Opinion
2:22-cv-03528-RMG-MGB
05-06-2024
Samuel T. Whatley, II; and Reverend Dr. Samuel T. Whatley, Plaintiffs, v. Bethany Phillips; U-Haul; U-Haul Co. of South Carolina, Inc.; and AMERCO, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Samuel T. Whatley, II (“Plaintiff”), proceeding pro se and in forma pauperis, initially filed this action as the sole plaintiff seeking relief pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. (Dkt. No. 1.) He later amended the pleading to include his father, Reverend Dr. Samuel T. Whatley (“Reverend Whatley”) as the second plaintiff in this action. (Dkt. No. 11.) Under 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review all pretrial matters in this case and submit findings and recommendations to the assigned United States District Judge. For the reasons discussed below, the undersigned finds that the Amended Complaint fails to state a claim upon which relief may be granted and therefore recommends that this action be summarily dismissed.
BACKGROUND
On or around August 9, 2022, Plaintiffs were hired by U-Haul Co. of South Carolina, Inc. (the “Company”) as customer service representatives at the North Dorchester location. (Dkt. No. 11-1 at 3.) At the time Plaintiffs were hired, there was ongoing construction at their worksite, which Plaintiffs claim created certain “safety risks . . . that could [have] cause[d] serious bodily harm or injury to employees and customers alike.” (Dkt. No. 11-3 at 22.) In particular, General Manager Bethany Phillips apparently informed Plaintiffs that “asphalt was going to be poured” at the North Dorchester location “sometime around mid to late-August 2022.” (Dkt. No. 11-1 at 4.) On August 19, 2022, Samuel T. Whatley, II sent Ms. Phillips the following text message:
My dad and I have talked and discussed that we should wait until the active construction zone is done due to the safety risks and the toxicity of the asphalt in the soon-to-be paved road. It would be better to have another location for the customers until the active construction is done.(Dkt. No. 11-3 at 25.)
The Company claims that because Plaintiffs were specifically hired to work at the North Dorchester location, Ms. Phillips understood the text message “to mean they would not return to work for an indefinite period of time.” (Dkt. No. 11-1 at 4.) In other words, Ms. Phillips “accepted that [Samuel T. Whatley, II] expressly refused to work scheduled hours until construction was completed” and “was taking himself off the schedule,” such that she “end[ed] the employment relationship.” (Id. at 4-5.) She responded to the text message, “Okay, thank you for your time and efforts thus far. I'll try to let you all know when construction is over so you may reapply.” (Id. at 4.)
According to the Company, Samuel T. Whatley, II “did not follow up with [Ms. Phillips] to clarify her statement, nor did he express his or his father's desire to continue work.” (Id.) Instead, he filed an administrative complaint with the South Carolina Occupational Safety and Health Administration (“SC OSHA”)-a division of the South Carolina Department of Labor, Licensing and Regulation (“SC LLR”)-suggesting that he and his father were “terminated with reductions in pay” for reporting the purported unsafe work conditions at the North Dorchester location to management.(Dkt. 11-3 at 22.) Although the Company filed a “position statement” in response to these claims on December 16, 2022 (Dkt. No. 11-1), the outcome of these administrative proceedings is unclear from the face of the pleading.
It appears Samuel T. Whatley, II also may have submitted a wage complaint with the South Carolina Office of Wages and Child Labor. (Dkt. No. 11-3 at 1.)
It is against this background that Samuel T. Whatley, II initiated the instant action pursuant to the FLSA against the Company; Bethany Phillips; U-Haul; and AMERCO (collectively, “Defendants”), asserting the following Statement of Claim:
My father and I were new hires working at a local location of U-Haul on Dorchester Road. It was an active construction zone with safety issues. After we voiced the concerns to the supervisor/general manager, we were both immediately terminated while taking safety courses. Wages were withheld for some hours.(Dkt. No. 1 at 5.) With respect to relief, the Complaint sought,
Pay for the hours that were manipulated by the supervisor/general manager and compensation for damages. Missing 6.5 hours total for both my father and I at $13 per hour and overtime. Corporate office refused to comply.(Id.)
Upon reviewing the allegations in the original Complaint, the Court issued an order notifying Samuel T. Whatley, II that his claims were subject to summary dismissal for failure to state an actionable claim under the FLSA. (Dkt. No. 6 at 2-4.) The order also noted that while the Complaint appeared to allege related claims on behalf of Reverend Whatley, a non-attorney cannot not litigate the legal rights of another individual. (Id. at 2.) In light of Samuel T. Whatley, II's pro se status, the Court then afforded him an opportunity to cure the deficiencies identified in the Complaint by filing an amended pleading, which would completely replace the original. (Id. at 4 & n.3.) The Court clarified that unless Reverend Whatley obtained counsel or indicated that he wished to proceed pro se by signing the amended pleading, any claims raised on his behalf would remain subject to summary dismissal. (Id.)
In compliance with the Court's instructions, Samuel T. Whatley, II filed an Amended Complaint (Dkt. No. 11)-signed by both him and his father-which now governs the scope of the instant action.Specifically, the Amended Complaint alleges that Plaintiff were “[w]rongfully terminated for reporting safety violations during an active construction zone” in violation of the FLSA. (Id. at 4.) Plaintiffs claim that,
In filing the amended pleading, Plaintiffs did not include the exhibits attached to the original Complaint; however, because the exhibits appear to be highly relevant to Plaintiffs' amended claims, the undersigned assumes they were likely omitted by mistake and considers them as part of this initial review in an abundance of caution. See Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (emphasizing “the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities”) (internal citations omitted). The Clerk of Court has added those exhibits to the Amended Complaint at Dkt. No. 11-3, and any further references to the Amended Complaint herein encompass the same.
After management was notified of the concerns to customers and employees, plaintiff was terminated. Corporate national, corporate state, and the company's parent company, AMERCO, were notified but did nothing.(Id.) With respect to relief, Plaintiffs seek “[c]ompensation for the wages and damages due to the wrongful termination.” (Id.) The Amended Complaint also notes under the “Relief” section, “The compensation notification system notified that the hours were being modified.” (Id.) This is the extent of the Amended Complaint.
STANDARD OF REVIEW
The Amended Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses, the court must dismiss any prisoner complaints, or portions of complaints, that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Accordingly, a claim based on a “meritless legal theory” or “baseless” factual contentions may be dismissed sua sponte at any time under § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 324-25, 327-28 (1989). The United States Supreme Court has explained that the statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits.” Id. at 326.
As to failure to state a claim, a complaint filed in federal court must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” under Rule 8(a)(2) of the Federal Rules of Civil Procedure. In order to satisfy this standard, a plaintiff must do more than make conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that the court need not accept as true a complaint's legal conclusions). Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. When “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is therefore charged with liberally construing a complaint filed by a Pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure to allege facts that set forth a cognizable claim under Rule 8(a)(2). See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 39091 (4th Cir. 1990); see also Iqbal, 556 U.S. at 684 (outlining pleading requirements under Rule 8, Fed. R. Civ. P., for “all civil actions”). The Fourth Circuit has explained that “though Pro se litigants cannot, of course, be expected to frame legal issues with the clarity and precision ideally evident in the work of those trained in law, neither can district courts be required to conjure up and decide issues never fairly presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1276 (4th Cir. 1985).
DISCUSSION
As noted above, the Amended Complaint's sole basis for relief in this case is Plaintiffs' purported “termination” from the Company in violation of the FLSA. (Dkt. No. 11 at 4.) “The FLSA is best understood as the ‘minimum wage/maximum hour law.'” See Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442, 446 (4th Cir. 2015) (quoting Monahan v. County of Chesterfield, 95 F.3d 1263, 1266 (4th Cir. 1996)). “Congress enacted the FLSA ‘to protect all covered workers from substandard wages and oppressive working hours.'” See Conner v. Cleveland Cnty., N.C. , 22 F.4th 412, 420 (4th Cir. 2022) (citing Trejo, 795 F.3d at 446). “To accomplish these goals, the FLSA requires employers ‘to pay their employees both a minimum wage and overtime pay.'” See id. (citing Hall v. DIRECTV, LLC, 846 F.3d 757, 761 (4th Cir. 2017)); see also 29 U.S.C. §§ 206(a)(1), 207(a)(1). The FLSA also imposes certain record keeping requirements on employers, mandating that they “keep and preserve” certain records regarding “wages, hours, and other practices of employment.” 29 U.S.C. § 211(c); 29 C.F.R. § 516.5.
In the instant case, it is not entirely clear what facts Plaintiffs offer in support of their FLSA claim, or what provision(s) Defendants even violated for that matter. Indeed, the only mention of Plaintiffs' wages and/or hours in the Amended Complaint is that “[t]he compensation notification system notified that the hours were being modified.” (Dkt. No. 11 at 4.) Although not entirely clear, it seems Plaintiffs may be referring to two automated “Alert Notifications” issued by U-Haul in August 2022-the first notice informing Samuel T. Whatley, II that he failed to “clock in” at the beginning of his shift on August 9, 2022, and the second notice informing Reverend Whatley that he failed to “clock in” on August 17, 2022. (See Dkt. No. 11-3 at 10, 12, respectively.) The notices directed Plaintiffs to contact their supervisor(s) “to correct this issue” and “ensure prompt, complete, and accurate payment.”(Id.)
The exhibits also include what appears to be a text message exchange between Ms. Phillips and one of the Plaintiffs, wherein the sender stated, “I received this email . . . about missing time,” and Ms. Phillips replied, “The email is from me correcting your time from yesterday.” (Dkt. No. 11-3 at 24.) Because the date of this exchange is unclear, the Court cannot ascertain whether Ms. Phillips is referring to one of the missing time entries from the Alert Notifications above.
Without more, the undersigned simply cannot ascertain how the allegations above amount to a cognizable FLSA claim. See Beaudett, 775 F.2d at 1278 (noting that district courts are not required to serve as “mind readers” and “cannot be expected to construct full blown claims” on a Pro se plaintiff's behalf); Campbell v. StoneMor Partners, LP, No. 3:17-cv-407, 2018 WL 3451390, at *2, 4 (E.D. Va. July 17, 2018) (explaining that courts need not “scour through [a Pro se plaintiff's] attachments in an attempt to cobble together the facts that could support” the proposed claims or “discern the unexpressed intent of the plaintiff”), aff'd, 752 Fed.Appx. 166 (4th Cir. 2019); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (noting that federal courts lack the power to entertain claims that are “so attenuated and unsubstantial as to be absolutely devoid of merit”). Nevertheless, the undersigned briefly addresses several possibilities in an abundance of caution.
First, to the extent Plaintiffs are attempting argue that Defendants failed to maintain accurate, adequate records regarding their hours, the undersigned reiterates (Dkt. No. 6 at 3 n.1) that “the FLSA's recordkeeping provision does not create a private right of action.” See Mooney v. Advanced Bus. Equip., No. 1:20-cv-378-MOC, 2021 WL 1553821, at *2 (W.D. N.C. Apr. 20, 2021) (collecting cases); see also Fenner v. Mayor & City Council of Baltimore, No. 1:21-cv-2646-DLB, 2022 WL 2209064, at *5 (D. Md. June 21, 2022) (finding that “any claims relating to record keeping are not cognizable because the FLSA does not provide a private cause of action to enforce its record keeping provisions”). Consequently, any such claim is subject to summary dismissal.
Second, to the extent Plaintiffs are attempting to allege a violation of the FLSA's minimum wage and/or overtime provisions, they must allege that they were employed by the defendant; that they were covered employees; that they were either not compensated for all hours worked at a rate equal to or greater than the applicable minimum wage and/or worked more than forty-hours per week and were not compensated at a rate of 1.5 times their regular rate for each hour worked above forty hours per workweek; and that no statutory exemptions apply. Armento v. Asheville Buncombe Cmty. Christian Ministry, Inc., No. 1:17-cv-150-MR-DLH, 2019 WL 1382504, at *8 (W.D. N.C. Mar. 27, 2019); see also 201 U.S.C. §§ 206-207. The Amended Complaint's vague allegations do not suggest that Plaintiffs' compensation was below the applicable wage/rates or that they were not compensated for all hours worked; to the contrary, Defendants clearly had safeguards in place to ensure an accurate accounting of employee hours and compensation, which led to the generated notifications. Thus, Plaintiffs' allegations do not amount to a violation of the FLSA.
The undersigned also notes that, to the extent Plaintiffs intended to incorporate their allegations from the original Complaint (Dkt. No. 1) in the amended pleading, those claims still fail for the same reasons discussed in the Court's previous order. (Dkt. No. 6 at 3-4.) To reiterate, the Complaint alleged that Plaintiffs were not paid for hours “that were manipulated” by Ms. Phillips and were “[m]issing 6.5 hours total . . . at $13 per hour and overtime.” (Id. at 5.) As noted above, there is no indication that Ms. Phillips or Defendants “manipulated” Plaintiffs' hours based on the Alert Notifications. Moreover, as the Court previously noted, it remains “unclear the number of hours Plaintiff [Samuel T. Whatley, II] was allegedly not paid (as opposed to the number of hours combined that [he] and his father allegedly were not paid).” (Dkt. No. 6 at 4.) Despite mentioning “overtime,” the Complaint also fails to allege that either Plaintiff “worked more than forty-hours per week and was not compensated at a rate of 1.5 times his regular rate.” (Id.) Accordingly, such cursory allegations remain insufficient to state a claim upon which relief may be granted under the FLSA. See Hall v. DIRECTV, LLC, 846 F.3d 757, 777 (4th Cir. 2017) (defining the standard for stating a plausible FLSA overtime claim as one that “provide[s] sufficient factual allegations to support a reasonable inference that he or she worked more than forty hours in at least one workweek and that his or her employer failed to pay the requisite overtime premium for those overtime hours”); see also Spencer v. Macado's, Inc., No. 6:18-cv-5, 2018 WL 3676990, at *4 (W.D. Va. Aug. 1, 2018) (holding that complaint alleging FLSA violation failed to state an overtime pay claim where the plaintiff did not describe how much he was entitled to and other facts that would make the pay plausible).
While the Amended Complaint lists the FLSA as the only basis for relief in this case (Dkt. No. 11 at 4), it is worth noting that Plaintiffs may also be attempting to allege some type of whistleblower claim here. See Erickson, 551 U.S. at 94 (stating that a federal court is charged with liberally construing a Pro se complaint to allow the development of a potentially meritorious case). Even if the Court entertained this cause of action, however, the Amended Complaint still fails to state an actionable claim that would survive initial review.
For example, to the extent the Amended Complaint suggests that Defendants violated the Occupational Health and Safety Act, 29 U.S.C. §§ 651 et seq. (“OSHA”),by terminating Plaintiffs' employment for reporting their safety concerns, “Congress intentionally declined to provide for a private right of action” for such circumstances. Carr v. United States, No. 4:17-cv-167-D, 2018 WL 5074671, at *4 (E.D. N.C. Oct. 17, 2018). Rather, the Secretary of the Department of Labor is charged with investigating and prosecuting meritorious claims of retaliation under OSHA. 29 U.S.C. § 660(c)(2); see also Warren v. City of Greensboro, No. 1:23-cv-69, 2023 WL 8115038, at *2 (M.D. N.C. Oct. 23, 2023) (explaining that OSHA permits only the Secretary of Labor “to pursue wrongful termination claims”), adopted, 2023 WL 8113829 (M.D. N.C. Nov. 22, 2023). Accordingly, Plaintiffs cannot maintain an actionable claim under OSHA.
OSHA prohibits retaliatory discharge of or discrimination against employees who report workplace safety concerns. 29 U.S.C. § 660(c)(1).
Similarly, to the extent Plaintiffs are attempting to allege that Defendants retaliated against them in violation of their First Amendment rights pursuant to 42 U.S.C. § 1983,such claims likewise fail. To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that “a right secured by the Constitution and laws of the United States” was violated, and (2) that the alleged violation “was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Purely private conduct, “no matter how wrongful, injurious, fraudulent, or discriminatory,” does not provide a basis for action under § 1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). Because Defendants represent private companies and citizens, they are not amenable to suit under § 1983 and any such claim is therefore subject to summary dismissal.
Section 1983 “creates a private right of action to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012).
Finally, to the extent Plaintiffs intend to allege a claim pursuant to South Carolina's Whistleblower Act, SC Code §§ 8-27-10 et seq.,federal courts are courts of limited jurisdiction, meaning they possess only that power authorized by Article III of the United States Constitution and affirmatively granted by federal statute. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Pursuant to this limited power, there are two primary bases for original federal jurisdiction: (1) “federal question,” under 28 U.S.C. § 1331, and (2) “diversity of citizenship,” under 28 U.S.C. § 1332.
South Carolina's Whistleblower Act provides that “[n]o public body may dismiss, suspend from employment, demote, or decrease the compensation of an employee of a public body because the employee files a report with an appropriate authority of wrongdoing.” S.C. Code § 8-27-20(A).
If a federal district court has original jurisdiction over a civil action, it may also exercise supplemental jurisdiction over any state law claims that are “so related” to the claims under the court's original jurisdiction “that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). Without original jurisdiction, however, a federal court generally cannot exercise supplemental jurisdiction over state law claims. See id. § 1367(c)(3) (stating that the district court may decline to exercise supplemental jurisdiction over state law claims if it has dismissed all claims over which it has original jurisdiction). Because the Amended Complaint does not allege a valid federal cause of action or diversity of citizenship, this Court cannot exercise jurisdiction over any state law claims, including any purported violations of South Carolina's Whistleblower Act. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (stating that “if the federal claims are dismissed . . ., the state claims should be dismissed as well”); see also Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants.”).
CONCLUSION
For the reasons discussed above, the undersigned RECOMMENDS that this action be summarily DISMISSED without further leave to amend, as Plaintiffs have already had an opportunity to do so. See Britt v. DeJoy, 45 F.4th 790, 798 (4th Cir. 2022); see also Workman v. Morrison Healthcare, 724 F. App'x. 280, 281 (4th Cir. June 4, 2018).
IT IS SO RECOMMENDED.
The parties' attention is directed to an important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).