EEOC v. CROMER FOOD SERVICES, INC.

• Decision Date: 26 February 2010
• Docket Number: C.A. No. 6:08-3249-HMH-BHH.
• Citation: 691 F. Supp.2d 646
• Court: U.S. District Court — District of South Carolina
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CROMER FOOD SERVICES, INC., Defendant.

691 F. Supp.2d 646

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CROMER FOOD SERVICES, INC., Defendant.

C.A. No. 6:08-3249-HMH-BHH.

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

February 26, 2010.

Kara L. Haden, Nicholas Glen Walter, Equal Employment Opportunity Commission, Charlotte, NC, for Plaintiff.

Sarah Ganss Drawdy, Drawdy Law Firm, Anderson, SC, for Defendant.

OPINION & ORDER

HENRY M. HERLONG, JR., Senior District Judge.

This matter is before the court with the Report and Recommendation of United States Magistrate Judge Bruce Howe Hendricks, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina.¹ Plaintiff, the Equal Employment Opportunity Commission ("EEOC"), acting on behalf of Homer Howard ("Howard"), alleges causes of action for hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant Cromer Food Services, Inc. ("CFS") filed a motion for summary judgment on July 10, 2009. After review, the court grants CFS's motion for summary judgment.

I. FACTUAL AND PROCEDURAL HISTORY

CFS is a "provider of industrial food services whose primary business is selling food and beverages through vending machines placed on various customers' premises." (Pl. Mem. Opp'n Summ. J. 2.) C.T. Cromer ("CT") is the owner of CFS. (Id.) Howard began working for CFS as a vending route salesperson in July 2006. (Id.) Howard worked second shift Monday through Friday, 3:00 p.m. to 11:00 p.m. (Id.) "Howard's vending route mainly involved restocking CFS's vending machines at Greenville Memorial Hospital ("GMH")." (Id.) "Howard would start by restocking the vending machines in the canteen located in the main lobby and then work his way up the different floors of the hospital according to a schedule set by CFS." (Pl. Mem. Opp'n Summ. J. 3.)

During his time of employment with CFS, Howard alleges that he was sexually harassed by two male employees of GMH, John Mills ("Mills") and Andre McDowell ("McDowell"). (Id.) Mills and McDowell are housekeeping crew leaders at GMH. (Id.) Howard saw Mills and McDowell each day that he went to GMH to restock vending machines. (Id. at 4.) Howard alleges that the harassment allegedly began on or around December 4, 2006. (Id. at 3.) Howard contends "the harassment by Mills and McDowell continued for approximately four months. The harassment consisted of sexual comments, sexual advances, and touching." (Pl. Mem. Opp'n Summ. J. 4.) "If Howard was running late, Mills or McDowell would comment about Howard being late and say they were `worried about' him. Howard was bothered by the fact that Mills and McDowell were so familiar with his schedule. He felt like they were stalking him." (Id.) Howard also found it difficult to remove himself from the harassment because "when Mills and McDowell approached him . . . he was restocking the vending machines, so he was forced to stay in place because the vending machine was open." (Id.)

Howard alleges that "Mills and McDowell constantly made sexual comments to him" and the comments were made "every day." (Id.) Mills would often "follow Howard, whistle at him and make comments like `you've got a nice walk.'" (Id. at 5.) Mills would also talk to Howard about giving and receiving oral sex from men and "would often touch or fondle himself" while speaking to Howard. (Pl. Mem. Opp'n Summ. J. 5.) "On February 13, 2007, Howard was at the GMH's gift shop purchasing a gift for his wife when Mills came up behind Howard, put his arms around him and said `Oh Homer, I didn't know you loved me that much. You're buying me a Valentine's gift?'" (Id.)²

Howard alleges that he first reported the sexual harassment by Mills and McDowell to CFS's plant manager, Greg Adams ("Adams") on or around December 5, 2006. (Id. at 6-7.) Adams "laughed and told Howard `it was just a joke' and `let it go'" and "it's only guys goofing around." (Id.) Adams states that Howard complained to him about GMH employees making vulgar statements and sexual advances toward him but he did not perceive that to be a complaint about sexual harassment. (Id.) Ex. 3 (Adams Dep. (22-23).) On or around December 8, 2006, Howard complained about the harassment to his direct supervisor, Brian Tyner ("Tyner"). (Pl. Mem. Opp'n Summ. J. at 7.) According to Howard, Tyner told him "it was just a joke not to take things serious." (Id.) "Around the end of December 2006, Howard complained to Chet Cromer ("Chet"), CFS's Senior Vice President. Chet said he would call" C.T. about the harassment. (Id.) "Howard complained to C.T.. . . sometime in January and told him that the harassment by the hospital employees was getting worse." (Id. at 8.) Howard alleges that C.T.'s response to his complaints was, "I'm not responsible for the hospital. I'm only responsible for CFS." (Id.) "Howard allegedly met with C.T. at least two more times about the sexual harassment." (Pl. Mem. Opp'n Summ. J. 8.) C.T. alleges that he first learned of the harassment in March 2007. (Id. Ex. 1 (C.T. Dep. 121-22).)

Howard also reported the harassment to Ronnie Galloway, operations manager at GMH, and Pat Leach ("Leach"), GMH's manager of environmental services. (Id. at 10.) "The harassment stopped for about two days, but then continued." (Id.) Howard alleges that the "sexual harassment had an emotional impact" on him, he "lost weight, could not sleep, and was unable to eat." (Id. at 6.) The harassment also "affected Howard's social life and his marriage." (Pl. Mem. Opp'n Summ. J. 6.)

On March 6, 2007, Howard filed a charge of discrimination against CFS with the EEOC. (Id. at 10.) "On March 23, 2007, Howard reported to work and . . . Adams told him not to clock in because C.T . . . . wanted to see him. During the meeting, C.T. handed Howard a memorandum notifying him that he was being assigned to a first-shift driver route effective immediately." (Id. at 10-11.) According to the memorandum, CFS had "only one 2nd shift position servicing vending machines" therefore Howard was being "offered a 1st shift position beginning Monday March 26, 2007." (Def. Mem. Summ. J. Ex. D (Job Offer Letter).) C.T. concedes that CFS received paperwork explaining that Howard had filed a charge of discrimination with the EEOC prior to his meeting with Howard on March 23, 2009. (Pl. Mem. Opp'n Summ. J. Ex. 1 (C.T. Dep. 148-49).) Howard alleges that on March 22, 2007, C.T. "told him that he `got his stupid letter' from EEOC." (Id. at 12.) Howard also contends that he "was aware of another second shift route driver position where the driver had quit." (Id. at 11.) C.T. alleges, however, that the first-shift position was all that was available to Howard. (Id. Ex. 1 (C.T. Dep. 149).) Howard alleges that he was "unavailable" to work the first shift. (Id. Ex. 2 (Homer Dep. 76).) Consequently, Howard quit his job shortly after the March 23, 2007 meeting.

The EEOC filed a complaint against CFS on September 24, 2008. CFS filed a motion for summary judgment on July 10, 2009. On July 28, 2009, the EEOC filed a memorandum in opposition to CFS's motion for summary judgment. On January 6, 2010, Magistrate Judge Hendricks submitted a Report and Recommendation recommending that the court deny CFS's motion for summary judgment. (Report and Recommendation 20.) CFS filed objections to the Report and Recommendation on January 25, 2010. The EEOC filed a reply to the objections on February 11, 2010. The court held a hearing on February 23, 2010.

II. DISCUSSION OF THE LAW

A. Summary Judgment Standard

Summary judgment is appropriate only "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). Rule 56(c) mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in the nonmovant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505.

Moreover, "when a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).

B. Objections

CFS filed objections to the Report and Recommendation. Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir.1984). In the absence of specific objections to the Report and Recommendation of the magistrate judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

CFS filed two specific objections to the magistrate judge's Report and Recommendation. CFS alleges that the magistrate judge erred (1) "in finding that Plaintiff has stated a claim of imputed liability ... based on the alleged sexual harassment of Howard by two employees of GMH," and (2) "in finding that Plaintiff has stated a prima facie case of...