Opinion
Civil Action 6:23-2691-JDA-KFM
07-30-2024
Allyson C. Bergin as Personal Representative of the Estate of Molly A McKenzie, Plaintiff, v. 4 Aces Kitchen & Bar, LLC d/b/a 4 Aces Kitchen & Cocktails, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by 4 Aces Kitchen & Bar, LLC (“the defendant”) (doc. 47). 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.
BACKGROUND AND FACTUAL ALLEGATIONS
According to the second amended complaint, the defendant owns and operates a restaurant and bar in Greenville County, South Carolina (doc. 46 ¶ 5). The defendant hired Molly McKenzie (“Ms. McKenzie”), a female over the age of 40, as a general manager of the restaurant in May 2021 (id. ¶ 6, 13). Ms. McKenzie worked in this position until late March or early April 2022, when the defendant terminated her employment (id. ¶¶ 8-11). At all times relevant to Ms. McKenzie's employment, the defendant maintained various policies and procedures set forth in an employee handbook, which included a disciplinary policy (id. ¶ 7).
The plaintiff alleges that on March 27, 2022, while still employed by the defendant, Ms. McKenzie was hospitalized after suffering an acute mental health crisis and attempting to take her own life (doc. 46 ¶ 8). Ms. McKenzie was hospitalized for inpatient treatment for ten days (id.). On the same day that Ms. McKenzie was hospitalized, her partner contacted the defendant to let the defendant know that she was in the hospital (id. ¶ 9). He also informed the defendant of why Ms. McKenzie was in the hospital (id.). In doing so, it was Ms. McKenzie's partner's intention to let the defendant know that Ms. McKenzie would need time away from work and to see if the defendant needed Ms. McKenzie's keys to the restaurant during that time (id.).
The plaintiff submits that almost immediately thereafter and while Ms. McKenzie remained hospitalized, the defendant notified Ms. McKenzie that the defendant had cancelled her health insurance without cause (doc. 46 ¶ 10). Ms. McKenzie's health insurance premiums had already been paid for that month, in part by the defendant and in part by Ms. McKenzie, and she needed her health insurance to cover the costs of her hospitalization (id.). Given these circumstances, Ms. McKenzie responded to the defendant and objected to the cancellation of her health insurance (id.).
The plaintiff contends that Ms. McKenzie was released from the hospital on April 6, 2022, and she contacted the defendant on the same day to advise that she had been released and would return to work on the following Monday (doc. 24 ¶ 11). The defendant responded and asked Ms. McKenzie to come to the restaurant the following day (id.). When Ms. McKenzie reported to the restaurant on April 7, 2022, the defendant advised her that her employment had been terminated (id.). Ms. McKenzie had not received any prior warnings, disciplinary actions, reprimands, or notice of performance issues (id. ¶¶ 11-12). When Ms. McKenzie asked why her employment had been terminated, the defendant refused to provide a reason (id. ¶ 11).
The plaintiff alleges that following Ms. McKenzie's employment termination, Ms. McKenzie learned that her position had already been filled by a much younger and less experienced female (doc. 46 ¶ 13). Ms. McKenzie also learned that the defendant's owner(s), Roger Carlton (“Mr. Carlton”) and/or Trish Balentine (“Ms. Balentine”), had specifically expressed that they wanted to hire someone who was young and whom customers would find attractive (id.).
Additionally, the plaintiff alleges that the defendant's owners and members of management repeatedly shared private details relating to Ms. McKenzie's health issues and hospitalization with various individuals, including other employees and customers of the restaurant, from approximately April 6, 2022, to April 30, 2022 (doc. 46 ¶¶ 14, 37). Specifically, Mr. Carlton, Ms. Balentine, Ms. Linda (manager), and Ms. Anna (manager) falsely told various customers and employees at the restaurant, including Ms. Lizzy (Ms. McKenzie's niece), Ms. Katrina (employee), and Mr. Jordan (employee), that Ms. McKenzie was fired because she had been a bad employee and had been performing her job poorly (id. ¶ 14). Mr. Carlton, Ms. Balentine, Ms. Linda, and Ms. Anna also told various customers and employees at the restaurant, including Ms. Lizzy, Ms. Katrina, and Ms. Jordan, that Ms. McKenzie had attempted suicide and was in the hospital as a result of mental health issues (id.). The plaintiff alleges that Mr. Carlton, Ms. Balentine, Ms. Linda, and Ms. Anna intentionally made such representations in a clear attempt to discredit Ms. McKenzie and harm her reputation (id.).
The plaintiff submits that Ms. McKenzie subsequently filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and Ms. McKenzie received a notice of right to sue letter from the EEOC on September 14, 2023 (doc. 46 ¶ 15). On April 4, 2023, Ms. McKenzie filed a complaint against the defendant in the Greenville County Court of Common Pleas, alleging claims for wrongful termination, interference with rights in violation of the Family and Medical Leave Act (“FMLA”), retaliation in violation of the FMLA, defamation, invasion of privacy, intentional infliction of emotional distress, violation of South Carolina Code Annotated § 1-13-80, and breach of contract (doc. 1-1). The defendant removed the case to this court based on federal question jurisdiction on June 15, 2023 (doc. 1), and the defendant filed a partial motion to dismiss for failure to state a claim on June 22, 2023 (doc. 7).
On July 7, 2023, Ms. McKenzie took her own life (doc. 46 ¶ 16). On July 12, 2023, the undersigned issued an order granting the parties' consent motion to stay the case (doc. 12). Ms. McKenzie's counsel filed a motion to substitute party on October 5, 2023, requesting that Allyson C. Bergin (“Ms. Bergin” or “plaintiff”), as the personal representative and on behalf of the estate of Ms. McKenzie, be substituted as the plaintiff in this matter (doc. 17). The undersigned granted the motion to substitute on October 10, 2023 (doc. 19). On October 16, 2023, the undersigned issued an order granting the plaintiff's consent motion to amend the complaint (doc. 22). In this order, the undersigned noted that upon the filing of an amended complaint, the defendant's partial motion to dismiss, which was directed to the original complaint, would be rendered moot (id.).
The plaintiff filed an amended complaint against the defendant on October 17, 2023, alleging claims for wrongful termination, interference with rights in violation of the FMLA, retaliation in violation of the FMLA, defamation, invasion of privacy, intentional infliction of emotional distress, violation of South Carolina Code Annotated § 1-13-80, breach of contract, disability discrimination in violation of the Americans with Disabilities Act (“ADA”), retaliation in violation of the ADA, and discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) (doc. 24). The defendant filed a partial motion to dismiss on November 1,2023, arguing that the plaintiff's claims for wrongful termination, defamation, invasion of privacy, intentional infliction of emotional distress, and breach of contract should be dismissed (doc. 26). The plaintiff filed a response in opposition on December 6, 2023 (doc. 29). On April 3, 2024, the undersigned issued a report and recommendation recommending that the defendant's partial motion to dismiss be granted as to the plaintiff's claims for wrongful termination, defamation, invasion of privacy, and breach of contract and be denied as to the plaintiff's claim for intentional infliction of emotional distress (doc. 41). The undersigned further recommended that the plaintiff be granted leave to file a second amended complaint solely to cure the deficiencies in her defamation and invasion of privacy claims, as the plaintiff failed to set forth allegations with sufficient specificity to survive the defendant's motion to dismiss (id.). The district court adopted this report and recommendation in an order issued on April 29, 2024 (doc. 44). The plaintiff filed a second amended complaint on May 13, 2024, alleging claims for interference with rights in violation of the FMLA, retaliation in violation of the FMLA, defamation, invasion of privacy, intentional infliction of emotional distress, violation of South Carolina Code Annotated § 1-13-80, disability discrimination in violation of the ADA, retaliation in violation of the ADA, and discrimination in violation of the ADEA (doc. 46). On May 25, 2024, the defendant filed a partial motion to dismiss the plaintiff's defamation and invasion of privacy claims (doc. 47). The plaintiff filed a response on June 10, 2024 (doc. 52). Accordingly, this matter is now ripe for review.
APPLICABLE LAW AND ANALYSIS
Standard of Review
“'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)). Federal Rule of Civil Procedure 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))). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).
Defamation
The defendant argues that the plaintiff fails to state a plausible defamation claim in her second amended complaint because she has still not set forth allegations with sufficient specificity (doc. 47-1 at 5-7). “The tort of defamation permits a plaintiff to recover for injury to her reputation as the result of the defendant's communication to others of a false message about the plaintiff.” McBride v. Sch. Dist. of Greenville Cnty., 698 S.E.2d 845, 852 (S.C. Ct. App. 2010). The elements of defamation include “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” McNeilv. S.C. Dep't of Corr., 743 S.E.2d 843, 848 (S.C. Ct. App. 2013) (citation omitted). “[I]n order to plead defamation, a plaintiff should allege specific defamatory comments [including] ‘the time, place, content, speaker, and listener of the alleged defamatory matter.'” English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., C/A No. 97-2397, 1999 WL 89125, at *3 (4th Cir. 1999) (quoting Caudle v. Thomason, 942 F.Supp. 635, 638 (D.D.C. 1996)). A defendant “cannot be expected to defend against an allegation that [he] defamed [a p]laintiff by making a statement heard by unknown persons at an unknown place at an unknown time.” Colleton v. Charleston Water Sys., 225 F.Supp.3d 362, 369-70 (D.S.C. 2016).
The undersigned finds that the plaintiff has set forth allegations with sufficient specificity in her second amended complaint. As set out above, the plaintiff alleges that Mr. Carlton, Ms. Balentine, Ms. Linda, and Ms. Anna made knowingly false statements about Ms. McKenzie to various third parties (doc. 46 ¶ 14). Specifically, from approximately April 6, 2022, to April 30, 2022, Mr. Carlton, Ms. Balentine, Ms. Linda, and Ms. Anna told customers and employees at the restaurant, including Ms. Lizzy, Ms. Katrina, and Mr. Jordan, that Ms. McKenzie was fired because she had been a bad employee and had been performing her job poorly (id.). The plaintiff alleges that Mr. Carlton, Ms. Balentine, Ms. Linda, and Ms. Anna intentionally made these representations in a clear attempt at discrediting Ms. McKenzie and harming her reputation (id.). Moreover, the plaintiff alleges that as a direct and proximate result of these negative and untrue statements, Ms. McKenzie suffered damages to her reputation, was unable to find another job with the same level of salary and benefits that she had with the defendant, and experienced emotional pain and suffering that ultimately resulted in Ms. McKenzie taking her own life (id. ¶ 29). Unlike in her amended complaint, the plaintiff has now alleged specific defamatory statements, as well as the time, place, content, speakers, and listeners of those statements. Based on the foregoing, the undersigned finds that the defendant's argument that the plaintiff's defamation claim should be dismissed based on a lack of specificity is without merit. See Twombly, 550 U.S. at 555 (noting that Rule 8 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.'") (quoting Conley, 355 U.S. at 47); compare Campbell v. Int'l Paper Co., C/A No. 3:12-30420JFA, 2013 WL 1874850, at *8 (D.S.C. May 3, 2013) (dismissing a defamation claim that was inadequately pled because it lacked details about when, where, and to whom the defamatory statements were published).
The defendant also argues that the plaintiff's defamation claim should be dismissed regarding the statements made to Ms. Katrina and Mr. Jordan because a qualified privilege is attached to communications between employees of the same corporation (doc. 47-1 at 6-7). Generally, “[communications between officers and employees of a corporation are qualifiedly privileged if made in good faith and in the usual course of business.” Murray v. Holnam, Inc., 542 S.E.2d 743, 749 (S.C. Ct. App. 2001) (citation omitted). However, “[t]he privilege does not protect any unnecessary defamation.” Id. (citation omitted). “In order for a communication to be privileged, the person making it must be careful to go no further than his interests or his duties require.” Id. (citation omitted). “Where the speaker exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of the plaintiff, he will not be protected.” Id. (citation omitted). “Whether the publication went too far beyond what the occasion required, resulting in the loss of the qualified privilege, is a question for the jury.” Id. (citation omitted). Here, the plaintiff alleges that Mr. Carlton, Ms. Balentine, Ms. Linda, and Ms. Anna made knowingly false statements about Ms. McKenzie with the intention of discrediting her and harming her reputation. At this stage of the litigation, the undersigned finds that the plaintiff has alleged statements that were not made in good faith and in the usual course of business but that were outside of this intra-corporate privilege. Therefore, the undersigned recommends that the district court deny the defendant's motion to dismiss the plaintiff's defamation claim.
Invasion of Privacy
The defendant also argues that the plaintiff's invasion of privacy claim should be dismissed because the plaintiff has not alleged that the defendant publicized any private information (doc. 47-1 at 7-9). The right of privacy is “‘the right to be let alone; the right of a person to be free from unwarranted publicity.'” Swinton Creek Nursery v. Edisto Farm Credit, ACA, 514 S.E.2d 126, 130 (1999) (quoting Holloman v. Life Ins. Co. of Va., 7 S.E.2d 169, 171 (1940)). In South Carolina, there are three distinct causes of action for invasion of privacy:
“[1] The unwarranted appropriation or exploitation of one's personality, [2] the publicizing of one's private affairs with which the public has no legitimate concern, or [3] the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.”Id. (quoting Meetze v. Associated Press, 95 S.E.2d 606, 608 (1956)). The plaintiff acknowledges that her claim falls under the second cause of action (doc. 52 at 13). The elements of this tort include (1) publicizing, (2) absent any waiver or privilege, (3) private matters in which the public has no legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary sensibilities. Swinton, 514 S.E.2d at 131 (citations omitted). “[P]ublicity, as opposed to mere publication, is what is required to give rise to a cause of action for this branch of invasion of privacy . . . .” Id. Publicity “means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Id. “[Communication to a single individual or to a small group of people” will not suffice. Id.
In her second amended complaint, the plaintiff alleges that the defendant and its owners and members of management were provided with private and confidential information regarding Ms. McKenzie's health and medical treatment, including the highly sensitive fact that she had attempted to take her own life and was hospitalized on an inpatient basis as a result (doc. 46 ¶ 32). This information was shared with the defendant solely insofar as it affected Ms. McKenzie's need for leave from work to seek appropriate medical treatment (Id.). The plaintiff alleges that the defendant owed Ms. McKenzie a duty of privacy to not improperly share such information with any third party without Ms. McKenzie's consent (Id.). The plaintiff further alleges that the defendant knew or should have known that Ms. McKenzie desired her private information to remain private and that there was no legitimate and/or compelling public interest in the disclosure of any such information (Id. ¶ 33). Nevertheless, the defendant, acting through Mr. Carlton, Ms. Balentine, Ms. Linda, and Ms. Anna, publicized Ms. McKenzie's private affairs and health information, including details and information about her suicide attempt and inpatient hospitalization, in a manner so outrageous as would be highly offensive to a reasonable person (Id. ¶ 34). Specifically, the plaintiff contends that Mr. Carlton, Ms. Balentine, Ms. Linda, and Ms. Anna repeatedly published such highly private and confidential information to customers and employees at the restaurant, including Ms. Lizzy, Ms. Katrina, and Mr. Jordan, on various dates and times between April 6, 2022, and April 30, 2022 (Id. ¶¶ 14, 34, 37). As a result, Ms. McKenzie was unable to find another job with the same level of salary and benefits as she had with the defendant (Id. ¶¶ 29, 35).
Because the plaintiff alleges that the defendant repeatedly shared this private information to customers and employees in the restaurant over an approximately three-week span and that this sharing of information ultimately prevented Ms. McKenzie from being able to obtain a similar job, the undersigned finds that the plaintiff has sufficiently pled publicity. Accordingly, the undersigned recommends that the district court deny the defendant's motion to dismiss.
CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the district court deny the defendant's partial motion to dismiss (doc. 47).
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next 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).