Opinion
C. A. 6:22-cv-01414-DCC-KFM
07-11-2022
Faith Treinka Walker, Plaintiff, v. Universal Health Services, The Carolina Center for Behavioral Health, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
The plaintiff, proceeding pro se and in forma pauperis, brings this employment action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Occupational Safety and Health Act of 1970 (“OSHA”) (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on May 3, 2022 (doc. 1). By order filed June 15, 2022, the plaintiff was informed that her complaint was subject to summary dismissal because it fails to state a claim upon which relief may be granted (doc. 17). In the same order, the plaintiff was informed that she could attempt to cure the defects in her complaint by filing an amended complaint within fourteen days (id. at 4-5). The plaintiff was informed that if she failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that her claims be dismissed without further leave for amendment (id.). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
The plaintiff filed this action seeking relief from her employers pursuant to Title VII and OSHA (doc. 1). She seeks relief based upon Title VII for unequal terms and conditions of employment, termination, and retaliation based on her race (id. at 3, 5). She also alleges retaliation in violation of OSHA, and wrongful termination under unspecified state law (id. at 4). For relief, the plaintiff seeks money damages (id. at 7). Attached to her complaint are various documents submitted as part of the OSHA and EEOC complaint processes (docs. 1-1; 1-2; 1-3; 1-4).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed the instant action seeking damages from the defendants. For the reasons that follow, the case is subject to summary dismissal. OSHA Claim
Relevant to the instant matter, OSHA prohibits retaliation against employees who exercise their rights under the statute. 29 U.S.C. § 660. Specifically, § 11(c), under which the plaintiff asserts her claim, provides that “[n]o person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this” Act. Id. § 660(c)(1). However, the Fourth Circuit has held that § 11(c) does not provide a private right of action through which an individual can sue his or her employer. See Scarborough v. Aegis Commc'ns Grp., Inc., 217 F.3d 840 (Table), 2000 WL 790965, (4th Cir. 2000) (unpublished per curiam opinion) (noting that there is no private right of action under OSHA); see also Carter v. GardaWorld Sec. Servs., C/A No. JKB-20-3700, 2021 WL 2018636, at *5 (D. Md. May 20, 2021) (dismissing, amongst other things, an OSHA retaliation claim because there was no private right of action for an OSHA retaliation claim). As such, the plaintiff's OSHA retaliation claim is subject to summary dismissal.
Title VII Claims
In the instant matter the plaintiff alleges unlawful termination, unequal terms and conditions of employment, and retaliation based upon her race in violation of Title VII. To state a plausible Title VII discrimination claim based upon race, a plaintiff must allege that her employer treated her differently than coworkers who were not her race. 42 U.S.C. § 2000e-2(a)(1). To plausibly state a claim for disparate terms and conditions of employment, a plaintiff must make factual allegations to state a race discrimination claim for relief that is plausible on its face. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting that a “formulaic recitations of the elements of a cause of action will not do”). To allege a plausible Title VII retaliation claim, a plaintiff must allege that she engaged in protected activity, that her employer took an adverse employment action against her, and that there was a causal link between the protected activity and the adverse employment action. See EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005).
Here, the plaintiff's complaint fails to state a Title VII claim. The plaintiff's complaint contains no factual allegations relating to her claims (see doc. 1). Instead, she references various documents that were attached to her complaint (see id. at 5). However, although the plaintiff's allegations must be liberally construed, the plaintiff must provide more than a conclusory reference to various documents attached to her complaint to allege plausible claims for relief. See Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (noting that the plausibility pleading standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation'”). Indeed, the court is not required to cull through various documents to construct a plaintiff's claim. See Weller, 901 F.2d at 391. As such, the plaintiff's complaint fails to allege a claim for relief pursuant to Title VII.
State Law Wrongful Termination
The plaintiff's complaint likewise contains no information regarding her alleged state law wrongful termination claim (see doc. 1). However, although South Carolina law provides for a cause of action for wrongful termination in violation of public policy, such a claim has not been extended to circumstances where there is a statutory remedy for employment discrimination - such as Title VII. See Menton v. Nestle Prepared Foods Co., C/A No. 7:14-cv-02542-JMC, 2015 WL 1038121, at *7 (D.S.C. Mar. 10, 2015) (recognizing that a South Carolina state law wrongful termination in violation of public policy claim is preempted by Title VII). As such, because the plaintiff seeks relief based upon Title VII in this action, her state law wrongful termination claim is subject to summary dismissal.
RECOMMENDATION
By order issued June 15, 2022, the undersigned gave the plaintiff an opportunity to correct the defects identified in her complaint and further warned the plaintiff that if she failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 17 at 4-5). The plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to “in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)). The plaintiff's attention is directed to the important notice on the next page.
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 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).