United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE.
Orlando Cole (“Plaintiff”), filed the instant
action alleging racial harassment and constructive discharge
pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. Sections 2000e, et seq.,
against his former employer, Premier Constructions, Inc.
(“Premier”), and another employee, Marty Ballard
(“Ballard'). ECF No. 1
RELEVANT FACTUAL AND PROCEDURAL
is an African-American. He worked as an electrician at
Premier from approximately August 25, 2012, until January 11,
2013. Id. at 2. During that time, Plaintiff worked
under the supervision of Marty Ballard, who served as the
foreman of Plaintiff's crew. Plaintiff alleges that, not
long after beginning his work on the electrical crew, Ballard
began making racial remarks about African-Americans,
specifically using racially offensive epithets. Id.
Plaintiff claims that, as time went on, Ballard began
directing the racial epithets directly at Plaintiff, often in
the presence of other members of the crew. Id.
Between late December 2012 and early January 2013, Plaintiff
spoke with his Premier Project Manager James Oliver to alert
him of Ballard's conduct. ECF No. 51 at 2. There is no
record of whether Oliver spoke to Ballard about the issue;
however, it is undisputed that after Plaintiff contacted
Oliver, Ballard ceased to make racial remarks for a few days.
short period of relief, Plaintiff claims that Ballard began
to make racially offensive statements again and added
commentary on stereotypes concerning African-Americans and
their work ethic. Id. at 1. Plaintiff again went to
Oliver to alert him of the issue, and Oliver notified one of
the owners of the company, Freeman Bell, who is also
African-American. Id. at 2. Once notified, the three
men and another employee of Premier met to discuss the issue
further. During that meeting, Plaintiff told Bell and Oliver
that he had a video recording on his cell phone of
Ballard's racial remarks; however, he only played a
portion of the recordings. ECF No. 28-4 at 10. Plaintiff
later reflected that he did not show the recordings in their
entirety because he believed that someone in the meeting
would attempt to delete the recordings from his phone.
informed Plaintiff that he would speak to Ballard, and that
Premier had zero tolerance for discrimination or harassment.
At the conclusion of the meeting, Bell instructed Plaitniff
that he would further investigate the issue, and instructed
Plaintiff to return to work the next day. ECF No. 51-1 at 17.
Plaintiff asserts that he was unable to return to what he
deemed to be a hostile work environment. As a result, he
resigned the next day, January 11, 2013. ECF No. 51 at 2.
February 10, 2013, Plaintiff filed an Initial Charge of
Discrimination with the South Carolina Human Affairs
Commission. ECF NO. 28-1 at 4. The Department of Employment
and Workforce completed a fact finding interview and
subsequently denied Plaintiff's claims for unemployment
benefits. ECF No. 28-7. Plaintiff appealed the decision to
the Appeal Tribunal. On May 22, 2013, following a hearing on
the issue, the tribunal affirmed the determination and denied
Plaintiff's request for unemployment benefits, finding
that he voluntarily resigned his position with Premier. ECF
No. 28-9. Next, Plaintiff appealed to the Appellate Panel,
where the decision to deny him benefits was again affirmed.
Id. ECF No. 28-8.
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”). On September 4,
2014, the EEOC issued a Determination notifying Plaintiff of
his right to sue. ECF No. 51-23. The present action was filed
on May 6, 2015 alleging intentional infliction of emotional
distress, (2) racial harassment under Title VII, and (3)
constructive discharge under Title VII. On August, 5, 2016,
Defendants filed a motion for summary judgment to which
Plaintiff replied in opposition on October 31, 2016. ECF No.
28, 51. Following Defendants motion for summary judgment,
Plaintiff withdrew his intentional infliction of emotional
distress claim. ECF No. 51 at 3, n. 1.
to 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this
matter was referred to United States Magistrate Judge Paige
J. Gossett for pre-trial handling. On January 26, 2017, the
Magistrate Judge issued a Report and Recommendation
(“Report”), recommending Defendants motion for
summary judgment be granted. ECF No. 56. Plaintiff filed
objections to the Report on February 13, 2017, to which
Defendants filed a reply on February 27, 2017. ECF No. 61,
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with
this court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). The court reviews de novo only those
portions of a Magistrate Judge's Report and
Recommendation to which specific objections are filed, and
reviews those portions which are not objected to-including
those portions to which only “general and
conclusory” objections have been made-for clear error.
Diamond v. Colonia Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983); Opriano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of
the magistrate judge or recommit the matter with
instructions. 28 U.S.C. § 636(b)(1).
to Federal Rules of Civil Procedure Rule 56(a), the court
shall grant summary judgment if the moving party shows that
there is no genuine dispute as to any material fact and is
entitled to judgment as a matter of law. The evidence
presents a genuine issue of material fact if a
“reasonable jury could return a verdict for the
non-moving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 24, 251-52 (1986). Any inference drawn
from the facts should be viewed in the light most favorable
to the non-moving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962). The party seeking
summary judgment bears the initial burden of demonstrating to
the district court that there is no genuine issue of ...