Opinion
Civil Action 2:22-01942-BHH-MGB
10-06-2022
Carnell Pinckney, Plaintiff, v. Preferred Home Services, LLC, and Gary Peterson, Defendant.
REPORT AND RECOMMENDATION
Plaintiff filed this employment discrimination case alleging race, color, and/or national origin discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act (“Title VII”) and 42 U.S.C. § 1981 (“Section 1981”), and civil conspiracy, negligent supervision, and intentional infliction of emotional distress in violation of South Carolina state law. (Id.) This matter is before the Court upon Defendants' motion to partially dismiss Plaintiff's Complaint. (Dkt. No. 7). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local 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. For the reasons set forth below, the undersigned recommends that Defendants' motion be GRANTED.
BACKGROUND
Plaintiff filed the instant civil action on June 20, 2022. (Dkt. No. 1.) Plaintiff's Complaint explains that he is a black American who identifies as Gullah-Geechee.(Id. at 2.) Plaintiff claims that he was hired by Defendant Preferred Home Services, LLC (“Preferred”) as a plumbing technician in November 2017. (Id.) In December of 2019, Defendant Gary Petersen(“Petersen”) became Plaintiff's direct supervisor. (Id.) Plaintiff alleges that Petersen constantly ridiculed and berated him “due to Plaintiff's race and national origin.” (Id. at 3.) More specifically, Plaintiff claims that Petersen “mock[ed] Plaintiff's accent and purposefully mispronounce[d] Plaintiff's name in an effort to demean and embarrass Plaintiff.” (Id.) According to Plaintiff, Petersen berated, demeaned, and mocked Plaintiff in the presence of other employees. (Id.) Plaintiff claims that he reported Petersen's behavior to his supervisors, but nothing was done. (Id.) Rather, Plaintiff states that Petersen “continued his demeaning behaviors against Plaintiff.” (Id.)
According to Plaintiff, the Gullah-Geechee population includes African descendants who live in the southeastern United States. (Dkt. No. 1 at 2.)
Defendants note that Gary Petersen is incorrectly identified as Gary Peterson in Plaintiff's Complaint. (Dkt. Nos. 1, 7.) The undersigned has used the corrected spelling of Mr. Petersen's name throughout this Report and Recommendation.
Plaintiff further alleges that Petersen retaliated against him by: (1) assigning him to “low-value” service calls in an effort to cause Plaintiff's sales numbers to drop; (2) “only assigning [him] to black clients or addresses where a majority of the residents were black or non-white;” (3) refusing to approve Plaintiff's requests to participate in employer-sponsored training courses and certification programs that other employees were able to attend; (4) placing Plaintiff on a performance improvement plan (“PIP”); (5) failing to implement Preferred's progressive discipline plan before terminating Plaintiff; and (6) terminating Plaintiff. (Id. at 3-4.) Plaintiff claims that other employees were treated differently, and that they “committed similar or more egregious acts and were not terminated.” (Id. at 4.) As such, Plaintiff filed the instant civil action alleging:
• First Cause of Action: Discrimination based on race/color/national origin in violation of Title VII;
• Second Cause of Action: Retaliation in violation of Title VII;
• Third Cause of Action: Hostile work environment in violation of Title VII;
• Fourth Cause of Action: Discrimination in violation of Section 1981;
• Fifth Cause of Action: Retaliation in violation of Section 1981;
• Sixth Cause of Action: Hostile work environment in violation of Section 1981;
• Seventh Cause of Action: Civil conspiracy;
• Eighth Cause of Action: Negligent supervision; and
• Ninth Cause of Action: Intentional infliction of emotional distress.(Id. at 4-15.) Plaintiff claims that he suffered damages “in the form of lost back and future wages, income and benefits, [and] expenses associated with finding other work,” and that he “suffered severe psychological harm, emotional distress, anxiety, pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, embarrassment, humiliation, loss [of] professional standing, character and reputation, [and] physical and personal injuries.” (Id. at 5.) Thus, Plaintiff seeks actual and special damages, punitive damages, and costs, including attorneys' fees. (Id. at 14-15.)
On July 26, 2022, Defendants filed a Motion to Dismiss certain of Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 7.) Plaintiff responded in opposition to Defendants' motion on July 31, 2022. (Dkt. No. 10.) Defendants filed a reply to Plaintiff's response on August 8, 2022. (Dkt. No. 11.) Thus, the motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
I. Rule 12(b)(1) Standard
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a claim should be dismissed if it lacks subject matter jurisdiction. When considering a motion to dismiss for lack of subject matter jurisdiction, “the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). “The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Friends of Dereef Park v. Nat'l Park Serv., No. 2:13-cv-03453-DCN, 2015 WL 12807782, at *4 (D.S.C. Apr. 13, 2015) (internal citations omitted).
II. Rule 12(b)(6) Standard
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
DISCUSSION
Defendants argue that the Court should dismiss Plaintiff's claims of: (1) disparate treatment discrimination under Title VII and Section 1981; (2) civil conspiracy; (3) negligent supervision; (4) intentional infliction of emotional distress; (5) national origin discrimination, retaliation, and hostile work environment under Section 1981; and (6) discrimination, retaliation, and hostile work environment under Title VII as to Defendant Petersen. (Dkt. No. 7-1 at 1-2.) The undersigned considers these arguments, below.
I. Title VII and Section 1981 Claims
At the outset, the undersigned notes that employees are not liable in their individual capacities for Title VII violations. Hines v. Richland Sch. Dist. One, No. 3:20-cv-1334-SAL, 2021 WL 2947734, at *3 (D.S.C. July 14, 2021) (referencing Lissau v. S. Food Serv., Inc., 159 F.3d 177, 178 (4th Cir. 1998); Jones v. Sternheimer, 387 Fed.Appx. 366, 368 (4th Cir. 2010)). As such, the undersigned recommends that Plaintiff's Title VII claims against Defendant Petersen in his individual capacity be dismissed with prejudice.
Plaintiff contends in his response in opposition to Defendants' motion that Petersen should be held liable for the Title VII violations alleged because he was acting as an agent of Preferred and/or was acting outside the scope of his employment when engaging in the allegedly discriminatory acts. (Dkt. No. 10 at 5.)
Similarly, the Supreme Court has held that Section 1981 does not provide a cause of action for discrimination based solely on national origin. See St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987). In fact, Section 1981 does not cover “national origin” claims at all. See Hamada v. Boeing Co., No. 2:19-cv-2777-DCN-BM, 2020 WL 2559806, at *6 (D.S.C. Mar. 30, 2020), adopted, 2020 WL 2557029 (D.S.C. May 20, 2020) (referencing Lee v. Sony BMG Music Entertainment, Inc., 557 F.Supp.2d 418, 424 (S.D.N.Y. 2008) (“[N]ational origin-based discrimination claim brought under section 1981 [ ] dismissed with prejudice, because that statute does not cover national origin.”)). Thus, the undersigned recommends that Plaintiff's claims of national origin discrimination, retaliation, and hostile work environment under Section 1981 also be dismissed with prejudice.
A. Disparate Treatment Discrimination
As noted, Plaintiff brings disparate treatment discrimination claims under both Title VII and Section 1981. (See generally Dkt. No. 1.) Title VII makes it “an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his 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). Section 1981 states that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981.
However, the Complaint fails to provide factual allegations to support these contentions. (See generally Dkt. No. 1.)
Discrimination claims under Title VII and Section 1981 are governed by the same legal standards. See Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998) (citing Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985)) (noting that the elements required to establish a prima facie case are the same under Title VII and Section 1981). A plaintiff may establish a discrimination claim under Title VII and Section 1981 through direct evidence of employment discrimination, or the plaintiff may proceed under the McDonnell Douglas burden-shifting framework, which begins with a prima facie case of employment discrimination. Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 n.8 (4th Cir. 2020), cert. denied, 141 S.Ct. 1376 (2021). While the plaintiff “need not plead a prima facie case of discrimination” at this stage of the proceedings, the elements of a prima facie case inform whether the plaintiff plausibly alleges a violation of Title VII and/or Section 1981. Id. at 616 (quoting Swierkiewicz, 534 U.S. at 515). Indeed, Plaintiff's Complaint must set forth facts under which the Court can reasonably infer a prima facie case of discrimination. Id.
A prima facie case for discrimination under Title VII and Section 1981 requires that: (1) the plaintiff is a member of a protected class; (2) the plaintiff performed his job in a satisfactory manner; (3) the plaintiff was subjected to an adverse employment action; and (4) the plaintiff was treated differently than similarly situated individuals outside of his protected class. See Tabb v. Bd. of Educ. of Durham Pub. Sch., 29 F.4th 148, 157 (4th Cir. 2022); see also Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002) (extending Title VII requirements to Section 1981 discrimination claim). To support his prima facie claim of discrimination, Plaintiff alleges:
16. Throughout Plaintiff's employment, Peterson would constantly ridicule and berate Plaintiff due to Plaintiff's race and national origin. Peterson
would mock Plaintiff's accent and purposefully mispronounce Plaintiff's name in an effort to demean and embarrass Plaintiff.
17. Peterson would berate, demean, and mock Plaintiff in the presence of Preferred employees, including supervisors in various settings, including team meetings. Plaintiff reported Peterson's behavior to his supervisors and Peterson's behavior was well-known to others of Preferred, including DiCampli.
18. Plaintiff's reports were not investigated or otherwise addressed by Preferred. Instead, Peterson continued his demeaning behaviors against Plaintiff. Plaintiff was mistreated, intimidated, retaliated against, and subjected to a hostile work environment by Defendants....
26. Throughout Plaintiff's employment with Preferred, other employees made racist and racially offensive jokes, comments, and statements....
29. Defendants discriminated against Plaintiff based on Plaintiff's race, color, and/or national origin.
30. Defendants treated Plaintiff differently tha[n] other employees outside of his protected class.
31. Other employees outside of Plaintiff's protected class were not disciplined for engaging in similar conduct as Plaintiff.
32. Other employees outside of Plaintiff's protected class were not given PIPs for engaging in similar conduct as Plaintiff.
33. Defendants intentionally failed to investigate Plaintiff's claims of discrimination, hostile work environment and retaliation.
34. Plaintiff's supervisors intentionally failed to address Plaintiff's complaints regarding race discrimination due to Plaintiff's race.
35. Plaintiff was subject to discrimination and discharged in Violation of Title VII.
36. At the time Plaintiff was discharged from his employment, he was performing the functions of his employment in a [manner] which met his employer's expectations....
57. Defendants discriminated against Plaintiff based on Plaintiff's race, color, and/or national origin.
58. Other employees outside of Plaintiff's protected class were not disciplined for engaging in similar conduct as Plaintiff.
59. Other employees outside o[f] Plaintiff's protected class were not given PIPs for engaging in similar conduct as Plaintiff.
60. Plaintiff was placed on PIPs and terminated because of his race, color, and/or national origin.
61. But for Plaintiff's race or color, he would not have been subject to the adverse employment actions described above.
62. Preferred intentionally failed to investigate Plaintiff's claims of discrimination, hostile work environment and retaliation.
63. Plaintiff's supervisors intentionally failed to address Plaintiff's complaints regarding race discrimination due to Plaintiff's race.
64. Plaintiff was subject to discrimination and discharged in Violation of [Section 1983].
65. At the time Plaintiff was discharged from his employment, he was performing the functions of his employment in a [manner] which met his employer's expectations.(Dkt. No. 1 at 3-9.) Defendant contends these allegations are insufficient to sustain discrimination claims that rise above the speculative level. (Dkt. No. 11 at 3.) The undersigned agrees.
Plaintiff's Complaint also alleges that: (1) Petersen “began assigning Plaintiff to ‘low-value' service calls in an effort to cause Plaintiff's sales numbers to be reduced” and “began a campaign of only assigning Plaintiff to black clients or addresses where a majority of the residents were black or non-white”; (2) Defendants “refus[ed] to approve Plaintiff's requests to participate in the employer-sponsored training courses and certification programs that were afforded to other employees”; (3) Defendants “plac[ed] Plaintiff on a performance improvement plan[]”; (4) Defendant Preferred “fail[ed] to utilize its progressive discipline policy when i[t] came to Plaintiff”; and (5) Defendant Preferred terminated Plaintiff. (Dkt. No. 1 at 3-5.) However, Plaintiff's Complaint indicates that these acts support only his retaliation claims. (Id.)
Even construing Plaintiff's allegations as true and considering them in the light most favorable to him, Plaintiff's Complaint fails to state a plausible claim to relief. Plaintiff alleges that he is black, satisfying the first element of his prima facie claim. (Id. at 2.) Plaintiff further alleges that he was treated differently than employees outside of his protected class because those employees were not put on PIPs after engaging in similar conduct. (Id. at 5, 8.) However, Plaintiff provides no explanation regarding the conduct that led to his PIP, nor the “similar conduct” in which employees outside of his protected class engaged. Further, Plaintiff does not provide names or job titles of employees who engaged in such conduct, nor any other information from which the Court could draw an inference that such employees are actually similarly situated to or outside the protected class of Plaintiff. Swaso v. Onslow Cnty. Bd. of Educ., 698 Fed.Appx. 745, 749 (4th Cir. 2017), as amended (Aug. 11, 2017) (affirming dismissal of plaintiff's Section 1981 race discrimination claim where plaintiff made only “bare allegations” that “failed to provide any factual enhancement regarding the alleged comparators”); Lee v. Stegall, Inc., No. 7:21-cv-528, 2022 WL 3971042, at *6 (W.D. Va. Aug. 31, 2022) (dismissing Title VII discrimination claim where plaintiff “failed to identify a sufficiently similar comparator to give rise to an inference of discrimination on the basis of race”).
Plaintiff then alleges that he was terminated because of his race, and that he was performing the functions of his employment in a manner that met his employer's expectations at the time he was terminated. (Id. at 5, 9.) Again, Plaintiff provides no factual support for these conclusory statements. For example, Plaintiff does not allege that he received satisfactory performance reviews or eluded discipline during the relevant period. Plaintiff similarly provides no factual allegations to support an inference that his termination was racially motivated. Plaintiff does not allege that Defendants commented on, or made implications about, his race, and nothing in the Complaint suggests that Defendants' purported conduct was racially motivated. (See generally id.) Rather, Plaintiff summarily concludes that he was discriminated against on account of his race. Without more, the undersigned simply cannot find that Plaintiff has provided “more than labels and conclusions, [or] a formulaic recitation of the elements” of his discrimination claims. See Twombly, 550 U.S. 555. The undersigned therefore recommends that Plaintiff's disparate treatment discrimination claims be dismissed.
II. State Law Claims
A. Negligent Supervision and Intentional Infliction of Emotional Distress
Defendants next argue that Plaintiff's state law claims are barred by the South Carolina Workers' Compensation Act (“SCWCA”) because the SCWCA “provides the exclusive remedy for employees who sustain injuries arising out of and in the course of their employment.” (Dkt. No. 7-1 at 9, referencing S.C. Code Ann. § 42-1-540.) Plaintiff's response brief does not address this argument with respect to his negligent supervision claim. (See generally Dkt. No. 10.) As for Plaintiff's intentional infliction of emotional distress (“IIED”) claims, Plaintiff argues that IIED is an intentional tort and therefore falls into an exception to the SCWCA.(Dkt. No. 10 at 6.)
Plaintiff also makes this argument with respect to his civil conspiracy claim. (Dkt. No. 10 at 6.) Because the undersigned finds that Plaintiff's civil conspiracy claim fails for the reasons set forth in Section II.B below, the undersigned need not address this argument.
The SCWCA provides, in relevant part,
The rights and remedies granted by this Title to an employee when he and his employer have accepted the provisions of this Title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.S.C. Code Ann. § 42-1-540.
When applying § 42-1-540, South Carolina courts have consistently held that negligent supervision claims are covered by the SCWCA. See Dickert v. Metro. Life Ins. Co., 428 S.E.2d 700, 701 (S.C. 1993); Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002); Palmer v. House of Blues Myrtle Beach Rest. Corp., No. 4:05-cv-3301-RBH, 2006 WL 2708278, at *3 (D.S.C. Sept. 20, 2006); Washington v. Hilton Hotels Corp., 2008 WL 747792, at *4 (D.S.C. Mar. 17, 2008); Dewese v. Sci. Applications Int'l Corp., No. 2:11-cv-3024-DCN-BHH, 2012 WL 1902264, at *3 (D.S.C. May 2, 2012); Lindblad v. J&I Servs., Inc., No. 4:18-cv-1336-RBH-TER, 2019 WL 653968, at *6 (D.S.C. Jan. 30, 2019), adopted sub nom. Lindblad v. J&L Servs., Inc., 2019 WL 652248 (D.S.C. Feb. 15, 2019).
Similarly, the South Carolina Supreme Court has specifically held that IIED claims arising out of employment are subject to and barred by the SCWCA. See Dickert, 428 S.E.2d at 701 (explaining that intentional infliction of emotional distress is within the scope of the SCWCA); see also McClaine v. Pactive Corp., 602 S.E.2d 87, 89 (S.C. Ct. App. 2004) (“[I]ntentional infliction of emotional distress constitutes a personal injury that falls within the scope of the [SCWCA].”). Thus, courts in this district have consistently dismissed state law IIED claims as barred by the SCWCA. See, e.g., Ward v. City of N. Myrtle Beach, 457 F.Supp.2d 625, 646-47 (D.S.C. 2006) (holding that a plaintiff's state law claims for intentional infliction of emotional distress and negligence against the city were barred due to the exclusivity provision in the SCWCA and the exclusion contained in the South Carolina Tort Claims Act); Newman v. S.C. Dep't of Emp. & Workforce, No. 3:10-cv-942-CMC-PJG, 2010 WL 4791932, at *2 (D.S.C. Sept. 22, 2010), adopted, 2010 WL 4666360 (D.S.C. Nov. 18, 2010) (dismissing intentional infliction of emotional distress claim as barred by SCWCA); Alexander v. S.C. Dep't of Transportation, No. 3:20-cv-4480-TLW-SVH, 2021 wl 5167807, at *8-10 (D.S.C. Aug. 23, 2021), adopted sub nom. Alexander v. S.C. Dep't of Transportation, 2021 WL 5166400 (D.S.C. Nov. 4, 2021), appeal dismissed sub nom. Alexander v. S.C. Dep't of Transportation, No. 21-2346, 2022 WL 898489 (4th Cir. Mar. 28, 2022) (finding plaintiff's negligence and intentional infliction of emotional distress claims barred by SCWCA).
The undersigned notes that “an employer or employee who acts with deliberate or specific intent to injure another employee, even in the course and scope of his employment, may not shelter himself within the exclusivity provision.” Sibert v. Raycom Media, Inc., No. 3:17-cv-1544-CMC, 2017 WL 3721238, at *3 (D.S.C. Aug. 29, 2017). To the extent Plaintiff argues that his IIED claims are not barred by the SCWCA for this reason, the undersigned disagrees. The intentional injury exception is to be construed narrowly and liability cannot “be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct . . . short of a conscious and deliberate intent directed to the purpose of inflicting an injury.” Edens v. Bellini, 597 S.E.2d 863, 870-71 (S.C. Ct. App. 2004). “Even actions such as ‘knowingly ordering employees to perform an extremely dangerous job,' or ‘refusing to respond to an employee's medical needs and restrictions' fail to rise to the level ‘of the kind of actual intention to injure that robs the injury of accidental character.'” Sibert, 2017 WL 3721238, at *3 (quoting Edens, 597 S.E.2d at 871). Plaintiff's Complaint does not sufficiently allege such “conscious and deliberate intent directed to the purpose of inflicting an injury” on the part of the Defendants. Edens, 597 S.E.2d at 870-71. Further, to the extent Plaintiff contends that Petersen acted as an agent of Preferred and/or acted outside the scope of his employment, the undersigned finds this argument unconvincing. (Dkt. No. 10 at 6-9.) Indeed, Plaintiff's Complaint provides no support for these contentions. (See generally Dkt. No. 1.)Accordingly, the undersigned recommends that the Court grant Defendants' motion with respect to Plaintiff's IIED claims.
Plaintiff also argues that Plaintiff's IIED claim is not barred by SCWCA based on the language of S.C. Code Ann. § 42-1-160. (Dkt. No. 10 at 8.) However, SC Code Ann. § 42-1-160 outlines requirements for stress and mental injuries unaccompanied by physical injuries. Plaintiff has alleged physical injuries here. (Dkt. No. 1 at 14.) This argument therefore lacks merit.
B. Civil Conspiracy
Defendants further argue that Plaintiff's civil conspiracy claim should be dismissed because it is based upon the same allegations that support his other claims. (Dkt. No. 7-1 at 11.) Plaintiff's response brief does not address this argument. (See generally Dkt. No. 10.) Thus, the undersigned assumes Plaintiff concedes that his Complaint does not allege sufficient facts to support a civil conspiracy claim. Nonetheless, the undersigned has addressed the merits of Defendants' argument. For the reasons set forth below, the undersigned agrees with Defendants that Plaintiff fails to state a civil conspiracy claim, and therefore recommends that such claim be dismissed.
To state a proper civil conspiracy claim under South Carolina law, a plaintiff must show: (1) a combination or agreement of two or more persons; (2) to commit an unlawful act or a lawful act by unlawful means; (3) together with the commission of an overt act in furtherance of the agreement; and (4) damages proximately resulting to the plaintiff. See Jinks v. Sea Pines Resort, LLC, No. 9:21-cv-00138-DCN, 2021 WL 4711408, at *3 (D.S.C. Oct. 8, 2021) (citing Paradis v. Charleston Cty. Sch. Dist., 861 S.E.2d 774, 875 (S.C. 2021) (abolishing requirement to plead special damages)). A plaintiff “must allege additional acts in furtherance of a conspiracy rather than reallege other claims within the complaint.” Hackworth v. Greywood at Hammett, LLC, 682 S.E.2d 871, 874 (S.C. 2009).
In other words, a plaintiff must plead acts in furtherance of the conspiracy that are “separate and independent from other wrongful acts alleged in the complaint, and the failure to properly plead such acts will merit the dismissal of the claim.” Id. at 875.
Here, Plaintiff alleges the following with respect to his civil conspiracy claim:
86. Plaintiff hereby realleges each and every allegation contained in the Paragraphs above as fully as if set forth herein verbatim.
87. Defendants, in combination with other persons, combined to injure the Plaintiff by way of the unlawful acts described in the Paragraphs above by unlawful means by allowing employees to engage in acts outside the course and scope of their employment that caused injury to Plaintiff. These acts include, but are not limited to, Defendants conspiring with others to create a hostile work environment, discriminate against Plaintiff, and cause Plaintiff to be terminated from his employment because Plaintiff is a black American and identifies as Gullah-Geechee.
88. Defendants, in combination with other persons, combined to injure the Plaintiff through lawful acts by unlawful means by allowing employees to engage in acts outside the course and scope of their employment that caused injury to Plaintiff. These acts include, but are not limited to, Defendants conspiring with others to cause Plaintiff not to be able to meet his sales goals by only assigning him "low value" service calls.
89. The acts of Defendants and their conspirators were undertaken for the specific and intentional purpose of harming Plaintiff.
90. As a result of Defendants' actions, Plaintiff has suffered damages in the form of lost back and future wages, income and benefits, expenses associated with finding other work, and has suffered severe psychological harm, emotional distress, anxiety, pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, embarrassment, humiliation, loss to professional standing, character and reputation, physical and personal injuries, and further seeks attorney's fees and costs and prejudgment interest.
91. Defendants' actions as set forth above were undertaken intentionally, willfully, wantonly, recklessly, and maliciously. Therefore, Plaintiff is entitled to recover punitive damages from Defendants.(Dkt. No. 1 at 12.)
Based on the above, Plaintiff's civil conspiracy claim is premised upon the actions underlying his other claims. (See generally id.) In other words, Plaintiff alleges no acts in furtherance of a conspiracy that are “separate and independent” from the wrongful acts that underly his discrimination, retaliation, hostile work environment, negligent supervision, and IIED claims. See Hackworth, 682 S.E.2d at 875 (S.C. 2009). For this reason, Plaintiff's civil conspiracy claim fails. Accordingly, the undersigned recommends that such claim be dismissed. See Land v. Barlow, No. 2:21-cv-1883-RMG, 2021 WL 5997984, at *5 (D.S.C. Dec. 20, 2021) (dismissing civil conspiracy claim where plaintiff failed to allege facts in furtherance of civil conspiracy that were separate and independent from plaintiff's other claims).
In the alternative, Defendants argue that Plaintiff's civil conspiracy claim is barred by the at-will employment doctrine and/or fails because Plaintiff impermissibly pled an intracorporate conspiracy. (Dkt. No. 7-1 at 12-13.) The undersigned recommends that Plaintiff's civil conspiracy claim be dismissed for the reasons set forth above and therefore declines to address Defendants' alternate arguments. However, in the event the District Judge disagrees with the recommendations contained herein, the undersigned notes that Plaintiff's civil conspiracy claim likely fails on these bases, as well.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that Defendants' Partial Motion to Dismiss (Dkt. No. 7) be GRANTED. More specifically, the undersigned recommends that Plaintiff's: (1) Title VII claims against Defendant Petersen in his individual capacity; (2) national origin discrimination, retaliation, and hostile work environment claims under Section 1981; (3) Title VII and Section 1981 race-based disparate treatment discrimination claims; and (4) state law claims for negligent supervision, IIED, and civil conspiracy be DISMISSED.
Defendants did not move to dismiss Plaintiff's Title VII and Section 1981 retaliation and hostile work environment claims. (See generally Dkt. Nos. 7, 7-1.)
Because Plaintiff may cure some of the deficiencies in his Complaint by providing further factual information, the undersigned recommends that Plaintiff be given the opportunity to amend his Complaint. To the extent the District Judge agrees, the undersigned recommends that Plaintiff be ordered to file an Amended Complaint within ten (10) days of the Court's final disposition of Defendants' Partial Motion to Dismiss (Dkt. No. 7).
IT IS SO RECOMMENDED.
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).