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Porchea v. Google, Inc.

United States District Court, D. South Carolina, Beaufort Division

November 3, 2015

Tracy Porchea, Plaintiff,
v.
Google, Inc., Whiting-Turner Contracting Company, Cleveland Electric Company, and Allison-Smith Company LLC, Defendants.

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This action was filed by the Plaintiff on July 15, 2015 against the named Defendants, asserting a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et. seq. All four of the Defendant companies have filed motions to dismiss pursuant to Rule 12, Fed.R.Civ.P. Plaintiff has responded to the Defendants' motions, and reply memoranda have also been filed.

Defendants' motions are now before the Court for disposition.[1]

Allegations of the Complaint

Plaintiff alleges that on or about January 7, 2014 she began working for the Defendant Allison-Smith Company, LLC ("Allison-Smith") to do work at the Google plant in Moncks Corner, South Carolina. Plaintiff alleges that Allison-Smith, along with the Defendant Cleveland Electric Company ("Cleveland"), had been hired by the Defendant Whiting-Turner Contracting Company ("Whiting-Turner") to do work at the Google plant. Complaint, ¶ 13.

Plaintiff alleges that during the course of her employment with Allison-Smith she was subjected to inappropriate sexual advances, comments and gestures by Demond Swinton, an employee of Cleveland, and that on or about February 27, 2014, she notified Gary Alford, a Cleveland supervisor, about Swinton's conduct. Alford assured Plaintiff that he would handle it. Id., ¶¶ 14-15. Plaintiff alleges that Alford asked her to speak with him and Swinton, but that when Swinton arrived he started screaming and cursing at the Plaintiff while engaging in obscene gestures. Plaintiff alleges that Swinton also physically threatened her, and spit in her face. Plaintiff alleges that she was embarrassed, humiliated and degraded in front of her peers. Id., ¶¶ 16-18.

Plaintiff alleges she reported this incident to Allison-Smith supervisor Jeff Hendricks, who in turn reported everything to Allison-Smith's IBEW[2] 776 Job Steward Don Howard. Id., ¶ 19. Plaintiff alleges that thereafter the IBEW 776 Job Stewards for Cleveland and Allison-Smith met with her and told her to go home and cool off. Plaintiff alleges that she left as instructed, while also calling 911 to report the physical threat and "assaults" made by Swinton. Plaintiff alleges that she exited the construction security gate to wait for the police, and that shortly thereafter Swinton also exited the security gate and stood in front of her. Plaintiff alleges that she became frightened and again called 911 to report that Swinton was now standing in front of her. Id., ¶¶ 19-21.

Plaintiff alleges that when the police arrived at the front security gate, Google security officers called her to let her know that the police were there. Plaintiff then left the construction gate and met the police and the Google security officers at the front gate. Plaintiff alleges that both the police and the Google security officers issued reports regarding these events. Further, the Google security supervisor informed Plaintiff that she had emailed Whiting-Turner regarding these events and had instructed Whiting-Turner to fire Swinton and have him removed from the plant immediately. Id., ¶¶ 22-23.

Plaintiff alleges that when she returned to work the following day, she was called to a meeting with Allison-Smith's General Foreman Dan Bush and IBEW 776 Steward Don Howard. Plaintiff alleges that Bush informed her that there was nothing they could do about Swinton, and that he [Bush] had also been instructed to "write-up" the Plaintiff and another co-worker for being on the wrong side of the building during "Plaintiff's assault". Plaintiff alleges that she thereafter continued seeing Swinton during the day, that she was afraid Swinton was going to attack her, and that her supervisor let her go home early. Plaintiff alleges that she called Whiting-Turner's corporate office and left a message regarding the sexual harassment and threats she was receiving, and that she also called IBEW 776, which told her they knew nothing about these events and that they would investigate and get back to her. Finally, Plaintiff alleges she spoke with her supervisor, Jeff Hendricks, who encouraged her to contact Google directly. Id., ¶¶ 24-25.

However, Plaintiff alleges that on or about March 3, 2014, Hendricks told her that "Defendant Superintendent" was "furious" with her and that her job may be in jeopardy. Plaintiff alleges that she was escorted by Hendricks and Bush to see Scott Hicks, Allison-Smith's Superintendent, and that Hicks told her that the "drama had to stop" and proceeded to interrogate her as to why she had contacted Google and the police. Plaintiff alleges that Hicks told her that if she did not want to get fired she needed to "stop the drama" and not contact Google again. Plaintiff alleges that Hicks also informed her that nothing could be done about Swinton, but that he had spoken with the Defendant Cleveland and Swinton was being reassigned to a different building and would not have any further contact with the Plaintiff. Id., ¶¶ 26-28.

Notwithstanding what she had been told by Hicks, however, Plaintiff alleges that she saw Swinton the following day in the same building as before, that Swinton had not been reassigned to a different building, and that thereafter Swinton would stand behind her at safety meetings and say vulgar things to her under his breath. Plaintiff alleges that she complained to her co-workers and supervisors about this sexual harassment, following which, when she reported to work on or about March 11, 2014, her security badge would not work to allow her to enter through the security gate. Plaintiff alleges that when she asked the Google security guard why her badge was not working, she was told that it was "due to her replacement badge, which had been replaced six-eight months prior", and that if she did not turn in her original badge she would be fired. Id., ¶¶ 29-30.

Plaintiff further alleges that following her having reported the sexual harassment she was enduring, she was "continually placed on drug test lists and other instant termination lists"; was forced to continue to work with Swinton, during which the harassment and inappropriate behavior continued (thereby creating a hostile work environment); and that upon notifying another co-worker on or about July 11, 2014 that the sexual harassment and inappropriate behavior was continuing, she was again retaliated against and terminated. Id., ¶¶ 31-33.

Plaintiff alleges that it was the "duty of Defendant Company" to prevent such acts and behavior from occurring and to stop the offending behavior once it had been reported by the Plaintiff, but that the "Defendant Company" did not take appropriate action to resolve the problems and instead disciplined the Plaintiff as retaliation for her complaints, ultimately terminating her employment. Id., ¶¶ 34-36. Plaintiff alleges that this conduct by the "Defendant Company" was retaliatory and created a hostile work environment. Id., ¶¶ 37-38.

In her First Cause of Action Plaintiff asserts a claim for sexual harassment in violation of Title VII. In this Cause of Action, Plaintiff alleges that the "Defendant Company", [3] as both Plaintiff's and Swinton's employer, allowed Swinton to maintain his presence near the Plaintiff while at work despite her complaints, thereby allowing her to be subjected to sexual harassment and a hostile work environment. Plaintiff also alleges that the "Defendants" retaliated against her, and constructively discharged her. Id., ¶¶ 40-45.

In her Second Cause of Action Plaintiff alleges a "violation of [her] civil rights", again pursuant to Title VII, against the "Defendant Company" due to the "sexual harassment" which allowed a "hostile work environment to exist", and "by retaliating against [her]". Id., ¶¶ 48-49.

Plaintiff seeks monetary damages. See generally, Complaint.

Discussion

As noted, all four Defendants have filed Rule 12 motions to dismiss. "[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the complaint alleges sufficient facts which, if true, would permit a reasonable fact finder to find defendants liable." Vogt v. Greenmarine Holding, LLC, 318 F.Supp.2d 136, 144 (S.D.N.Y. 2004). When considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the Plaintiff. The motion can be granted only if the Plaintiff has failed ...


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