Strickland v. Ace Partnership of Charleston SC, The

Filing 60

ORDER RULING ON REPORT AND RECOMMENDATION adopting 52 Magistrate Judge Hendricks' Report and Recommendation denying 33 Defendant's Motion for Summary Judgment, filed by Acevedo Restaurants Inc Signed by Honorable Richard M Gergel on 2/27/2014. (sshe, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Cheree Strickland,
Plaintiff,

v.
Acevedo Restaurants, Inc.,
Defendant.

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NO.2:11-cv-2566-RMG

ORDER

This matter comes before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge recommending that the Court deny Defendant's motion for summary judgment.
(Dkt. No. 52). For the reasons set forth below, the Court agrees with and adopts the R&R as the
order ofthe Court.
Background

Plaintiff filed this employment discrimination action in September 2011 pleading claims
for hostile work environment and retaliation under Title VII of the Civil Rights Act. (Dkt. No.
1).

Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B) DSC, this matter was

automatically referred to a Magistrate Judge for pretrial proceedings. Defendant then filed a
motion for summary judgment on Apri122, 2013. (Dkt. No. 33). Plaintiff then filed a response
in opposition to the motion.

(Dkt. No. 36).

The Magistrate Judge then issued an R&R

recommending the Court deny the motion for summary judgment. (Dkt. No. 52). Defendant
then filed an objection to the R&R. (Dkt. No. 58).
Legal 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

this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R&R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions."

Ia.

Summary judgment is appropriate if a party "shows that there is no genuine dispute as to
any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). In other words, summary judgment should be granted "only when it is clear that there is
no dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities
in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d
1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact.

Celotex Corp. v.

Catrett, 477 U.S. 317,323 (1986).
Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his
pleadings.

Ia.

at 324. Rather, the non-moving party must demonstrate that specific, material

facts exist that give rise to a genuine issue.

Ia.

Under this standard, "[c]onclusory or speculative

allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving
party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting

Phillips v. CSXTransp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

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Discussion

After review of the record, the R&R, and Defendant's objections, the Court finds that the
Magistrate Judge ably applied the law to the facts of this case and therefore agrees with and
adopts the R&R as the order of the Court. Plaintiff makes three objections to the R&R. First,
that Plaintiff cannot establish a prima facie case for retaliation because too much time passed
from her initial complaint of discrimination to her ultimate dismissal from employment. Second,
that Plaintiff cannot establish a prima facie case for harassment because the alleged conduct was
not sufficiently "severe or pervasive." Finally, Defendant argues that Plaintiff cannot establish a
prima facie case for harassment because the alleged conduct was not imputable to Defendant.
The Court addresses each objection in tum.

Retaliation
Facts relevant to the retaliation claim, stated in a light most favorable to Plaintiff, show
that Plaintiff made a complaint of harassment to a supervisor in December 2008. Subsequently,
Plaintiff made another complaint of harassment to an assistant manager in June 2009. Defendant
then fired Plaintiff within a day or two of the complaint to the assistant manager.
To establish a prima facie case of retaliation, a plaintiff must show "(1) engagement in a
protected activity; (2) adverse employment action; and (3) a causal link between the protected
activity and the employment action." Coleman v. Md Ct. ofApp., 626 F.3d 187, 190 (4th Cir.
2010). The discharge of an employee soon after the employee engages in protected activity can
be strongly suggestive of retaliatory motive and is therefore indirect proof of causation. Carter

v. Ball, 33 F.3d 450,460 (4th Cir. 1994).
Defendant argues that Plaintiff cannot satisfy the causation element of the prima facie
case because if Defendant had a retaliatory mindset it would have fired Plaintiff after the first

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complaint in December 2008. The Court is not persuaded by this argument, nor does Defendant
cite any cases to support it. Indeed, it seems it would frustrate the purpose of Title VII's anti­
retaliation provision if an employer could avoid liability for future instances of retaliation simply
by tolerating an employee's first complaint for a sufficient period. Therefore, the Court agrees
with the Magistrate Judge that Plaintiff's claim for retaliation withstands the motion for
summary judgment.
Hostile Work Environment

To state a prima facie claim for hostile work environment based on sex, a plaintiff must
establish "that the offending conduct (1) was unwelcome, (2) was based on her sex, (3) was
sufficiently severe or pervasive to alter the conditions of her employment and create an abusive
work environment, and (4) was imputable to her employer." Ocheltree v. Scollon Prods., Inc.,
335 F.3d 325, 331 (4th Cir. 2003).

Defendant asserts Plaintiff cannot satisfy the last two

elements.
The third element addresses the nature and extent of the harassing behavior.

In

determining whether the alleged harassment of an employee is sufficiently severe or pervasive to
bring it within Title VII's scope, a court must examine all the circumstances, including "the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17,23 (1993). No single
factor is dispositive and the Court must examine the circumstances in their entirety. Id. at 23.
The employee must also subjectively perceive the environment to be abusive. Id. at 21.
Taken in a light most favorable to Plaintiff, the Court finds there is a genuine issue of fact
whether the conduct to which Plaintiff was subjected was severe or pervasive and not the

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"ordinary tribulations of the workplace." Ocheltree, 335 F.3d at 333. The Magistrate Judge
accurately summarizes the record in the R&R, and the Court need not repeat the many incidents
of harassment stated there. Despite the alleged incidents, Defendant points out that Plaintiff
acknowledged at her deposition that she was not physically afraid at work, was able to
accomplish her work tasks, and did not socialize with other workers because she stayed in her
own work area. These statements, however, do not alter the Court's conclusion. As stated
above, the Court must view the evidence in a light most favorable to Plaintiff. Here, the fact that
Plaintiff isolated herself and did not socialize could be attributed to a fear of harassment and the
"ganging up" which she did not "really want to be a part of' and reflect a hostile work place.
(Dkt. No. 33-2 at 97).

Therefore, the Court agrees, after reviewing the record, with the

Magistrate Judge that the evidence presented in this case is sufficient to establish a genuine issue
of fact regarding the third element of the prima facie case.
Finally, Defendant asserts that the conduct of the alleged harasser, Plaintiffs manager
Barney Hudson, is not imputable to it. The Magistrate Judge properly cited a recent Supreme
Court decision, Vance v. Ball Slale University, 133 S. Ct. 2434,2443 (2013), in which the Court
stated when an employer would be held vicariously liable for the actions of an alleged harasser.
The Court held:
an employer may be vicariously liable for an employee's unlawful harassment
only when the employer has empowered that employee to take tangible
employment actions against the victim, i.e., to effect a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change
in benefits.

ld (internal quotations omitted). Defendant does not claim that Mr. Hudson lacked the authority
described in Vance.

Rather Defendant's argument regarding Defendant's liability for Mr.

Hudson's conduct relies on Andrade v. Mayfair Management, 88 F.3d 258 (4th Cir. 1996).
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However, the Supreme Court overruled the standard applied in that case in Faragher v. City of

Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998). See Smith v. First Union Nat 'I Bank, 202 F.3d 234, 244 (4th Cir. 2000) (recognizing
overruling of Andrade). Thus, Defendant's argument regarding the fourth element of the prima
facie case is unavailing.
Conclusion

For the reasons set forth above, the Court agrees with and adopts the R&R as the order of
the Court. (Dkt. No. 52). Accordingly, the Court denies Defendant's motion for summary
judgment. (Dkt. No. 33).

AND IT IS SO ORDERED.

Richard Mark
United States Distric Court Judge
February 27,2014
Charleston, South Carolina

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