Opinion
C. A. 2:22-cv-01079-BHH-MHC
12-12-2023
Yaritzel Hall Perry, Patrice Simmons, and Brionna Johnson, Plaintiffs, v. Berkeley Electric Cooperative, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Yaritzel Hall Perry (“Hall Perry”), Patrice Simmons (“Simmons”), and Brionna Johnson (“Johnson”) were each proceeding pro se when they filed this employment discrimination action against their former employer, Berkeley Electric Cooperative. ECF No. 1.
Before this Court is a Motion to Dismiss filed by Defendant pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 18. As Plaintiffs were proceeding pro se, the Court entered a Roseboro Order, which was mailed to Plaintiffs, advising them of the importance of a dispositive motion and of the need to file an adequate response. ECF Nos. 24, 25. Plaintiffs were specifically advised that if they failed to file a properly supported response, Defendant's Motion may be granted, thereby ending their case. ECF No. 24. Thereafter, Plaintiffs were granted multiple extensions of the deadline to respond, and they ultimately obtained counsel to represent them in this matter. See ECF Nos. 29, 32, 36, 39, 42-44, 45. Counsel for Plaintiffs filed a Response in Opposition to Defendant's Motion. ECF No. 46. The Motion to Dismiss is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge 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. This Report and Recommendation is entered for review by the District Judge.
Also before the Court is Defendant's Motion to Show Cause, ECF No. 20, in which Defendant asserts that a then-suspended out-of-state lawyer ghost-drafted the Complaint and mailed it to the Court on behalf of Plaintiffs. Defendant seeks an order “requiring Plaintiffs and their out-of-state attorney to show cause why their claims should not be dismissed, and why they should not be held in contempt and face other appropriate sanctions, with respect to the unauthorized practice of law.” ECF No. 20 at 1. After making an appearance in this case, Plaintiffs' newly obtained South Carolina counsel filed a Response in Opposition, arguing that the alleged suspended attorney was not Plaintiffs' legal representative, never made an appearance in this case, and could not have made an appearance in this case because she is not admitted in the District of South Carolina. ECF No. 47 at 1-2. The Response further argues that Plaintiffs should not be punished but instead be permitted to proceed on their claims with the representation of their current counsel, who is admitted to and in good standing with this District. Id. at 2. In light of Plaintiffs' various efforts to obtain counsel licensed in this District and to cure the procedural defects in the initial filing of their Complaint, and in consideration of their initial pro se status, the undersigned recommends that Defendant's Motion to Show Cause be denied and that Plaintiffs' Complaint not be dismissed on this basis, nor any other sanctions levied against Plaintiffs at this time.
THE ALLEGATIONS IN THE COMPLAINT
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff for purposes of ruling on Defendant's Motion to Dismiss. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
I. Patrice Simmons (See ECF No. 1 at 2-7 ¶¶ 3, 7-34)
Simmons, an African-American female, worked for Defendant from October 3, 2011, to April 1, 2021. Originally she was an office manager for the Johns Island and Awendaw offices. In June 2018, Defendant promoted Simmons to a Director of Community Services position, while she continued to hold the position of Awendaw Office Manager.
In December 2018, Simmons sought to hire an African-American female, whose spouse also worked for Defendant. Simmons was told she could hire the most qualified candidate, but when she chose the African-American female, a member of management told Simmons she could not hire that person because he did not believe her to be the best qualified. Simmons alleges that she was threatened with demotion because she dared to recommend and attempt to hire an African-American female whom she deemed to be most qualified for the position. The CEO ultimately stepped in and told Simmons that her job was safe.
In October 2019, Simmons was assigned to replace another employee as the Berkeley Electric Trust Board Administrator, but her job description was never updated to reflect her additional duties.
Simmons claims that on August 25, 2020, she was advised that her functions as Community Services Manager were eliminated and she became responsible only for the Awendaw office as the manager. In response to the changes, Simmons informed Defendant's CEO and vice presidents that she believed she was discriminated against based upon race and retaliated against for having spoken out about discriminatory treatment of herself and other African-Americans employees.
In October 2020 she was told she could no longer utilize a company vehicle even though she was required to drive approximately 55 miles one way to work and would not have accepted the position in Awendaw without the vehicle.
On April 1, 2021, Simmons allegedly was informed that her job was being terminated. She claims that none of the items mentioned in the termination letter had previously been discussed with her. At the time, Amy Langdon (white), Vice President of Member Services, was Simmons's direct supervisor.
II. Yaritzel Hall Perry (See ECF No. 1 at 2, 7-9 ¶¶ 4, 36-49)
Hall Perry, a black woman of Panamanian descent, was employed as a public service representative from January 7 to October 1, 2020. She claims that throughout her period of employment, upper management made fun of her accent at meetings. She asserts that even though she was hired for her bilingual skills she was “kept away from dealing with the LEP members for the most part.” Instead, the work was given to Yajaira Torres Bess (Torres Bess), a non-Black, Caucasian-appearing female.
Hall Perry claims she was kept in the office and was overwhelmed with demands that she focus on a newsletter that took most of her time because “Libby was never pleased and continually harassed Hall Perry with unrealistic deadlines.” She asserts she was left out of decision-making and was denied access to information, training, and the opportunity to perform on radio shows used to enhance service delivery. She claims that Torres Bess was not held to the same standard.
Hall Perry was placed on a 60-day Performance Improvement Plan (PIP) on August 6, 2020. She allegedly made complaints to management regarding discriminatory treatment based on race, national origin, color, and age. While on the PIP, Hall Perry contends that others not in the same protected category were permitted to continue their employment despite not performing up to standard.
Hall Perry claims she was not allowed to work from home during the pandemic but other similarly-situated employees were. Although Hall Perry was later allowed to work from home, she alleges that she was issued faulty equipment and required to come back to the work site before everyone else for her productivity to be monitored.
On October 1, 2020, Hall Perry was informed she was being terminated for insufficient performance of job duties and failure to meet the expectations outlined in the PIP, even though she had no further infraction and there was still time left on the PIP. She claims she was fired while she was on sick leave for emotional distress caused by Defendant. See ECF No. 1 at 7-9.
III. Brionna Johnson (See ECF No. 1 at 2, 10-12 ¶¶ 5, 50-61)
Johnson, an African-American female, began work at Berkeley Electric as a community service representative on February 17, 2020. She was hired by Simmons. In September 2020, Johnson was informed that her job was changing and moving to the communications department. She was given two weeks to take over and master the publication of the company newsletter even though her degree was in social work and it was not her expertise to work in communications and to write a newsletter.
Johnson filed a grievance with Human Resources in November 2020, after she allegedly was informed that she would be considered insubordinate if she did not meet the newsletter deadlines. She claims that a Caucasian male who had a college degree in communications and social media was given six months to transition into the same job and was not subjected to complaints about his performance and the same “harsh deadlines.” She claims that Libby Roerig, a supervisor, lowered Johnson's rating on her performance evaluations because Johnson reached out to several vice presidents directly instead of going through her supervisor. Johnson allegedly complained (to an unspecified person or persons) that “Black female employees experience a difficult time at the company.”
Johnson's newsletter responsibilities allegedly became so overwhelming that Johnson was unable to satisfactorily complete her community service job duties. In an email to human service vice president Louise Meade dated November 13, 2020, Johnson stated that, as a young Black women, she found it difficult to express her feelings without being seen as difficult, insubordinate, or ungrateful. It is unclear from the Complaint if Johnson was terminated or is still employed by Defendant. See ECF No. 1 at 10-13.
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 accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). 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 and brackets omitted).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, principles requiring generous construction of pro se complaints do “not require courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Giving liberal construction does not mean that the court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) (“Only those questions which are squarely presented to a court may properly be addressed.”). Thus, even under this less stringent standard, a pro se complaint is still subject to summary dismissal. Estelle, 429 U.S. at 106-07.
DISCUSSION
In their Complaint, Plaintiffs assert two causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”): (1) a claim for race discrimination, which appears to incorporate numerous claims, including claims for discriminatory failure to hire African-Americans, failure to promote African-Americans, disparate work performance rules for African-Americans, and termination of African-Americans; and (2) a claim for retaliation. ECF No. 1 at 12. The two causes of action asserted have no specificity as to each Plaintiff.
Defendant moves to dismiss Plaintiffs' Complaint in its entirety for failure to state a claim upon which relief can be granted, arguing that Plaintiffs failed to exhaust their administrative remedies in whole or in part and failed to state adequate claims under the Iqbal standards of pleading. ECF No. 18 at 1.
I. Johnson's Claims
In its Motion, Defendant argues that Johnson never filed any Charge of Discrimination with the EEOC, such that she failed to exhaust her administrative remedies for any of her claims. ECF No. 18-5 at 6.
A. Exhaustion of Administrative Remedies
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 U.S. Equal Employment Opportunity Commission (“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).
B. Johnson's Claims Should Be Dismissed for Failure to Exhaust
Although Plaintiffs collectively allege that they “have filed a [single] complaint of discrimination with the Equal Employment Opportunity Commission,” ECF No. 1 at ¶ 35, the Charges of Discrimination before the Court show that Hall Perry filed her EEOC charge in February 2021, while Simmons filed her EEOC charge in June 2021. See ECF Nos. 18-1, 18-3. Based on the charges, it is not reasonable to infer that Plaintiffs filed a joint charge.
Defendant argues that Johnson's claims should be dismissed for failure to exhaust administrative remedies because she never filed any Charge of Discrimination with the EEOC or the South Carolina Human Affairs Commission (“SCHAC”). ECF No. 18-5 at 6. Johnson does not dispute this contention in her Response to Defendant's Motion, nor does she produce a copy of any charge or otherwise argue that she filed a charge. See ECF No. 46.
On this record, and in the absence of any argument to the contrary by Johnson, the undersigned is constrained to agree with Defendant that Johnson has failed to establish that she exhausted her administrative remedies as to her claim. Accordingly, the undersigned recommends that Johnson's claims against Defendant be dismissed.
II. Hall Perry's Claims
Defendant first argues that Hall Perry failed to timely exhaust her administrative remedies on some of her Title VII claims. ECF No. 18-5 at 8-9. Defendant also contends that all of Hall Perry's claims should be dismissed for failure to state a viable claim for relief. Id. at 14-18.
A. Whether Hall Perry Exhausted Her Administrative Remedies
Hall Perry filed a Charge of Discrimination dated February 21, 2021, with the SCHAC and the EEOC. ECF No. 18-1. In her Charge, Hall Perry stated that the earliest date discrimination took place was January 7, 2020, and the latest date was October 1, 2020. Id. She did not check the box for “continuing action.” Id. She indicated that her Charge was for discrimination based on race, color, national origin, age, and retaliation, and she did not identify any other basis for her Charge. Id. She further averred as follows:
In evaluating the Complaint in its entirety, the Court may consider each Plaintiff's respective 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. 1 at 7 ¶ 35 (“Plaintiff have filed a complaint of discrimination with the Equal Employment Opportunity Commission.”).
I was intimidated and subjected to disparate treatment from on or about January 7, 2020 through October 1, 2020. As a Public Relations Representative, whenever I had a meeting with upper management, they would laugh at my accent. Additionally, any of my suggestions or ideas were turned down. I was left out or kept away from information that I needed to perform my duties. I was also kept from doing radio shows and was not properly trained on new software. Moreover, I was often compared to another employee (Caucasian) and told I need to write on her level or there would be other measures taken. When I requested taking LinkedIn classes to help me with my writing, I was denied. Younger and/or lighter-skinned employees [were] treated more favorably. I reported my concerns to management, but no corrective actions were taken. Because of my race, national origin, color, and age, I was subjected to such treatment.
I was disciplined on or about August 6, 2020. I was written up and placed on a Performance Improvement Plan for 60 days. I am aware of other employees (Caucasian, American, younger and/or light skinned) that were not performing to standard but were not subjected to the same treatment. I contend I was disciplined due to my race, national origin, color, age, and in retaliation for my complaints.
I was discharged on or about October 1, 2020. I received a letter stating that I was terminated for insufficient performance of duties and failure to meet expectations of the performance improvement plan. I contend that the Respondent's reasons for discharging me are pretext and that I was discharged because of my race, national origin, color, age, and in retaliation for my complaints.
I therefore believe I have been discriminated against because of my race/national origin (African American/Panama), Color (Dark Skinned), age (41), and in retaliation for engaging in an activity protected by the South Carolina Human Affairs Law, as amended[;] Title VII of the U.S. Civil Rights Act of 1964, as amended[;] and Age Discrimination in Employment Act of 1967, as amended.Id. at 1-2. The EEOC issued her a Right to Sue letter on January 7, 2022. ECF No. 18-2, and Plaintiffs filed this action within 90 days of Hall Perry's Right to Sue.
In its Motion, Defendant argues that “[b]ased on the timing of her charge, presumably filed on or about February 21, 2021, Hall Perry is limited to claims arising, at the earliest, since April 27, 2020.” ECF No. 18-5 at 9. Defendant concedes that Hall Perry timely exhausted any claims “relating to implementation of the Performance Improvement Plan on August 6, 2020 (Compl. ¶ 44); her termination on October 1, 2020 (Compl. ¶ 49); and perhaps claims that management would regularly ‘make fun' of her accent (Compl. ¶ 37).” Id. However, Defendant contends that “Hall Perry's Complaint is insufficient to demonstrate that she has satisfied her administrative prerequisite of filing a timely charge with respect to her allegations in Paragraphs 38-41, 43 and 48.” Id. (referencing allegations that Hall Perry was left out of decision-making and had her ideas rejected, denied access to information she needed to perform her job, denied training on new software, denied the opportunity to perform on radio shows, denied classes on writing skill development, and was denied the opportunity to work from home during the pandemic).
Upon review, the undersigned is not persuaded by Defendant's argument regarding these specific allegations, at least not at this early stage of the litigation. Indeed, Hall Perry's Charge contains many of these allegations, and the undersigned is not persuaded that the others would not have been developed during a reasonable investigation into the Charge. See Evans, 80 F.3d at 963.
As for timeliness, the Charge alleges that all discrimination took place between January 2020 and October 2020, and based on when the Charge was filed, Hall Perry exhausted claims occurring after April 27, 2020. See Morgan, 536 U.S. at 113 (“The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.”) It is not clear based on the record presently before the Court whether the alleged events in the allegations challenged by Defendant occurred before or after April 27, such that the undersigned cannot determine, at the 12(b)(6) stage, whether Plaintiff timely exhausted her remedies for claims based on these allegations. See Anderson v. First Citizens Bank, No. CV 3:22-2195-MGL-PJG, 2023 WL 2761312, at *2 (D.S.C. Feb. 14, 2023) (“[E]xhaustion is not jurisdictional, and because the charge-filing requirement is an affirmative defense (as opposed to a jurisdictional issue), Plaintiff is not required to allege facts sufficient to establish that she satisfied this requirement.”) (citing Fort Bend Cnty., Texas v. Davis, 139 S.Ct. 1843, 1850-51 (2019); Spearman v. City of Annapolis, No. CV JKB-21-1779, 2022 WL 316641, at *5 (D. Md. Feb. 1, 2022)), report and recommendation adopted, (D.S.C. Apr. 3, 2023).
Defendant also argues that Hall Perry failed to exhaust her administrative remedies for any pattern or practice claim. ECF No. 18-5 at 8 (noting that Plaintiffs attempt to complain of a “pattern” of discriminatory conduct in paragraph 62 of the Complaint). In her Response, Hall Perry does not address any of Defendant's exhaustion arguments. See ECF No. 46.
Upon review, the undersigned agrees with Defendant that Plaintiff failed to exhaust her remedies for any pattern or practice claim. The Fourth Circuit has explained that “the factual allegations made in formal litigation must correspond to those set forth in the administrative charge,” and “the allegation of a discrete act or acts in an administrative charge is insufficient when the plaintiff subsequently alleges a broader pattern of misconduct.” Chako, 429 F.3d at 509; see also Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 306 (4th Cir. 2019) (affirming dismissal of discriminatory termination claim where the court complaint “allege[d] a broader pattern of misconduct than [was] stated in the administrative charging document”); Dennis v. Cty. Fairfax, 55 F.3d 153, 156-57 (4th Cir. 1995) (charge alleging discrimination in defendant's disciplining did not cover broader pattern of discrimination in hiring, training, and promotion). Because Hall Perry did not assert any pattern or practice claims in her Charge, but rather alleged discreet acts directed only at her, she cannot now allege a pattern or practice claim in her lawsuit. Accordingly, any claim by Hall Perry based on a pattern or practice of discrimination should be dismissed for failure to exhaust.
B. Whether Hall Perry's Complaint Satisfies the Iqbal/Twombly Pleading Standard
Defendant moves to dismiss Hall Perry's remaining claims for failure to plead facts sufficient to satisfy the Iqbal standard. ECF No. 18-5 at 14-18.
1. Title VII Discrimination Claim
“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, Hall Perry must allege facts sufficient to show that Defendant “discharge[d Hall Perry] or otherwise discriminate[d] against [her] with respect to h[er] compensation, terms, conditions, or privileges of employment, because of [her] race.” 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)).
Accepting the factual allegations as true and drawing all reasonable inferences in favor of Hall Perry, the undersigned finds that Hall Perry has failed to allege sufficient facts to state a claim for race discrimination under Title VII. Hall Perry has not alleged any facts from which to infer that her termination was because of her race. See ECF No. 1 at ¶ 49. Moreover, although Hall Perry alleges facts tending to show that she was denied or treated differently regarding certain terms, conditions, and privileges of employment, she does not allege sufficient facts to permit an inference that any disparate treatment regarding the terms, conditions, and privileges of her employment was because of her race. See, e.g., Id. at ¶¶ 38, 40, 41, 43, 44, 48.
While Hall Perry alleges that she was regularly compared to Caucasian employee Yajaira Torres Bess, who was bilingual like Hall Perry, she does not allege any facts tending to show that they were meaningfully similar or that any disparate treatment was because of race. See Id. at ¶¶ 37, 42, 46. Hall Perry alleges that Torres Bess's “writing skills were inferior to Hall Perry's” and that Defendant had Torres Bess, a grassroots specialist, work with members while Hall Perry, a public service representative, focused on the newsletter. Id. Hall Perry further alleges that during the period she was placed on a performance improvement plan for poor work performance in the public service representative position, Torres Bess “was not performing up to par [in] her new role as the grassroots specialist” but was permitted to continue her employment. Id. at ¶ 46. However, Hall Perry does not allege any facts from which to infer that she and Torres Bess had the same work duties, were subject to the same standards, or otherwise were meaningfully similar comparators. See Swaso, 698 Fed.Appx. at 748.
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).
Because Hall Perry has not alleged sufficient facts from which to infer that she was discharged or “discriminate[d] against . . . because of [her] race,” see 42 U.S.C. § 2000e-2(a)(1), she has not stated a plausible claim for race 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”). Accordingly, the undersigned recommends that this claim be dismissed.
2. Title VII Retaliation Claim
Defendant argues that Hall Perry failed to state a claim for retaliation under Title VII. ECF No. 18-5 at 18. To state a retaliation claim under Title VII, a plaintiff is “required to allege facts to satisfy the elements of a cause of action created by that statute.” See McCleary-Evans, 780 F.3d at 585. Thus, Hall Perry must allege sufficient facts to show that her “employer . . . discriminat[ed] against [her] . . . because [s]he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a).
Hall Perry alleges that after she was disciplined and placed on a 60-day performance improvement plan on August 6, 2020, she “made complaints to management regarding what she reasonably believed to be discriminatory treatment based upon race, national origin, color, and age.” ECF No. 1 at ¶¶ 44-45. She further alleges that on October 1, 2020, she was terminated “for insufficient performance of job duties and failure to meet expectations of the [performance improvement plan],” even though she “had not had any further infractions and still had time before the [performance improvement plan] was complete.” Id. at ¶ 49.
Accepting the factual allegations as true and drawing all reasonable inferences in favor of Hall Perry, the undersigned finds that Hall Perry alleged sufficient facts to state that when Defendant discharged her within a few months of her complaining to management employees about race discrimination and while she still had time on the performance improvement plan, her “employer . . . discriminat[ed] against [her] . . . because [s]he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Accordingly, the undersigned finds that Hall Perry has stated a claim for retaliation under Title VII, such that Defendant's motion to dismiss this claim should be denied.
III. Simmons's Claims
In its Motion, Defendant argues that Simmons failed to timely exhaust her administrative remedies on some of her Title VII claims. ECF No. 18-5 at 8-9. Defendant also contends that all of Simmons's claims should be dismissed for failure to state a viable claim for relief. Id. at 10-14.
A. Whether Simmons Timely Exhausted Her Administrative Remedies
On June 21, 2021, Simmons filed a Charge of Discrimination with the SCHAC and the EEOC against Defendant. ECF No. 18-3. In her Charge, Simmons stated that the earliest date discrimination took place was August 25, 2020, and the latest date was April 1, 2021. Id. She did not check the box for “continuing action.” Id. She indicated that her Charge was for discrimination based on race and retaliation, and she did not identify any other basis for her Charge. Id. She further averred as follows:
I. I was hired on October 3, 2011, as the District Office Manager for both the Johns Island and Awendaw offices. My final position was as the District Office Manager of the Awendaw office. In 2018, I asked the CEO and my supervisor whether I could hire the wife of a current employees and was told that I could hire the most qualified candidate regardless. When I chose the employee's wife who is African American, I was told to choose someone else. When I questioned this, my supervisor told me that my department would be dismantled. It did not happen because my CEO (Dwayne Cartwright) agreed that it was retaliation from my supervisor. He assured me this would never happen.
On August 25, 2020, I was informed by Anthony Capobianco (VP of IT and VP of Member Services) that my dual role was being eliminated and the department [was] being dismantled. I asked could I go along with the job to another department and I was told I could not. The position was transferred to a department [led] by a Caucasian female who had just been hired 8 months prior and had no experience with the job responsibilities. In September 2020, I was placed in the new job title of Awendaw District Office Manager (which was a demotion for me). On September 24, 2020, I met with the new CEO (Michael Fuller) to inform him what was happening to me and to ask if he could stop it. On October 19, 2020, Mr. Capobianco informed me that he heard rumblings that I said I was being discriminated against to the persons outside of the Co-op. I felt this was harassment. I went to human resources (Louise Meade VP of Human Resources) to file a complaint regarding my job being dismantled because of my race. On October 28, 2020, I met with Ms. Meade and Mr. Fuller and explained all that happened to me in 2018 and about the dismantling of my job now. I informed them that if I was a Caucasian person then this would not have happened to me, but since I am African American, they are doing this to me. On November 23, 2020, I had an accident in the company car and the car was totaled. I was assigned a replacement vehicle. On March 13, 2021, I spoke with Mr. Fuller about not being promoted to the position of VP of Member Service. (Addendum 06-12-2021): While out on sick leave as a
result of the accident, Mr. Capobianco repeatedly text[ed] and called me to inquire about my return. Against company policy, he told me that I had to send him a copy of my doctor's excuse immediately via text message while I was still out on sick leave. When I spoke with HR (Brandon Hart), he advised that I did not have to submit my excuse to Mr. Capobianco; however, I did send a copy to Mr. Hart who informed Mr. Capobianco. The VP of Member Services job went to a Caucasian female (Amy Langdon) whose employment history at Berkeley Electric had several infractions that made her less qualified that me for the promotion. On April 1, 2021, I texted Ms. Meade to ask to meet with her about concerns that I had regarding Ms. Langdon. Ms. Meade texted me back and stated I was terminated.
II. Mr. Fuller told me that I did not receive the promotion, but that I interviewed well and not to be discouraged. Ms. Meade informed me by text that they had concerns with my performance and that I was being terminated; for the company is going in a new direction and what email could she send some documents to me. No other reason(s) were given for the above actions.
III. I believe that I have been discriminated against because of my race (African American) and due to retaliation for having opposed an employment practice believed to be in violation of Title VII of the Civil Rights Act of 1964, as amended.Id. at 1-2. On Simmons's request, the EEOC issued her Right to Sue letter on February 6, 2023, or approximately ten months after the lawsuit was originally filed. ECF No. 18-4.
In its Motion, Defendant argues that “[b]ased on her charge, Simmons is limited to race and retaliation claims arising on or after August 25, 2020,” which “would include, at best, her threadbare claims involving elimination of her duties as the Community Services Manager (Compl. ¶ 31); withdrawal of the company vehicle (Compl. ¶ 32); and termination of her employment (Compl. ¶ 34); but nothing else.” ECF No. 18-5 at 8 (footnote omitted). Defendant further contends that Simmons's “allegations dating back to 2018 (Compl. ¶¶ 21-29), and asserting that she was denied the opportunity to hire the African American spouse of another employee in the district office, were not the subject of a timely EEOC charge,” nor were her “claims relating to allegedly disparate work or performance rules (Compl. ¶¶ 9-13, 62) . . . dating back to 2012 and 2013.” Defendant also argues that Simmons failed to exhaust her administrative remedies for any pattern or practice claim. Id. (noting that Plaintiffs attempt to complain of a “pattern” of discriminatory conduct in paragraph 62 of the Complaint). In her Response, Simmons does not address Defendant's exhaustion arguments. See ECF No. 46.
Upon review, the undersigned agrees with Defendant that any claims based on alleged discrimination or retaliation occurring in 2012, 2013, or 2018 were not timely exhausted and should be dismissed. The undersigned also agrees that Simmons did not assert a pattern or practice claim in her Charge, such that any pattern or practice claim in her Complaint should be dismissed for failure to exhaust. See Parker, 915 F.3d at 306; Chako, 429 F.3d at 509; Dennis, 55 F.3d at 156-57.
B. Whether Simmons's Complaint Satisfies the Iqbal/Twombly Pleading Standard
Defendant moves to dismiss Simmons's remaining claims for failure to plead facts sufficient to satisfy the Iqbal standard. As explained above, Simmons timely exhausted her claims based on events occurring in or after August 2020, which include the following allegations:
31. On August 25, 2020[,] Simmons was advised that her functions as Community Services Manager would be eliminated and she became responsible only for the Awendaw office as the manager.
32. In October 2020 Simmons was told that she could no longer utilize a company vehicle. She was required to drive some 55 miles one way and would not have otherwise accepted the position in Awendaw without this perquisite of the job[.]
33. When the Berkeley CEO and vice presidents could not articulate why Simmons'[s] position was being changed, she informed them of her belief that she was being discriminated against based upon race and retaliated against for having spoke out about discriminatory treatment of herself and other African-Americans.
34. On April 1, 2021[,] Simmons was informed that her job was being terminated. None of the items mentioned in the termination letter had even been previously discussed with Simmons.ECF No. 1 at 6-7.
1. Simmons's Title VII Discrimination Claim
Accepting the factual allegations as true and drawing all reasonable inferences in favor of Simmons, the undersigned finds that Simmons has failed to assert sufficient factual allegations to state a claim for race discrimination under Title VII. Specifically, Simmons has not alleged facts to support an inference that her functions as Community Services Manager and her company car privileges were eliminated because of her race. That she reported to management that she believed the decisions were a product of race discrimination is not sufficient to support an inference that they actually were because of race. Nor has she alleged any facts to support an inference that her termination was because of her race. Without more, Plaintiff's allegations are insufficient to raise her right to relief above the speculative level, such that she has not stated a plausible claim for race 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”); see also Swaso, 698 Fed.Appx. at 748; Clement, 2020 WL 8713676, at *7; Ballew, 2018 WL 5074603, at *5. Accordingly, the undersigned recommends that Simmons's discrimination claim be dismissed.
2. Simmons's Title VII Retaliation Claim
Defendant argues that Simmons has not stated a viable retaliation claim because the alleged elimination of her duties in August 2020 occurred more than seven months before her termination in April 2021, such that the two events are too remote in time to support an inference of retaliation. ECF No. 18-5 at 13-14. Defendant also argues that, to the extent “Simmons might attempt to bridge this gap in time by pointing to lost use of a company vehicle in October 2020 (Compl. ¶ 32), . . . that event occurred five months prior to her termination[, such that] . . . the timing of that event is too remote, as well.” Id. at 14.
To state a retaliation claim, Simmons must allege sufficient facts to show that her “employer . . . discriminat[ed] against [her] . . . because [s]he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a); see McCleary-Evans, 780 F.3d at 585.
Accepting the factual allegations as true and drawing all reasonable inferences in favor of Simmons, the undersigned finds that Simmons stated sufficient facts to allege that after she complained to Defendant's CEO and vice presidents that she was being discriminated against based upon race and retaliated against for having spoken out about discriminatory treatment of herself and other African-Americans, Defendant took away her company car privileges, which she needed to drive 110 miles each day for work, and terminated her employment. The undersigned finds these allegations sufficient to allege that her “employer . . . discriminat[ed] against [her] . . . because [s]he has opposed any practice made an unlawful employment practice by [Title VII].” See 42 U.S.C. § 2000e-3(a); see also Jones v. Sykes Enterprises, Inc., No. 3:21-CV-3396-TLW-TER, 2022 WL 1446731, at *2 (D.S.C. Mar. 30, 2022) (“Though the causal connection between the two events as alleged is attenuated, the allegations at this stage of the litigation are sufficient to state a claim of retaliation.”), report and recommendation adopted, No. 3:21-CV-3396-TLW-TER, 2022 WL 1444019 (D.S.C. May 6, 2022). Accordingly, the undersigned finds that Simmons has stated a claim for retaliation under Title VII, such that Defendant's motion to dismiss this claim should be denied.
RECOMMENDATION
For the foregoing reasons it is RECOMMENDED that Defendant's Motion to Dismiss (ECF No. 18) be GRANTED, in part, and DENIED, in part. Specifically, it is recommended that the Motion be granted as to all claims alleged by Johnson, and as to the Title VII race discrimination claims alleged by Hall Perry and Simmons, but be denied as to the Title VII retaliation claims alleged by Hall Perry and Simmons. It is further RECOMMENDED that Defendant's Motion to Show Cause (ECF No. 20) be DENIED.
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).