Cole v. Ballard et al

Filing 63

ORDER RULING ON REPORT AND RECOMMENDATION adopting 56 Report and Recommendation, granting 28 Motion for Summary Judgment filed by Premier Constructors, Inc. Signed by Honorable Margaret B Seymour on 3/30/2017. (mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
ORLANDO COLE,
Plaintiff,
v.
PREMIER CONSTRUCTORS, INC. and
MARTY BALLARD,
Defendants,

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Civil Action No.: 3:15-cv-01923-MBS

ORDER AND OPINION

Plaintiff Orlando Cole (“Plaintiff”), filed the instant action alleging racial harassment and
constructive discharge pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. Sections 2000e, et seq., against his former employer, Premier Constructions, Inc.
(“Premier”), and another employee, Marty Ballard (“Ballard’). ECF No. 1
I. RELEVANT FACTUAL AND PROCEDURAL INFORMATION 1
Plaintiff is an African-American. He worked as an electrician at Premier from
approximately August 25, 2012, until January 11, 2013. Id. at 2. During that time, Plaintiff
worked under the supervision of Marty Ballard, who served as the foreman of Plaintiff’s crew.
Plaintiff alleges that, not long after beginning his work on the electrical crew, Ballard began
making racial remarks about African-Americans, specifically using racially offensive epithets.
Id. Plaintiff claims that, as time went on, Ballard began directing the racial epithets directly at
Plaintiff, often in the presence of other members of the crew. Id. Between late December 2012
and early January 2013, Plaintiff spoke with his Premier Project Manager James Oliver to alert
him of Ballard’s conduct. ECF No. 51 at 2. There is no record of whether Oliver spoke to Ballard
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The following facts are either undisputed or viewed in the light most favorable to Plaintiff.
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about the issue; however, it is undisputed that after Plaintiff contacted Oliver, Ballard ceased to
make racial remarks for a few days.
After a short period of relief, Plaintiff claims that Ballard began to make racially
offensive statements again and added commentary on stereotypes concerning African-Americans
and their work ethic. Id. at 1. Plaintiff again went to Oliver to alert him of the issue, and Oliver
notified one of the owners of the company, Freeman Bell, who is also African-American. Id. at
2. Once notified, the three men and another employee of Premier met to discuss the issue further.
During that meeting, Plaintiff told Bell and Oliver that he had a video recording on his cell phone
of Ballard’s racial remarks; however, he only played a portion of the recordings. ECF No. 28-4
at 10. Plaintiff later reflected that he did not show the recordings in their entirety because he
believed that someone in the meeting would attempt to delete the recordings from his phone. Id.
Bell informed Plaintiff that he would speak to Ballard, and that Premier had zero
tolerance for discrimination or harassment. At the conclusion of the meeting, Bell instructed
Plaitniff that he would further investigate the issue, and instructed Plaintiff to return to work the
next day. ECF No. 51-1 at 17. Plaintiff asserts that he was unable to return to what he deemed to
be a hostile work environment. As a result, he resigned the next day, January 11, 2013. ECF No.
51 at 2.
On February 10, 2013, Plaintiff filed an Initial Charge of Discrimination with the South
Carolina Human Affairs Commission. ECF NO. 28-1 at 4. The Department of Employment and
Workforce completed a fact finding interview and subsequently denied Plaintiff’s claims for
unemployment benefits. ECF No. 28-7. Plaintiff appealed the decision to the Appeal Tribunal.
On May 22, 2013, following a hearing on the issue, the tribunal affirmed the determination and
denied Plaintiff’s request for unemployment benefits, finding that he voluntarily resigned his

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position with Premier. ECF No. 28-9. Next, Plaintiff appealed to the Appellate Panel, where the
decision to deny him benefits was again affirmed. Id. ECF No. 28-8.
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”). On September 4, 2014, the EEOC issued a Determination notifying
Plaintiff of his right to sue. ECF No. 51-23. The present action was filed on May 6, 2015 alleging
intentional infliction of emotional distress, (2) racial harassment under Title VII, and (3)
constructive discharge under Title VII. On August, 5, 2016, Defendants filed a motion for
summary judgment to which Plaintiff replied in opposition on October 31, 2016. ECF No. 28,
51. Following Defendants motion for summary judgment, Plaintiff withdrew his intentional
infliction of emotional distress claim. ECF No. 51 at 3, n. 1.
Pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to
United States Magistrate Judge Paige J. Gossett for pre-trial handling. On January 26, 2017, the
Magistrate Judge issued a Report and Recommendation (“Report”), recommending Defendants
motion for summary judgment be granted. ECF No. 56. Plaintiff filed objections to the Report on
February 13, 2017, to which Defendants filed a reply on February 27, 2017. ECF No. 61, 62.
II. LEGAL STANDARDS
A. Magistrate Review
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 objections
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.

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Colonia Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983); Opriano 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. 28 U.S.C. § 636(b)(1).
B. Summary Judgment
Pursuant to Federal Rules of Civil Procedure Rule 56(a), the court shall grant summary
judgment if the moving party shows that there is no genuine dispute as to any material fact and is
entitled to judgment as a matter of law. The evidence presents a genuine issue of material fact if
a “reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 24, 251-52 (1986). Any inference drawn from the facts should be viewed in the
light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655
(1962). The party seeking summary judgment bears the initial burden of demonstrating to the
district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S
317-23 (1986). Once the moving party makes this showing, the opposing party must set forth
specific facts showing there is a genuine issue of fact.
III. DISCUSSION
A. Harassment and Hostile Work Environments Under Title VII
Title VII makes it unlawful for employers to discriminate against an individual based on
race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2(a)(1). To that end, employers
are prohibited from requiring individuals to work in hostile work environments. Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 272 (4th Cir. 2015). A work environment is hostile when
“the workplace [is]. . . permeated with discriminatory behavior that is sufficiently severe or

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pervasive to create a discriminatorily hostile or abusive working environment.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 17 (1993).
To establish a prima facie case for a hostile work environment claim under antidiscrimination law, a claimant must show that “(1) he experienced unwelcome harassment; (2)
the harassment was based on his race, color, religion, national origin, or age; (3) the harassment
was sufficiently severe or pervasive to alter the conditions of his employment and to create an
abusive atmosphere; and (4) there is some basis for imposing liability on the employer.” 2 Baqir
v. Principi, 434 F.3d 733, 746 (4th Cir. 2006). “Liability may be imputed to the employer if the
employer had actual or constructive knowledge of the existence of a hostile working
environment and took no prompt and adequate remedial action.” Amirmokri v. Baltimore Gas &
Elec. Co., 60 F.3d 1126, 1130 (4th Cir. 1995). Further, to show the harassment was sufficiently
severe or pervasive to alter the conditions of employment, a plaintiff must show “that he
perceived, and a reasonable person would perceive, the work environment to be abusive.” Id. at
1131. When the alleged harassment is between coworkers, liability may be imposed on an
employer “if it knew or should have known about the harassment and failed to take effective
action to stop it.” Ocheltree v. Scollon Prod., Inc., 335 F.3d 325, 334 (4th Cir. 2003)(en banc).
In the Report, the Magistrate Judge found that Plaintiff “has failed to forecast evidence
from which a reasonable factfinder could infer that Premier failed to take action to stop the
harassment once Premier knew of it or that Premier failed to ‘respond with remedial action
reasonably calculated to end the harassment.’” ECF No. 56 at 10 (EEOC v. Sunbelt Rentals, Inc.,
521 F.3d 306, 319 (4th Cir. 2008). Plaintiff objects to this finding, arguing that Premier’s
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As the Magistrate Judge notes, Defendants argue, and Plaintiff does not refute that Defendant
Ballard is not a “supervisor” for the purposes of Title VII because Ballard does not have the
authority to hire, fire, promote, demote, transfer, or discipline employees at Premier. See Vance
v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013); See also, ECF No. 56 at n. 5.
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suggestion that Plaintiff return to work with the man whom he claimed harassed him was not a
reasonable remedy. Instead, Plaintiff asserts, “A reasonable employer intent on completing an
investigation and intent on making proper remedial action would have offered Plaintiff leave
with pay as an alternative to returning to work with his harasser who was aware of his racial
harassment allegations.” ECF No. 61 at 4.
As the Magistrate Judge notes, however, an employer is not required to impose the
specific remedial actions asserted by an employee who alleges discriminatory conduct. ECF 56
at 9. Indeed, Plaintiff cannot be sure how Premier would have proceeded with an investigation
into the matter because he resigned the day after meeting with Premier’s owner. While Plaintiff
argues that the meeting with Mr. Bell was not the first time that he raised the issue, it was, in
fact, the first time that Mr. Bell was informed of the problem. Evidence shows that Mr. Bell
informed Plaintiff that the company does not tolerate racial discrimination and that he would
look into the matter further. Mr. Bell also gave Plaintiff his personal cell phone number and told
him to call him if any other issues were to occur. ECF No. 51-1 at 21, ECF No. 28-4 at 22.
Additionally, Mr. Bell states, and Plaintiff does not dispute, that Mr. Bell attempted to put
Plaintiff on another project; however, there were no more projects available that would allow
Plaintiff to work in his areas of specialization. Id. The court finds Plaintiff is unable to establish
a prima facie case for employment discrimination because he is unable to show that there is some
basis for imposing liability on his former employer.
B. Constructive Discharge
To make a claim for constructive discharge, an employee must show that “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, 187 (4th Cir. 2004). “Intent may be

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shown by evidence that an employee’s resignation was the reasonably foreseeable consequence
of the employer’s conduct . . . [F]or example, intent may be inferred from a failure to act in the
face of known intolerable conditions.” Amirmokri v. Baltimore & and Elec. Co., 60 F.3d 1126,
1133 (4th Cir. 1995).
The Magistrate Judge found that Plaintiff “has presented no evidence that Premier took or
failed to take any action in a deliberate effort to force him to resign.” ECF No. 56 at 11. Plaintiff
objects to this finding, again, maintaining, “Premier had the power to and the reason to place
Cole on leave with pay but instead chose to force Cole back to work with his harasser
notwithstanding the admittedly incomplete state of its investigation.” ECF No. 61 at 5. Plaintiff’s
objection is almost identical to the objection made to the Magistrate Judge’s finding that Plaintiff
failed to establish that Premier did not take remedial steps to end the alleged harassment. As
detailed above, the record shows that Defendants took the matter seriously and intended to
continue looking into the incident. Ultimately, Plaintiff’s constructive discharge claim fails
because Plaintiff is unable to establish that his decision to quit was the reasonably foreseeable
consequence of Defendant’s actions.
As a result, the court adopts the Magistrate Judge’s Report and Recommendation.
Defendant Ballard is dismissed WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m) 3.
Defendant’s motion for summary judgment, ECF No. 28, is GRANTED, and Plaintiff’s
Complaint, ECF No. 1, is DISMISSED WITH PREJUDICE.

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As the Magistrate Judge notes, it appears that Defendant Ballard was never served with
process, See Order, ECF No. 53).
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IT IS SO ORDERED.

/s/Margaret B. Seymour
Margaret B. Seymour
Senior United States District Judge

Columbia, South Carolina
March 30, 2017

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