Opinion
Civil Action 6:20-cv-3745-DCC-KFM
02-23-2021
Charlena Jamison Parks, Plaintiff, v. RL Enterprise &Associates, LLC, Kimura, Inc., and Al Bell, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on defendant RL Enterprise &Associates, LLC's (“RL Enterprise”) motion for judgment on the pleadings (doc. 30) and defendant Kimura, Inc.'s (“Kimura”) motion for judgment on the pleadings (doc. 31). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil 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.
I. BACKGROUND
This matter arises out of the plaintiff's alleged sexual harassment while working at Kimura's plant in Laurens County, South Carolina. The plaintiff was hired by RL Enterprise, a recruiting and staffing company, and, on March 25, 2019, RL Enterprise assigned her to work at Kimura as a welder (doc. 1-1 at ¶ 11). While working at Kimura, on April 5, 2019, the plaintiff alleges that she began receiving unwanted and sexually explicit text messages and pictures from the defendant Al Bell (“Bell”), whom the plaintiff claims was a human resources manager at Kimura (id. at ¶ 12). Kimura submits, however, that Bell was a human resources generalist (doc. 31 at 1). In particular, the plaintiff contends that on or about June 28, 2019, Bell sent a text message to the plaintiff asking, “Were you thinking I would retaliate if you didn't do certain things?” (doc. 1-1 at ¶ 15). Subsequent to that text message, on July 2, 2019, the plaintiff claims that Bell escorted her out of the Kimura facility and informed her that RL Enterprise would contact her (id. at ¶ 16). RL Enterprise contacted the plaintiff on July 22, 2019, and notified her that she had been terminated from employment effective July 2, 2019 (id. at ¶ 18). The plaintiff claims that while she was assigned to Kimura, she never received any warnings, write-ups, or other disciplinary actions (id. at ¶ 18).
The plaintiff filed a complaint in the Greenville County Court of Common Pleas on September 14, 2020, alleging the following causes of action: discrimination in violation of Title VII of the Civil Rights Act of 1967 (“Title VII”); retaliation in violation of Title VII; discrimination in violation of the South Carolina Human Affairs Law; retaliation in violation of the South Carolina Human Affairs Law; assault; outrage; and negligent infliction of emotional distress (doc. 1-1). On October 26, 2020, Kimura filed a notice of removal based on federal question and supplemental jurisdiction (doc. 1). On January 15, 2021, RL Enterprise filed a motion for judgment on the pleadings (doc. 30). The plaintiff filed a response on January 29, 2021 (doc. 32). On January 25, 2021, Kimura also filed a motion for judgment on the pleadings (doc. 31). On February 8, 2021, the plaintiff filed a response (doc. 33), and Kimura filed a reply on February 16, 2021 (doc. 35). These matters are now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings pursuant to Rule 12(c) is analyzed under the same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim. Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[T]hefacts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 569). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Although the court must accept all of the complaint's factual allegations as true, this tenet “is inapplicable to legal conclusions, ” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements do not suffice.” Id. (citation omitted).
B. RL Enterprise's Motion
RL Enterprise filed a motion for judgment on the pleadings regarding all of the plaintiff's claims against it (doc. 30). In her response, the plaintiff indicates that, after reviewing the law and applicable precedents, she does not oppose RL Enterprise's motion (doc. 32). Consequently, the undersigned recommends that the district court grant RL Enterprise's motion for judgment on the pleadings and dismiss it from this action.
C. Kimura's Motion
1. Legal Standard
The plaintiff's discrimination and retaliation claims pled under the South Carolina Human Affairs Law are subject to the same legal standards as her discrimination and retaliation claims pled under Title VII. The South Carolina Human Affairs Law does not create any causes of action that would not attach to an employer under Title VII. S.C. Code Ann. § 1-13-100 (“Nothing in this chapter may be construed to create a cause of action against a person not covered by Title VII . . . .”). Moreover, “[t]he South Carolina Human Affairs Law essentially follows the substantive structure of Title VII, and the enforcement agency for Title VII . . . is in all relevant and material respects analogous to the respondent commission.” Orr v. Clyburn, 290 S.E.2d 804, 806 (S.C. 1982). As a matter of “statutory construction, a jurisdiction adopting legislation from another jurisdiction imports with it the judicial gloss interpreting that legislation.” Id. (citing Melby v. Anderson, 64 S.D. 249 (1936); Santee Mills v. Query, 115 S.E. 202 (1922)). “Thus, Title VII cases [that] interpret provisions or procedures essentially identical to those of the Human Affairs Law are certainly persuasive if not controlling in construing the Human Affairs Law.” Id.
Moreover, the plaintiff is not “require[d] to plead facts establishing a prima facie case [of discrimination], ” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 (2002). “In other words, a plaintiff is not charged with ‘forecasting] evidence sufficient to prove an element' of her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003) (quoting Iodice v. United States, 289 F.3d 270, 281 (4th Cir.2002)). “[T]he prima facie case ... is an evidentiary standard, not a pleading requirement, that may require demonstrating more elements than are otherwise required to state a claim for relief”; therefore, “requiring a plaintiff to plead a prima facie case would amount to a heightened pleading standard.” McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 584 (4th Cir. 2015) (quoting Swierkiewicz, 534 U.S. at 510-12 (internal citations and quotation marks omitted)). Even so, absent direct evidence, “courts may look to the requirements of a prima facie case as a guide in assessing the plausibility of plaintiff's claim for relief. See Coleman [v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)] (reciting elements of a prima facie case ... en route to affirming dismissal for failure to state a claim).” Craft v. Fairfax Cty. Gov't, C/A No. 1:16cv86 (JCC/MSN), 2016 WL 1643433, at *4 (E.D. Va. Apr. 26, 2016). Accordingly, the “inquiry is whether [the plaintiff] alleges facts that plausibly state a violation of Title VII ‘above a speculative level.'” Bing v. Brivo Sys., LLC, 959 F.3d 605, 617 (4th Cir. 2020) (quoting Coleman, 626 F.3d at 190).
2. Discrimination Claims
As a threshold matter, Kimura argues for the first time in its reply that it is entitled to judgment on the pleadings because the plaintiff did not allege that Kimura was her employer, a requirement for liability under both theories of discrimination under Title VII and the South Carolina Human Affairs Law (doc. 35 at 1-3). However, the plaintiff argues that Kimura and RL Enterprise acted as joint employers (doc. 33 at 6-7).
While it is true that an entity can only be held liable under Title VII if it is the complainant's employer, “multiple entities may be considered employers” under the joint employment doctrine applicable to Title VII. Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 408, 410 (4th Cir. 2015). To determine if entities are joint employers, courts must examine whether “both entities exercise significant control over the same employees” by evaluating certain factors enumerated in Butler. Id. at 408.
Courts evaluate the following Butler factors:
(1) authority to hire and fire the individual;
(2) day-to-day supervision of the individual, including employee discipline;
(3) whether the putative employer furnishes the equipment used and the place of work;
(4) possession of and responsibility over the individual's employment records, including payroll, insurance, and taxes;
(5) the length of time during which the individual has worked for the putative employer;
(6) whether the putative employer provides the individual with formal or informal training;
(7) whether the individual's duties are akin to a regular employee's duties;
(8) whether the individual is assigned solely to the putative employer; and
(9) whether the individual and putative employer intended to enter into an employment relationship.Butler, 793 F.3d at 414.
The plaintiff addresses the Butler factors in her response to Kimura's motion (doc. 33 at 6-7). However, in doing so, the plaintiff discusses facts that she has not alleged in her complaint. Thus, because a motion for judgment on the pleadings tests the sufficiency of the complaint, the undersigned will not address the facts introduced in the plaintiff's response. Regardless, the plaintiff alleges in her complaint that RL Enterprise was a recruiting and staffing company that assigned her to work at Kimura (doc. 1-1 at ¶¶ 2, 11). Moreover, the Fourth Circuit has found that an entity that had an employee assigned to its factory through a staffing company was an employer subject to Title VII liability. Butler, 793 F.3d at 406. Therefore, at this stage of the litigation, the undersigned finds that the plaintiff has alleged sufficient facts to state a claim that is plausible on its face regarding Kimura being her employer.
Further, as an additional threshold matter, Kimura notes that it is unclear whether the plaintiff is proceeding under a theory of quid pro quo harassment or hostile work environment harassment but argues that it is entitled to judgment on the pleadings under either theory (doc. 31 at 5). The plaintiff argues in response that she has stated a claim under both theories (doc. 33 at 5-8). Consequently, the undersigned will address both theories herein.
a. Quid Pro Quo Harassment
Kimura asserts that the plaintiff has failed to plead the fourth and fifth elements of a quid pro quo harassment claim (doc. 31 at 2, 5-9). To establish a prima facie case of quid pro quo sexual harassment under Title VII, a plaintiff must show that:
(1) the employee belongs to a protected group; (2) the employee was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the employee's reaction to the harassment affected tangible aspects of the employee's compensation, terms, conditions, or privileges of employment; that is, the acceptance or rejection of the harassment must be an express or implied condition to the receipt of a job benefit or cause of a tangible job detriment; and (5) the employer either knew or should have known of the harassment and took no effective remedial action.Langley v. Dolgencorp, LLC, 972 F.Supp.2d 804, 822 (D.S.C. 2013) (citing Okoli v. City of Baltimore, 648 F.3d 216, 222 (4th Cir. 2011)).
As to the fourth element, Kimura argues that the plaintiff's claim fails because she does not allege that Bell was her supervisor or had the authority to fire her or otherwise affect the conditions of her employment (doc. 31 at 6-7). Moreover, Kimura argues that the plaintiff's allegations do not give rise to an inference that her termination was the result of refusing Bell's sexual advances or that Bell promised an employment benefit if she consented to his sexual advances (id.).
To satisfy the fourth element, a plaintiff “must present evidence sufficient to show that her reaction to the harassment affected her termination. In other words, [the p]laintiff must establish, through direct or circumstantial evidence, a nexus or causal connection between her rejection of the unwelcome sexual advances and her termination.” Langley, 972 F.Supp.2d at 822. “[A] plaintiff may rely upon a broad array of evidence to establish the requisite causal link, and a court can consider circumstantial evidence and draw inferences in favor of the plaintiff in determining whether the causal link has been established.” Id. at 823 (citations and internal quotation marks omitted). “[O]ne way to establish the requisite nexus is to show that the unwelcome sexual advances proximately preceded the tangible employment action and the alleged harasser made or substantially influenced the relevant decision.” Id. (citations and internal quotation marks omitted).
As set out above, the plaintiff alleges that Bell was a human resources manager at Kimura; Bell implicitly threatened to retaliate against her if she refused his sexual advances; Bell walked her out of the Kimura facility and told her that RL Enterprise would be in contact with her, shortly before RL Enterprise terminated her employment; and that she was terminated in retaliation for her rejection of Bell's sexual advances (doc. 1-1 at ¶¶ 4, 12, 15-17, 19). The undersigned finds that, through these allegations, the plaintiff has sufficiently alleged a nexus between her rejection of the unwelcome sexual advances and her termination from employment.
Kimura also argues that the plaintiff fails to allege sufficient facts to show the fifth element, that it knew or should have known about the alleged harassment (doc. 31 at 7). “The fifth element is automatically met when the harassment was alleged to have been perpetrated by a supervisor.” Okoli, 648 F.3d at 222 (citation and internal quotation marks omitted). However, if the harassment was perpetrated by a co-worker, the fifth element may also be shown by the employer failing to control working conditions, which could include an employer not responding to complaints, not monitoring the workplace, failing to provide a system for registering complaints, or effectively discouraging complaints from being filed. See Vance v. Ball State Univ., 570 U.S. 421, 424, 449 (2013); e.g., Langley, 972 F.Supp.2d at 824. The Supreme Court has clarified that a “supervisor” under Title VII is a person “empowered by the employer to take tangible employment actions against the victim[.]” Vance, 570 U.S. at 424, 431. Thus, a supervisor must possess the ability “to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 431 (citation and internal quotation marks omitted).
The plaintiff does not argue that she reported the alleged sexual harassment to Kimura or any of the other factors relevant to alleged harassment by a co-worker. Rather, the plaintiff argues that she has sufficiently pled the fifth element because she alleges that Bell was a human resources manager and she personally perceived Bell to be her supervisor (doc. 33 at 7). As discussed herein, the plaintiff alleges that Bell was a human resources manager at Kimura; Bell implicitly threatened to retaliate against her if she refused his sexual advances; Bell walked her out of the Kimura facility and told her that RL Enterprise would be in contact with her, shortly before RL Enterprise terminated her employment; and that she was terminated in retaliation for her rejection of Bell's sexual advances (doc. 1-1 at ¶¶ 4, 12, 15-17, 19). While the defendants argue that Bell was not her supervisor but rather a human resources generalist, the plaintiff's allegations raise questions regarding Bell's ability to terminate her employment. Therefore, accepting the plaintiff's allegations as true, the undersigned finds that the plaintiff has stated a claim of relief that is plausible on its face regarding the fifth element. Consequently, Kimura's motion for judgment on the pleadings should be denied as to the plaintiff's quid pro quo harassment claim.
b. Hostile Work Environment
Kimura argues that the plaintiff also fails to state a claim of hostile work environment because she does not allege that the harassment was imputable to Kimura (doc. 31 at 8-9). To establish a claim of hostile work environment, a plaintiff must show that the offending conduct was (1) unwelcome, (2) based upon her sex, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) imputable to her employer. Langley, 972 F.Supp.2d at 826. Notably, hostile work environment claims and quid pro quo harassment claims both require “some basis for imputing liability to the employer[, ]” and courts in the Fourth Circuit routinely address this requirement under both claims with the same analysis. See Bazemore v. Best Buy, 957 F.3d 195, 201 (4th Cir. 2020) (noting that the “analysis of the imputability requirement [in a hostile work environment claim] is informed by the status of the alleged harasser” and that this element can be satisfied either by (1) the harassment coming from a supervisor with immediate authority over the plaintiff or (2) pervasive harassment from a co-worker that was known or should have been known by the employer and yet the employer failed to take corrective action); McKinnish v. Breenan, 630 Fed.Appx. 177, 181 (4th Cir. 2015) (analyzing a quid pro quo harassment claim and a hostile work environment claim in conjunction and determining whether an individual constituted a supervisor in regards to employer liability); Dawson v. Hous. Auth. of Baltimore City, C/A No. JKB-18-1442, 2019 WL 161497, at *4 (D. Md. Jan. 10, 2019) (finding that a plaintiff satisfied the fifth element of her quid pro quo claim because she satisfied the related element in her hostile work environment claim).
As set out above, the plaintiff alleges sufficient facts to withstand a motion for judgment on the pleadings regarding the fifth element of her quid pro quo claim, that the employer either knew or should have known of the harassment and took no effective remedial action. The undersigned similarly finds that because the plaintiff alleges facts that plausibly state a claim regarding Bell having supervisory authority over her, the plaintiff has alleged facts sufficient to state a claim regarding the imputability prong of a hostile work environment claim. Therefore, Kimura's motion for judgment on the pleadings should be denied as to this cause of action.
3. Retaliation Claims
Kimura also argues that it is entitled to judgment on the pleadings on the plaintiff's Title VII and South Carolina Human Affairs retaliation claims (doc. 31 at 2, 9-10). The plaintiff did not respond to Kimura's motion on these claims (see generally doc. 33). Consequently, Kimura's motion for judgment on the pleadings should be granted due to the plaintiff's abandonment of the claims. See Martin v. Newton, C/A No. 3:19-cv-00806-SAL, 2020 WL 4333563, at *2 n. 1 (D.S.C. July 28, 2020) (finding that some of the plaintiff's claims asserted against a particular defendant were deemed abandoned since the plaintiff did not address the claims in response to the pending motion for summary judgment); Erman v. Wells Fargo Bank, N.A., C/A No. 3:13-cv-00373-MOC, 2014 WL 4384022, at *2 (W.D. N.C. Sep. 3, 2014) (finding that a plaintiff had abandoned a claim when he failed to address it in his response to the defendant's motion for judgment on the pleadings).
III. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that RL Enterprise's motion for judgment on the pleadings (doc. 30) be granted. The undersigned further recommends that Kimura's motion for judgment on the pleadings (doc. 31) be granted as to the plaintiff's retaliation claims under Title VII and the South Carolina Human Affairs Law and be denied as to the plaintiff's discrimination claims under Title VII and the South Carolina Human Affairs Law.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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 300 East Washington Street Greenville, South Carolina 29601
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).