Dunlap v. TM Trucking of the Carolinas, LLC

• Decision Date: 12 December 2017
• Docket Number: Civil Action No. 0:15–cv–04009–JMC
• Parties: 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.
• Court: U.S. District Court — District of South Carolina

288 F.Supp.3d 654

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.

Civil Action No. 0:15–cv–04009–JMC

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

Signed December 12, 2017

Jeremy Randall Summerlin, W. Andrew Arnold, Horton Law Firm, Greenville, SC, Jenny L. Sharpe, Sharpe Law Office, Charlotte, NC, for Plaintiffs.

Joseph Daniel Dickey, Jr., Dickey Law Group, Columbia, SC, Leah B. Moody, Leah B. Moody Law Office, Rock Hill, SC, for Defendants.

ORDER AND OPINION

J. Michelle Childs, United States District Judge

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.

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