Opinion
C. A. 2:22-cv-04635-BHH-MHC
10-31-2023
Amanda J. McGraw, Plaintiff, v. Volvo Car USA, LLC, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
Plaintiff brings this employment discrimination action against her former employer, Defendant Volvo Car USA, LLC. ECF No. 12. After Defendant filed a Motion to Dismiss Plaintiff's initial Complaint, the undersigned granted Plaintiff's request for leave to amend her Complaint. See ECF Nos. 1, 6, 10, 11. Plaintiff then filed her Amended Complaint, which is the operative complaint in this action. ECF No. 12.
Presently before the Court for disposition is Defendant's Motion to Dismiss the Amended Complaint for failure to state a claim, which Defendant filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 14. Plaintiff filed a Response in Opposition to the Motion, ECF No. 15, and Defendant filed a Reply, ECF No. 16. The Motion is ripe for review.
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 Defendant's Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned finds that the Motion to Dismiss should be granted.
THE ALLEGATIONS IN PLAINTIFF'S AMENDED COMPLAINT
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 Motion to Dismiss, are as follows.
On or about November 26, 2018, Plaintiff was hired by Defendant as a Maintenance, Repair and Operations (“MRO”) Senior Buyer within Indirect Procurement (“IDP”). ECF No. 12 at ¶ 12. In or around September 2019, Heather Griffin (a female manager), while working with Plaintiff to achieve advancement opportunities, made it clear to Plaintiff that Griffin struggled because she was a woman and was not taken seriously as a manager because of her gender. Id. at ¶ 13. Griffin also revealed to Plaintiff at that time that Megan Thomas, Griffin, and Plaintiff (the only three females on the team) received lower starting wages than their male counterparts (Brent Gradishar, Alex Penning, and Brent Raes), all of whom had equal or lesser experience. Id. at ¶ 14.
On or about August 5, 2020, Plaintiff was demoted from “Senior Buyer” to “Buyer,” which resulted in a reduction in bonus from 10% to 5%. Id. at ¶ 15. Plaintiff was persuaded to assume the “Buyer” role under the guise that she would have opportunities for growth within the company. Id. Both in her position as a Senior Buyer and as a Buyer, Plaintiff was paid a lower salary than her male colleagues Gradishar, Penning, and Raes. Id. at ¶ 16.
On or about March 3, 2021, during a “Coffee Talk” meeting with Manager Todd Brower, Plaintiff “pointed out the obvious inconsistencies in opportunity for advancement between men and women,” such as that males with less experience (Drew Davis and Eric Johnson) had recently been promoted over more qualified female employees. Id. at ¶ 17. Plaintiff then “escalated her complaints to Human Resources, but no action was taken to correct the disparate treatment between male and female counterparts.” Id. at ¶ 18.
Plaintiff alleges that thereafter, “Defendant deliberately began retaliating against Plaintiff” in the following ways: Plaintiff was deprived of her annual bonus; her pay was unjustifiably docked; Defendant continued to pass over Plaintiff for promotional opportunities while Drew Davis, a less-qualified male, advanced within the company; and Human Resources denied Plaintiff's repeated requests for assistance. Id. at ¶ 19.
Plaintiff alleges that after “roughly a year of the aforementioned actions,” Plaintiff “could not bear it anymore-either emotionally or financially,” and she found the work environment so intolerable that she was forced to resign. Id. at ¶ 20. She alleges that “on or about March 14, 2022, [she] was constructively discharged due to gender discrimination and in retaliation for Plaintiff's complaints of gender salary inequity.” Id. at 22.
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 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 four causes of action in her Amended Complaint: (1) a claim for gender discrimination/disparate treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), based on the following actions: (a) paying Plaintiff lower wages than her male counterparts, (b) reducing her bonus potential while elevating the earning potential of similarly situated males, (c) demoting Plaintiff, (d) failing to continue to employ Plaintiff due to her gender, and (e) constructively discharging Plaintiff due to her gender; (2) a claim for hostile work environment in violation of Title VII; (3) a claim for retaliation in violation of Title VII; and (4) a claim for violation of the Equal Pay Act, 29 U.S.C. § 206 et seq. ECF No. 12. Defendant seeks dismissal of all claims, arguing that the claims were not administratively exhausted or that they otherwise fail to state a claim. ECF No. 14.
I. Exhaustion of Administrative Remedies
Defendant first argues that Plaintiff failed to exhaust administrative remedies on her Title VII claims for hostile work environment, retaliation, constructive discharge, and demotion/reduction of bonus potential. ECF No. 14 at 6-8. Plaintiff argues that she has exhausted administrative remedies for all her Title VII claims. ECF No. 15 at 3-4.
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). Title VII also 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) (dismissing 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) (“Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.”); 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); Bishop v. Behr Heat Transfer Sys., No. 2:11-CV-3535-SB-BHH, 2012 WL 1752701, at *4 (D.S.C. Feb. 16, 2012) (“A plaintiff's failure to file a charge within the applicable limitations period bars a later lawsuit in federal court.”), report and recommendation adopted, No. CIV.A. 2:11-3535-SB, 2012 WL 1752047 (D.S.C. May 16, 2012).
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). Courts have routinely enforced the 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).
A. Plaintiff's Charge of Discrimination
On August 17, 2021, while Plaintiff was still employed by Defendant, Plaintiff filed a Charge of Discrimination (“Charge”) with the EEOC against Defendant. ECF No. 14-1-1 at 2-3.
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. 12 at ¶ 2.
In her Charge, Plaintiff stated that the earliest date discrimination took place was April 30, 2021, and the latest date was also April 30, 2021. Id. at 2. She did not check the box for “continuing action.” Id. She indicated that her Charge was for discrimination based on sex and Equal Pay, and she did not identify any other basis for her Charge. Id. She further averred as follows:
I am employed by the above-named employer performing the duties of my position at a satisfactory level throughout my time with the Respondent. I was a Senior Buyer seeking to transition to Direct Purchasing. I desired to switch to Direct Purchasing because there were no opportunities for my advancement within Indirect Purchasing, and I was looking to expand my skillset and make myself more marketable to the company. Members of management told me I was unable to do so from that position. I was told taking a demotion to buyer would allow me to transition to Direct Purchasing so I accepted (decreasing bonus). Subsequently, I have continued to be overlooked for promotion/opportunities as resolutions (such as clear, quantifiable indicators of performance for advancement) that were discussed with HR and management did not come to fruition prior to my maternity
leave. The Respondent has and continues to transition/promote male employees from the Senior Buyer position to Direct Purchasing.
The Respondent has provided no reasoning for the aforementioned.
I believe I have been discriminated against because of my sex/female in violation of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963; as amended - respectively.Id. at 2-3.
B. Plaintiff failed to exhaust her administrative remedies for her claims based on hostile work environment, retaliation, and constructive discharge.
Defendant agues that Plaintiff failed to exhaust her administrative remedies for her hostile work environment, retaliation, and constructive discharge claims. ECF No. 14 at 4, 7. According to Defendant, “Plaintiff's Second and Third Causes of Action for hostile environment and retaliation are subject to dismissal for failure to exhaust administrative remedies because the Charge did not raise those claims and no other Charge was ever filed.” Id. at 7. Defendant further argues that “the Charge predated the end of Plaintiff's employment so the Charge could not and did not involve allegations surrounding termination or constructive discharge.” Id. at 8.
In response, Plaintiff argues that she properly exhausted her administrative remedies as to all her Title VII claims. ECF No. 15 at 3. Specially, she argues that her retaliation, hostile environment, and constructive discharge claims “are a natural and probable consequence of the gender discrimination complained of in her Charge and would have absolutely been discovered during an investigation limited to the scope of the charge.” Id. at 3-4 (citing Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) for the proposition that “the scope of a Title VII lawsuit may extend to any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission” (internal quotation marks omitted)). She further argues that “Defendant had actual knowledge of Plaintiff's claims that she was retaliated against when she complained about the demotion/reduction of bonus potential, causing the hostile environment which led to the constructive discharged during the EEOC investigation.” Id.
In reply, Defendant argues that Plaintiff's reliance on Nealon “is misplaced in that her retaliation and hostile environment claims existed at the time she filed her Charge” and “neither those two claims, nor Plaintiff's constructive discharge claim, are alleged to be in retaliation for filing her Charge, as Nealon requires.” ECF No. 16 at 1. Defendant further argues:
Here, Plaintiff alleges that she was retaliated against, and a hostile environment was created, for internal complaints made to Defendant five months before she signed her Charge. As explained in Plaintiff's Response, Plaintiff allegedly complained of inconsistencies in advancement opportunities for men and women on March 3, 2021, and then again on April 12, 2021, after which Defendant allegedly began retaliating against her and creating a hostile work environment. (ECF 15, p. 2; see also ECF 12, ¶¶ 19, 33.) Despite those allegations, Plaintiff did not assert either retaliation or hostile environment in her Charge (ECF 14-1, p. 2), and only claimed sex discrimination and “equal pay” despite it being signed by Plaintiff on August 17, 2021, nearly five months after the alleged protected activity and retaliation described in the Amended Complaint.Id. at 2. Defendant maintains that, “[b]y failing to include those allegations in her Charge, Plaintiff did not put Defendant on notice of a retaliation or hostile work environment claim and effectively prevented the EEOC from addressing those claims or attempting to reconcile them.” Id. Defendant further contends that it “necessarily follows that if the retaliation and hostile environment had already begun, they did not either ‘relate to' or ‘grow out' of her filing her Charge.” Id. at 3.
Regarding the constructive discharge claim, Defendant argues:
[T]here is nothing alleged in the Amended Complaint that relates the supposed constructive discharge back to the filing of the initial Charge or that could establish it arose out of filing the Charge. Indeed, Plaintiff does not allege she was constructively discharged for filing the Charge or engaging in any allegedly protected activity. While under the title “Retaliation” in the Third Cause of Action, Plaintiff alleges that “but for the Plaintiff's gender she would not have been constructively discharged.” (ECF 12, ¶ 41.)
Plaintiff's gender neither relates to the filing of the Charge or arises out of it, hence Nealon does not provide Plaintiff an exception to the requirement that she exhaust her administrative remedies that pertain to her constructive discharge claim.
Accordingly, Plaintiff failed to exhaust administrative remedies for her alleged constructive discharge and that claim must also be dismissed.Id. at 3.
Upon review, the undersigned is constrained to agree with Defendant. Plaintiff's EEOC Charge does not mention a hostile work environment, harassment, retaliation, or constructive discharge. Rather, the Charge alleges discriminatory promotion practices. Moreover, it alleges that discrimination occurred only during a one-day period, and it does not check the box for continuing action. See ECF No. 14-1 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 harassment, and the allegations of discrete acts of discrimination alleged in her Charge “are clearly not allegations of a hostile work environment.” See Chacko, 429 F.3d at 511 n.2 (finding that “discrete acts of discrimination, [such as] failure to promote and retaliatory demotion[,] . . . are clearly not allegations of a hostile work environment”). Moreover, it is clear from the allegations in the Amended Complaint that the alleged harassment and retaliation had begun before Plaintiff filed her Charge and did not occur as a result of her filing the Charge, such that this case in not analogous to Nealon. See Nealon, 958 F.2d at 590 (holding that a plaintiff asserting a Title VII claim of retaliation for filing a previous EEOC charge does not need to exhaust administrative remedies before bringing the retaliation claim in federal court). Furthermore, there are no allegations in the Charge that Plaintiff made any complaints to Defendant about discrimination. See Miles v. Dell, Inc., 429 F.3d 480, 492 (4th Cir. 2005) (finding plaintiff failed to exhaust her retaliation claim where plaintiff “did not check the retaliation box on her charge form, and the narrative explaining her charge made no mention of retaliation” or that plaintiff complained to her supervisor about discrimination).
Thus, the hostile work environment and retaliation claims are not reasonably related to the original charge nor could they reasonably be expected to be developed by a reasonable investigation of the original charge. Therefore, the undersigned concludes that Plaintiff failed to administratively exhaust her hostile work environment and retaliation claims, such that they are procedurally barred and should be dismissed. See Miles, 429 F.3d at 492 (affirming dismissal of retaliation claim for failure to exhaust where “retaliation claim [was] not reasonably related to her charge such that it would have been expected to follow from an investigation of [plaintiff's] sex and pregnancy discrimination claims”); Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (“Administrative investigation of retaliation . . . could not reasonably be expected to occur in light of [plaintiff's] sole charge of race discrimination, and the investigation of the complaint did not touch on any matters other than race discrimination.”); Evans, 80 F.3d at 963 (upholding dismissal of harassment claim where plaintiff's EEOC charge related solely to failure to promote).
Finally, the undersigned finds that Plaintiff did not exhaust her administrative remedies as to her constructive discharge claim. In her Amended Complaint, Plaintiff alleges that that the constructive discharge occurred in March 2022, almost a year after April 30, 2021, the date the Charge lists as the last date of discrimination. Moreover, Plaintiff did not check the box for continuing action on the Charge. Furthermore, although Plaintiff's Amended Complaint asserts that intolerable conditions led to her resignation, she does not allege any hostile environment, retaliation, or other intolerable conditions in her Charge, such that the constructive discharge is not reasonably related to the contents of the Charge, nor would a reasonable investigation of the claims contained in the Charge lead to the discovery of the alleged constructive discharge.
The parties both reference an email exchange between counsel following issuance of the Right to Sue notice regarding settlement negotiations, which Plaintiff argues supports a finding that she exhausted her administrative remedies as to constructive discharge and which Defendant argues supports a finding that she could never succeed on a claim for constructive discharge. See ECF Nos. 15 at 4; 16 at 3-5; 16-1. Upon review, the undersigned first finds that this email exchange should not be considered on a 12(b)(6) motion because it was not attached to, incorporated into, integral to, or explicitly relied upon in, the Amended Complaint. See Kolon Indus., Inc., 637 F.3d at 448. Nonetheless, even if it could be considered, the contents of the email exchange do not change the undersigned's analysis or conclusion that Plaintiff did not exhaust her administrative remedies as to the constructive discharge claim.
Accordingly, the constructive discharge claim falls outside the scope of the Charge and is therefore procedurally barred. See Sullivan v. Perdue Farms, Inc., 133 F.Supp.3d 828, 835 (E.D. Va. 2015) (finding constructive discharge claim procedurally barred); Karges v. Charleston Cnty. Sheriff's Off., No. 2:08-CV-2163-MBS, 2010 WL 3270310, at *10 (D.S.C. Aug. 17, 2010) (“Because constructive discharge is a discrete discriminatory act subject to administrative exhaustion and this claim was not included on Plaintiff's charge of discrimination, this claim must be dismissed for failure to exhaust administrative remedies.”).
C. Plaintiff failed to timely exhaust her administrative remedies for her demotion/reduced bonus claim.
Defendant argues that while the facts describing Plaintiff's claims based on a demotion and the related reduced bonus potential were included in Plaintiff's Charge, the factual allegations in the Amended Complaint make clear that the Charge was untimely. ECF No. 14 at 8. The undersigned is constrained to agree.
Plaintiff alleges in her Amended Complaint that the demotion and corresponding bonus reduction became effective on August 5, 2020, more than a year before Plaintiff filed her Charge. See ECF No. 12 at ¶ 15 (“On or about August 5, 2020, Plaintiff was demoted from ‘Senior Buyer' to ‘Buyer,' which carried with it a reduction in bonus, from ten percent (10%) to five percent (5%).”). However, for her Charge to be timely, Plaintiff had to file the Charge within 300 days of the alleged discriminatory act. See Gerald, 2021 WL 1394669, at *2; see also Morgan, 536 U.S. at 113 (“The charge . . . must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.”). Because Plaintiff's Charge was filed more than 300 days after the alleged demotion and reduction in bonus occurred, the undersigned agrees with Defendant that Plaintiff's Title VII claims based on the demotion and reduction in bonus are untimely and should be dismissed. See Morgan, 536 U.S. at 114-15 (explaining that “only incidents that took place within the timely filing period are actionable” and that “[a]ll prior discrete discriminatory acts are untimely filed and no longer actionable”).
II. Plaintiff's Title VII Discrimination Claim Should Be Dismissed.
In her first cause of action, Plaintiff alleges that Defendant violated Title VII through the following actions: (1) paying Plaintiff lower wages than her male counterparts; (2) reducing her bonus potential while elevating the earning potential of similarly situated males; (3) demoting Plaintiff; (4) failing to continue to employ Plaintiff due to her gender; and (5) constructively discharging Plaintiff due to her gender. ECF No. 12 at ¶ 26. As explained above, Plaintiff failed to exhaust her administrative remedies as to the bonus reduction, demotion, and “failing to continue to employ” / constructive discharge claims.
As for the remaining basis for Plaintiff's Title VII claim, Plaintiff claims that she was paid a lower salary than male colleagues both while she was a Senior Buyer in Indirect Purchasing from November 26, 2018, to August 4, 2020, and while she was a Buyer in Direct Purchasing from August 5, 2020, until the end of her employment on March 14, 2022. See ECF No. 12 at ¶¶ 1216; see also ECF No. 14-1 at 2 (Charge averring that she was demoted to a Buyer in Direct Purchasing). Defendant argues that Plaintiff's Title VII claim based on disparate pay should be dismissed in part for untimeliness and in part for failure to state a claim. ECF No. 14 at 9-11. The undersigned agrees.
A. The Title VII Disparate Pay Claim Based on the Senior Buyer Position
In her Amended Complaint, Plaintiff alleges that she learned of the pay disparity in her Senior Buyer position in or around September 2019. ECF No. 12 ¶¶ 12-14. She also alleges that she was demoted from Senior Buyer to Buyer on August 5, 2020, Id. at ¶ 15, making August 4, 2020, the last day that she was allegedly subject to disparate pay in the Senior Buyer position. However, she did not file her Charge until over a year later, on August 17, 2021, and well past the 300-day deadline for her to file a charge based on disparate pay occurring on or before August 5, 2020. See Morgan, 536 U.S. at 113; Gerald, 2021 WL 1394669, at *2.
Plaintiff argues that her disparate pay claim based on the Senior Buyer position is timely pursuant to the continuing violation doctrine. ECF No. 15 at 5. The undersigned is not persuaded. As explained above, in her Charge Plaintiff did not check the box for “continuing violation,” and she alleged that the wrongful activity began and ended on April 30, 2021, many months after she left the Senior Buyer position. Moreover, the continuing violation doctrine generally applies to hostile work environment claims, which involve ongoing conduct. In contrast, Plaintiff is trying to apply it to claims regarding how she was paid in two different positions, and for such pay discrimination claims, each paycheck typically is treated as being its own discrete act for Title VII purposes. See Morgan, 536 U.S. 101, 112-15 (2002) (comparing pay claims and hostile work environment claims in the context of continuing violations). Accordingly, the undersigned agrees with Defendant that any Title VII claim for disparate pay based on the Senior Buyer position was not timely exhausted and should be dismissed.
B. The Title VII Disparate Pay Claim Based on the Buyer Position
As to the Plaintiff's claim of disparate pay based on her employment in the Buyer position in Direct Purchasing between August 5, 2020, and the end of her employment on March 14, 2022, Defendant first contends that Plaintiff's Charge does not include a claim that she was paid less than comparable Buyers after her demotion in August 2020, such that Plaintiff never exhausted a disparate pay claim based on her time as a Buyer. ECF No. 14 at 9. Defendant further argues that even if Plaintiff had exhausted her remedies as to that claim, Plaintiff nonetheless fails to allege sufficient facts to state a viable claim for disparate pay in her position as a Buyer. Id. at 10-11. Specifically, Defendant contends that the claim should be dismissed because “Plaintiff simply fails to allege that her stated comparators, Brent Gradishar, Alex Penning, and Brent Raes (see ECF 12, ¶¶ 14, 16), actually held the same title or job description as her during the actionable period, were subject to the same standards, were subordinate to the same supervisor, or had comparable experience, education, and other qualifications.” ECF No. 14 at 11.
In Response, Plaintiff first argues that the “EEOC could easily derive pay disparity from her filed Charge,” such that Defendant's exhaustion of remedies argument lacks merit. ECF No. 15 at 6. As to Defendant's 12(b)(6) argument, Plaintiff points to the Amended Complaint's allegations that all males treated more favorably “had equal or lesser experience” and that they were on the same team. Id. She contends that these allegations provide sufficient details to state a claim for disparate pay under Title VII. Id.
In Reply, Defendant argues that Title VII pay disparity claims were never raised in the Charge for either the Senior Buyer or Buyer positions. ECF No. 16 at 7. Rather,
Plaintiff's Charge focuses on Senior Buyer male employees being allowed to move to Direct Purchasing without having to give up their Senior Buyer title whereas Plaintiff allegedly had to accept a demotion to “Buyer” in order to do so. Beyond that alleged inequity regarding her transfer, however, there is no claim from
Plaintiff in the Charge that she was paid less as a female than comparable male Senior Buyers or male Buyers. At most, Plaintiff complained in the Charge about the decreased bonus structure she accepted along with the move from Senior Buyer to Buyer, but did not allege any of the Title VII pay disparity claims she now includes in the Amended Complaint.Id. Defendant also argues that Title VII pay disparity claims for Buyers cannot be proven by employees holding different job titles working in different areas. Id. According to Defendant, the problem with Plaintiff's argument is that she was not hired into a Buyer position in Direct Purchasing on November 26, 2018, but rather was hired as a Senior Buyer within Indirect Purchasing. Id. at 8. Defendant notes that there are no allegations that the three male comparators ever became Buyers in Direct Purchasing like Plaintiff did, and if they were never Buyers in Direct Purchasing, they cannot be valid comparators under a Title VII disparate pay analysis. Id.
Upon review of the Charge, the undersigned finds that Plaintiff exhausted her administrative remedies as to the disparate pay claim based on the Buyer position. Plaintiff specified that she alleged discrimination based on “Equal Pay,” she averred that she was demoted with a reduced bonus when she accepted the buyer position in Direct Purchasing, and she stated that males were treated differently. ECF No. 14-1 at 2. The undersigned concludes that her disparate pay claim based on the Buyer position is reasonably related to the contents of the Charge, such that a reasonable investigation of the claims contained in the Charge likely would lead to the discovery of this claim.
However, upon review of the Amended Complaint, the undersigned agrees with Defendant that Plaintiff has failed to allege sufficient factual detail to state a plausible claim for disparate pay.
“While a plaintiff need not plead a prima facie case to survive a motion to dismiss, a Title VII complaint is still subject to dismissal if it does not meet the ordinary pleadings standard under Twombly and Iqbal.” Swaso v. Onslow Cnty. Bd. of Educ., 698 Fed.Appx. 745, 747 (4th Cir. 2017), as amended (Aug. 11, 2017) (citing McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 584- 85 (4th Cir. 2015); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)). In McCleary-Evans, the Fourth Circuit found that the plaintiff's complaint failed to state a Title VII discrimination claim under Rule 12(b)(6), noting that “[w]hile 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.” 780 F.3d at 586 (citing Iqbal, 556 U.S. at 678). The court further explained that the plaintiff's repeated allegations “that the Highway Administration did not select her because of the relevant decisionmakers' bias against African American women” were merely a “formulaic recitation” of the necessary elements and were “no more than conclusions,” which did not suffice under Iqbal and Twombly. Id. at 585. In affirming dismissal, the court explained that “the consequence of allowing McCleary-Evans' claim to proceed on her complaint as stated would be that any qualified member of a protected class who alleges nothing more than that she was denied a position or promotion in favor of someone outside her protected class would be able to survive a Rule 12(b)(6) motion,” but “[s]uch a result cannot be squared with the Supreme Court's command that a complaint must allege ‘more than a sheer possibility that a defendant has acted unlawfully.'” Id. at 588 (quoting Iqbal, 556 U.S. at 678).
Thus, to state a discrimination claim under Title VII, a plaintiff is “required to allege facts to satisfy the elements of a cause of action created by that statute.” McCleary-Evans, 780 F.3d at 585. In this case, Plaintiff must allege facts sufficient to show that Defendant “discriminate[d] against [Plaintiff] with respect to h[er] compensation . . . because of [her] . . . sex.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). Moreover, “[w]here a plaintiff attempts to rely on comparator evidence to establish circumstances giving rise to an inference of unlawful discrimination, . . . the similarity between comparators must be clearly established in order to be meaningful.” Swaso, 698 Fed.Appx. at 748 (internal quotation marks omitted) (citing Lightner v. City of Wilmington, N.C., 545 F.3d 260, 265 (4th Cir. 2008)).
Here, Plaintiff relies upon comparators to give rise to an inference of discrimination, but she “falls short of alleging facts from which to reasonably infer that their difference in [wages] was attributable to [sex] discrimination.” See Swaso, 698 Fed.Appx. at 749. Although Plaintiff alleges that Ms. Griffin told her in 2019 that the female Senior Buyers, including Plaintiff, received lower starting wages than Brent Gradishar, Alex Penning, and Brent Raes, all of whom had equal or less experience, see ECF No. 12 at ¶ 14, this allegation does not permit any inference that Plaintiff received disparate pay after she transitioned to the position of Buyer in August 2020. To be sure, Plaintiff also alleges that she was paid a lower salary than Gradishar, Penning, and Raes “[b]oth in her position as a Senior Buyer and as a Buyer.” Id. at ¶ 16. However, Plaintiff does not allege any facts from which to infer that Gradishar, Penning, and Raes were Buyers in Direct Purchasing-only that they were Senior Buyers in Indirect Purchasing. Thus, Plaintiff has failed to allege facts sufficient to give rise to an inference that the purported comparators had a similar job to her but were paid more than Plaintiff because of sex.
Without more, Plaintiff's allegations are insufficient to raise her right to relief above the speculative level. See Clement v. Spartanburg Steel Prod., No. 7:19-CV-666-MGL-KFM, 2020 WL 8713676, at *7 (D.S.C. Aug. 12, 2020) (finding Title VII pay discrimination claim should be dismissed pursuant to Rule 12(b)(6) because “[w]hile the plaintiff alleges that the defendant failed to pay him as much as his white co-workers, . . . he fails to allege facts sufficient to claim that the reason the defendant failed to pay him equally is because of his race”), report and recommendation adopted sub nom. Clement v. Spartanburg Steel Prod., Inc., No. CV 7:19-666-MGL-KFM, 2021 WL 809428 (D.S.C. Mar. 2, 2021), aff'd, No. 21-1344, 2021 WL 5563964 (4th Cir. Nov. 29, 2021); see also Swaso, 698 Fed.Appx. at 748 (affirming dismissal of racial disparate treatment claim upon finding plaintiff's allegations-that, unlike plaintiff, white employees were permitted to return to work with standing restrictions-lacked sufficient factual detail regarding the alleged comparators to raise her right to relief above the speculative level); Ballew v. United Parcel Serv. Inc., No. 618CV00059DCCJDA, 2018 WL 5074603, at *5 (D.S.C. Aug. 20, 2018) (finding that plaintiff “has failed to state a plausible claim for failure to promote or disparate pay for the same reason that she has failed to state a plausible claim of gender discrimination based on failure to reinstate-the bare allegation that two male employees were promoted to full-time driver positions fails to give rise to an inference of gender discrimination because it does not rise above speculation”), report and recommendation adopted, No. 6:18-CV-00059-DCC, 2018 WL 5043887 (D.S.C. Oct. 17, 2018). Thus, Plaintiff has not alleged sufficient facts from which to infer that she was “discriminate[d] against . . . with respect to h[er] compensation [in the Buyer position] . . . because of [her] . . . sex,” see 42 U.S.C. § 2000e-2(a)(1), such that she has not stated a plausible claim for wage discrimination under Title VII. See McCleary-Evans, 780 F.3d at 585, 588 (“McCleary-Evans' complaint leaves open to speculation the cause for the defendant's decision to select someone other than her, and the cause that she asks us to infer (i.e., invidious discrimination) is not plausible”).
For the foregoing reasons, the undersigned recommends that Plaintiff's Title VII claim be dismissed.
III. Plaintiff's Title VII Hostile Work Environment Claim Should Be Dismissed.
In her second cause of action, Plaintiff asserts a hostile work environment claim under Title VII, alleging that she experienced harassment during her employment, that “Defendant's wrongful action in response to Plaintiff's protected activity constituted a hostile work environment,” and that Defendant allowed a hostile work environment to exist in the workplace. ECF No. 12 at ¶¶ 3234.
In its Motion to Dismiss, Defendant argues that Plaintiff's hostile work environment claim is subject to dismissal for two independent reasons: (1) she failed to exhaust her administrative remedies, and (2) she failed to state a claim upon which relief can be granted. ECF No. 14 at 7, 14-15. As explained above, the undersigned recommends dismissal of this claim for failure to exhaust administrative remedies. For the reasons set forth below, the undersigned also agrees with Defendant that Plaintiff's Amended Complaint fails to state a viable hostile work environment claim and finds this to be an independent, alternative basis for dismissal.
A plaintiff may pursue a hostile work environment claim under Title VII. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc). “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.'” Id. (alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted)).
To state a hostile work environment claim under Title VII, Plaintiff must allege facts showing “she was subjected to (1) unwelcome conduct, (2) based on her . . . sex, that was (3) severe or pervasive enough to make her work environment hostile or abusive and (4) imputable to . . . her employer.” Bazemore v. Best Buy, 957 F.3d 195, 200 (4th Cir. 2020) (citing Boyer-Liberto, 786 F.3d at 277).
The undersigned agrees with Defendant that Plaintiff has failed to plead facts sufficient to establish the severe and pervasive prong of her hostile work environment claim. “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[.]'” 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).
Plaintiff's Amended Complaint alleges facts related to her alleged demotion to Buyer, her alleged disparate pay as compared to male employees, and the alleged failures by Defendant to address her claims of differing advancement opportunities for women. However, the conduct described in the Amended Complaint does not rise to the level of severe or pervasive activity necessary to state a claim for hostile work environment. See Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (finding facts “tell[ing] a story of a workplace dispute regarding [the plaintiff's] reassignment and some perhaps callous behavior by her superiors” to be insufficient to allege the type of severe or pervasive conduct necessary state a claim for hostile work environment); see also Chacko, 429 F.3d at 511 n.2 (finding that “discrete acts of discrimination, [such as] failure to promote and retaliatory demotion[,] . . . are clearly not allegations of a hostile work environment”). Accordingly, the undersigned finds that Plaintiff's hostile work environment claim is subject to dismissal for this additional, independent basis.
IV. Plaintiff's Constructive Discharge Claim Should Be Dismissed.
Plaintiff alleges constructive discharge as a basis for both her Title VII discrimination claim and her Title VII retaliation claim. ECF No. 12 at ¶ 26.e (discrimination claim), ¶¶ 38-30 (retaliation claim). Defendant moves for dismissal of Plaintiff's claims based on constructive discharge on two independent grounds: (1) that Plaintiff failed to exhaust her administrative remedies for a constructive discharge claim, and (2) that Plaintiff failed to state a claim for constructive discharge. ECF No. 14 at 7, 15-17. As explained above, the undersigned recommends dismissal of any constructive discharge claim for failure to exhaust administrative remedies. For the reasons set forth below, the undersigned also agrees with Defendant that Plaintiff's Amended Complaint fails to state a viable constructive discharge claim and finds this to be an independent, alternative basis for dismissal to the extent the Title VII discrimination and retaliation claims are based on a constructive discharge theory.
“In order to present a viable claim for constructive discharge in her Complaint, Plaintiff must have allegations sufficient to set forth a plausible claim ‘on its face' that she was subjected to employment practices which were both discriminatory and made her working conditions intolerable, thus forcing her or inducing her to quit.” El-Reedy v. Abacus Tech. Corp., 273 F.Supp.3d 596, 603 (D.S.C. 2017) (citing Iqbal, 556 U.S. at 678; Green v. Brennan, 578 U.S. 547, 55455 (2016); Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-1354 (4th Cir. 1995); Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002)). “In other words, Plaintiff's factual allegation must present a plausible claim that her employer's actions were so discriminatory that a reasonable person in her position would have felt compelled to resign, and that she actually did so.” Id. at 603-04 (citing Green, 578 U.S. at 555; Heiko v. Colombo Sav. Bank F.S.B., 434 F.3d 249, 262 (4th Cir. 2006); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).
Plaintiff argues that she has sufficiently pled constructive discharge, pointing specifically to her allegations that she discovered in 2019 that female Senior Buyers were earning less than males, that she was demoted in August 2020, that males were promoted over more qualified female employees, that she was deprived of her annual bonus, that her pay was unjustifiably docked, and that she was passed over for promotional opportunities. ECF No. 15 at 9-10 (citing ECF No. 12 at ¶¶ 14, 15, 17, 19). She also notes that she expressly alleged that she was “forced to resign” and that “Plaintiff's resignation is tantamount to constructive discharge in that no reasonable person would be able to sustain such working conditions.” Id. (quoting ECF No. 12 at ¶¶ 20, 21). Plaintiff maintains that these allegations are sufficient to allege both elements of a constructive discharge claim. Id.
Upon review, the undersigned agrees with Defendant that Plaintiff's factual allegations are not sufficient to state a claim for constructive discharge. Plaintiff's allegations that she was forced to resign and that her “resignation is tantamount constructive discharge,” without factual allegations to support them, are merely legal conclusions or recitations of the elements. See Iqbal, 556 U.S. at 678-79. Moreover, the facts alleged in the Amended Complaint are insufficient to present a plausible claim that Defendant's actions made her working conditions so intolerable that a reasonable person in her position would have felt compelled to resign.
Intolerability requires more than showing “a reasonable person . . . would have viewed resignation as the wisest or best decision, or even that the employee subjectively felt compelled to resign,” but rather the plaintiff must demonstrate “a reasonable person in the employee's position would have felt compelled to resign, that is, whether [s]he would have had no choice but to resign.” Perkins v. Int'l Paper Co., 936 F.3d 196, 212 (4th Cir. 2019) (internal quotation marks omitted) (emphases in original). “Critically, difficult or unpleasant working conditions and denial of management positions, without more, are not so intolerable as to compel a reasonable person to resign.” Id. The Fourth Circuit has explained that the intolerability element for a constructive discharge claim is a higher burden than the standard for a workplace harassment claim. See id.; Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1133 (4th Cir. 1995) (noting the severe and pervasive standard for a harassment claim is less severe than the intolerable standard for a constructive discharge claim).
As explained in the discussion above regarding Plaintiff's hostile work environment claim, the conduct described in the Amended Complaint does not rise to the level of severe or pervasive activity necessary to state a claim for hostile work environment. Because “constructive discharge requires a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment,” it necessarily follows that her factual allegations are insufficient to state a claim for constructive discharge. See Perkins, 936 F.3d at 212. Accordingly, the undersigned finds that Plaintiff has failed to state a claim for constructive discharge, such that this presents an independent, alternative basis for dismissing her constructive discharge claim.
V. Plaintiff's Retaliation Claim Should Be Dismissed.
In her third cause of action, Plaintiff asserts a retaliation claim under Title VII, alleging that Defendant retaliated against her by “constructively discharging [her] from employment and otherwise discriminating against her with respect to her compensation, terms, conditions, or privileges of employment due to her gender.” ECF No. 12 at 5 ¶ 39.
The undersigned has already found that Plaintiff failed to exhaust her administrative remedies for a retaliation claim and, to the extent the retaliation claim is based on constructive discharge, she has failed to state a claim for constructive discharge. Accordingly, the undersigned recommends that the retaliation claim be dismissed.
VI. Plaintiff's Equal Pay Act Claim
The fourth, and final, cause of action in Plaintiff's Amended Complaint is a claim for violation of the Equal Pay Act. ECF No. 12 at 5-6. Defendant moves to dismiss this cause of action for failure to state a claim upon which relief can be granted. ECF No. 14 at 11-14. Upon review, the undersigned agrees that the claim should be dismissed.
A. The Equal Pay Act Claim Based on the Senior Buyer Position is Time Barred.
Defendant first argues that any Equal Pay Claim based on the Senior Buyer position should be dismissed as time barred. ECF No. 14 at 11. 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). Unlike Title VII, the Equal Pay Act does not require plaintiffs to exhaust administrative remedies prior to filing a claim. However, the Equal Pay Act generally is governed by a two-year statute of limitations, except that a three-year statute of limitations applies in a case arising out of a willful violation. See 29 U.S.C. § 255(a).
Defendant argues that the two-year statute of limitations applies because Plaintiff does not allege that the Equal Pay Act violation was willful but instead uses the term “willful” only with regard to her retaliation claim under Title VII. ECF No. 14 at 11 n.4 (citing ECF No. 12 at ¶¶ 40, 44-47). Plaintiff responds that because she “alleges that the discrimination against her (including insufficient pay) was intentional, the proper limitations period for purposes of a 12(b)(6) motion is three years, not two.” ECF No. 15 at 7 (citing ECF No. 1 at ¶ 22). Defendant replies that the conclusory allegation that the discrimination was intentional is plainly insufficient to plead willfulness under Iqbal/Twombly, and that Plaintiff instead “must allege facts that could plausibly establish that Defendant ‘either knew its conduct was specifically prohibited by the Equal Pay Act or that it showed a reckless disregard for that potentiality.'” ECF No. 16 at 8 (quoting Robinson v. Ctr. for Disease Control and Prevention, No. CIV. L-07-2102, 2008 WL 8987439, *3-4 & n.5 (D. Md. 2008), aff'd sub nom. Robinson v. Centers for Disease Control & Prevention, 382 Fed.Appx. 265 (4th Cir. 2010)).
Upon review, the undersigned finds that Plaintiff has failed to allege sufficient facts to state a claim for a willful violation of the Equal Pay Act. Although Plaintiff describes Defendant's conduct as “intentional” in her three Title VII claims, see ECF No. 12 at ¶¶ 26, 35, and 39, and she uses the term “willfulness” in her retaliation claim, see id. at ¶ 40, she does not use either term in her Equal Pay Act claim. Moreover, she does not allege any facts supporting an inference that any violation of the Act was willful. Accordingly, the undersigned concludes that her claim is subject to the two-year statute of limitations.
As explained above, Plaintiff alleges that the last day that she was a Senior Buyer was on August 4, 2020. Therefore, to be timely under the two-year statute of limitations, any Equal Pay claim based on the Senior Buyer position had to have been filed on or before August 4, 2022. Plaintiff filed her initial Complaint in this action on December 22, 2022, more than four months after the statute of limitations expired. Therefore, the undersigned agrees with Defendant that Plaintiff's Equal Play claim based on her position as a Senior Buyer is time barred.
B. Plaintiff Fails to State an Equal Pay Act Claim Based on the Buyer Position.
Defendant also argues that the entirety of Plaintiff's Equal Pay claim should be dismissed for failure to allege facts sufficient to state a viable claim. ECF No. 14 at 11-14. In her Response, Plaintiff argues that she alleged sufficient facts to identify a comparator, noting that she identifies males by name that were on the same team as Plaintiff and had equal or less experience. ECF No. 15 at 7 (citing ECF No. 12 at ¶ 14). She also contends that the Amended Complaint “details that those named male colleagues were paid higher wages ((ECF 12, ¶ 16) and that other male employees (also identified by name) were being promoted despite having ‘less experience' (ECF 12, ¶ 17).” Id. at 8.
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); 29 U.S.C. § 206(d)(1). 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 v. Virginia State Univ., 919 F.3d 199, 203 (4th Cir. 2019). “In alleging this necessary equality, a plaintiff may not rely on broad generalizations at a high level of abstraction.” Id. at 204.
In its Motion, Defendant argues that Plaintiff's Equal Pay Act claim should be dismissed because she makes only conclusory allegations that males were paid more than she was for engaging in work of equal skill, effort, and responsibility, and she fails to plead facts sufficient to show that any comparator shared the same position or performed work that required substantially equal skill, effort, and responsibility. ECF No. 14 at 11-14. Upon review, the undersigned is constrained to agree.
In her Amended Complaint, Plaintiff alleges that “[b]oth in her position as a Senior Buyer and as a Buyer, Plaintiff was paid a lower salary than her male colleagues (namely Gradishar, Penning and Raes).” ECF No. 12 at ¶¶ 16, 45; see id. at ¶ 26(a) (alleging Defendant paid Plaintiff “lower wages than her male counterparts”). She further alleges that “Plaintiff performed equal work for the Defendant when compared to the aforementioned male colleague but was paid less due to her gender.” Id. at ¶ 46. These allegations merely recite 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.”). Although Plaintiff identifies by name three male comparators and states that all three “had equal or lesser experience” when they received higher starting wages than Plaintiff in September 2019, ECF No. 12 at ¶ 14, Plaintiff does not allege any other facts regarding any of these men, including their respective job duties, working conditions, skills, or responsibilities in their positions.
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 with no factual details as to the alleged comparators' working conditions or the skill, effort, and responsibilities of the employees is not sufficient to permit a reasonable inference that Defendant is 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). 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 performed under the same working conditions, as her job”).
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion to Dismiss (ECF No. 14) 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).