Todd v. Federal Express Corporation et al

Filing 243

ORDER RULING ON REPORT AND RECOMMENDATION: The defendants' motion for summary judgment (Doc. # 203 ) is GRANTED as to the plaintiff's claims for (1) age discrimination based on disparate treatment pursuant to the Ag e Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and S.C. Code Ann. § 1-13-80; (2) gender discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and S.C. Code
67; 1-13-80; (3) retaliatory discharge pursuant to the ADEA, Title VII, and S.C. Cod Ann. § 1-13-80; (4) defamation; and (5) intentional infliction of emotional distress. The defendants' motion for summary judgment (Doc. # 203 ) is DENIED as to the plaintiff's claim for sexual harassment based on a hostile work environment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and S.C. Code Ann. § 1-13-80. Signed by Honorable Terry L Wooten on 9/12/2012. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Dannetta Todd,

)
)
Plaintiff,
)
)
vs.
)
)
Federal Express Corporation and
)
FedEx Express,
)
)
Defendants.
)
____________________________________)

Civil Action No. 4:09-cv-1501-TLW-KDW

ORDER
The plaintiff, Dannetta Todd (“plaintiff”), brought this civil action on June 8, 2009. (Doc.
# 1). On March 30, 2012, the defendants filed a motion for summary judgment. (Doc. # 203). The
plaintiff submitted a response in opposition (Doc. # 222), and the defendants filed a reply (Doc. #
224).
This matter now comes before this Court for review of the Report and Recommendation (“the
Report”) filed by United States Magistrate Judge Kaymani D. West to whom this case had previously
been assigned. (Doc. # 231). In the Report, the Magistrate Judge recommends that the District
Court grant the defendants’ motion for summary judgment and dismiss this case. (Doc. # 231). The
plaintiff filed objections to the Report. (Doc. # 235). The defendants submitted a response to the
plaintiff’s objections (Doc. # 238), to which the plaintiff filed a reply (Doc. # 242). In conducting
this review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party
may file written objections . . . . The Court is not bound by the recommendation of
the magistrate judge but, instead, retains responsibility for the final determination.
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The Court is required to make a de novo determination of those portions of the report
or specified findings or recommendation as to which an objection is made. However,
the Court is not required to review, under a de novo or any other standard, the factual
or legal conclusions of the magistrate judge as to those portions of the report and
recommendation to which no objections are addressed. While the level of scrutiny
entailed by the Court’s review of the Report thus depends on whether or not
objections have been filed, in either case the Court is free, after review, to accept,
reject, or modify any of the magistrate judge’s findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report and
the objections. The Court notes that the Magistrate Judge has carefully outlined the facts and law
in connection with this case. After careful review of the Report and objections thereto, the Court
ACCEPTS the Report in part and DECLINES to accept it in part. (Doc. # 231). The Court accepts
the recommendation in the Report that summary judgment be granted as to the plaintiff’s causes of
action for (1) age discrimination based on disparate treatment pursuant to the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and S.C. Code Ann. § 1-13-80; (2) gender
discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
S.C. Code Ann. § 1-13-80; (3) retaliatory discharge pursuant to the ADEA, Title VII, and S.C. Code
Ann. § 1-13-80;1 (4) defamation; and (5) intentional infliction of emotion distress.
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The plaintiff asserts she engaged in a “protected activity” by reporting to FedEx personnel
that the address on Dominic DiPalma’s driver’s license matched the address of Sally Hall. As an
additional basis for granting summary judgment on the retaliatory discharge claim, the Court finds
the evidence does not create a genuine dispute of material fact as to whether the plaintiff actually
engaged in this alleged protected activity. Furthermore, assuming the plaintiff engaged in the
activity she alleges, the Court concludes it does not constitute a protected activity for purposes of
Title VII. See Equal Emp’t Opportunity Comm’n v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir.
2005) (“We have recognized that [Title VII] protects activity in opposition not only to employment
actions actually unlawful under Title VII but also employment actions an employee reasonably
believes to be unlawful.” (emphasis added)); McNair v. Computer Data Sys., Inc., No. 98-1110,
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The Court declines to accept the recommendation in the Report that summary judgment be
granted as to the plaintiff’s cause of action for sexual harassment based on a hostile work
environment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and S.C.
Code Ann. § 1-13-80.

The Magistrate Judge recommended dismissal of the hostile work

environment claim because a reasonable jury would not find Dominic DiPalma’s alleged conduct
(1) sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment or (2)
imputable to the defendants. Report, p. 21 (Doc. # 231). With respect to imputation, the Magistrate
Judge found that the defendants took reasonable care to prevent and correct sexually harassing
behavior by providing sexual harassment training and a mechanism for reporting sexually harassing
behavior. Id. at 20. Relying on two opinions by the Fourth Circuit Court of Appeals, the Magistrate
Judge concluded that “[e]mployers are not liable for an employee’s unlawful harassment of another
employee if the harassed employee has unreasonably refused to report or has unreasonably waited
many months before reporting a case of actual discrimination.” Id. at 19 (citing Matvia v. Bald Head
Island Mgmt., Inc., 259 F.3d 261, 269-70 (4th Cir. 2001); Barrett v. Applied Radiant Energy Corp.,
240 F.3d 262, 267-68 (4th Cir. 2001)).
Initially, the Court finds there is sufficient evidence in the record for the plaintiff to survive
summary judgment with respect to whether DiPalma’s conduct was severe or pervasive enough to
alter the conditions of the plaintiff’s employment and create an abusive work environment. The
plaintiff asserts DiPalma made sexually explicit comments to her, improperly touched her, and made
offensive comments to her. See citations to record at pp. 16-17 of Report (Doc. # 231). There is

1999 WL 30959, *5 (4th Cir. Jan. 26, 1999) (per curiam) (“‘[A] general complaint of unfair
treatment does not translate into a charge of illegal . . . discrimination.’” (quoting Barber v. CSX
Distrib. Serv., 68 F.3d 694, 702 (3d Cir. 1995))).
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also evidence of DiPalma engaging in harassing behavior toward other female employees. See
Plaintiff’s objections, pp. 9-10 (Doc. # 235). As for imputation, the plaintiff cites, in her objections,
Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated in part on a different issue, 900 F.2d
27 (4th Cir. 1990) (per curiam). In Paroline, the Fourth Circuit stated that “[i]n a hostile
environment case under Title VII, we will impute liability to an employer who anticipated or
reasonably should have anticipated that the plaintiff would become a victim of sexual harassment
in the workplace and yet failed to take action reasonably calculated to prevent such harassment. An
employer’s knowledge that a male worker has previously harassed female employees other than the
plaintiff will often prove highly relevant in deciding whether the employer should have anticipated
that the plaintiff too would become a victim of the male employee’s harassing conduct.” Id. at 107.
There is evidence in the record of other employees reporting harassing behavior toward women by
Dominic DiPalma. See McCoy Dep., ex. 17-19 (Doc. # 222, attach. 5); Wehunt Dep., ex. 6 (Doc.
# 222, attach. 13). In Matvia, the Fourth Circuit stated there is an affirmative defense that “allows
an employer to avoid strict liability for a supervisor’s sexual harassment of an employee.” Matvia,
259 F.3d at 266; see also Barrett, 240 F.3d at 265. “[T]he employer must establish: ‘(a) that the
employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,
and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer or to avoid harm otherwise.’” Id. at 266-67
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765 (1998)); see also Barrett, 240 F.3d at 265-66. However, the Fourth
Circuit noted the defense is available “if no tangible employment action was taken against the
employee.” Id. at 266; see also Barrett, 240 F.3d at 265. Here, there was a tangible employment
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action because the plaintiff’s employment was terminated. Moreover, in Mikels v. City of Durham,
N.C., the Fourth Circuit, in discussing employer liability after Faragher and Ellerth, held that “[a]ny
harassing conduct that culminates in a ‘tangible employment action’ against the victim is necessarily
conduct ‘aided by the agency relation,’ since it can only be taken by supervisory employees
empowered by their employers to take such action. In that circumstance, vicarious liability is
absolute, without regard to whether the employer knew, or should have known, or approved of the
act, or sought to prevent or stop it.” 183 F.3d 323, 332 (4th Cir. 1999). Here, DiPalma was the
plaintiff’s supervisor and the person who engaged in the alleged sexually harassing behavior. He
also was involved in the decision to terminate the plaintiff’s employment and was the person who
informed the plaintiff of this decision. Report, p. 6 (Doc. # 231). Applying Paroline, Mikels,
Matvia, and Barrett, the Court finds there is sufficient evidence that DiPalma’s alleged conduct is
imputable to his employer to move beyond summary judgment.
In sum, the defendants’ motion for summary judgment (Doc. # 203) is GRANTED as to the
plaintiff’s claims for (1) age discrimination based on disparate treatment pursuant to the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and S.C. Code Ann. § 1-1380; (2) gender discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., and S.C. Code Ann. § 1-13-80; (3) retaliatory discharge pursuant to the ADEA, Title
VII, and S.C. Code Ann. § 1-13-80; (4) defamation; and (5) intentional infliction of emotion distress.
The defendants’ motion for summary judgment (Doc. # 203) is DENIED as to the plaintiff’s claim
for sexual harassment based on a hostile work environment pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e et seq., and S.C. Code Ann. § 1-13-80.

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IT IS SO ORDERED.
s/Terry L. Wooten
United States District Judge
September 12, 2012
Florence, South Carolina

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