Nelson v. Local 1422, Int'l Long Shoreman's Ass'n

Full title: Christine G. Nelson, PLAINTIFF, v. Local 1422, International…

Court: United States District Court, D. South Carolina, Charleston Division

Date published: Sep 22, 2021

Civil Action 2:19-01545-DCN-MGB (D.S.C. Sep. 22, 2021)

Opinion

Civil Action 2:19-01545-DCN-MGB

09-22-2021

Christine G. Nelson, PLAINTIFF, v. Local 1422, International Longshoreman's Association; and South Carolina Stevedores Association, DEFENDANT.

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

Plaintiff, through counsel, filed the instant employment action on May 28, 2019. (Dkt. No. 1.) This matter is now before the Court upon the parties' cross-motions for summary judgment.¹ (Dkt. No. 53; Dkt. No. 56; Dkt. No. 59.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that the Court grant Defendant SCSA's Motion for Summary Judgment (Dkt. No. 53), grant Defendant Local 1422's Motion for Summary Judgment (Dkt. No. 56), and deny Plaintiff's Partial Motion for Summary Judgment (Dkt. No. 59).

1 Plaintiff's motion (Dkt. No. 59) argues for summary judgment in her favor only as to her retaliation and discrimination claims, and the joint employment issue.

BACKGROUND

Plaintiff, a female longshore worker, filed her Amended Complaint against Defendants on October 19, 2019, alleging harassment, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). (Dkt. No. 16.) Plaintiff claims that she has been jointly employed by Defendants since October 2013 and alleges that she has experienced unlawful harassment, discrimination, and retaliation for which Defendants are liable. (See generally id.)

I. Relationship Between Defendants

In order to clarify Plaintiff's contentions, the undersigned has summarized the relationship between Defendants before recounting Plaintiff's allegations in full.

A. Local 1422, International Longshoreman's Association

The International Longshoreman's Association is a union of maritime workers in North America. (Dkt. No. 16 at 3; Dkt. No. 58-1 at 2.)² Defendant Local 1422, International Longshoreman's Association (“Local 1422”) is a subdivision of the International Longshoreman's Association that serves as the exclusive bargaining unit for longshore workers in the ports of Charleston, South Carolina. (Dkt. No. 16 at 3; Dkt. No. 58-1 at 2.) Longshore workers load and unload cargo on steamships and trucks in the ports. (Dkt. No. 16 at 3.) Local 1422 has both members and non-members. (Dkt. No. 59 at 2.) Plaintiff has been a member since 2014. (Id.) Mr. Kenneth Riley, who served as President of Local 1422 from 1997 until August 14, 2019, ran Local 1422 throughout the majority of the time period relevant to this case.³ (Dkt. No. 58-1 at 2.)

2 This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.

3 Mr. Riley now serves as a trustee of Local 1422. (Dkt. No. 58-1 at 2.)

B. South Carolina Stevedore's Association

Defendant South Carolina Stevedores Association (“SCSA”) is a nonprofit trade association that acts as the collective bargaining representative for stevedoring companies who operate in ports of Charleston. (Dkt. No. 16 at 3; Dkt. No. 53-1 at 5.) In other words, SCSA represents its members in collective bargaining with the International Longshoremen's Association and its subordinate entities, including Local 1422. (Dkt. No. 58-1 at 3.) SCSA's members include “the stevedoring companies that operate at the ports in Charleston.” (Dkt. No. 16 at 3; Dkt. No. 53-1 at 5.) SCSA's current members are Ceres Marine Terminal, SSA Atlantic, Ports America, Charleston Stevedoring Company, Charleston Port Services, and Charleston Gate Company. (Dkt. No. 53-1 at 5.) These stevedoring companies order and hire longshore labor from Local 1422. (Id. at 4.) SCSA acts as a liaison between the stevedoring companies and Local 1422. (Id. at 1-14.)

Plaintiff performed work for the following stevedoring companies during the period relevant to this case: Ceres Marine Terminals, SSA Atlantic (also referred to as SSA Cooper), Ports America (also known as Marine Terminals Corporation East), and Charleston Stevedoring Company. (Id. at 4.) These entities are collectively referred to as the “Port Employers.” As noted, each of the Port Employers is a member of SCSA. (Id. at 4-5.)

SCSA is run by Bill Bean, its Director. (Id. at 8.) SCSA, through Mr. Bean, performs administrative functions for its member stevedoring companies, including facilitating negotiations with Local 1422, organizing meetings, and handling paperwork. (Id. at 6-9.)

C. Collective Bargaining Agreement and Port Grievance Committee

The stevedoring companies (represented by SCSA) and Local 1422 (as a subdivision of the International Longshoreman's Association) have negotiated a collective bargaining agreement which governs their relationship. (Id. at 6; see generally Dkt. No. 56-17.) Pursuant to that agreement, a Port Grievance Committee (“PGC”) is designated to hear matters “which cannot be promptly settled” between Local 1422 and an individual stevedoring company. (See generally Dkt. No. 56-17; Dkt. No. 61-1 at 31.) The PGC is also tasked with resolving harassment complaints. (Dkt. No. 53-1 at 8.)

The PGC includes representatives from Local 1422⁴ and representatives of the stevedoring companies.⁵ (Id. at 7.) When considering individual disputes that cannot be promptly settled, the PGC includes a member from a company not involved in the dispute at issue, an employer member of SCSA, a union member of Local 1422, and a union member not involved in the dispute. (Dkt. No. 61-1 at 31.)

4 Mr. Riley is a PGC representative for Local 1422. (Dkt. No. 58-1 at 2.)

5 Mr. Bean also sits on the PGC as a spokesperson for SCSA's member companies, but he has no voting authority. (Dkt. No. 53-1 at 8.)

II. Plaintiff's Allegations

Plaintiff claims that she has been jointly employed by Defendant Local 1422 and Defendant SCSA as a longshore worker since October 2013. (Dkt. No. 16 at 4.) She alleges that “Local 1422 is predominately male” and that she and other female longshore workers are discriminated against on account of their sex. (Id.) Plaintiff further alleges that she and other female longshore workers “have been subject to sexually offensive acts and statements that are permeated with sexual intimidation, ridicule and humiliation, ” and “are regularly harassed and groped, ” including through “inappropriate touching and ‘frotteurism'”. (Dkt. No. 16 at 4-5; Dkt. No. 74 at 2-3.) Plaintiff defines “frotteurism” as “touching or rubbing against the clothed body of another person in a crowd as a means of obtaining sexual gratification.” (Dkt. No. 16 at 5.)

Plaintiff alleges two specific incidents of inappropriate touching by male co-workers that occurred “on the work shuttle, which is a car that transports longshore workers on and off the ships.” (Dkt. No. 16 at 5; Dkt. No. 74 at 2-3.) Plaintiff first alleges that David Smalls, a male co-worker, “put his hand on the seat so when she sat down, she sat on his hand, ” and “he proceeded to touch Plaintiff's buttocks in an inappropriate manner.” (Dkt. No. 16 at 5; Dkt. No. 74 at 2-3, 6.) She alleges that other women told her “he did the same thing to them.” (Dkt. No. 16 at 5; Dkt. No. 74 at 3, 6.) She next alleges that on April 8, 2017, another co-worker, Dennis Snipe, “placed his hand on her upper thigh near her crotch.” (Dkt. No. 16 at 6; Dkt. No. 74 at 3.) Plaintiff reported the incident with Mr. Snipe to Mr. Riley and filed a formal grievance to be heard by the PGC. (Dkt. No. 16 at 6; Dkt. No. 74 at 3-4.) Plaintiff alleges that Mr. Snipe confronted her about reporting him and that he was “very angry” at her. (Dkt. No. 16 at 6; Dkt. No. 74 at 3-4.) Plaintiff submitted a second grievance to the PGC regarding this confrontation. (Dkt. No. 60-1 at 3-4.) Mr. Snipe was suspended for 30 days following the PGC's hearing on Plaintiff's grievances. (Dkt. No. 16 at 6; Dkt. No. 74 at 3-4; see generally Dkt. No. 60-1.)

Plaintiff contends that certain Headers⁶ retaliated against her by “not picking her to work” after she reported Mr. Snipe. (Dkt. No. 16 at 6; Dkt. No. 74 at 4-6.) According to Plaintiff, this caused her hours to decrease, and, consequently, her income. (Dkt. No. 16 at 6; Dkt. No. 59 at 7.) Plaintiff alleges that she met with Mr. Riley on May 21, 2017 about this problem. (Dkt. No. 16 at 6; Dkt. No. 74 at 6.) Plaintiff states that she told Mr. Riley that she was being retaliated against for reporting Mr. Snipe, but that Mr. Riley took no action to address the situation. (Dkt. No. 16 at 6; Dkt. No. 74 at 6-7.)

6 “Headers” are the foremen who choose which longshore workers to hire on behalf of the stevedoring companies that order longshore work from Local 1422. (Dkt. No. 58-1 at 5.)

Plaintiff further asserts that she called Mr. Riley on August 7, 2017 to report that Melvin Smith, a Header, continued to retaliate against her by selecting longshore workers who were less senior than Plaintiff, “which is against Local 1422 rules.” (Dkt. No. 16 at 7; Dkt. No. 74 at 7.) On August 9, 2017, Mr. Smith allegedly grabbed Plaintiff's hand in the union hall and twisted her wrist. (Dkt. No. 16 at 7; Dkt. No. 74 at 7.) Plaintiff contends that she yelled at Mr. Smith, “why are you touching me.” (Dkt. No. 16 at 7; Dkt. No. 60-3 at 1.) Plaintiff submitted a grievance against Mr. Smith to the PGC relating to this incident. (Dkt. No. 60-3 at 1; Dkt. No. 74 at 7.) After conducting a hearing, the PGC dismissed Plaintiff's grievance. (Dkt. No. 60-3 at 5; Dkt. No. 74 at 10.) Soon after, Mr. Smith filed a grievance against Plaintiff for “creating a hostile work environment and filing false charges.” (Dkt. No. 60-4 at 1; Dkt. No. 74 at 10.) After conducting a hearing on this matter, the PGC suspended Plaintiff for 30 days without pay “for making false allegations and representation of the facts on the day in question.” (Dkt. No. 60-4 at 4; Dkt. No. 74 at 10.)

According to Plaintiff, her suspension “for reporting retaliation would dissuade[] a reasonable longshore worker from making or supporting a charge of sexual discrimination.” (Dkt. No. 16 at 7.) Plaintiff explains that the retaliation she experienced caused her to suffer depression, panic attacks, and difficulty sleeping. (Dkt. No. 16 at 7; Dkt. No. 74 at 11.) Plaintiff says that she returned to work on July 12, 2018 and brought a letter from her doctor stating that she was suffering from various impairments and asking that she “be allowed to ride in the front of the transport shuttle so it would be less likely she would be touched inappropriately.” (Dkt. No. 16 at 7; Dkt. No. 74 at 11.) Although Plaintiff was initially allowed to ride in the front of the work shuttle, on July 31, 2018, “Plaintiff was advised by the SCSA she could no longer work ‘because of the letter.'” (Dkt. No. 16 at 7-8; Dkt. No. 74 at 11-12.) According to Plaintiff, “SCSA claimed Ms. Nelson was a danger to herself and other[s] on the docks because of her doctor's accommodation letter and she was administratively suspended.” (Dkt. No. 16 at 8; Dkt. No. 74 at 11-12.)

Plaintiff asserts that she then “provided SCSA with additional information from her doctor explaining she is not a danger to herself or others, ” and “agreed to let a representative of SCSA talk to her doctor to obtain more information to verify that she was not a danger.” (Dkt. No. 16 at 8; Dkt. No. 74 at 12.) Plaintiff returned to work approximately six months later, on February 14, 2019. (Dkt. No. 16 at 8; Dkt. No. 74 at 12.) Plaintiff explains that she lost her health insurance, wages, container royalties, and other benefits during her suspension. (Dkt. No. 16 at 8; Dkt. No. 74 at 12-13.) She claims that she continues to experience retaliation at work from Local 1422 and SCSA. (Dkt. No. 16 at 8; Dkt. No. 59 at 12-13.)

Plaintiff contends that Defendants' actions are the result of gender-based discrimination and retaliation. (Dkt. No. 16 at 9.) Accordingly, she filed the instant civil action alleging harassment, hostile work environment, and retaliation in violation of Title VII. (Id. at 9-11.)

Three motions are now before the Court: (1) Defendant SCSA's Motion for Summary Judgment (Dkt. No. 53); (2) Defendant Local 1422's Motion for Summary Judgment (Dkt. No. 56); and Plaintiff's Partial Motion for Summary Judgment (Dkt. No. 59). All three motions were filed on June 3, 2021. (Dkt. No. 53; Dkt. No. 56; Dkt. No. 59.) After requesting and receiving more time to respond, the parties filed their respective responses in opposition on July 9, 2021. (Dkt. No. 66; Dkt. No. 67; Dkt. No. 68.)⁷ Plaintiff filed her replies to Defendants' responses on July 16, 2021. (Dkt. No. 70; Dkt. No. 71.) After requesting and receiving an extension of time, Defendants filed their replies to Plaintiff's response in opposition on August 12, 2021. (Dkt. No. 80; Dkt. No. 81.) As such, the motions before the Court have been fully briefed and are ripe for disposition.

7 Plaintiff filed an incomplete response on July 9, 2021. (Dkt. No. 68.) With leave of the Court, Plaintiff filed an amended response on July 19, 2021. (Dkt. No. 74.)

LEGAL STANDARD

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant 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). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In ruling on a motion for summary judgment, “the nonmoving party's evidence ‘is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). “Although the Court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (citing Anderson, 477 U.S. at 252; Stone v. Liberty Mutual Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997)). “Only 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.” Anderson, 477 U.S. at 248. “When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal citations omitted). Thus, “each movant bears the burden of establishing that no genuine issue of material fact exists.” Shaw Constructors v. ICF Kaiser Engineers, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004).

DISCUSSION

As noted, three summary judgment motions are now before the Court. (Dkt. No. 53; Dkt. No. 56; Dkt. No. 59.) Defendant SCSA asserts that it is entitled to summary judgment as to all of Plaintiff's claims because: (1) it is not an employer as defined by Title VII;⁸ (2) it is not Plaintiff's joint employer; (3) Plaintiff cannot establish a prima facie case for her hostile work environment claim against Defendant SCSA; and (4) Plaintiff's retaliation claim against Defendant SCSA fails because Plaintiff cannot establish causation and cannot show pretext. (Dkt. No. 53-1 at 16-29.) Defendant Local 1422 argues that it is entitled to summary judgment as to each of Plaintiff's claims because: (1) Plaintiff failed to exhaust certain administrative remedies; (2) Defendant Local 1422 is not Plaintiff's joint employer; (3) Plaintiff's claims against Defendant Local 1422 as a labor organization are insufficient; and (4) Plaintiff's retaliation and hostile work environment claims lack merit and are not supported by the record evidence. (Dkt. No. 58-1 at 19-32.) Plaintiff contends that she is entitled to summary judgment on her discrimination⁹ and retaliation claims, and on the joint employment issue. (Dkt. No. 59 at 1-2.) She argues that the record clearly demonstrates that Defendants controlled her employment, and that the record evidence of discriminatory and retaliatory treatment is “so one-sided” that she must prevail on these claims. (Dkt. No. 59 at 14-35.) For the reasons explained below, the undersigned recommends that Defendants' Motions for Summary Judgment (Dkt. No. 53; Dkt. No. 56) be granted, and that Plaintiff's Partial Motion for Summary Judgment (Dkt. No. 59) be denied.

8 For the reasons stated herein, the undersigned finds that Defendants do not jointly employ Plaintiff and that Plaintiff's retaliation and hostile work environment claims fail on the merits. Accordingly, the undersigned declines to address Defendant SCSA's first argument.

9 As noted infra, Plaintiff brings a discrimination claim relating to certain dock work that she alleges women are not allowed to perform for the first time in her Partial Motion for Summary Judgment. (See generally Dkt. No. 16; Dkt. No. 59.)

I. Local 1422 and SCSA as Plaintiff's Joint Employers

Title VII prohibits employers from discriminating against employees in hiring, firing, and employment terms. 42 U.S.C. § 2000e-2(a). Accordingly, a defendant must be an employer within the definition of Title VII to sustain a claim on this basis. See Singleton v. Greenville Hous. Auth., No. 6:09-cv-2104, 2010 WL 6065085, at *4 (D.S.C. Sept. 21, 2010), adopted sub nom. Singleton v. City of Greenville Hous. Auth., 2011 WL 883669 (D.S.C. Mar. 11, 2011) (citing Harris v. Palmetto Tile, Inc., 835 F.Supp. 263, 266 (D.S.C. 1993)). A defendant may be considered a plaintiff's employer under Title VII if it fits within the “employer” definition of the statute and “exercises substantial control over significant aspects of the compensation, terms, conditions, or privileges of Plaintiff's employment.” See Id. (quoting Magnuson v. Peak Tech. Servs., Inc., 808 F.Supp. 500, 507 (E.D.Va. 1992)). For purposes of Title VII claims, an “employer” is “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” 42 U.S.C. § 2000e(b). In turn, an “employee” is “an individual employed by an employer.” Id. § 2000e(f).

The Fourth Circuit directs courts to interpret Title VII's definition of “employer” liberally. Wiggins v. SSA Atl., LLC, No. 2:19-cv-2291-RMG-MHC, 2020 WL 6218804, at *2-3 (D.S.C. Aug. 27, 2020), adopted, 2020 WL 5810413 (D.S.C. Sept. 30, 2020). Indeed, “Title VII's broad, remedial purpose ‘militates against the adoption of a rigid rule strictly limiting “employer” status under Title VII to an individual's direct or single employer.'” Id. (quoting Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 410 (4th Cir. 2015)). Thus, where more than one entity may be involved, the Fourth Circuit has held that those entities may be considered “joint employers and therefore both be liable under Title VII if they ‘share or co-determine those matters governing the essential terms and conditions of employment.'” Butler, 793 F.3d at 408 (quoting Bristol v. Bd. of Cnty. Comm'rs, 312 F.3d 1213, 1218 (10th Cir. 2002) (en banc)).

As noted, Plaintiff asserts that Defendants are liable for Title VII violations because they are her joint employers.¹⁰ (Dkt. No. 16 at 4; Dkt. No. 60 at 14.) To the contrary, Defendants contend that they do not employ Plaintiff in any capacity, including as her joint employers. (Dkt. No. 53-1 at 17-22; Dkt. No. 58-1 at 21-24; Dkt. No. 80 at 3-12.) Rather, Defendants argue that Plaintiff is employed solely by the individual Port Employers that select her for jobs on a daily basis. (See generally Dkt. No. 53-1; Dkt. No. 58-1.) Defendants assert that they do not have the requisite control over Plaintiff to qualify as her employers. (See generally Dkt. No. 53-1; Dkt. No. 58-1.)

10 Plaintiff also argues that Defendants should be considered “integrated” or “single” employers in the event the Court disagrees that Defendants are Plaintiff's joint employers. (Dkt. No. 59 at 16.) However, the undersigned finds this argument misguided. As the Court noted in Butler v. Drive Auto. Indus. of Am., Inc., the “single employer” or “integrated employer” doctrine applies in situations where “a parent company and its subsidiary can be considered a single employer for purposes of Title VII liability.” 793 F.3d 404, 409 (4th Cir. 2015) (referencing Murphy-Taylor v. Hofmann, 968 F.Supp.2d 693, 725 (D.Md. 2013). Here, as in Butler, the doctrine does not apply because Local 1422, SCSA, and the port employers are discrete entities with no parent-subsidiary relationship. Moreover, the undersigned notes that Plaintiff's arguments that “there is no dispute that Mr. Bean represents the interest of the member companies and that he provides record keeping, training and administrative functions for each company, ” and that “the function of the SCSA is to assist the employers with controlling and managing labor relations, ” (Dkt. No. 59 at 18), fall short of establishing any kind of “integrated” or “single” employer relationship. See Butler, 793 F.3d at 408 n.3 (explaining the requisite relationship for “integrated” or “single” employer finding); see also Hukill v. Auto Care, Inc., 192 F.3d 437, 444 (4th Cir. 1999) (referencing Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983)) (outlining factors to consider when determining an “integrated” employer relationship and explaining that “[t]he ‘integrated employer' test instructs a court to determine ‘[w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination'”), abrogated on other grounds by Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)). Further, Plaintiff's brief provides no support for her contention that SCSA has “the power to hire, fire, and supervise Local employees, ” or her contention that SCSA and its member companies refer to themselves as an integrated or single employer in the CBA.” (Dkt. No. 59 at 18.) Indeed, a review of the evidence indicates that these contentions are largely inaccurate. (See generally Dkt. No. 53-1; Dkt. No. 55-13; Dkt. No. 55-18; Dkt. No. 55-21; Dkt. No. 56-7; Dkt. No. 58-1; Dkt. No. 66; Dkt. No. 67.)

The quintessential application of the “joint employment” theory occurs when “one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Butler, 793 F.3d at 408 (quoting Torres-Negrón v. Merck & Co. Inc., 488 F.3d 34, 40 n.6 (1st Cir. 2007)). Nonetheless, the Fourth Circuit has cautioned that “employers should not be able to ‘avoid Title VII by affixing a label to a person that does not capture the substance of the employment relationship.'” Id. at 410 (quoting Schwieger v. Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 484 (8th Cir. 2000)). To aid courts in determining whether two entities are joint employers under Title VII, the Fourth Circuit has outlined a nine-factor “hybrid” test. See id. This test requires courts to weigh the following factors:

(1) authority to hire and fire the individual;

(2) day-to-day supervision of the individual, including employee discipline;

(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 of time during which the individual has worked for the putative employer;

(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.

Id. at 414. In Butler v. Drive Auto. Indus. of Am., Inc., the court identified three factors as most important: the power to hire and fire, the extent of employee supervision, and where and how the work takes place. Id. The Butler court expressly noted that “no one factor is determinative, and the consideration of factors must relate to the particular relationship under consideration.” Id. at 415 (quoting Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir. 1997)). However, the Butler court instructed that “control remains the principal guidepost.” Id.

After considering these factors and conducting a thorough review of the record, the undersigned finds that Defendants do not jointly employ Plaintiff. Indeed, the record demonstrates that Defendants do not pay Plaintiff for her work on the docks, do not have authority to hire or fire Plaintiff, and do not supervise Plaintiff on a daily basis. (Dkt. No. 16 at 3; Dkt. No. 55-13 at 16; Dkt. No. 55-18 at 58; Dkt. No. 55-21 at 8, 28; Dkt. No. 56-7 at 58.) Rather, the Port Employers are responsible for all of these duties. (Dkt. No. 16 at 3; Dkt. No. 55-13 at 16; Dkt. No. 55-18 at 58; Dkt. No. 55-21 at 8, 28; Dkt. No. 56-7 at 58.)

Moreover, the Port Employers dictate the location at which Plaintiff works. (Dkt. No. 55-21 at 28; Dkt. No. 56-7 at 76.) They also provide any equipment Plaintiff needs in order to perform her job duties.¹¹ (Dkt. No. 55-21 at 28-29; Dkt. No. 60-6 at 11.) While Defendant SCSA facilitates training, it does so on behalf of the Port Employers. (Dkt. No. 55-18 at 54; Dkt. No. 56-7 at 82- 83; Dkt. No. 60-6 at 8-9; Dkt. No. 60-12 at 11-12.) Similarly, Defendant Local 1422 provides input on training, but the Port Employers have the final say as to when, where, and how any training occurs. (Dkt. No. 56-7 at 74-75, 82; Dkt. No. 56-7 at 82-83.) Although Plaintiff correctly notes that Defendants keep some administrative records in their respective offices, (Dkt. No. 59 at 18; Dkt. No. 60-12 at 7, 11-12), the Port Employers are ultimately responsible for handling Plaintiff's payroll, insurance, and taxes. (Dkt. No. 55-21 at 28-29.) Further, the Port Employers make decisions regarding any worker's compensation claims and requests for work accommodations. (Dkt. No. 55-21 at 28-29; Dkt. No. 56-7 at 78.) Finally, nothing in the record indicates that Plaintiff was “assigned” to or intended to create an employer-employee relationship with Defendants for her work on the docks. (See generally Dkt. No. 16; Dkt. No. 59; Dkt. No. 74.)

11 Although the record indicates that Defendant SCSA provides some equipment to longshore workers, this equipment is limited to equipment for training, safety equipment, and radios-Defendant SCSA does not provide the equipment that facilitates Plaintiff's actual work. (Dkt. No. 55-18 at 54.)

Plaintiff argues that Bill Bean, SCSA's Director, has sufficient control to discipline longshore workers and keep them from working. (Dkt. No. 59 at 10.) However, the record demonstrates that Mr. Bean only has authority to communicate the Port Employers' decisions relating to discipline and work status. (Dkt. No. 66 at 8-10, citing to Dkt. Nos. 55-3, 55-13, 55-15, 55-17, 55-18, 55-21, and 60-7). Further, Mr. Bean facilitates meetings and supplies the port employers with certain documentation relating to employees, but the record evidence shows that he does not have control of any such meetings and documentation. (Id.)

Plaintiff also focuses on Defendant Local 1422's input regarding Headers and Walking Bosses, ¹² claiming that Defendant Local 1422 provides daily supervision of longshore workers by choosing candidates for these roles. (Dkt. No. 71 at 3.) The testimony to which Plaintiff points in support of this assertion does not demonstrate that Defendant Local 1422 has exclusive authority to select Headers and Walking Bosses. (Dkt. No. 55-15 at 30; Dkt. No. 56-5 at 30-32.) This testimony indicates that the Port Employers make the final decision as to who will be selected. (Dkt. No. 55-15 at 30; Dkt. No. 56-5 at 30-32.)

12 As noted, “Headers” are the foremen who choose which longshore workers to hire on behalf of the stevedoring companies that order longshore work from Local 1422. (Dkt. No. 58-1 at 5.) “Walking Bosses” oversee the longshoreman working on the docks. (Dkt. No. 55-16 at 4.)

Further, the undersigned notes that Defendants' participation in the PGC is insufficient to demonstrate that they maintain control over Plaintiff consistent with a finding that they are her joint employers. Indeed, the record shows that the Port Employers also sit on the PGC and that decisions made by the PGC must be agreed upon by all committee members before disciplinary action is taken. (Dkt. No. 55-17 at 14; Dkt. No. 61-1 at 31.)

In sum, the Port Employers' duties are akin to a regular employer's duties, but Defendants' duties are not. (Dkt. No. 53-1 at 3-6, 9, 17-20; Dkt. No. 58-1 at 23.) Though Plaintiff works for each Port Employer on a project-specific basis (and Defendants provide administrative assistance to the Port Employers as a result of these short-term assignments), this cannot outweigh the abundant evidence indicating that the Port Employers maintain control over Plaintiff's employment. Accordingly, the undersigned recommends that Defendants do not jointly employ Plaintiff and, therefore, cannot be held liable for Title VII violations on this basis.

The cases cited by Defendants support this finding. For example, Defendants cite to a case from the Northern District of California, Lewis v. Pacific Maritime Association, 2007 WL 2429554 (N.D. Cal. Aug. 24, 2007), to argue that a trade association is not considered an employer of longshore workers. (Dkt. No. 53-1 at 20-21; Dkt. No. 67 at 10-11.) In Lewis, the court indeed found that the defendant, a collective bargaining agent, was not the Title VII employer of plaintiff, a longshore worker. Lewis, 2007 WL 2429554, at *12. The court looked to the terms of the collective bargaining agreements to find that defendant “lack[ed] the necessary level of control” to constitute the plaintiff's employer under Title VII. Id. While the undersigned recognizes that Lewis is not binding on this Court, its factual similarity to the case at hand renders it instructive. Defendant Local 1422 also cites to Ryals v. ILA Local 1771, 33 F.Supp.3d 634, 641 (D.S.C. 2014), for the proposition that a union derives its disciplinary authority from its role as a collective bargaining agent, not from its control over members. (Dkt. No. 67 at 8.) Though Ryals is factually distinct, the cited proposition suggests that a union like Defendant Local 1422 should not be considered a plaintiff's joint employer because it does not maintain requisite control. By contrast, Plaintiff provides no case law to suggest that the Butler factors weigh in favor of Defendants being classified as her joint employers. Defendant Local 1422 notes that it is “unaware of any federal court decision finding that a labor organization can be liable as an employer or joint employer under Title VII, pursuant to its role as exclusive representation” and that Plaintiff has cited no such case. (Dkt. No. 67 at 8-9.)

Thus, for the reasons stated above, the undersigned recommends that Defendants are not Plaintiff's joint employers, and that the Court should grant Defendant SCSA's Motion for Summary Judgment (Dkt. No. 53), grant Defendant Local 1422's Motion for Summary Judgment (Dkt. No. 56), and deny Plaintiff's Partial Motion for Summary Judgment (Dkt. No. 59).

II. Merits of Plaintiff's Title VII Claims

Even assuming that Defendants are Plaintiff's joint employers, Plaintiff's claims fail on the merits. The undersigned therefore recommends that Defendants' Motions for Summary Judgment (Dkt. No. 53; Dkt. No. 56) be granted, and that Plaintiff's Partial Motion for Summary Judgment (Dkt. No. 59) be denied, even if the Court does not agree with the undersigned's recommendation as to the joint employer issue.

A. Discrimination ¹³

13 The undersigned notes that Plaintiff's Amended Complaint does not sufficiently allege any claims against Local 1422 beyond her retaliation and harassment claims. (See Dkt. No. 29 at 19, n. 5.)

Defendant Local 1422 correctly notes that Plaintiff's Partial Motion for Summary Judgment brings a new claim. (Dkt. No. 67 at 28-29.) In her Partial Motion, Plaintiff contends that she was not allowed to perform certain work because she is a woman. (Dkt. No. 59 at 13-14.) Specifically, Plaintiff contends that Defendant Local 1422 had a policy prohibiting women from being hired for certain lashing jobs performed using heavy chains, instead of lighter straps. (Id. at 13.) In support of this assertion, she cites to testimony from Kenneth Riley stating that these jobs require very close (including chest-on-chest and thigh-on-thigh) physical contact among the workers tightening the chains. (Id. at 13-14, citing to Dkt. No. 60-11.) Plaintiff asserts that Local 1422's policy of prohibiting women from performing this work constitutes unlawful sex discrimination in violation of Title VII. (Id. at 21-24.) Defendant Local 1422 contends that the Court should not consider this claim because it was not included “in charges filed with the agency, ” nor in Plaintiff's Amended Complaint. (Dkt. No. 67 at 29.) The undersigned agrees.

To pursue a Title VII claim, a plaintiff is required to exhaust her administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) before filing suit. Sydnor v. Fairfax County, Va., 681 F.3d 591, 593 (4th Cir. 2012); 42 U.S.C. § 2000e-5(f)(1). Although administrative exhaustion is not a jurisdictional prescription delineating the adjudicatory authority of courts, exhaustion remains mandatory in the sense that a court must enforce the rule if a party properly raises it. Fort Bend County, Tx. v. Davis, 139 S.Ct. 1843, 1849-51 (2019).

The Fourth Circuit has explained:

The filing of an administrative charge is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit. Rather, Congress intended the exhaustion requirement to serve the primary purposes of notice and conciliation.

First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory actions. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning.

Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved. . . . The EEOC's role . . . is thus critical because it can promote voluntary settlement in a manner that a more adversarial process cannot.

Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted). Therefore, as a general rule, the scope of a subsequent lawsuit “is defined by the scope of the administrative charge from which it arises and from any findings that arise out of the investigation of the charge.” EEOC v. General Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976); see also Johnson v. Mabus, No. 2:16-cv-2073-RMG, 2017 WL 3037373, at *3 (D.S.C. July 18, 2017) (“[T]he allegations in the EEOC charge determine the scope of a plaintiff's right to file a federal lawsuit.”). Accordingly, only those claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) (sexual harassment and discriminatory pay and benefits claims dismissed because EEOC complaint alleged only a failure to promote); see also Chacko, 429 F.3d at 509 (noting that “factual allegations made in formal litigation must correspond to those set forth in the administrative charge”). Although there is no bright-line rule for determining whether a plaintiff's federal claim is “reasonably related” to her original administrative charge, the Fourth Circuit generally “will bar a claim if the basis for the alleged harm claimed differs between the administrative charge and the complaint.” Bolds v. S.C. Dep't of Mental Health, No. 2:20-cv-01653-RMG-MHC, 2021 WL 1413324, at *6 (D.S.C. Feb. 11, 2021), adopted, 2021 WL 960506 (D.S.C. Mar. 15, 2021) (quoting Tonkin v. Shadow Mgmt., Inc., No. 3:12-cv-00198-JFA, 2014 WL 4063626, at *4 (D.S.C. Aug. 14, 2014), aff'd, 605 Fed.Appx. 194, 194 (4th Cir. 2015)).

Here, Plaintiff filed two charges with the EEOC before filing the instant civil action. Both charges allege sex and age discrimination in the form of retaliation and hostile work environment. (Dkt. No. 56-18 at 1; Dkt. No. 56-19 at 1.) In her charges, Plaintiff describes various incidents of sexual harassment and inappropriate touching. (Dkt. No. 56-18 at 2-3; Dkt. No. 56-19 at 3-7.) She alleges that she was retaliated against after reporting these incidents. (Dkt. No. 56-18 at 2-3; Dkt. No. 56-19 at 3-7.) Plaintiff describes derogatory comments from her co-workers and instances where her harassers' friends conspired to ensure that she was not chosen for work on “carboats.” (Dkt. No. 56-18 at 2-3; Dkt. No. 56-19 at 3-7.) However, Plaintiff never mentions that she sought lashing work involving chains and does not indicate that she was denied the opportunity to perform such work. (See generally Dkt. No. 56-18; Dkt. No. 56-19.) In fact, Plaintiff does not mention that women are prohibited from performing any type of dock work (involving chains or otherwise). (See generally Dkt. No. 56-18; Dkt. No. 56-19.)

It is well settled that “factual allegations made in formal litigation must correspond to those set forth in the administrative charge.” See Chacko, 429 F.3d at 509. As noted, Plaintiff's EEOC charges contain no allegations that Plaintiff was denied the opportunity to perform work using chains. (See generally Dkt. No. 56-18; Dkt. No. 56-19.) Further, Plaintiff's newly asserted claim is distinct from the harassment, hostile work environment, and retaliation claims alleged in her EEOC charges, as those claims have nothing to do with her ability to perform a specific category of dock work. (Dkt. No. 56-18 at 2-3; Dkt. No. 56-19 at 3-7.) Thus, the undersigned cannot conclude that Plaintiff's newly asserted discrimination claim is reasonably related to the allegations in her EEOC charges, nor that it would arise from a reasonable investigation of the allegations in such charges. See, e.g., Evans, 80 F.3d at 962-63 (sexual harassment and discriminatory pay and benefits claims dismissed because EEOC complaint alleged only a failure to promote).¹⁴ The undersigned therefore recommends that this claim be dismissed for failure to exhaust.¹⁵

14 Further, Defendants had no notice of or opportunity to investigate Plaintiff's allegations of discrimination because she did not include them in her charges, her original complaint, or her Amended Complaint. (See generally Dkt. No. 1; Dkt. No. 16; Dkt. No. 56-18; Dkt. No. 56-19.) Rather, Plaintiff did not make these allegations until well after the close of discovery, depriving Defendants of the opportunity to develop the record with respect to this claim.

15 To the extent Plaintiff attempts to bring a separate discrimination claim based on Defendants' purported failure investigate and/or adjudicate her claims of sexual harassment and retaliation, any such claim must fail for the reasons stated infra.

B. Hostile Work Environment

To establish a claim for hostile work environment based on sexual harassment under Title VII, Plaintiff must show that: (1) “she experienced unwelcome harassment, ” (2) the harassment was based on her sex, (3) “the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, ” and (4) “there is some basis for imposing liability on the employer.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Defendants argue that Plaintiff fails to establish a prima facie case for her sexual harassment claim. (Dkt. No. 53-1 at 22-27; Dkt. No. 58-1 at 24-25, 29-32.) Specifically, Defendants argue that Plaintiff does not provide any basis for imposing liability on them with respect to this claim. (Dkt. No. 53-1 at 22-27; Dkt. No. 58-1 at 24-25, 29-32.) For the reasons set forth below, the undersigned agrees.

In describing her harassment and hostile work environment, Plaintiff alleges that she has “experienced pervasive and unwanted sexual harassment at work” in the form of inappropriate touching, groping, and rubbing. (Dkt. No. 74 at 2.) She claims that she has been subjected to degrading, humiliating, and offensive comments by her male co-workers and supervisors. (Id.) She further claims that her male co-workers play sexual videos loudly on their cellphones, and that they openly discuss their sexual exploits. (Id. at 2-3.) Plaintiff notes that she was inappropriately touched by Mr. Snipe (a co-worker) in the work shuttle. (Id. at 3.) She explains that Mr. Snipe also attempted to rub up against her buttocks prior to this incident, and that he refused to move away when she asked him to do so. (Id.) Plaintiff contends that it is common knowledge among the longshore workers that she filed a sexual harassment complaint against Mr. Snipe following the incident in the work shuttle, and that she was not chosen for work after filing this complaint. (Id. at 5.) Plaintiff asserts that other women also experienced harassment, and that Defendant Local 1422 was aware of a culture promoting sexual harassment. (Id. at 3, 14.) She also claims that Mr. Smalls (another co-worker) attempted to touch her buttocks as she sat down on the work shuttle. (Id. at 6.) Plaintiff asserts that Mr. Smalls did this to other women, as well, and that she reported him to Mr. Riley. (Id.)

At the outset, the undersigned notes that Plaintiff does not respond to Defendant SCSA's arguments relating to this claim. (See generally Dkt. No. 74.) Although Plaintiff's Amended Complaint brings harassment claims against both Defendants, her response brief asserts only that “Ms. Nelson has presented sufficient evidence for a reasonable jury to find Local created and cultivated a hostile work environment.” (Dkt. No. 74 at 30) (emphasis added.) In fact, Plaintiff's response brief does not make any allegations against Defendant SCSA with respect to her hostile work environment claim. (Id. at 30-31.) Thus, the undersigned must assume that Plaintiff has abandoned her hostile work environment claim against Defendant SCSA. See Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in opposition memorandum had been abandoned). The undersigned therefore recommends that Defendant SCSA's Motion for Summary Judgment (Dkt. No. 53) be granted with respect to this claim and limits the remaining discussion accordingly.¹⁶

16 Even if the Court were to conclude that Plaintiff has not abandoned her hostile work environment claim against Defendant SCSA, the record does not reflect that Defendant SCSA knew of and failed to take action to remedy Plaintiff's purported harassment. (See generally Dkt. No. 53-1; Dkt. No. 58-1; Dkt. No. 74; Dkt. No. 80; Dkt. No. 81.)

An employer may be liable for hostile work environments created by co-workers and third parties if the employer “knew or should have known about the harassment and failed to take effective action to stop it by responding with remedial action reasonably calculated to end the harassment.” Pryor v. United Air Lines, Inc., 791 F.3d 488, 498 (4th Cir. 2015) (internal quotation marks, citation, and alterations omitted); see Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (“In a case where an employee is sexually harassed by a coworker, the employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it.”). Here, Plaintiff contends that Defendant Local 1422 had knowledge of Plaintiff's sexual harassment because she reported it to Mr. Riley and submitted written grievances to the PGC. (Dkt. No. 74 at 3, 6.) She claims that this provides a basis for imputing liability for her purported harassment to Defendant Local 1422 because it failed to take action following her complaints. (Id. at 31.)

However, the record reflects that Defendant Local 1422 did take action to end Plaintiff's alleged harassment following her complaints. With respect to Plaintiff's allegations about Mr. Snipe, Mr. Riley testified that he spoke to Mr. Snipe about Plaintiff's allegations and gave him “the ninth degree” before instructing him not to touch anyone in the work shuttle. (Dkt. No. 56-5 at 40.) Moreover, the PGC held a hearing on Plaintiff's claims against Mr. Snipe and ultimately suspended him for thirty days. (Dkt. No. 56-3 at 32; Dkt. No. 60-1 at 1-6.) Plaintiff does not allege that Mr. Snipe harassed her at any point following his suspension. (See generally Dkt. No. 16; Dkt. No. 74.) Indeed, Plaintiff testified that Mr. Snipe never again spoke to or touched her inappropriately. (Id.) Thus, Plaintiff cannot demonstrate that Defendant Local 1422 knew about this harassment but “failed to take effective action to stop it by responding with remedial action reasonably calculated to end [it].” Pryor, 791 F.3d at 498 (internal quotation marks, citation, and alterations omitted).

As for Plaintiff's allegations relating to co-worker Smalls, Plaintiff testified that she did not file a written grievance against him because she was experiencing retaliation for her grievance against Mr. Snipe and feared that she would lose all work if she filed another. (Dkt. No. 56-3 at 33.) Plaintiff testified that she instead told Mr. Riley about the harassment. (Id.) She stated that Mr. Riley told her he would speak with Mr. Smalls, but she “felt that [his actions] didn't warrant speaking to him.” (Id.) Nonetheless, Mr. Riley stated that he talked to Mr. Smalls about his misconduct. (Dkt. No. 56-7 at 80-81.) As with Mr. Snipe, Plaintiff confirmed during her deposition that Mr. Smalls never touched her inappropriately again after she reported him. (Dkt. No. 56-3 at 33.) Accordingly, Plaintiff cannot show that Defendant Local 1422 knew about this harassment but failed to take action to stop it. See Pryor, 791 F.3d at 498 (explaining that an employer may be liable for harassment by co-workers if the employer knew about the harassment and failed to respond with remedial action reasonably calculated to end it).

Plaintiff's remaining allegations cannot sustain her hostile work environment claim because she does not provide evidence that Defendant Local 1422 had knowledge of any other harassment that it willingly ignored. (See generally Dkt. No. 56-3; Dkt. No. 74.) Although Plaintiff contends that Defendant Local 1422 was aware of a culture promoting sexual harassment, Mr. Riley's deposition indicates that Defendant Local 1422 made efforts to improve its policies and procedures after receiving complaints from Plaintiff and other women. (See generally Dkt. No. 56-7.) For example, Mr. Riley testified that Defendant Local 1422 denounces sexual harassment and reminds union workers of ways to prevent sexual harassment prior to every hiring event. (Dkt. No. 56-7 at 59.) Mr. Riley also noted that he increased supervision in response to these complaints. (Id. at 7.) He explained that the “Walking Boss” position was created for this purpose. (Id.)

For these reasons, Plaintiff has failed to demonstrate that “there is some basis for imposing liability” on Local 1422 as her employer. Bass, 324 F.3d at 765. As such, she cannot establish a prima facie case for hostile work environment based on sexual harassment under Title VII, and the undersigned recommends that Defendant Local 1422's Motion for Summary Judgment (Dkt. No. 56) be granted as to this claim.

C. Retaliation

A plaintiff may establish unlawful retaliation by her employer under Title VII through either the mixed-motive framework or the McDonnell Douglas pretext framework. See Perkins v. Int'l Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019) (referencing Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015)). Where, as here, a plaintiff has not presented direct or circumstantial evidence of retaliation, the plaintiff's claims must be analyzed pursuant to the burden-shifting pretext framework.¹⁷

17 Although Plaintiff's Partial Motion for Summary Judgment describes various standards under which Title VII discrimination and retaliation claims may be analyzed, she argues her retaliation claims only under the McDonnell Douglas pretext framework in both her Partial Motion for Summary Judgment and her response in opposition to Defendants' Motions for Summary Judgment. (See generally Dkt. No. 59; Dkt. No. 74 at 25-29.) Defendants also use the McDonnell Douglas pretext framework in arguing that they are entitled to summary judgment on these claims. (Dkt. No. 53-1 at 27-29; Dkt. No. 58-1 at 25-29.) Accordingly, the undersigned has used the McDonnell Douglas pretext framework here.

Under this framework, a plaintiff must first make a prima facie showing of retaliation by proving that: (1) she engaged in a protected activity; (2) her employer took a materially adverse action against her; and (3) there was a causal link between the two events. Perkins, 936 F.3d at 213. In order to establish a causal connection between the protected activity and alleged retaliation, the plaintiff must establish that the decisionmaker had knowledge that she engaged in the protected activity and retaliated against her because of that protected activity. Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007); see also Lambert v. Centerra Grp., Inc., No. 1:18-cv-520-TLW-PJG, 2019 WL 8164782, at *4 (D.S.C. Aug. 19, 2019), adopted, 2020 WL 1082244 (D.S.C. Mar. 6, 2020) (referencing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 362 (2013)) (“A plaintiff must show that but for the protected activity, he would not have experienced the alleged adverse act.”).

If a plaintiff can establish a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. Marzett v. Charleston Cty. Sch. Dist., No. 2:14-cv-3932-RMG-MGB, 2017 WL 1274254, at *10 (D.S.C. Jan. 27, 2017), adopted, 2017 WL 589110 (D.S.C. Feb. 14, 2017), aff'd, 697 Fed.Appx. 186 (4th Cir. 2017) (referencing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998)). The plaintiff then bears the ultimate burden of proving that the proffered reason is pretext for unlawful retaliation. Id.

1. Suspensions

Plaintiff first contends that no genuine issue of material fact exists as to whether Defendants retaliated against her by: (1) suspending her for thirty days after she filed a grievance against Mr. Smith, and (2) suspending her for approximately six months after receiving her doctor's request for remedial measures. (Dkt. No. 16 at 5-8; Dkt. No. 59 at 2.) Defendants similarly assert that they are entitled to summary judgment here. (Dkt. No. 53-1 at 27-29; Dkt. No. 58-1 at 25-29.) Defendants argue that Plaintiff cannot establish causation, and cannot demonstrate that their legitimate, non-retaliatory reasons for these acts are pretextual. (Dkt. No. 53-1 at 27-29; Dkt. No. 58-1 at 25-29.)

i. Thirty-Day Suspension ¹⁸

18 Defendant Local 1422 argues that “Plaintiff failed to exhaust her contractual remedies when she did not appeal the decision of the Port Grievance Committee imposing a thirty (30) day suspension against her to the District Appeals Committee.” (Dkt. No. 58-1 at 21.) In other words, Defendant Local 1422 contends that Plaintiff did not fully exhaust the contractual grievance procedures available to her under the collective bargaining agreement and that “any claims Plaintiff advances in this lawsuit from her suspension” are therefore barred. (Id.) However, the undersigned finds that Plaintiff's retaliation claim based on her thirty-day suspension fails on the merits and should be dismissed on this basis. Thus, the undersigned need not address Defendant Local 1422's exhaustion argument. Regardless, failure to exhaust purely contractual remedies does not necessarily preclude Title VII actions. Toney v. Seaboard Sys. R.R., No. CIV.A. C-83-1298-R, 1987 WL 13322, at *20 (M.D. N.C. Apr. 3, 1987) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)).

As noted, Plaintiff filed a grievance against Mr. Smith with the PGC, alleging that he twisted her wrist in the hiring hall. (Dkt. No. 60-3 at 1.) She filed this grievance on August 14, 2017. (Id.) After conducting a hearing on this grievance, the PGC dismissed Plaintiff's charge. (Id. at 4.) On October 5, 2017, Mr. Smith filed a grievance against Plaintiff for “creating a hostile work environment and filing false charges” against him. (Dkt. No. 60-4 at 1.) In January 2017, the PGC found Plaintiff guilty of making false allegations against Mr. Smith and suspended her for thirty days. (Id. at 4.)

It is well settled that Plaintiff may satisfy the causation element of her prima facie case for retaliation by showing that the alleged retaliation closely followed the protected activity. Hinton v. Virginia Union Univ., 185 F.Supp.3d 807, 837 (E.D.Va. 2016). The Fourth Circuit has observed that in order for a temporal relationship to support a reasonable inference of retaliatory causation, the temporal relationship must be “very close.” Pascual v. Lowe's Home Ctrs., 193 Fed.Appx. 229, 233 (4th Cir. 2006) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Although there is no bright-line rule for determining when a temporal relationship is “very close, ” the Fourth Circuit has held that as little as three months between a plaintiff's protected activity and a defendant's retaliatory act is too long to give rise to an inference of causality. Id. (three-to-four-month period too long to establish causation).

Here, Plaintiff's protected activity occurred approximately six months before Defendants' alleged retaliatory act. (See generally Dkt. No. 60-3; Dkt. No. 60-4.) Such an extended period is insufficient to establish causation based on temporal proximity alone. However, a plaintiff may “put forth a sufficient explanation for the time elapsed between the protected activity and the alleged retaliation” to satisfy the causation requirement. Hinton, 185 F.Supp.3d at 837; see also Perry v. Kappos, 489 Fed.Appx. 637, 643 (4th Cir. 2012) (“Where the time between the events is too great to establish causation based solely on temporal proximity, a plaintiff must present ‘other relevant evidence . . . to establish causation,' such as ‘continuing retaliatory conduct and animus' in the intervening period.” (quoting Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007))). In this instance, Plaintiff has provided evidence demonstrating that the extended time between her grievance against Mr. Smith and the PGC's decision to suspend her was solely due to the PGC's mandated hearing procedures. (See generally Dkt. No. 60-4.) The undersigned therefore concludes that Plaintiff has provided sufficient evidence for the Court to infer a causal link between her protected activity and Defendants' alleged retaliatory act. See Strothers v. Laurel, 895 F.3d 317, 335 (4th Cir. 2018) (noting that establishing causation “is not an onerous burden” at the prima facie stage). Regardless, Plaintiff has failed to establish that Defendants' proffered non-retaliatory reason for her thirty-day suspension was pretextual.

At the outset, the undersigned notes that the PGC made the decision to suspend Plaintiff for thirty days, not Defendants. (See generally Dkt. No. 53-1; Dkt. No. 58-1; Dkt. No. 59.) As noted, the PGC includes representatives from Local 1422 and representatives of the Port Employers, and Mr. Bean sits on the PGC as a spokesperson for SCSA's member companies. (Dkt. No. 53-1 at 7-8.) Further, all PGC members must agree on a decision before taking disciplinary action. (Dkt. No. 55-17 at 14; Dkt. No. 61-1 at 31.) Thus, the decision to suspend Plaintiff came from a neutral committee consisting of members not connected to Plaintiff, Mr. Smith, or their dispute, which significantly undermines Plaintiff's claim that Defendants retaliated against her on account of her protected complaints. (Dkt. No. 60-4 at 4; Dkt. No. 61-1 at 31.)

Moreover, Defendants have set forth a legitimate, non-retaliatory reason for the PGC's decision to suspend Plaintiff. Indeed, Defendants contend that the PGC suspended Plaintiff due to an honest belief that she filed a false complaint against Mr. Smith. (Dkt. No. 53-1 at 27-28; Dkt. No. 58-1 at 27.) Defendants assert that the PGC¹⁹ concluded Plaintiff falsely accused Mr. Smith of twisting her wrist because video footage of the incident²⁰ did not support her claims. (Dkt. No. 53-1 at 27-28; Dkt. No. 58-1 at 27.) The record confirms these assertions. (See generally Dkt. No. 57-3; Dkt. No. 60-3; Dkt. No. 60-4.)

19 Defendant SCSA contends that it is not a part of the PGC and therefore cannot be held liable for retaliation by the PGC. (Dkt. No. 66 at 11.) As stated herein, the undersigned recommends that Plaintiff's retaliation claim based on the PGC's decision to suspend her for thirty days cannot survive summary judgment. Thus, the undersigned declines to address Defendant SCSA's additional argument.

20 The parties have submitted this video footage for the undersigned's review in connection with the motions before the Court. (Dkt. No. 54-9; Dkt. No. 56-2; Dkt. No. 74-11.) Upon watching the video, the undersigned must agree with Plaintiff that the video is inconclusive as to whether Mr. Smith did, in fact, twist her wrist. (Id.) Indeed, the video has no sound and no view of Plaintiff's wrist. (Id.) However, the camera angle could have captured abrupt movements by Plaintiff in response. (Id.) Based on the undersigned's review, the video does not reflect any such movements. (Id.) Regardless, it is not the Court's place to determine whether the PGC's perception of the video was correct, so long as it was honest. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000). The video therefore cannot create a genuine issue of material fact as to Plaintiff's retaliation claim based on her thirty-day suspension.

In response, Plaintiff argues that the Court must find that Defendants' reason is false because Defendants did not sufficiently investigate Mr. Smith's grievance and made the wrong conclusion about the video evidence presented.²¹ (Dkt. No. 59 at 34-35; Dkt. No. 71 at 4-6; Dkt. No. 74 at 28.) In making these arguments, Plaintiff seems to misunderstand the purpose of the pretext inquiry. “When an employer gives a legitimate, non-discriminatory reason for discharging the plaintiff, ‘it is not [the court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.'” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)). Indeed, the Court may not act as “a super-personnel department, weighing the prudence of employment decisions made by [Defendants].” DeJarnette, 133 F.3d at 299; see also Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017) (citing Richey v. City of Independence, 540 F.3d 779, 785 (8th Cir. 2008) (“[W]hen an employer is presented with a ‘he said, she said' set of facts involving two employees, and the employer disbelieves the employee and disciplines her, the employer is not liable so long as it took the adverse action because of a good faith belief that the employee made false accusations.”)); Moses v. Correct Care of S.C., LLC, No. 3:18-cv-2358-JFA-SVH, 2020 WL 2899157, at *6 (D.S.C. June 3, 2020) (employer's good-faith mistake in firing a plaintiff for misconduct she did not commit is not a Title VII violation). Rather, a court's inquiry is limited to whether the proffered non-discriminatory reason was the true reason for the defendant's actions. Hawkins, 203 F.3d at 279. Thus, whether the Court agrees that the PGC's overall conclusion as to Mr. Smith's complaint was correct is not pertinent to the pretext analysis. See DeJarnette, 133 F.3d at 299 (explaining that the court must not substitute its judgment for the employer's when analyzing pretext).

21 Plaintiff further alleges that Defendants destroyed additional video evidence of the incident, arguing that “[b]ased upon that the Plaintiff has made out pretext.” (Dkt. No. 74 at 28.) However, Plaintiff provides only her personal affidavit to support these serious allegations, with no corroborating evidence. (Dkt. No. 74-1 at 9.) In other words, Plaintiff has provided the Court with nothing more than her own speculation in making these assertions. (Id.) Such speculation is insufficient to create a genuine issue of material fact. Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (noting that “conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence” cannot create genuine issues of material fact). Further, Defendant Local 1422 has provided sworn declarations refuting Plaintiff's contentions, and nothing in the record supports Plaintiff's claims that a second video ever existed. (Dkt. No. 57-16 at 2-5; Dkt. No. 57-17 at 2-3.)

Here, the record supports that the PGC decided to suspend Plaintiff solely because of its good faith belief that Plaintiff filed a false complaint against Mr. Smith. Mr. Riley testified that he found the video footage of the incident to be clear evidence that Mr. Smith did not twist Plaintiff's arm because she did not “stomp[] out” or “yell[] out” and just “walked away, ” contrary to the allegations in her grievance. (Dkt. No. 16 at 7; Dkt. No. 56-7 at 36.) He further noted that the video did not reflect any unusual behaviors from Plaintiff that would indicate she was harmed. (Id. at 17-19.) He explained that the PGC looked for the things that Plaintiff outlined in her grievance against Mr. Smith but “didn't see any of those reactions.” (Id. at 19.) He also explained that Plaintiff's written grievance against Mr. Smith did not align with what she reported to him directly-that Mr. Smith “touched her hand.” (Id.) The letters that Plaintiff received regarding the PGC's decisions on her complaint against Mr. Smith and Mr. Smith's complaint against her support this testimony, (Dkt. No. 60-3 at 4; Dkt. No. 60-4 at 4), and Plaintiff does not point the Court to any record evidence to contradict it. (Dkt. No. 59 at 34-35; Dkt. No. 71 at 4-6; Dkt. No. 74 at 28-29.) Plaintiff has not produced evidence that Defendants' proffered reason for her suspension has changed over time, or that it is merely a post hoc rationalization. See Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir. 2002) (citing EEOC v. Sears Roebuck, 243 F.3d 846, 852-53 (4th Cir. 2001) (“The fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext.”). In other words, Plaintiff has failed to establish that the PGC did not honestly believe she filed a false complaint against Mr. Smith. (See generally Dkt. No. 59; Dkt. No. 56-3; Dkt. No. 74.)

As for Plaintiff's argument regarding the PGC's insufficient investigations into these grievances, the record reflects that the PGC conducted at least a good faith investigation. For example, the PGC held separate hearings to address Plaintiff's grievance against Mr. Smith and Mr. Smith's grievance against Plaintiff. (Dkt. No. 56-7 at 15-21, 33-36.) Mr. Riley testified that the PGC reviewed video footage and heard statements from the parties during those hearings. (Id.) He explained that the PGC decided not to hire an outside organization to investigate further because it had sufficient information on which to make its rulings. (Id.) Regardless, “the fact that [Defendant's] investigation may not have been as thorough as [Plaintiff] would have liked does not establish pretext.” Nnadozie v. ManorCare Health Servs., LLC, 792 Fed.Appx. 260, 262-63 (4th Cir. 2019) (citing Bonds v. Leavitt, 629 F.3d 369, 386 (4th Cir. 2011)); Dinda v. CSC Gov't Sols., LLC, No. 2:17-cv-03171-DCN-MGB, 2019 WL 4280370, at *12 (D.S.C. Mar. 21, 2019), adopted, 2019 WL 3244186 (D.S.C. July 19, 2019) (“Plaintiff's contentions regarding the veracity of Defendants' investigation and the fairness of his termination are not relevant to the pretext inquiry. [A]n employer's failure to adhere to common notions of fairness in the termination process is not probative of discriminatory intent and cannot show pretext.” (internal quotation marks and citation omitted)).

Because Plaintiff has failed to provide evidence demonstrating that Defendants' proffered reason for suspending her was pretext for unlawful retaliation, the undersigned recommends that Plaintiff's retaliation claim be dismissed to the extent it is based on her thirty-day suspension. Edwards v. BCDR, LLC, No. 3:19-cv-02671-JMC, 2021 WL 2562408, at *7 (D.S.C. June 23, 2021) (“[T]he lack of conclusive video evidence certainly does not help Plaintiff carry her burden of disputing that Defendant honestly believed she lied in her complaint.” (emphasis in original)).

ii. Six-Month Suspension

Plaintiff also contends that there is no genuine issue of material fact as to whether Defendants retaliated against her by suspending her for six months following her request for remedial measures, and therefore asserts that she is entitled to summary judgment on this claim. (Dkt. No. 16 at 5-8; Dkt. No. 59 at 2.) Defendants similarly contend that they are entitled to summary judgment here. (Dkt. No. 53-1 at 28-29; Dkt. No. 58-1 at 29.) As with Plaintiff's thirty-day suspension, Defendants argue that they are entitled to summary judgment because Plaintiff cannot establish causation and cannot demonstrate that their legitimate, non-discriminatory reason for suspending Plaintiff in this instance was pretext for unlawful retaliation. (Dkt. No. 53-1 at 28- 29; Dkt. No. 58-1 at 29.)

With respect to causation, the undersigned finds that Plaintiff's six-month suspension was too far removed from her protected activity to establish a causal relationship based on temporal proximity. Plaintiff requested remedial measures in July of 2018. (Dkt. No. 60-5 at 1; Dkt. No. 59 at 4; Dkt. No. 74 at 11.) Defendant Local 1422 correctly notes that Plaintiff made this request more than one year²² after she engaged in protected activity by filing her complaint against Mr. Snipe, and several months after filing her complaint against Mr. Smith. (Dkt. No. 58-1 at 29.) Defendants contend that the temporal relationship between these events is too remote to establish causation. (Dkt. No. 53-1 at 28; Dkt. No. 58-1 at 29.) As noted, Plaintiff may establish causation by showing that Defendants' alleged retaliation had a “very close” temporal relationship to her protected activity. Hinton, 185 F.Supp.3d at 837; Pascual, 193 Fed.Appx. at 233 (quoting Breeden, 532 U.S. at 273). However, the undersigned agrees with Defendants that several months to a year is not “very close” temporal proximity in the Fourth Circuit. See Pascual, 193 Fed.Appx. at 233 (three-to-four-month period too long to establish causation). Although a plaintiff may “put forth a sufficient explanation for the time elapsed between the protected activity and the alleged retaliation” to satisfy the causation requirement, Hinton, 185 F.Supp.3d at 837, Plaintiff has not done so here. (See generally Dkt. No. 59; Dkt. No. 70; Dkt. No. 71; Dkt. No. 74.)

22 Similarly, Plaintiff complained to Mr. Riley that she was not being hired in May 2017-more than one year before her request for remedial measures (Dkt. No. 74 at 6.)

Further, Plaintiff has set forth no evidence to demonstrate that Defendants' proffered non-retaliatory reason for this suspension is pretextual. (See generally Dkt. No. 59; Dkt. No. 70; Dkt. No. 71; Dkt. No. 74.) Plaintiff requested remedial measures as a result of her “PTSD, panic disorder, GAD, major depression and insomnia.” (Dkt. No. 60-5 at 1.) She also requested a specific remedial measure relating to the harassment she previously experienced-“to let her ride in front of the shuttle due to anxiety related to [] work trauma.” (Dkt. No. 60-5 at 1-2; Dkt. No. 60-9 at 2.) Defendants assert that Plaintiff was suspended due to “concern for human life.” (Dkt. No. 53-1 at 28.) More specifically, Defendants explain that the Port Employers wanted to ensure that Plaintiff could safely perform dock work, given her impairments. (Dkt. No. 53-1 at 28; Dkt. No. 67 at 21.) Defendants further explain that Plaintiff was suspended until she could confirm that she was fit for duty. (Dkt. No. 53-1 at 28; Dkt. No. 67 at 22.) Defendants' contentions are supported by the record. (Dkt. No. 53-18 at 1; Dkt. No. 54-8 at 2-36; Dkt. No. 55-17 at 63-64; Dkt. No. 55-18 at 74; Dkt. No. 55-21 at 39; Dkt. No. 56-15 at 32-33.) Thus, Defendants have set forth a legitimate, non-discriminatory reason for suspending Plaintiff and Plaintiff must show that this reason is pretext for unlawful retaliation. Marzett, 2017 WL 1274254, at *10.

In arguing pretext, Plaintiff explains that she was allowed to ride in the front seat of the work shuttle for two weeks before she was suspended. (Dkt. No. 70 at 2.) She suggests that this is inconsistent with Defendants' proffered reason for suspending her and, therefore, shows that Defendants' reason is pretextual. (Dkt. No. 74 at 11-13, 28-29.) However, the testimony that Plaintiff cites in support of these contentions does not actually reflect an inconsistency with Defendants' proffered reason. (Dkt. No. 56-15 at 32-33.) Rather, this testimony explains that Mark Weatherford (a site operations manager for a Port Employer, Ports America) received Plaintiff's letter requesting remedial measures and had no problem with her riding in the front of the work shuttle. (Id. at 32.) Mr. Weatherford testified that he was, however, concerned about Plaintiff safely working on the docks because of her insomnia. (Id.) Mr. Weatherford explains that he brought his concern about Plaintiff's insomnia to the PGC and the PGC coordinated with Plaintiff to “get her a fit-for-duty, just to make sure she was okay to drive cars.” (Id.) As such, the fact that Plaintiff was allowed to ride in the front seat of the work shuttle is not inconsistent with Defendants' explanation that Plaintiff was suspended pending confirmation that her impairments would not affect her ability to safely perform her job.

Plaintiff also argues that Defendants' proffered reason is pretextual because “former Chief Delegate Mr. McNeil's testimony directly contradicts [it].” (Dkt. No. 74 at 13.) According to Plaintiff, “[h]e testified the reasons SCSA would not let her work, wasn't related to safety; rather, it was because they did not want her riding in the front seat of the shuttle.” (Id.) Mr. McNeil's testimony reads:

Q. And can you tell me, you know, what you recognize that document to be?

A. Oh, this was something telling me at the time Miss Christy couldn't work until they find out further reasons, I guess, from her doctor at the time. I was thinking an attorney by then, but I found out more it was a doctor. So I can allow her to go to work. I spoke with Kenny Riley and OBM about it; and they told me until further notice, she couldn't work. . . .

Q. And did you know exactly what was going on at the - why they had made that decision?

A. Well, I mean, apparently . . . it had something to do with her riding in the shuttle ..... She requested to be in the front, for whatever reason; and company had a problem with, yes, sir, her wanting to sit where she want to sit at. Apparently she had it for her physical or whatever, mental, whatever reason; and that's all I know about it. And they tell me, “Well, until they get further information from the lawyers or the doctor, that she couldn't go to work.”

(Dkt. No. 55-22 at 15-16.) Taken as a whole, this testimony demonstrates that Mr. McNeil was not privy to Defendants' reasons for suspending Plaintiff. (Id.) Further, it does not necessarily indicate that Plaintiff was suspended because the Port Employers did not appreciate her request to sit in the front of the work shuttle. (Id.) Rather, this testimony suggests that Plaintiff was suspended until she could provide further information from her doctor regarding her requested remedial measures. (Id.) The record evidence clearly demonstrates that this has been Defendants' reason for suspending Plaintiff from the outset. (Dkt. No. 53-18 at 1; Dkt. No. 54-8 at 2-36; Dkt. No. 55-17 at 63-64; Dkt. No. 55-18 at 74; Dkt. No. 55-21 at 39; Dkt. No. 56-15 at 32-33.)

Finally, Plaintiff contends that Defendants' non-retaliatory reason for suspending her is pretextual because “Ms. Nelson provided them with a fitness for duty evaluation in September of 201[8] [and] there was no reason to keep her out of work until mid-February of 201[9] other than to retaliate against her.” (Dkt. No. 74 at 13.) In response, Defendants explain that Plaintiff's fitness for duty evaluation stated that Plaintiff continued to suffer from the same impairments. (Dkt. No. 53-1 at 29; Dkt. No. 66 at 14, citing to Dkt. No. 54-7; Dkt. No. 54-2 at 6-7; Dkt. No. 67 at 21.) Defendant SCSA further explains that “Plaintiff's representative communicated with Management's representative and, eventually, Management's attorney spoke directly with the treating physician. After that, Management was satisfied that Plaintiff was no longer a risk and allowed her to return to work, as well as offering her an accommodation.” (Dkt. No. 54-2 at 6-7; Dkt. No. 66 at 14, citing to Dkt. No. 53-16.) Plaintiff does not respond to this explanation and provides no evidence to contradict it. (See generally Dkt. No. 59; Dkt. No. 70; Dkt. No. 71; Dkt. No. 74.) Plaintiff's mere speculation that Defendants must have retaliated against her because she was not allowed to go back to work until several months after submitting her fitness for duty report is insufficient to establish pretext. Dash, 731 F.3d at 311 (noting that “conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence” cannot create genuine issues of material fact).

Based on the above, Plaintiff cannot establish that Defendants' legitimate, non-retaliatory reason for her six-month suspension is pretext for unlawful retaliation. The undersigned therefore recommends that the Court dismiss Plaintiff's retaliation claim to the extent it is based on this suspension.

2. Failure to Hire

Plaintiff also alleges that Defendants retaliated against her by not hiring her to work on the docks on certain days. (Dkt. No. 16 at 6-7; Dkt. No. 59 at 29-35.) Defendant Local 1422²³ contends that Plaintiff has failed to provide sufficient evidence in support of this claim and has failed to dispute the legitimate, non-retaliatory reasons Plaintiff was not hired on the days in question. (Dkt. No. 58-1 at 28-29; Dkt. No. 67 at 23-28; Dkt. No. 81 at 2-8.) Because Plaintiff cannot demonstrate that unlawful retaliation was the “but for” reason she was not hired on the dates alleged, the undersigned recommends that Plaintiff's failure to hire retaliation claim be dismissed.

23 Defendant SCSA does not address this allegation in its briefs. Instead, Defendant SCSA reiterates that it does not control Plaintiff's hiring and therefore cannot be held liable for this purported retaliation. (See generally Dkt. No. 53-1; Dkt. No. 66; Dkt. No. 81.)

Plaintiff specifically claims that she was not selected for work in violation of her seniority on the following dates: April 27, 2017; May 17, 2017; May 19, 2017; May 20, 2017; June 11, 2017; June 25, 2017; May 1, 2019; May 4, 2019; July 19, 2019; and August 19, 2019.²⁴ (Dkt. No. 59 at 3; Dkt. No. 74 at 5-6.) She claims that she was not hired on these dates in retaliation for her protected complaints against Mr. Snipe and Mr. Smith. (Dkt. No. 59 at 33-34; Dkt. No. 61-2 at 2- 3; Dkt. No. 74 at 4, 28.) In support of these claims, Plaintiff submits a personal affidavit, “daily work lists” for the days in question, her personal notes reflecting dates she was not hired, and affidavits from other female longshore workers explaining that women who report sexual harassment do not get hired. (Dkt. No. 74-3 at 4; Dkt. No. 74-6 at 2-17.) She also cites to testimony from Mr. Riley describing discretion given to Headers in the hiring process, and testimony from Mr. Smith stating: “the less you have to do with [women], the bigger chance you have of not being involved in any kind of a scandal.” (Dkt. No. 59-11 at 31-32; Dkt. No. 61-8 at 3.) However, none of this evidence indicates that retaliation was the “but for” reason Plaintiff was not selected for work on the days in question. See Lambert, 2019 WL 8164782, at *4 (“A plaintiff must show that but for the protected activity, [s]he would not have experienced the alleged adverse act.”).

24 Plaintiff also alleges that she was not selected for work on March 11, 2015 and January 5, 2016. (Dkt. No. 59 at 3.) However, she does not claim that she engaged in any protected activity until she filed her grievance against Mr. Snipe in 2017. (See generally Dkt. No. 59; Dkt. No. 74.) The undersigned has therefore not considered these dates as part of Plaintiff's failure to hire retaliation claim.

For instance, Plaintiff's evidence does not demonstrate that any Headers knew of her grievance against Mr. Snipe. Holland, 487 F.3d at 218 (explaining that the plaintiff must establish that the decisionmaker had knowledge of her protected activity and retaliated against her because of it). Although Plaintiff asserts that it was “common knowledge” that she had filed a sexual harassment complaint, she provides no evidence to show that the Headers who allegedly failed to hire her knew of her complaints. (Dkt. No. 74 at 5.) Indeed, the record reflects that the primary Header Plaintiff claims refused to hire her-Mr. Smith-did not know Plaintiff filed a grievance against Mr. Snipe. (Dkt. No. 56-8 at 31-32.)

As for her complaint against Mr. Smith himself, only four of the alleged dates fall after Plaintiff filed her grievance (August 14, 2017). (Dkt. No. 60-3 at 1.) All of these dates (May 1, 2019, May 4, 2019, July 19, 2019, August 19, 2019) are more than one year after Plaintiff's protected activity. (Dkt. No. 59 at 3; Dkt. No. 74 at 5-6.) Accordingly, the temporal relationship between Plaintiff's protected activity and these alleged retaliatory acts is too attenuated to establish a causal connection. See Pascual, 193 Fed.Appx. at 233 (three-to-four-month period too long to establish causation).

Plaintiff's claim is further undermined by the fact that she was repeatedly hired by the Headers she contends retaliated against her. In fact, as Defendant Local 1422

A review of the evidentiary record demonstrates that she worked at the Port regularly and was selected for work by the very foremen she claims were refusing to select her . . . From March 23, 2017 until August 9, 2017 ([after she filed her grievance against Mr. Snipe and prior to] the date of the incident with Mr. Melvin Smith), Plaintiff was selected to work on 53 different days. Id. During this time period, Mr. Melvin Smith selected her for work on 15 days, and Mr. John Smith selected her on 20 days. [ECF No. 58-1 at p. 8, citing to Exh. 4, at pp. 177-86; Exh. 7, at pp. 332-41; Exh. 35, pp. 1-10.] In July 2018, she worked five dates. ECF No. 57-4 (Hours Worked Report) at p. 13. During this time period, Mr. Melvin Smith selected Plaintiff for work on one date and Mr. John Smith selected her on three. ECF No. 58-1 at p. 8. From February 14, 2019 to April 2, 2020, Ms. Nelson was selected to work on 130 days. Id. During this time period, Mr. Melvin Smith selected her for work on 68 days and Mr. John Smith selected her for 32 days. Id. In total, from March 23, 2017 (the day after she was inappropriately touched by Mr. Snipe) until April 2, 2020, Plaintiff was selected to work on 188 days and of those days Foreman Melvin Smith selected her on 84 days and Foreman John Smith selected her on 55 days. . . .

Under her theory, while she was selected to work almost two hundred times from March 23, 2017 until April 2, 2020, including 139 times by Foreman Melvin Smith and Foreman John Smith, there were four occasions on which they retaliated against her by not selecting her for work.

(Dkt. No. 67 at 26-27.)²⁵

25 In response, Plaintiff contends that “Defendants fail to mention [] that Headers had to select her” in these instances because “[t]hey could not move on to the next seniority section without picking [her].” (Dkt. No. 74 at 28.) However, Plaintiff's entire claim relating to Defendants' failure to hire her seems to be based on this very issue- that she “is constantly having her seniority violated.” (Dkt. No. 59 at 5; Dkt. No. 74 at 5-6, stating “The Headers selected less senior dock workers instead of choosing her, which is a clear violation of the Local policy. The Daily Work Sheets for the car boats, corroborate the retaliation by demonstrating there were several dates when Headers selected less senior dock workers over Ms. Nelson.”) Thus, these examples undermine Plaintiff's retaliation claim all the same.

In sum, the record before the Court simply fails to support Plaintiff's contention that Headers “picked over” her in retaliation for her sexual harassment complaints. Because Plaintiff has not set forth sufficient evidence to demonstrate that she would have been hired on the dates in question if not for her protected complaints, she cannot establish a prima facie case of retaliation.²⁶The undersigned therefore recommends that the Court dismiss this claim.²⁷

26 Moreover, Defendant Local 1422 explains: “on . . . July 19, 2019[], there were no car boats. . . . On []August 19, 2019[], no longshore worker with seniority less than Plaintiff's was hired. On []May 1, 2019[], there was one longshoreman with 2016 seniority who was selected, but he was forklift certified, which Plaintiff is not.” (Dkt. No. 67 at 25) (internal citations omitted.) Plaintiff presents no arguments or evidence to contradict these legitimate, non-retaliatory reasons for why she was not hired. (See generally Dkt. No. 59; Dkt. No. 70; Dkt. No. 71; Dkt. No. 74.)

27 Further, the record does not reflect that Defendants were involved with the Headers' hiring decisions. Even assuming that Defendants are Plaintiff's joint employers, the record indicates that Headers are employed by the Port Employers. (Dkt. No. 55-5 at 17-18; Dkt. No. 56-16 at 18-19.)

III. Union Liability

Plaintiff also asserts claims against Defendant Local 1422²⁸ as a labor organization, as opposed to an employer.²⁹ (See generally Dkt. No. 16; Dkt. No. 59; Dkt. No. 74.) Title VII prohibits labor organizations from engaging in certain discriminatory conduct. See Kelley v. Int'l Bhd. of Teamsters, Loc. Union 71, No. 4:11-cv-1268-RBH-TER, 2013 WL 6826411, at *3 (D.S.C. Nov. 25, 2013), adopted as modified, 2013 WL 6826906 (D.S.C. Dec. 23, 2013) (citing E.E.O.C. v. Reynolds Metals Co., 212 F.Supp.2d 530, 539 (E.D.Va. 2002)) (explaining that Title VII prohibits labor organizations from engaging in certain discriminatory acts). Specifically, Title VII provides that:

28 Only Defendant Local 1422 is considered a “labor organization” under Title VII. See 42 U.S.C.A. § 2000e(d) (defining labor organization as “a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization”). The undersigned has limited the discussion in this section accordingly.

29 Defendant Local 1422 argues that it cannot be held liable for any discriminatory acts under 42 U.S.C.A. § 2000e-2(c) because Plaintiff did not indicate in her Amended Complaint or prior filings that she intended to bring a claim against Defendant Local 1422 under this section of Title VII. However, Plaintiff's Amended Complaint cites to 42 U.S.C.A. § 2000e as a whole. Thus, the undersigned has construed Plaintiff's Amended Complaint liberally and considered claims arising under 42 U.S.C.A. § 2000e-2(c), in an abundance of caution.

It shall be an unlawful employment practice for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

42 U.S.C. § 2000e-2(c).

“Under Subsection 2(c)(1), a labor union can be liable where it directly engages in discrimination by, for example, deliberately refusing to pursue a sexual harassment grievance on behalf of a plaintiff.” Wiggins, 2020 WL 6218804, at *4 (internal quotation marks and citation omitted); see also Goodman v. Lukens Steel Co., 482 U.S. 656, 667 (1987) (determining that the phrase “otherwise to discriminate” encompasses a union's deliberate choice not to process race discrimination grievances submitted by black workers), superseded on other grounds by statute, 28 U.S.C. § 1658, as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004). “Under Subsection 2(c)(3), a union may be held liable if the union itself instigated or actively supported the discriminatory acts.” Wiggins, 2020 WL 6218804, at *4 (internal quotation marks and citation omitted); see also McCollum v. Int'l Bhd, of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, No. 1:03-cv-0355, 2004 WL 595184, at *3 (M.D. N.C. Mar. 10, 2004) (explaining that a claim under Subsection (c)(3) requires more than union's “passive acquiescence” in wrongful discrimination). However, a union is not required to investigate and/or remedy an employer's discrimination. Wiggins, 2020 WL 6218804, at *4; see also Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071, 1076 (8th Cir. 2005) (noting that a union “has no affirmative duty under Title VII to investigate and take steps to remedy employer discrimination”); Johnson v. Int'l Longshoreman's Ass'n, Local 815 AFL-CIO, 520 Fed.Appx. 452, 453-54 (7th Cir. 2013) (“A union is liable under Title VII for discriminating against its members when performing union functions, such as job referrals, but it is not liable for an employer's actions.”); E.E.O.C. v. Pipefitters Ass'n Local Union 597, 334 F.3d 656, 661 (7th Cir. 2003) (rejecting “the EEOC's contention that unions have an affirmative duty to prevent racial harassment or other forms of unlawful discrimination in the workplace”). Title VII further provides that it is unlawful for “a labor organization to discriminate against any member thereof or applicant for membership” for opposing an unlawful employment practice or participating in any manner in an investigation, proceeding, or hearing into an unlawful employment practice. 42 U.S.C. § 2000e-3(a). Accordingly, a plaintiff may sustain Title VII claims against a labor organization only if she can demonstrate that it was sufficiently involved in the discriminatory or retaliatory conduct alleged.

As noted above, Plaintiff has failed to set forth sufficient evidence to support her allegations of retaliatory, discriminatory, or harassing conduct. To hold Local 1422 liable for Title VII violations as a labor union, Plaintiff must show that it directly engaged in, instigated, or actively supported discriminatory or retaliatory acts. Wiggins, 2020 WL 6218804, at *4. Because she has failed to prove any such discriminatory or retaliatory acts, she cannot meet her burden to demonstrate that Defendant Local 1422 actively participated in discrimination or retaliation. Accordingly, any Title VII claims Plaintiff asserts against Local 1422 in its capacity as a labor organization fail. The undersigned therefore recommends that any such claims be dismissed.

CONCLUSION

Based on the foregoing, the undersigned recommends that Defendant SCSA's Motion for Summary Judgment (Dkt. No. 53) be granted, that Defendant Local 1422's Motion for Summary Judgment (Dkt. No. 56) be granted, and that Plaintiffs Partial Motion for Summary Judgment (Dkt. No. 59) be denied.

IT IS SO RECOMMENDED.

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 (4^th 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

Post Office Box 835

Charleston, South Carolina 29402

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).