Opinion
Civil Action 8:22-cv-426-TMC-KFM
07-18-2022
Wilbert Finley, Plaintiff, v. Kraft Heinz, Inc., Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the defendant's motion to dismiss the second cause of action of the plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 13). In the complaint, the plaintiff pleaded two causes of action against his former employer. In the first, he seeks recovery “under the employee protection provisions of the Food Safety Modernization Act (“FSMA”), 21 U.S.C. § 399d, and, in the second, he seeks recovery under the South Carolina tort of wrongful discharge in violation of public policy (doc. 1, comp. ¶¶ 18-38).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
FACTS ALLEGED BY PLAINTIFF
The plaintiff worked as a production manager for the defendant at its Newberry plant, which produces a variety of meat products. In the summer of 2019, he reported to supervisors his concerns relating to severe staffing shortfalls that had the potential to impact food safety. Also, beginning around mid-February 2020, he reported to supervisors that the x-ray machines that had been installed on the bacon lines were not being used properly. The plaintiff alleges that the defendant terminated his employment in retaliation for his protected disclosures and because he refused to violate the laws, rules, and/or regulations governing the defendant's operations (doc. 1, comp. ¶¶ 3-17).
In the first cause of action in his complaint, the plaintiff alleges that he engaged in protected activity under the FSMA and that the termination of his employment “violated Section 402 of the [FSMA], codified at 21 U.S.C. § 399d, and the implementing regulations at 29 C.F.R. § 1987” (doc. 1, comp. ¶¶ 23, 27). He alleges damages, including
(a) damage to his career and ability to obtain the highest level employment within his industry; (b) lost wages, income, and benefits; (c) damage to his professional reputation and interruption of his demonstrated work history; and (d) ongoing mental and emotional distress, humiliation, embarrassment, loss of self-esteem, and diminution in his enjoyment of life.(Id. ¶ 28).
In the second cause of action, the plaintiff alleges that the defendant's termination of his employment “was in violation of clear mandates of public policy, including (1) the protection of human life; (2) the protection of human health; (3) prohibitions on conspiracies to violate the law; and (4) prohibitions on intimidation against citizens for exercising their civil rights” (id. ¶ 31). The plaintiff alleges identical damages as alleged in the first cause of action (id. ¶ 38).
APPLICABLE LAW AND ANALYSIS
“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) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[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. American Honda Motor Co., Inc., 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) (internal quotation marks omitted).
“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if 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)). See also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)).
The defendant argues that the plaintiff's second cause of action for wrongful discharge in violation of public policy should be dismissed because the plaintiff has an existing statutory remedy for wrongful termination under the FSMA, and that remedy is exclusive. The undersigned agrees. “South Carolina recognizes a narrow public policy exception to the employment at-will doctrine.” Martin v. The Boeing Co., C. A. No. 2:16-2797-DCN, 2016 WL 7239914, at *3 (D.S.C. Dec. 15, 2016) (citing Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213, 216 (S.C. 1985)). However, “[t]he public policy exception does not [] extend to situations where the employee has an existing statutory remedy for wrongful termination.” Barron v. Labor Finders of S.C., 713 S.E.2d 634, 637 (S.C. 2011) (citations omitted). In other words, “the Ludwick [public policy] exception is not designed to overlap an employee's statutory or contractual rights to challenge a discharge, but rather to provide a remedy for a clear violation of public policy where no other reasonable means of redress exists.” Stiles v. Am. Gen. Life Ins. Co., 516 S.E.2d 449, 452 (S.C. 1999) (Toal, J., concurring). As noted by the defendant, courts in this district “routinely dismiss tort claims for wrongful discharge that are barred by statutory remedies at the 12(b)(6) stage.” Frazier v. Target Corp., C. A. No. 2:09-1625-PMD, 2009 WL 3459221, at *3 (D.S.C. Oct. 27, 2009) (citing Bolin v. Ross Stores, Inc., C. A. No. 08-02759-MJP, 2009 WL 363990 (D.S.C. Feb.11,2009) and Ramsey v. Vanguard Servs., Inc., C. A. No. 07-265-GRA, 2007 WL 904526 (D.S.C. Mar. 22, 2007)). See also Newman v. S.C. Dep't of Emp. & Workforce, C. A. No. 3:10-942-CMC-PJG, 2010 WL 4666360, at *3-4 (D.S.C. Nov. 18, 2010) (granting motion to dismiss wrongful discharge claim because employee could have proceeded under Grievance Act or Whistleblower Protection Act).
In response, the plaintiff argues that the court should deny the defendant's motion because in its answer in this case the defendant denied coverage under the FSMA, and, therefore, he may not have a “viable” remedy under the FSMA (doc. 19 at 3-5, 8-9). According to the plaintiff, “[i]f and when the Court determines Plaintiff is [a] covered employee [under the FSMA], only then should the Court consider dismissing his state wrongful discharge claim” (id. at 8-9). The undersigned disagrees. First, as argued by the defendant in its reply (doc. 23 at 2-4), the plaintiff's position sanctions alternative pleading of a public policy wrongful discharge claim, contrary to well-settled precedent. See Frazier, 2009 WL 3459221, at *3 (“to accept Plaintiff's argument that she can plead her claims in the alternative would essentially nullify [prior District Court of South Carolina] decisions . . . which hold that ‘no common law public policy wrongful termination claim can be stated where the employee has an existing statutory remedy'” (quoting Bolin, 2009 WL 363990, at *4)).
Second, as further argued by the defendant, the plaintiff's reliance on the defendant's answer is misplaced, because - on this Rule 12(b)(6) motion - the court accepts the plaintiff's factual allegations as true, and the defendant's position on the plaintiff's FSMA cause of action is immaterial. Further, none of the cases cited by the plaintiff turned on the defendants in those cases conceding coverage under the statutes at issue. In Frazier, for example, the court observed:
Plaintiff's claim squarely falls under § 41-1-70 because Plaintiff allegedly was terminated for complying with a requirement to attend and testify in a court proceeding. Therefore, as Plaintiff is barred by the existence of § 41-1-70 from also asserting a public policy wrongful discharge tort claim on the basis of termination because of compliance with a valid subpoena, the court grants dismissal of Plaintiff's Count Two wrongful discharge claim.Frazier, 2009 WL 3459221, at *3 (emphasis added). As argued by the defendant here, because the plaintiff's alleged claim falls squarely within the FSMA, he cannot plead in the alternative a claim for public policy wrongful termination. Similarly, in the other cases cited by the plaintiff, the court did not consider the defendants' positions on the plaintiffs' statutory claims in dismissing the plaintiffs' public policy wrongful discharge claims. See Mumford v. Florence Cnty. Disabilities & Special Needs Bd., C. A. No. 4:19-1330-MGL, 2019 WL 5748959, at *5 (D.S.C. Sept. 17, 2019), R&R adopted by 2019 WL 5721631 (D.S.C. Nov. 5, 2019) (“The law . . . clearly requires dismissal of a [public policy wrongful discharge] claim when the pleader has potential remedies under state or federal statutory law.” (citation omitted)); Thompson v. Richland Cnty. Sch. Dist. One, C. A. No. 3:17-510-DCC, 2018 WL 2676159, at *2, 5 (D.S.C. June 5, 2018) (accepting “all well pleaded factual allegations in the non-moving party's pleadings as true” and holding that the plaintiff could not state a public policy wrongful discharge claim because she was “pursuing” a statutory remedy); Bolin, 2009 WL 363990, at *4 (“[T]he State and Federal wiretap laws Plaintiff himself has invoked provide a remedy to Plaintiff, if and to the extent he can prove his allegations in the instant case. As such, Plaintiff has a recognized statutory remedy and . . . therefore cannot state a viable claim for wrongful discharge in violation of public policy.”) (emphasis added). Likewise, here, accepting the plaintiff's allegations as true as this court must on a Rule 12(b)(6) motion, the plaintiff has an existing statutory remedy for his allegedly wrongful termination. Accordingly, the undersigned recommends that the district court grant the defendant's motion to dismiss the plaintiff's public policy wrongful discharge claim.
Given this recommendation, the defendant's alternative argument for dismissal will not be addressed (see doc. 13-1 at 6-7).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the defendant's motion to dismiss the plaintiff's second cause of action (doc. 13) should be granted.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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 250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).