Opinion
C. A. 3:23-4995-MGL-SVH
06-11-2024
Darius Cornelius June, Plaintiff, v. Scott Ferry, Service Manager; Joey, Janitor; and Dick Smith Ford of Columbia, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
In this employment discrimination case, Darius Cornelius June (“Plaintiff”), a black male, alleges he was wrongfully terminated from his position as a mechanic with Dick Smith Ford of Columbia (“Defendant”) in December 2022. Defendant seeks dismissal of Plaintiff's claims asserted against it.
As relevant here, Plaintiff asserts claims against Defendant for violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. This matter comes before the court on Defendant's motion to dismiss, brought pursuant to Fed.R.Civ.P. 12(b)(6). [ECF No. 26]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the motion to dismiss procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 29]. The motion having been fully briefed [ECF Nos. 32, 33, 34, 35, 36], it is ripe for disposition.
On November 1, 2023, the undersigned issued a report and recommendation recommending the district judge summarily dismiss Plaintiff's claims asserted against individual defendants Scott Ferry and Joey, as well as Plaintiff's claim for defamation. [ECF No. 16]. That report and recommendation remains pending before the district judge.
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.
I. Relevant Factual Background
In Plaintiff's amended complaint, he asserts that in violation of Title VII, Defendant terminated his employment, failed to promote him, provided unequal terms and conditions of employment, and retaliated against him. [ECF No. 9 at 4-5]. Plaintiff alleges these events occurred from August to December 2022, and he provides the following allegations:
Although Plaintiff's amended complaint indicates otherwise, he has clarified to the court that it was not his intention to bring a claim against Defendant for violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”). [See ECF No. 32 at 1]. The undersigned notes that Plaintiff fails to state an age claim because he is outside the protected class. The ADEA limits protection “to those who are 40 or older.” O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996); 29 U.S.C. § 631(a). Plaintiff's amended complaint states that he was born in 1991, which made him less than forty years of age at the time of his termination in December 2022 and places him outside of the protected class.
In December 2022, I . . . was unprofessionally discharged by Scott Ferry by being told to leave his shop following racial slurs as a
female dog (B****)(A**)-which is a (Donkey). I was also . . . provoked on a potential fight with Mr. Ferry with hostile gestures while shouting “what are you going to do to me” “I can talk to you” etc....
I used Dick Smith Ford of Columbia as a reference where I was employed in 2022 at the time before I was told to leave . . . by Scott Ferry (service manager). I was hired at Galeana Chrysler Dealer. I told them that my experience as a mechanic came from Dick Smith Ford of Columbia as far as shop experience. I was then let go from Galeana months later. I also used them as a reference at many other dealerships and was never hired again at dealerships from then until now ....Id. at 5-6.
Plaintiff filed a charge with the South Carolina Human Affairs Commission (“SCHAC”) on August 17, 2023, that he has submitted to the court, in which he stated as follows:
Although courts generally do not consider matters outside the pleadings in ruling on a motion to dismiss, Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), a court may consider documents outside the pleadings without converting a motion to dismiss into one for summary judgment if those documents are “integral to and explicitly relied on in the complaint” and their authenticity is unchallenged. Copeland v. Bieber, 789 F.3d 484, 490 (4th Cir. 2015). “In the employment context, a court may consider an EEOC charge and other EEOC documentation [when considering a motion to dismiss] because such documents are integral to the complaint as Plaintiff necessarily relies on these documents to satisfy the time limit requirements of the statutory scheme.” Pierce v. Office Depot, Inc., C/A No. 0:13-3601-MGL, 2014 WL 6473630, at *5 (D.S.C. Nov. 18, 2014) (citing Williams v. 1199 Seiu United Healthcare Workers East, C/A No. 1272, 2012 WL 2923164 at * 1 n. 1 (D. Md. July 17, 2012)); see also Adams v. 3D Sys., Inc., C/A No. 019-00663-JMC-KDW, 2019 WL 8754875, at *2 (D.S.C. Nov. 26, 2019), report and recommendation adopted, C/A No. 0:19-00663-JMC, 2020 WL 1527056 (D.S.C. Mar. 31, 2020) (same).
I worked for Respondent from March 2022 through December 2022 as a Mechanic (Apprentice). Throughout my tenure, I performed all of my essential functions satisfactorily, I was the only black male mechanic working at Respondent. I am a black male.
In December 2022, I was discharged by Scott Ferry (W/M -Service Manager) for an incident that took place at work where he accused me of almost running over a coworker in the mechanic's bay. I refute that any of what Mr. Ferry accused me of ever took place. The incident involved a white male 17-year-old assistant who was not a mechanic, inadvertently walked behind the vehicle I was backing out of my mechanic station. The white male employee stopped behind the vehicle and began making threatening gestures toward me. The vehicle never touched the white male assistant. During the meeting with Mr. Ferry about the incident, Mr. Ferry began to scream at me and referring to me as a “bitch-ass” and at times challenging me to a physical fight outside the dealership while simultaneously showing video surveillance video of the incident. The surveillance footage showed that the vehicle never touched or came close to the white male assistant. I decided to walk out of the meeting in order to avoid further escalation of Mr. Ferry's threatening demeanor. As the only black mechanic employed at Respondent, I felt that Mr. Ferry treated me less favorably than others outside of my protected class. I have never received any form of counseling or performance warnings while employed with Respondent.
I feel that I have been discriminated against because of my Race (Black) in violation of Title VII of the Civil Rights Act of 1964, as amended.[ECF No. 9-1 at 1-2].
Plaintiff also attached an unverified and undated Equal Employment Opportunity Commission (“EEOC”) inquiry document carrying a different EEOC (inquiry) number (436-2023-02170) than his signed and dated charge (436-2023-01155). [Compare ECF No. 9-1 at 8-11 to id. at 1-2]. The court declines to consider this document at this stage in the proceedings. See, e.g., Steele v. Allied Air Enterprises, LLC, C/A No. 3:18-2670-TLW-KDW, 2019 WL 13270783, at *8 (D.S.C. Mar. 18, 2019) (“Other judges in this district have concluded a SHAC questionnaire does not constitute a charge .... Further, the Fourth Circuit has addressed this issue and has determined that claims based on allegations included only in an intake questionnaire are outside the jurisdiction of the court .... Here, as in Balas, Plaintiff could not have expected Defendant to have been apprised of the Questionnaire's content.”) (citing Balas v. Huntington Ingalls Industries, Inc., 711 F.3d 401, 408-409 (4th Cir. 2013)).
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).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Title VII prohibits 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). However, before filing suit under Title VII, a plaintiff must exhaust her administrative remedies by filing a charge with the appropriate entity. See 42 U.S.C. § 2000e-5(f)(1); Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843 (2019); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the ‘discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge'”) (citing Equal Emp. Opportunity Comm'n v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith, 202 F.3d at 247 (“A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.”).
Plaintiff's charge identifies race as the only basis for discrimination, describes only his termination, and lists only his termination date of December 22, 2022, as both the earliest and latest date discrimination allegedly occurred. [See ECF No. 9-1 at 1-2]. No other Title VII claims are indicated. Because Plaintiff has failed to exhaust his administrative remedies as to any other Title VII claims beyond wrongful termination based on race, any such Title VII claims are barred. See, e.g., Miles v. Dell, Inc., 429 F.3d 480, 491-92 (4th Cir.2005) (finding retaliation claim was not reasonably related to EEOC charge when retaliation box on charge was not checked and the narrative referenced only sex and pregnancy discrimination).
Additionally, while exhaustion is a “claim-processing rule” subject to equitable tolling, see Fort Bend Cty., 139 S.Ct. at 1846; see also Raplee v. United States, 842 F.3d 328, 331 (4th Cir. 2016), Plaintiff alleges no basis on which the court might find his failure to exhaust is subject to tolling.
Turning to Plaintiff's exhausted Title VII claim for wrongful discharge based on race, the court must determine if Plaintiff has sufficiently alleged such a claim where Plaintiff has alleged he was terminated following being called a “female dog (B****)(A**) which is a (Donkey).” [ECF No. 9 at 6]. In briefing, Plaintiff also argues as follows:
Mr. Scott Ferry has been making insults about my race for months when he was initially transferred to Dick Smith's garners ferry store. Insults included things like, “this is a white panthers only meeting” in a meeting with all mechanics attended including myself.
Mysterious sayings like “I'm Going to Catch You”
Also being told by associate Joey “You will get fired before me”.
Right before being told to leave his shop on Dec. 17 2022 Scott Ferry Yet insulted me yet again with saying like, “Get out of my shop” following a profane message “Bit** A**”.[ECF No. 32 at 1]. Finally, Plaintiff argues that he has alleged that the reason offered for his dismissal was not true, as shown by the relevant video footage. Id. at 2.
Defendant argues that Plaintiff's claim relies on being called a “bitch ass,” which, according to Defendant, “has nothing to do with race.” [ECF No. 26 at 7]. In support, Defendant cites one case where the court determined- on summary judgment, not motion to dismiss-that there was “no evidence that there were racial comments made or that the termination was race related,” further noting there was “[n]othing in the record [that] indicates any kind of racial intent or motive on the part of Defendants,” where the plaintiff, not the defendants, made the comment “bitch ass.” Scales v. USF Logistics, C/A No. 3:04-448, 2004 WL 3488637, at *1, 4 (E.D. Va. Dec. 3, 2004), aff'd, 127 Fed.Appx. 119 (4th Cir. 2005). This case is distinguishable from the case presented here.
Plaintiff has alleged that the relevant comment was race related. For a derogatory statement to be direct evidence of discriminatory animus, it must be “(1) related to the protected class of persons of which the plaintiff is a member; (2) proximate in time to the complained-of adverse employment decision; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue.” Bandy v. City of Salem, Virginia, 59 F.4th 705, 711 (4th Cir. 2023). Here, taking Plaintiff's allegations as true, he has alleged a comment that could evince direct discriminatory animus, as well as circumstantial allegations that he was fired for a false reason. Cf. McDonald v. Best Buy Co., No. 05-4056, 2008 WL 4104170, at *5 (C.D. Ill. Aug. 28, 2008) (“For example, racial epithets are used in a wide variety of contexts and do not always refer to a protected class under Title VII. Simply because a racial epithet could be used to refer to a person outside of a protected class does not mean that a racial epithet is not race related and is acceptable in the workplace. What matters is the commonly accepted meaning of the word.”); Hicks v. Carilion Med. Ctr., C/A No. 7:17-00247, 2019 WL 1394390, at *4 (W.D. Va. Mar. 27, 2019) (“Of the incidents Hicks reports, only one involves an explicitly race-based slur- Hicks's contention that Muse called him a ‘bitch ass n* * * *r.' The other incidents make no mention of race, but this on its own does not bar a reasonable fact-finder from concluding they were, in fact, motivated by racial animus.”).
Plaintiff is not “require[d] to plead facts establishing a prima facie case [of discrimination],” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 (2002), but must provide “[f]actual allegations . . . enough to raise a right to relief above the speculative level,” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Twombly, 550 U.S. at 555). Here, Plaintiff has done so. Accordingly, the undersigned recommends the district judge deny Defendant's motion to dismiss as to this claim.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendant's motion to dismiss, allowing Plaintiff's Title VII wrongful termination claim based on race to proceed. [ECF No. 26].
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.”
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
901 Richland Street
Columbia, South Carolina 29201
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).