Opinion
C. A. 21-1913-JMC-SVH
09-30-2021
Albert Cobb and Stanley Leon Foster, on behalf of themselves and all others similarly situated, Plaintiffs, v. Arc Energy Services, Inc., Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this employment discrimination case, two employees bring individual and class action claims against their employer, alleging primarily that it refused to hire and/or rehire qualified black employees for available assignments. The employer asks the court to dismiss the complaint and strike the class allegations, arguing all claims are legally insufficient and/or barred.
Albert Cobb (“Cobb”) and Stanley Leon Foster (“Foster”) (collectively, “Plaintiffs”) bring this class action suit on behalf of themselves and others similar situated against their employer, Arc Energy Services, Inc. (“Defendant”) pursuant 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. More specifically,
Plaintiffs allege they are still in Defendant's database and remain eligible to perform work for Defendant. [ECF No. 1 ¶ 38].
Plaintiffs bring 42 U.S.C. § 1981 and Title VII class claims for racial discrimination in selection, recruitment, hiring, assignment, and retention (first and second causes of action), 42 U.S.C. § 1981 individual claims for unlawful discrimination in the right to contract (third cause of action), and Title VII individual claims for racial discrimination (fifth cause of action). Cobb also brings 42 U.S.C. § 1981 and Title VII claims for retaliation (fourth and sixth causes of action).
This matter comes before the court on Defendant's motion to dismiss and/or strike class allegations [ECF No. 5]. The motion having been fully briefed [ECF Nos. 19, 20], it is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. For the reasons that follow, the undersigned recommends the district judge grant in part and deny in part Defendant's motion to dismiss and/or strike, allowing only Cobb's individual claim for retaliation, asserted pursuant to 42 U.S.C. § 1981 (fourth cause of action), to proceed.
I. Factual Background
Viewing the facts as alleged in their complaint, Plaintiffs are black males and accomplished specialty welders who began working for Defendant in 2015 and 2016 on an as-needed basis as seasonal employees. [ECF No. 1 ¶¶ 14-15, 18-19, 47, 56, 67]. The majority of Defendant's work has been with federal contractors such as Dominion Energy and Duke Energy where it supplies labor under subcontracts. Id. ¶¶ 20-21. Plaintiffs allege that despite its federal contractor status, Defendant has failed to self-identify as a federal contractor with the Office of Federal Contract Compliance Programs (“OFCCP”) and/or file reports with the Equal Employment Opportunity Commission (“EEOC”) identifying the number of black employees hired as part of its workforce as required for federal contractors. Id. ¶ 26.
During their employment with Defendant, Plaintiffs observed that Defendant employed few black workers and staffed few black employees to the jobs to which Plaintiffs were assigned. Id. ¶ 29. Plaintiffs also observed that few black employees worked in the “augmented” power plant workforces comprised of jointly-employed workers and that there was a complete absence of black management for a company of some 1, 500 employees. Id. ¶¶ 29, 41, 79-80. Plaintiffs contend that Defendant employs “only a handful” of black workers. Id. ¶ 41, see also Id. ¶ 71 (“There were no more than 5 or 6 African Americans in the entire Arc workforce of hundreds of employees . . . .”). Plaintiffs allege that “[a]t least several hundred positions” should have been staffed with qualified black workers, but were not. Id. ¶ 94.
Plaintiffs allege, specifically as to Cobb, that in January or February 2017, he heard a white coworker, Chris Webster (“Webster”), use the word n****r in the shop area. Id. ¶ 48. Prior to this incident, Cobb had also heard Webster regularly make other racially-charged comments. Id. ¶ 49. When Webster used this racially-offensive language, his white coworkers all laughed. Id. ¶ 50. Cobb reported the racial harassment to both Webster's supervisor and his own supervisor. Id. ¶ 51. Webster was told to apologize to Cobb, but Cobb is not aware of any Human Resources investigation of the harassment, as he was never interviewed as part of any investigation after his report. Id. ¶ 52.
Plaintiffs alleges that after Cobb complained, he was treated differently and “shunned and excluded.” Id. ¶ 53. Also, “[s]hortly after complaining about the racially offensive language, ” Cobb was told by his supervisor that there was no work available for him despite Cobb pointing out that less experienced and less senior white employees-specifically Alex Mosely (“Mosely”) and Robert Young (“Young”)-were retained to work in the shop. Id. ¶ 54. Cobb was released for “no work” on May 9, 2017, and no work has been available for Cobb since. Id. ¶ 57.
Plaintiffs also allege that Webster continues to work for Defendant. Id. ¶ 64.
Notwithstanding, Cobb was informed by another black welder at some point that work was available from 2017 until 2020. Id. ¶ 60. Despite following up on these leads and contacting Defendant for work, each time he was told by Defendant that no work was available. Id. ¶ 61. Rather, these opportunities were provided to white workers who were less senior and less experienced than Cobb, including Young and Mosely. Id.
In August and September 2020, Cobb learned of available work and called and texted Gordon Black seeking employment. Id. ¶ 63. He was never contacted and was not offered the available work. Id.
Foster also attempted to obtain additional work with Defendant since the time of his last job in April 2017, without success. Id. ¶¶ 67, 70. When Foster called Defendant in late April 2020 for work, he was told that no work was available. Id. ¶ 75. However, Defendant did have work available for which Foster was qualified, but that work was provided to white employees who were no more experienced or qualified than Foster. Id. ¶ 75.
On October 22, 2020, Plaintiffs filed charges of discrimination and retaliation with OFCCP, id. ¶¶ 7, 9, and right-to-sue notices were subsequently issued, id. ¶¶ 8, 10.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
1. Exhaustion of Title VII Discrimination Claims
Defendant argues Plaintiffs' Title VII claims must be dismissed for failure to timely exhaust administrative remedies.
Under Title VII, a claimant is required to file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act or acts, or, if the alleged discrimination occurred in a “deferral state, ” then within 300 days of the alleged discriminatory act(s) if the claimant initially institutes proceedings with the appropriate state agency, or within thirty days of the state agency's termination of its proceedings, whichever is earlier. See 42 U.S.C. § 2000e-5(e). South Carolina is a deferral state, with the appropriate state agency being the South Carolina Human Affairs Commission (“SCHAC”).
Plaintiffs, who were last given work to perform by Defendant in 2017, did not file their charges with the OFCCP until October 22, 2020. The court assumes, without deciding, that Plaintiffs are correct that they had 300 days prior to filing their charges for their claims to have arisen, meaning their claims must have arisen on or after December 27, 2019.
Citing in part to a memorandum of understanding (“MOU”) between the EEOC and OFCCP that went into effect after Plaintiffs filed their charges with the OFCCP in October 2020, Plaintiffs argue that the MOU shows “the operative time period for considering the timeliness of Plaintiffs' Title VII claims is 300 days prior to the earliest administrative charge filings, ” or December 27, 2019. [ECF No. 19 at 8].
Plaintiffs argue their claims are timely as follows:
After establishing the appropriate look-back period, the Court must next consider whether Plaintiffs have alleged facts that occur within this time period . . . . both Plaintiffs specifically have pled that within the 300-day look-back period up until the present time they have continued to seek work with Defendant and been denied those opportunities, while Defendant provided those same allegedly “unavailable” opportunities to lesser qualified Caucasians . . . . As for the timeliness of Plaintiff Cobb's individual claim for retaliation under Title VII, the retaliation alleged in the Complaint continues to this very day. To be sure, the adverse employment action alleged here is the continued refusal to provide Cobb with known available work for which he is qualified.
[ECF No. 19 at 9-10 (emphasis removed)]. In short, Plaintiffs bring Title VII claims against Defendant for discrimination and retaliation and argue these claims are timely because Defendant's acts, most of which occurred outside the relevant time period, are, notwithstanding, “ongoing” to the present day.
The only specific allegation made by Plaintiffs during this time period concerns phone calls and texts they sent inquiring about work opportunities in April, August, and September 2020 that did not lead to employment. [See ECF No. 1 ¶¶ 63, 75, see also ECF No. 19 at 9].
As held by the Supreme Court, “discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.' [A plaintiff] can only file a charge to cover discrete acts that ‘occurred' within the appropriate time period.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). As held by the Fourth Circuit, courts should not “extend the limitations periods for discrete acts of discrimination merely because the plaintiff asserts that such discrete acts occurred as part of a policy of discrimination.” Ho land v. Washington Homes, Inc., 487 F.3d 208, 220 (4th Cir. 2007) (citation omitted). “Simply put, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. (citation omitted).
Therefore, events that are alleged to have occurred prior to December 27, 2019, including that Cobb was not offered employment after he complained about a coworker's racial comments, are not actionable under Title VII.
Retaliation is a “discrete act” that is “considered to have ‘occurred' the day [it] happened.” Busha v. S.C. Dep't of Mental Health, C/A No. 6:17-571-MGL-KDW, 2017 WL 9289389, at *5 (D.S.C. Aug. 31, 2017), report and recommendation adopted, C/A No. 6:17-571-MGL-KDW, 2017 WL 4230587 (D.S.C. Sept. 25, 2017). As such, “the continuing-violation-doctrine's analysis is inapplicable to claims for . . . retaliation.” Id. at *6.
Notwithstanding, even if timely, Plaintiffs have failed to state a claim for discrimination under either Title VII or 42 U.S.C. § 1981, although Cobb has individually stated a claim for retaliation under 42 U.S.C. § 1981, as discussed more below.
2. Title VII and 42 U.S.C. § 1981 Discrimination Claims
Title VII prohibits federal government employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Generally, to state a claim for Title VII discrimination, a plaintiff must allege (1) he is a member of a protected class; (2) he was performing his duties in a satisfactory manner; (3) he was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015); see also Gairola v. Va. Dep't of Gen. Servs., 753 F.2d 1281 (4th Cir. 1985) (“Under Title VII and either § 1981 or § 1983, the elements of the required prima facie case [for employment discrimination] are the same.”).
“[A]lthough the plaintiff need not plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), a civil rights plaintiff retains the burden of alleging facts sufficient to state a claim entitling her to relief.” Harman v. Unisys Corp., 356 Fed.Appx. 638, 640 (4th Cir. 2009); see Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 627 (4th Cir. 2015) (considering Title VII and ADEA claims in the context of Rule 12(b)(6)); Coleman v. Maryland Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (analyzing a Title VII claim under Rule 12(b)(6)), aff'd, 566 U.S. 30 (2012).
Plaintiffs argue they have sufficiently submitted allegations to state a claim for discrimination, in that they have alleged they are black, were performing their duties satisfactorily, and were not assigned work they were qualified to perform. Plaintiffs argue Defendant's failure to assign them work occurred under circumstances giving rise to an inference of unlawful discrimination because Mosely, Young, and Webster-all white workers- were given preferential treatment, even though they were less experienced and less senior, and Defendant “permitted specific instances of racially-based discrimination, including the use of racial epithets.” [ECF No. 19 at 12]. Plaintiffs further argue that “the allegations of disparities in the number of Caucasian employees Arc actively assigns work compared to the few African American employees, as personally observed by Plaintiffs, support the inference that race is a negative factor in Arc's assignment decisions.” Id. at 13.
Plaintiffs also argue, generally, that “‘but/for' their race, they would have been hired, ” that “Arc exhibited racial preference in work selection; that Arc maintained/maintains work lists that, in application, exclude qualified African-Americans available for work, ” and that “Arc based its non-selection of each experienced Plaintiff on race.” [See, e.g., ECF No. 19 at 12].
First, Plaintiffs' allegations that a white coworker during the time span of months during 2017 used racially-offensive language, and was then told to apologize, does not support an inference of unlawful discrimination by Defendant towards Plaintiffs. Even taking their allegations in light most favorable to them, Plaintiffs do not allege that the offensive utterances by a coworker somehow bears on Defendant's treatment of Plaintiffs, including any decision to not provide Plaintiffs with employment assignments.
Turning to the comparator evidence offered, a plaintiff is not required to identify a similarly-situated white comparator to prove a discrimination claim, so long as he can establish an inference of unlawful discrimination through other means. See Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545-46 (4th Cir. 2003). We “may infer discriminatory intent from evidence of a general pattern of racial discrimination in the practices of a defendant.” Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017). However, where a plaintiff attempts to rely on comparator evidence to establish circumstances giving rise to an inference of unlawful discrimination, “[t]he similarity between comparators . . . must be clearly established in order to be meaningful.” Lightner v. City of Wilmington, N.C. , 545 F.3d 260, 265 (4th Cir. 2008).
Here, Plaintiffs allege only that white employees, with less experience-indicating they are not comparators-were given preferential treatment by being retained to work, whereas Plaintiffs stopped receiving assignments. “The mere fact that a certain action is potentially consistent with discrimination does not alone support a reasonable inference that the action was motivated by bias.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020). Here, Plaintiffs have failed to allege facts demonstrating that the white employees who allegedly received work are appropriate comparators. See Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.” (citation omitted)); see also McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 586 (4th Cir. 2015) (“The allegation that the Highway Administration did not hire her because its decision makers were biased is simply too conclusory. Only speculation can fill the gaps in her complaint-speculation as to why two ‘non-Black candidates' were selected to fill the positions instead of her. While the allegation that non-Black 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)).
As stated, Plaintiffs allege other white employees were treated preferentially. However, Plaintiffs do not identify specific jobs or dates when work was available and given to a white employee, only that, for example, Cobb was informed there was no work for him even though “less experienced, and less senior Arc employees, such as Alex Mosely and Robert Young (both Caucasian), were retained to work in the shop.” [ECF No. 1 ¶ 54; see also Id. ¶ 68 (“Plaintiff Foster was not called for available work by Arc, which was assigned to Caucasian employees”)].
Although they do not argue that the Fourth Circuit has adopted such a test applicable in this context, Plaintiffs also argue that “[i]t is well established in civil rights litigation that where an employer has a workforce reflecting the ‘inexorable zero' of virtually no protected classes in certain job categories, a prima facie case is stated.” [See ECF No. 19 at 22-23 & n.11].
Plaintiffs' relevant allegations as to this issue are as follows:
. . . . despite a workforce of some 1, 500 employees, Arc has employed only a paucity of African American employees during the applicable limitations periods despite the availability of qualified African American workers . . . . Arc hired very few of the qualified African American employees he knew to be available for work. There were no more than 5 or 6 African Americans in the entire Arc workforce of hundreds of employees although he knows of, and had worked with, many African American specialty
laborers who performed welding or welding related work of the type Arc staffed . . . . During the time that Plaintiffs worked as supplied labor through Arc, they encountered no minority management at Arc. Where Arc served as a sub-contractor to another intermediary contractor, Plaintiffs observed no African Americans in their management. In short, they were never supervised on Arc assigned jobs by African American supervision.
[ECF No. 1 ¶¶ 2, 71, 79, see also ECF No. 19 at 29 n.15 (calculating that only 0.4% of Defendant's employees are black based on Plaintiffs' allegations)]. Additionally, although not alleged in their complaint, Plaintiffs argue that black people represent 28% of the South Carolina population and that 8-10% of welders nationally are black. [ECF No. 19 at 29 n.15].
The Fourth Circuit has held that although statistics can provide “important proof of employment discrimination” and may be used to “establish an inference of discrimination as an element of plaintiff's prima facie case, ” the proper inquiry in a case of discrimination in hiring or promoting is a comparison between “the percentage of minority employees and the percentage of potential minority applicants in the qualified labor pool.” Carter v. Ba l
, 33 F.3d 450, 456 (4th Cir. 1994). The court also held that “[t]he mere absence of minority employees in upper-level positions does not suffice to prove a prima facie case of discrimination without a comparison to the relevant labor pool.” Id.
Here, Plaintiffs' allegation that only a very small percentage of Defendant's workforce is black is troubling, but insufficient to support an inference of unlawful discrimination, particularly where special qualifications are necessary to complete the work at issue. Even accepting as true that Defendant's general workforce is comprised of only 0.4% black employees, whereas the general South Carolina population is 28% black, these numbers provide no indication as to the qualified population in the relevant labor market. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650 (1989) (the “proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified . . . population in the relevant labor market.”), superseded by statute on other grounds, 42 U.S.C. § 2000e- 2(k), as recognized in Tex. Dep't of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015). Likewise, assuming as true that 8-10% of welders nationally are black, Plaintiffs have again failed to provide any indication as to the qualified population in the relevant labor market or as to how many welders are employed by Defendant. See Carter, 33 F.3d at 456- 57 (citing Hagans v. Andrus, 651 F.2d 622, 627 (9th Cir. 1981), for the proposition that the lack of women “in high-level positions [is] ‘meaningless' without evidence of [a] pool of qualified women applicants”); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501-02 (1989) (“But where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task.”).
Plaintiffs appear to argue that all 1, 500 of Defendant's employees are welders when arguing that, because 8-10% of welders nationally are black, Defendant should have 120-150 black welders among its workforce. [ECF No. 19 at 29 n.15]. However, as alleged by Plaintiff, “Defendant Arc is a welding and machining services provider in the power generation industry . . . provid[ing] contract staffing to the power generation and construction industries” [ECF No. 1 ¶ 16], indicating Defendant employs non-welders as well. [See also ECF No. 20 at 10 (“Arc provides contract staffing to the power generation and construction industries . . . which includes skilled labor across a variety of trades (e.g., welders, electricians, plumbers, pipefitters, machinists, boilermakers, etc.).”)].
Although Plaintiffs repeatedly argue that more statistical information would be available to them if Defendant had not failed to report their racial demographic statistics as required to OFCCP [see, e.g., ECF No. 19 at 3, 26], Plaintiffs do not argue that this alleged failure changes their burden to establish a prima facie case of discrimination.
Plaintiffs have not sufficiently alleged a claim for discrimination pursuant to Title VII or 42 U.S.C. § 1981. Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to Plaintiffs' third and fifth causes of action.
3. Title VII and 42 U.S.C. § 1981 Retaliation Claims
Title VII also prohibits an employer from retaliating against an employee because the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a). To make a prima facie claim of retaliation, a plaintiff must show: (1) that he engaged in protected activity, (2) that the employer took a materially adverse action against him, and (3) there is a causal connection between the protected activity and the adverse action. See Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019) (citing Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)); see also Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 251 (4th Cir. 2015) (holding that because “the causation standards for establishing a prima facie case and proving pretext are not identical” in the context of a retaliation claim asserted pursuant to Title VII, “the burden for establishing causation at the prima facie stage is less onerous.”); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (“A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements [as a Title VII claim].”).
As stated above, Cobb's retaliation claim brought pursuant to Title VII is barred for failure to timely exhaust administrative remedies. However, his retaliation claim brought pursuant to 42 U.S.C. § 1981 does not require exhaustion of administrative remedies and instead appears to be subject to the default four-year federal limitations period set forth in 28 U.S.C. § 1658. See White v. BFI Waste Servs. LLC, 375 F.3d 288, 291 (4th Cir. 2004) (“Section 1981 claims based upon conduct occurring after the formation of an employment contract” are governed by the four-year statute of limitations as set forth in 28 U.S.C. § 1658).
Defendant does not move to dismiss Plaintiffs' claims brought pursuant to 42 U.S.C. § 1981 as barred by any statute of limitations and does not dispute Plaintiffs' assertion that a four-year federal statute of limitations period applies to Cobb's 42 U.S.C. § 1981 retaliation claim. [See ECF No. 20 at 7-9].
Here, Cobb has sufficiently alleged a claim for retaliation where he alleges (1) from mid-2015 to February 2017, he received assignments from Defendant, (2) he complained about Webster's use of racially-offensive language in January or February 2017, (3) he was “[s]hortly” thereafter informed there was no work for him and was therefore “furloughed without work or assignment, ” and (4) he was “released for ‘no work' on May 9, 2017.” [ECF No. 1 ¶¶ 48, 54, 55, 57, 58]. Although Defendant argues otherwise, Cobb has sufficiently alleged a causal connection where he alleges close temporal proximity between complaining and being told there was no work for him and where he alleges that immediately following his complaints, he was treated differently and no longer provided any work. See, e.g., Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 173 (4th Cir. 2020), as amended (Oct. 16, 2020) (holding two weeks close enough, but three months “too tenuous to support a reasonable inference of causation”); see also Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (holding “evidence of recurring retaliatory animus during this intervening period can be sufficient to satisfy the element of causation, ” and finding ongoing animus where plaintiff was stripped of significant job responsibilities, supervisory responsibility, and ability to meet with clients); Howard v. Allen Univ., C/A No. 3:11-2214-MBS, 2014 WL 66646, at *5 (D.S.C. Jan. 8, 2014) (ongoing animus where university president reassigned plaintiff's staff, removed his duties, and made him “administratively invisible”).
Accordingly, the undersigned recommends the district judge deny Defendant's motion to dismiss as to Plaintiffs' fourth cause of action brought pursuant to 42 U.S.C. § 1981 but grant the motion as to Plaintiffs' sixth cause of action, brought pursuant to Title VII, as barred.
4. Class Claims
In addition to the above, “Plaintiffs allege, on behalf of themselves and others similarly situated, that Defendant Arc is liable on a class-wide basis under disparate treatment and impact Title VII theories, and Section 1981 treatment theories, for discriminatory racially based hire and retention practices as to African-American classes and/or sub-classes.” [ECF No. 19 at 12]. Plaintiffs seek to represent the following proposed putative class:
(a) Present and former African American employees of Arc during the limitations periods not assigned to work opportunities available to Arc;
(b) African Americans on lists of employees or available workers maintained by Arc who were not recruited by Arc for available positions during the limitations periods;
(c) Current and former African American employees of Arc removed or separated from assignments which were staffed by Caucasian employees within the limitations periods;
(d) African Americans in the qualified labor pool who were not recruited by Arc for available positions during the limitations period; and
(e) African American applicants and those who had expressed interest in employment with Arc who, despite qualification, were dissuaded from application, denied hire or placement into positions which Arc applied for work during the limitations period.
[ECF No. 1 ¶ 90].
The parties argue at length as to whether Defendant's motion to strike Plaintiffs' class allegations is premature and whether the purported class could be certified. See, e.g., Cty. of Dorchester, SC v. AT & T Corp., 407 F.Supp.3d 561, 565-66 (D.S.C. 2019) (holding that while determinations regarding the viability of a class generally are decided at the certification stage, “[a] court may grant a motion to strike class allegations where the pleading makes clear that the purported class cannot be certified and no amount of discovery would change that determination.” (citation omitted)).
However, given the recommendation above, that Plaintiffs have failed to state a claim for discrimination pursuant to 42 U.S.C. § 1981 and Title VII, Plaintiffs have also failed to allege that they are members of the class they seek to represent. See, e.g., Lewis v. Casey, 518 U.S. 343, 357 (1996) (“even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'”) (citation omitted)). The Supreme Court has “repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) (citation omitted).
Accordingly, the undersigned recommends the district judge grant Defendant's motion to strike Plaintiffs' class allegations.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendant's motion to dismiss and/or strike [ECF No. 5], allowing only Cobb's individual claim for retaliation, asserted pursuant to 42 U.S.C. § 1981 (fourth cause of action), to proceed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.