Richard Mark Gergel United States District Court Judge

ORDER

Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 55) recommending that the Court grant in part, deny in part Defendant's motion for judgment on the pleadings. (Dkt. No. 40.) For the reasons set forth below, the Court adopts in part and rejects in part the R & R and dismisses part of Plaintiff's complaint.

I. Background

Plaintiff is a pro se litigant claiming pursuant to 42 U.S.C. § 1981 and the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). Plaintiff alleges that Defendants, City of Georgetown, Georgetown Police Department, Paul Gardner, Jack Scoville, Jr., Robert Small, and Suzanne Abed-El-Latif terminated his employment with the Georgetown Police Department in retaliation for informing his fellow African American colleagues to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Dkt. No. 13 at 3, 8-9.) In addition, the Complaint suggests that Plaintiff's termination from the Georgetown Police Department was also caused by a false accusation of excessive force. (Id. at 8-9.) On August 15, 2018, the Magistrate Judge issued a proper form order notifying Plaintiff the Complaint presented only a few conclusory sentences and failed to state a claim. (Dkt. No. 7.) The Court gave Plaintiff time to amend the pleadings so as to state a claim. (Id.) Subsequently, Plaintiff filed an amended complaint containing similar allegations. (Dkt. No. 13.) On March 22, 2019, Defendants filed a motion for judgment on the pleadings to dismiss Plaintiff's complaint entirely. (Dkt. No. 39.) On May 15, 2019, Plaintiff filed a response in opposition to Defendant's motion for judgment on the pleadings (Dkt. No. 46) followed by a supplemental response on June 21, 2019. (Dkt. No. 54.)

II. Legal Standard

A. Report and Recommendation

The Magistrate Judge makes a recommendation to the Court that has no presumptive weight, and the responsibility to make a final determination remains with the Court. See, e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). 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)(C). Where there are no objections to the R & R, the Court reviews the R & R to "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note. In the absence of objections to the R & R, the Court need not give any explanation for adopting the Magistrate Judge's analysis and recommendation. See, e.g., Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) ("In the absence of objection . . . we do not believe that it requires any explanation."). Plaintiff has not filed any objections in this case, and the Court reviews the R & R for clear error.

III. Discussion

A. WPA Claims

The Whistleblower Protection Act was enacted to protect federal employees who disclose government illegality, waste, and corruption. McKinney v. Reich, No. CIV. A. 5:95-0160, 1996 WL 498187, at *2 (S.D.W. Va. Mar. 25, 1996) (citing 5 U.S.C. § 1201). Plaintiff alleges he was employed as a police officer with the Georgetown Police Department during the time frame relevant to this lawsuit. (Dkt. No. 13 at 8.) As the Plaintiff was employed by the City and not the federal government, he is not protected by the WPA. The Magistrate Judge correctly ruled that Plaintiff's first cause of action fails as a matter of law.

B. 42 U.S.C. § 1981 Claims

After a careful review of the Complaint and the record, the Court finds the Magistrate Judge ably addressed Plaintiff's § 1981 claim. Section 1981 provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 42 U.S.C. § 1981. The Supreme Court has held that "express 'action at law' provided by § 1983 for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws,' provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989).

In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege: (1) that he or she has been deprived of a right, privilege, or immunity secured by the Constitution or laws of the United States and (2) that the conduct complained of was committed by a person acting under color of state law. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). The Magistrate Judge correctly concluded Plaintiff's amended complaint as written, alleges § 1981 violations against state actors, but fails to expressly raise any claims for relief under § 1983. The amended complaint does not mention Defendant Abed-El-Latif or connect her action to the alleged retaliation against Plaintiff. Plaintiff generally alleges Defendant Small made a derogatory statement about another African American police officer, yet the amended complaint fails to explain how this statement is tied to Plaintiff's retaliation claim under § 1981. (Dkt. No. 13 at 9.) As such, the allegations standing alone do not state a claim under § 1983. See Fortner v. Coll. of Charleston, No. 2:15-CV-4762-RMG, 2017 WL 528201, at *2 (D.S.C. Feb. 8, 2017).

Regarding Plaintiff's allegations against Defendant Scoville and Defendant Gardner, the Court finds the Magistrate Judge correctly concluded that these claims as alleged fail to state a claim for relief. Plaintiff alleges Defendants Scoville and Gardner retaliated against him by terminating Plaintiff's employment with the Georgetown Police Department. (Dkt. No. 13 at 8.) Plaintiff alleges the reason for his termination is because he informed other African American officers of their right to file a charge of discrimination with the EEOC for failure-to-promote. (Dkt. No. 13 at 8.) Retaliation claims under § 1983 are analyzed under a burden-shifting framework. First Plaintiff must establish a prima facie case of retaliation by alleging: (1) he or she engaged in a protected activity; (2) that an adverse employment action was taken against him or her; and (3) that there was a causal connection between the first two elements. Dowe, 145 F.3d at 656. After plaintiff has established a prima facie claim, Defendant has the burden of demonstrating a "legitimate, non-discriminatory reason for its actions." Ham v. Parker, No. 2:13-CV-00986-RMG, 2014 WL 6879294, at *8 (D.S.C. Dec. 5, 2014). If the employer offers a legitimate, non-discriminatory reason for its actions, the employee must then demonstrate that the proffered reason is pretext for retaliation. Id.

The Magistrate Judge concluded that Plaintiff's allegations against Defendants Scoville and Gardner do not raise a plausible claim that these Defendants retaliated against Plaintiff for engaging in protected activity. However, the Court rejects the Magistrate Judge's determination that Plaintiff's allegations do not demonstrate that he engaged in protected activity. (Dkt. No. 55 at 12-13.) Under Title VII, protected employee activity falls into two categories: participation or opposition. Hemphill v. United Parcel Serv., Inc., 975 F. Supp. 2d 548, 560 (D.S.C. 2013). "An employer may not retaliate against an employee for participating in an ongoing investigation or proceeding under Title VII, nor may the employer take adverse employment action against an employee for opposing discriminatory practices in the workplace." Id. Opposition activity consists of 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." Id. The Magistrate Judge concluded that Plaintiff's alleged activity, of encouraging other African-American employees to file claims of discrimination or retaliation do not consist of opposition or participation and are not considered protected activity. (Dkt. No. 55 at 12-13.) Yet, the Court finds that Plaintiff's allegations are sufficient to establish he engaged in protected activity under the First Amendment.

The right of free speech guaranteed by the First Amendment includes "not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right." Hamilton v. Mayor & City Council of Baltimore, 807 F. Supp. 2d 331, 346 (D. Md. 2011) (citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.2000)). A plaintiff seeking to recover on a First Amendment retaliation claim must prove the following: "(1) he engaged in protected First Amendment activity; (2) the defendants took some action that adversely affected his First Amendment rights; and (3) there was a causal relationship between his protected activity and the defendants' conduct." Hamilton, 807 F. Supp. 2d at 346. The activity of a government employee may receive protection under the First Amendment, if it can first be established that the employee engaged in speech as a citizen speaking on a matter of public concern. Connick v. Myers, 461 U.S. 138, 146 (1983).

Whether speech relates to a matter of public concern turns on "the content, form, and context . . . as revealed by the whole record." Connick, 461 U.S. at 147-148. Speech whose content is designed to bring the public's attention to instances of official misconduct or breaches of public trust are more likely to be protected than matters of personal interest. Jurgensen v. Fairfax Cty., Va., 745 F.2d 868, 878 (4th Cir. 1984). The location of where the speech occurs is not a determinative factor on whether it is protected by the First Amendment. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Speech that occurs in a private conversation may be protected speech. Givhan v. Western Line Consolidated Sch. Dist., 439 U.S. 410, 415-416 (1979). In addition, public employees do not speak as citizens for First Amendment purposes when statements are made pursuant to their official duties." Garcetti, 547 U.S. at 418.

Plaintiff's amended complaint alleges he was terminated from the Georgetown Police Department in retaliation for informing African-American officers of their right to file race-based EEOC claims for not being promoted to Sergeant level. (Dkt. No. 13 at 8.) As alleged, it does not appear that these statements involving alleged racial discrimination at the police department fall within the scope of Plaintiff's official duties as a police officer, but Plaintiff's comments involve a matter of public concern. See Gregg-Wilson, No. CA3:04 23132 MBS JRM, 2006 WL 1207840, at *3-4 (D.S.C. May 4, 2006) (noting that speech was a matter of public concern where it concerned race relations and discrimination where Plaintiff, a black minority applicant, sent a letter to the board questioning the Director's hiring of a Caucasian Assistant Director over more qualified minority applicants.); Howell v. Marion Sch. Dist. One, No. CIV.A. 4:07-CV-1811R, 2009 WL 764445, at *10 (D.S.C. Mar. 19, 2009); Givhan v. Western Line Consolidated Sch. Dist., 439 U.S. 410 (1979). The Court is charged with liberally construing complaints filed by pro se litigants, as to allow for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S. 364 (1982). Taking the factual allegations as true and construing the facts and reasonable inferences in a light most favorable to Plaintiff, it is plausible that Plaintiff may prove some set of facts which demonstrate he engaged in protected activity and was retaliated against in violation of his First Amendment right to free speech.

Upon a review of Plaintiff's claims against Defendant City of Georgetown, the Court finds the Magistrate Judge ably addressed these claims and concluded that Plaintiff's claims fail to state a claim under § 1983. Plaintiff generally alleges "undue bias", "unethical procedure", and "atrocities" against African American officers. (Dkt. No. 13 at 9.) However, liability for an alleged § 1983 violation may attach to a municipality or other local government where the constitutionally offensive acts of city employees are taken in furtherance of some municipal policy or custom. Jackson v. Cent. Midlands Reg'l Transit Auth., No. CV 3:15-5092-MBS-PJG, 2016 WL 1156733, at *2 (D.S.C. Feb. 19, 2016). Plaintiff does not allege that Defendants Scoville and Gardner suspended and terminated his employment in furtherance of a municipal policy or custom. As such, the Magistrate Judge correctly ruled that Plaintiff's § 1983 claims fail as a matter of law.

C. Plaintiff's Supplemental Brief

Plaintiff's supplemental response brief includes additional factual allegations that may satisfy the pleading standard under Rule 8 and remedy the complaint's deficiencies. A complaint should not be dismissed for failure to state a claim unless after accepting all well-pleaded allegations in the plaintiff's favor it appears certain that the plaintiff cannot prove any set of facts in support of his claim for relief. Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 248 (4th Cir. 2005). In the supplemental response, Plaintiff elaborates on his allegations claiming that after he gathered his "fellow African American officers to discuss filing a civil rights complaint," Defendant Gardner subtly encouraged him to back off. (Dkt. No. 54 at 2.) After this interaction, Plaintiff alleges he filed two grievances and informed Human Resources. (Id.) Plaintiff also alleges that in 2014, he was "falsely accused of assaulting a suspect." (Id.) He alleges Defendant Smalls initiated a "private and illegal investigation." (Id.)

Thirty days later, Defendant Gardner allegedly required Plaintiff to "write a letter regarding the incident for his personnel file" to which Plaintiff signed every document placed in front of him while allegedly under duress. (Id.) Plaintiff also alleges that he subsequently was "suspended for sixty days and put under an investigation by SLED." (Id.) He alleges Defendant Gardner declined to investigate on Plaintiff's behalf despite Plaintiff having no negative history in his personnel file and no alleged use of force in his career in law enforcement. (Id.) Also, he alleges his white peers were treated less harshly "when they had factual evident [sic] to move forward with assault [sic] charges." (Id.)

Plaintiff alleges that when he returned to work, he was marginalized from his cases and duties. (Id. at 2.) He was terminated for "disobeying a direct order by not filing his personnel letter into a case file" but he was "never given a direct order from anyone to put his letter into a case file that did not exist." (Id. at 3.) For the first time Plaintiff alleges he met with the EEOC where he received a right to sue letter. (Id.) He claims that Defendant Abed-El-Latif told him she "represent[ed] the EEOC" but did not pass his complaint to the agency." (Id.) The Court adopts the R & R of the Magistrate Judge to allow Plaintiff a final opportunity to amend his complaint. (Dkt. No. 13 at 17-18.) Plaintiff may address the deficiencies in his complaint and incorporate additional facts alleged in his supplemental brief along with any other relevant information or causes of action. Marshall v. United Parcel Serv., NO. 6:17-CV-3491-DCC-BM, 2018 WL 7825806, at *3 (D.S.C. June 26, 2018).

IV. Conclusion

For the foregoing reasons, the R & R of the Magistrate Judge is ADOPTED IN PART and REJECTED IN PART. (Dkt. No. 55) The Court REJECTS the determination of the Magistrate Judge that Plaintiff's conduct does not fall under protected activity and therefore declines to adopt (i) the sentence beginning on Page 12, line 23 and ending on Page 13, line 8; (2) the sentence beginning on Page 14, line 4 and ending on Page 14, line 6. The R & R is otherwise ADOPTED. Defendants' judgment on the pleadings (Dkt. No. 40) is GRANTED as to Plaintiff's WPA claim and DENIED as to Plaintiff's § 1981 claims to allow Plaintiff one final opportunity to remedy the complaint. Plaintiff shall have twenty-one (21) days from the entry of this order to file his amended complaint, or the case is subject to dismissal with prejudice.

AND IT IS SO ORDERED.

/s/_________

Richard Mark Gergel

United States District Court Judge October 10, 2019
Charleston, South Carolina