Opinion
C/A 3:22-1330-MGL-SVH
07-25-2023
Hubert Williams, Plaintiff, v. Marcus Dorsey, Red Roof Inns, Inc., and WHG SU Columbia, LLC, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges United States Magistrate Judge
Hubert Williams (“Plaintiff”) alleges that while he was staying at the HomeTowne Studios & Suites Columbia (“HomeTowne Studios”) in Columbia, South Carolina, he engaged in sexual acts with the on-site manager, Marcus Dorsey (“Dorsey”),in exchange for free rent. Plaintiff alleges Red Roof Inns, Inc. (“RRI”) and WHG SU Columbia, LLC (“WHG”) (collective “Defendants”), oversaw HomeTowne Studios. Defendants seek dismissal of the claims against them.
Dorsey, identified by Plaintiff as “Dorcey,” filed an answer to Plaintiff's complaint, identifying the correct spelling of his last name as Dorsey. [ECF No. 20]. The court employs the correct spelling of Dorsey's name and directs the clerk of court to modify the caption accordingly.
Dorsey has not sought relief from the court or participated in Defendants' pending motion for summary judgment.
Plaintiff originally filed in the Richland County Court of Common Pleas, and Defendants removed the action on April 26, 2022. [ECF No. 1]. In his complaint, Plaintiff asserts the following four state law claims: 1) assault and battery of a sexual nature, 2) intentional infliction of emotional distress, 3) negligent hiring/retention/supervision, and 4) respondeat superior/vicarious liability.
This matter is before the court on Defendants' motion for summary judgment as to Plaintiff's claims against them for negligent hiring/retention/supervision and respondeat superior/vicarious liability. [ECF No. 39]. The motion having been fully briefed [ECF Nos. 43, 45], it is ripe for disposition. Also before the court is Plaintiff's motion to compel. [ECF No. 38].
All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). For the following reasons, the undersigned denies Plaintiff's motion to compel and recommends the district judge grant Defendants' motion for summary judgment.
I. Factual Background
Plaintiff lived at the HomeTowne Studios from the beginning of 2019 until the summer of 2020. [ECF No. 39-2 at 10:22-11:7]. Plaintiff alleges Dorsey began flirting with him and ultimately made sexual advances. Id. at 15:9-16:13. On one occasion, Plaintiff claims Dorsey suggested he might be able to stay for free in exchange for participating in a sexual encounter. Id. at 16:5-13.
Plaintiff testified he began having financial trouble and therefore trouble paying for his hotel room. Id. at 84:17-22. Plaintiff asked a friend for Dorsey's number and discussed with Dorsey his alleged earlier offer of free rent in exchange for sex. Id. at 16:14-17:2. That same evening, after Plaintiff's girlfriend went out grocery shopping, Plaintiff claims Dorsey visited his hotel room and performed oral sex on him. Id. at 16:14-19:4. Plaintiff then stayed at the hotel for a week rent-free. Id. at 54:6-8.
After the incident, Plaintiff continued to reside at the HomeTowne Studios. Id. at 53:8-13. Plaintiff never reported the incident to police or to any employee or manager of the HomeTowne Studios. [ECF No. 39-2 at 54:9-57:10; see also ECF No. 39-3 ¶ 15; ECF No. 39-4 ¶¶ 1-6]. Plaintiff further has no evidence anyone at the HomeTowne Studios knew of any sexual impropriety by Dorsey prior to the occurrence. [See ECF No. 39-4 ¶¶ 8, 9].
At the time of Plaintiff's allegations, Dorsey was working as a temporary rotating manager at the HomeTowne Studios. [See ECF No. 39-5 ¶ 31]. WHG operated the HomeTowne Studios. See id. ¶ 6. RRI has submitted evidence that it “did not have possession or control of the HomeTowne Studios” during the relevant time period. [See ECF No. 39-6].
Defendants argue that summary judgment is appropriate as to RRI because it neither possessed nor controlled the HomeTowne Studios. [ECF No. 39-1 at 5]. Because the undersigned recommends the district judge grant Defendants' motion for summary judgment on the merits, the court need not address this issue.
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
1. Negligent Hiring, Retention, and Supervision
The South Carolina Supreme Court has explained:
Just as an employee can act to cause another's injury in a tortious manner, so can an employer be independently liable in tort. In circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. As this recitation suggests, the employer's liability under such a theory does not rest on the negligence of another, but on the employer's own negligence. Stated differently, the employer's liability under this theory is not derivative, it is direct.James v. Kelly Trucking Co., 661 S.E.2d 329, 330-31 (S.C. 2008) (citations omitted). More specifically, “[n]egligent hiring cases ‘generally turn on two fundamental elements-knowledge of the employer and foreseeability of harm to third parties.'” Kase v. Ebert, 707 S.E.2d 456, 459 (S.C. Ct. App. 2011) (citing Doe v. ATC, 624 S.E.2d 447, 450 (S.C. Ct. App. 2005)); see also Farr v. Lott, No. 2016-002503, 2019 WL 2051300, at *1 (S.C. Ct. App. May 8, 2019) (same as to negligent retention). An employer is liable under a theory of negligent supervision when an employee:
(1) is upon the premises of the employer or is using a chattel of the employer,
(2) the employer knows or has reason to know that he has the ability to control his employee, and
(3) the employer knows or should know of the necessity and opportunity for exercising such control.Moore by Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 12 (S.C. Ct. App. 1997) (citing Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992)).
These cases “will ordinarily be determined by the factfinder, and not as a matter of law.” Doe, 624 S.E.2d at 450 (citations omitted); see also Kase, 707 S.E.2d at 459. “Nevertheless, the court should dispose of the matter on a dispositive motion when no reasonable factfinder could find the risk foreseeable or the employer's conduct to have fallen below the acceptable standard.” Doe, 624 S.E.2d at 450.
Plaintiff argues:
There is sufficient evidence in the record to support the argument
that Defendant should have known of Defendant Dorsey's misconduct at the hotel. To reiterate, the affidavits allege that Dorsey was routinely trading sex acts for rent at the hotel with male guests, was facilitating and profiting from prostitution at the hotel, was stealing from guest's hotel rooms, and was stealing from the hotel till.[ECF No. 43 at 4 (emphasis in original)].
In support of his argument, Plaintiff has submitted two affidavits in addition to his own testimony. He has submitted an affidavit from Angelita Peete (“Peete”) who states she worked at the incident location for two years, although she does not identify which years, and that she was a manager-intraining when she left her position. [See ECF No. 43-2]. Peete states that Dorsey showed her an inappropriate video of him and Plaintiff engaging in oral sex, she saw Dorsey “pocketing cash from the register,” and she overheard Dorsey tell others that he was going into customers' rooms and stealing from their belongings. See id.
Plaintiff additional submits “Admissions by the Defendant Dorsey Related to these events deemed admitted by Defendant Dorsey's failure to timely respond.” [ECF No. 43 at 7, see also ECF No. 43-1]. However, as argued by Defendants, “an admission resulting from a party's failure to answer a request for admissions binds the nonresponding party but not co-parties on the same side.” [ECF No. 45 at 2-3 (citing Moore's Manual-Federal Practice and Procedure § 15.28 (2022))]. Additionally, even if these admissions could be used against Defendants, the admissions do not address Defendants' knowledge of any of Dorsey's alleged actions or otherwise support Plaintiff's relevant causes of action against Defendants.
Plaintiff has also submitted an affidavit from Ishabka M. Hampton (“Hampton”), who states that in 2020 she worked as a housekeeper at the incident location and for the general manager Dorsey, was present the day that Dorsey allegedly sexually assaulted another male guest, and “was well aware that after the assault [Dorsey] was trying to hire people to scare [that guest] away and run them off from the hotel.” [See ECF No. 43-3]. Hampton further states that Dorsey rented out rooms by the hour for cash to have sex with clients and would make personal loans to guests and friends directly from the hotel cash register. See id. Hampton also states that, although she did not witness it personally, she heard that Dorsey was “sleeping with male guests and often in return for reduced or no rent.” See id.
Although the evidence presented by Plaintiff is troubling, it fails to indicate that Defendants knew or should have known that Dorsey had a propensity for sexual assault applicable to Plaintiff's claim for negligent hiring, retention, or supervision.
The evidence Peete offers does not show she informed anyone of the acts she states Dorsey committed-neither to law enforcement, nor to hotel management. Additionally, although she was a manager-in-training at some unknown point in time, she does not appear to have been in management herself during the relevant period such that her knowledge could be imputed to Defendants. See, e.g., Mauldin Furniture Galleries, Inc. v. Branch Banking & Tr. Co., No. CA 6:10-240-TMC, 2012 WL 3680426, at *7 (D.S.C. Aug. 27, 2012) (“Courts have widely rejected the notion that simple ministerial employees of a corporation could impute knowledge to the corporation.”) (collecting cases)).
Even if her knowledge could be imputed to Defendants through her role in management, Peete states she saw the video of Dorsey and Williams engaging in consensual oral sex-presumably the act complained of by Plaintiff in the instant case-and she was aware of Dorsey stealing, not that she had knowledge of Dorsey's propensity to commit sexual assault. See, e.g., Kirk v. Mumford, Inc., No. 2006-UP-179, 2006 WL 7285832, at *3 (S.C. Ct. App. Apr. 4, 2006) (rejecting the argument that knowledge that the employee had alternative names, multiple addresses, multiple social security numbers, and a DUI would put management on notice of its employee's propensity to commit theft).
Hampton's affidavit is also insufficient where, like Peete, there is no indication she informed anyone of what she alleges she witnessed, including Defendants' management or law enforcement, and, therefore, the knowledge cannot be imputed to Defendants, and where there appears to be no dispute that she was a ministerial employee. Finally, Plaintiff admits he has no evidence anyone knew of any sexual impropriety from Dorsey prior to the occurrence.
This case stands in contrast to those where management had prior knowledge of inappropriate sexual behavior. See, e.g., Doe by Doe v. Greenville Hosp. Sys., 448 S.E.2d 564 (S.C. Ct. App. 1994) (holding hospital had prior notice of inappropriate sexual behavior on part of male employee so as to be liable for negligent hiring and supervision where the hospital was aware of allegations of inappropriate behavior, even though employee denied it).
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's claim for negligent hiring/retention/supervision.
2. Respondeat Superior/Vicarious Liability Claim
“The doctrine of respondeat superior provides that the employer, as the employee's master, is called to answer for the tortious acts of his servant, the employee, when those acts occur in the course and scope of the employee's employment.” James v. Kelly Trucking Co., 661 S.E.2d 329, 330 (S.C. 2008) (citing Sams v. Arthur, 133 S.E. 205, 207-08 (S.C. 1926)). “Such liability is not predicated on the negligence of the employer, but upon the acts of the employee, whether those acts occurred while the employee was going about the employer's business, and the agency principles that characterize the employer- employee relationship.” Id.
Plaintiff argues that Dorsey was acting within the scope of his employment when he assaulted Plaintiff. However, Plaintiff fails to cite, nor is the court aware of, case law indicating that an employee acts within the scope of his employment when engaging in sexual misconduct in the context now before the court.
Plaintiff primarily relies on Gen. Acc. Ins. Co. v. Safeco Ins. Companies, 443 S.E.2d 813, 816 (S.C. Ct. App. 1994). However, that case involved an insurance coverage dispute related to a motor vehicle accident that occurred while an employee was driving to a golf tournament and does not address the main issue relevant to the resolution of Defendants' motion for summary judgment. See id. (“The principal issue on appeal is whether the driver, Pullen, was a permissive user of the car involved in the accident.”). Here, unlike in General Accident, Dorsey's actions were not “authorized by, consistent with, [or] incidental to” Dorsey's employment. See id.
As summarized by this court:
South Carolina courts have specifically considered whether an employee was acting within the scope of his employment when he commits a sexual assault. In all four cases, South Carolina courts have found that the sexual advances were outside the scope of employment. See Frazier v. Badger, 603 S.E.2d 587, 591 (S.C. 2004) (holding an assistant principal was acting outside the scope of his employment when he made sexual advances on a teacher); Doe v. S.C. State Budget & Control Bd., 494 S.E.2d 469, 473 (S.C. Ct. App. 1997) (holding “no cogent argument could be made” that a police officer was furthering his employer's business by having intercourse with suspects [in exchange for declining to make an arrest]); Loadholt v. S.C. State Budget & Control Bd., 528 S.E.2d 670 (S.C. Ct. App. 2000) (holding a sheriff was acting outside the scope of his employment when he sexually assaulted subordinates); Padgett v. S.C. Ins. Reserve Fund, 531 S.E.2d 305 (S.C. Ct. App. 2000) (holding a professor was acting outside the
scope of his “official duties” when he sexually assaulted a student). In sum, under South Carolina law, “sexual harassment by a government employee is not within the employee's ‘scope of employment.'” Frasier, 603 S.E.2d at 591.Anderson v. United States, C/A No. 8:12-3203-TMC, 2016 WL 320076, at *10 (D.S.C. Jan. 27, 2016) (footnote omitted); see also Doe v. Smith, No. 2014-UP-267, 2014 WL 2968925, at *1 (S.C. Ct. App. June 30, 2014); S.C. Med. Malpractice Liab. Ins. Joint Underwriting Ass'n v. Ferry, 354 S.E.2d 378, 381 (S.C. 1987); Moore by Moore v. Berkeley Cty. Sch. Dist., 486 S.E.2d 9, 11 (S.C. Ct. App. 1997); State Farm Fire & Cas. Co. v. Barrett, 530 S.E.2d 132, 136 (S.C. Ct. App. 2000) (“we hold that an intent to harm will be inferred as a matter of law when a person sexually assaults, harasses, or otherwise engages in sexual misconduct towards an adult”); Farr, 2019 WL 2051300, at *1 (“Stephens was not acting in the scope of his employment when he sexually harassed Farr”).
Plaintiff argues that Dorsey was not “a lower level employee,” but a general manager “endowed with special power and privilege,” indicating that the standard for vicarious liability is different for a manager than an employee. [See ECF No. 43 at 7]. Plaintiff, however, provides no case law to support this argument, nor addresses the case law Defendants provided, some of which the court discusses above, concerning whether an employee acts within the scope of his employment when engaging in sexual misconduct.
The court finds that no reasonable juror could conclude that the sexual encounter between Plaintiff and Dorsey furthered Defendants' interest. See Anderson, 2016 WL 320076, at *11 (“The court finds that instead of furthering the USSS's interests, Kerns was furthering his own personal interests during the Greenville Incident.”). Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's claim for respondeat superior/vicarious liability.
C. Plaintiff's Motion to Compel
Plaintiff indicates in his motion to compel that Defendants' responses to the following discovery requests are insufficient and that Defendants have failed to appropriately supplement: Plaintiff's requests to produce number 17, 18, and 20, and Plaintiff's interrogatories numbers 26 and 27. [ECF No. 38].
Defendants argue in response that Plaintiff's motion is untimely, as discovery closed on February 28, 2023, and the motion was filed on March 15, 2023, and that the responses provided were sufficient in that “WHG conspicuously identified [in its privilege log] the documents withheld from its discovery production and explained why the documents were withheld,” in that the sought after documents “significantly post-dated the incident for which Plaintiff filed suit” and “could have no possible bearing on Plaintiff's claims . . . .” [ECF No. 42].
Plaintiff has failed to reply to Defendants' arguments, and the time to do so has elapsed. The court's review of the documentation provided by the parties shows the requests that are the subject of Plaintiff's motion compel are not relevant to his claims nor proportional to the needs of the case. [See Fed.R.Civ.P. 26(b)(1), see also ECF No. 42-5 at 1 (“Documentation of any conduct by Marcus Dorsey that occurred after August 2020 is therefore completely irrelevant to your client's claims.”)]. Accordingly, the undersigned denies Plaintiff's motion to compel.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Plaintiff's motion to compel [ECF No. 38] and recommends the court grant Defendants' motion for summary judgment, dismissing them from this action. [ECF No. 39].
IT IS SO ORDERED AND RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).