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Porter v. M.W. Logistics Services, LLC

United States District Court, N.D. West Virginia

August 23, 2019




         This is 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.

         I. BACKGROUND

         A. Porter and Eastham's Agreement

         Since 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.

         Sometime in 2016, the Facility's Production Manager, Randall Eastham (“Eastham”)[1], 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.

         At the 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.

         Shortly 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[2] 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).

         B. Ongoing Construction at the Facility

         Federal 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.

         Because 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.

         Porter 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. Id.

         C. Eastham's Text Messages to Porter

         On the 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.[3] 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.

         Ten 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).

         Four 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.

         D. Procedural Background

         On 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).

         Following 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).

         Now pending is M.W. Logistics' motion for summary judgment (Dkt. No. 31), which is now fully briefed and ripe for disposition.


         Summary 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 ...

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