Mack v. Detyens Shipyards Inc et al
ORDER AND OPINION adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting in part and denying in part 27 Motion for Summary Judgment. The Court GRANTS Defendants' motion for summary judgment as to Plaintiffs hostile work environment and negligent supervision claims. The Court DENIES Defendants' motion as to Plaintiffs retaliation claim and as to Defendants' arguments based on after-acquired evidence or Detyens' s lack of adirect employment relationship with Plaintiff. Signed by Honorable Richard M Gergel on 11/29/2017.(cwhi, )
IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Detyens Shipyards, Inc., and Hightrak,
d/b/a Hitrak Staffing, Inc.,
Civil Action No. 2:16-1323-RMG
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that Defendants' motion for summary judgment be granted in part and
denied in part. For the reasons set forth below, the Court adopts the Report and Recommendation.
Plaintiff alleges that in March 2015 , she began working at Detyens Shipyards through
Hitrak Staffing, an employment agency. On June 14, 2015, Plaintiff bent over while was working
in the cargo hold of a ship. Plaintiff testified that another employee, Herman Johnson, then
"grabbed me from my vagina to my rear end." (Dkt. No. 30-1.) Plaintiff testified that she
irrimediately reported what had happened to her supervisor, who reported it to management.
Management met with Plaintiff that same day, and again on the following day. After she met with
management, Plaintiff went back to the ship and saw Johnson "being escorted off the ship." (Id.)
Plaintiff testified that it was her understanding that he was terminated "that very day" and that she
had never seen him again since. (Id.) Two weeks later, Plaintiff was terminated. Plaintiff claims
her termination was in retaliation for her harassment claim. Defendants claim Plaintiff was
terminated for a confrontational response to being told to cease prohibited use of a cell phone in a
break room at the work site.
On April 28, 2016, Plaintiff filed the present action, asserting claims for sexual harassment
in violation of Title VII of the Civil Rights Act of 1964 and for negligent supervision under South
Carolina law. Defendants moved for summary judgment on August 29, 2017, and on November
3, 2017, the Magistrate Judge recommending granting Defendants' motion in part and denying it
in part. Defendants filed timely objections to the Report and Recommendation. Plaintiff filed no
Report and Recommendation of the Magistrate Judge
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. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de nova
determination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(l).
When a proper objection is made to a particular issue, "a district court is required to
consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional evidence is committed to its discretion, and
any refusal will be reviewed for abuse. " Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002).
"[A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored," though
the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v.
Jackson , 831 F. Supp. 2d 911, 914 (M.D.N .C. 2010) (listing cases).
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 '! Red Cross, 101F.3d1005,
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.
Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that
give rise to a genuine issue. Id. 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.
CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
Hostile Work Environment
Plaintiff asserts a claim for "hostile work environment and sexual harassment." (Dkt. No.
1 ~ 26.) To prove that claim, Plaintiff must show the offending conduct was unwelcome, based
on a factor covered by Title VII, and sufficiently severe or pervasive to alter the conditions of
Plaintiffs employment and create an abusive work environment. Plaintiff also must show a basis
for imposing liability on the employer. Guessous v. Fairview Prop. Investments, LLC, 828 F.3d
208, 221 (4th Cir. 2016). Where, as here, the harassing employee is the victim's coworker, the
employer may be liable only if it was negligent in controlling the working conditions at the facility
or failed to take prompt and effective remedial action once it was aware of the allegedly harassing
behavior. Vance v. Ball State University, 133 S.Ct. 2434, 2439 (2013).
As the Magistrate Judge determined, Plaintiff presents no evidence suggesting Defendants
were negligent in controlling the working conditions at the work site and Plaintiff admits
Defendants took prompt and effective remedial action by terminating Johnson.
therefore adopts the Magistrate Judge's conclusion that Defendants are entitled to summary
judgment on Plaintiffs hostile work environment claim.
Plaintiff also asserts a claim that she was unlawfully retaliated against by Defendants for
reporting Johnson' s misbehavior. To survive summary judgment, Plaintiff must have evidence
showing that she engaged in activity protected under Title VII, that Defendants took an adverse
employment action against her, and that a causal connection exists between the protected activity
and the adverse action. Lettieri v. Equest, Inc., 478 F.3d 640, 650 (4th Cir. 2007). Further, if
Defendants can produce a legitimate, non-discriminatory reason for their action, Plaintiff must
demonstrate Defendants' proffered reason is pretextual. Ennis v. National Ass 'n of Business and
Educational Radio, Inc., 53 F.3d 55 , 58 (4th Cir. 1995)
There is no dispute that Plaintiff engaged in a protective activity or that Defendant took an
adverse employment action against her. Defendant denies that Plaintiff has evidence of a causal
connection between the activity and the adverse action, but Defendants do not move for summary
judgment on that basis. Plaintiff was terminated two weeks after reporting Johnson' s conduct,
which is near enough in time to be evidence of a causal connection. See, e.g., Mickey v. Zeidler
Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). Defendants, however, assert Plaintiff was
legitimately terminated for her response to a directive to cease unauthorized cell phone use.
The Magistrate Judge determined that there is a genuine dispute over the reason for
Plaintiffs termination. Although Defendants assert that Plaintiff was terminated because of a
confrontational response to a supervisor who had instructed her to cease unauthorized cell phone
use while she was in a break room, Plaintiff testified that never happened. (See Dkt. No. 30-1.) It
appears undisputed that Plaintiff had no prior warnings or disciplinary history, and that employees
are not normally terminated for a first offense of using a cell phone in the break room. The Court
agrees with the Magistrate Judge that there is a genuine dispute of fact regarding the reason for
Plaintiffs termination, which is a fact material to Plaintiffs retaliation claim.
Defendants object that, as a matter of law, a self-serving denial is insufficient to create a
genuine dispute of material fact. Defendants' objection is without merit. It is true that a "selfserving opinion .. . cannot, absent objective corroboration, defeat summary judgment." Williams
v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004). That, however, is entirely irrelevant here.
The relevant allegation here is not Plaintiffs opinion that she was terminated in retaliation for
reporting Johnson. Rather, it is her sworn testimony regarding facts of which she has direct,
personal knowledge-her behavior in the break room on a certain day at a certain time. If other
witnesses dispute her account of the event, that is an issue of credibility issue for a jury to decide.
The Court therefore adopts the Magistrate Judge's conclusion that Defendants are not
entitled to summary judgment on Plaintiffs retaliation claim.
Defendants also argue that they are entitled to summary judgment because Plaintiff
provided false and misleading information on her job application with Hitrak. Specifically, she
failed to disclose various criminal convictions, which Defendants learned about only after this
action commenced. Defendants argue the after-acquired evidence doctrine therefore precludes
liability. See Lewis v. Fisher Serv. Co., 495 S.E.2d 440, 445 (S.C. 1998) (no liability where "the
employee' s wrongdoing was of such severity that the employee in fact would have been terminated
on those grounds alone if the employer had known of it at the time of the discharge").
The Magistrate Judge, however, concludes that under Fourth Circuit case law, the afteracquired evidence doctrine is not a bar to liability but only limits potential damages. Harmon v.
C. B. Squared Services, Inc., 624 F. Supp. 2d 459, 469 (E.D. Va. 2009)(citing Russell v. Microdyne
Corp., 65 F.3d 1229, 1238 (4th Cir. 1995)). Defendants have not objected to the Magistrate
Judge ' s conclusion on this issue, with which the Court fully agrees.
Plaintiff alleges Defendants were negligent in failing to supervise and correct actions of
their employees when they should have known of improper conduct. The Magistrate Judge, after
an extensive analysis, concludes that claim is barred by the exclusive remedy provision of the
South Carolina Workers Compensation Act. See S.C. Code§ 42-1-540. Plaintiff has not objected
to the Magistrate Judge's analysis and conclusion, which the Court adopts. Plaintiff has not alleged
Johnson was Defendant's alter ego, which is required for the specific intent to injure exception to
the exclusive remedy provision. Regardless, such an allegation would not be plausible, as it is
undisputed that Johnson was a worker, not a corporate owner or officer. The Court therefore
adopts the Magistrate Judge ' s recommendation that Defendants' motion for summary judgment
be granted as to the negligent supervision claim.
Defendant Detyens Shipyards argues it should not be a defendant in this action because
Hitrak Staffing was Plaintiffs employer.
Plaintiff responds that Defendants qualify as joint
employers for purposes of her claims. The joint employment doctrine "prevents those who
effectively employ a worker from evading liability by hiding behind another entity, such as a
staffing agency." Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 410 (4th Cir. 2015).
Butler provides nine factors to consider when determining whether a person is jointly employed
by two entities: 1) authority to hire and fire the individual; 2) day-to-day supervision of the
individual; 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 ohime during which the individual has worked for the putative
employee; 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.
Here, Detyens had day-to-day supervision of Plaintiff, it furnished the equipment used and
the place of work, and Plaintiff was assigned solely to Detyens. Further, it is difficult to imagine
that Detyens did not provide any formal or informal training or that Detyens did not have authority
to discharge Plaintiff from her duties at Detyens. Given that most Butler factors support finding
joint employment in this case, the Court agrees with the Magistrate Judge ' s conclusion that
Detyens has not met its burden, as the movant, to show it is undisputed that the joint employment
doctrine does not apply here. The Court therefore adopts the Magistrate Judge ' s recommendation
to deny the motion for summary judgment as to the argument that Detyens' lacked a direct
employment relationship with Plaintiff.
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge (Dkt. No. 33) as the Order of the Court and GRANTS IN PART AND DENIES
IN PART Defendants' motion for summary judgment (Dkt. No. 27). The Court GRANTS
Defendants' motion for summary judgment as to Plaintiffs hostile work environment and
negligent supervision claims. The Court DENIES Defendants' motion as to Plaintiffs retaliation
claim and as to Defendants' arguments based on after-acquired evidence or Detyens' s lack of a
direct employment relationship with Plaintiff.
AND IT IS SO ORDERED.
· istrict Court Judge
November ').,'1 , 2017
Charleston, South Carolina
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