Opinion
Case No. 2:18-cv-00204-RMG-MGB
09-30-2019
Shyan Barnett, Plaintiff, v. Palmetto Heights Management, LLC, d/b/a Airport Inn; Archdale Development, LLC; and Kamlesh Shah, individually, Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court upon Defendants' Motion for Summary Judgment (Dkt. No. 36). 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 herein, the undersigned recommends that Defendants' Motion for Summary Judgment (Dkt. No. 36) be granted in part and denied in part.
BACKGROUND
Plaintiff was hired as a front desk clerk at the Airport Inn in North Charleston on December 27, 2013. (Dkt. No. 40 at 3; Dkt. No. 36-3 at 40:21-25.) The Airport Inn is owned and operated by Defendant Palmetto Heights Management, LLC ("Palmetto Heights"), a South Carolina limited liability company owned by Defendant Kamlesh Shah ("Shah"). (Dkt. No. 40 at 3; see also Dkt. No. 36-2 at 26:3-29:10.) Shah is the sole member of Palmetto Heights. (Id.) Additionally, he is the sole owner and member of Defendant Archdale Development, LLC ("Archdale"), which owns and operates a neighboring hotel called the Clarion Inn & Suites ("Clarion"). (Dkt. No. 36-1 at 2; Dkt. No. 36-2 at 26:3-29:10.)
During the course of her employment at the Airport Inn, Plaintiff contends that she was "subjected to ongoing sexual harassment" by Shah. (Dkt. No. 40 at 3; Dkt. No. 1-1 at 6.) Specifically, Plaintiff claims that Shah told her that her "butt and tits were big," (Dkt. No. 36-3 at 45:1-47:13; Dkt. No. 40 at 3; Dkt. No. 1-1 at 6); commented that women's private parts "had to be wet," (Dkt. No. 36-3 at 72:3-12); told Plaintiff on several occasions that his two favorite things in life are "money and good pussy," (Dkt. No. 40 at 3; Dkt. No. 40-1 at 141:16-142:6; Dkt. No. 1-1 at 6); told Plaintiff, "you better know the two things that Kam likes," referring again to money and sex (Dkt. No. 40-1 at 141:16-24; Dkt. No. 1-1 at 6); directed Plaintiff to flirt with customers and "sell" herself, including leaning over the counter to reveal her breasts (Dkt. No. 40-1 at 141:2-12; Dkt. No. 40 at 3; Dkt. No. 1-1 at 6); grazed his body against Plaintiff's backside (Dkt. No. 36-3 at 55:9-57:16, 75:1-76:5); and on more occasions "than [Plaintiff] could count," stated that women are beneath men and know nothing until a man teaches them, and directed Plaintiff to speak only when spoken to (id. at 66:16-24, 68:12-24; Dkt. No. 40 at 3; Dkt. No. 1-1 at 6). Moreover, on or around February 2, 2014, Shah allegedly asked the Airport Inn's General Manager Tiffany Slawson ("Ms. Slawson") to terminate Plaintiff's employment because Plaintiff was "ugly." (Dkt. No. 40 at 4; Dkt. No. 40-5 at 5.) Ms. Slawson refused. (Dkt. No. 40-5 at 5.)
Although Plaintiff cannot confirm whether the touching was intentional, she claims that the space around the front desk was such that Shah did not need to rub against Plaintiff's body to move past her and that the touching was unwelcome. (Dkt. No. 36-3 at 55:17-56:19.)
Defendants object to some of the aforementioned examples of alleged harassment because Plaintiff raised them only after a series of "leading" questions by her attorney during the cross-examination portion of her deposition. (Dkt. No. 44 at 13.) However, in evaluating a motion for summary judgment, the Court is charged with viewing the evidence and reasonable inferences therefrom in the light most favorable to the non-moving party. The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). In the instant case, Plaintiff's allegations of sexual harassment are consistent with her Complaint and generally corroborated by the General Manager at the Airport Inn. (Dkt. No. 1-1; Dkt. No. 40-5; Dkt. No. 40-6.) Accordingly, the undersigned accepts Plaintiff's allegations of sexual harassment for purposes of Defendants' Motion for Summary Judgment only.
Plaintiff claims that Shah's conduct made her feel uncomfortable, threatened and intimidated, and despite repeatedly asking him to stop, Shah continued to make inappropriate comments to Plaintiff. (Dkt. No. 40-1 at 143:14-144:7.) Plaintiff complained about Shah's ongoing conduct to her supervisor, Vivian Faulk ("Faulk"), General Manager Ms. Slawson, and Regional Manager Thomas Slawson ("Mr. Slawson"). (Dkt. No. 36-3 at 51:13-52:12, 54:16-55:5, 79:19-80:6; Dkt. No. 1-1 at 6.) Based on Plaintiff's complaints and her own experiences with Shah, Ms. Slawson requested on several occasions that Shah cease his inappropriate behavior and comments towards the female employees. (Dkt. No. 1-1 at 6; Dkt. No. 40 at 4; Dkt. No. 40-5 at 5; Dkt. No. 40-6 at 94:1-6.)
Thomas Slawson is Tiffany Slawson's father. (Dkt. No. 47 ¶ 2.)
In late February/early March 2014, Plaintiff claims that she, Ms. Slawson, and several other female employees held a meeting at the Airport Inn to discuss their individual experiences with Shah's harassment and possible recourse for his behavior. (Dkt. No. 40 at 4-5; Dkt. No. 40-1 at 86:14-87:18; Dkt. No. 1-1 at 6.) Shortly after this meeting, on or around March 8, 2014, Plaintiff's employment was terminated for allegedly mishandling guestrooms and stealing money from the Airport Inn. (Dkt. No. 40-2 at 53:20-54:10; Dkt. No. 40-1 at 105:2-106:25; Dkt. No. 40-8.) Plaintiff contends, however, that she has "never stolen a dime from [Shah's] business," (Dkt. No. 40-1 at 106:21-22), and, in actuality, her employment was terminated in retaliation for participating in the meeting regarding Shah's inappropriate behavior towards female employees. (Dkt. No. 40 at 4-5; Dkt. No. 40-1 at 102:17-103:7; Dkt. No. 1-1 at 6; Dkt. No. 40-2 at 52:1-4.)
Plaintiff filed a charge of discrimination ("Charge") with the South Carolina Human Affairs Commission ("SCHAC") and Equal Employment Opportunity Committee ("EEOC") on or around June 20, 2014, alleging claims of sex and age discrimination. (Dkt. No. 40-3.) Notably, Plaintiff did not allege a claim of retaliation in her Charge. (Id.) Plaintiff provided the following narrative in support of her discrimination claims:
I was denied equal wages from on or about December 27, 2013 through April 15, 2014 by the Owner Kam Shah. I am aware of a younger employee that was paid more doing the same job.(Id. at 1.)
I was subjected to sexual harassment from on or about March 30, 2014 through April 15, 2014. I was subjected to unwelcome sexual comments by Mr. Shah. I reported the sexual harassment to upper management but no corrective actions were taken.
I was constructively discharged on or about April 15, 2014. Because of the continuous discriminatory treatment, I resigned as a reasonable person would have under these circumstances.
I therefore believe I was discriminated against because of my age (47) and sex (female/sexual harassment), in violation of the South Carolina Human Affairs Law, as amended, Age Discrimination in Employment Act of 1967, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
As Defendants note, Plaintiff's employment ended on or around March 8, 2014; consequently, her claim that she was subjected to sexual harassment until April 15, 2014, appears to be incorrect as the purported harassment would have ended prior thereto. (See Dkt. No. 36-1 at 5 n.4.)
On August 30, 2017, the EEOC issued its determination on the merits of Plaintiff's Charge ("Final Determination") and found that while the evidence presented was insufficient to establish wage disparity, it was sufficient to show that Plaintiff "was subjected to severe and pervasive unwelcome sexual comments by [Shah]." (Dkt. No. 40-7.) The EEOC therefore determined that there was "reasonable cause to conclude that [Plaintiff] was discriminated against because of sex (female/sexual harassment), in violation of Title VII." (Id.)
After receiving notice of her right to sue, Plaintiff filed this action in the South Carolina Court of Common Pleas, Charleston County, on or around December 27, 2017, (Dkt. No. 1-1), and Defendants removed the case to the United States District Court for the District of South Carolina on January 25, 2018 (Dkt. No. 1). Plaintiff's Complaint alleges two causes of action against Defendants: retaliation and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (Dkt. No. 1-1.) On March 29, 2019, Defendants filed a Motion for Summary Judgment seeking dismissal of all of Plaintiff's claims. (Dkt. No. 36.) Plaintiff filed her Response in Opposition to Defendants' Motion for Summary Judgment on April 24, 2019, (Dkt. No. 40), and Defendants filed their Reply on May 13, 2019, (Dkt. No. 44).
In addition to the instant action, two now former employees of Shah—Ms. Slawson and Penny Sambrano ("Sambrano")—have filed companion cases alleging similar claims of sexual harassment and retaliation against those same Defendants named in Plaintiff's Complaint. See Slawson v. Palmetto Heights Management LLC et al, No. 2:18-CV-00217-RMG-MGB and Sambrano v. Palmetto Heights Management LLC et al, No. 2:18-CV-00216-RMG-MGB. The instant action was consolidated with these companion cases for discovery purposes only. (Dkt. No. 40 at 1 n.1.)
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)). 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." See id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). However, "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).
DISCUSSION
I. Retaliation in Violation of Title VII
Title VII makes it unlawful for an employer to discriminate against an employee because she opposed any unlawful employment practice, or has made a charge or has participated in an investigation. 42 U.S.C. § 2000e-3(a). However, before filing an action for retaliation under Title VII, the claimant must first exhaust her administrative remedies by filing an administrative charge of discrimination with the EEOC:
The filing of an administrative charge is not simply a formality to be rushed through so that an individual can quickly file [her] subsequent lawsuit. Rather, Congress intended the exhaustion requirement to serve the primary purposes of notice and conciliation.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted); see also 42 USC § 2000e-5(f)(1). Accordingly, after a charge has been filed, the EEOC will investigate the alleged unlawful acts and provide notice of the charge to the employer. 42 U.S.C. § 2000e-5(e)(1).
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. Title VII, including the creation of the EEOC, reflects a congressional intent to use administrative conciliation as the primary means of handling claims, thereby encouraging quicker, less formal, and less expensive resolution of disputes. The EEOC's role in Title VII is thus critical because it can promote voluntary settlement in a manner that a more adversarial process cannot.
If the EEOC finds a violation of Title VII and is unable to secure a resolution or settlement among the parties, the agency may issue notice of a right to sue to the claimant. 29 C.F.R. § 1601.28(b). As a general rule, the scope of the 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). "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 Title VII lawsuit." Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (dismissing sexual harassment and discriminatory pay claims because EEOC complaint alleged only failure to promote).
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." 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 F. App'x 194, 194 (4th Cir. 2015). Thus, "when the claim raised in the district court litigation involves a different form of unlawful employment practice than the one described in the administrative charge," the judicial claim typically is not reasonably related to the allegations in the charge and cannot be expected to follow from a reasonable investigation into those administrative claims. Fowler v. S.C. Dep't of Corr., No. 3:10-CV-3230-JFA-PJG, 2012 WL 7678131, at *3 (D.S.C. Sept. 25, 2012), adopted, No. 3:10-CV-3230-JFA, 2013 WL 876407 (D.S.C. Mar. 8, 2013); see also Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (finding that judicial claims of retaliation and sex discrimination were not reasonably related to administrative claim of race discrimination).
The undersigned notes that "Congress intended the exhaustion requirement to serve the primary purposes of notice and conciliation. . . . A court, therefore, does not need to peer into what was actually uncovered during an investigation; its focus is on the notice that was provided to the defendant. Accordingly, it must ask whether 'a reasonable investigation of [the] administrative charge would have uncovered the factual allegations set forth in formal litigation,' not whether the investigation actually did uncover such facts. See U.S. Equal Employment Opportunity Comm'n v. Phase 2 Investments Inc., 310 F. Supp. 3d 550, 566 (D. Md. 2018) (referencing Chacko, 429 F.3d at 510-12) (emphasis added).
In Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992), the Fourth Circuit carved out a limited exception to the exhaustion requirement and held that a Title VII plaintiff "may raise a retaliation claim for the first time in federal court" without exhausting her administrative remedies if the discrimination complained of is "like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission." Johnson v. Mabus, No. 2:16-CV-2073-RMG-KFM, 2017 WL 9250334, at *4 (D.S.C. June 1, 2017), adopted, No. 2:16-CV-2073-RMG, 2017 WL 3037373 (D.S.C. July 18, 2017) (referencing Nealon, 958 F.2d at 590). This exception is based in part on the reasoning that a plaintiff who has already been retaliated against for exercising her Title VII rights need not risk additional retaliation by filing a second administrative charge. Id.
The undersigned notes that the Fourth Circuit recently clarified that a plaintiff's ability to raise new claims before the district court is not necessarily cabined to retaliation claims: "We have therefore left open the possibility that district courts may hear claims for the first time, beyond just retaliation claims, if they are 'reasonably related to the original complaint' and 'developed by reasonable investigation of the original complaint.'" See Stewart v. Iancu, 912 F.3d 693, 706 (4th Cir. 2019) (referencing Chacko, 429 F.3d at 506).
In the instant case, Plaintiff's Complaint alleges that Defendants terminated her employment at the Airport Inn in retaliation for participating in the meeting about Shah's inappropriate conduct and for "otherwise complaining to Shah about the sexual harassment." (Dkt. No. 1-1 at 6, 8.) Defendants argue that Plaintiff did not raise these facts or allege retaliation in her initial EEOC Charge and, consequently, the Court must dismiss Plaintiff's retaliation claim as it exceeds the scope of her administrative allegations. (Dkt. No. 36-1 at 8.) In response, Plaintiff asserts that the Court should construe her Charge liberally and infer a claim of retaliation from certain statements contained in a SCHAC intake questionnaire completed by Ms. Slawson in relation to her own, separate administrative charge against Defendants. (Dkt. No. 40 at 6-7.)
Specifically, Plaintiff points to a statement in which Ms. Slawson alleges that her employment was terminated because the "owner found paperwork about the sexual harassment charges that I was putting together for myself as well as other female employees." (Id. at 6.) As one of the "other female employees," Plaintiff seems to suggest that the retaliatory conduct alleged in Ms. Slawson's intake questionnaire should also be read into Plaintiff's Charge because Defendants investigated and defended against the allegations in the instant action and companion cases collectively. (Id.) In other words, Plaintiff argues that Ms. Slawson's statement put Defendants on notice of potential retaliation against Plaintiff, and satisfied Plaintiff's exhaustion requirement as to that claim. (Id.) Plaintiff's argument fails for several reasons.
At the outset, while the undersigned recognizes that EEOC charges typically are not completed by lawyers and "must be construed with utmost liberality," the Court is "not at liberty to read into administrative charges allegations they do not contain." See Balas v. Huntington Ingalls Industries., Inc., 711 F.3d 401, 408 (4th Cir. 2013) (internal citations omitted). In completing her Charge, Plaintiff did not mark the box for "Retaliation" or include any allegations of retaliation by Defendants in the narrative portion of the form. To the contrary, Plaintiff's Charge asserts that Plaintiff resigned from her employment due to Shah's "continuous discriminatory treatment," thereby contradicting her subsequent claim that Defendants terminated her employment. (See Dkt. No. 40-3.) Thus, the undersigned agrees that Plaintiff's Complaint raises a "completely different theory of liability altogether" from that presented in her initial Charge. (Dkt. No. 36-1 at 15.) See Tonkin, 2014 WL 4063626, at *4 (noting that claims are not reasonably related where the basis for the alleged harm differs between the administrative charge and the complaint). To be sure, the EEOC makes no mention of termination—retaliatory or otherwise—in explaining the results of its investigation in the Final Determination. (Dkt. 40-3; Dkt. No. 40-7.) See Bryant, 288 F.3d at 133 n.6 (explaining that plaintiff's sole charge of race discrimination could not reasonably be expected to lead to an administrative investigation into a totally separate claim of retaliation).
Contrary to her contention, Plaintiff cannot retroactively supplement the allegations in her Charge with a statement from Ms. Slawson's SCHAC intake questionnaire. As an initial matter, the undersigned notes that the statement cited by Plaintiff is actually contained in Ms. Slawson's application for unemployment benefits with the South Carolina Department of Employment and Workforce ("SCDEW"), rather than her SCHAC intake questionnaire. Regardless of the statement's origin, however, it is well-established that the initial charge filed with the EEOC is the only relevant document for purposes of determining the proper scope of a subsequent action. See Balas, 711 F.3d at 408 (noting that in determining those claims properly alleged before the EEOC, the court is constrained to the four corners of the charge filed with the agency).
Defendants explain that "Plaintiff erroneously asserts in her Response that this allegation is contained in Tiffany Slawson's SCHAC intake questionnaire, when it is actually contained in Ms. Slawson's application for unemployment benefits to the SCDEW." (Dkt. No. 44 at 5 n.3.) Having reviewed the relevant exhibits, the undersigned finds that Defendants are correct. See Slawson v. Palmetto Heights Management LLC et al, No. 2:18-CV-00217-RMG-MGB, Dkt. No. 51-1. Notwithstanding this error, the distinction between Ms. Slawson's SCHAC intake questionnaire and her SCDEW application is immaterial because, as explained in greater detail herein, Plaintiff cannot rely on either document to supplement the allegations in her Charge.
The Fourth Circuit addressed this issue in Balas v. Huntington Ingalls Industries., Inc., 711 F.3d 401 (4th Cir. 2013), in which the plaintiff attempted to rely on the contents of her own intake questionnaire and two private letters that she sent to the EEOC to raise claims in a subsequent civil action that were not included in her initial charge. The Fourth Circuit held that "it would be objectively illogical" to view any of these documents "as constructively amending a formal charge, given that one of the purposes of requiring a party to file charges with the EEOC is to put the charged party on notice of the claims raised against it." See id. at 408 (referencing Sloop v. Mem'l Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir. 1999)). Because the EEOC did not provide the defendant with copies of the plaintiff's letters or intake questionnaire, the district court properly declined to consider the allegations included only in those documents. Id. at 409.
"The EEOC is simply required to serve the respondent with a copy of the charge, or, when providing a copy of the charge would impede the law enforcement functions of the EEOC, notice of the charge. See Balas, 711 F.3d at 408 n.5 (explaining that the EEOC is under no obligation to send the complainant's intake questionnaire to the employer) (referencing 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.14). Thus, to the extent a claimant wishes to add allegations to her charge, she must file an amended charge with the EEOC to ensure proper notice to the other party. See 29 C.F.R. § 1601.12(b).
Based on this precedent, if a complainant's own intake questionnaire form is insufficient to put the employer on notice of a claim not included in the initial charge, an independent application for unemployment benefits completed by someone other than Plaintiff is surely insufficient to place Defendants on notice of potential retaliatory conduct not mentioned in Plaintiff's EEOC Charge. See also Danial v. Morgan State Univ., No. CCB-17-959, 2018 WL 3625767, at *7 (D. Md. July 27, 2018) (explaining that while emails exchanged between complainant and EEO coordinator revealed allegations of discrimination, court could consider only those claims actually alleged in the charge in determining the scope of the civil complaint); Pressley v. City of Norfolk, Virginia, No. 2:17-CV-264, 2017 WL 4295416, at *3 (E.D. Va. Sept. 27, 2017) (finding no basis that private letter would suffice to put the employer on notice for "reasonable investigation" purposes). Accordingly, the statement in Ms. Slawson's unemployment application cannot cure Plaintiff's failure to allege retaliation in her initial Charge with the EEOC.
Indeed, Defendants assert that they did not see Ms. Slawson's intake questionnaire until they requested a copy under the Freedom of Information Act during the discovery period in the instant case. (Dkt. No. 44 at 4.)
Finally, it is also worth noting that Plaintiff cannot take advantage of the exception under Nealon because the alleged retaliation occurred prior to the filing of her Charge, rather than during the pendency of the case. See, e.g., Black v. Potter, No. 4:06-CV-899-TLW-TER, 2008 WL 509475, at *14 (D.S.C. Feb. 21, 2008), aff'd, 286 F. App'x 841 (4th Cir. 2008) (dismissing plaintiff's retaliation claim for failure to exhaust where plaintiff had opportunity to raise the retaliation allegations before the EEOC). Indeed, the EEOC could have investigated the merits of Plaintiff's retaliation claim as part of her initial Charge had she included such allegations therein. Allowing Plaintiff to add a new retaliation claim after-the-fact would therefore circumscribe the EEOC's "investigatory and conciliatory role" as intended by Congress. Horton v. Donley, No. 3:07-CV-2316-MBS, 2009 WL 2782226, at *9 (D.S.C. Aug. 27, 2009), aff'd, 367 F. App'x 400 (4th Cir. 2010).
For these reasons, the undersigned finds that Plaintiff's retaliation claim improperly exceeds the scope of her Charge and therefore recommends that the Court dismiss this claim for failure to exhaust administrative remedies. See, e.g., Tonkin, 605 F. App'x at 194 (concluding that the district court properly determined that plaintiff failed to exhaust her administrative remedies for retaliation where her initial EEOC charge alleged only pregnancy discrimination, and did not contain any facts involving retaliation); Beane v. Agape Mgmt. Servs., Inc., No. 3:08-CV-3445-CMC-PJG, 2009 WL 2476629, at *3 (D.S.C. Aug. 11, 2009) ("[T]he United States Court of Appeals for the Fourth Circuit has found that where a plaintiff fails to check the 'retaliation' box on the EEOC form and the narrative portion of the charge makes no mention of retaliation, such a claim should be dismissed for failure to exhaust administrative remedies.").
As Defendants correctly note, any attempt by Plaintiff to refile her retaliation claim would be procedurally barred as untimely. (See Dkt. No. 36-1 at 8-9, referencing 42 U.S.C. § 2000e-5(e)(1).)
II. Sexual Harassment in Violation of Title VII
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment represents a form of sex discrimination prohibited under Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986); see also Langley v. Dolgencorp, LLC, 972 F. Supp. 2d 804, 821 (D.S.C. 2013). In order to establish a hostile work environment based on sexual harassment, the plaintiff must show that the offending conduct was (1) unwelcome, (2) based on the plaintiff's sex, (3) sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment, and (4) that there is some basis for imposing liability on the employer. See Williams v. NHC Healthcare/Bluffton, LLC, No. 9:16-CV-2677-DCN-BM, 2017 WL 9690360, at *4 (D.S.C. Dec. 14, 2017), adopted, No. 9:16-CV-2677-DCN, 2018 WL 1175099 (D.S.C. Mar. 6, 2018).
In the instant case, Defendants argue that Plaintiff has failed to satisfy the third element of her sexual harassment claim because her allegations "do not suffice to rise to the level of either severe or pervasive actions resulting in an abusive atmosphere at work." (Dkt. No. 36-1 at 24.) To satisfy the "severe or pervasive" standard under Title VII, the plaintiff must demonstrate that she subjectively perceived the environment to be abusive, and that the conduct was such that "an objective reasonable person would perceive [the plaintiff's] work environment to be hostile or abusive." See Perkins v. Int'l Paper Co., No. 18-1507, 2019 WL 4018288, at *5 (4th Cir. Aug. 27, 2019). "Incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard." Evans v. Int'l Paper Co., No. 18-1448, 2019 WL 4018287, at *5 (4th Cir. Aug. 27, 2019) (internal citations omitted). Indeed, "rude treatment from coworkers, callous behavior by one's superiors, or a routine difference of opinion and personality conflict with one's supervisor are not actionable under Title VII." Id.
The objective inquiry "is not, and by its nature cannot be, a mathematically precise test." See E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (referencing Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)).
Rather, when determining whether the harassing conduct was objectively severe or pervasive, we must look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. No single factor is dispositive, as the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.See id. (internal citations omitted). Ultimately, "whether the harassment was sufficiently severe or pervasive to create a hostile work environment is quintessentially a question of fact for the jury." See Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179, 199-200 (4th Cir. 2000) (referencing Smith v. First Union Nat. Bank, 202 F.3d 234, 243 (4th Cir. 2000)). "Thus, while summary judgment is appropriate in cases where the facts are clearly insufficient to satisfy the standard, when there is a close question and reasonable minds could differ when weighting all the facts against the law, then summary judgment is inappropriate." Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 208 (4th Cir. 2014) (internal citations omitted).
Viewing the record as a whole—including all "surrounding circumstances, expectations, and relationships"—and in the light most favorable to Plaintiff, the undersigned finds that a reasonable jury could conclude that Plaintiff was exposed to an objectively hostile work environment during the course of her employment at the Airport Inn. Sunbelt Rentals, 521 F.3d at 315. Specifically, Plaintiff was frequently subjected to demeaning, disparaging remarks about women (Dkt. No. 36-3 at 66:16-24, 68:12-24); was pressured to flirt with customers by "selling" her body and revealing her breasts (Dkt. No. 40-1 at 141:2-12); was subjected to offensive and humiliating comments about her body, including a remark by Shah regarding the size of Plaintiff's breasts and buttocks (Dkt. No. 36-3 at 45:1-47:13; Dkt. No. 40-1 at 141:2-12); was grazed on her backside by Shah (Dkt. No. 36-3 at 55:9-57:16, 75:1-76:5); and was subjected to other sexually-explicit comments by Shah (Id. at 72:3-12; Dkt. No. 40-1 at 141:16-24, 142:2-6).
Notably, as the owner of the Airport Inn, Shah "controlled" the workplace and operated as Plaintiff's boss, which likely enhanced the severity of the harassment. (Dkt. No. 40 at 10-11; Dkt. No. 1-1 at 7.) See Sanchez v. Whole Foods Market Group, Inc., No. GJH-18-3106, 2019 WL 3717771, at *5 (D. Md. Aug. 5, 2019) (explaining that comments made by a supervisor generally will be considered more severe than those made by co-equals or subordinates); Wheeler v. Virginia, No. 7:17-CV-00337, 2019 WL 758611, at *5 (W.D. Va. Feb. 20, 2019) ("The Court has also explained that 'the status of the harasser may be a significant factor' in measuring the severity of harassing conduct, since harassment perpetrated by a manager or supervisor against a subordinate employee has a 'particularly threatening character.'") (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998)). Indeed, Plaintiff testified that Shah's actions made her feel uncomfortable, intimidated, and threatened, to the point where Plaintiff repeatedly sought help from upper management to stop the harassment. (Dkt. No. 36-3 at 51:13-52:12, 54:16-55:5, 79:19-80:6; Dkt. No. 40-1 at 143:14-144:7.)
Plaintiff's subjective perception of Shah's behavior is corroborated by Ms. Slawson's deposition testimony and SCHAC intake questionnaire, which include similar allegations of sexual harassment against Shah and suggest that Plaintiff was subjected to the same—if not worse—harassment. (Dkt. No. 40-5; Dkt. No. 40-6 at 94:1-95:5.) See Williamson v. Carolina Power & Light Co., 754 F. Supp. 2d 787, 792 (E.D.N.C. 2010) ("Other employees' notice and vocal disapproval of the harassment highlighted its objective severity.") Moreover, the fact that other female employees participated in the sexual harassment meeting to discuss their own experiences with Shah suggests, at the very least, that there is a genuine issue of material fact as to whether an objective, reasonable individual in Plaintiff's position could have found the work environment abusive. See, e.g., Jennings v. Univ. of N. Carolina, 482 F.3d 686, 696 (4th Cir. 2007) (considering harassment directed at both plaintiff and her female co-workers in order to examine all relevant circumstances in the objectivity inquiry) (emphasis added); Mod-U-Kraf Homes, 775 F.3d at 209 (considering comments made to other employees for purposes of the objectivity inquiry because "the totality of the circumstances includes conduct not directed at the plaintiff") (internal citations omitted); Williamson v. Carolina Power & Light Co., 754 F. Supp. 2d 787, 792 (E.D.N.C. 2010) ("Other employees' notice and vocal disapproval of the harassment highlighted its objective severity.").
In the same vein, although the undersigned does not decide the merits of the companion cases here, these similar claims of sexual harassment further suggest that other women employed by Defendants also found Shah's conduct sufficiently severe or pervasive to impede their work performance and that there likely is a genuine issue of fact as to the objectively hostile and abusive nature of this work environment. See Slawson v. Palmetto Heights Management LLC et al, No. 2:18-CV-00217-RMG-MGB and Sambrano v. Palmetto Heights Management LLC et al, No. 2:18-CV-00216-RMG-MGB.
The undersigned acknowledges that while some of the above factors support a finding that Shah's behavior is actionable, other factors may not. However, we are not called upon to weigh that evidence at this stage; "[i]nstead, the court's task is simply to examine whether the record contains proof from which a reasonable trier of fact could conclude 'that the environment was pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.'" Mod-U-Kraf Homes, 775 F.3d at 209. Here, in light of the sexual nature of Shah's comments to Plaintiff, the frequency of his misogynistic remarks towards Plaintiff and other female employees, and the fact that such conduct occurred while Shah was Plaintiff's boss, the undersigned finds that Plaintiff has presented enough evidence to raise a genuine issue of material fact as to whether the harassment alleged was sufficiently severe or pervasive to create an abusive atmosphere. See, e.g., Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335 (4th Cir. 2010) (finding plaintiff's allegations sufficient to satisfy the severe-or-pervasive standard at summary judgment where "sexist comments" were frequently made to plaintiff or in her presence, including demeaning references to women (e.g., "bitches" and "crazy")); Jennings, 482 F.3d at 697-99 (finding that the defendant's frequent, open discussion of sex, including his own sex life and fantasies, created a pervasively hostile work environment); Wheeler, 2019 WL 758611, at *6 (finding question of fact regarding severity of harassment where manager voiced his opinions about sex, licked his lips when plaintiff walked past, and expressed pleasure in being able to see plaintiff's cleavage); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (stating that a plaintiff may prove sex-based discrimination even though she is not subjected to sexual propositions or physical touching).
Defendants' Motion for Summary Judgment appropriately cites a series of prior case law in which district courts from the Fourth Circuit have found certain sexual comments and behaviors insufficient to satisfy the severe-or-pervasive standard under a Title VII harassment claim. (Dkt. No. 36-1 at 18-28.) However, conduct alleged in previous cases does not conclusively "mark the boundary of what is actionable." Harris, 510 U.S. at 22. Indeed, the fact that our courts have reached different decisions surrounding similar conduct highlights the fact-intensive nature of sexual harassment claims and the importance of examining the totality of circumstances influencing the specific workplace behavior at issue. Wheeler, 2019 WL 758611, at *6; see also Mod-U-Kraf Homes, 775 F.3d at 210 ("That there are also arguments that suggest that this conduct may not be sufficiently severe or pervasive does not mean that a reasonable jury could not conclude otherwise.").
Accordingly, the undersigned recommends that the Court deny Defendants' Motion for Summary Judgment as to Plaintiff's sexual harassment claim so that a jury may undertake the fact- intensive inquiry of whether Shah's harassment went beyond the "ordinary tribulations of the workplace" and created a hostile work environment. Strickland v. Acevedo Restaurants, Inc., No. 2:11-CV-2566-RMG, 2014 WL 798402, at *3 (D.S.C. Feb. 27, 2014); see also Mod-U-Kraf Homes, 775 F.3d at 208 (explaining that whether the harassment was sufficiently severe or pervasive to create a hostile work environment is a question of fact for the jury when reasonable minds could differ).
III. Individual Liability Under Title VII
Lastly, to the extent Plaintiff's Complaint survives Defendants' Motion for Summary Judgment, Defendants argue that Shah should be dismissed as a party to this action because Title VII does not provide causes of action against defendants in their individual capacities. (Dkt. No. 36-1 at 28-30.) In response, Plaintiff claims that Shah is the alter ego of Defendants Palmetto Heights and Archdale and therefore "should be treated as one and the same and held jointly liable on all theories of liability." (Dkt. No. 40 at 9-11.)
As stated above, Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] . . . terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a). The Fourth Circuit has interpreted the word "individual" to mean the company-employer and has concluded that "supervisors are not liable in their individual capacities for Title VII violations." Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180 (4th Cir. 1998). The court reasoned in Lissau that the only reasonable interpretation of Title VII is "to foreclose individual liability" because Title VII exempts small employers and "it would be incongruous to hold Title VII does not apply to the owner of a five-person company but applies with full force to a person who supervises an identical number of employees in a larger company." Id.
Contrary to Plaintiff's argument, this holding also applies where an individual is effectively the alter ego of a closely held company or corporation. See Alford v. Wang, Inc., 11 F. Supp. 3d 584, 595-96 (D.S.C. 2014) (rejecting alter ego theory of individual liability in Title VII lawsuit). Indeed, this Court has found that individual liability does not exist under Title VII even if "a sole shareholder abused the corporate form and the corporate veil were pierced." Id. (internal citations omitted). Accordingly, Plaintiff may not maintain a Title VII claim against Defendant Shah in his individual capacity and the undersigned therefore recommends that he be removed from this action.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendants' Motion for Summary Judgment (Dkt. No. 36) be GRANTED as to Plaintiff's retaliation claim and DENIED as to Plaintiff's sexual harassment claim. The undersigned further recommends that Defendant Shah be removed as a party to this action.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE September 30, 2019 Charleston, South Carolina
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
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).