Opinion
C. A. 2:23-6544-DCN-PJG
07-10-2024
Jayla Ancrum, Plaintiff, v. Port City Concrete, Inc., Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
The plaintiff, Jayla Ancrum, who is female, filed this discrimination and wage payment case against her former employer, Port City Concrete, Inc. She raises claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201, et seq.; and state law violations of the South Carolina Payment of Wages Act, SC Code Ann § 41-10-10, et seq. The matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion to dismiss the first, second, fourth, and fifth causes of action based on the failure to state a claim upon which relief can be granted. (ECF No. 5.) The motion is fully briefed and ready for resolution. (ECF Nos. 12 & 14.) Having reviewed the parties' submissions and the applicable law, the court recommends that the defendant's motion be denied in part and granted in part. Further, if the assigned district judge concurs with this recommendation, the plaintiff should then be granted leave to amend her Complaint as to her wage claims.
Although the defendant references Rule 12(b)(1) and its standard, none of the arguments it presents implicates the court's subject matter jurisdiction. Rather, all of its arguments challenge the plaintiff's ability to state a claim upon which relief can be granted. The court therefore treats the motion as properly brought only under Rule 12(b)(6). See generally Wideman v. Innovative Fibers LLC,F.4th, 2024 WL 1916759, at *4 (4th Cir. May 2, 2024) (discussing the difference between a substantive right of action and a federal court's jurisdiction to entertain that right of action).
DISCUSSION
A. Applicable Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
B. First and Second Causes of Action (“Sexual Harassment/Disparate Treatment” and “Hostile Work Environment under Title VII”)
The court agrees with the defendant that the plaintiff's allegations of sexual harassment are more properly considered as supporting her second cause of action based on a hostile work environment as opposed to her first cause of action based on disparate treatment. (Compare Compl. ¶ 24, ECF No. 1-1 at 3, with id. ¶ 25.)
The defendant argues first that the plaintiff has failed to state a claim upon which relief can be granted because she failed to identify a comparator in the Complaint. While courts have recognized the importance of comparator evidence and its probative value, the defendant cites no authority requiring a plaintiff to identify an individual comparator to plead a plausible claim of disparate treatment. Cf. Laing v. Fed. Express Corp., 703 F.3d 713, 720 (4th Cir. 2013) (“[N]otwithstanding the virtues of comparator evidence, it of course remains the case that a plaintiff is ‘not required as a matter of law to point to a similarly situated . . . comparator in order to succeed' on a discrimination claim.”) (omission in original) (quoting Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003)). The court agrees that the plaintiff's Complaint plausibly alleges that she was treated less favorably than male cement truck drivers. (Compl. ¶¶ 24-25, ECF No. 1-1 at 3) (alleging that the defendant “systematically discriminated against her based on her gender” by inter alia, reducing her hours, withholding her wages, and subjecting her to harsher disciplinary standards compared to her male counterparts). Whether the male cement truck drivers are actually sufficiently similar to constitute appropriate comparisons “typically occurs in the context of establishing a prima facie case of discrimination, not at the 12(b)(6) stage.” Woods v. City of Greensboro, 855 F.3d 639, 651 (4th Cir. 2017) (§ 1981 discrimination claim) (citing Haywood v. Locke, 387 Fed.Appx. 355, 358-59 (4th Cir. 2010)).
To the extent the defendant argues that the plaintiff has failed to plead a prima facie case, she is not required to do so. At the pleading stage of an employment case, a plaintiff is generally not required to allege facts which, taken as true, would establish a prima facie case. See McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (holding that a plaintiff is not required to “plead facts establishing a prima facie case of discrimination to survive a motion to dismiss”); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002).
As indicated above, a plaintiff must include factual averments that raise her claims above the speculative level, see Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), and nudge her claim “across the line from conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, to survive a motion to dismiss, a plaintiff's factual averments must fall on the spectrum somewhere above purely speculative and conjectural conclusions but below strict assertions of prima facie elements. In determining whether a plaintiff's allegations are sufficient to state a plausible claim for relief, courts must use their common sense and judicial experience. See Iqbal, 556 U.S. at 679.
Here, the plaintiff's averments suffice to state plausible Title VII claims. As to disparate treatment, she contends that her male counterparts (cement truck drivers) had more favorable hours, were not denied wages, and had less stringent disciplinary standards. (Compl. ¶ 25c, e, & f, ECF No. 1-1 at 3.) With respect to her hostile work environment claim, she alleges overtly sexual overtures-both in person and via text message-occurring twice a week throughout the duration of her employment. (See Compl. ¶¶ 30, 11-17, ECF No. 1-1 at 4, 2.) The Complaint's averments state plausible claims for disparate treatment as well as hostile work environment based on sex.
While the defendant argues that the harassment alleged in the Complaint is insufficient as a matter of law to meet the requisite standard to prevail on a hostile work environment claim, the court disagrees. First, the defendant misstates the standard at times, arguing that the plaintiff must show that the conduct at issue was both severe and pervasive. (Def.'s Mem. Supp. Dismiss at 10, 11, ECF No. 5-1 at 10, 11.) In fact, the standard is disjunctive-that is, a plaintiff must show that the conduct was either severe or pervasive environment. Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (requiring the conduct to be “sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment”). Furthermore, the Fourth Circuit has emphasized that whether conduct rises to the severe or pervasive standard is quintessentially a question of fact. Cf. Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202 (4th Cir. 2014). In Walker, the Fourth Circuit reversed the district court's summary judgment ruling that the alleged conduct was not sufficiently severe or pervasive and emphasized that the totality of the record must be considered. And at the pleading stage, the record is not yet developed. The plaintiff's allegations, which must be accepted as true at this stage, include comments directed at her such as calling her “sexy,” stating “you look good in that uniform-can I see under it?”, and commenting “Oh-I like how your ass looks in those pants.” (Compl. ¶ 11, ECF No. 1-1 at 2.) She further alleges that the conduct occurred approximately twice per week throughout the duration of her employment and that the conduct escalated to sexually explicit, lewd, unwelcomed text messages. (Id. ¶¶ 13-14.) These allegations nudge her claim over the line from conceivable to plausible.
Also, as the plaintiff points out, many of the cases upon which the defendant relies involved summary judgment motions, not Rule 12(b)(6) dismissals. And the few cases that the defendant cites which were dismissed at the pleadings stage involved-contrary to what is alleged here- conduct that was, though inappropriate, not sexual in nature. Cf. Sowash v. Marshalls of MA, Inc., No. 21-1656, 2022 WL 2256312, *5-6 (4th Cir. June 23, 2022) (affirming dismissal of a plaintiff's hostile work environment claim based on her gay male supervisor's hugging her, stroking her arm, kissing her cheek when she returned from medical leave, and commenting on her appearance saying she looked pretty in yellow); Ammirante v. Ohio Cty. Bd. of Educ., C/A No. 5:19cv12, 2019 WL 2870101, *5-6 (N.D. W.Va. July 3, 2019) (dismissing under Rule 12(b)(6) a hostile work environment claim based on alleged profane text messages and harassing social media posts and noting that the plaintiff did not allege that the defendant ever requested a sexual act, touched her inappropriately, discussed sexual subjects, or showed her obscene materials, and that many of the comments alleged were not even related to the plaintiff's gender).
Further diminishing the persuasiveness of the defendant's arguments is that many of the cases the defendant relies upon are disparate discipline cases-a claim with different elements that is not expressly raised here. Compare Lightner v. City of Wilmington, 545 F.3d 260, 264-65 (4th Cir. 2008) (requiring a plaintiff asserting a Title VII discrimination claim based on disparate discipline to establish: (1) that she engaged in prohibited conduct similar to that of a person of another race, color, sex, religion, or national origin; and (2) that disciplinary measures enforced against her were more severe than those enforced against the other person) with Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (listing the elements of a disparate treatment claim as: (1) membership in a protected class; (2) adverse employment action; (3) satisfactory job performance; and (4) different treatment from similarly situated employees outside of the protected class) and Ocheltree v. Scollon Prods, Inc., 335 F.3d 325, 331 (4th Cir. 2003) (providing that to establish a hostile work environment claim under Title VII, a plaintiff must show that the offending conduct was (1) unwelcome, (2) based on her sex, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) imputable to her employer); see also Cosby v. S.C. Dep't Probation, Parole & Pardon Servs., 93 F.4th 707, 729-30 (4th Cir. 2024) (Thacker, J., dissenting) (discussing the reasons why the requirements for valid comparators at the prima facie stage for disparate discipline cases do not apply in the context of other types of claims).
In any event, the conduct alleged here is more akin to that in Walker than to the cases upon which the defendant relies. See Walker, 775 F.3d at 205 (recounting the alleged harasser's actions and comments such as calling the plaintiff “fresh meat” as well as grabbing his crotch and saying “these nuts are looking for you” or “I bet you could holler real loud, couldn't you” and making comments within Walker's hearing about her performing oral sex). Guided by Walker, the court is not prepared to say that the plaintiff's hostile work environment claim fails as a matter of law.
2. Federal and State Wage Claims
A contrary result is demanded as to the plaintiff's wage claims. The crux of her fourth and fifth causes of action includes the conclusory averments that “[t]he Defendant wrongfully withheld the Plaintiff's wages” and that she “accrued earned wages and overtime pay.” (See Compl. ¶¶ 42, 45, ECF No. 1-1 at 5-6.) These bare assertions do not quite hit the mark. See Hall v. DIRECTV, LLC, 846 F.3d 757, 777 (4th Cir. 2017) (adopting the more lenient pleading standard of the circuit split and holding that “to make out a plausible overtime claim, a plaintiff must provide sufficient factual allegations to support a reasonable inference that he or she worked more than forty hours in at least one workweek and that his or her employer failed to pay the requisite overtime premium for those overtime hours” and explaining how to meet this standard); S.C. Code §§ 41-10-40, -50, -80 (providing for a civil action when an employer fails to pay all wages due including wages due upon separation from employment).
RECOMMENDATION
The court recommends that the defendant's motion to dismiss be denied as to the plaintiff's Title VII claims and granted as to the wage claims (Fourth and Fifth Causes of Action). If this recommendation is adopted, the plaintiff should be granted leave to amend her complaint to cure the pleading deficiencies as to her wage claims.