TALAMANTES v. BERKELEY COUNTY SCHOOL DISTRICT

DAVID NORTON, District Judge

Maria Talamantes filed this action under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e (West 1994 Supp. 2003), alleging a sexually hostile work environment and retaliation. Plaintiff also filed causes of action for outrage (intentional infliction of emotional distress), conspiracy and negligent supervision, naming the Berkeley County School District ("BCSD"), Anthony McCray ("McCray"), Cassandra Jennings ("Jennings"), and Willie Sanders ("Sanders") as defendants. Plaintiff subsequently abandoned her conspiracy and negligent supervision claims.

As the Title VII claims have already been dismissed, the court only recounts facts pertinent to the remaining claim of outrage. Plaintiff began work as a custodian at the Westview Middle School (in the BCSD) in July 1997. McCray started as head custodian at Westview in September 2000, and supervised plaintiff. In December 2000, McCray allegedly asked another custodian, Daisy Marcelino, to enter the girls' bathroom he was cleaning. McCray reportedly had left his pants unzipped and unbuttoned; Marcelino called out to plaintiff, who entered the bathroom and observed McCray's pants. Plaintiff and Marcelino reported the incident to Larry Hilton, the assistant principal of Westview, who investigated. McCray claimed to have inadvertently left his pants unbuttoned after using the restroom. Hilton considered this a reasonable explanation, and cautioned McCray not to do anything that might offend plaintiff or Marcelino in the future.

Neither plaintiff nor any other employee had any complaints about McCray until August 15, 2001, when plaintiff filed a "Sexual Harassment Staff Complaint Form" with Jennings, the principal of Westview. Plaintiff submitted the complaint with two other female custodians, Venny Galvez and Fe Henderson. The complaint alleged five separate incidences of misconduct:

1. The incident discussed above, involving McCray in the girls' bathroom.

2. The day after the first incident, McCray put his hands on Mercelino's shoulders and "made pelvic thrusts like a dog." Plaintiff witnessed the incident. Perry Aff. Ex. A.

3. In February 2001, McCray and Billy Graham, another custodian, were watching a television in a classroom after school. McCray called plaintiff into the room and plaintiff entered with Galvez and Henderson. Plaintiff then realized that McCray and Graham were watching a Spanish language pornographic video, and McCray asked plaintiff to translate into English what the people in the video where saying. Plaintiff, Galvez and Henderson then walked out of the room. Id.

4. In May 2001, McCray laid a piece of paper on the floor near the janitor's room and told plaintiff to "lay down because I'm horny." Id.

5. Also in May 2001, McCray jumped into Mercelino's lap while she was sitting in the janitor's room, and began "gyrating" with his hips. Plaintiff witnessed the event. Id.

Plaintiff described being surprised and in shock at the sight of McCray with his pants unzipped (Pl. Dep. at 52), and upset and embarrassed after the pornographic video incident (Pl. Dep. at 65 — 66). Plaintiff's daughter described her mother's state of mind after the incidents as hurt, scared, embarrassed and aggravated. Miramontes Dep. at 21. The school's administration immediately began an investigation into the claims. During the investigation, Westview administrators consulted with Saunders, the Assistant Superintendent for Personnel in the BCSD. Plaintiff confirmed that her complaint included all the incidents she experienced or observed at Westview that she considered inappropriate. Plaintiff also noted that McCray had never touched or threatened her or her job in any way, and explained that she had delayed reporting all the allegations because she was waiting to build her case against McCray. Report at 7. During the investigatory interviews, plaintiff stated "[h]e's [McCray] okay with me. I don't have a problem with him." Perry Aff. Ex. B.

McCray categorically denied all of the alleged incidents, and other participants and observers gave conflicting accounts of what occurred. School administrators concluded that insufficient evidence existed that McCray engaged in sexual harassment, and issued a warning letter to him. Plaintiff and the other accusers declined to pursue their complaints with the BCSD.

Soon after the accusation and investigation, relations among the custodians deteriorated. In December 2001, school administrators reassigned work responsibilities to address these concerns. Plaintiff complained that her new assignments were harder than her old ones, and in July 2002 requested a transfer to another school. Administrators told her to inquire again in the fall. In August 2002 plaintiff again requested a transfer, and was transferred to another school while retaining the same benefits and salary.

Since the complaint, plaintiff nor any other employee has indicated McCray has engaged in any inappropriate behavior. Plaintiff has not received psychological or medical care for anything related to her alleged harassment.

This court must conduct a de novo review of any portion or portions of the magistrate judge's Report and Recommendation ("Report") to which an objection is made, and may accept, reject, or modify the recommendations contained therein. 28 U.S.C. § 636(b)(1). However, this court need not review any findings or recommendations to which neither party objects.Thomas v. Arn, 474 U.S. 140, 150 (1985). A party's failure to object constitutes an acceptance of the magistrate judge's findings and recommendations. United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984) (adopting interpretation of 28 U.S.C. § 636 which conditions appeal from district court's judgment on magistrate judge's recommendation on party's filing of objections with the district court); Thomas, 474 U.S. at 155 (upholding similar procedural rules). A general objection which is not "sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute" is inadequate to obtain district court review. Page v. Lee, 337 F.3d 411, 416 n. 3 (4th Cir. 2003) (quoting United States v. 2121 E. 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996)).

Summary judgment is appropriate when, after considering the full evidentiary record, there are no genuine issues of material fact. Fed.R.Civ.P. 56(c). The court is not to weigh the evidence, but determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 249 (1986). When the party moving for summary judgment does not bear the ultimate burden of persuasion at trial, the burden for summary judgment may be discharged by "pointing out to the court that there is an absence of evidence to support the nonmoving party's case."Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Evidence should be viewed in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. However, a "mere scintilla" of evidence will not preclude summary judgment. The court's inquiry is "not whether there is literally no evidence, but whether there is any [evidence] upon which a jury could properly . . . find a verdict for the party" resisting summary judgment. Id. at 251.

The magistrate judge's Report granted summary judgment on the plaintiff's hostile work environment and retaliation claims, and recommended that this court decline jurisdiction over the remaining state law claim of outrage. Defendants object, arguing that the court should both retain jurisdiction over the state law claim and grant defendants' motion for summary judgment on it. Plaintiff did not file an objection. Thus, the court confronts two issues: whether this court should exercise its discretion to retain jurisdiction over the state claim, and if so, whether to grant the defendants' motion for summary judgment.

The federal courts may hear certain state law claims which are part of the same case or controversy of an action within the original jurisdiction of the federal courts. 28 U.S.C. § 1367. When the court dismisses the claim or claims over which it has original jurisdiction, it has discretion whether to retain supplemental jurisdiction over the remaining state claim. Id. § 1367(c)(3). In exercising that discretion, the district court must consider "convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy." Semple v. City of Moundsville, 195 F.3d 708, 714 (4th Cir. 1999).

Each of the Semple factors suggest the court should retain jurisdiction over the outrage claim. Continuing the case in federal court is both fair and convenient to both parties, as neither side would incur additional expenses or travel difficulties. Both parties live in a neighboring county to the federal courthouse (Pl.'s Compl. at 1) and have already briefed and argued the fundamental issues in that courthouse. If this court declined supplemental jurisdiction, plaintiff would have to refile in state court and would incur additional filing fees. Further, plaintiff considered federal adjudication adequate when she originally filed her state claim in federal court. As such, issues of fairness and convenience to the parties suggest retaining jurisdiction over the outrage claim.

Issues of federal policy and considerations of comity do not weigh against retaining supplemental jurisdiction over the state claim. Obj. at 3. The tort of outrage or intentional infliction of emotion distress has been well settled in South Carolina since 1981. See Ford v. Hutson, 276 S.C. 157, 162, 276 S.E.776, 778 (1981). The federal court's consideration of this state law claim presents no issues involving the complex interaction between the federal and state judiciaries; rather, it is a straightforward application of well-defined case law. As such, issues of comity do not dictate against retaining jurisdiction.

Retaining supplemental jurisdiction over the outrage claim also serves the interests of judicial economy. Both parties have already completed discovery, briefed the issues and presented oral argument in federal court, and the court is familiar with the facts of this case due to the magistrate judge's thorough findings. Dismissing the outrage claim would require refiling in state court, force another court to needlessly familiarize itself with the facts of this case, consume scarce judicial resources and delay the ultimate resolution of the action. Considering each of the Semple factors, the court finds ample justification to retain supplemental jurisdiction over the remaining state law claim.

Since the magistrate judge suggests that the court decline jurisdiction, the Report makes no recommendation regarding the disposition of the outrage claim. Report at 20. Defendants' objection contends that plaintiff has failed to establish a prima facia case for outrage. Specifically, defendants argue that plaintiff can not show she suffered severe emotional distress resulting from the defendant's conduct. Obj. at 4.

In 1981, the Supreme Court of South Carolina established the elements of the tort of outrage. In order to recover for outrage or intentional infliction of emotional distress, a plaintiff must establish that:

(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was severe so that no reasonable man could be expected to endure it.

Plaintiff has not demonstrated sufficient evidence to support the third and fourth elements of the outrage claim. Plaintiff's complaint fails to allege any facts supporting the contention that defendants' actions caused her severe emotional distress, nor do the deposition excerpts which are part of the record suggest plaintiff suffered emotional distress. Further, the facts which are available work against finding any emotional distress, much less any distress so "severe . . . that no reasonable man could be expected to endure it." Id. Plaintiff has not received any psychological or medical care for anything related to McCray's alleged actions. Report at 10. Plaintiff is described as being embarrassed, hurt, surprised, shocked, aggravated, scared and upset by McCray's actions; however, these reactions do not suffice for emotional distress so severe "that no reasonable man could be expected to endure it." See Shipman v. Glenn, 314 S.C. 327, 328-329, 443 S.E.2d 921, 922-923 (Ct.App. 1994) (holding plaintiff's "emotionally upset, distressed, and worried" state of mind, combined with constant fear of harm to career and adverse affects to personal life, "falls far short" of the distress needed for an outrage action). Plaintiff noted in subsequent interviews that "[McCray is] okay with me. I don't have a problem with him." Further, plaintiff waited seven months after the pornographic video incident, and three months after McCray's alleged sexual proposition, to officially complain to school administrators. Report at 4 — 5. The record does not contain evidence that plaintiff suffered the requisite level of severe emotional distress to support an outrage claim in South Carolina. As such, the court agrees with defendants' objection, and will grant summary judgment against plaintiff on the claim of outrage.

For the reasons stated above, it is therefore ORDERED that defendants' motion for summary judgment be granted as to plaintiff's claims for sexual harassment, retaliation, and outrage.