Opinion
C. A. 3:21-4137-MGL-SVH
01-26-2023
Dominique Lee, Plaintiff, v. Marcus Dorcey, Red Roof Inns, Inc., and WHG SU Columbia, LLC, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
Dominique Lee (“Plaintiff”) alleges that while he was staying at the HomeTowne Studios & Suites Columbia (“HomeTowne Studios”), located in Columbia, South Carolina, he was inappropriately touched by his manager, Marcus Dorcey (“Dorcey”). Plaintiff alleges Red Roof Inns, Inc. (“RRI”) and WHG SU Columbia, LLC (“WHG”) (collective “Defendants”), oversaw HomeTowne Studios. Defendants seek dismissal of the claims against them.
Plaintiff also filed suit against Hometown Studios, but failed to served it. [See ECF No. 31].
Plaintiff originally filed this action in the Richland County Court of Common Pleas. Defendants removed the action on December 22, 2021, asserting diversity jurisdiction under 28 U.S.C. § 1332. [ECF No. 1]. In his complaint, Plaintiff asserts the following four state law claims: 1) assault and battery of a sexual nature, 2) intentional infliction of emotional distress, 3) negligent hiring/retention/supervision, and 4) respondeat superior/vicarious liability.
This matter is before the court on Defendants' motion for summary judgment as to Plaintiff's claims against them for negligent hiring/retention/supervision and respondeat superior/vicarious liability. [ECF No. 42]. The motion having been fully briefed [ECF Nos. 52, 53], it is ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). For the following reasons, the undersigned recommends the district judge grant Defendants' motion.
I. Factual Background
On November 27, 2020, Plaintiff filed an incident report with the Columbia, South Carolina police department, stating:
[O]n 11/16/2020 at the Hometown Studios Suites . . ., [Plaintiff] went to the front desk to gather some cleaning supplies. Once in the lobby he was approached by the general manager Mr. Marcus Dorcey who asked him to step inside the office to discuss his outstanding balance. Once entering into the office Mr. Dorcey turned of the lights in which [Plaintiff] turned back on immediately. Mr. Dorcey then sat in chair and asked [Plaintiff] to look at the screen. As [Plaintiff] began to lean over[,] Mr. Dorcey then grabbed his private area which to kicked the chair that Mr. Dorcey was sitting in saying that “What are you doing”. Mr. Dorcey then replied “can I suck your dick,” he then refused by Mr. Dorcey kept reaching and trying to grab on his private area. [Plaintiff]
stated he felt very uncomfortable and left out of the office. [Plaintiff] stated that reported the incident to the home office but did not wait to report the incident because he was very confused and embarrassed about the incident.[ECF No. 42-2 at 2 (errors in original)]. During the relevant time period, Dorsey worked as a temporary rotating manager at the HomeTowne Studios. [ECF No. 42-3 at 13]. WHG operated the HomeTowne Studios. Id. at 3. RRI has submitted evidence that it “did not have possession or control of the HomeTowne Studios” during the relevant time period. [ECF No. 42-4 at 1].
The incident report indicates Plaintiff's allegations were investigated, but Dorsey was not arrested or charged with a crime. [ECF No. 42-2 at 1].
Defendants argue that summary judgment is appropriate as to RRI because it neither possessed nor controlled the HomeTowne Studios. [ECF No. 42-1 at 5]. Because the undersigned recommends the district judge grant Defendants' motion for summary judgment on the merits, the court need not address this issue.
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
In briefing, Plaintiff repeatedly argues that he need only present a “scintilla of evidence” to survive summary judgment. [See ECF No. 52]. In federal cases based on South Carolina substantive law, “the standard as to the quantum of proof necessary to create a question of fact by circumstantial evidence is governed by federal law.” Liberty Mut. Fire Ins. Co. v. Kutsch, C/A No. 3:18-1055-JFA, 2020 WL 5100150, at *2 (D.S.C. June 2, 2020). A mere scintilla of evidence is not enough. Id. Instead, when the moving party has met its initial burden, the non-moving must cite to “specific facts showing that there is a genuine issue for trial.” Donta Alston, Plaintiff, v. The Boeing Co., Defendant., C/A No. 2:19-02713-RMG, 2021 WL 5711288, at *1 (D.S.C. Dec. 2, 2021).
B. Analysis
1. Negligent Hiring, Retention, and Supervision
The South Carolina Supreme Court has explained:
Just as an employee can act to cause another's injury in a tortious manner, so can an employer be independently liable in tort. In circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. As this recitation suggests, the employer's liability under such a theory does not rest on the negligence of another, but on the employer's own negligence. Stated differently, the employer's liability under this theory is not derivative, it is direct.James v. Kelly Trucking Co., 661 S.E.2d 329, 330-31 (S.C. 2008) (citations omitted). More specifically, “[n]egligent hiring cases ‘generally turn on two fundamental elements-knowledge of the employer and foreseeability of harm to third parties.'” Kase v. Ebert, 707 S.E.2d 456, 459 (S.C. Ct. App. 2011) (citing Doe v. ATC, 624 S.E.2d 447, 450 (S.C. Ct. App. 2005)); see also Farr v. Lott, No. 2016-002503, 2019 WL 2051300, at *1 (S.C. Ct. App. May 8, 2019) (same as to negligent retention). An employer is liable under a theory of negligent supervision when an employee:
(1) is upon the premises of the employer or is using a chattel of the employer,
(2) the employer knows or has reason to know that he has the ability to control his employee, and
(3) the employer knows or should know of the necessity and opportunity for exercising such control.Moore by Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 12 (S.C. Ct. App. 1997) (citing Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992)).
These cases “will ordinarily be determined by the factfinder, and not as a matter of law.” Doe, 624 S.E.2d at 450 (citations omitted); see also Kase, 707 S.E.2d at 459. “Nevertheless, the court should dispose of the matter on a dispositive motion when no reasonable factfinder could find the risk foreseeable or the employer's conduct to have fallen below the acceptable standard.” Doe, 624 S.E.2d at 450.
As to this claim, Plaintiff argues as follows:
In the present action there is an abundance of evidence of habitual misconduct on the part of the subject employee, Defendant Marcus Dorsey, who served as the General Manager of this hotel location. Plaintiff has alleged that Defendant Marcus Dorsey habitually and repeatedly would engage in sexual acts with the guests of the hotel, often in exchange for waiver or reduction or rent or to avoid eviction from the property. In addition, employees of the hotel allege that Mr. Dorsey engaged in many other events of misconduct many of a criminal and sexual nature. Mr. Dorsey is alleged to have engaged in theft from the hotel, theft from the guests, sexual harassment of employees, sexual assault, and prostitution.[ECF No. 52 at 4].
In support of his argument, Plaintiff has submitted three affidavits. First, Plaintiff has submitted an affidavit from Angelita Peete (“Peete”) who states she worked at the incident location for two years, although she does not identify which years, and that she was a manager-in-training when she left her position. [See ECF No. 52-1]. Peete states that Dorsey showed her an inappropriate video of him and Hurbert J. Williams (“Williams”) engaging in oral sex, she saw Dorsey “pocketing cash from the register,” and she overheard Dorsey tell others that he was going into customers' rooms and stealing from their belongings. See id.
Plaintiff has also submitted an affidavit from Williams, attesting that he stayed at the incident location from “approximately May or April of 2019 until October of 2020” and, at Dorsey's request, engaged in oral sex with him in exchange for two weeks of free rent. [See ECF No. 52-2].
The last affidavit is from Ishabka M. Hampton (“Hampton”), who attests that in 2020 she worked at the incident location as a housekeeper and for the general manager Dorcey, was present the day Plaintiff was assaulted, and “was well aware that after the assault [Dorcey] was trying to hire people to scare [Plaintiff] away and run them off from the hotel.” [See ECF No. 52-3]. Hampton further attests that Dorsey rented out rooms by the hour for cash to have sex with clients and would make personal loans to guests and friends directly from the hotel cash register. See id. Hampton also states that, although she did not witness it personally, she heard that Dorsey was “sleeping with male guests and often in return for reduced or no rent.” See id.
Although the evidence presented by Plaintiff is troubling, it fails to indicate that Defendants knew or should have known that Dorsey had a propensity for engaging in sexual assault such that a claim for negligent hiring, retention, or supervision can be maintained against them.
The evidence Peete offers does not demonstrate that she informed anyone of the acts she states Dorsey committed-neither to law enforcement, nor to hotel management. Additionally, although she was a manager-intraining at some unknown point in time, she does not appear to have been in management herself during the relevant period such that her knowledge could be imputed to Defendants. See, e.g., Mauldin Furniture Galleries, Inc. v. Branch Banking & Tr. Co., No. CA 6:10-240-TMC, 2012 WL 3680426, at *7 (D.S.C. Aug. 27, 2012) (“Courts have widely rejected the notion that simple ministerial employees of a corporation could impute knowledge to the corporation.”) (collecting cases)).
Even if her knowledge could be imputed to Defendants through her role in management, Peete states she saw the video of Dorsey and Williams engaging in consensual oral sex and she was aware of Dorsey stealing, not that she had knowledge of Dorsey's propensity to commit sexual assault. See, e.g., Kirk v. Mumford, Inc., No. 2006-UP-179, 2006 WL 7285832, at *3 (S.C. Ct. App. Apr. 4, 2006) (rejecting the argument that knowledge that the employee had alternative names, multiple addresses, multiple social security numbers, and a DUI would put management on notice of its employee's propensity to commit theft).
Williams' affidavit is likewise insufficient where he attests that he and Dorsey engaged in oral sex in exchange for rent at Dorsey's request. Like Peete, there is no indication Williams informed anyone of the action, including Defendants' management or law enforcement, and, therefore, the knowledge cannot be imputed to Defendants. The same holds true as to Hampton's affidavit, where there appears no dispute that Hampton was a ministerial employee and there is no indication Hampton shared with anyone her knowledge concerning Dorsey.
This case stands in contrast to those where management had prior knowledge of inappropriate sexual behavior. See, e.g., Doe by Doe v. Greenville Hosp. Sys., 448 S.E.2d 564 (S.C. Ct. App. 1994) (holding hospital had prior notice of inappropriate sexual behavior on part of male employee so as to be liable for negligent hiring and supervision where the hospital was aware of allegations of inappropriate behavior, even though employee denied it).
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's claim for negligent hiring/retention/supervision.
2. Respondeat Superior/Vicarious Liability Claim
“The doctrine of respondeat superior provides that the employer, as the employee's master, is called to answer for the tortious acts of his servant, the employee, when those acts occur in the course and scope of the employee's employment.” James v. Kelly Trucking Co., 661 S.E.2d 329, 330 (S.C. 2008) (citing Sams v. Arthur, 133 S.E. 205, 207-08 (S.C. 1926)). “Such liability is not predicated on the negligence of the employer, but upon the acts of the employee, whether those acts occurred while the employee was going about the employer's business, and the agency principles that characterize the employeremployee relationship.” Id.
Plaintiff argues that Dorsey was acting within the scope of his employment when he requested Plaintiff go with him to a back office to discuss rent he owed and thereafter assaulted him. However, Plaintiff fails to cite, nor is the court aware, of case law indicating that an employee is acting within the scope of his employment when engaging in sexual misconduct, particularly where, here, evidence indicates no discussion about rent occurred after Plaintiff entered the back office. [See ECF No. 42-6 at 139:11-140:17].
As summarized by this court:
South Carolina courts have specifically considered whether an employee was acting within the scope of his employment when he commits a sexual assault. In all four cases, South Carolina courts have found that the sexual advances were outside the scope of employment. See Frazier v. Badger, 603 S.E.2d 587, 591 (S.C. 2004) (holding an assistant principal was acting outside the scope of his employment when he made sexual advances on a teacher); Doe v. S.C. State Budget & Control Bd., 494 S.E.2d 469, 473 (S.C. Ct. App. 1997) (holding “no cogent argument could be made” that a police officer was furthering his employer's business by having intercourse with suspects); Loadholt v. S.C. State Budget & Control Bd., 528 S.E.2d 670 (S.C. Ct. App. 2000) (holding a sheriff was acting outside the scope of his employment when he sexually assaulted subordinates); Padgett v. S.C. Ins. Reserve Fund, 531 S.E.2d 305 (S.C. Ct. App. 2000) (holding a professor was acting outside the scope of his “official duties” when he sexually assaulted a student). In sum, under South Carolina law, “sexual harassment by a government employee is not within the employee's ‘scope of employment.'” Frasier, 603 S.E.2d at 591.Anderson v. United States, C/A No. 8:12-3203-TMC, 2016 WL 320076, at *10 (D.S.C. Jan. 27, 2016) (footnote omitted); see also Doe v. Smith, No. 2014-UP-267, 2014 WL 2968925, at *1 (S.C. Ct. App. June 30, 2014); S.C. Med. Malpractice Liab. Ins. Joint Underwriting Ass'n v. Ferry, 354 S.E.2d 378, 381 (S.C. 1987); Moore by Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 11 (S.C. Ct. App. 1997); State Farm Fire & Cas. Co. v. Barrett, 530 S.E.2d 132, 136 (S.C. Ct. App. 2000) (“we hold that an intent to harm will be inferred as a matter of law when a person sexually assaults, harasses, or otherwise engages in sexual misconduct towards an adult”); Farr, 2019 WL 2051300, at *1 (“Stephens was not acting in the scope of his employment when he sexually harassed Farr”).
Plaintiff argues that because Dorsey was not “a mere employee,” but a general manager “endowed with special authority and agency from Defendants,” he “was endowed with [Defendants'] actual authority,” indicating that the standard for vicarious liability is different for a manager than an employee. [See ECF No. 52 at 6]. Plaintiff, however, provides no case law to support this argument, nor addresses the case law Defendants provided, some of which the court discusses above, concerning whether an employee is acting within the scope of his employment when engaging in sexual misconduct
Here, as in Anderson, the court finds that no reasonable juror could conclude that the sexual encounter between Plaintiff and Dorcey furthered Defendants' interest. See Anderson, 2016 WL 320076, at *11 (“The incident occurred after 11 p.m. when the office was closed. Anderson testified at her deposition that they did not discuss her case. See (ECF No. 152-25) (testifying that “he told me it was about my case, [but] then when I got there it wasn't about my case. He would do that to me all the time.”). The court finds that instead of furthering the USSS's interests, Kerns was furthering his own personal interests during the Greenville Incident.”).
Plaintiff argues in briefing, without citing to supporting evidence, that he has alleged “that the sexual assault occurred because Mr. Dorsey was attempting to exchange sex acts for a back rent or waiver of late fees.” [ECF No. 52 at 6]. However, Plaintiff's complaint does not include this allegation. [See ECF No. 1-2]. Additionally, Plaintiff testified that although he was “aware of . . . incidents where the manager, Marcus Dorcey, had offered sex in return for late fees or rent to . . . guests at the hotel,” Dorcey never made that proposal to Plaintiff. [See ECF No. 42-6 at 129:11-18].
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's claim for respondeat superior/vicarious liability.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Defendants' motion for summary judgment, dismissing them from this action. [ECF No. 42].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).