillan yelled, “Nigger,
please.” Id. at 70:2–8. Dunlap recounted that McMillan used the word “nigger”
frequently throughout his employment, at least one to two times per week until
the date he quit. Dunlap Aff. ¶ 2. Dunlap testified that on another occasion he
heard McMillan refer to another black employee, Warren Chisholm, as a
“country-ass nigger.” Id. at ¶ 3. In response to hearing this, Dunlap asked
McMillan, “What’s up with you and your use of that word?” Id. According to
Dunlap, McMillan replied that the word “nigger” meant an “ignorant person,” and
that Dunlap should “look it up in the dictionary.” Id.; Dunlap Dep. at 83:24-84:5.
McMillan sometimes referred to a white coworker as a “white nigger,” although
Dunlap testified that McMillan “would do that after he called the black people
niggers to try to cover it up.” Dunlap Dep. at 85:15–18. Dunlap testified that on
December 20, 2013, McMillan referred to Dunlap and other black employees who
were seated at a table in the break room as “niggers,” declaring “you think I’m
going to give those niggers [referring to Dunlap and his co-workers] anything?”
Dunlap Dep. at 91:16–92:4.
On other occasions, Dunlap heard McMillan speak disparagingly about AfricanAmericans. Dunlap testified that on one occasion while he was employed by
Defendants, a news story regarding a terrorist attack that had occurred at a
shopping mall in Africa was being broadcast on the breakroom television. Id. at
150:20–151:4. Dunlap stated that upon seeing the newscast, McMillan remarked,
“Look at those dumb-ass niggers tearing up their country.” Id. On another
occasion, McMillan referred to the black employees as “stupid asses,” “dumb
motherfuckers,” or “stupid motherfuckers” and declared that a “monkey could do
your job.” Id. at 151:13–21. According to Dunlap, McMillan directed these
comments at the black employees only, and not to the white employees who
worked for Defendants. Id. Dunlap testified that one time an employee
mentioned in the breakroom that his girlfriend had wrecked her car, to which
McMillan responded, “What’s she trying to do, play that nigger role, get whiplash
for some – get some money for whiplash?” Id. at 152:12–17.
Dunlap recounted that he left his employment with Defendants because he “had
just had enough.” Id. at 63:17–21 . . . . Dunlap voluntarily resigned by declining
to return to work after he started a new job.
4
Good stated that McMillan used the word “nigger” in his presence on a frequent
basis. Good Dep. at 76:23–77:1. Good recounted that McMillan called him a
“nigger” when he helped McMillan deliver a stove to McMillan’s mother’s home
in Georgia some time in 2013. Id. at 42:23–43:10. Good testified that McMillan
called him a “nigger” again during the fall of 2013 when he returned to the yard to
have the brakes on his truck adjusted. Id. at 51:11–21. On another occasion,
McMillan remarked in Good’s presence that he could not “stand that bald-headed
fucking nigger,” referring to another black coworker. Id. at 50:9–11. In response
to that remark, Good told McMillan, “If you say that about him you might as well
be calling me that.” Id. at 50:13–15. Good told McMillan that he should not use
that word in the workplace. Id. at 50:15–19.
Good testified that he did not and does not use the term “nigger” and did not like
being called a “nigger.” Id. at 47:2–13. Good further testified that on April 24,
2014, McMillan approached him and asked that he sign a document indicating
that it was okay for McMillan to use the word “nigger” in his presence. Id. at
72:7–19. Good refused to sign that document. Id.
Good testified that he resigned because he did not appreciate the way McMillan
spoke to him and also because he needed benefits. Id. at 174:17–22.
Elam testified that he heard McMillan use the term “nigger” when he got upset or
“cussed and fussed” at other black coworkers. Elam Dep. at 93:16–94:6. On one
occasion, McMillan was on the truck radio and asked, “Who is playing that nigger
music?” when another driver played a Michael Jackson song. Id. at 51:5–52:19.
On another occasion, McMillan commented in Elam’s presence, “these niggers be
tripping,” in reference to a murder that had been committed in a nearby black
neighborhood. Id. at 54:1–21.
Elam testified that on one occasion he told McMillan’s daughter that her dad
should not be using racial slurs. Id. at 55:4–18. In response, McMillan’s
daughter stated, “Well, you don’t know my daddy.” Id. In addition to his
complaint to McMillan’s daughter, Elam told McMillan that he should stop using
the “N-word” because “that’s not good.” Id. at 56:12–75:12. McMillan,
however, continued to use that term in his presence. Id. at 122:22-123:4. Elam
testified that he “didn’t feel it was right” for McMillan to use that word. Id. at
162:3–9.
Neal testified in his deposition that he heard McMillan use the “N-word” within
the first three weeks of his date of hire. Neal Dep. 33:24–34:12. Neal recounted
that McMillan was the only one whom he heard use that word in the workplace.
Id. Neal testified that McMillan used the word while in the breakroom and that
McMillan used the word regularly. Id. Over the course of his twelve months of
employment with the Defendants, Neal estimated that he heard McMillan use the
term “nigger” over 80 times. Id. at 47:3–10. Neal testified that on one occasion
during the summer of 2012, McMillan called him a “nigger” in a telephone
5
conversation in which McMillan accused him of breaking the drive shaft of his
truck. Id. at 35:18–35:21. According to Neal, his truck stalled, slid down a small
embankment, and would not restart. Id. Neal stated that when he called
McMillan to report what had happened, McMillan became mad, cursed at him,
and said, “Nigger, it sounds like you’ve done broke the drive shaft.” Id. Neal
testified that upon his return to Defendants’ business premises, he confronted
McMillan and told him “not to ever call me that again and don’t ever speak to me
the way you spoke to me.” Id. at 36:22–37:21. Although McMillan never called
him a “nigger” again and offered an apology to him with respect to this incident,
Neal believes that McMillan was apologizing for having wrongly accused him of
damaging the truck—not for calling him a “nigger”—because McMillan
continued to use the racial slur in his presence to refer to other black employees.
Id. at 37:21–38:23; 70:11–71:10. Neal further recounted that he heard other black
employees, including Elam, complain to McMillan about his use of the “N-word.”
Id. at 75:8–19. In response to these complaints, McMillan would reply by saying
“the word nigger means white trash and he’d say, ‘look it up in the dictionary.’”
Id. Neal voluntarily resigned to take a job where he was making more money.
Thompson testified that when he returned to work in January 2014 after a heart
attack, McMillan greeted him by saying, “Nigger, I thought you was dead . . . I
was looking for your black ass to be dead in the obituary.” Id. at 20:10–22.
Further, during his last period of employment with Defendants, Thompson
testified that he heard McMillan use the term every day he was in the shop. Id. at
50:24–52:3. He also testified that he once heard McMillan use the term “nigger”
when he told another employee in the company breakroom to look up the word in
a dictionary. Id. at 24:6–10.
Thompson stated that while he enjoyed working, he did not enjoy McMillan’s
calling him a “nigger.” Thompson stated that hearing the term “made me feel
kind of bad and like humiliated but it just – I let it go in one ear and keep going.
But as he kept doing it, you know, on a regular basis, it kind of just got to you.”
Id. at 50:20–23.
(ECF No. 78 at 3–8.)
McMillan admits that he uses the term “nigger” at work while owner of Corporate
Defendants. (ECF No. 74-2 at 12:5–6.) McMillan denies that he directed the term “nigger” at
anyone directly or used it to refer to an African-American. (Id. at 13:6–8 & 14:4–7.) McMillan
also testified that it is possible he used the term “nigger” in the presence of Plaintiffs while they
were employed by Corporate Defendants. (ECF No. 74-2 at 19:7–22.) McMillan asserts that no
one including Plaintiffs have ever told him that “nigger” was offensive or asked him not to use
6
the term. (Id. at 13:25–14:4.) McMillan claims that almost everyone employed by Corporate
Defendants, including Plaintiffs, said “nigger” daily in the workplace. (Id. at 14:17–16:24.)
However, Plaintiffs deny that others in Corporate Defendants’ workplace used the term. (E.g.,
ECF Nos. 74-3 at 20:5–7 & 74-5 at 6:21–7:18.)
On September 28, 2017, Plaintiffs filed a civil rights Complaint against Defendants
pursuant to § 1981 alleging that all Plaintiffs were subjected to a racially hostile work
environment and that Plaintiffs Dunlap, Good, Elam and Neal were constructively discharged
from their jobs. (ECF No. 1 at 14 ¶¶ 80–83.) On February 1, 2017, the parties completed
discovery. (See ECF No. 48) Defendants then moved for summary judgment on April 24, 2017.
(ECF No. 70.) Plaintiffs filed a Response in Opposition to Defendants’ Motion for Summary
Judgment on May 15, 2017, to which Defendants filed their Reply to Plaintiffs’ Response in
Opposition to Motion for Summary Judgment on June 5, 2017. (ECF Nos. 74 & 77.) In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 (D.S.C.), the Magistrate
Judge, after reviewing the parties’ submissions, issued the aforementioned Report and
Recommendation on August 24, 2017, recommending that “Defendants motion be granted as to
Plaintiffs’ constructive discharge claim and denied as to Plaintiffs’ claims for hostile work
environment.” (ECF No. 78 at 14.) On September 5, 2017, Plaintiffs filed their Objections to
the Magistrate Judge’s Report and Recommendation, followed by Defendants filing their
Objections on September 7, 2017. (ECF Nos. 80 & 81.) Plaintiffs filed a Reply in Opposition to
Defendants’ Objections on September 20, 2017. (ECF No. 82.)
The court heard argument from the parties on the instant Motion at a hearing on October
17, 2017. (ECF No. 92.)
7
II.
JURISDICTION
This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 based on
Plaintiffs’ claims against Defendants under 42 U.S.C. § 1981, which guarantees the rights of a
protected class of individuals “to make and enforce contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, . . . .” Id.
III.
A.
LEGAL STANDARD
The Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections6
are filed, and reviews those portions which are not objected to - including those portions to
which only “general and conclusory” objections have been made - for clear error. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
B.
Summary Judgment under Rule 56
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
6
An objection is specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” One Parcel of Real Prop. Known
As 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140,
147 (1985)).
8
R. Civ. P. 56(a). 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). A genuine question of material fact exists where, after reviewing the record as a
whole, the court finds that a reasonable jury could return a verdict for the nonmoving party.
Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 12324 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with
mere allegations or denial of the movant’s pleading, but instead must “set forth specific facts”
demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v.
Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that “sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’
differing versions of the truth at trial.”
Anderson, 477 U.S. at 249.
“Mere unsupported
speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat’l Ass’n of
Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
IV.
A.
ANALYSIS
The Report and Recommendation
In the Report and Recommendation, the Magistrate Judge determined that Plaintiffs
demonstrated a prima facie case of hostile work environment under § 1981. In reaching this
conclusion, the Magistrate Judge observed that Plaintiffs had presented sufficient evidence to
demonstrate that McMillan’s conduct–his frequent use of the word “nigger”–was (1) unwelcome,
race-based, and sufficiently severe and pervasive to alter the conditions of Plaintiffs’
9
employment and create an abusive environment and (2) imputable to Plaintiffs’ employer
because McMillan was the sole owner of all Corporate Defendants. (ECF No. 78 at 9–12.) As a
result, the Magistrate Judge recommended that “Defendants’ motion for summary judgment be
denied as to Plaintiffs’ hostile work environment claim.” (Id. at 13.)
As to the constructive discharge claim brought by Plaintiffs Dunlap, Good, Elam and
Neal, the Magistrate Judge was not persuaded that they showed either that (1) “McMillan’s
actions were intended to force any of them to quit” or (2) “McMillan’s use of racial epithets was
targeted at [t]h[e]m more than other employees or that it became increasingly worse during their
employment, such that it became intolerable close to their resignation.” (Id.) Accordingly, the
Magistrate Judge recommended that “Defendants be granted summary judgment on Plaintiffs’
claims of constructive discharge.” (Id. at 14.)
B.
Defendants’ Objections
Defendants first assert that the Magistrate Judge erred in denying summary judgment to
Defendant TNT Propane, Inc. (ECF No. 81 at 3.) Defendants assert that TNT Propane is
entitled to summary judgment on all Plaintiffs’ claims because “[a]t no time during the relevant
time-period were any of the Plaintiffs employed by TNT Propane.” (Id. (citing ECF No. 70-1 at
2, 5, and 15 at n.7).)
Defendants next assert that the Magistrate Judge erred when she found that Plaintiffs had
sufficiently satisfied a prima facie case of race-based hostile work environment. (Id. at 4.)
Defendants further assert that the Magistrate Judge erroneously relies on “Plaintiffs’ inconsistent
and contradictory testimony about the use of the term ‘nigger’ and the alleged incidents where
the Plaintiffs were called ‘nigger’” when Fourth Circuit precedent requires a race-based hostile
work environment to be shown “by accounts of specific dates, times or circumstances.” (Id. at 3
10
& 12 (citing Carter v. Ball, 33 F.3d 450, 458–59 (4th Cir. 1994)).) As a result of the foregoing,
Defendants argue that they are entitled to summary judgment on Plaintiffs’ hostile work
environment claim due to the aforementioned lack of evidentiary specificity coupled with
Plaintiffs’ failure to submit any evidence of adverse employment actions resulting from
McMillan’s conduct. (Id. at 14–15.)
C.
Plaintiffs’ Objections
Plaintiffs Dunlap, Good, Elam and Neal object to the Magistrate Judge’s
recommendation of summary judgment for Defendants on the constructive discharge claim.
(ECF No. 80 at 1.) Specifically, Plaintiffs assert that the Magistrate Judge erred “by requiring []
Plaintiffs to present direct evidence demonstrating that McMillan deliberately intended to force
each of them to resign.” (Id. at 3.) In this regard, Plaintiffs argue that they presented evidence
sufficient to demonstrate that McMillan acted with reckless indifference in creating an
intolerable working environment and “at some point in time it would be reasonably foreseeable
that each Plaintiff might become ‘fed up’ with a work environment permeated with racial slurs
and racially-inflammatory remarks and that they might resign.” (Id. at 5.)
Plaintiffs Dunlap, Good, Elam and Neal also assert that the Magistrate Judge erred by
concluding (1) “that Plaintiffs failed to show that McMillan’s epithets were targeted at them
more than other employees or that his harassment of them became increasingly worse during
their employment” and (2) “that Plaintiffs’ constructive discharge claims were precluded because
they ‘tolerated McMillan’s despicable behavior.’” (Id. at 5–6.)
Plaintiffs assert that their
evidence demonstrates receipt of “severe, sustained, and unabated” racial harassment by
McMillan that “when viewed in a light most favorable to [] Plaintiffs, give rise[s] to a factual
dispute regarding the objective intolerability of their working environment.” (Id. at 6–7 (citing,
11
e.g., Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1132-34 (4th Cir. 1995)).) Moreover,
“the fact that Plaintiffs may have put up with McMillan’s behavior for a period of time before
they resigned is not dispositive.” (Id. at 8 (citing El-Reedy v. Abacus Tech. Corp., C/A No.:
2:17-cv-0444 DCN, 2017 WL 3446910, at *5 (D.S.C. Aug. 7, 2017)).)
D.
The Court’s Review
In light of the parties’ respective positions, the court considers each of the claims relevant
to Defendants’ Motion for Summary Judgment in turn below.
1. The Status of TNT Propane, Inc. as a Defendant
In their Objections, Defendants assert that TNT Propane, Inc. is entitled to summary
judgment on Plaintiffs’ claims because none of Plaintiffs were ever employed by the company.
(ECF No. 81 at 3.) In response to Defendants’ assertion, Plaintiffs argue that Defendants neither
timely moved for summary judgment “regarding Plaintiffs’ claim that Defendants operated as an
‘integrated enterprise’ or single employer for purposes [of] liability under Section 1981” nor
made “any legal argument which would warrant entry of summary judgment on this issue.”
(ECF No. 82 at 2.)
Upon its review, the court observes that even though Defendants consistently maintained
that Plaintiffs were not employed by TNT Propane, Inc., Defendants never made a specific
request for summary judgment on behalf of TNT Propane, Inc. in their summary judgment
submissions. (See ECF No. 70-1 at 2, 4, 5 & 15 n.7.) Thus, there is merit to Plaintiffs’
suggestion that Defendants’ failed to timely move for summary judgment regarding TNT
Propane, Inc.
Notwithstanding the timeliness issue, Defendants’ entitlement to summary
judgment is undermined by their failure to provide legal opposition to Plaintiffs’ argument that
“McMillan operated [] [C]orporate Defendants as a single employer.” (ECF No. 74 at 2.)
12
In this regard, there are a “variety of tests by which a defendant who does not directly
employ the plaintiff may still be the plaintiff's ‘employer’” for civil rights purposes. Arallah v.
Thompson, 123 F. Supp. 3d 719, 729 (D. Md. 2015). For example, the “integrated employer
test” allows for a finding “that separate companies are ‘so interrelated that they constitute a
single employer’” based on an analysis of the following elements: ““(1) common management;
(2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of
common ownership/financial control.” Id. (quoting Hukill v. Auto Care, Inc., 192 F.3d 437, 442
(4th Cir. 1999)). The “joint employer test” also allows a court to determine whether multiple
entities are the employers of a plaintiff and requires consideration of the following factors:
(1) authority to hire and fire the individual; (2) day-to-day supervision of the
individual, including employee discipline; (3) whether the putative employer
furnishes the equipment used and the place of work; (4) possession of and
responsibility over the individual's employment records, including payroll,
insurance, and taxes; (5) the length of time during which the individual has
worked for the putative employer; (6) whether the putative employer provides the
individual with formal or informal training; (7) whether the individual's duties are
akin to a regular employee's duties; (8) whether the individual is assigned solely
to the putative employer; and (9) whether the individual and putative employer
intended to enter into an employment relationship.
Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 414 (4th Cir. 2015). Defendants did not
address either of these tests or their elements in the filings submitted to the court. Moreover,
Defendants did not provide the court with any legal support allowing it to disregard these tests
and award them summary judgment based on the simple assertion that Plaintiffs were never
employed by TNT Propane, Inc. Therefore, the court agrees with Plaintiffs that Defendants’
mere argument that none of Plaintiffs were employed by TNT Propane, Inc. is insufficient to
demonstrate error on the part of the Magistrate Judge.
Accordingly, the court overrules
Defendants’ Objection regarding TNT Propane, Inc.’s status as a Defendant in this matter.
13
2. Plaintiffs’ Claim for Hostile Work Environment
Plaintiffs allege that a hostile work environment existed at Corporate Defendants’
workplace based on McMillan’s use of the word “nigger.” “The elements of a hostile work
environment claim ‘are the same under either § 1981 or Title VII.’” Guessous v. Fairview Prop.
Invs., LLC, 828 F.3d 208, 221 (4th Cir. 2016) (quoting Spriggs v. Diamond Auto Glass, 242
F.3d 179, 184 (4th Cir. 2001)). “To demonstrate . . . a racially hostile work environment, a
plaintiff must show that there is ‘(1) unwelcome conduct; (2) that is based on the plaintiff's . . .
[race]; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of
employment and to create an abusive work environment; and (4) which is imputable to the
employer.’”7 Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (quoting Mosby-Grant v.
City of Hagerstown, 630 F.3d 326, 334 (4th Cir. 2010)). A work environment is hostile when
“the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult . . . that is
sufficiently severe or pervasive to alter the conditions of the victim's employment and create an
abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal
citations omitted).
To meet the causation element, a plaintiff must show that “but for” the protected
characteristic, he would not have been a victim of harassment. See Causey v. Balog, 162 F.3d
795, 801 (4th Cir. 1998). The “severe or pervasive” third element of a hostile work environment
claim “has both subjective and objective components.” Ocheltree v. Scollon Prods., Inc., 335
F.3d 325, 333 (4th Cir. 2003). First, a plaintiff must show that he “subjectively perceive[d] the
environment to be abusive.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993).
7
A plaintiff can establish a hostile work environment claim by direct evidence, or, as is more
common, by relying on the indirect, burden-shifting method set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Kasznski v. Thompson, 83 F. App’x 526, 527–28
(4th Cir. 2003).
14
Second, a plaintiff must demonstrate that the conduct was such that “a reasonable person in the
plaintiff’s position” would have found the environment objectively hostile or abusive. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998).
Actionable harassment occurs when the workplace is “permeated with discriminatory
intimidation, ridicule, and insult.” Harris, 510 U.S. at 21. Further, when analyzing the third
element, courts examine the totality of the circumstances, considering such factors as the
frequency of the discriminatory conduct and its severity; whether it is physically threatening or
humiliating or merely constitutes offensive verbal statements; and whether it unreasonably
interferes with an employee’s work performance. See Harris, 510 U.S. at 23; Hopkins v.
Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996); see also E.E.O.C. v. Sunbelt
Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (stating that complaints that would
objectively give rise to bruised or wounded feelings or incidents that are premised on nothing
more than rude treatment, callous behavior, or a routine difference of opinion and personality
conflict will not satisfy the severe or pervasive standard).
In this case, the underlying factual support for Plaintiffs’ claims is that McMillan, the
owner of Corporate Defendants, admittedly used the word “nigger” generally in the workplace
and allegedly used it in direct interactions with Plaintiffs, who are African-Americans.
McMillan denies that he understood “nigger” as being offensive to African-Americans or that his
use of the word might create a racially hostile work environment. (See ECF No. 74-2 at 13:25–
14:16.) In support of McMillan’s actions, Defendants argue Plaintiffs’ claims fail because they
cannot remember “specific dates, times or circumstances” of each instance of McMillan’s
conduct.
“Far more than a ‘mere offensive utterance,’ the word ‘nigger’ is pure anathema to
15
African–Americans.” Spriggs, 242 F.3d at 185. “No word in the English language is as odious
or loaded with as terrible a history.” Oladokun v. Grafton School, Inc., 182 F. Supp. 2d 483, 493
(D. Md. 2002). “Perhaps no single act can more quickly alter the conditions of employment and
create an abusive working environment than the use of an unambiguously racial epithet such as
‘nigger’ by a supervisor in the presence of his subordinates.” Rodgers v. Western–Southern Life
Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (citation and internal quotation marks omitted).
“Where such an abhorrent slur is alleged, there is no question that its use was offensive,
unwelcome, and racially motivated.” Roberts v. Fairfax Cty. Pub. Schs., 858 F. Supp. 2d 605,
610 (E.D. Va. 2012) (citing Shields v. Fed. Exp. Corp., 120 F. App’x 956, 961 (4th Cir. 2005)
(unpublished) (per curiam)). “Thus, the relevant question becomes whether the use of racial
epithets ‘so pervaded the work environment . . . that it was essentially transformed into an
atmosphere tinged with racial hostility and altered the conditions of [plaintiff's] employment.’”
Id.
After reviewing the totality of the conduct alleged by Plaintiffs, the court agrees with the
Magistrate Judge that Defendants are not entitled to summary judgment on Plaintiffs’ hostile
work environment claim on the basis of race. Importantly, each Plaintiff was able to recall one
specific incident8 where he was directly called a “nigger” by McMillan while also conveying
8
Elam testified that on a day occurring between October and December 2013, McMillan “looked
at me, he said, ‘Nigger, just sit right there for a little bit longer and I’ll be with you.’” (ECF No.
71-2 at 25:100:23–25.) Dunlap testified that on December 12, 2012, McMillan asked Dunlap to
return a bag of grits to McMillan because he was not “going to give them niggers anything.”
(ECF No. 71-1 at 23:92:3–4.) Thompson testified that when he returned to work from surgery in
2014, McMillan greeted Thompson stating “Nigger, I thought you was dead.” (ECF No. 71-5 at
5:20:18–19.) Good testified that McMillan called him “nigger” while at work in September or
October 2013 (ECF No. 71-3 at 13:51:11–14:53:19) and also during a weekend in 2013 when
they were together. (Id. at 11:42:23–12:46:13.) Finally, during the summer of 2012, Neal
testified that during a work-related phone call regarding the status of a truck he was driving,
McMillan stated “Nigger, it sounds like you’ve done broke the drive shaft.” (ECF No. 71-4 at
9:36:15–16.)
16
how his usage of the word was generally a common occurrence permeating the work
environment. On this basis, the court is persuaded that the conduct Plaintiffs characterize as
harassment rises to the level required by law to establish a hostile work environment. See
E.E.O.C. v. Central Wholesalers, Inc., 573 F.3d 167, 176 (4th Cir. 2009) (finding alleged genderbased and race-based harassment was sufficiently severe or pervasive where co-workers referred
to women as bitches and a co-worker in a cubicle next to the plaintiff had Playboy items,
watched pornography in front of her, had a pornographic screensaver, and placed a screwdriver
in a Halloween decoration in a sexual manner and where co-workers used racial epithets, some
directed at the plaintiff, and two co-workers “kept blue-colored mop-head dolls in their offices
which they had hanging by nooses tied around the dolls’ necks”); Spriggs, 242 F.3d at 184–86
(holding that supervisor’s constant, even daily, use of racial epithets was sufficiently severe or
pervasive to survive summary judgment); Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d
1126, 1131 (4th Cir. 1995) (finding the alleged harassment was sufficiently severe or pervasive
because an Iranian plaintiff was called “names like ‘the local terrorist,’ a ‘camel jockey’ and ‘the
Emir of Waldorf’” on an almost daily basis). Plaintiffs have met their burden of establishing that
the alleged treatment they received from McMillan was because of their race. Plaintiffs have
further demonstrated that McMillan’s conduct was objectively hostile or abusive.
Finally,
McMillan’s actions are imputable to Corporate Defendants because he is their owner. Based
upon the foregoing, Plaintiffs have presented sufficient evidence to raise a genuine issue of
material fact as to whether McMillan subjected Plaintiffs to a hostile work environment based on
their race in violation of § 1981. Therefore, Defendants’ Objection to the Magistrate Judge’s
recommendation as to Plaintiff’s claim for hostile work environment is overruled. Accordingly,
Defendants’ Motion for Summary Judgment on Plaintiffs’ claim for hostile work environment is
17
denied.
3. Plaintiffs’ Claim for Constructive Discharge
Plaintiffs Dunlap, Good, Elam, and Neal allege that they were constructively discharged
from their employment by Corporate Defendants based on McMillan’s use of the word “nigger.”
In the Fourth Circuit, “[a]n employee is entitled to relief absent a formal discharge, ‘if an
employer deliberately makes the working conditions intolerable in an effort to induce the
employee to quit.’” Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 186 (4th Cir. 2004)
(quoting Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir. 1995)). The analysis for
constructive discharge claims brought pursuant to 42 U.S.C. § 1981 and Title VII is the same.
Parker v. Miller & Long Constr. Co., Inc., No. 5:10-CV-282-D, 2010 WL 5478466, at *1 n.1
(E.D.N.C. Dec. 30, 2010) (citing Honor, 383 F.3d at 186–87).
“A plaintiff alleging constructive discharge must [] prove two elements: deliberateness of
the employer’s action, and intolerability of the working conditions.” Whitten v. Fred's Inc., 601
F.3d 231, 248 (4th Cir. 2010) (citations omitted). “To prove deliberateness, the plaintiff must
prove ‘that the actions complained of were intended by the employer as an effort to force the
employee to quit.’” Id. (quoting Martin, 48 F.3d at 1354). “To act deliberately . . . requires
intent . . . to force an employee to leave . . . [which] [i]ntent may be inferred through
circumstantial evidence, including a failure to act in the face of known intolerable conditions, . . .
.” Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985) (quoting Holsey v. Armour
& Co., 743 F.2d 199, 209 (4th Cir. 1984); J.P. Stevens & Co., Inc. v. NLRB, 461 F.2d 490, 494
(4th Cir. 1972)); see also Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1356 (4th Cir. 1995)
(Employer may “prove her employer's intent by demonstrating that her resignation was the
“reasonable foreseeable consequence” of the employer's conduct . . . .”). “Intolerability . . . is
18
assessed by the objective standard of whether a ‘reasonable person’ in the employee’s position
would have felt compelled to resign.” Bristow, 770 F.2d at 1255 (citations omitted). “An
employee is protected from a calculated effort to pressure him into resignation through the
imposition of unreasonably harsh conditions, in excess of those faced by his co-workers.” Id.
At the outset, the court observes that unlike his co-Plaintiffs, Plaintiff Elam did not testify
that McMillan’s conduct formed the basis for his resignation.
Instead, Plaintiff Elam
consistently stated that his need to make more money is why he quit his job with Defendants.
(E.g., ECF No. 71-2 at 11:44:13–17 & 19:74:8–11.) As a result, the court grants summary
judgment to Defendants on Plaintiff Elam’s claim for constructive discharge.
Plaintiffs Dunlap, Good and Neal do present evidence that they quit their jobs in response
to McMillan’s conduct. (See ECF No. 71-1 at 15:59:8–16:61:14; ECF No. 71-3 at 19:76:23–
20:78:10; ECF No. 71-4 at 4:16:24–5:17:10.) Construing this evidence and all other evidence
presented in the light most favorable to Plaintiffs Dunlap, Good and Neal, the court finds that
McMillan’s actions create an inference of deliberateness. More specifically, there is sufficient
evidence from which a jury could find that the resignations of Plaintiffs Dunlap, Good and Neal
were a reasonable foreseeable consequence of McMillan’s conduct. The court further finds that
the evidence presented is sufficient to raise a factual issue about whether the conditions of
Plaintiffs Dunlap, Good and Neal’s employment were so intolerable that a reasonable person
would have found working for Defendants intolerable. These issues for the jury include a
determination of what weight, if any, should be given to any delay of time that occurred before
each Plaintiff’s resignation. See Green v. Brennan, 136 S. Ct. 1769, 1778 (2016) (“An employee
who suffered discrimination severe enough that a reasonable person in his shoes would resign
might nevertheless force himself to tolerate that discrimination for a period of time [and] He
19
might delay his resignation until he can afford to leave.”). Therefore, the court sustains the
Objections to the Magistrate Judge’s Report and Recommendation of Plaintiffs Dunlap, Good
and Neal as to their claim for constructive discharge. Accordingly, the court denies Defendants’
Motion for Summary Judgment as to the claim for constructive discharge brought by Plaintiffs
Dunlap, Good and Neal.
V.
CONCLUSION
Upon careful consideration of the record and the parties’ arguments, the court hereby
DENIES Defendants’ Motion for Summary Judgment as to Plaintiffs’ claim for hostile work
environment and DENIES Defendants’ Motion for Summary Judgment as to the claim of
Plaintiffs Dunlap, Good and Neal for constructive discharge.
(ECF No. 70.)
The court
GRANTS Defendants’ Motion for Summary Judgment on Plaintiff Elam’s claim for
constructive discharge. The court ACCEPTS IN PART the Magistrate Judge’s Report and
Recommendation (ECF No. 78) and incorporates it herein by reference.
The parties are instructed to confer, agree and propose a fourth amended scheduling order
by December 20, 2017, in preparation for the trial of this matter. The trial of this matter will
occur no later than August 2018.
IT IS SO ORDERED.
United States District Judge
December 12, 2017
Columbia, South Carolina
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