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Dunlap v. TM Trucking of Carolinas, LLC

United States District Court, D. South Carolina, Rock Hill Division

December 12, 2017

Rodney R. Dunlap; Kevin Good; Bernard Elam; Joe Neal; Mack Thompson, Plaintiffs,
v.
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

         Plaintiffs 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.)

         This matter is before the court on Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[1] (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 discharge.

         I. RELEVANT BACKGROUND TO PENDING MOTION

         Defendants TM Trucking of the Carolinas, LLC, [2] TNT Trucking of the Carolinas, Inc., [3]T-N-T Trucking of York County, Inc., [4] TNT Propane, Inc.[5] (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.)

         Plaintiff 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.)

         During 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 152:12-17.
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 document. Id.
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 54:1-21.
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 more money.
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.)

         McMillan 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 6:21-7:18.)

         On 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.)

         The court heard argument from the parties on the instant Motion at a hearing ...


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