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Cole v. Premier Constructors, Inc.

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

March 31, 2017

ORLANDO COLE, Plaintiff,



         Plaintiff 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


         Plaintiff 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.

         After a 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. Id.

         Bell 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.

         On 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.

         Plaintiff 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.

         Pursuant 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, 62.


         A. Magistrate Review

         The 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).

         B. Summary Judgment

         Pursuant 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 ...

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