Opinion
C. A. 2:22-cv-02790-BHH-MHC
09-27-2023
Briana Bethea, individually and on behalf of all similarly situated, Plaintiff, v. First-Citizens Bank & Trust Company, Jason Maurer, Eric Crain, and Reeves Skeen, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cheny, United States-Magistrate Judge
Plaintiff brings this employment discrimination action against her former employer Defendant First-Citizens Bank & Trust Company (the “Bank”), as well as three individual employees of the Bank. ECF No. 19.
Presently before the Court for disposition are two Motions to Dismiss: (1) a Motion filed by the Bank pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, ECF No. 21; and (2) a Motion filed by Defendants Jason Maurer, Eric Craine, and Reeves Skeen (“Individual Defendants”) pursuant to Rule 12(b)(6), ECF No. 22. Plaintiff filed Responses in Opposition to the Motions, ECF Nos. 27 & 28, and the Bank and the Individual Defendants filed Replies, ECF Nos. 29 & 30. The Motions are ripe for review.
Although the case caption of Plaintiff's Amended Complaint spells Eric Craine's last name without the “e,” Defendants have noted that the proper spelling contains the “e,” and Plaintiff spells the name with the “e” throughout the body of the Amended Complaint.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2) (D.S.C). As these Motions are dispositive, this Report and Recommendation is entered for review by the District Judge.
For the reasons set forth below, the undersigned finds that the Bank's Motion should be granted, and the Individual Defendants' Motion should be granted.
PLAINTIFF'S ALLEGATIONS
Accepting the truth of the allegations in Plaintiff's Amended Complaint and viewing all inferences in the light most favorable to Plaintiff, see E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011), the facts, for purposes of ruling on the Motions to Dismiss, are as follows.
Plaintiff is a Black female who worked at the Bank for over fourteen years. ECF No. 19 at ¶ 15. Plaintiff began working for the Bank immediately after high school in 2007 as a part-time teller at the Bank's branches in Dillon, Marlboro, and Marion Counties in South Carolina. Id. at ¶ 27. Plaintiff continued working as a teller at the Bank's Charleston County branches while she attended the College of Charleston from August 2007 to May 2012, and by 2012 she was a fulltime teller with the Bank. Id. After graduating college, Plaintiff worked for the Bank as a Floating Bank Teller (“Floater”), which meant that she floated from branch to branch, depending on the needs of the branches. Id. Over the course of her employment with the Bank, Plaintiff worked in at least twenty-one branch locations. Id. at ¶ 28.
A. Interactions with Bank Customers
Plaintiff alleges that the lack of Black or minority leadership creates disparate and racially hostile working conditions for Black and minority employees. Id. at ¶ 32. Plaintiff specifically alleges that the following interactions with Bank customers created racially hostile working conditions:
• Customer 1: After being asked for his identification, a white customer at the drive-through teller service handed Plaintiff his Concealed Weapons Permit and then pointed to his glovebox and asked Plaintiff if she knew what was in there in a threatening manner. Id. at ¶ 33. Plaintiff understood this to be a racially-motivated threat, as did the other Black tellers
in the window who witnessed this event, and they all feared this customer after this incident. Id. at ¶ 34. Plaintiff emailed Branch Manager Justin Welch and Branch Operations Manager Cara Earhart on November 12, 2020, to complain about the customer. Id. at ¶ 44. The customer's threat also was reported to Defendant Skeen and the Bank's Human Resources department, which “instructed Skeen to cancel the customer's bank account, but Skeen refused,” and the customer was permitted to continue banking at the Bank. Id. at ¶¶ 35-36. Plaintiff alleges that when a Black customer threatened Plaintiff in an earlier instance, Skeen canceled the customer's account immediately. Id. at ¶ 37.
• Customer 2: A different white Bank customer made numerous unwelcome comments to Black, minority, and female staff over nearly a decade, Id. at ¶ 39, including the following:
o The customer commented on a Black male employee's dreadlocks and called Plaintiff “fella,” stating that she “looked like that other fella over there” who, like Plaintiff, had dreadlocks. The customer also stated to the Black male employee that “if you're a fella, you should cut your hair.” Id. at ¶ 38.
o The customer came into the Bank with two bags of “cricket snacks” and told the Black female employees that they should eat them. Id. at ¶ 39.
o The customer told a Black female employee that Juneteenth, a day celebrating and commemorating Black citizens' emancipation from slavery, was “no big deal” and that only the Fourth of July should be celebrated. Id.
o The customer “singled out and harassed” Black Bank employees about not voting for Democrats because Democrats “had done nothing for them.” Id.
o The customer “singled out Hispanic and Latinx employees” to tell them President Trump's wall needed to be erected to keep Mexicans out of the country. Id.
Plaintiff and other employees complained about this customer's unwelcome conduct to Human Resources and Defendants Mauer, Craine, and Skeen, who then convened a conference call to discuss the customer. Id. at ¶ 41. A Human Resources representative told Defendant Mauer that he needed to have a conversation with the customer about his behavior and that if the behavior continued, the customer's account should be closed. Id. Plaintiff alleges that the customer's continuing hostile behavior “has been brought to Mauer's attention on multiple occasions since the conference call,” but Mauer has refused to remedy the situation or close the customer's account. Id. at ¶ 42. Plaintiff alleges that in the summer of 2016, she emailed Mauer to complain about the customer, and Mauer responded by banishing the customer to the drive thru. Id. at ¶ 44. Nonetheless, the customer continues to make comments and continues to come into the branch even after additional complaints by employees. Id.
• Customer 3: In August 2017, a white female employee told Plaintiff about a customer who came into the Folly Road branch making racist remarks about Black people. The employee complained to management, but after “nothing was done with regard to the customer's account,” the employee resigned. Id. at ¶ 44.
• Customer 4: On or around June 1, 2020, around the time of George Floyd's murder, Plaintiff was accused by a white female customer of not assisting her because she was in the company of a police officer, who was the customer's fiance. Id. Plaintiff asserts that there “was no basis to this complaint beside that Plaintiff is Black.” Id. Plaintiff alleges that she spoke with Mauer on June 3, 2020, about this incident and asked him to explain to the customer that Plaintiff was making calls as instructed by upper management at the time the customer came in, but Mauer refused to do so. Id.
Plaintiff alleges that despite complaints regarding the incidents described above, “Defendants took no remedial action to remedy the racially hostile work environment.” Id. at ¶ 45.
B. Employee Celebration at Mcleod Plantation
Plaintiff alleges that Defendants “showed their animus toward Black employees when they held a ‘celebration' for the Charleston-area employees at a former slave plantation, Mcleod Plantation on James Island and, curiously, failed to add Charleston-area Floaters, the majority of whom are Black and minorities, to the email invitation list.” Id. at ¶ 43.
C. Disparities in Pay and Advancement Opportunities
Plaintiff alleges that “Black, minority and female employees are denied advancement in their employment with the Bank at alarming rates compared to similarly situated white male Bank employees.” Id. at ¶ 46. She alleges, upon information and belief, that only about fifteen Bank employees in the Charleston area were men of color, that none of the approximately seventeen managers at South Carolina branches are Black, and that “white men drastically outnumber Black and minority women and men at the area-management level.” Id. at ¶¶ 30-31, 47.
Plaintiff generally alleges that she “and other Black female Bank employees were paid far less than white male Bank employees for equal work on jobs requiring equal skill, effort, and responsibility, which were performed under similar work conditions.” Id. at ¶ 48. She specifically alleges the following:
In each of her varying roles as a Teller, Floater, and Financial Services and Sales Representative, Plaintiff was paid at a lower hourly rate than white male Tellers, Floaters, and Financial Service & Sales Representatives, including but not limited
to being paid $15.50 per hour as a Senior Sales & Services Representative, while a white male with less tenure at the Bank told her he was being compensated at $17.00 an hour.Id. at ¶ 49. She alleges that several of her Black female coworkers expressed concerns regarding the pay disparity between Black and minority female employees and white male employees. Id. at ¶ 50. She alleges, upon information and belief, that Defendants Maurer, Craine, and Skeen were directly involved in the decision to pay Black and minority female employees less than their white counterparts. Id. at ¶ 52.
Plaintiff alleges that white employees were regularly moved laterally and promoted, often to positions that were not posted. Id. at ¶ 53. Specifically, she alleges that “[t]wo white males from within the Bank were promoted to Business Development Officers by Maurer, Craine, and Skeen without posting the positions”; that “White males from within the Bank were promoted to Financial Services Representative by Craine and Skeen at the Folly Road branch, Charleston Main branch, and West Ashley branch without posting the positions”; and that “White males from within the Bank were promoted to Financial Services Specialist at the Summerville Oakbrook branch by Mauer, without posting the positions.” Id. Plaintiff alleges that had she “or her Black, minority and/or female coworkers been aware of these open positions, they likely would have applied for same, but were never given the opportunity.” Id. at ¶ 54. She asserts that not posting these positions had the effect of “freezing out” qualified Black, minority, or female employees from higher-paying positions. Id. at ¶ 55.
Plaintiff alleges that she and other coworkers made numerous complaints to Human Resources, Maurer, Craine, and Skeen regarding disparities in wages and promotions, but no remedial action was taken. Id. at ¶ 57. She specifically alleges that after she complained to Human Resources in 2020 regarding the Bank's failure to promote her, a Human Resources representative stated that the Bank had “a problem with diversity.” Id. at ¶ 58.
LEGAL STANDARD
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to evaluate the complaint in its entirety, accept the factual allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. Kolon Indus., Inc., 637 F.3d at 440, 448. Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks omitted).
DISCUSSION
Plaintiff asserts three causes of action in her Amended Complaint, which she purports to bring on behalf of herself and all others similarly situated: (1) a claim against the Bank for violations of Title VII; (2) a claim against all Defendants for violations of 42 U.S.C. § 1981; and (3) a claim against all Defendants for violations of the Equal Pay Act, 29 U.S.C. § 206 et seq. ECF No. 19. Defendants seek dismissal of all claims. ECF Nos. 21 & 22.
I. Plaintiff's Title VII Claim Against the Bank Should Be Dismissed.
The Bank first moves to dismiss the Title VII claim, arguing that Plaintiff failed to exhaust her administrative remedies. ECF No. 21.
The Bank initially moved for dismissal under Rule 12(b)(1) for lack of jurisdiction. ECF No. 21. However, as the Bank concedes in its Reply, Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, and not jurisdictional. See Fort Bend County, Texas v. Davis, 139 S.Ct. 1843, 1851 (2019); see also ECF No. 29 at 8. Because the charge-filing requirement is still mandatory, the undersigned will analyze the Bank's exhaustion argument pursuant to Rule 12(b)(6) for failure to state a claim. See Li v. Shepherd Univ., No. 20-1967, 2022 WL 16919271, at *2 n.2 (4th Cir. Nov. 14, 2022); Gillaspie v. Spencer, No. CV 21900453DCNMHC, 2020 WL 12754388, at *1 n.3 (D.S.C. Aug. 17, 2020), report and recommendation adopted, No. 2:19-CV-0453 DCN MHC, 2020 WL 12754386 (D.S.C. Sept. 28, 2020).
Title VII prohibits an “employer [from] discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a), and it prohibits an “employer [from] discriminat[ing] against any of [its] employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter,” 42 U.S.C. § 2000e-3(a).
Before filing suit under Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC or, in a “deferral” jurisdiction such as South Carolina, with an appropriate state or local agency, within a specified time “after the alleged unlawful employment practice occurred.” 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1); see Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir. 1999) (affirming dismissal of plaintiff's Title VII claim for failure to exhaust administrative remedies).
Title VII establishes two possible limitation periods for filing a discrimination charge: “the basic limitations period is 180 days after the alleged unlawful employment practice but can be extended to 300 days in a deferral state if state law proscribes the alleged employment practice and the charge is first filed with a state deferral agency.” Gerald v. Olsten, No. 4:20-CV-2555-CMC-KDW, 2021 WL 1394669, at *2 (D.S.C. Feb. 9, 2021) (citation and internal quotation marks omitted), report and recommendation adopted, No. 4:20-CV-2555-CMC, 2021 WL 960509 (D.S.C. Mar. 15, 2021).
One of the primary purposes behind the exhaustion of administrative remedies requirement is to give notice to an employer of the plaintiff's allegations. Notably, the Fourth Circuit has emphasized the importance of notice:
Congress intended the exhaustion requirement to serve the primary purpose of notice and conciliation. First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory action. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning. Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted).
Courts have interpreted this exhaustion requirement to mean that each discrete incident of discriminatory treatment must be administratively exhausted. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (stating that subsequent civil suit “may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge”) (internal quotation marks omitted). Courts have routinely enforced this exhaustion requirement on the rationale that “[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge as surely as would a failure to file a timely EEOC charge.” O'Rourke v. Cont'l Cas. Co., 983 F.2d 94, 97 (7th Cir. 1993) (citation and internal quotation marks omitted).
The Fourth Circuit has made it clear that “only those discrimination claims stated in an administrative charge, those reasonably related to the original charge, and those developed by reasonable investigation of the original charge, may be maintained in a subsequent lawsuit. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).
A. Plaintiff's Allegations
1. The Allegations in the Charge of Discrimination
On April 7, 2022, Plaintiff filed a Charge of Discrimination (“Charge”) with the EEOC against the Bank. ECF No. 21-1 at 2. In her Charge, Plaintiff stated that the earliest date discrimination took place was November 1, 2021, and the latest date was January 28, 2022. Id. She indicated that her Charge was for discrimination based on race, and she did not identify any other bases for her charge. Id. She further averred as follows:
In evaluating the Amended Complaint in its entirety, the Court may consider the Charge, which is a document that “was integral to and explicitly relied on in the complaint.” See Kolon Indus., Inc., 637 F.3d at 440; see also ECF No. 19 at ¶ 8.
I. I began my employment in June 2007, with the above-named Respondent. My last held position was Sr. Sales & Services Representative. In November 2021, I expressed my interest to Reeves Skeen (w/m), Area Executive, in a Community Reinvestment Act Officer position. I also told him I believe African-American clients in the area are inadequately represented because of the lack of diversity among employees. Near this
same time similarly situated employees outside of my protected class were invited to have head shot photos taken, and attend a meeting/training. I was not invited for a photo or the meeting/training. In December 2021, I applied for two different Treasury Sales/Support positions. I was not selected for either position. I complained to Lauren Wright, Human Resource Representative, about being passed over for available positions to which I applied, as well as the internal restructuring of staff. I resigned from my position on January 28, 2022.
II. Mr. Skeen told me the Community Reinvestment Act Officer position would not be filled because it was not needed. He also told me staff needs to do a better job of being out in the community. No other reason has been given for the above-described actions.
III. I believe that I have been discriminated against because of my race, African-American, in violation of Title VII of the Civil Rights Act of 1964, as amended.Id.
2. The Allegations in the Amended Complaint's Title VII Claim
In the Amended Complaint's First Cause of Action for violations of Title VII, which Plaintiff purports to bring on behalf of herself and a Race Class and a Gender Class, Plaintiff alleges the following:
By the actions described above, among others, First Citizens has discriminated against Plaintiff and the members of the Race and Gender Classes on the basis of their race and/or color, and gender, in violation of Title VII by denying them the same terms and conditions of employment available to employees who are white and/or male, including, but not limited to, [1] permitting a racially hostile work environment that is continuing in nature, wherein Bank customers have been permitted to threaten and harass Black and minority Bank employees for over a decade; [2] failing to pay these employees commensurate with their similarly-situated white male coworkers; [3] failing to promote or to access applications for higher-paying job openings; [4] disparate working conditions; and [5] denying them terms and conditions of employment equal to that of employees who are white and/or male.ECF No. 19 at ¶ 118.
B. Plaintiff Failed to Exhaust Her Remedies for Any Title VII Claim Based on Sex.
In its Motion, the Bank argues that Plaintiff's Charge does not contain any allegation of sex discrimination, such that Plaintiff has not exhausted her administrative remedies as to any Title VII claim based on sex. ECF No. 21-3 at 11, 15. The undersigned agrees.
Plaintiff's EEOC Charge does not mention sex discrimination. Rather, in the box titled “DISCRIMINATION BASED ON,” Plaintiff included only “Race.” ECF No. 21-1 at 2. Further, Plaintiff's narrative states only that she believed she had been “discriminated against because of my race, African-American.” Id. In this instance, Plaintiff clearly limited the allegations in her Charge to race discrimination and omitted any reference to sex discrimination. Because Plaintiff's Title VII claim based on sex was not stated in the administrative charge, is not reasonably related to the original charge, and could not reasonably be expected to be developed by reasonable investigation of the original charge, any Title VII claim based on sex discrimination should be dismissed. See Evans, 80 F.3d at 963 (upholding dismissal of harassment and age discrimination claims where plaintiff's EEOC charge related solely to failure to promote because of sex); see also Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (affirming dismissal because “[a]dministrative investigation of retaliation, and color and sex discrimination, however, could not reasonably be expected to occur in light of Bryant's sole charge of race discrimination”).
C. Plaintiff Failed to Exhaust Her Remedies for Any Title VII Claim Based on Hostile Work Environment or Disparate Pay.
The undersigned also agrees with the Bank that Plaintiff failed to exhaust her administrative remedies for any Title VII claim based on a hostile work environment or disparate pay. Plaintiff's EEOC Charge does not mention a hostile work environment, or the customer hostilities alleged in the Amended Complaint. See ECF No. 21-1 at 2. Notably, Plaintiff's EEOC Charge specifically states that the “earliest” date the alleged discrimination took place was November 1, 2021, whereas every enumerated act of customer hostility alleged in the Amended Complaint occurred in 2020 or before. Compare Id. with ECF No. 19 at ¶¶ 33, 34, 44. Likewise, there is no mention of salary or disparate pay anywhere in the EEOC Charge. See ECF No. 21-1 at 2.
Although courts are to construe charges of discrimination liberally, courts are “not at liberty to read into administrative charges allegations they do not contain.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th Cir. 2013). Plaintiff's Charge omits reference to hostile work environment and disparate pay or to the facts she now alleges in support of these Title VII claims, such that these claims are not reasonably related to the original charge nor reasonably expected to be developed by reasonable investigation of the original charge. Therefore, the undersigned concludes that Plaintiff failed to administratively exhaust her hostile work environment and disparate pay claims, such that they are procedurally barred. See Evans, 80 F.3d at 963.
D. Plaintiff Failed to Exhaust Her Remedies for the Failure to Promote Claim Alleged in the Amended Complaint.
Finally, the Bank argues that while Plaintiff's Charge asserts discriminatory failure to promote, the basis for this claim is not factually similar to the one alleged in the Amended Complaint, such that Plaintiff failed to exhaust her administrative remedies for the pled claim. Upon review, the undersigned agrees.
Typically, “a plaintiff fails to exhaust [her] administrative remedies where . . . [her] administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in [her] formal suit.” Sydnor v. Fairfax County, 681 F.3d 591, 593 (4th Cir. 2012) (omission in original) (quoting Chacko, 429 F.3d at 506). “[W]hen the claims in her court complaint are broader than the allegation of a discrete act or acts in the administrative charge, they are procedurally barred.” Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 306 (4th Cir. 2019) (citation and internal quotation marks omitted). In Parker, the Fourth Circuit affirmed dismissal of a discriminatory termination claim where the plaintiff's charge of discrimination “asserted sex-based termination based on . . . facts relating to [a] rumor and the conduct that followed from it,” while her court complaint alleged discriminatory sex-based termination based on “disparate enforcement of [the employer's] three-strikes policy.” Id. The Fourth Circuit found that because the court complaint “allege[d] a broader pattern of misconduct than [was] stated in the administrative charging document,” the employer “was not afforded ample notice of the allegations against it,” such that the discriminatory termination claim was properly dismissed. Id. (internal quotation marks omitted) (citing Sydnor, 681 F.3d at 595).
Here, Plaintiff's Charge specifically and narrowly states that Plaintiff “applied for two different Treasury Sales/Support positions” and “was not selected for either position” because of her race. ECF No. 21-1 at 2. Moreover, the Charge limits the timeframe of these alleged discriminatory acts to the three-month period between November 2021 and January 2022. By contrast, Plaintiff's Amended Complaint does not mention any “Treasury Sales/Support positions” or her applications for those positions. Instead, the Amended Complaint's allegations assert a much broader claim that Bank managers perpetrated a scheme to systematically prevent Black women from discovering the availability of (and therefore applying for) open positions by refusing to post them. ECF No. 19 at ¶¶ 46-53. The undersigned agrees with the Bank that the allegations in the Charge would not have afforded the Bank ample notice of the allegations alleged against it in the Amended Complaint. Moreover, the undersigned is not persuaded that the new allegations of a widespread scheme not to post positions so as to prevent Black women from applying for the positions are reasonably related to the original Charge's allegations that Plaintiff applied for two posted positions, nor would this new claim reasonably be expected to be developed by reasonable investigation of the original charge. Accordingly, the undersigned recommends that Plaintiff's Title VII claim be dismissed for failure to exhaust.
Unlike the sex discrimination claim, the hostile work environment claim, or the disparate pay claim, Plaintiff may be able to cure her failure to promote claim by amending the Amended Complaint to allege facts conforming to her EEOC Charge. Accordingly, the undersigned recommends that dismissal of the failure to promote claim be without prejudice.
II. Plaintiff's § 1981 Claim
The Bank and the Individual Defendants all move to dismiss Plaintiff's Second Cause of Action, a claim for violation of 42 U.S.C. § 1981. See ECF Nos. 21, 22.
“Section 1981 guarantees to all persons in the United States ‘the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.'” Spriggs v. Diamond Auto. Glass, 165 F.3d 1015, 1017 (4th Cir. 1999) (quoting 42 U.S.C. § 1981(a)). Section 1981 defines “make and enforce contracts” as including the “making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
To succeed on a § 1981 claim, “a plaintiff must ultimately establish both that the defendant intended to discriminate on the basis of race, and that the discrimination interfered with a contractual interest.” Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir. 2006). A plaintiff must also show that the interference with a contractual interest would not have happened but for the plaintiff's race. Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020). “Thus, to survive a motion to dismiss, a plaintiff must allege facts that, if accepted as true, allow the court to draw a reasonable inference as to those legal requirements.” Nadendla v. WakeMed, 24 F.4th 299, 305-06 (4th Cir. 2022); see Comcast Corp., 140 S.Ct. at 1019 (“To prevail, a plaintiff must initially plead and ultimately prove that, but for race, [the plaintiff] would not have suffered the loss of a legally protected right.”) (emphasis added).
Plaintiff's Amended Complaint asserts a claim, purportedly on behalf of Plaintiff and the members of the Race Class, against all Defendants for violation of 42 U.S.C. § 1981. ECF No. 19 at 28-29. Specifically, Plaintiff alleges the following:
By the actions described in this Complaint, among others, Defendants have discriminated against Plaintiff and the members of the Race Class on the basis of their race and/or color in violation of Section 1981 by denying them the same terms and conditions of employment available to employees who are white, including, but not limited to [1] permitting a racially hostile work environment that is continuing in nature, wherein Bank customers have been permitted to threaten and harass Black and minority Bank employees for over a decade; [2] subjecting these employees to disparate working conditions and [3] denying them terms and conditions of employment equal to that of employees who are white.Id. at ¶ 123. For the reasons that follow, the undersigned finds that Plaintiff has failed to allege a viable claim under § 1981.
A. Plaintiff Failed to State a Hostile Work Environment Claim Under § 1981.
A plaintiff may pursue a hostile work environment claim under § 1981. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc); see also Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 172 (4th Cir. 2020), as amended (Oct. 16, 2020). A hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation and quotation marks omitted). To state a hostile work environment claim under § 1981, a plaintiff must allege that “there is (1) unwelcome conduct; (2) that is based on the plaintiff's [race]; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Ali, 832 Fed.Appx. at 172 (alteration in original) (quoting Guessous v. Fairview Property Investments, LLC, 828 F.3d 208, 221 (4th Cir. 2016)).
Defendants argue that Plaintiff has failed to plead facts sufficient to establish that (1) the alleged incidents were severe and pervasive; (2) the alleged hostile customer behavior can be imputed to Defendants; and (3) Defendants would have responded to her complaints differently if she were white. ECF No. 21-3 at 25.
1. Severe and Pervasive Element
“Element three of a hostile work environment claim requires a showing that ‘the environment would reasonably be perceived, and is perceived, as hostile or abusive'; the plaintiff may, but is not required to, establish that the environment is ‘psychologically injurious.'” Boyer-Liberto, 786 F.3d at 277-78 (quoting Harris, 510 U.S. at 22). “Whether the environment is objectively hostile or abusive is ‘judged from the perspective of a reasonable person in the plaintiff's position.'” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). “That determination is made ‘by looking at all the circumstances,' which ‘may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'” Id. (quoting Harris, 510 U.S. at 23). “It is not, and by its nature cannot be, a mathematically precise test.” Id. (internal quotation marks omitted). “A hostile work environment claim is actionable if it establishes one that is ‘hellish,' not one where the occasional vulgar banter or language with sexual innuendo may be heard.” McLaughlin v. CSX Transportation, Inc., 211 F.Supp.3d 770, 787 (D.S.C. 2016).
In Carroll v. United Parcel Serv., Inc., No. 1:17-cv-03108-DCC-JDA, 2018 WL 4126450, at *4 (D.S.C. Mar. 15, 2018), report and recommendation adopted, 2018 WL 4111017 (D.S.C. Aug. 29, 2018), the plaintiff brought a §1981 hostile work environment claim. In support of that claim, the plaintiff alleged that over a three-year period, her supervisor twice removed her from her position and suspended her; another supervisor lunged at her; another employee threw a package at the plaintiff and later assaulted the plaintiff causing the plaintiff to file a police report; and the defendant gave the plaintiff a warning letter and eventually terminated her. Id. The court granted the defendant's motion to dismiss the § 1981 hostile work environment claim, finding that the plaintiff's allegations failed to meet the severe and pervasive standard because the complaint, “at best, allege[d] sporadic rude treatment by coworkers, callous behavior by supervisors, or a difference of opinion/personality conflict.” Id. at *4 & n.5.
In the Amended Complaint, Plaintiff alleges facts concerning seven or eight isolated incidents involving four customers during Plaintiff's fourteen-year tenure at the Bank. None of these customers are alleged to have used racial slurs. The alleged threat from Customer 1 was implied; he never brandished a weapon, and Plaintiff has not pled any facts to suggest that the incident was based on her race (as opposed to her sex or some other reason), other than her “understanding,” which is described in a conclusory fashion. See ECF No. 19 at ¶¶ 33-34. Similarly, the alleged incident with Customer 3 includes a single comment to which Plaintiff took offense, and Plaintiff had to infer a racial intent because the customer is not alleged to have said anything overt. Id. at ¶ 44. Plaintiff did not witness the alleged incident with Customer 4, which occurred in August 2017, and she has not pled any facts describing the “racist remarks about Black people” that the customer allegedly made. See id.
Customer 2 is the only customer alleged to have engaged in repeated conduct, which Plaintiff alleges occurred over a ten-year period, but only one of the alleged incidents involved Plaintiff, which she complained about in 2016. Id. at ¶¶ 38-44. There are no allegations that the customer uttered a racial epithet, and Plaintiff acknowledges that the Bank investigated this customer and that her manager banished him to the drive-through window. See Id. Although Plaintiff alleges, in conclusory fashion, that Customer 2 “continues to make comments and continues to come into the branch even after additional complaints by employees,” she does not allege any facts to support an inference that the comments are offensive or heard by Plaintiff, or that Plaintiff has had any further interaction with, or made any additional complaints about, this customer since 2016.
Viewed in the light most favorable to Plaintiff, the undersigned concludes that her factual allegations are not sufficient to meet the severe and pervasive standard. Plaintiff's “allegations, at best, allege sporadic rude treatment by [customers].” Carroll, 2018 WL 4126450, at *4. Because the isolated incidents alleged in the Amended Complaint do not meet the severe and pervasive standard, dismissal of the § 1981 hostile work environment claim is warranted. Id.; see also Hamada v. Boeing Co., No. 2:19-2777-DCN-BM, 2020 WL 2559806, at *6-7 (D.S.C. Mar. 30, 2020), report and recommendation adopted, 2020 WL 2557029 (D.S.C. May 20, 2020) (dismissing § 1981 hostile work environment claim based on allegations that the defendant “accused [the plaintiff] of being a terrorist threat and [the plaintiff] was terminated by [the defendant]” as not sufficient to meet the severe and pervasive standard).
2. Imputable to Defendants
Defendants also argue that Plaintiff failed to plead facts sufficient to establish that the customers' conduct was imputable to any of the Defendants. The undersigned agrees.
a. The Bank
“The status of the harasser . . . is relevant to element four of a hostile work environment claim, which necessitates proof that the harassment is imputable to the employer.” Boyer-Liberto, 786 F.3d at 278. If a supervisor perpetrates the harassment and it culminates in a tangible employment action, then “the employer is strictly liable.” Id. (citing Vance v. Ball State Univ., 133 S.Ct. 2434, 2439 (2013)). However, “[i]f the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions.” Id. (citing Vance, 133 S.Ct. at 2439, and Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (en banc)). Harassment by customers is subject to the same negligence rule as harassment by coworkers. Thus, if the Bank knows or should have known about customer harassment, § 1981 requires the Bank to respond with remedial action reasonably calculated to end the harassment. See Pryor v. United Air Lines, Inc., 791 F.3d 488, 498 (4th Cir. 2015) (citing EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008), Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014), and EEOC v. Xerxes Corp., 639 F.3d 658, 669 (4th Cir. 2011)).
Here, Plaintiff does not allege that Customers 1, 3, and 4 ever repeated their behavior, and there are no facts from which to infer that any additional remedial action was necessary. Furthermore, since the customers were alleged to be acting poorly for the first time, there would be no basis to anticipate their behavior, and no reasonable way for the Bank to control it. See Swiderski v. Urb. Outfitters, Inc., No. 14-CV-6307 (JPO), 2017 WL 6502221, at *9 (S.D.N.Y. Dec. 18, 2017) (explaining that “generally, an employer is not liable for failing to prevent an act of harassment by a first-time customer”). Although Customer 2 is alleged to have engaged in repeat conduct, Plaintiff alleges that after she made her only complaint in 2016, her manager discussed the matter with HR and then restricted Customer 2 to the drive-through window. ECF No. 19 at ¶¶ 38, 39. 44. Plaintiff does not allege that she had any further interactions with Customer 2 or made any further complaints about him. Therefore, the undersigned concludes that Plaintiff has failed to allege sufficient facts to establish that any of the customers' conduct is imputable to the Bank. See Addison v. CMH Homes, Inc., 47 F.Supp.3d 404, 425-26 (D.S.C. 2014) (finding, upon a motion for summary judgment, that where the evidence showed “that [the plaintiff's manager] took corrective measures by discussing the issue with [the hostile coworker] on the one occasion when her use of [racist slurs] was reported to him,” the plaintiff failed to establish that the coworker's conduct was imputable to the employer).
b. The Individual Defendants
“To make out a claim for individual liability under § 1981, a plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory action, and the claim must be predicated on the actor's personal involvement.” Hawthorne v. Virginia State Univ., 568 Fed.Appx. 203, 204-05 (4th Cir. 2014) (citation and internal quotation marks omitted). Courts routinely hold that the failure to prevent harassment is insufficient to demonstrate the personal involvement necessary for individual liability under § 1981. See e.g., Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (holding that negligence in maintaining an antidiscrimination policy “does not constitute the ‘personal involvement' or ‘affirmative link' necessary to support a claim of individual liability” under § 1981); Malone v. Mr. Glass Doors & Windows Mfg., LLC, 2022 WL 3159876, at *12 (S.D. Fla. July 15, 2022) (“The fact that [the company president] may have been aware of the alleged disparate treatment, without more, is insufficient to establish his personal involvement in such conduct or mistreatment.”), report and recommendation adopted, 2022 WL 3154198 (S.D. Fla. Aug. 8, 2022); Moore v. Shands Jacksonville Med. Ctr., Inc., 2011 WL 13157372, at *6 (M.D. Fla. Oct. 14, 2011) (collecting cases and finding that a manager's knowledge of “the alleged discriminatory conduct of others is insufficient to establish [the manager's] personal involvement in such conduct”); Kohn v. Lemmon Co., 1998 WL 67540, at *7 (E.D. Pa. Feb. 18, 1998) (dismissing § 1981 hostile work environment claim, stating “supervisor's failure to prevent or remedy harassment is not an affirmative link making the supervisor personally liable”).
There are no allegations that the Individual Defendants themselves engaged in any conduct contributing to or creating a hostile work environment. See generally ECF No. 19. Accordingly, Plaintiff's allegations that she and others complained about mistreatment to the Individual Defendants, and that they did not adequately respond, cannot, as a matter of law, give rise to a § 1981 claim against the Individual Defendants.
3. But-For Causation
Finally, Defendants contend that Plaintiff's § 1981 claim should be dismissed because she has not plausibly alleged but-for causation, i.e., that she would have been treated any differently if she were white. The undersigned agrees.
Plaintiff has not alleged any facts from which the Court could infer that the Bank treats complaints of white employees concerning customers any differently from the complaints of Black employees. To the contrary, Plaintiff expressly alleges that when a white employee complained about an allegedly racist customer, “nothing was done with regard to the customer's account.” ECF No. 19 at ¶ 44. Plaintiff has not alleged any facts from which the Court could infer how the Bank handles customers who make obnoxious comments that have nothing to do with race. Moreover, Plaintiff has not plausibly alleged any facts supporting an inference that the Bank made any decision because of her race.
It is not enough for Plaintiff to allege that Defendants' decisions had a disparate impact on Plaintiff or other Black employees, because “disparate impact race-based claims[] are not cognizable under § 1981.” See Evans v. Prince George's Cmty. Television, Inc., Civ. Act. No. 8: 19-CV-03529-PX, 2021 WL 3037445, at *2 n.2 (D. Md. July 19, 2021), aff'd, No. 21-1933, 2022 WL 1644640 (4th Cir. May 24, 2022); see also Resendiz v. Exxon Mobil Corp., 72 F.4th 623, 2023 WL 4410524, at *5 n.6 (4th Cir. July 10, 2023) (affirming dismissal of § 1981 claim and explaining that “[d]isparate impact alone is not enough to prove intent”). Because Plaintiff has not pled any facts tending to suggest that Defendants tolerated obnoxious customer behavior “because of” Plaintiff's race, dismissal of her hostile work environment claim is appropriate. See Carroll, 2018 WL 4126450, at *3 (finding dismissal of § 1981 claim appropriate because “Plaintiff's Complaint contains only general and conclusory allegations that the complained-of treatment was because of her race”).
B. Plaintiff Failed to State a Disparate Treatment Claim Under § 1981.
Plaintiff also alleges that Defendants violated § 1981 by subjecting her to disparate working conditions and denying her terms and conditions of employment equal to that of employees who are white. ECF No. 19 at ¶ 123. It is unclear from Plaintiff's conclusory allegations what the factual basis for the alleged disparate working conditions and denied terms and conditions might be. Notably, unlike Plaintiff's Title VII claim, the Amended Complaint does not allege that Defendants violated § 1981 by failing to provide equal pay, or by failing to promote Black employees on an equal basis with their “white” counterparts. Compare Id. at ¶ 118 to Id. at ¶ 123. For the reasons stated below, and upon review of the entire Amended Complaint, the undersigned agrees with Defendants that Plaintiff has failed to state a claim for disparate treatment under § 1981.
1. Event at McLeod Plantation
Plaintiff alleges the Bank demonstrated “animus toward Black employees when [it] held a ‘celebration' for the Charleston-area employees at a former slave plantation, Mcleod Plantation [sic] on James Island and, curiously, failed to add Charleston-area Floaters, the majority of whom are Black and minorities, to the email invitation list.” Id. at ¶ 43. The undersigned agrees with the Bank that this allegation is insufficient to state a § 1981 claim.
First, Plaintiff's allegation of racial animus is conclusory, and she has not alleged any facts to support it. There are no facts alleged to support an inference that the decision to choose the location was due to hostility to Black employees. Second, the alleged facts do not support an inference that Plaintiff was not invited because she was Black. Plaintiff alleges that the Bank's decision not to invite Charleston-area Floaters is evidence of racial animus because “the majority of” the Floaters “are Black and minorities.” Notably, however, Plaintiff does not allege that the white Floaters were invited while the minority Floaters were excluded. Rather, she alleges that the decision to exclude all Floaters had a disparate impact on Black employees. But because § 1981 requires but-for causation, it does not support disparate impact claims. Comcast Corp., 140 S.Ct. at 1019; Resendiz, 2023 WL 4410524, at *5 n.6; Evans, 2021 WL 3037445, at *2 n.2; Taylor v. Millenium Corp., Civ. Act. No. 1: 15cv1046, 2016 WL 927185, at *8 (E.D. Va. Mar. 4, 2016) (explaining that “a disparate impact claim is not viable under § 1981”). Thus, Plaintiff fails to allege but-for causation concerning the McLeod Plantation incident, such that it cannot support a claim for violation of § 1981.
2. Disparities in Pay and Promotional Opportunities
Unlike the Title VII claim, Plaintiff's § 1981 claim did not allege discrimination based on pay disparity or failure to promote. Nonetheless, Defendants argue that even if she had, such claim would fail. Upon review, the undersigned agrees.
First, because Plaintiff explicitly alleged that the pay disparity and failure to promote were the results of both race discrimination and sex discrimination, see ECF No. 19 at ¶¶ 87-116, 118- 121, 128-135, Plaintiff has not alleged that race was the “but for” cause of these actions, as required to state a § 1981 claim. See McKenzie-El v. Am. Sugar Ref., Inc., No. 21-1089, 2021 WL 5412341, at *2 (4th Cir. Nov. 19, 2021) (per curium) (holding that where a plaintiff “explicitly pled that his age, religion, and complaints to human resources were causes of his employer's actions,” dismissal of a § 1981 claim for failure to allege “but for” causation was appropriate); see also Arora v. Nav Consulting Inc., No. 21 C 4443, 2022 WL 7426211, at *3 (N.D.Ill. Oct. 13, 2022) (dismissing 1981 claim where the “complaint does not explain which alleged employment actions were motivated by race-based animus (versus ethnicity or national origin)” and the complaint “does not plausibly suggest that [the plaintiff's] Asian race (rather than his Indian ethnicity, national origin, or status as a recent immigrant) caused Defendants' actions, much less constituted the ‘but for' cause”); Postell v. Fallsburg Libr., No. 20-CV-03991 (NSR), 2022 WL 1092857, at *9 (S.D.N.Y. Apr. 8, 2022) (finding that plaintiff's “bundle[d]” allegations of “race, gender, or age” precluded but-for finding under Section 1981).
Second, as to the Individual Defendants, Plaintiff fails to plead facts sufficient to establish individual liability under § 1981 for the alleged disparate pay and promotional opportunities. Plaintiff's allegations concerning the Individual Defendants' involvement in the decision to pay her less are conclusory and lack factual details regarding any particular decision. See Nadendla, 24 F.4th at 306 (affirming dismissal of a § 1981 claim where the plaintiff, a physician who sued a hospital that revoked her clinical privileges, made conclusory allegations that the defendant “denied other physicians of Indian descent clinical privileges before or had a different peer review process for white physicians,” concluding that “[w]ithout factual detail, [the court was] unable to infer that [the defendant] intended to interfere with a contractual interest of [the plaintiff] on the basis of race.”); Francis v. Giacomelli, 588 F.3d 186, 195-96 (4th Cir. 2009) (finding allegations that the plaintiffs were African-American males, that defendants were all white males, and that defendants had never undertaken the action of terminating the employment of white employees to be “conclusory and insufficient to state a § 1981 claim” because they were “nothing more than the sort of unadorned allegations of wrongdoing to which Twombly and Iqbal are directed”).
Similarly, Plaintiff supports her failure to promote claim with conclusory allegations, which are insufficient to state a claim under § 1981. She alleges that the Individual Defendants promoted white males without posting the positions for applications. ECF No. 19 at ¶¶ 53, 56. She does not, however, specifically identify the individuals selected or allege she was not allowed to apply for these positions due to her race, let alone that her race was the but-for cause for the decision not to promote her. Nor does she allege that she was qualified for the positions. Without more, her allegations that the Individual Defendants “did not [allow] her [to apply] because its decision makers were biased is simply too conclusory.” McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 586 (4th Cir. 2015) (“While the allegation that nonBlack decisionmakers hired non-Black applicants instead of the plaintiff is consistent with discrimination, it does not alone support a reasonable inference that the decisionmakers were motivated by bias.”) (emphasis in original). Thus, Plaintiff's conclusory allegations are insufficient to state a claim of individual liability for failure to promote under § 1981. See Ali, 832 Fed.Appx. at 171 (finding plaintiff's allegations “that she applied for the position of structural engineer, that she was qualified for the position, and that someone of a different race was selected for the position . . . are insufficient to support a plausible race-discrimination claim [under § 1981].”
For all the foregoing reasons, the undersigned recommends that Plaintiff's § 1981 claim be dismissed in its entirety.
III. Plaintiff's Equal Pay Act Claim
Plaintiff's Amended Complaint asserts a claim, purportedly on behalf of Plaintiff and “the EPA Collective Members,” against all Defendants for violation of the Equal Pay Act. ECF No. 19 at 29-30. The Bank and the Individual Defendants move, pursuant to Rule 12(b)(6), for dismissal of this cause of action.
The Equal Pay Act forbids employers from:
[d]iscriminat[ing] . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex ....29 U.S.C. § 206(d)(1).
To state a claim for relief under the Act, Plaintiff must plead facts showing the following: (1) the employer paid higher wages to an employee of the opposite sex who (2) performed equal work on jobs requiring equal skill, effort, and responsibility (3) under similar working conditions. see Hinton v. Virginia Union Univ., 185 F.Supp.3d 807, 841-42 (E.D. Va. 2016); see also Spencer v. Virginia State Univ., 919 F.3d 199, 203 (4th Cir. 2019), as amended (Mar. 26, 2019) (citing EEOC v. Maryland Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018); Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). As part of establishing a prima facie violation of the Equal Pay Act, a plaintiff “must identify a particular male ‘comparator' for purposes of the [claim], and may not compare herself to a hypothetical or ‘composite' male.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 948 (4th Cir. 1995) (quoting Houck v. Va. Polytechnic Institute & State Univ., 10 F.3d 204, 206 (4th Cir. 1993)). Equality under the Act requires a “comparator to have performed work ‘virtually identical' (or the apparent synonym, ‘substantially equal') to the plaintiff's in skill, effort, and responsibility.” Spencer, 919 F.3d at 203. “In alleging this necessary equality, a plaintiff may not rely on broad generalizations at a high level of abstraction.” Id. at 204 (citing Wheatley v. Wicomico Cnty., Maryland, 390 F.3d 328, 332 (4th Cir. 2004)).
In their respective Motions, the Bank and the Individual Defendants argue that Plaintiff's Equal Pay Act claim should be dismissed because she fails to plead facts sufficient to identify a plausible male comparator and makes only conclusory allegations that males were paid more than she was for engaging in work of equal skill, effort, and responsibility. ECF Nos. 21-3 at 26; 22 at 1. Upon review, the undersigned is constrained to agree.
In her Amended Complaint, Plaintiff alleges that “Plaintiff and other Black female Bank employees were paid far less than white male Bank employees for equal work on jobs requiring equal skill, effort, and responsibility, which were performed under similar work conditions.” ECF No. 19 at ¶ 48. This allegation merely recites the elements of the cause of action, which, without specific facts supporting those elements, do not state a plausible claim for relief. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
Plaintiff's specific factual allegations in support of her Equal Pay Act are limited to the following:
In each of her varying roles as a Teller, Floater, and Financial Services and Sales Representative, Plaintiff was paid at a lower hourly rate than white male Tellers, Floaters, and Financial Service & Sales Representatives, including but not limited to being paid $15.50 per hour as a Senior Sales & Services Representative, while a white male with less tenure at the Bank told her he was being compensated at $17.00 an hour.ECF No. 19 at ¶ 49. Plaintiff does not allege any facts regarding the Bank location where this “white male with less tenure” worked, his job duties, his working conditions, his skills, or his responsibilities in the position.
A claim is “plausible” when the plaintiff pleads facts sufficient to allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Twombly, 550 U.S. at 556. The court should grant a motion to dismiss, however, where the allegations are nothing more than legal conclusions or recitations of the elements, or where they permit a court to infer no more than a possibility of misconduct. Iqbal, 556 U.S. at 678-79.
Here, Plaintiff's conclusory allegations of largely unidentified comparators with no factual details as to their working conditions or the skill, effort, and responsibilities of the employees is not sufficient to permit a reasonable inference that Defendants are liable for an Equal Pay Act violation. See Bailey v. S.C. Dep't of Corr., No. CV 3:17-3500-TLW-KDW, 2018 WL 2144548, at *7 (D.S.C. Feb. 23, 2018) (finding plaintiff's conclusory allegations that she and her male counterparts had the same job title but the males had higher starting salaries even though plaintiff “did work of equal or greater skill, effort, and responsibility” insufficient to state an Equal Pay Act claim), report and recommendation adopted sub nom. Bailey v. S.C. Dep't of Corr., No. 3:17-CV-3500-TLW-KDW, 2018 WL 2135168 (D.S.C. May 9, 2018); Noel-Batiste v. Virginia State Univ., No. 3:12CV00826-HEH, 2013 WL 499342, at *6 (E.D. Va. Feb. 7, 2013) (finding that plaintiff failed to allege an Equal Pay Act violation where plaintiff failed to plead facts sufficient to show that the skills, effort, and responsibilities required of plaintiff and the male comparators were substantially equal); see also Wheatley, 390 F.3d at 332 (declining to accept the argument “that employees with the same titles and only the most general similar responsibilities must be considered ‘equal' under the [Equal Pay Act]”). Accordingly, the undersigned recommends that Plaintiff's Equal Pay Act claim be dismissed.
See also Arafat v. Sch. Bd. of Broward Cty., 549 Fed.Appx. 872, 875 (11th Cir. 2013) (affirming district court's dismissal of Equal Pay Act claim where plaintiff “did not plead the facts comparing her skill, effort, and responsibility levels to those younger males who were allegedly paid more than her”); Boudreaux v. Stranco Field Servs., LLC, No. CV 18-5569, 2019 WL 2142045, at *7 (E.D. La. May 16, 2019) (dismissing Equal Pay Act claim where plaintiff identified two potential male comparators but “allege[d] nothing about the skill, effort, or responsibility required by the performance of either's position - in fact, making no reference at all to what position” the comparators held “and ma[de] bare mention of that required by her own”); Shafer v. Young Auto. Grp., Inc., No. 117CV00160JNPEJF, 2018 WL 4688342, at *2 (D. Utah Sept. 28, 2018) (dismissing claim where complaint did not state what the “similar job duties” were between plaintiff and comparator, specify the conditions under which they were performed, or identify the “equal duties and responsibilities”); Muldrew v. Joseph McCormick Const. Co., No. CIV.A. 1427, 2014 WL 3890336, at *7 (W.D. Pa. Aug. 8, 2014) (dismissing Equal Pay claim where the plaintiff's allegations constituted only “a handful of vague and conclusory statements similar to the following: The Plaintiff will show that the Defendant paid her less than it paid her male coworkers who performed jobs which required the same skill, effort and responsibility and were ”
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that the Bank's Motion to Dismiss (ECF No. 21) be GRANTED and that the Individual Defendants' Motion to Dismiss (ECF No. 22) be GRANTED.
IT IS SO RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).