Reginald CARROLL, Plaintiff, v. ATA RETAIL SERVICES, INC., and, Donna Hart, Defendants 1:14-CV-00747-ELR United States District Court, N.D. Georgia, Atlanta Division Signed March 30, 2016 Counsel Regina Sledge Molden-Clowney, Elizabeth Lorraine Brown, Tyler Levon Evans, The Molden Law Firm, LLC, Atlanta, GA, for Plaintiff. Mari Lynn Myer, The Myer Law Firm, Decatur, GA, for Defendants. Ross, Eleanor L., United States District Judge ORDER *1 This case is before the Court on Magistrate Judge Gerrilyn G. Brill's Report and Recommendation (“R&R”), Defendant's objections thereto, and Plaintiff's responses to Defendant's objections. The Court's rulings and conclusions are set forth below. I. Background As provided in the R&R, Plaintiff Reginald Carroll brought claims against Defendants ATA Retail Services, Inc. (“Defendant” or “ATA”) and Donna Hart alleging that Hart sexually harassed him. Plaintiff, an African-American male, worked for ATA as a part-time merchandiser from approximately January 11, 2013, until April 24, 2013. Hart, a Caucasian female, worked for ATA as a route supervisor and supervised Plaintiff. Plaintiff brings two claims against ATA pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Civil Rights Act of 1991 (“Title VII”): Count I is a claim for sexual harassment based on a hostile work environment theory and Count II is a claim for sexual harassment based on a tangible employment action. Plaintiff also brings claims against ATA and Hart pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. (the “FLSA”) for failure to pay wages owed, as well as a claim for punitive damages against ATA. Defendant ATA moved to dismiss on the grounds of spoliation, or in the alternative, summary judgment. The R&R recommends granting summary judgment for ATA on Count I but denying it as to Count II; and denying summary judgment for ATA on Plaintiff's FLSA claim and punitive damages claim. In addition, the R&R recommends dismissing Hart from this action for lack of service. Finally, the R&R recommends that Defendant's alternative motion to dismiss this case based on the spoliation of evidence be denied. Defendant ATA has objected to the R&R with respect to its recommendation to deny summary judgment on Plaintiff's claim for sexual harassment (Count II), FLSA claim, and claim for punitive damages. Defendant also objects to the R&R's rulings on Plaintiff's Declaration. Finally, Defendant objects to the R&R's denial of its motion to dismiss this case based on Plaintiff's spoliation of evidence. II. Standard The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3). Portions of the R&R, to which no objection has been made, are reviewed for clear error. See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006); Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373 (N.D. Ga. 2006). However, the Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3). A party objecting to an R&R “must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). III. Discussion *2 In responding to ATA's Motion for Summary Judgment, Plaintiff submitted a Declaration Under Oath. Defendant made several objections to this Declaration, contending that it was a “sham affidavit” and should be excluded. In the R&R, Magistrate Judge Brill analyzed each of Defendant's objections to the Declaration and made a paragraph-by-paragraph ruling on each objection. Defendant now further objects to the R&R's rulings on the Declaration with respect to Paragraphs 10, 11, 13, 16, and 18.[1] After a de novo review, the Court finds that the R&R's rulings on Defendant's objections to Plaintiff's Declaration with respect to Paragraphs 10, 11, 13, 16, and 18 are correct. In particular, regarding Paragraphs 10 and 11, even if Plaintiff did not have personal knowledge that Hart refused to approve Plaintiff's hours and reduced his hours because he would not have sex with her, Plaintiff has produced enough evidence to create a genuine dispute of material facts to defeat summary judgment on his sexual harassment claim (Count II). For example, there is sufficient testimony from Plaintiff that Hart told Plaintiff that if he would have sex with her, she would approve miscellaneous hours and inflate his hours. Plaintiff further testified that the time entries he made into the payroll system did not match the time entries on the payroll summary sheets and that he was not compensated for all of his time. Hart also told Plaintiff that she was responsible for approving and reviewing time entries. Thus, regarding his sexual harassment claim, a reasonable jury could find that Plaintiff did suffer a tangible employment action and that this was causally related to the incidents of harassment. With regard to Plaintiff's FLSA claim, after a de novo review of the evidence, a reasonable jury could find that Hart was capable of altering Plaintiff's time entries and did so. Therefore, even if the Court excluded the challenged portions of Plaintiff's Declaration, the Court would still find that summary judgment for Defendant on this issue was to be denied. As for Paragraph 13, the Court agrees with the R&R that Plaintiff's Declaration generally conforms to the events described in this paragraph. Although during his deposition Plaintiff did not use the particular words he later used in his Declaration, his Declaration is not inconsistent with his deposition testimony and any credibility issues should be left to a jury. Finally, with respect to Paragraphs 16 and 18, the R&R considered the same objections Defendant makes here and overruled them. After a de novo review, the Court agrees. Defendant argues that once this Court sustains its objections to Plaintiff's Declaration in the Paragraphs discussed above, no genuine issues of material facts will remain such that the Court should grant summary judgment for Defendant on Plaintiff's sexual harassment claim (Count II) and FLSA claim, and in turn, Plaintiff's punitive damages claim. In addition to reviewing the objections to Plaintiff's Declaration above de novo, the Court has reviewed de novo Defendant's motion for summary judgment on Count II and his FLSA claim and finds that the R&R's analysis is correct. The Court cannot conclude as a matter of law that Defendant is entitled to summary judgment on these claims. The Court further agrees with the R&R that Plaintiff's punitive damages claim, as a derivative claim, remains because the Court is denying summary judgment on Plaintiff's sexual harassment claim (Count II). *3 Finally, Defendant objects to the R&R's conclusion that dismissal is not warranted for Plaintiff's spoliation of the evidence. The R&R found that the spoliation of evidence occurred here when Plaintiff destroyed a cell phone (which included text messages and voicemails from Hart) and emails sent during his employment. Defendant does not take issue with this finding. The R&R further determined that the extreme sanction of dismissal was not warranted after weighing the relevant factors. Instead, the R&R recommends that this Court hold a pre-trial evidentiary hearing to determine whether any remedial measures or sanctions are warranted, including but not limited to a jury instruction that a rebuttable presumption arises in favor of Defendant. Specifically, the district court may wish to consider the appropriateness of an instruction that the spoliated evidence weighs in favor of a finding that Hart's conduct did not constitute sexual harassment of Plaintiff during his employment with ATA. R&R at 57. In objecting to the R&R, Defendant argues that the remedy here should be dismissal, or at a minimum, a jury instruction raising a presumption against him as the spoliator. The Court has reviewed this issue de novo and agrees with the R&R that dismissal is not warranted. The R&R correctly analyzed the factors that a court is to consider. See R&R at 52-57. The undersigned agrees that the prejudice to Defendant is minimal because Plaintiff's claims center on Hart's conduct and statements to him, not on text messages and voicemails, and agrees that there is no way to cure this prejudice. Additionally, the parties have other means to argue their case, despite the lost evidence, thereby minimizing the practical importance of this evidence. Further, the Court agrees that there is a genuine dispute regarding whether Plaintiff destroyed the evidence in bad faith, and a reasonable factfinder could certainly find that Plaintiff did so. The undersigned agrees that even assuming Plaintiff acted in bad faith, when this is weighed against the minimal prejudice to Defendant, the severe sanction of dismissal is not warranted.[2] As for the remainder of the R&R, to which no objections have been made, the Court had reviewed the R&R for clear error and finds none. IV. Conclusion For the foregoing reasons, the Court OVERRULES Defendant's Objections (Doc. No. 48) and ADOPTS the R&R (Doc. No. 46) as the opinion of this Court. For the reasons stated in the R&R, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion for Summary Judgment (Doc. No. 38), specifically granting Defendant's Motion for Summary Judgment as to Plaintiff's claim against Defendant ATA for sexual harassment under Title VII through a hostile work environment theory (Count I) and denying Defendant's Motion as to Plaintiff's claims against Defendant ATA for sexual harassment under Title VII through a tangible employment action theory (Count II); under the Fair Labor Standards Act (“FLSA”) (Count IV), and for punitive damages (Count VI). The Court DENIES Defendant's Motion for dismissal as a sanction for spoliation (Doc. No. 38); and DISMISSES Defendant Donna Hart from this action for lack of service. SO ORDERED, this 30th day of March, 2016. Footnotes [1] The R&R did not make a recommendation regarding rulings on Defendant's objections to Plaintiff's Declaration, but instead made outright rulings. Without a recommendation, it is not clear that this Court has authority to revisit those rulings. Nevertheless, because these rulings affect the R&R's recommendations on summary judgment, the Court will review Defendant's objections to Plaintiff's Declaration de novo. [2] As for whether the Court should impose any other sanctions, the Court will determine whether to hold a pre-trial evidentiary hearing on this issue at a later date.