Opinion
Civil Action 4:21-cv-4092-JD-TER
03-30-2022
BRANDON SMITH, Plaintiff, v. STATE OF SOUTH CAROLINA DEPARTMENT OF NATURAL RESOURCES, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
I. INTRODUCTION
This action arises out of Plaintiff's employment with Defendant. Plaintiff alleges that he suffered discrimination, retaliation, and a hostile work environment because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. Presently before the Court is Defendant's Motion to Dismiss (ECF No. 5) pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Plaintiff filed a Response (ECF No. 10) and Defendant filed a Reply (ECF No. 15). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
Plaintiff's Complaint includes references to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. See Compl . ¶¶ 1, 88, prayer for relief. However, he asserts in his Response that he has not alleged a cause of action pursuant to Title VII and any reference thereto in the Complaint is a scrivner's error. See Resp. p. 12 (ECF No. 10).
II. FACTUAL ALLEGATIONS
Plaintiff is employed with Defendant as a Conservation Officer. Compl. ¶¶ 6, 25 (ECF No. 1). He alleges that over the course of his employment, he applied for five different promotions and was denied each promotion based on his age. Compl. ¶¶ 30-32. He made a formal complaint of age discrimination with Defendant and was subsequently denied another promotion to an investigator position. Compl. ¶ 53. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging discrimination based on age on January 21, 2021, and received a Notice of Right to Sue on October 6, 2021. Compl. ¶¶ 11-16. Plaintiff filed the present action on December 20, 2021.
III. STANDARD OF REVIEW
Defendant moves to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1). A motion to dismiss under Fed.R.Civ.P. 12(b)(1) examines whether the Court lacks subject-matter jurisdiction. Generally, the burden of proving subject-matter jurisdiction is on the plaintiff, the party asserting jurisdiction. See Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). However, “where a party challenges the subject matter jurisdiction of the court on the grounds that the party is an arm of the state entitled to sovereign immunity, the burden of persuasion lies with the party asserting the immunity.” Hutto v. S.C. Ret. Sys., 899 F.Supp.2d 457, 466 (D.S.C. 2012) (citing Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237 (2d Cir. 2006)). In evaluating a defendant's challenge to subject matter jurisdiction, the 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., 945 F.2d at 768.
Defendant also moved to dismiss any Title VII cause of action pursuant to Fed.R.Civ.P. 12(b)(6). However, as stated above, Plaintiff asserts that he has not alleged a cause of action under to Title VII.
IV. DISCUSSION
Defendant argues that it has sovereign immunity as to Plaintiff's claims for money damages under the ADEA. The Eleventh Amendment states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const., Amend. XI. Accordingly, the Constitution does not provide for federal jurisdiction over suits against nonconsenting States, unless the state's eleventh amendment immunity has been abrogated by Congress. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (quoting Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (“Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.”). The Supreme Court has held that Congress's attempt to exercise its power to abrogate a state's Eleventh Amendment immunity in enacting the ADEA was invalid, and, thus, states enjoy immunity from suit in this court for claims arising under the ADEA. Kimel, 528 U.S. at 91; see also Ramos v. Berkeley County, No. 2:11-3379-SB, 2012 WL 5292895 (D.S.C. Oct. 25, 2012). The Eleventh Amendment extends not only to the States but also to state agencies and organizations that function as an “arm of the state.” Mt. Healthy City School Dist. Bd. of Educ'n v. Doyle, 429 U.S. 274, 280 (1977). Plaintiff generally disputes that Defendant is an arm of the state. To determine whether a public entity is an arm or alter ego of the state, the Fourth Circuit has articulated a “non-exclusive, ” four-factor test:
(1) whether any judgment against the entity as defendant will be paid by the State...;
(2) the degree of autonomy exercised by the entity, including such circumstances as who appoints the entity's directors or officers, who funds the entity, and whether the State retains a veto over the entity's actions;
(3) whether the entity is involved with state concerns as distinct from non-state concerns, including local concerns; and
(4) how the entity is treated under state law, such as whether the entity's relationship with the State is sufficiently close to make the entity an arm of the State.United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 804 F.3d 646, 650-51 (4th Cir. 2015) (quoting S.C. Dep't of Disabilities, 535 F.3d at 303), cert denied, ___U.S.___, 137 S.Ct. 617, 196 L.Ed.2d 513 (2017).
“[I]f the State treasury will be called upon to pay a judgment against a governmental entity, the [entity is an arm of its creating state], and consideration of any other factor becomes unnecessary.” Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 223 (4th Cir.2001). “If the state treasury will not be liable for a judgment rendered against the entity, we must consider the remaining factors, which focus on the nature of the relationship between the state and the entity it created.” Oberg, 804 F.3d at 651 (citing Cash, 242 F.3d at 224; Lee-Thomas v. Prince George's Cty. Pub. Sch., 666 F.3d 244, 248 n. 5 (4th Cir.2012)). Defendant asserts that any judgment rendered against it would be paid by the state through the South Carolina Insurance Reserve Fund (“IRF”), which is a division of the State Fiscal Accountability Authority, and the IRF would be responsible for paying any judgment for damages and/or attorney's fees on compensable claims. There does not appear to be any material, factual dispute as to the source of any payment upon a finding of liability. Therefore, the inquiry should end here. However, analysis of the remaining factors produces the same conclusion, as discussed below.
DNR was created by the legislature “to administer and enforce the laws of this State relating to wildlife, marine resources, and natural resources and other laws specifically assigned to it.” S.C. Code Ann. § 48-4-10(A). DNR is governed by a board whose members are appointed by the Governor with the advice and consent of the Senate. S.C. Code Ann. § 48-4-30(B). The board members may also be removed by the Governor, and state law provides that board members must take the oath of office prescribed by the State Constitution. S.C. Code Ann. § 48-4-30(E), (G). The Director is appointed by the board upon the advice and consent of the Senate. S.C. Code Ann. § 484-60. Thus, its degree of autonomy is minimal. See, e.g. Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 381 (D.S.C. 2019) (recognizing the board's composition of governor- and legislature-appointed members as evidence that Coastal Carolina University is an alter ego of the State). Further, Defendant is specifically involved with state concerns as it is charged with administering and enforcing the laws of the state. In addition, South Carolina law regards the state's “departments” as arms of the state. See, e.g., S.C. Code Ann. § 15-78-30(e) (“ ‘State' means the State of South Carolina and any of its officers, agencies, authorities, departments, commissions, boards, divisions, instrumentalities ...”); Martin v. Clemson Univ., 654 F.Supp.2d 410, 420 (D.S.C. 2009) (relying on § 15-78-30(e) as an indication of how the entity is treated under state law). Based on these factors, Defendant is an arm of the state and is entitled to sovereign immunity as to Plaintiff's claims for money damages under the ADEA.
Plaintiff's reference to Defendant's anti-discrimination notification on its website, which references the Age Discrimination Act of 1975, is unavailing. That Defendant prohibits discrimination based upon age is inapposite to whether the state, and in turn, arms of the state, are immune from suit for damages under a separate statute, the ADEA. Further, the Age Discrimination Act of 1975, 42 U.S.C. § 6101, et seq., which applies to age discrimination in federally assisted programs, does not apply to employment claims, see Maryland v. Washington Metro. Area Transit Auth., No. CIV.A. TDC-14-3397, 2015 WL 4389885, n. 3 (D. Md. July 13, 2015), and does not provide a private right of action for money damages. See Nurse v. A Better Choice Case Mgmt., LLC, No. 9:21-CV-455-MBS-MHC, 2021 WL 3410791, at *5 (D.S.C. June 4, 2021), report and recommendation adopted, No. CV 9:21-00455-MBS, 2021 WL 3088047 (D.S.C. July 22, 2021) (citing Tyrrell v. City of Scranton, 134 F.Supp.2d 373, 384 (M.D. Pa. 2001)). Further, Plaintiff's citation to case law discussing the applicability of the sovereign immunity doctrine in state court, see Fox v. Coll. of Charleston, No. CV 2:17-483-RMG, 2017 WL 2987867, at *1 (D.S.C. July 12, 2017) (“The issue is whether South Carolina has sovereign immunity from suit in its own courts ....), is inapplicable. Plaintiff also raises qualified immunity, which is an affirmative defense not raised by Defendant in its motion, and, thus, inapplicable as well.
Plaintiff asserts in his Response that he has also alleged a claim for violation of South Carolina's anti-discrimination laws. Although the complaint references the laws of the State of South Carolina generally, Plaintiff does not specifically cite or otherwise allege a cause of action under any state law. Nevertheless, even if Plaintiff had asserted a state law discrimination claim for damages, it would likewise be barred by sovereign immunity. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 121 (1984) (finding that the Eleventh Amendment barred state law claims brought in federal court under pendent jurisdiction).
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion to Dismiss (ECF No. 5) be granted and this case dismissed.