Opinion
C. A. 2:22-cv-00529-JD-MHC
06-13-2024
Patricia Lott, Plaintiff, v. South Carolina Farm Bureau Mutual Insurance Company, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Patricia Lott (“Plaintiff”), represented by counsel, brings this employment discrimination and wrongful discharge action against Defendant South Carolina Farm Bureau Mutual Insurance Company (“SCFBMIC” or “Defendant”). Before the Court is Defendant's Motion for Summary Judgment, ECF No. 25 (“Motion”), filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 29, and Defendant filed a Reply, ECF No. 32. The Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
BACKGROUND
On April 17, 2014, Plaintiff applied for a job with Dorchester County Farm Bureau. ECF No. 25-3. Each county in South Carolina has a county farm bureau that is a separate and distinct legal entity with its own federal tax I.D. number, charter, bylaws, officers, directors, and employees. ECF No. 25-4 at ¶ 7. The typical county farm bureau owns a building within the county and may lease offices to serve the needs of its members. Id. The purpose of the county farm bureaus is to promote and support agriculture-related membership activities and educational programs. Id. at ¶ 8. They also provide information about and coordinate the benefits provided to farm bureau members. Id. One membership benefit is access to insurance products and services offered by SCFBMIC. Id.
On May 1, 2017, Timothy Cardwell (“Mr. Cardwell”) contracted through his limited liability company, Timothy E. Cardwell Insurance, LLC (“Cardwell LLC”), with SCFBMIC as an independent contractor Agency Manager for Dorchester County, South Carolina. Id. at ¶ 17; Id. at 9-29; ECF No. 25-6 at ¶ 2. Agency Managers market and promote SCFBMIC and its products in the community; recruit agents to sell and service SCFBMIC policies; can hire, fire, and manage office staff; and meet with customers to collect and analyze insurance risk information, assess insurance needs, and advise customers on insurance products. ECF No. 25-4 at ¶ 5. Agency Managers can elect to rent office space from the county farm bureau or move the office to a different location. Id. at ¶ 9.
On May 1, 2017, Cardwell LLC contracted with Dorchester County Farm Bureau to lease a portion of the Dorchester County Farm Bureau office building located in St. George, South Carolina, and to provide office supervision and management. ECF Nos. 25-7, 25-8. The Office Management Agreement between Cardwell LLC and Dorchester County Farm Bureau provides that all workers will be employed by Cardwell LLC:
The parties acknowledge that, as of the effective date of this Agreement, all clerical workers, currently employed by [Dorchester County Farm Bureau], will no longer be employed by [Dorchester County Farm Bureau]. [Cardwell LLC], for the clerical services herein provided, shall have all responsibility as an employer, including but
not limited to, the issuance of W-2's, withholding, benefits, and compliance with all federal and state tax and labor related laws.ECF No. 25-8 at ¶ 1.c.
Mr. Cardwell avers that he owned Cardwell LLC, which employed four workers, including Plaintiff, during the time relevant to this matter. ECF No. 25-6 at ¶¶ 3-4; see ECF No. 25-9. He further avers that he assigned duties to the employees, set their work schedules, evaluated their performance, was responsible for discipline as necessary, approved annual leave, exercised discretion over how and when to pay, and set their rates of pay. ECF No. 25-6 at ¶ 3. Mr. Cardwell avers that he “had complete, sole, and total independent control and supervision over [Plaintiff's] work, her duties, and her schedule and [Cardwell LLC] paid all her wages related to her work as a County Secretary in Dorchester County.” Id. at ¶ 4.
Plaintiff was working as a secretary for Dorchester County Farm Bureau when Mr. Cardwell signed the Office Management Agreement. ECF No. 29-2 at ¶ 7. She was not told that she had become an employee of Cardwell LLC or that she was no longer employed by Dorchester County Farm Bureau. Id. She never interviewed with Cardwell LLC for the position or completed an application for employment with Cardwell LLC. Id. Her duties, work hours, sick leave, and vacation time did not change. Id. Plaintiff avers that, during the relevant period, she did not know that Mr. Cardwell was operating as a separate entity because nothing in the Dorchester County office changed when he started working there-the office signage continued to use the South Carolina Farm Bureau logo and did not use the Cardwell LLC logo; the office letterhead read “Farm Bureau”; the afterhours voicemail said “Farm Bureau”; and the email addresses continued to be “Farm Bureau” email addresses. Id.
As County Secretary, Plaintiff's job duties included answering the phone, responding to requests from customers, taking payments, and making deposits. ECF No. 25-10 at 35:1-10. Upon answering phone calls, making phone calls, and greeting customers as they entered the office, Plaintiff introduced herself as “Patti with Farm Bureau.” ECF No. 29-2 at ¶ 6. Plaintiff used South Carolina Farm Bureau letterhead to send letters to customers, and she would tell customers to make checks payable to South Carolina Farm Bureau/Farm Bureau. Id. Plaintiff's name was included on the South Carolina Farm Bureau list of County Secretaries and Office Personnel as of December 28, 2017. ECF No. 29-6.
Plaintiff acknowledged at her deposition that Mr. Cardwell supervised her, approved her requests for leave, conducted her performance evaluation, approved her pay increases, and communicated with her about the amount and means of her pay. ECF No. 25-10 at 31:3-38:8. Cardwell LLC paid Plaintiff and its other employees every two weeks and withheld taxes and social security payments. ECF No. 25-6 at ¶ 3; see ECF No. 25-11. Cardwell LLC issued Plaintiff W-2s for 2017, 2018, 2019, and 2020. ECF Nos. 25-12, 25-13, 25-14, 25-15. Each W-2 issued to Plaintiff identified her as the “Employee,” and Cardwell LLC as the “Employer.” Id. Plaintiff testified that the information on her 2017, 2018, 2019, and 2020 W-2s were true and accurate, and that she knowingly filed her returns with federal and state taxing authorities identifying Cardwell LLC as her employer. ECF No. 25-10 at 21:21-23:9; 23:12-24:3; 24:6-25:3; 25:6-26:2. Plaintiff never received pay from any entity other than Cardwell LLC during the time relevant to this lawsuit. Id. at 40:21-23.
Plaintiff alleges that from 2018 until the termination of her employment in 2019, she experienced ongoing harassment from Richard Purvis, an insurance agent who also worked in the same Farm Bureau building as Plaintiff. ECF No. 25-10 at 53:14-54:1, 56:19-60:9, 63:14-67:20. Plaintiff testified that the harassment included Mr. Purvis yelling at her, slamming doors so hard that it would “literally rattle her bones,” stomping his feet down the hallway, slamming kitchen cabinets, breaking into her desk drawers and stealing her notes, erasing her phone logs, and calling her “ridiculous.” Id.; see also ECF No. 29-10 at ¶ 11, Am. Aff. of Will Seastrunk (averring that, while on the phone with Plaintiff, he overheard Purvis yelling, slamming cabinets, and having “temper tantrums”).
Plaintiff testified that she reported the harassment to Mr. Cardwell and Jeff Sweatman of the Farm Bureau Federation, but she never reported the harassment to SCFBMIC. ECF No. 25-10 at 67:21-70:21. Plaintiff testified that no one made any comments directly about her sex, but she said Mr. Cardwell once said that Mr. Purvis did not “speak to men harshly like he did women.” Id. at 71:3-72:21. She did not witness anyone making a comment based on sex to another employee. Id. at 72:22-73:3.
In November 2019, Mr. Cardwell had a meeting with employees in the Summerville office, who told him that they were concerned that Purvis was abusive and hostile towards Plaintiff in the St. George office. ECF No. 29-11 at ¶ 15, Kentrus Aff.; ECF No. 29-10 at ¶ 12.
On December 18, 2019, Plaintiff met with Mr. Cardwell and Mr. Purvis. ECF No. 25-10 at 54:2-3. Plaintiff told Mr. Cardwell that the office environment was bad and she needed help and was going to reach out to Farm Bureau's main office. Id. at 54:2-8.
On December 26, 2019, Will Seastrunk, an agent in the Summerville office, met with Scott Hill, a District Manager of SCFBMIC, and told him about Purvis's treatment of Plaintiff and Mr. Cardwell's “apathetic response.” ECF No. 29-10 at ¶ 16.
On December 31, 2019, Mr. Cardwell notified Plaintiff that her employment with Cardwell LLC was being terminated effective immediately. ECF No. 25-10 at 41:4-42:5. Mr. Cardwell subsequently issued Plaintiff a termination letter that provided, “Per our conversation this morning, your employment with Timothy E. Cardwell Insurance, LLC is now terminated effective immediately.” ECF No. 25-16.
On July 23, 2020, Plaintiff filed a charge of discrimination (“Charge”) alleging a hostile work environment based on sex and retaliation. ECF No. 25-17 at 2. The Charge identified the “Employer” as “Farm Bureau,” located in St. George, South Carolina. Id.
Cardwell LLC, through its attorney, responded to the Equal Employment Opportunity Commission (“EEOC”), which was investigating the Charge through its work-sharing agreement with the South Carolina Human Affairs Commission (“SCHAC”), that “Farm Bureau” was not the proper party, and the proper employer was Cardwell LLC. ECF No. 25-18. Cardwell LLC's position statement explained, in part, “As a preliminary issue, [Plaintiff] filed this Charge against ‘Farm Bureau.' [Plaintiff] was not employed by Farm Bureau. [Plaintiff] was employed by Cardwell Insurance.” Id.
The EEOC issued a Dismissal and Notice of Rights, and it sent copies of its decision only to Cardwell LLC and Plaintiff. ECF No. 25-19. There is no evidence in the record that the EEOC or SCHAC notified SCFBMIC of the Charge, requested a position statement from SCFBMIC, or notified SCFBMIC of its Dismissal and Notice of Rights.
LEGAL STANDARD
Summary judgment should be granted when “there is no genuine dispute as to any material fact and 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)). 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). 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); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate.”).
DISCUSSION
Defendant SCFBMIC moves, pursuant to Rule 56, for summary judgment in its favor on all of Plaintiff's claims. Specifically, SCFBMIC argues that it was not Plaintiff's employer and is not a proper party to this lawsuit, such that Plaintiff's claims fail as a matter of law and must be dismissed. Alternatively, Defendant argues that summary judgment is appropriate on the merits, as Plaintiff has failed to present any evidence that would support a Title VII or Public Policy Discharge claim against SCFBMIC. ECF No. 25-1 at 4-5.
In her Response, Plaintiff argues that Defendant should not be granted summary judgment because there is a genuine issue of material fact as to whether: (1) Plaintiff was an employee of SCFBMIC; (2) notice was provided to SCFBMIC that Plaintiff was experiencing ongoing harassment from a SCFBMIC agent who worked in her office; (3) the harassment was pervasive and severe; and (4) the Plaintiff was terminated as a result of her reporting harassment to SCFBMIC staff or agents. ECF No. 29 at 1.
I. Whether Defendant SCFBMIC Was Plaintiff's Employer Under Title VII
Title VII prohibits an “employer [from] discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex,” 42 U.S.C. § 2000e-2(a), and it prohibits an “employer [from] discriminat[ing] against any of [its] employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII],” 42 U.S.C. § 2000e-3(a). Title VII defines “employer” as “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 undisputed evidence before the Court indicates that Cardwell LLC had fewer than fifteen employees at all times relevant to this action. ECF No. 25-6 at ¶¶ 3-4; see ECF No. 25-9.
The Fourth Circuit has instructed courts to construe Title VII's definition of “employer” liberally, explaining that 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.” Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 410 (4th Cir. 2015) (quoting Magnuson v. Peak Technical Servs., Inc., 808 F.Supp. 500, 508 (E.D. Va. 1992)). The Fourth Circuit has articulated the following nine-factor “hybrid test” for courts to use in evaluating possible joint employers in Title VII cases:
(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.See Id. at 414.
“[N]one of these factors are dispositive[,] and . . . the common-law element of control remains the ‘principal guidepost' in the analysis.” Id. To that end, the Butler court explained that “[t]hree factors are the most important”:
The first factor, which entity or entities have the power to hire and fire the putative employee, is important to determining ultimate control. The second factor, to what extent the employee is supervised, is useful for determining the day-to-day, practical control of the employee. The third factor, where and how the work takes place, is valuable for determining how similar the work functions are compared to those of an ordinary employee.Id. at 414-15.
Whether an entity constitutes an employer for purposes of Title VII is a question of law for the court. See id. at 408; Cilecek v. Inova Health Sys. Svs., 115 F.3d 256, 261 (4th Cir. 1997).
Upon review, the undersigned concludes that Plaintiff has failed to establish that Defendant SCFBMIC was her employer.
A. Authority to hire and fire the individual
There is no evidence before the Court that Defendant SCFBMIC had the authority to hire or fire Plaintiff. Rather, the evidence shows that Plaintiff completed an application for employment in 2014 that identified the employer as “Dorchester County Farm Bureau.” ECF No. 25-3 at 3 (“Dorchester County Farm Bureau (‘the Company') is an equal opportunity employer....”). The undisputed evidence shows that each county in South Carolina has a county farm bureau that is a separate and distinct legal entity with its own federal tax I.D. number, charter, bylaws, officers, directors, and employees. ECF No. 25-4 at ¶ 7. There is no evidence that Plaintiff ever applied for a job with SCFBMIC, and the undisputed evidence indicates that Dorchester County Farm Bureau and SCFBMIC “are two separate entities.” ECF No. 25-5 at 70:10-17.
In her Affidavit, Plaintiff avers that she completed an application for SCFBMIC in April 2014. ECF No. 29-2 at 2 ¶ 4. However, the April 2014 application identifies the employer as “Dorchester County Farm Bureau” and does not list SCFBMIC anywhere on the document. ECF No. 25-3; ECF No. 29-1. To the extent Plaintiff's affidavit is referencing a separate application for employment with SCFBMIC, that application is not in the record, and there is no evidence that she was ever hired by SCFBMIC as a result of that application.
The undisputed evidence further shows that Dorchester County Farm Bureau and Cardwell LLC entered into the Office Management Agreement effective May 1, 2017, in which they agreed that, as of that date, “all clerical workers, currently employed by [Dorchester County] Farm Bureau, will no longer be employed by [Dorchester County] Farm Bureau,” and that Cardwell LLC “shall have all responsibility as an employer.” ECF No. 25-8 at 2, 3 ¶ c. Although Mr. Cardwell averred in his declaration that he “hired [Plaintiff] as a County Secretary in Dorchester County to work for [his] company [Caldwell LLC],” ECF No. 25-6 at 3 ¶ 4, Plaintiff averred that she did not fill out an application for Cardwell LLC and did not know about the Office Management Agreement until after her termination. ECF No. 29-2 at 3 ¶ 7.
Mr. Cardwell averred in his declaration that he fired Plaintiff: “On December 31, 2019, I informed [Plaintiff] that I had made the decision to terminate her employment with my company, [Cardwell LLC].” ECF No. 25-6 at 3 ¶ 5; see also ECF No. 25-16. Plaintiff testified that she does not have any evidence that SCFBMIC, or anyone other than Mr. Cardwell, was involved in the decision to terminate her employment. ECF No. 25-10 at 74:12-15.
Plaintiff has not pointed to any evidence suggesting that Defendant SCFBMIC had the authority to hire or fire Plaintiff. Accordingly, this factor weighs against finding that SCFBMIC was Plaintiff's employer.
B. Day-to-day supervision of the individual, including employee discipline
The undisputed evidence shows that Mr. Cardwell exercised day-to-day supervision of Plaintiff. Mr. Cardwell averred in his declaration that he “had complete, sole, and total independent control and supervision over [Plaintiff's] work, her duties, and her schedule and [Cardwell LLC] paid all her wages related to her work as a County Secretary in Dorchester County.” ECF No. 256 at 3 ¶ 4. Plaintiff testified that Mr. Cardwell was responsible for her day-to-day supervision, approval of her requests for leave, evaluation of her performance, approval of pay increases, and engaging in other job-related communications. ECF No. 25-10 at 31:3-38:8. There is no evidence that SCFBMIC conducted any day-to-day supervision of Plaintiff. Accordingly, this factor weighs against finding that SCFBMIC was Plaintiff's employer.
C. Whether the putative employer furnishes the equipment used and the place of work
Cardwell LLC had a Lease Agreement with Dorchester County Farm Bureau to provide the place of work and equipment for Plaintiff and the other employees of Cardwell LLC. See ECF No. 25-7. Pursuant to the terms of the Lease Agreement, Cardwell LLC agreed to provide liability coverage for the premises; maintain the premises; provide janitorial services and supplies; pay all utilities; pay for telephone services; maintain office furniture and equipment; and provide additional furniture and equipment as needed. Id. at 4-5.
Plaintiff averred that the office letterhead stated, “South Carolina Farm Bureau,” ECF No. 29-2 at 3 ¶ 6, though it is not clear on the record whether the letterhead specifically referenced SCFBMIC. However, Plaintiff also produced evidence that the network she used for her job duties was the SCFBMIC intranet, and that her email address was pattilott@scfbins.com. ECF No. 29-2 at 2-3 ¶ 6; ECF No. 29-4. Thus, it appears that while the physical place of work and most of the equipment Plaintiff used for work was furnished by Cardwell LLC, at least some of the equipment Plaintiff used for work was furnished by SCFBMIC.
D. Possession of and responsibility over the individual's employment records, including payroll, insurance, and taxes
The undisputed evidence before the Court indicates that Cardwell LLC had sole possession and responsibility over Plaintiff's employment records, including payroll, insurance, and taxes. Cardwell LLC paid Plaintiff her wages and withheld from Plaintiff's wages all appropriate taxes, insurance, and social security payments. ECF No. 25-6 at 2-3 ¶¶ 3-4. The “Check History Detail” Cardwell LLC maintained for Plaintiff sets forth all payments Cardwell LLC issued to Plaintiff in 2019 along with the withholdings and deductions, including taxes and insurance. ECF No. 25-11. Plaintiff testified that in 2019, she was paid by Cardwell LLC and that federal and state taxes were withheld from her paycheck. ECF No. 25-10 at 38:24-40:23. Plaintiff does not dispute that Cardwell LLC had sole possession of and responsibility over her employment records, including payroll, insurance, and taxes. See id.; see also ECF Nos. 25-12, 25-13, 25-14, 25-15.
There is no evidence that SCFBMIC had any possession of or responsibility over her employment records. Accordingly, this factor weighs against finding that SCFBMIC was Plaintiff's employer.
E. The length of time during which the individual has worked for the putative employer
The evidence indicates that Plaintiff worked for Dorchester County Farm Bureau from sometime in 2014 until May 1, 2017, and that she worked for Cardwell LLC from May 1, 2017, until her termination on December 31, 2019. See ECF No. 25-3; ECF No. 25-6 at ¶¶ 2-4; ECF No. 25-16. Plaintiff has not produced any evidence that she ever worked for SCFBMIC. Therefore, this factor weighs against finding that SCFBMIC was Plaintiff's employer.
F. Whether the putative employer provides the individual with formal or informal training
Plaintiff testified that she received secretarial training from “South Carolina Farm Bureau.” ECF No. 25-10 at 85:20-25. She also averred in her declaration that her “online training and in person training was certified through [SCFBMIC].” ECF No. 29-2 at 3 ¶ 6; see ECF No. 29-3 at 3-4. She further averred that when she had questions about homeowners or auto policies, she would call SCFBMIC's Columbia office's 800 number. ECF No. 29-2 at 3 ¶ 6. This factor weighs in favor of Plaintiff's argument that SCFBMIC was her employer.
G. Whether the individual's duties are akin to a regular employee's duties
Cardwell LLC had four employees during the relevant time period, ECF No. 25-6 at ¶¶ 34, and Plaintiff testified her duties were substantially similar, if not the same, as the other Cardwell LLC employees, see ECF No. 25-10 at 28:17-35:10. However, Plaintiff has not produced any evidence regarding the duties of an SCFBMIC employee. In the absence of such evidence, the Court cannot determine that her duties were similar to or the same as that of SCFBMIC employees. Accordingly, this factor weighs against a finding of an employment relationship.
H. Whether the individual is assigned solely to the putative employer
As explained above in subsections A and E, the evidence before the Court shows that Plaintiff worked for Dorchester County Farm Bureau beginning sometime in 2014 until May 1, 2017, at which time Cardwell LLC became her employer. Plaintiff has not presented any evidence that she ever worked for, or was assigned to, SCFBMIC. Therefore, this factor weighs against finding that SCFBMIC was Plaintiff's employer.
I. Whether the individual and putative employer intended to enter into an employment relationship
Plaintiff has not produced any evidence that she and SCFBMIC intended to enter into an employment relationship. As explained above, the employment application Plaintiff completed in April 2014 identified Dorchester County Farm Bureau as the employer. Although Plaintiff disputes that she intended to enter into an employment relationship with Cardwell LLC, that dispute is immaterial to the issue of whether there is any evidence that she intended to enter into an employment relationship with SCFBMIC. This factor weighs against finding that SCFBMIC was Plaintiff's employer.
J. Conclusion
“The object of the joint employment doctrine is to determine whether a putative employer exercise[s] significant control over the same employees.” Butler, 793 F.3d at 410 (citation and internal quotation marks omitted). In the instant case, although there is evidence that Plaintiff received some training from SCFBMIC and used computer networks and email provided by SCFBMIC, Plaintiff has not presented any evidence establishing that SCFBMIC exercised any control over her, much less significant control. See Id. Thus, Plaintiff has failed to produce sufficient evidence to establish that SCFBMIC was her employer. See, e.g., Bligen v. Carl Amber Brian Isaiah & Assocs., No. 2:19-CV-3002-BHH-TER, 2022 WL 1057170, at *6 (D.S.C. Jan. 5, 2022) (finding that “although some of nine factors set forth in the Butler test weigh in favor of finding joint employment [including that plaintiff used defendant's equipment and tools every day and was authorized to drive defendant's work trucks around the job site to perform his job duties], when considering all of the factors together as a whole and keeping in mind the ultimate goal of determining whether CBAIA exercised ‘significant control' over Plaintiff, Plaintiff fails to show that a genuine dispute of material fact exists on this issue”), report and recommendation adopted, No. 2:19-CV-3002-BHH, 2022 WL 855546 (D.S.C. Mar. 22, 2022); Jackson v. Richland Cnty., No. CV 3:15-4332-JMC-PJG, 2016 WL 3456943, at *3 (D.S.C. Feb. 24, 2016) (applying the Butler factors and concluding that defendant was not plaintiff's employer, notwithstanding that defendant provided training to plaintiff, paid his salary and administered his benefits, possessed and maintained his employment records, and provided office space), report and recommendation adopted, No. 3:15-CV-04332-JMC, 2016 WL 3433955 (D.S.C. June 22, 2016).
Because Plaintiff has failed to produce evidence establishing that SCFBMIC was her employer, she cannot prevail on her Title VII claims against SCFBMIC. See Bligen, 2022 WL 1057170, at *6 (finding summary judgment appropriate where plaintiff failed to show that defendant was a joint employer such that it could be liable under Title VII). Accordingly, the undersigned recommends that SCFBMIC's Motion for Summary Judgment be granted as to the Title VII hostile work environment claim and the Title VII retaliation claim.
II. Claim for Wrongful Discharge in Violation of Public Policy
Summary judgment also should be granted as to Plaintiff's remaining claim for wrongful discharge in violation of public policy. In her Amended Complaint, Plaintiff alleges that SCFBMIC wrongfully terminated her employment “because she threatened to report the harassment she was experiencing from Richard Purvis[,] . . . in violation of public policy.” ECF No. 16 at ¶ 18.
Under South Carolina law, absent the creation of a specific employment contract, employment is presumed to be at-will. Mathis v. Brown & Brown of S.C., Inc., 698 S.E.2d 773, 778 (S.C. 2010). Generally, “[a]n at-will employee may be terminated at any time for any reason or for no reason, with or without cause.” Id. Nonetheless, South Carolina recognizes a public policy exception to the employment at-will doctrine, such that “an employee who is terminated in violation of a clear public policy may pursue a cause of action in tort for wrongful termination.” Taghivand v. Rite Aid Corp., 768 S.E.2d 385, 387 (S.C. 2015); Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213, 225 (S.C. 1985) (“Where the retaliatory discharge of an at-will employee constitutes violation of a clear mandate of public policy, a cause of action in tort for wrongful discharge arises.”).
Courts have recognized and invoked the public policy exception in only two instances: (1) where an employer requires an employee, as a condition of continued employment, to break the law, and (2) where the termination of an employee is itself a violation of criminal law. Taghivand, 768 S.E.2d at 387 (citing Ludwick, 337 S.E.2d at 216; Culler v. Blue Ridge Elec. Coop., Inc., 422 S.E.2d 91 (S.C. 1992)); see Desmarais v. Sci. Rsch. Corp., 145 F.Supp.3d 595, 598 (D.S.C. 2015). Although the South Carolina Supreme Court has “made clear that the exception is not limited to these situations, [it has] specifically recognized no others.” Taghivand, 768 S.E.2d at 387 (citation and internal quotation marks omitted); see Desmarais, 145 F.Supp.3d at 598 (“South Carolina courts have been careful to narrowly interpret the exception, often declining to extend the exception beyond the bounds of Ludwick and Culler.”) (collecting cases).
The public policy exception does not extend “to situations where the employee has an existing statutory remedy for wrongful termination.” Barron v. Lab. Finders of S.C., 713 S.E.2d 634, 637 (S.C. 2011). Thus, the public policy exception “is not designed to overlap an employee's statutory or contractual rights to challenge a discharge, but rather to provide a remedy for a clear violation of public policy where no other reasonable means of redress exists.” Throckmorton v. Summerville Police Dep't, No. 2:20-CV-1936-RMG, 2020 WL 3490212, at *2 (D.S.C. June 26, 2020) (citation and internal quotation marks omitted).
As an initial matter, Plaintiff has not pointed to any South Carolina public policy SCFBMIC allegedly violated, nor has she alleged that SCFBMIC required her to violate the law or that the reason for her termination was a violation of criminal law. Moreover, as explained in detail above, Plaintiff has failed to produce sufficient evidence to establish that SCFBMIC was her employer. Finally, Plaintiff testified that she has no evidence that SCFBMIC was involved in her termination. ECF No. 25-10 at 47:16-21. For all these reasons, Plaintiff's claim for wrongful discharge in violation of public policy fails as a matter of law. Accordingly, the undersigned recommends that Defendant's Motion be granted as to Plaintiff's wrongful discharge claim.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion for Summary Judgment, ECF No. 25, be GRANTED and that this action be DISMISSED.
The parties are referred to the Notice Page attached hereto.