United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court upon Defendants' Motion for
Summary Judgment (Dkt. No. 36). Pursuant to the provisions of
Title 28, United States Code, Section 636(b)(1) and Local
Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in
employment discrimination cases are referred to a United
States Magistrate Judge for consideration. For the reasons
set forth herein, the undersigned recommends that
Defendants' Motion for Summary Judgment (Dkt. No. 36) be
granted in part and denied in part.
was hired as a sales representative and front desk clerk at
the Clarion Inn & Suites (“Clarion”) in North
Charleston on September 27, 2012. (Dkt. No. 40 at 2; Dkt. No.
36-2 at 50:16- 52:24.) The Clarion is owned and operated by
Defendant Archdale Development, LLC (“Archdale”),
a South Carolina limited liability company owned by Defendant
Kamlesh Shah (“Shah”). (Dkt. No. 40 at 1-2; Dkt.
No. 36-1 at 2; see also Dkt. No. 36-3 at 26:3-29:10.) Shah is
the sole member of Archdale. (Id.) Additionally, he
is the sole owner and member of Defendant Palmetto Heights,
LLC (“Palmetto Heights”), which owns and operates
a neighboring hotel called the Airport Inn. (Id.)
the course of her employment at the Clarion, Plaintiff
contends that she was “subjected to ongoing sexual
harassment” by Shah. (Dkt. No. 40 at 3; Dkt. No. 1-1 at
6.) Specifically, Plaintiff claims that Shah pressured her to
wear short skirts and tight, low-cut shirts that would expose
her breasts in order to increase sales (Dkt. No. 36-2 at
80:14-15, 81:2-4, 82:19- 83:2; Dkt. No. 40 at 2-4; Dkt. No.
1-1 at 6); directed Plaintiff to flirt with customers and
essentially “go sell sex, ” (Dkt. No. 36-2 at
84:22-85:2; Dkt. No. 40 at 2, 4); made frequent remarks to
Plaintiff about her breasts (Dkt. No. 36-2 at 87:23-88:7;
Dkt. No. 1-1 at 6); made comments to Plaintiff about
“wet pussy” and “getting head, ”
(Dkt. No. 36-2 at 102:25-103:8; Dkt. No. 40 at 2; Dkt. No.
1-1 at 6); told Plaintiff that his two favorite things in
life are “money and good pussy, ” (Dkt. No. 36-2
at 89:13-19; Dkt. No. 40 at 2-4; Dkt. No. 1-1 at 6);
commented that he liked “big asses, ” (Dkt. No.
36-2 at 94:1-9, 109:11-22; Dkt. No. 40 at 2; Dkt. No. 1-1 at
6); grabbed his genitals in front of Plaintiff and stated,
“it's large, ” (Dkt. No. 36-2 at 110:17-20;
Dkt. No. 40 at 2; Dkt. No. 1-1 at 6); and remarked that a
woman is nothing without a man behind her (Dkt. No. 36-2 at
89:13- 19, 91:21-92:2; Dkt. No. 40 at 2; Dkt. No. 1-1 at 6).
found Shah's gestures and comments to be offensive,
embarrassing, shocking and abrasive, (Dkt. No. 36-2 at
84:22-85:2, 88:4-11, 89:20-91:11; 94:19-22, 100:15-20,
104:3-12), and despite telling him to stop, Shah continued to
make inappropriate sexual remarks to Plaintiff. (Id.
at 85:18-23, 111:2-16; Dkt. No. 40 at 4.) In fact, Plaintiff
claims that she came to expect Shah's
“unethical” behavior on a daily basis. (Dkt. No.
36-2 at 111:2-16.) Although Plaintiff informally complained
about Shah's ongoing conduct to the Airport Inn's
General Manager Tiffany Slawson (“Ms. Slawson”),
Plaintiff did not officially report Shah's conduct for
fear that he would retaliate against her and terminate her
employment. (Dkt. No. 36-2 at 87:7-12, 91:1-11, No. 92:19-24,
108:20-25, 113:6-14, 120:11-121:12.) Plaintiff claims,
however, that Regional Manager Tom Slawson (“Mr.
Slawson”) was generally aware of Shah's
inappropriate behavior. (Dkt. No. 36-2 at 119:25-120:10,
145:23-146:4, 146:21-147:8; Dkt. No. 40 at 4.)
April 2014, Plaintiff's employment at the Clarion was
terminated by the new General Manager Vivian Faulk
(“Ms. Faulk”). (Dkt. No. 40 at 2; Dkt. No. 36-1
at 6; Dkt. No. 36-2 at 122:16-21, 147:12-14.) Following the
termination of her employment, Plaintiff claims that she met
with Ms. Slawson and other now former Clarion/Airport Inn
employees to discuss, among other things, their individual
experiences with Shah's sexual harassment and possible
recourse for his behavior. (Dkt. No. 36-2 at 113:3-5,
115:1-23, 117:1-19; 147:19-24.) Plaintiff filed a charge of
discrimination (“Charge”) with the South Carolina
Human Affairs Commission (“SCHAC”) and Equal
Employment Opportunity Committee (“EEOC”) on or
around July 2, 2014, alleging sex discrimination. (Dkt. No.
40-4.) Notably, Plaintiff did not allege a claim of
retaliation in her Charge. (Id.) Plaintiff provided
the following narrative in support of her discrimination
I was sexually harassed from on or about March 1, 2013,
through on or about April 13, 2014 by Mr. Kam Shaw [sic],
Owner. On several occasions, Mr. Shaw made
unwelcome sexual advances and sexual comments about my
appearance. In fear of retaliation, I did not report the
sexual harassment. Similarly-situated males were not
subjected to such treatment.
I therefore believe I was discriminated against because of my
sex (female/including sexual harassment) in violation of the
S.C. Human Affairs Law, as amended and Title VII of the Civil
Rights Act of 1964, as amended.
(Id. at 1.)
August 30, 2017, the EEOC issued its determination on the
merits of Plaintiff's Charge and found that the evidence
was sufficient to show that Plaintiff “was subjected to
severe and pervasive unwelcome sexual comments by
[Shah].” (Dkt. No. 40-8.) The EEOC therefore determined
that there was “reasonable cause to conclude that
[Plaintiff] was discriminated against because of sex
(female/sexual harassment), in violation of Title VII.”
receiving notice of her right to sue, Plaintiff filed this
action in the South Carolina Court of Common Pleas,
Charleston County, on or around December 27, 2017, (Dkt. No.
1-1), and Defendants removed the case to the United States
District Court for the District of South Carolina on January
25, 2018 (Dkt. No. 1). Plaintiff's Complaint alleges two
causes of action against Defendants: retaliation and sexual
harassment in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”). (Dkt. No. 1-1.) On March 29, 2019, Defendants
filed a Motion for Summary Judgment seeking dismissal of all
of Plaintiff's claims. (Dkt. No. 36.) Plaintiff filed her
Response in Opposition to Defendants' Motion for Summary
Judgment on April 24, 2019, (Dkt. No. 40), and Defendants
filed their Reply on May 13, 2019, (Dkt. No. 45).
addition to the instant action, two now former employees of
Shah-Ms. Slawson and Shyan Barnett
(“Barnett”)-have filed companion cases alleging
similar claims of sexual harassment and retaliation against
those same Defendants named in Plaintiff's Complaint. See
Slawson v. Palmetto Heights Management LLC et al,
No. 2:18-CV-00217-RMG-MGB and Barnett v. Palmetto Heights
Management LLC et al, No. 2:18-CV-00204-RMG-MGB. The
instant action was consolidated with these companion cases
for discovery purposes only. (Dkt. No. 40 at 1 n.1.)