United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
case was originally filed in the Court of Common Pleas for
Horry County, South Carolina. Initially, Plaintiff, Laura
Acosta, alleged the following claims against the Defendants:
1) hostile work environment; 2) sexual harassment/sexual
discrimination; 3) retaliation; 4) age discrimination; 5)
disability discrimination; 6) violation of the South Carolina
Wages Act, SC Code Ann. § 41-10-10, et seq.; 7) breach
of contract; 8) violation of privacy rights; and 9)
defamation. Defendants removed the case to this Court on the
basis of federal question jurisdiction, 28 U.S.C. §
1441, on February 2, 2015.
Court previously dismissed Plaintiff's cause of action
for breach of an implied covenant of good faith and fair
dealing; dismissed Plaintiff's cause of action for
violation of her privacy rights to the extent it alleged
HIPAA violations; and partially dismissed Plaintiff's
breach of contract cause of action but allowed Plaintiff to
go forward on a breach of contract claim for failure to
follow a progressive discipline policy. Plaintiff has also
withdrawn her claims for age discrimination, violation of the
South Carolina Wages Act, invasion of privacy, and
defamation. Plaintiff has indicated her consent to the
dismissal of her breach of contract claim in its entirety and
the dismissal of Defendant Mark Lamonica. See [ECF
No. 75, pg. 13].
remaining claims against Defendant Hilton Grand Vacations,
LLC (“Hilton”) are: 1) hostile work environment;
2) sexual harassment/sex discrimination; 3) retaliation; and
4) disability discrimination.
before the Court is Defendants' [ECF No. 59] motion for
summary judgment. This matter is before the Court with the
Report and Recommendation [ECF No. 74] of Magistrate Judge
Kaymani D. West filed on January 23, 2017. The Magistrate
Judge recommended that Hilton's motion for summary
judgment be granted. The Magistrate Judge also recommended
that any claims against Mark Lamonica or Kevin Kahler be
dismissed with prejudice pursuant to Rule 41.
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court is charged with making a de novo
determination of those portions of the R & R to which
specific objection is made, and the Court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
right to de novo review may be waived by the failure
to file timely objections. Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a
de novo review when a party makes only
“general and conclusory objections that do not direct
the [C]ourt to a specific error in the [M]agistrate's
proposed findings and recommendations.” Id.
Moreover, in the absence of objections to the R & R, the
Court is not required to give any explanation for adopting
the recommendation. Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). However, in the absence of objections,
the Court must “‘satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a) (2010). “A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in
the record . . .; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.” Fed.R.Civ.P. 56(c)(1). When no
genuine issue of any material fact exists, summary judgment
is appropriate. See Shealy v. Winston, 929 F.2d
1009, 1011 (4th Cir. 1991). The facts and inferences to be
drawn from the evidence must be viewed in the light most
favorable to the non-moving party. Id. However,
"the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
the moving party has met [its] burden, the nonmoving party
must come forward with some evidence beyond the mere
allegations contained in the pleadings to show that there is
a genuine issue for trial." Baber v. Hospital Corp.
of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The
nonmoving party may not rely on beliefs, conjecture,
unsupported speculation, or conclusory allegations to defeat
a motion for summary judgment. See Baber, 977 F.2d
at 875. Rather, the nonmoving party is required to
submit evidence of specific facts by way of affidavits,
depositions, interrogatories, or admissions to demonstrate
the existence of a genuine and material factual issue for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
was hired by Defendant Hilton on February 27, 2012, as a
Sales Executive at Anderson Ocean Club. Plaintiff's
duties included selling Hilton timeshare products to
potential customers, meeting with Hilton guests, and
providing tours/sales presentations to Hilton guests.
Plaintiff's immediate supervisor was Senior Sales Manager
Kevin Kahler. Mark Lamonica was at a level of supervision
above both Kevin Kahler and Plaintiff. Plaintiff's
allegations of discrimination primarily involve allegations
about Kevin Kahler's conduct. Plaintiff testified that
she had no complaints about her treatment by any Hilton
employee other than Kahler.
paperwork Plaintiff completed as part of her employment with
Hilton, Plaintiff self identified as belonging to the
“White (Not Hispanic or Latino)” ethnic group.
[ECF No. 59-8]. Plaintiff also indicated that she was not a
disabled individual. Id. Plaintiff suffers from high
blood pressure and diabetes but testified that neither
condition affected her ability to perform her job duties.
[Plaintiff's deposition, ECF No. 59-6, pg. 7-8, (depo.
alleges that she had “good numbers” during her
employment with Hilton and made over $78, 000.00 in 8 months.
[Plaintiff's Affidavit, ECF No. 71-3, ¶ 8].
Plaintiff alleges she sold to an average of seven out of ten
clients. Id. Plaintiff also alleges that she was
consistently in the top 15 of 60 performers and was regularly
awarded bonuses. Id. at ¶¶ 36-37.
claims Kahler made negative comments to her including that
she was the “token Yankee, ” that if she lost
some weight she may get a man, and that she was not Hilton
material. Id. at ¶ 10. Plaintiff testified in
her deposition that Kahler, on one occasion, made an
inappropriate comment regarding her breasts. [Plaintiff's
deposition, ECF No. 59-6, pg. 56, (depo. pg. 224-25)]. On
another occasion, Kahler asked Plaintiff if she celebrated
Cinco de Mayo. Id. at pg. 21 (depo. pg. 100).
Plaintiff alleges Kahler made comments regarding her hair
color, religion, and Hispanic heritage. [Plaintiff's
Affidavit, ECF No. 71-3, ¶ 10]. According to Plaintiff,
Kahler's constant commentary made her work environment
complained to one of her supervisors, Richard Fife, about
Kahler's treatment of her. [Plaintiff's deposition,
ECF No. 59-6, pg. 18-19, (depo. pg. 97-98)]. Plaintiff later
complained to Lauren Hlavaty, Senior Human Resources Manager,
and Mark Lamonica. Id. at pg. 22-25 (depo pg.
101-104). After her complaints to Hlavaty, Plaintiff
testified that Kahler's harassment stopped and her work
environment improved. Id. at pg. 61 (depo. pg. 232).
testified that Kahler “was an equal opportunity
jerk” and was rude and degrading to both male and
female employees on a regular basis. [Plaintiff's
deposition, ECF No. 59-6, pg. 28, (depo. pg. 113)]. Lauren
Hlavaty, Senior Human Resources Manager for Hilton, confirmed
that she had received complaints about Kahler's rude and
degrading behavior from both male and female employees.
[Lauren Hlavaty deposition, ECF No. 59-10, pg. 7, 14 (depo
pgs. 41, 66)].
states she suffers from a heart condition and required
surgery for carpal tunnel syndrome and a breast reduction and
that based on these medical conditions, she was treated
differently. [Plaintiff's Affidavit, ECF No. 71-3,
6, 2013, Randy Devaux (Director Hotel Operations, Hilton
Myrtle Beach Resort) contacted Gabriel Armstrong
(Hilton's Senior Marketing Manager) to inform him that
two guests had reported that Plaintiff made disparaging
remarks about the Hilton Myrtle Beach during a tour at the
Anderson Ocean Club. [Devaux email, ECF ...