Opinion
Civil Action 4:19-cv-1664-JD-TER
07-27-2021
JULIA RILEY, Plaintiff, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, and WILLIE L. EAGLETON, in his individual and official capacity, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
I. INTRODUCTION
This action arises out of Plaintiff's employment with Defendant South Carolina Department of Corrections (SCDC). Plaintiff alleges causes of action for hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. and pregnancy discrimination and retaliation in violation of Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k). She also asserts state law claims of invasion of privacy and gross negligence. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 29). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
SCDC hired Plaintiff as a corrections officer in June of 2010. Pl. Dep. 13-14, 86-87 (Ex. 36 to Def. Motion); SCDC Notice of Disclaimer (Ex. 35 to Def. Motion). At all times relevant to this action, Plaintiff worked at Evans Correctional Institution (ECI).
On Saturday, January 14, 2017, Plaintiff was physically assaulted by her immediate supervisor, Sgt. Ivan Rivers. Pl. Dep. 27-28, 43-44; Charge of Discrimination No. 436-2017-01174 (Ex. 4 to Def. Motion); Sexual Harassment/Hostile Work Environment Compl. (Ex. 10 to Def. Motion); Incident Reports (Ex. B to Pl. Compl.). Plaintiff noticed on that date that Sgt. Rivers arrived to work visibly intoxicated with red eyes and smelling of alcohol. While Plaintiff was sitting at her desk logging in her record book, Sgt. Rivers came behind her, wrapped his left arm around her neck, pulled her back towards him, and began to suck, kiss, and lick on the right side of her neck. Plaintiff immediately pushed him off of her and said “what the hell are you doing? You need to chill!” This sexual assault occurred in front of a wing full of inmates who watched as it happened. Shortly after, as Plaintiff was standing against a wall monitoring the inmates as they exited the wing for chow, Plaintiff stretched her arms in the air and Sgt. Rivers stood in front of her, grabbed her hands and interlaced his fingers with hers. He pushed her against the wall and leaned into her face to try to tongue kiss her. Plaintiff immediately snatched her head and arms away from him and said “Rivers, what the hell is wrong with you? You are drunk or hung over and you need to stop it right now.” Sgt. Rivers then started groping Plaintiff's breasts and buttocks. Again, many inmates observed this encounter. After clearing the inmates out of the wing for chow, Plaintiff returned to her office and cried until she could compose herself. As the inmates returned to the wing, Plaintiff was in the salley port monitoring the inmates' movements. Once she left the salley port and returned to her wing, Sgt. Rivers touched her arm and said “make sure you lock all your inmates down at count time because I'm coming over there with you.” When Plaintiff asked why, Sgt. Rivers responded that he intended to engage in specific, sexual acts with her at that time. At count time, Plaintiff locked down the inmates on her wing but intentionally allowed two inmates to remain out of their cells so she would not be left alone with Sgt. Rivers, who remained on her wing until the count cleared. Incident Reports; Charge of Discrimination No. 436-2017-01174.
With each of her Charges of Discrimination, Plaintiff submitted a sworn affidavit setting forth the facts supporting her charge. Citation to a Charge of Discrimination within this Report and Recommendation is a citation to Plaintiff's affidavit attached thereto.
Plaintiff reported the sexual assault to Sgt. Parker immediately after it occurred, and Sgt. Parker instructed her to file a Form 16-111 sexual harassment complaint form and an incident report. Sergeant Parker informed Lt. Wheeler of the assault. Parker Incident Report (Ex. C to Pl. Compl.); Charge of Discrimination No. 436-2017-01174. Plaintiff attempted to report the sexual assault to Assistant Warden Sellers on Tuesday, January 17, 2017, but had to leave a message. After waiting two hours for a return call, Plaintiff called Major West and verbally reported what happened with Sgt. Rivers. Incident Report. Plaintiff also completed an Incident Report on Tuesday, January 17, 2017, documenting what happened with Sgt. Rivers. Incident Reports.
Sergeant Parker completed the incident report on January 18, 2017.
Plaintiff returned to work on Wednesday, January 18, 2017, but did not attend briefing due to the possibility of seeing Sgt. Rivers. She reported to Warden Eagleton's office to turn in her incident report and complete a Form 16-111, a sexual harassment complaint form. However, Warden Eagleton did not provide her with the Form 16-111. While Plaintiff was in Warden Eagleton's office, he photocopied her incident report and passed it around to several other people, which was upsetting and embarrassing to Plaintiff. Plaintiff left Warden Eagleton's office and visited Francis Garvin in the personnel office, who attempted to comfort Plaintiff and contacted EAP to set up counseling appointments. Plaintiff asked Colnita Hooks with EAP to contact Warden Eagleton to ask for a Form 16-111 for Plaintiff to complete. Warden Eagleton told Hooks that he would take care of all the paperwork. However, Warden Eagleton never provided Plaintiff with the form. Plaintiff asked if she could be excused from work for the rest of the day due to being mentally and emotionally exhausted, which was granted. Incident Reports. Plaintiff ultimately spoke with Sharese Johnson, SCDC employee relations secretary, who provided Plaintiff with the Form 16-111, and Plaintiff completed it on January 19, 2017. Pl. Dep. 21, 23, 43-44; Charge of Discrimination No. 436-2017-01174; Sexual Harassment/Hostile Work Environment Compl. Plaintiff learned from Johnson that Warden Eagleton had not reported the sexual assault to SCDC Headquarters in Columbia. Also on January 19, 2017, Plaintiff met with SLED investigator Lighthill and provided him with a signed, three page statement. Charge of Discrimination No. 436-2017-01174.
Plaintiff was previously subjected to sexual harassment by Warden Eagleton in January of 2016. During a meeting in his office, Warden Eagleton asked Plaintiff if she was pregnant. Plaintiff responded she was not and asked him why. Warden Eagleton stated that he had been looking at her ass and that it was “big as hell” and “spreading.” He further stated that her pants were too tight, her ass was “huge, ” and he could see her “crotch print.” As he was saying that he could see her “crotch print, ” Warden Eagleton reached out to grab Plaintiff's crotch, and she had to slap his hand away. Plaintiff report the incident to the security division, but no action was taken. Charge of Discrimination No. 436-2017-01174.
Plaintiff contacted Sgt. Hale with the Marlboro County Sheriff's Office and attempted to make a criminal report on Sgt. Rivers, but Sheriff Lemon would not allow Sgt. Hale to process the Report. He informed Sgt. Hale to let ECI handle the issue internally. Pl. Dep. 38-40; Charge of Discrimination No. 436-2017-01174.
On January 25, 2017, Plaintiff's physician completed a Family Medical Leave Request form, stating that Plaintiff was diagnosed with post traumatic stress disorder, anxiety, and depression with an undetermined duration. Plaintiff's physician indicated that Plaintiff was unable to perform work of any kind at that time. She would be attending weekly counseling sessions and was prescribed anti-depressant and anti-anxiety medication. FMLA Request Form (Ex. E to Pl. Compl.); Pl. Dep. 30, 58, 83. Plaintiff received a letter on February 10, 2017, indicating that her leave request had been approved beginning January 14, 2017, and would be exhausted on April 8, 2017. Letter Dated Feb. 10, 2017 (Ex. F to Pl. Compl.).
On February 1, 2017, Sgt. Rivers was physically assaulted by three inmates while escorting them to a dormitory. He had to be transported to a local hospital for medical treatment. As a result of the assault, Sgt. Rivers was placed on Assault Leave effective February 2, 2017. When the Assault Leave expired on August 2, 2017, Sgt. Rivers remained out of work on personal leave. SCDC EEOC Position Statement (Ex. E to Pl. Resp.). Sgt. Rivers' employment was terminated in January of 2018 for his failure to return to work following the expiration of his leave. SCDC Response to SCHAC (Ex. F to Pl. Resp.).
On April 12, 2017, Plaintiff submitted a letter “to whom it may concern, ” stating,
I am submitting this request before reporting back to work to ask that Sgt. Ivan Rivers be removed from E1 shift that I'm assigned to. I am making this request due to the sexual harassment case I have against him that is still pending as of date. I am also formally requesting that I do not be removed from my previously assigned shift, E1.Pl. Letter dated Apr. 12, 2017 (Ex. G to Pl. Compl.). However, Plaintiff had to go right back out of work on medical leave because she had to have surgery unrelated to the January 14, 2017, sexual assault. Pl. Dep. 34.
On April 17, 2017, Plaintiff and her father met with Agent Lighthill at the police department. Agent Lighthill advised them that Sgt. Rivers refused to take a lie detector test and gave Plaintiff the option of either participating in an administrative grievance process or going to the police. In May of 2017, Plaintiff authorized Agent Lighthill to proceed with an administrative grievance. Charge of Discrimination No. 436-2017-01174.
Plaintiff was cleared to return to work on full duty with no restrictions on June 26, 2017. SCDC EEOC Position Statement; Pl. Dep. 34. After the sexual assault by Sgt. Rivers in January of 2017, Plaintiff never had any further, one-on-one contact with him. Pl. Dep. 31, 33, 58-59. Also, following the sexual assault, she was never subjected to any another incident of assault. Pl. Dep. 33, 99.
Plaintiff submitted her first EEOC Charge of Discrimination on September 8, 2017. Charge of Discrimination No. 436-2017-01174. The South Carolina Human Affairs Commission (SCHAC) issued a "no cause" finding as to Plaintiff's 2017 charge on September 21, 2018. Pl. Dep. 41-44; Sept. 2018 Dismissal and Notice of Right to Sue (Ex. 9 to Pl. Motion).
On November 17, 2017, Plaintiff received a letter from Annette Horlback, Human Resources Manager, indicating that her sexual harassment/hostile work environment case was turned over to Police Services who, after an investigation, referred the case to Warden Donnie Stonebreaker for review and appropriate action. The letter indicated that no further action would be taken, but her complaint would remain on file. Horlback Letter dated Nov. 17, 2017 (Ex. H to Pl. Compl).
On October 2, 2017, Plaintiff was promoted to Corporal II. Pl. Dep. 37. On December 2, 2017, she was promoted to Sergeant II. Pl. Dep. 38. Following her promotions, Plaintiff was forced to work shifts lasting over twenty-four hours. Charge of Discrimination No. 14C-2018-00830 (Ex. 5 to Def. Motion). In addition, Plaintiff was removed from serving as a shift unit counselor that worked weekdays from 11:00 to 7:00 with all weekends and holidays off, to being on a twelve-hour swing shift. Charge of Discrimination No. 14C-2018-00830.
On March 16, 2018, Plaintiff filed another internal hostile work environment claim asserting that she was constantly harassed by her supervisors. Pl. Dep. 48-52; Sexual Harrassment/Hostile Work Environment Compl. (Ex. 13 to Def. Motion). In a letter dated March 23, 2018, Horlback confirmed receipt of Plaintiff's complaint and indicated she would be back in touch once a decision was made about the appropriate actions to take. Letter dated Mar. 23, 2018 (Ex. 13 to Def. Motion).
In June of 2018, Horlback sent Plaintiff a letter noting that management had agreed to Plaintiff's requested resolution to her complaint that she be assigned to work the front gate because she felt safe in that post assignment. The letter confirmed that in a June 22, 2018, conversation, Plaintiff indicated that her concerns had been resolved and, as a result, no further action would be taken. Letter dated June 26, 2018 (Ex. 15 to Def. Motion); Pl. Dep. 52-54.
On June 20, 2018, Plaintiff filed her second EEOC Charge of Discrimination. Therein, she complained that since the filing of her first Charge of Discrimination, she continued to be subject to a hostile work environment, she has been promoted but forced to work shifts over twenty-four hours, she has received unfounded accusations of sleeping with inmates and bringing contraband into the prison, has had her office searched, and has been removed from day shifts with nights and weekends off and placed on twelve-hour swing shifts. She complained that on March 15, 2018, she was forced to relocate and was physically escorted from her post in Cheraw Unit to the Santee Unit, where Sgt. Rivers sexually assaulted her. Charge of Discrimination No. 14C-2018-00830 (Ex. 5 to Def. Motion). SCHAC issued a “no cause” finding as to Plaintiff's June 2018 charge on February 21, 2019. Feb. 2018 Dismissal and Notice of Right to Sue (Ex. 11 to Def. Motion).
On July 9, 2018, a joint briefing was held with all staff on Plaintiff's shift and ECI administration to advise of the agenda for a shakedown search of the Cherokee Unit. During the briefing, Assistant Warden Kenneth Nelson pointed at Plaintiff's clear backpack and stated “y'all are bringing in entirely too much stuff in the bookbags” and there was no way employees were eating all the stuff they brought in their backpacks. He stated that contraband was not being thrown over the fence but was coming through the front door. Assistant Warden Nelson looked at Plaintiff and pointed to her back pack during the entirety of his speech. Plaintiff felt as if she was being accused in front of the entire shift and administration of bringing contraband into ECI. Charge of Discrimination No. 14C-2018-00830; Pl. Dep. 75-77.
The next day, on July 10, 2018, another joint briefing was held with staff and administration. During the meeting, Plaintiff asked Assistant Warden Nelson about the accusatory nature of his words and actions in the previous briefing and about rumors that she was sleeping with inmates. Assistant Warden Nelson told Plaintiff that the briefing was not the appropriate timing or place to discuss those issues, which should be discussed in private. Plaintiff continued to talk and Assistant Warden Nelson told Plaintiff to be quiet. Plaintiff continued to talk about her concerns and Assistant Warden Nelson told Plaintiff to leave. Plaintiff refused to leave and continued talking until she was escorted out of the area. She communicated to her supervisors that she was not refusing a post or abandoning her job, but that Assistant Warden Nelson was sending her home. Following the briefings on July 9th and 10th, search dogs sniffed Plaintiff's work area on multiple occasions. Charge of Discrimination No. 14C-2018-00830; SCDC Incident Reports (Ex. 30 to Def. Motion); Pl. Dep. 75-77.
Plaintiff averred in her Charge of Discrimination that Assistant Warden Nelson yelled at her to hush while she was communicating her concerns. Charge of Discrimination No. 14C-2018-00830. Assistant Warden Nelson stated in his incident report that Plaintiff verbally attacked him, engaged in a loud and demeaning tirade, and became infuriated and yelled louder after he told her it was not the appropriate time or place to discuss those issues. He stated that she continued yelling and screaming after he told her to leave and as she was being escorted away. SCDC Incident Reports. None of the witnesses present during the briefing who submitted incident reports indicated that either party yelled or became loud. SCDC Incident Reports.
In an Incident Report and Memorandum completed by Assistant Warden Nelson, he requested that Plaintiff be placed on administrative suspension without pay pending corrective action. SCDC Memo. (Ex. 28 to Def. Motion); SCDC Incident Reports. Plaintiff was charged with (1) gross misconduct and intentional improper behavior and (2) insubordination/failure to be cooperative with supervisor. She was placed on suspension for 5 days, beginning July 27, 2018, with a return date of March 2, 2018. SCDC Employee Corrective Action (Ex. 29 to Def. Motion).
Plaintiff filed two internal complaints as a result of the July 10, 2018, meeting and corrective action. Pl. Dep. 60, 67. The first was filed on July 10, 2018, the same day as the meeting. Sexual Harassment/Hostile Work Environment Compl. (Ex. 19 to Def. Motion). The second was filed on July 30, 2018, grieving her suspension. SCDC Division of Human Resources Grievance Report (Ex. 22 to Def. Motion).
On September 17, 2018, Plaintiff filed a third EEOC Charge of Discrimination. Therein, she complained that her work environment has continued to be hostile since the filing of her June 2018 Charge. She complained of the July 9th and 10th meetings and that her work area had been subjected to dog sniffs since those meetings. Charge of Discrimination No. 14C-2018-00697 (Ex. 6 to Def. Motion). SCHAC issued a “no cause” finding as to Plaintiff's September 2018 charge on April 25, 2019. Apr. 2019 Dismissal and Notice of Right to Sue (Ex. 12 to Def. Motion).
On September 27, 2018, Michael McCall, Deputy Director of Operations, notified Plaintiff via letter that a review of her grievance regarding her suspension revealed that there was insufficient evidence to overturn it. Letter dated Sept. 27, 2018 (Ex. 24 to Def. Motion).
Plaintiff took FMLA leave for her pregnancy beginning in November of 2018, because her pregnancy was considered high-risk. Pl. Dep. 80-81; SCDC Division of Human Resources Notification of Child Birth/Adoption (Ex. 33 to Def. Motion). Her anticipated due date was January 7, 2019, and her anticipated return to work date was in March of 2019. SCDC Division of Human Resources Notification of Child Birth/Adoption. Plaintiff utilized the donated leave bank available to SCDC employees to secure pay for portions of this leave that otherwise would have been unpaid because she had exhausted her paid time off. Pl. Dep. 79-80; SCDC Leave Transfer Program Donation Requests (Ex. 32 to Def. Motion). Plaintiff remained on leave until she submitted her letter of resignation on March 15, 2019. Pl. Dep. 11, 80-81; Letter dated March 15, 2019 (Ex. 1 to Pl. Motion); SCDC Exit Interview (Ex. 34 to Def. Motion).
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. Hostile Work Environment
Plaintiff's first cause of action alleges she was subjected to a hostile work environment.Under Title VII, it is unlawful for an employer “to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “Because ‘an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.'” Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (quoting EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001)). Plaintiff must show that she suffered from harassment that was (1) unwelcome, (2) based on a protected status, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to the employer. EEOC v. C. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). Defendants do not dispute that Plaintiff suffered from harassment that was unwelcome and based on a protected status. They argue, however, that the harassment was not sufficiently severe or pervasive or imputable to her employer.
Defendants address the elements for a sex discrimination claim in their motion. However, Plaintiff asserts that she has not alleged a cause of action for discrimination based on sex. Her first cause of action is entitled “Intentional Sex Discrimination (Hostile Work Environment)” and sets forth allegations as to a hostile work environment, not disparate treatment claim.
Plaintiff alleges all of her Title VII claims against all Defendants. However, she concedes in her response that Warden Eagleton is not individually liable under Title VII and voluntarily dismisses any Title VII claims asserted against him.
“Element three of a hostile work environment claim [sufficiently severe or pervasive] requires a showing that ‘the environment would reasonably be perceived, and is perceived, as hostile or abusive.'” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citing Harris v. Forklift Systems. Inc., 510 U.S. 17, 22 (1993)). The conduct must be both subjectively and objectively offensive in order to be cognizable under Title VII. Harris, 510 U.S. at 21-22. To be expected, courts often assume the conduct is subjectively offensive. See Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir.2008). “[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances.' ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Factors to consider include “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance.” Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir.2000).
It is undisputed that Plaintiff's supervisor, Sgt. Rivers, physically and sexually assaulted Plaintiff on three separate occasions on January 14, 2017. First, he wrapped his arm around her neck, pulled her towards him, and sucked, kissed and licked her neck. Plaintiff was able to get away from him and tell him to stop. This occurred in front of the inmates on Plaintiff's wing. On the second occasion, Sgt. Rivers interlaced his fingers with Plaintiff's, pushed her against a wall, and leaned into her in an attempt to kiss her. Plaintiff was again able to pull away from him and tell him he needed to stop, but Sgt. Rivers still groped her breasts and buttocks. This also occurred in front of inmates. On the third occasion, Sgt. Rivers touched Plaintiff's arm and told her he intended to engage in specific sexual acts with her later during count time. Plaintiff intentionally left two inmates out of their cells to avoid being alone with Sgt. Rivers during that time.
It is not clear from the record how much time elapsed between each occasion, but it is undisputed that these events were separated by at least some amount of time.
Plaintiff also points to the sexual harassment she suffered from Warden Eagleton a year prior in January of 2016 when he commented on her buttocks and crotch area and attempted to grab her crotch area. Plaintiff also alleges in her Amended Complaint that she was subject to a hostile work environment when she was required to take a sexual harassment course in October of 2017, which male correctional officers, who made offensive, demeaning, and lascivious comments that female victims of sexual assault enjoy the assault. Am. Compl. ¶¶ 48-49. However, there is no evidence in the record regarding Plaintiff taking this course or any comments by male officers.
Defendants argue that Plaintiff cannot rely on this incident of sexual harassment because it occurred prior to the earliest date of discrimination that Plaintiff listed on her Charge of Discrimination, January 14, 2017. To pursue a Title VII claim, a plaintiff must “file a complaint with the EEOC within 180 days of the incident, or within 300 days of the incident if state or local proceedings are initiated.” Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997); 42 U.S.C. § 2000e-5(e)(1); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Here, Plaintiff is required to file her charge of discrimination within 300 days following the alleged discriminatory acts. Plaintiff submitted her first EEOC Charge of Discrimination on September 8, 2017. The January 2016 incident with Warden Eagleton falls outside the 300 day limitations period. However, under the continuing violation doctrine, “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purpose of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period, ” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), which is applicable regardless of whether events occurred earlier than the date listed on the Charge of Discrimination. See Edwards v. Murphy-Brown, L.L.C., 760 F.Supp.2d 607, 626 (E.D. Va. 2011). For the continuing violation theory to apply, the plaintiff must show that the acts which occurred within the 300 day statutory window were a “continuing part of discriminatory activity that began prior to the limitations period.” Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007).
Nevertheless, Plaintiff need not produce any evidence beyond the sexual assault that occurred on January 14, 2017-whether viewed as a single incident or as three discrete instances of harassment-to create an issue of fact as to whether the harassment she experienced was sufficiently severe or pervasive. As is clear by the use of the conjunction, “or” instead of “and, ” “[t]he behavior need not be both severe and pervasive: the more severe the conduct, the less pervasive the plaintiff need prove that it is.” Reed v. AirTran Airways, 531 F.Supp.2d 660, 669 n.15 (D. Md. 2008). “[A]n ‘isolated incident[ ]' of harassment can ‘amount to discriminatory changes in the terms and conditions of employment,' if that incident is ‘extremely serious.'” Boyer-Liberto, 786 F.3d at 277 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). In Boyer-Liberto, the Fourth Circuit held that a reasonable jury could find that two uses of the “porch monkey” epithet by the Plaintiff's supervisor on two consecutive days were severe enough to engender a hostile work environment, and rejected “any notion that our prior decisions . . . were meant to require more than a single incident of harassment in every viable hostile work environment case.” Id. at 280-81. Just as the use of the “odious” slur “porch monkey” is “degrading and humiliating in the extreme, ” id., “[d]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.” Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 180 (2d Cir. 2012); see also Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 435-36 (5th Cir. 2005) (collecting cases and holding that deliberate and unwanted touching of intimate body parts, even a single incident, can constitute severe sexual harassment); Langley v. Dolgencorp, LLC, 972 F.Supp.2d 804, 812 n.7 (D.S.C.2013) (“[I]nappropriate physical touching is certainly a strong indicator of a hostile work environment ”). Here, Sgt. Rivers groped Plaintiff's breasts and buttocks in addition to wrapping his arm around her neck, pulling her to him, and sucking, kissing, and licking her neck. He also pushed her against a wall and attempted to kiss her on the lips. In addition to this unwanted physical touching, he also told Plaintiff that he intended to engage in specific sexual acts with her later that day. Other courts have found similar incidents sufficiently severe to create an issue of fact on a hostile work environment claim. See Reid v. Ingerman Smith LLP, 876 F.Supp.2d 176, 185 (E.D.N.Y. 2012) (single incident of supervisor “grabb[ing] and squeez[ing] one of [plaintiff's] breasts” was conduct sufficiently “severe to constitute a hostile work environment”); Swiderski v. Urban Outfitters, Inc., No. 14-CV-6307, 2017 WL 6502221, at *5 (S.D.N.Y. Dec. 18, 2017) (single incident of customer reaching for plaintiff's face, putting his thumbs in her mouth, licking her cheek, and attempting to grab her chest was “sufficiently severe by itself to create a hostile work environment”); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000) (finding “severe” sexual harassment under Title VII where a fellow supervisor grabbed the plaintiff's face, forced his tongue into her mouth, and unfastened her bra); Dowdell v. Culpepper & Assocs. Sec. Servs., Inc., No. CV 19-11410, 2020 WL 5095274, at *7 (E.D. La. Aug. 28, 2020), appeal dismissed, No. 20-30802, 2021 WL 2472264 (5th Cir. Jan. 13, 2021) (holding that a reasonable person could find that one incidence of physical sexual harassment-when a coworker shoved his hand between the plaintiff's legs and groped her vagina-severe enough to alter the conditions of her employment). A reasonable juror could find that the sexual touching and comments at issue here-whether considered a single incident or multiple instances over the course of a day-are sufficiently serious to satisfy the severe or pervasive standard.
This conclusion is bolstered by two other factors. First, the severity of sexual misconduct is compounded when the perpetrator is in a supervisory position over the plaintiff. See, e.g., E.E.O.C. v. R & R Ventures, 244 F.3d 334, 340 (4th Cir.2001) (finding that the “severity of Wheeler's sexual misconduct was compounded by the context in which it took place”-namely that “Wheeler was an adult male in a supervisory position over young women barely half his age”). The Fourth Circuit has held a reasonable jury may find harassing behavior by a direct supervisor, who ‘has significant authority over the employee on a day-to-day basis and the ability to influence the rest of the employee's career' to be objectively more severe than the same behavior by a ‘fellow employee. ” EEOC v. Fairbrook Medical Clinic, 609 F.3d 320, 329 (4th Cir.2010). Although it is not clear from the record the level of authority Sgt. Rivers had over Plaintiff, it is undisputed that he was her supervisor, which lends at least some additional weight to the already severe nature of his actions.
Next, the sexual assault occurred in front of the inmates whom Plaintiff was responsible for supervising. “Degrading and humiliating conduct can establish severe or pervasive discrimination even if not physically threatening.” Zidan v. Maryland, No. 10-1792, 2012 WL 2923150, at *9 (D.Md. July 17, 2012) aff'd, 489 Fed.Appx. 726 (4th Cir.2012). Here, not only was the assault physical, it was also degrading and humiliating to Plaintiff to be done in front of the inmates over whom she was responsible for exercising her authority. Sergeant Rivers' assault against Plaintiff in front of inmates undermined the authority she had over them.
“[W]hether the harassment was sufficiently severe or pervasive to create a hostile work environment is ‘quintessentially a question of fact' for the jury.” Conner v. Schrader Bridgeport Int'l, Inc., 227 F.3d 179, 199-200 (4th Cir. 2000) (quoting Smith v. First Union Nat. Bank, 202 F.3d 234, 243 (4th Cir. 2000)). “The task [ ] on summary judgment is to identify situations that a reasonable jury might find to be so out of the ordinary as to meet the severe or pervasive criterion, ” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 316 (4th Cir. 2008), an assessment that must be made with “an appropriate sensitivity to social context.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201 (1998). Given “[t]he physical, intimate, and forcible character of the acts at issue here, ” Hostetler, 218 F.3d at 809, an issue of fact exists regarding the severe or pervasive nature of Sgt. Rivers' conduct.
The last factor for establishing a hostile work environment claim is whether the conduct by the perpetrator is imputable to the employer. “If the harasser is a supervisor, then the employer may be either strictly or vicariously liable, ” depending on whether the harassment culminates in a tangible employment action. Strothers v. City of Laurel, Maryland, 895 F.3d 317, 332-33 (4th Cir. 2018). It is undisputed that Sgt. Rivers was Plaintiff's supervisor. Because no tangible employment action was taken against Plaintiff, her employer may be vicariously liable.
At the very least, based on the record presented, an issue of fact exists as to whether Sgt. Rivers was Plaintiff's supervisor.
“When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.” Faragher, 524 U.S. at 807. The defendant-employer must prove (1) that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”; and (2) the plaintiff-employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Id.; Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Defendants do not specifically address this affirmative defense. Rather, they argue generally that the sexual assault suffered by Plaintiff is not imputable to SCDC because it “took prompt action, [Plaintiff] and Rivers never worked together again after the incident, [Plaintiff] received the care and medical treatment she needed, [Plaintiff] returned to work after the treatment, SCDC promoted [Plaintiff] twice after the Rivers incident, and Rivers was eventually terminated.” Def. Mem. pp. 17-18. Even if this argument was sufficient to meet the first prong of showing that Defendant exercised reasonable care to prevent and correct promptly the behavior, Defendants have failed to present sufficient evidence to show that Plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer or avoid harm otherwise. Therefore, because issues of fact exist as to the severity or pervasiveness of Sgt. Rivers' sexual assault on Plaintiff, summary judgment is not appropriate on Plaintiff's hostile work environment claim.
Plaintiff argues, and the evidence in the record suggests that Defendants failed to take any reasonable action to prevent or correct Sgt. Rivers' conduct. It was only by circumstance that Plaintiff and Sgt. Rivers never worked together after the assault. Plaintiff was forced to take medical leave as a result of the assault, and Sgt. Rivers also took medical leave following an injury on the job. There is no evidence in the record that any action was ever taken against Sgt. Rivers. The record reveals only that an investigation was made and no further action was taken.
B. Retaliation
Plaintiff also alleges that Defendants retaliated against her for making complaints of sexual harassment. Title VII makes it an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
In the absence of direct evidence of retaliation, courts apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this burden-shifting scheme, Plaintiff has the initial burden of establishing a prima facie case of retaliation. Id. The requirements for establishing a prima facie case vary according to the type of claim raised. If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, non-retaliatory reason for the disparate treatment. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This is merely a burden of production, not of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Once Defendant has met its burden of production by producing its legitimate, non-retaliatory reason, the sole remaining issue is “discrimination vel non.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by Defendant is not its true reason, but was pretext for retaliation. Reeves, 530 U.S. at 143.
To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) she engaged in protected activity, (2) the employer took adverse employment action against her, and (3) a causal connection existed between the protected activity and the adverse action. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985); Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 258 (4th Cir.1998); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998). If Plaintiff establishes a prima facie case, Defendants can rebut the presumption of retaliation by articulating a non-retaliatory reason for its actions. At that point, Plaintiff must present evidence sufficient to create a genuine issue of material fact that Defendants' legitimate, non-retaliatory reason is pretextual. See Matvia v. Bald Head Island Management, 259 F.3d 261, 271 (4th Cir.2001).
Protected activity involves opposing an unlawful employment practice which the plaintiff reasonably believed had occurred or was occurring. Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003). The Fourth Circuit has “articulated an expansive view of what constitutes oppositional conduct, recognizing that it encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities.” DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (internal quotation marks omitted). Filing an EEOC charge is also a protected activity. 42 U.S.C. § 2000e-3(a). Plaintiff engaged in protected activity by filing numerous complaints, both internal, and with the EEOC, regarding the sexual assault perpetrated by Sgt. Rivers as well as other complaints of a hostile work environment.
An employment action is adverse in the context of a retaliation claim if it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal quotation marks omitted). Plaintiff argues that she suffered adverse employment action when she was assigned to work shifts lasting over twenty-four hours, and was removed from serving as a shift unit counselor that worked weekdays from 11:00 to 7:00 with all weekends and holidays off, to being on a twelve-hour swing shift. “In the context of job reassignment allegations ... the Supreme Court has stated that, although a job reassignment is ‘not automatically actionable,' it may be ‘materially adverse depend[ing] upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.” Williams v. Prince Williams Cty., Va., 645 Fed.Appx. 243, 245 (4th Cir. 2016) (quoting Burlington, 548 U.S. at 71). Being forced to work shifts lasting over twenty-four hours could dissuade a reasonable worker from supporting a charge of discrimination. In addition, Plaintiff's suspension on July 27, 2018, following her encounter with Assistant Warden Nelson was an adverse employment action. See Burlington, 548 U.S. at 54 (upholding jury's finding that employee's 37-day suspension without pay was materially adverse in retaliation context); LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007) (finding two-day suspension without pay a retaliatory action); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 190 (4th Cir. 2001) (finding that when likened to a suspension, an employee lockout could be an adverse employment action); Parkinson v. Anne Arundel Med. Ctr., Inc., 214 F.Supp.2d 511, 518 (D. Md. 2002) (“Plaintiff's one-day, unpaid suspension ... could constitute an adverse employment action.”).
Next, Plaintiff must show a causal connection between her protected activity and the adverse action. “[A] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir.2004). However, the temporal nexus between two events cannot provide proof of causation unless the “temporal proximity between an employer's knowledge of protected activity and an adverse employment action” was “very close.” Clark County School District. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotation marks omitted).
It is not clear from the record exactly when Plaintiff was assigned to undesirable work shifts, but Plaintiff avers that it occurred after her promotions in October and December of 2017. She filed her first Charge of Discrimination in September of 2017. In Clark, the Supreme Court did not define “very close, ” but cited cases where adverse employment action was taken three months and four months after the protected activity as insufficient proximity. See id. at 273-74 (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997), Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir.1991); see also Shields v. Fed. Exp. Corp., 120 Fed.Appx. 956, 963 (4th Cir.2005) (holding that three to four months was insufficient temporal proximity). Although the record is weak with respect to the temporal proximity between her first Charge of Discrimination and her reassignment to longer work hours, it is sufficient to create a prima facie case of retaliation. In addition, just over one month passed between Plaintiff's second Charge of Discrimination on June 20, 2018, and her suspension on July 25, 2018. Thus, sufficient temporal proximity exists to create a prima facie case of retaliation.
Once Plaintiff presents sufficient evidence to create a prima facie case of retaliation, the burden shifts to Defendants to produce a legitimate, non-retaliatory reason for the adverse action. Defendants only address this factor in very general and conclusory terms. After reciting much case law regarding this issue, they state, “Although the Plaintiff may have believed many things, her perception is not supported by the record.” Def. Mem. pp. 12-13. They later argue, “SCDOC's decisions regarding the Plaintiff's employment were justified, legitimate, and non-discriminatory.” Def. Mem. 15. These arguments are insufficient to sustain Defendants' burden at this stage of burden-shifting process. Therefore, summary judgment is not appropriate on Plaintiff's claims of retaliation with respect to her complaints of sexual assault and a hostile work environment.
C. Pregnancy Discrimination and Retaliation
Title VII makes it “an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....” 42 U.S.C. § 2000e-2(a)(1). As a result of the Pregnancy Discrimination Act, Title VII provides that “because of sex” encompasses “because of or on the basis of pregnancy, childbirth, or related medical conditions” and that “women affected by pregnancy ... shall be treated the same for all employment purposes ... as other persons not so affected but similar in their ability and inability to work.” 42 U.S.C. § 2000e(k). Pregnancy discrimination claims are analyzed in the same manner as other Title VII sex discrimination claims. DeJarnette v. Corning Inc., 133 F.3d 293, 297 (4th Cir. 1998).
To establish a prima facie case of discrimination under Title VII, a plaintiff must show “that: (1) she is a member of a protected class; (2) she ‘suffered an adverse employment action'; (3) her job performance was satisfactory; and (4) the adverse employment action occurred ‘under circumstances giving rise to an inference of unlawful discrimination.'” Swaso v. Onslow Cty. Bd. of Educ., 698 Fed.Appx. 745, 747 (4th Cir. 2017) (citing Adams v. Tr. of Univ. of N.C. -Wilmington, 640 F.3d 550, 558 (4th Cir. 2011)).
Here, Plaintiff fails to establish a prima facie case of discrimination on the basis of her pregnancy because she fails to show that she suffered an adverse employment action. Plaintiff alleges that Defendant intentionally discriminated against Plaintiff in violation of the Pregnancy Discrimination Act by reassigning her to locations making it difficult to get around or go to the bathroom and failing to provide her with a reasonable accommodation by indicating they had no method or policy to address her pregnancy concerns. The standard for an adverse employment action on a discrimination claim is more stringent than the standard for retaliation claims discussed above. Burlington, 548 U.S. at 64. In the Fourth Circuit, an adverse employment action in the discrimination context is “a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiff's employment.” James v. Booz-Allen & Hamilton, 368 F.3d 371, 375 (4th Cir. 2004) (internal citations and quotation marks omitted). In the discrimination context, “the mere fact that a new job assignment is less appealing to the employee, however, does not constitute adverse employment action.” Id. at 376.
A reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect. [A]bsent any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one's salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position.Id.; see also Potter v. Comstock Homes of Washington, LC, No. CV 07-0600, 2008 WL 11512333, at *6 (E.D. Va. June 26, 2008) (applying this analysis in the context of a pregnancy discrimination claim and finding reassignment did not rise to the level or an adverse employment action); Hamilton v. Prince George's Cty., Maryland, No. CV DKC 17-2300, 2019 WL 4735429, at *10 (D. Md. Sept. 27, 2019) (same). Further, a failure to accommodate arises in the context of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and Plaintiff has not alleged a cause of action under the ADA.
Plaintiff also alleges retaliation with respect to her pregnancy. Plaintiff alleges that she engaged in protected activities by making complaints of harassment, requesting accommodations for her pregnancy, and filing discrimination charges with SCHAC. Though Plaintiff made numerous internal and external complaints during the time period relevant to this action, the only complaint that made any mention of her pregnancy was her third EEOC Charge of Discrimination, filed on September 17, 2018. However, none of the alleged adverse actions occurred after this date. Thus, Plaintiff cannot make the requisite causal connection showing to support a retaliation claim with respect to her pregnancy. Therefore, summary judgment is appropriate.
All of the adverse actions alleged with respect to her pregnancy retaliation claim-long work hours, unlawful and unwarranted searches, change in work stations, and investigations for unfounded allegations-were raised by Plaintiff in at least one of her three EEOC Charges of Discrimination, and thus pre-date her third EEOC Charge of Discrimination. Because the only protected activity Plaintiff engaged in with respect to her pregnancy was filing the third charge, the causal connection requirement is absent.
D. Invasion of Privacy
Plaintiff brings a state law claim for Invasion of Privacy. As the Fourth Circuit has explained with respect to a claim for invasion of privacy under South Carolina law,
The right of privacy is “the right to be let alone; the right of a person to be free from unwarranted publicity.” Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 514 S.E.2d 126, 130 (1999) (quoting Holloman v. Life Ins. Co. of Virginia, 192 S.C. 454, 7 S.E.2d 169, 171 (1940)). South Carolina defines tortious invasion of privacy as “[t]he unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606, 608 (1956). This definition gives rise to three separate but related causes of action: “(1) wrongful appropriation of personality; (2) wrongful publicizing of private affairs; and (3) wrongful intrusion into private affairs.” Snakenberg v. Hartford Cas. Ins. Co., 299 S.C. 164, 383 S.E.2d 2, 5 (App. 1989).Doe 2 v. Associated Press, 331 F.3d 417, 421 (4th Cir. 2003). Plaintiff appears to allege a wrongful publicizing of her private affairs. She alleges that Defendant Eagleton invaded her privacy by publicizing her private and confidential employment information regarding her sexual assault complaint to Plaintiff's colleagues and others at ECI. To state such a claim, Plaintiff must allege that defendants “intentionally committed ‘public disclosure of private facts about the plaintiff-facts in which there is no legitimate public interest.'” Id. Public disclosure of private facts is also called publicity. See Rycroft v. Gaddy, 314 S.E.2d 39, 43 (Ct. App. 1984). “Publicity means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Swinton Creek, 514 S.E.2d at 131-32 (internal citations omitted). In other words, it is not an invasion of privacy “to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons.” Id. Plaintiff's allegations that Warden Eagleton disclosed facts about her sexual assault to her colleagues at ECI is insufficient to show that it was communicated to so many people to be regarded as a matter of public knowledge. Accordingly, summary judgment is appropriate on this cause of action.
E. Gross Negligence
Plaintiff alleges that Warden Eagleton was grossly negligent in failing to properly address and take remedial action on Plaintiff's reports of sexual assault, failing to keep those reports confidential, failing to supervise his employees, and failing to comply with state and federal law concerning sexual assault. As argued by Defendants, this claim fails as a matter of law because her exclusive remedy lies in the South Carolina Workers' Compensation Act. See S.C.Code Ann. § 42-1-540 (“The rights and remedies granted by [the Workers Compensation Act] ... shall exclude all other rights and remedies of such employee ... as against his employer, at common law or otherwise, on account of [personal] injury, loss of service or death.”). The Act is the exclusive remedy against an employer for an employee's work-related accident or injury. Fuller v. Blanchard, 595 S.E.2d 831, 834 (S.C. Ct. App. 2004). The exclusivity provision of the Act “precludes an employee from maintaining a tort action against an employer where the employee sustains a work-related injury.” Edens v. Bellini, 597 S.E.2d 863, 867 (S.C. Ct. App. 2004) (citing Tatum v. Med. Univ. of S.C., 552 S.E.2d 18 (S.C. 2001)).
In Loges v. Mack Trucks, Inc., 417 S.E.2d 538 (S.C. 1992), a co-employee verbally and physically assaulted the plaintiff. Id. at 539. All of the alleged incidents occurred either on company property, while the employees were traveling to or from work, or had their origin at the company. Id. In dismissing the plaintiff's negligent supervision claim against the plaintiff's employer based on the exclusivity provision of the Act, the Supreme Court held:
[The employee] cannot argue that her employer failed to provide protection and yet maintain that her injury did not arise out of employment. . Thus, to the extent it alleges damages arising out of and in the course of her employment as a result of the intentional infliction of emotional distress, assault, and battery by [a co-employee], this Court concludes that [the employee's] cause of action [for negligent supervision] against Mack Trucks is barred by the exclusivity provision of the Workers' Compensation Act.Id. at 541; see also Dickert v. Metropolitan Life Ins. Co., 311 S.C. 218, 428 S.E.2d 700, 701 (1993) (finding that the plaintiff's intentional infliction of emotional distress and negligence claims against his employer were barred by the Workers' Compensation Act); Lasher v. Day & Zimmerman Int'l, Inc., 516 F.Supp.2d 565, 587 (D.S.C.2007) (same); Addison v. CMH Homes, Inc., 47 F.Supp.3d 404, 429 (D.S.C. 2014) (granting summary judgment on the plaintiff's gross negligence claim against his employer based on the Workers' Compensation Act exclusivity). Likewise, Plaintiff's claim for damages arising out of her employer's gross negligence is barred by Workers' Compensation Act, and summary judgment is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 29) be granted in part and denied in part. Specifically, it is recommended that the motion be granted as to Plaintiff's pregnancy-related discrimination and retaliation causes of action, her invasion of privacy cause of action, her gross negligence cause of action, and all Title VII claims asserted against Defendant Eagleton. It is recommended that the motion be denied as to Plaintiff's hostile work environment cause of action and her sexual assault-related retaliation cause of action.
Though Plaintiff asserts that she needs additional discovery to support some of her claims in this action, with respect to the claims for which the undersigned is recommending dismissal, even if Plaintiff did have evidentiary support for her allegations, they would still be subject to dismissal because the allegations themselves are insufficient to state a claim and fail as matter of law.