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No. 2:16-cv-01929-DCN
03-31-2017
STANLEY ELLIOTT, Plaintiff, v. OLDCASTLE LAWN & GARDEN, INC., OLCASTLE INC., and OAK TREE HR LLC d/b/a OAK TREE STAFFING, Defendants
ORDER
This matter is before the court on United States Magistrate Judge Jacquelyn D. Austin's report and recommendation ("R&R"), ECF No. 29, that the court deny defendant Oldcastle Inc.'s ("Oldcastle") motion to dismiss, ECF No. 7, and grant in part and deny in part defendant Oak Tree HR LLC's ("Oak Tree") motion to dismiss, ECF No. 16, granting with respect to plaintiff Stanley Elliott's ("Elliott") termination claims and denying with respect to Elliott's failure to accommodate claim. ECF No. 29. For the reasons sets forth below, the court adopts the R&R in full.
I. BACKGROUND
A. Factual Allegations
The R&R ably recites the relevant facts, and it is unnecessary to review the details of the complaint and depositions that constitute the factual record to this point. In short, Elliot, who was 51 years old at the time of the events at issue, began working for the staffing agency Oak Tree on April 15, 2015. Oak Tree placed Elliot with Oldcastle Law & Garden, Inc. ("Oldcastle Lawn") and Oldcastle. On April 17, 2015, Elliot met with Dean Sparks ("Sparks"), a manager for Oldcastle Lawn and Oldcastle, who terminated Elliot because Elliot was "too old to work" and suffered from seizures. After his termination, defendants hired an employee under 40 who had no disability to replace Elliot. Elliot filed a charge of employment discrimination on the basis of disability with the Equal Employment Opportunity Commission ("EEOC"), which issued a notice of the right to sue on March 18, 2016.
Unless otherwise noted, the following background is drawn from the R&R.
Elliot filed the instant case on June 14, 2016 against Oldcastle Lawn & Garden, Oldcastle, and Oak Tree, alleging violations of the Americans with Disabilities Act ("ADA") and the Age Discrimination in Employment Act of 1967 ("ADEA"). In his complaint, Elliot appears to assert ADA claims for failure to accommodate and retaliatory discharge, and ADEA claims for discriminatory discharge and retaliatory discharge.
In Oldcastle's motion to dismiss, Oldcastle states Elliott alleges that it violated the ADA, the ADEA, and Title VII of the Civil Rights Act of 1964. Like the magistrate judge, the court construes the complaint as only raising claims under ADA and the ADEA.
This case is before the court on the magistrate judge's R&R, which recommends the following disposition of the parties' motions: (1) deny Oldcastle's motion to dismiss, and (2) grant in part and deny in part Oak Tree's motion to dismiss. Oak Tree filed an objection on December 13, 2016, ECF No. 38, to which Elliott replied on December 28, 2016. ECF No. 42. Elliott filed an objection on December 16, 2016, ECF No. 39, to which Oak Tree HR LLC replied on December 21, 2016, ECF No. 41. The matter is now ripe for the court's review.
II. STANDARDS OF REVIEW
A. De Novo Review
This court is charged with conducting a de novo review of any portion of the magistrate judge's R&R to which specific, written objections are made. 28 U.S.C. 636(b)(1). The court may adopt the portions of the R&R to which a party does did not object, as a party's failure to object is accepted as agreement with the conclusions of the magistrate judge. Thomas v. Arn, 474 U.S. 140, 14-50 (1985). The recommendation of the magistrate judge carries no presumptive weight, and it is this court's responsibility to make a final determination. Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
A. Motion to Dismiss
A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted "challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."). To be legally sufficient, 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). A Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations as true and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7 F.3d at 1134. "To survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id
III. DISCUSSION
A. Oldcastle's Motion to Dismiss
The magistrate judge recommends denying Oldcastle's motion to dismiss in full. Oldcastle did not file any objections to the R&R. In the absence of a timely filed objection, a district court need "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, 315 (4th Cir. 2005) (internal citations omitted). Upon review, the court is satisfied that there is no clear error in the magistrate judge's analysis of Oldcastle's motion to dismiss and adopts the R&R's reasoning.
B. Oak Tree's Motion to Dismiss
Oak Tree contends that the magistrate judge applied the incorrect standard in evaluating Oak Tree's motion to dismiss, and that if the magistrate judge had used the correct pleading standard she would have found that Elliott's complaint fails to state a claim that is "plausible on its face" as required by the Iqbal/Twombly standard. ECF No. 28 at 1. Since the court finds that even under the Iqbal/Twombly pleading standard Elliott has stated a cognizable claim against Oak Tree, the court does not address this objection.
The magistrate judge interpreted the complaint as laying forth claims under the ADA and the ADEA. The magistrate judge recommends granting Oak Tree's motion to dismiss as to Elliot's discriminatory discharge and retaliatory discharge claims, and denying Oak Tree's motion as to Elliot's failure to accommodate claim. ECF No. 29 at 7. Oak Tree filed an objection, arguing that the complaint contains no facts to support a failure to accommodate claim under the ADA. ECF No. 38 at 2. Elliot filed an objection, arguing that that magistrate judge erred in granting the motion to dismiss as to his termination claims. ECF No. 39 at 1. The court separates its analysis in accordance with the objections filed.
1. Failure to Accommodate Claim
Oak Tree objects to the magistrate judge's finding that Elliot's failure to accommodate claim should survive the motion to dismiss. ECF No. 38 at 2.
The merits of Oak Tree's argument may be legitimate, but a review of the briefing before the magistrate judge reveals that Oak Tree did not address Elliot's allegations regarding failure to accommodate. Oak Tree spends the entirety of its motion to dismiss addressing whether Oak Tree had knowledge of the discriminatory act against Elliot, and the implications of the joint employer doctrine on its liability for Old Castle's termination of Elliot. ECF No. 16 at 3. At no point in the complaint does Oak Tree discuss how the complaint's "supposed allegation of failure to accommodate is actually nothing more than a part of the wrongful discharge claim," like it does in its objection. ECF No. 38 at 2. Therefore, Oak Tree's arguments on the failure to accommodate claim must be treated as newly raised.
To be clear, the court takes no position on the merits of Elliot's failure to accommodate claim.
Courts have frowned upon objections to R&Rs that make new arguments that serve as a new basis for a motion to dismiss. See, e.g., Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (finding that requiring a district court to consider new arguments raised in objections would unfairly benefits litigants who change their tactics in response to an unfavorable recommendation from the magistrate); Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000) (finding that a party's failure to raise an argument before the magistrate judge constitutes waiver); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (finding that issues raised for the first time in objections are waived); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988) ("We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never reasonably raised before the magistrate."). Thus, "[t]he [c]ourt is not obligated to consider new arguments raised by a party for the first time in objections to the [m]agistrate's [r]eport." Dune v. G4s Regulated Sec. Sols., Inc., 2015 WL 799523, at *2 (D.S.C. Feb. 25, 2015). While the court has the power to address such arguments, that power lies within the court's sound discretion. Id. In this case, the court sees no reason to exercise such discretion—Oak Tree had the burden to present its argument regarding Elliot's failure to accommodate claim to the magistrate judge and failed to do so. Accordingly, the court declines to address Oak Tree's newly presented argument on Elliot's failure to accommodate claim.
The court recognizes that the magistrate judge found that Elliot's failure to accommodate claim survived a motion to dismiss only because Oak Tree's motion to dismiss did not address the claim. ECF No. 29 at 2. That is to say, the magistrate judge made no finding that Elliot actually pled a cognizable failure to accommodate claim. However, Oak Tree should have addressed the failure to accommodate claim in the briefing before the magistrate judge. Allowing parties to make new arguments through objections undermines the very purpose of magistrate judges. "[T]he purpose of the Magistrates Act is to allow magistrates to assume some of the burden imposed on the district courts and to relieve courts of unnecessary work." Keitt v. Ormond, 2008 WL 4964770, at *2 (S.D.W. Va. Nov. 13, 2008) (quoting Jesselson v. Outlet Associates of Williamsburg, Ltd. P'ship, 784 F. Supp. 1223, 1228-29 (E.D. Va. 1991)). "Allowing parties . . . to raise new issues or arguments at any point in the life of a case would" frustrate this purpose and "result in a needless complication of litigation." Id. Instead, "[p]arties should fully plead their claims, and fully advance their arguments, at all stages of litigation, unless they are prepared to waive them." Id.
2. Retaliatory Discharge Claim
The magistrate judge recommended the court find that Elliott had failed to state a cognizable claim for retaliatory discharge, stating that "[t]he complaint contains no factual allegations that Oak Tree participated in Plaintiff's termination or knew about it." ECF No. 29 at 8. Elliot contends that his allegation that "[d]efendants refused to accommodate his disabilities and terminated Plaintiff's position" clearly includes all of the defendants—Old Castle Lawn, Old Castle, and Oak Tree. ECF No. 39 at 2. Elliot argues that he was a direct employee of Oak Tree, and that Oak Tree had "notice and an opportunity to reconcile the situation," but failed to do so. ECF No. 39 at 2. The court grants Oak Tree's motion to dismiss, finding that Elliot has failed to state a prima facie claim of retaliation against Oak Tree because he has failed to plead any facts that Oak Tree denied him any accommodations.
To make out a prima facie claim of retaliation under the ADA, a plaintiff must satisfy three elements: (1) the plaintiff engaged in a protected activity, (2) the employer took an adverse employment action against the plaintiff, and (3) a causal connection existed between the protected activity and the adverse employment action. A Soc'y Without a Name v. Commonwealth of Va., 655 F.3d 342, 350 (4th Cir. 2011).
Elliot alleges that "defendants" have discriminated against him as a handicapped person, failed to identify and make reasonable accommodations for employment, and retaliated against him by terminating him based on his disability and request for accommodation. Compl. ¶¶ 38-39, 42-46. However, the complaint does not make clear what "adverse employment action" Elliot alleges that Oak Tree took in retaliation against him. According to the complaint, Elliot's previous employer, not Oak Tree, called Sparks to inform him that Elliot had a health issue and was "too old to work." Compl. ¶ 16. In his complaint, Elliot alleges only that Oak Tree is a "staffing agency" that placed him with Old Castle Lawn and Old Castle. Id. ¶ 13. Although Elliot alleges that Old Castle Lawn and Old Castle "exerted significant control" over him, provided "all necessary tools for the job" and "direct[ed] all of the day to day employment tasks," id., at no point does he specify what role Oak Tree played in his termination. The court finds that this is insufficient to state a cognizable claim for retaliation against Oak Tree, and grants Oak Tree's motion to dismiss on Elliot's retaliation claim.
Elliot has requested leave to amend his complaint, and attached a proposed amended complaint to his objections. Rule 15(a) of the Federal Rules of Civil Procedure provides that once a responsive pleading has been served, "a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be given freely when justice so requires." The general standard for determining "when justice so requires" is as follows:
In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be "freely given."Foman v. Davis, 371 U.S. 178, 182 (1962). "[T]he federal rules strongly favor granting leave to amend." Medigen of Ky., Inc. v. Pub. Serv. Comm'n, 985 F.2d 164, 167-68 (4th Cir. 1993). In accordance with this philosophy, the court grants Eliot's motion to amend, and reiterates the magistrate judge's directive to clearly and separately set out each count, specify the facts that apply to each separate count, and clearly state which count applies to which defendant. Specifically, Elliot should parse out what facts apply to each defendant. Therefore, the court grants Oak Tree's motion to dismiss and grants Elliot leave to amend his complaint.
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the R&R, DENYING Oldcastle's motion to dismiss, ECF No. 7, and GRANTING IN PART AND DENYING IN PART Oak Trees' motion to dismiss, ECF No. 16, GRANTING with respect to Elliott's termination claims and DENYING with respect to Elliott's failure to accommodate claim. Finally, the court grants Elliott leave to file an amended complaint.
AND IT IS SO ORDERED.
/s/ _________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE March 31, 2017
Charleston, South Carolina