United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 31] AND DISMISSING CASE
M. KEELEY, UNITED STATES DISTRICT JUDGE
an action for sexual harassment and retaliation in violation
of the West Virginia Human Rights Act, W.Va. Code
§§ 5-11-1, et seq. Pending before the
Court is the defendant's motion for summary judgment. For
the reasons that follow, the Court GRANTS
the motion (Dkt. No. 31), and DISMISSES the
case with prejudice.
Porter and Eastham's Agreement
February 2014, the plaintiff, Tammy Porter
(“Porter”), has owned and operated Porter's
Grinds and Finds, a brick-and-mortar restaurant and gift shop
located in West Union, West Virginia (Dkt. No. 32-2 at 2-3).
The defendant, M. W. Logistics Services, LLC (“M.W.
Logistics”), provides employee services to MarkWest
Energy Partners L.P. (“MarkWest”) and its
subsidiaries and affiliates (Dkt. No. 32-1 at 1). Markwest, a
midstream services company, is the largest processor of
natural gas in the Marcellus Shale. Id. Markwest
operates its Sherwood Processing Facility (the
“Facility”) near West Union. Id. at 2.
The Facility consists of several individual processing
plants, all of which are located on the same site.
Id. The construction of additional processing plants
at the Facility was ongoing during all relevant times.
in 2016, the Facility's Production Manager, Randall
Eastham (“Eastham”), dined at Porter's
restaurant. Id. at 7. While Eastham dined, he and
Porter discussed the possibility of Porter placing a mobile
food trailer at the Facility for the purpose of providing
food to the many construction contractors on site.
Id. at 7-8. Shortly thereafter, Porter met Eastham
in his office to discuss the details of the arrangement.
Id. at 8-9. During that meeting, Eastham told Porter
that she could park her food trailer near a security gate at
the entrance of the Facility, downhill from the processing
plants, and that MarkWest would provide electricity to the
trailer. According to Porter, Eastham “didn't want
a dime” in exchange for providing her access to the
Facility because he was “happy [that she would] be
providing a service to the contractors” on site.
Id. at 11. Porter and Eastham's verbal agreement
was not reduced to a written contract.
time Eastman granted Porter access to the Facility, seven (7)
processing plants were operational and an eighth plant
(“Sherwood #8”) was under construction (Dkt. No.
32-1 at 2). The Facility's construction plan called for
building a single processing plant to completion, making it
operational, and then moving to a different portion of the
site to begin construction on the next plant. Id.
All construction-related activities at the Facility were
managed by an employee of M.W. Logistics, Kevin Sturgill
(“Sturgill”). Id. Eastham, meanwhile,
was responsible for the management of processing plants
actually in operation. Id.
after Porter's arrangement with Eastham became known to
the construction contractors, they requested that she be
permitted to place her food trailer at the top of the hill,
closer to their construction activities (Dkt. No. 32-1 at 3).
Because the contractors had only thirty (30) minutes for
lunch, they did not believe they would have sufficient time
to walk down the hill, purchase food, and return with enough
time to eat their meal. Id. To accommodate the
contractors' request, MarkWest allowed Porter to move her
trailer to the top of the hill, where a number of other
contractors' mobile trailers were already located.
Id.; see also Dkt. No. 32-2 at 21-22. When
Porter placed her trailer at this location, she was
physically closest to Sherwood #8, which remained under
construction (Dkt. Nos. 32-1 at 3; 32-2 at 23).
Ongoing Construction at the Facility
and state safety regulations require MarkWest to account for
the potential of an explosive event at the Facility by
implementing certain safety requirements, including the
delineation of a “blast zone” based on physical
proximity to potential ignition sources, such as natural gas
(Dkt. No. 32-1 at 3-4). Safety regulations require that
structures intended for human occupancy and physically
located within the delineated blast zone be
“blastproof.” Id. at 4. A blastproof
structure is manufactured to withstand certain forces that
would exist in the event of an explosive event, in order to
protect human life. Id.
Sherwood #8 was not yet operational at the time Porter placed
her trailer at the top of the hill, there was no potential
ignition source (natural gas) flowing through it (Dkt. Nos.
32-1 at 4). Therefore, the trailers located at the top of the
hill were not within a delineated blast zone (Dkt. No. 32-1
at 4). Upon Sherwood #8 becoming operational, however, there
would be no location within the Facility that was not within
a blast zone, based on physical proximity to an ignition
source. Id. Accordingly, Sturgill, through his
assistant, Christina Wolfgang (“Wolfgang”),
notified Porter and the construction contractors that, upon
the completion of Sherwood #8, they would have to rent
blastproof trailers in order to remain on site. Id.;
Dkt. No. 32-3 at 1.
testified during her deposition that, no later than September
2017, she knew that she would be required to obtain a
blastproof trailer in order to remain on site once Sherwood
#8 became operational in early 2018 (Dkt. No. 32-2 at 26-32).
During the autumn of 2017, Wolfgang had at least four or five
additional conversations with Porter about the need to either
move her existing trailer or procure a blastproof trailer
(Dkt. No. 32-3 at 2). According to Wolfgang, she informed
Porter that, if she did not wish to obtain a blastproof
trailer, she could move her trailer back down the hill and
place it near the security gate. Id. As of January
2018, Porter had not acquired a blastproof trailer.
Eastham's Text Messages to Porter
morning of January 13, 2018, Eastham sent Porter a text
message requesting that she deliver six pizzas to the
Facility for lunch (Dkt. No. 33-2 at 1). Porter responded
that she would deliver the pizzas and stated, “Anything
for Randall.” Id. at 1-2. Her message included
a smiley face emoji. Id. at 2. In response, Eastham
sent Porter a series of text messages stating, “I have
an empty office, ” “I'm in my office alone,
” and “You said anything.” Id. at
2-3. Because Eastham's statements made her uncomfortable,
Porter asked him to call another company to deliver the
pizzas. Id. at 3. The next morning, Porter texted
Eastham, “Randall, Maybe I have sent you the wrong msg
[sic]. I am sorry if I did. I am in serious relationship with
Duane. I don't want this to change our working
relationship.” Id. at 4. Eastham responded,
“Not at all, 100% joke, we've always joked, My
bad.” Id. at 5.
days later, on January 24, 2018, Porter received a Facebook
message from Wolfgang, which stated, “Hey [T]ammy,
[K]evin [Sturgill] said to let you know that your trailor
[sic] needs to be mov[ed] out by tomorrow. Please let us know
who is coming to get it” (Dkt. No. 32-6). Although her
message to Porter did not specifically mention the blast
zone, Wolfgang states in her declaration that Sturgill had
instructed her to inform Porter that her trailer
“needed to be moved from the blast zone” (Dkt.
No. 32-3 at 2). In response to Wolfgang's message, Porter
stated, “Tomorrow?!? Let me c [sic] what I can pull
off” (Dkt. No. 32-6). Porter listed her trailer for
sale on Facebook the same day (Dkt. No. 32-7). According to
Sturgill, he had no knowledge of any text message exchange
between Porter and Eastham at the time he instructed Wolfgang
to inform Porter to move her trailer from the blast zone
(Dkt. Nos. 32-1 at 5).
days later, on January 28, 2018, Eastham sent an email to his
administrative assistant, Autumn David (“David”),
asking her to plan a catered lunch event at the Facility and
directing that she “not [use] [P]orters” (Dkt.
No. 33-3). When David further inquired about the catering,
Eastham responded, “I'm finished with Tammy Porter,
we won't be supporting her out of Sherwood's
budget.” Id. The following day, January 29,
2018, Porter received a series of text messages from David,
which stated, “I need you to arrange to get the pop
machine and the camper off site this week. No. clue why. Was
just told to ask you.” (Dkt. No. 33-4). When Porter
asked whether Eastham had given the directive, David
confirmed that he had. Id.
April 25, 2018, Porter sued MarkWest Energy Partners, L.P. in
the Circuit Court of Harrison County, West Virginia,
asserting claims of (1) sexual harassment in violation of the
West Virginia Human Rights Act (“WVHRA”), and (2)
malicious, willful, wanton, and reckless misconduct. Shortly
thereafter, on May 7, 2018, Porter filed an amended complaint
to change the name of the corporate defendant to M.W.
Logistics (Dkt. No. 1-1). On May 25, 2018, M.W. Logistics
timely removed the case to this Court (Dkt. No. 1).
removal, M.W. Logistics moved to dismiss Porter's Amended
Complaint for failure to a state a claim (Dkt. Nos. 4; 5).
During a scheduling conference on August 24, 2018, the Court
granted the motion to dismiss, in part, but denied the motion
to dismiss Porter's claim for sexual harassment under the
WVHRA (Dkt. No. 5). Porter thereafter filed a Second Amended
Complaint on August 30, 2018, asserting separate causes of
action against M.W. Logistics for sexual harassment and
retaliation under the WVHRA (Dkt. No. 19).
pending is M.W. Logistics' motion for summary judgment
(Dkt. No. 31), which is now fully briefed and ripe for
STANDARD OF REVIEW
judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). When ruling on a motion for
summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving
party. Providence Square Assocs., L.L.C. v. G.D.F.,
Inc., 211 F.3d 846, 850 (4th Cir. 2000). “Summary
judgment cannot be granted merely because the court believes
that the movant will prevail if the action is tried on the
merits.” Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 568 (4th Cir. 2015) (citation
omitted). The Court must ...