United States District Court, D. South Carolina, Rock Hill Division
Rodney R. Dunlap; Kevin Good; Bernard Elam; Joe Neal; Mack Thompson, Plaintiffs,
TM Trucking of the Carolinas, LLC, TNT Trucking of the Carolinas, Inc., T-N-T Trucking of York County, Inc., TNT Propane, Inc., and Tony McMillan, individually, Defendants.
ORDER AND OPINION
Rodney R. Dunlap, Kevin Good, Bernard Elam, Joe Neal and Mack
Thompson (collectively “Plaintiffs”) filed this
civil rights action against Defendants TM Trucking of the
Carolinas, LLC, TNT Trucking of the Carolinas, Inc., T-N-T
Trucking of York County, Inc., TNT Propane, Inc. and Tony
McMillan (“McMillan”) (collectively
“Defendants”) pursuant to 42 U.S.C. § 1981
alleging claims for hostile work environment and constructive
discharge. (ECF No. 1 at 14 ¶¶ 80-83.)
matter is before the court on Defendants' Motion for
Summary Judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. (ECF No. 70.) Specifically, Defendants
assert that “there is no genuine issue of material fact
and that they are entitled to summary judgment on each
Plaintiffs' claim.” (Id. at 1.) In
accordance with 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2)(g) (D.S.C.), the matter was referred to United
States Magistrate Judge Shiva V. Hodges for pretrial
handling. On August 24, 2017, the Magistrate Judge issued a
Report and Recommendation (ECF No. 78) recommending that
“Defendants motion be granted as to Plaintiffs'
constructive discharge claim and denied as to Plaintiffs'
claims for hostile work environment.” (Id. at
14.) Both Plaintiffs and Defendants filed Objections to the
Magistrate Judge's Report and Recommendation, which
Objections are presently before the court. (ECF Nos. 80 &
81.) For the reasons set forth below, the court
ACCEPTS IN PART the Magistrate Judge's
recommendation and DENIES Defendants'
Motion for Summary Judgment as to Plaintiffs' claim for
hostile work environment and DENIES
Defendants' Motion for Summary Judgment as to the claim
of Plaintiffs Dunlap, Good and Neal for constructive
RELEVANT BACKGROUND TO PENDING MOTION
TM Trucking of the Carolinas, LLC,  TNT Trucking of the
Carolinas, Inc., T-N-T Trucking of York County, Inc.,
Propane, Inc. (collectively “Corporate
Defendants”) are all engaged in the business of
transporting/hauling goods. (ECF No. 74-1 at 20:22-21:5.)
Corporate Defendants are all physically located at 605
Albright Road in Rock Hill, South Carolina. (Id. at
19:9-23.) McMillan is the one hundred per cent owner of
Corporate Defendants. (Id. at 18:3-23.) McMillan
possesses ultimate hiring and firing authority as to
Corporate Defendants. (Id. at 32:4-15 &
73:10-74:5.) McMillan is the only individual with check
writing authority for Corporate Defendants. (Id. at
28:3-10.) McMillan is the individual responsible for
“implementing the human resources functions” and
for ensuring that Corporate Defendants are “compliant
with federal and state equal employment opportunity
laws.” (Id. at 32:25-33:8.) Additionally,
McMillan is responsible for dispatching trucks and assigning
their drivers. (Id. at 34:12-20.)
Dunlap drove a dump truck for Defendants T-N-T Trucking of
York County, Inc. and/or TNT Trucking of the Carolinas, Inc.
(together the “TNT Defendants”) from June 21,
2013, through January 25, 2014. (ECF No. 71-1 at 5:20:6,
11:44:9-24 & 19:76:16-21; ECF No. 74-1 at 58:14-17.)
Plaintiff Neal was employed as a dump truck driver by TNT
Defendants from May 29, 2012, through May 10, 2013. (ECF No.
71-4 at 7:27:21-28:17 & 8:31:22-23; ECF No. 74-1 at
62:10-19 & 63:24-65:11; ECF No. 74-5 at 4:22-23.)
Plaintiff Good worked for TNT Defendants as a dump truck
driver from August 15, 2012, to February 4, 2014. (ECF No.
71-3 at 9:33:8-20, 11:44:11-16 & 14:54:18-25; ECF No.
74-1 at 68:6-11.) Plaintiff Elam was employed as both a long
haul driver and dump truck driver for TNT Defendants from
September 16, 2010, until December 13, 2013. (ECF No. 71-2 at
9:36:19-10:37:11; ECF No. 74-1 at 69:8-70:12 & 72:1-3;
ECF No. 74-3 at 8:13-15.) Finally, Plaintiff Thompson worked
as a driver for TM Trucking of the Carolinas, LLC on six (6)
separate occasions, the last period lasting from January 9,
2012 to March 2014. (ECF No. 71-5 at 6:22:9-14 &
8:30:6-13; ECF No. 74-1 at 77:5-8.)
their employment, Plaintiffs assert that McMillan used the
term “nigger” in the work environment thereby
subjecting Plaintiffs to a racially-hostile and abusive
working environment and causing the constructive discharge of
Dunlap, Good, Elam and Neal. The following is a comprehensive
summation of Plaintiffs' allegations:
Dunlap testified that on a typical day, he and the other
drivers would report to work at 7:00 a.m. and would gather in
the break room until they were dispatched by McMillan. Dunlap
Dep. at 51:18-25. Dunlap testified that the duration of time
he spent in the break room with McMillan and the other
employees varied depending upon weather conditions.
Id. at 51-56.
Dunlap testified that he first heard McMillan use the word
“nigger” in July 2013. Dunlap Dep. 69:18-24. He
states that he was in the breakroom while McMillan was
talking to some of the black employees and McMillan yelled,
“Nigger, please.” Id. at 70:2-8. Dunlap
recounted that McMillan used the word “nigger”
frequently throughout his employment, at least one to two
times per week until the date he quit. Dunlap Aff. ¶ 2.
Dunlap testified that on another occasion he heard McMillan
refer to another black employee, Warren Chisholm, as a
“country-ass nigger.” Id. at ¶ 3.
In response to hearing this, Dunlap asked McMillan,
“What's up with you and your use of that
word?” Id. According to Dunlap, McMillan
replied that the word “nigger” meant an
“ignorant person, ” and that Dunlap should
“look it up in the dictionary.” Id.;
Dunlap Dep. at 83:24-84:5. McMillan sometimes referred to a
white coworker as a “white nigger, ” although
Dunlap testified that McMillan “would do that after he
called the black people niggers to try to cover it up.”
Dunlap Dep. at 85:15-18. Dunlap testified that on December
20, 2013, McMillan referred to Dunlap and other black
employees who were seated at a table in the break room as
“niggers, ” declaring “you think I'm
going to give those niggers [referring to Dunlap and his
co-workers] anything?” Dunlap Dep. at 91:16-92:4.
On other occasions, Dunlap heard McMillan speak disparagingly
about African-Americans. Dunlap testified that on one
occasion while he was employed by Defendants, a news story
regarding a terrorist attack that had occurred at a shopping
mall in Africa was being broadcast on the breakroom
television. Id. at 150:20-151:4. Dunlap stated that
upon seeing the newscast, McMillan remarked, “Look at
those dumb-ass niggers tearing up their country.”
Id. On another occasion, McMillan referred to the
black employees as “stupid asses, ” “dumb
motherfuckers, ” or “stupid motherfuckers”
and declared that a “monkey could do your job.”
Id. at 151:13-21. According to Dunlap, McMillan
directed these comments at the black employees only, and not
to the white employees who worked for Defendants.
Id. Dunlap testified that one time an employee
mentioned in the breakroom that his girlfriend had wrecked
her car, to which McMillan responded, “What's she
trying to do, play that nigger role, get whiplash for some -
get some money for whiplash?” Id. at
Dunlap recounted that he left his employment with Defendants
because he “had just had enough.” Id. at
63:17-21 . . . . Dunlap voluntarily resigned by declining to
return to work after he started a new job.
Good stated that McMillan used the word “nigger”
in his presence on a frequent basis. Good Dep. at 76:23-77:1.
Good recounted that McMillan called him a
“nigger” when he helped McMillan deliver a stove
to McMillan's mother's home in Georgia some time in
2013. Id. at 42:23-43:10. Good testified that
McMillan called him a “nigger” again during the
fall of 2013 when he returned to the yard to have the brakes
on his truck adjusted. Id. at 51:11-21. On another
occasion, McMillan remarked in Good's presence that he
could not “stand that bald-headed fucking nigger,
” referring to another black coworker. Id. at
50:9-11. In response to that remark, Good told McMillan,
“If you say that about him you might as well be calling
me that.” Id. at 50:13-15. Good told McMillan
that he should not use that word in the workplace.
Id. at 50:15-19.
Good testified that he did not and does not use the term
“nigger” and did not like being called a
“nigger.” Id. at 47:2-13. Good further
testified that on April 24, 2014, McMillan approached him and
asked that he sign a document indicating that it was okay for
McMillan to use the word “nigger” in his
presence. Id. at 72:7-19. Good refused to sign that
Good testified that he resigned because he did not appreciate
the way McMillan spoke to him and also because he needed
benefits. Id. at 174:17-22.
Elam testified that he heard McMillan use the term
“nigger” when he got upset or “cussed and
fussed” at other black coworkers. Elam Dep. at
93:16-94:6. On one occasion, McMillan was on the truck radio
and asked, “Who is playing that nigger music?”
when another driver played a Michael Jackson song.
Id. at 51:5-52:19. On another occasion, McMillan
commented in Elam's presence, “these niggers be
tripping, ” in reference to a murder that had been
committed in a nearby black neighborhood. Id. at
Elam testified that on one occasion he told McMillan's
daughter that her dad should not be using racial slurs.
Id. at 55:4-18. In response, McMillan's daughter
stated, “Well, you don't know my daddy.”
Id. In addition to his complaint to McMillan's
daughter, Elam told McMillan that he should stop using the
“N-word” because “that's not
good.” Id. at 56:12-75:12. McMillan, however,
continued to use that term in his presence. Id. at
122:22-123:4. Elam testified that he “didn't feel
it was right” for McMillan to use that word.
Id. at 162:3-9.
Neal testified in his deposition that he heard McMillan use
the “N-word” within the first three weeks of his
date of hire. Neal Dep. 33:24-34:12. Neal recounted that
McMillan was the only one whom he heard use that word in the
workplace. Id. Neal testified that McMillan used the
word while in the breakroom and that McMillan used the word
regularly. Id. Over the course of his twelve months
of employment with the Defendants, Neal estimated that he
heard McMillan use the term “nigger” over 80
times. Id. at 47:3-10. Neal testified that on one
occasion during the summer of 2012, McMillan called him a
“nigger” in a telephone conversation in which
McMillan accused him of breaking the drive shaft of his
truck. Id. at 35:18-35:21. According to Neal, his
truck stalled, slid down a small embankment, and would not
restart. Id. Neal stated that when he called
McMillan to report what had happened, McMillan became mad,
cursed at him, and said, “Nigger, it sounds like
you've done broke the drive shaft.” Id.
Neal testified that upon his return to Defendants'
business premises, he confronted McMillan and told him
“not to ever call me that again and don't ever
speak to me the way you spoke to me.” Id. at
36:22-37:21. Although McMillan never called him a
“nigger” again and offered an apology to him with
respect to this incident, Neal believes that McMillan was
apologizing for having wrongly accused him of damaging the
truck-not for calling him a “nigger”-because
McMillan continued to use the racial slur in his presence to
refer to other black employees. Id. at 37:21-38:23;
70:11-71:10. Neal further recounted that he heard other black
employees, including Elam, complain to McMillan about his use
of the “N-word.” Id. at 75:8-19. In
response to these complaints, McMillan would reply by saying
“the word nigger means white trash and he'd say,
‘look it up in the dictionary.'” Id.
Neal voluntarily resigned to take a job where he was making
Thompson testified that when he returned to work in January
2014 after a heart attack, McMillan greeted him by saying,
“Nigger, I thought you was dead . . . I was looking for
your black ass to be dead in the obituary.”
Id. at 20:10-22. Further, during his last period of
employment with Defendants, Thompson testified that he heard
McMillan use the term every day he was in the shop.
Id. at 50:24-52:3. He also testified that he once
heard McMillan use the term “nigger” when he told
another employee in the company breakroom to look up the word
in a dictionary. Id. at 24:6-10.
Thompson stated that while he enjoyed working, he did not
enjoy McMillan's calling him a “nigger.”
Thompson stated that hearing the term “made me feel
kind of bad and like humiliated but it just - I let it go in
one ear and keep going. But as he kept doing it, you know, on
a regular basis, it kind of just got to you.”
Id. at 50:20-23.
(ECF No. 78 at 3-8.)
admits that he uses the term “nigger” at work
while owner of Corporate Defendants. (ECF No. 74-2 at
12:5-6.) McMillan denies that he directed the term
“nigger” at anyone directly or used it to refer
to an African-American. (Id. at 13:6-8 &
14:4-7.) McMillan also testified that it is possible he used
the term “nigger” in the presence of Plaintiffs
while they were employed by Corporate Defendants. (ECF No.
74-2 at 19:7-22.) McMillan asserts that no one including
Plaintiffs have ever told him that “nigger” was
offensive or asked him not to use the term. (Id. at
13:25-14:4.) McMillan claims that almost everyone employed by
Corporate Defendants, including Plaintiffs, said
“nigger” daily in the workplace. (Id. at
14:17-16:24.) However, Plaintiffs deny that others in
Corporate Defendants' workplace used the term.
(E.g., ECF Nos. 74-3 at 20:5-7 & 74-5 at
September 28, 2017, Plaintiffs filed a civil rights Complaint
against Defendants pursuant to § 1981 alleging that all
Plaintiffs were subjected to a racially hostile work
environment and that Plaintiffs Dunlap, Good, Elam and Neal
were constructively discharged from their jobs. (ECF No. 1 at
14 ¶¶ 80-83.) On February 1, 2017, the parties
completed discovery. (See ECF No. 48) Defendants
then moved for summary judgment on April 24, 2017. (ECF No.
70.) Plaintiffs filed a Response in Opposition to
Defendants' Motion for Summary Judgment on May 15, 2017,
to which Defendants filed their Reply to Plaintiffs'
Response in Opposition to Motion for Summary Judgment on June
5, 2017. (ECF Nos. 74 & 77.) In accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 (D.S.C.), the
Magistrate Judge, after reviewing the parties'
submissions, issued the aforementioned Report and
Recommendation on August 24, 2017, recommending that
“Defendants motion be granted as to Plaintiffs'
constructive discharge claim and denied as to Plaintiffs'
claims for hostile work environment.” (ECF No. 78 at
14.) On September 5, 2017, Plaintiffs filed their Objections
to the Magistrate Judge's Report and Recommendation,
followed by Defendants filing their Objections on September
7, 2017. (ECF Nos. 80 & 81.) Plaintiffs filed a Reply in
Opposition to Defendants' Objections on September 20,
2017. (ECF No. 82.)
court heard argument from the parties on the instant Motion
at a hearing ...