Opinion
C/A 3:20-4480-TLW-SVH
08-23-2021
Wilbert J. Alexander, II, Plaintiff, v. South Carolina Department of Transportation, Controller Michael Guffee, CFO Kace Smith, and Employee Relations Cynthia Johnson, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
In this employment discrimination case, an employee has repeatedly attempted to assert multiple claims against his former employer, primarily concerning alleged discrimination and retaliation he experienced as a black man, culminating in filing multiple motions to amend. Defendants ask the court to dismiss the employee's complaint and proposed amended complaints, but have failed to address the legal sufficiency of his individual claims.
Wilbert J. Alexander, II (“Plaintiff”), proceeding pro se and in forma pauperis, sues his former employer, the South Carolina Department of Transportation (“SCDOT”), as well as the following SCDOT employees in their official capacities: Michael Guffee (“Guffee”), Kace Smith (“Smith”), Cynthia Johnson (“Johnson”) (collectively, “Defendants”). Plaintiff asserts multiple causes of actions, including violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.
This matter comes before the court on Plaintiff's motions to amend [ECF Nos. 34, 53; see also ECF No. 37] and Defendants' motion to dismiss [ECF No. 38]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the motion to dismiss procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 39]. The motions having been fully briefed [ECF Nos. 47, 58], they are ripe for disposition.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. For the reasons that follow, the undersigned recommends the district judge grant in part Plaintiff's latest-filed motion to amend [ECF No. 53], deny as moot Plaintiff's other pending motion to amend [ECF No. 34], and deny as moot Defendants' motion to dismiss [ECF No. 38].
I. Factual and Procedural Background
Plaintiff's original complaint was filed on December 29, 2020, did not contain a clear identification of the claims at issue [see ECF No. 1 at 4], and included one page of factual assertions, id. at 6. On January 21, 2021, the undersigned issued an order and notice detailing the defects in Plaintiff's complaint and permitted him until February 11, 2021, to file an amended complaint.
Plaintiff then filed an amended complaint and second amended complaint on February 11, 2021, and March 5, 2021, respectively. [ECF Nos. 15, 20]. Plaintiff then filed a motion to amend that the court denied for his failure to follow the court's previous direction that any motion to amend include “the reasons for the amendments and detail[] any changes he has made from the second amended complaint, ” also noting that Plaintiff's second amended complaint contained 50 pages and the proposed complaint contained 77 pages. [ECF No. 28].
Plaintiff filed a motion for reconsideration, which the court construed as a renewed motion to amend. [ECF Nos. 34, 37]. Defendants opposed Plaintiff's renewed motion to amend and sought dismissal of his claims for failure to state a claim. [ECF No. 38]. Plaintiff opposed Defendants' motion and moved to amend again. [ECF Nos. 47, 48]. The court denied Plaintiff's motion to amend again, but provided Plaintiff a final opportunity to file a motion to amend and proposed amended complaint, limiting him to 25 pages for the latter, and explaining what a proposed amended complaint should contain, and noting that “[i]f Plaintiff adequately complies with the guidance in this order, the pending motions [ECF No. 34, 38] may be rendered moot, ” also providing Defendants an opportunity to respond. [ECF No. 51 at 5].
Plaintiff filed his latest motion to amend on July 16, 2021, and Defendants filed their opposition thereafter. [ECF No. 58]. In Plaintiff's most-recently proposed amended complaint, he asserts the following violations of his rights by Defendants: (1) Title VII discrimination, (2) freedom of speech violation, (3) Title VII retaliation, (4) breach of terms of employment, (5) negligence, (6) defamation, (7) violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601, et seq., (8) tortious interference with terms of employment, (9) intentional infliction of emotional distress, and (10) wrongful discharge/termination, constructive dismissal. [See ECF No. 53-1]. II. Discussion
A. Standard on Motion to Amend
Leave to amend should be freely granted under Fed.R.Civ.P. 15(a), and amendments are generally accepted absent futility, undue prejudice, or bad faith. See Foman v. Davis, 371 U.S. 178, 182 (1962); Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009). The court can deny a motion to amend a complaint “if amending the complaint would be futile, that is, ‘if the proposed amended complaint fails to satisfy the requirements of the federal rules.'” United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (citation omitted).
B. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
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 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). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
C. Analysis
Defendants argue Plaintiff's amended and proposed amended complaints are inconsistent with the applicable rules and the direction repeatedly provided by the court. [See ECF No. 38, 58]. In support, Defendants cite Holt v. Stroman, 2015 WL 1061990, *3 (D.S.C. Mar. 11, 2015), where the court dismissed the plaintiff's complaint when plaintiff, with the assistance of counsel, made “only conclusory statements, outline[d] the relevant law with only vague allusions to the alleged facts, or mention[ed] a few facts, ” falling “far short of showing how Defendants' actions meet the elements of the causes of action alleged.” [ECF No. 38 at 7-8]. Defendants also argue that Plaintiff's latest proposed amended complaint, even after warnings by the court, remains a “shotgun pleading.” [ECF No. 58 at 6-8]. In support, Defendants cite McCrea v. Wells Fargo, C/A No. RDB-18-2490, 2019 WL 2513770, at *7 (D. Md. June 17, 2019), in which the court held as follows:
Plaintiff's Complaint is a textbook case of impermissible shotgun pleading. McCrea's Complaint presents 85 paragraphs of factual allegations under the heading “Statement of Claim, ” culminating,
without further elaboration, in a list over twenty causes of action. This structure renders futile any attempt to align the Complaint's myriad factual allegations with its roughly two dozen causes of action. The presentation of these allegations also renders fruitless any attempt to discern which Defendants are allegedly responsible for which alleged acts of misconduct or which Defendants are sued under which theory of recovery.
A review of Plaintiff's latest proposed amended complaint, submitted in response to the court's direction provided on June 25, 2021 [ECF No. 51], may not be the model of clarity. However, the court recognizes Plaintiff's attempts to plead in conformity with the applicable rules and the court's direction and finds his latest proposed amended complaint unlike the complaints discussed in Holt and McCrea. Although Defendants argue otherwise, Plaintiff has provided a list of the ten causes of action he seeks to assert, in many cases the elements of each cause of action, and the actions taken by Defendants and others that allegedly support those causes of action.
Defendants argue that Plaintiff's latest proposed amended complaint is deficient for the primary reason that “Defendants have no way to discern which of them must respond to the individual ‘counts.'” [ECF No. 58 at 6]. However, as discussed more below, Plaintiff has sufficiently identified who took what alleged actions such that one may discern the claims are asserted against particular Defendants.
Despite Defendants' failure to move for dismissal as to each claim, the court will sua sponte examine the claims and recommend dismissal of those that fail to state a claim. “Where the face of a complaint plainly fails to state a claim for relief, a district court has ‘no discretion' but to dismiss it.” Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed.1990)).
1. Title VII Discrimination Claim
Title VII prohibits federal government employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Generally, to state a claim for Title VII discrimination, a plaintiff must allege (1) he is a member of a protected class; (2) he was performing his duties in a satisfactory manner; (3) he was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015).
“[A]lthough the plaintiff need not plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), a civil rights plaintiff retains the burden of alleging facts sufficient to state a claim entitling her to relief.” Harman v. Unisys Corp., 356 Fed.Appx. 638, 640 (4th Cir. 2009); see Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 627 (4th Cir. 2015) (considering Title VII and ADEA claims in the context of Rule 12(b)(6)); Coleman v. Maryland Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (analyzing a Title VII claim under Rule 12(b)(6)), aff'd, 566 U.S. 30 (2012).
Plaintiff has sufficiently alleged a claim for Title VII discrimination. Here, Plaintiff has alleged that he is a black male over the age of 40, who is qualified as an Accounting Fiscal Analysist III, and who met his employer's reasonable expectations, including, for example, successfully preparing SCDOT's 2017 and 2018 financial statement notes. [ECF No. 53-1 at 4]. Plaintiff further alleges that SCDOT took multiple adverse actions against him under circumstances that give rise to an inference of unlawful discrimination, some of which are discussed below.
Plaintiff alleges that he was paid $11,500 less than a white male, Stuart Reulle (“Reulle”), who was hired much later than Plaintiff and had “the same job title, similar work under similar work[ing] conditions” as Plaintiff. Id. Plaintiff also alleges that Guffee, a white male and Plaintiff's indirect supervisor, showed preferential treatment to other white males by, for example, unofficially promoting Reulle to supervise Plaintiff, even though Plaintiff had more experience and Reulle was not as capable as Plaintiff, and then officially promoting Reulle, providing him with a 20% salary increase. Id. at 5, 7, 20 (“Guffee[] (white male), new hire less than 3 months, discriminated against the Plaintiff (black male) and showed preferential treatment and promoted Reulle (white male), newly hired Acct Fiscal Analyst III with no SCDOT experience, over the Plaintiff, Acct Fiscal Analyst III with 3.5 years of SCDOT experience.”). Plaintiff also alleges Guffee belittled and criticized him, failed to discuss work tasks with him, and made him perform clerical tasks, indicating that other white, similarly-situated employees were not subject to some of this treatment. Id. at 5, 13.
These allegations, taken as true, sufficiently state a claim for Title VII discrimination. See, e.g., Sharkey v. Fortress Sys. Int'l, Inc., C/A No. 3:18-19-FDW-DCK, 2020 WL 2220188, at *5 (W.D. N.C. May 7, 2020) (“It is well settled that ‘[a] plaintiff may assert claims based on unequal pay for equal work under both the EPA and Title VII.'”) (citing Brinkley-Obu v. Hughes Training, 36 F.3d 336, 343 (4th Cir. 1994)); Sessions v. Univ. of S.C., C/A No. 3:04-0634-MBS, 2006 WL 2543051, at *7 (D.S.C. Aug. 31, 2006) (“In order to establish a prima facie case for race discrimination in compensation under Title VII, Plaintiff must show that (1) he is a member of a protected class; (2) he was paid less than an employee outside the class; and (3) the higher paid employee was performing a substantially similar job.”); Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010) (holding a plaintiff must plead factual allegations “that they are similar in all relevant respects to their comparator, ” including “that the employees ‘dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'”) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).
Plaintiff also asserts that he suffered from a hostile work environment. To state such a claim under Title VII, Plaintiff must allege conduct was (1) unwelcome; (2) based on his race; (3) sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) imputable to his employer. Pryor v. United Air Lines, Inc., 791 F.3d 488, 495-96 (4th Cir. 2015). In other words, as the Supreme Court has made clear, a hostile work environment exists when an employee's “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted).
Plaintiff has failed to allege any harassing conduct based on his race, much less such conduct that was so “severe or pervasive” as to “alter the conditions” of his employment. Plaintiff states he was belittled by Gaffee and reprimanded for not meeting task deadlines. [See ECF No. 53-1 at 6-7]. Plaintiff alleges Gaffee would sneak into an open cubicle near Plaintiff for no reason and sit and stare at Plaintiff, try to intimidate, bully, and stalk him. Id. Plaintiff also alleges that Guffee and Smith harassed and yelled at him for speaking to another employee and stopped an additional conversation with another employee and that Johnson threatened him with a reprimand and verbally attacked him, threatened disciplinary action, and criticized his work performance. Id. at 7, 10-11, 13. As to Gaffe, Smith, and Johnson's actions described above, Plaintiff identifies seven or eight discrete incidents occurring between September 17, 2017 and March 5, 2019. See, e.g., id. at 20-22 (“Smith . . . beat on a table and threatened the Plaintiff and . . . said ‘you don't want to deal with me and Michael . . . .'”).
Although irritating or upsetting, the conduct described is not alleged to be based on Plaintiff's race or sufficiently severe or pervasive to state a claim for hostile work environment. See, e.g., Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011) (“Bond's allegations, which largely include the actions taken against her in response to the concerns regarding her performance, fall well short of alleging an abusive working environment.”); EEO v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (“Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.”).
As stated by the Fourth Circuit, responding to a somewhat-factually similar situation:
Buchhagen alleges that that Dr. Beebe, her supervisor, created a hostile environment over the course of nine months by, inter alia, “mockingly” yelling at Buchhagen in one meeting; yelling and
pounding her hands on her desk during another meeting; “repeatedly harp[ing]” on a mistake made by Buchhagen in October 2009; making “snide comments” to Buchhagen; playing favorites with employees and pitting employees against each other; and unfairly scrutinizing and criticizing Buchhagen's use of leave and compliance with Beebe's directives. Many of these allegations are conclusory and lack sufficient factual support to make them plausible. In any event, the conduct alleged falls far short of being severe or pervasive enough to establish an abusive environment, and the district court therefore properly dismissed Buchhagen's hostile environment.Buchhagen v. ICF Int'l, Inc., 545 Fed.Appx. 217, 219-20 (4th Cir. 2013) (citations omitted).
In sum, the undersigned recommends granting Plaintiff's latest-filed motion to amend in part, in that Plaintiff has sufficiently alleged a claim for Title VII discrimination against SCDOT, but not one for a hostile work environment. See, e.g., Barnwell v. Magellan Health, Inc., C/A No. 9:18-2326-RMG-BM, 2019 WL 7938328, at *7-8 (D.S.C. Oct. 25, 2019) (collecting cases and noting employer is the proper defendant for a Title VII claim and plaintiff's Title VII claim against the CEO in his official capacity is duplicative of the Title VII claim against the employer), report and recommendation adopted, C/A No. 9:18-CV-2326-RMG, 2019 WL 6486799 (D.S.C. Dec. 3, 2019).
2. Freedom of Speech Violation
To prevail on a First Amendment retaliation claim, a plaintiff must show (1) she engaged in protected expression regarding a matter of public concern; (2) her interest in First Amendment expression outweighs her employer's interests in efficient operation of the workplace; (3) she was deprived of some valuable benefit; and (4) a causal relationship exists between her protected expression on matters of public concern and the loss of the benefit. Ridpath v. Bd. of Governors of Marshall Univ., 447 F.3d 292, 316 (4th Cir. 2006); Peters v. Jenny, 327 F.3d 307, 322 (4th Cir. 2003).
Plaintiff appears to allege that he was forced to sign an agreement to not speak to anyone outside the accounting department by Guffe and others, he was “harassed and yelled at” for speaking to people in the SCDOT internal audit department, and conversations he had with others were “stopped . . . for no reason.” [ECF No. 53-1 at 7]. Plaintiff alleges he was reprimanded for a conversation with another SCDOT employee “concerning the Indirect Cost Rate which is approved by the Federal Highway commission for reimbursement with tax dollars and is therefore a matter of public concern.” Id. He argues “defendant's sole motivation was to prevent the Plaintiff from speaking with other SCDOT employees to conduct his job properly.” Id. at 8. Plaintiff appears to argue these efforts were successful in that he was prevented from effectively doing his job, was defamed and embarrassed, and was given an “written reprimand as a result of this free speech violation which ultimately leads to job separation.” Id. at 7-8.
Plaintiff has failed to state a claim for First Amendment retaliation. Here, Plaintiff has not made clear that he engaged in protected speech, and to the extent that he did, he has failed to allege a causal relationship between that speech and the deprivation of some valuable benefit, where he has alleged that his speech was hampered generally, not specifically regarding any given topic, much less a protected topic. See Ridpath, 447 F.3d at 318 (“The causation requirement is ‘rigorous' in that the protected expression must have been the ‘but for' cause of the adverse employment action alleged.”) (citing Huang v. Bd. of Governors, 902 F.2d 1134, 1140 (4th Cir.1990)).
To the extent Plaintiff asserts a First Amendment violation based on Guffee and Smith yelling at him “for speaking to another SCDOT employee” [ECF No. 53-1 at 7], he fails to state a claim for the same reasons stated above.
3. Title VII Retaliation
Title VII also prohibits an employer from retaliating against an employee because the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a). To make a prima facie claim of retaliation, a plaintiff must show: (1) that he engaged in protected activity, (2) that the employer took a materially adverse action against him, and (3) there is a causal connection between the protected activity and the adverse action. See Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019) (citing Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)).
In relevant part, Plaintiff alleges as follows:
After the Plaintiff submitted his SCDOT complaint and the [Equal Employment Opportunity Commission] complaint on or around 1/24/2018, Guffee and SCDOT immediately began retaliating against the Plaintiff and in less than one year SCDOT & Guffee committed over 15 adverse actions listed throughout this complaint and 3 reprimands against the Plaintiff . . . .
[ECF No. 53-1 at 11 (emphasis removed)]. Plaintiff alleges that “Guffee was also upset that the Plaintiff filed a formal complaint for harassment and discrimination so Guffee and SCDOT retaliated against the Plaintiff.” Id. at 12. Plaintiff alleges that Guffee “recommended and submitted all (3) disciplinary/reprimand actions against the Plaintiff” and that “[i]mmediately after the plaintiff reported Guffee and Smith for discrimination and harassment, Guffee changed the structure of the accounting department so that the Plaintiff have to report directly to Guffee . . . .” Id. at 12-13 (emphasis removed).
Plaintiff additionally alleges he was involved in a protected activity by “opposing unlawful employment practices concerning the Indirect Cost Rate calculation method, ” but does not indicate exactly when this activity occurred or that any materially adverse action was taken against him causally connected to this activity. [See ECF No. 53-1 at 9].
Plaintiff has failed to allege a claim for Title VII retaliation. Although Plaintiff argues Guffee and SCDOT took numerous actions against him following his alleged protected activities, he has failed to allege any causal connection beyond temporal proximity. Although temporal proximity may suffice to establish causation when the protected activity and adverse action are “very close” or less than, for example, three months apart, see, e.g., Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 173 (4th Cir. 2020), as amended (Oct. 16, 2020) (holding two weeks close enough but three months “too tenuous to support a reasonable inference of causation”), here, the only alleged adverse action specifically identified and even reasonably close to Plaintiff's alleged protected activities is that on February 2, 2018, Guffee changed the SCDOT human resources job supervisor hierarchy so that Plaintiff had to report directly to Guffee. [See ECF No. 53-1 at 21].
For example, Plaintiff has alleged that the reprimands discussed above occurred on or after January 28, 2019. [See ECF No. 53-1 at 21-22].
This action, however, is not a materially adverse action against Plaintiff in this context. To satisfy the second element, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation omitted). An action is not materially adverse, however, if it amounts to “petty slights or minor annoyances that often take place at work and that all employees experience.” Id. As stated by the Fourth Circuit, “[a] typical adverse employment action includes discharge, demotion, decrease in compensation, loss of job title or supervisory responsibility, reduced opportunities for promotion, or other conduct that had a significant detrimental effect.” Gurganus v. Beneficial N.C., Inc., 25 Fed.Appx. 110, 112 (4th Cir. 2001) (citing Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999)).
Restructuring so that Plaintiff reported directly to Guffee does not appear to “adversely affect the terms, conditions, or benefits of the plaintiff's employment, ” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (citations omitted), but is more akin to the minor annoyances that all employees experience.
Plaintiff also alleges that on April 2, 2018, Guffee was somehow involved in Plaintiff signing a document stating that if he used his earned sick and annual leave, his “approved excessive excused absences are also subject to disciplinary action, up to an[d] including termination.” [See ECF No. 53-1 at 18, 21]. As stated above, Plaintiff has failed to allege any causal connection beyond temporal proximity. This action is too remote in time to support a reasonable inference of causation and, although not wholly clear, does not appear to be a materially-adverse action.
Plaintiff also alleges that he was retaliated against by being denied eight transfers to other departments from January 29, 2018 and February 27, 2019, without identifying specific instances. [ECF No. 53-1 at 21]. However, this alleged retaliation was committed by “SCDOT human resources department Mccottry” and there is no allegation or indication that the person or people involved in these decisions were aware of Plaintiff's alleged protected activities. See Id. More importantly, there is no indication that denial of transfers was an adverse employment action in this context. See, e.g., Forgus v. Mattis, 753 Fed.Appx. 150, 153 (4th Cir. 2018) (“mere denial of a reassignment to a purely lateral position (no reduction in pay and no more than a minor change in working conditions), is typically not a materially adverse action”) (citation omitted)).
Plaintiff also states that Guffee “demoted him” to a clerical position, but a review of the entire complaint indicates this was not a demotion in that Plaintiff's title or compensation changed, but was instead a request for Plaintiff to take on clerical duties temporarily. [See ECF No. 53-1 at 13 (“Guffee had ill intent when he demoted the Plaintiff to a clerical position and then subsequently required the Plaintiff to return to his regular work duties but started setting shorter deadlines to accomplish required task.”)]. Plaintiff alleges also, in one sentence, that he was denied promotions from January 28, 2018 to February 27, 2019. [ECF No. 53-1 at 11]. Plaintiff makes no other allegations concerning this alleged denial of promotions and has failed to state a claim regarding this allegation except as otherwise addressed above as to his claim for Title VII discrimination.
Plaintiff has failed to allege a Title VII retaliation claim, and the undersigned recommends the district judge dismiss this claim.
4. Breach of Contract
South Carolina generally recognizes and upholds at-will employment, but an employer and employee may contractually alter those terms, including through an employee handbook. See Weaver v. John Lucas Tree Expert Co., C/A No. 2:13-1698-PMD, 2013 WL 5587854, at *6 (D.S.C. Oct. 10, 2013); see also Small v. Springs Indus., 357 S.E.2d 452 (S.C. 1987). At a minimum, to prevail on a breach of contract claim under South Carolina law, a plaintiff bears the burden of establishing the existence and terms of the contract, defendant's breach of one or more of the contractual terms, and damages resulting from the breach. Taylor v. Cummins Atlantic, Inc., 852 F.Supp. 1279, 1286 (D.S.C. 1994) (citing Fuller v. Eastern Fire & Cas. Ins. Co., 124 S.E.2d 602 (S.C. 1962)).
Here, Plaintiff's breach of contract claim is based on Defendants' failure to “protect all employees from a hostile work environment, ” for example, by not following certain procedures found in the SCDOT employee handbook. [ECF No. 53-1 at 13-14]. However, because Plaintiff has failed to establish a claim for hostile work environment, he has also failed to establish a claim for breach of contract based on Defendants' failure to address his hostile work environment claim, particularly where, here, Plaintiff has failed to identify the specific and mandatory contract provisions of the SCDOT employee handbook that were allegedly breached. See, e.g., Grant v. Mount Vernon Mills, Inc., 634 S.E.2d 15, 20 (S.C. Ct. App. 2006) (holding that in an action asserting breach of contract based on a company policy, once an employer voluntarily publishes the policy to its employees, the employer may be held liable for breach of contract if the employee can establish that the policy applies to the employee, sets out procedures binding on the employer, and does not contain a conspicuous and appropriate disclaimer); Battle v. Nikanth, LLC, C/A No. 2:13-543-PMD, 2013 WL 4874976, at *4 (D.S.C. Sept. 11, 2013) (“Plaintiff has failed to allege or cite to any language from the handbook's non-discrimination policy to alter the at-will presumption. Therefore, Plaintiff's mere allegation in her Complaint that the handbook contained anti-discrimination provisions is not, by itself, sufficient to establish that a contract was formed by such language.”) (collecting cases)); King v. Marriott Int'l, Inc., 520 F.Supp.2d 748, 756 (D.S.C. 2007), a f'd, 267 Fed.Appx. 301 (4th Cir. 2008) (“Marriott's promise that ‘there will be no discrimination or recrimination' against an employee who asserts a complaint against the Company does not create an expectation that employment is guaranteed or that a particular process must be complied with before an employee is terminated.”).
Plaintiff has failed to state a claim for breach of contract, and the undersigned recommends the district judge dismiss this claim.
5. Negligence and Outrage
Plaintiff's claim for negligence is grounded in the same issues as his breach of contract claim where he argues SCDOT has a duty that it breached to protect Plaintiff from a hostile work environment and retaliation. [See ECF No. 53-1 at 15-16 (alleging Defendants failed to inform the right personnel about his hostile work environment complaints, failed to properly respond to Plaintiff's complaints, and failed to ensure Plaintiff would receive a transfer or not be harassed)]. Plaintiff additionally asserts a claim for intentional infliction of emotion distress, or outrage, based on how he was allegedly treated during his employment. See Id. at 20-22. However, these claims are barred by the South Carolina Workers' Compensation Act.
Section 42-1-540 of the Workers' Compensation Act, commonly referred to as the “exclusivity provision, ” provides:
The rights and remedies granted by [the Workers' Compensation Act] to an employee when he and his employer have accepted the provisions of [the Workers' Compensation Act], 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. Based on this provision, South Carolina courts hold that the Workers' Compensation Act provides the exclusive remedy against an employer for an employee who sustains injuries arising out of his employment. Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002). The exclusivity provision is jurisdictional and bars all common law actions against an employer based on injuries within the scope of the Workers' Compensation Act. Id. at 234 n.3 (“The phrase ‘shall exclude all other rights and remedies' in the exclusivity provision demonstrates plain and unambiguous legislative intent to vest the Workers' Compensation Commission with exclusive original jurisdiction over an employee's claims.”).
Plaintiff's negligence and outrage claims are barred by the South Carolina Workers' Compensation Act. As stated by this court:
The South Carolina Supreme Court, however, has specifically held that claim for intentional infliction of emotional distress and negligence arising out of employment are subject to and barred by the SCWCA. See Dickert v. Metropolitan Life Ins. Co., 311 S.C. 218, 428 S.E.2d 700, 701 (S.C.1993) (Intentional infliction of emotional distress is within the scope of the SCWCA); Sabb v. South Carolina State University, 350 S.C. 416, 567 S.E.2d 231 (S.C.2002) (Negligence claims by employee against employer arose out of and in the course of her employment, and thus, the SCWCA provided the exclusive remedy for her); see also McClaine v. Pactive Corp., 360 S.C. 480, 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].”).Sellers v. S.C. Autism Soc., Inc., C/A No. 3:11-2163-CMC, 2012 WL 1015807, at *4 (D.S.C. Feb. 22, 2012), report and recommendation adopted as modified, 861 F.Supp.2d 692 (D.S.C. 2012); see also Williams v. Windstream Servs., LLC, C/A No. 6:18-3049-DCC-JDA, 2019 WL 3066653, at *6 (D.S.C. Feb. 12, 2019) (“Plaintiff's negligence claim seeking to recover for Defendant's alleged failure to intervene in and investigate his harassment claims is therefore barred, and the Court recommends granting Defendant's motion to dismiss the claim on that basis.”) (citations omitted)); 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 outrage and negligence against the city were barred due to the exclusivity provision in the South Carolina Workers' Compensation Act and the exclusion contained in the South Carolina Tort Claims Act); Newman v. S.C. Dep't of Emp. & Workforce, C/A No. 3:10-942-CMC-PJG, 2010 WL 4791932, at *2 (D.S.C. Sept. 22, 2010), report and recommendation adopted, C/A No. 3:10-942-CMC-PJG, 2010 WL 4666360 (D.S.C. Nov. 18, 2010) (same as to claim for outrage).
“Courts have recognized an exception that falls outside the confines of SCWCA which applies when dominant corporate officers and owners or an alter ego commit intentional torts. This exception does not, however, extend to supervisory employees such as office manager.” Boatwright v. Walmart Stores E., L.P., C/A No. 4:20-04431-JD, 2021 WL 3007394, at *3 (D.S.C. June 9, 2021). This exception could only apply, in this instance, to Smith as CFO of SCDOT. See Sellers, 2012 WL 1015807, at *5 (“It is plausible that CEO Stoxen is an alter ego of SCAS.”). However, Plaintiff does not assert a claim for negligence against Smith, and Plaintiff has failed to state a claim as to any defendant for outrage, where, to recover for a claim of outrage under South Carolina law, a plaintiff must demonstrate that the defendant's conduct was so extreme and outrageous that it exceeded all possible bounds of decency, and that the emotional distress suffered by the plaintiff was so severe that “no reasonable [person] could be expected to endure it.” See Argoe v. Three Rivers Behavioral Health, L.L.C., 710 S.E.2d 67, 74 (S.C. 2011).
Thus, Plaintiff's claims for negligence and intentional infliction of emotional distress are barred. The undersigned recommends the district judge dismiss these claims.
6. Defamation
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). “Defamation claims can be brought for either libel or slander. Libel is the publication of defamatory material by written or printed words, while slander is spoken defamation.” McGlothlin v. Hennelly, 370 F.Supp.3d 603, 611 (D.S.C. 2019) (citations omitted). Here, only slander is alleged.
Plaintiff identifies the following statements at issue and alleges the statements were made with malice “to hurt the Plaintiff”:
• Guffee informed Johnson that Plaintiff was insubordinate and had received a disciplinary action.
• “Guffee and Simmons went to Johnson and stated that the Plaintiff was having issues with understanding his work” when they knew it was computer problems.
• Guffee and Smith “stated that the Plaintiff made a threat toward them in the 5 day suspension meeting that lead to a termination . . . .”
• “SCDOT accounting management told them that the Plaintiff just did not show up for work insinuating that the Plaintiff resigned without informing SCDOT. When
actually the Plaintiff was told by Rikard to not come back to work.”
[See EFC No. 53-1 at 16-17, see also Id. at 22 (“02/28/2019-Guffee initiates termination Procedures against the Plaintiff and makes a false statement that the Plaintiff threatened him and got aggressive. Guffee, Smith, Tyler defamed the plaintiff stating that he threatened them.”)].
Plaintiff alleges that defamatory statements were also made to the EEOC and to the South Carolina Department of Employment and Workforce (“SCDEW”). However, these statements are privileged. See, e.g., Yin v. Columbia Int'l Univ., C/A No. 3:15-03656-JMC, 2016 WL 5349090, at *7 (D.S.C. Sept. 26, 2016) (“the court finds that any statements made by Defendant to either the EEOC or the SCHAC during their investigation enjoy an absolute privilege under South Carolina law”); Wi liams v. Windstream Servs., LLC, C/A No. 6:18-03049-DCC-JDA, 2019 WL 3066653, at *5 (D.S.C. Feb. 12, 2019) (“any statements McKinley and Bolin made to SCDEW would be absolutely privileged and could not form the basis of a defamation suit”) (citing S.C. Code Ann. § 41-27-560)).
Even assuming Plaintiff has listed false and defamatory statements, the statements lack the necessary specificity to state a claim for defamation. See Doe v. Cannon, C/A No. 2:16-00530-RMG, 2017 WL 591121, at *1 (D.S.C. Feb. 14, 2017) (“Plaintiff has failed to state a claim against [Defendants] for defamation because her Complaint does not state with specificity the time, place, medium, and listener of the alleged defamatory statements.”); Colleton v. Charleston Water Sys., 225 F.Supp.3d 362, 369 (D.S.C. 2016) (“Defendants cannot be expected to defend against an allegation that Mr. Clum defamed Plaintiff by making a statement heard by unknown persons at an unknown place at an unknown time.”); Wise v. INVISTA s.a.r.l., C/A No. 3:17-1354-MBS-TER, 2017 WL 9275298, at *3 (D.S.C. Aug. 31, 2017), report and recommendation adopted, C/A No. 3:17-01354-MBS, 2018 WL 525475 (D.S.C. Jan. 23, 2018) (“Without more detailed allegations regarding who made the statements, to whom they were made, and the context in which they were made, Plaintiff has failed to state with plausibility a cause of action for defamation”).
Liberally construing Plaintiff's complaint, his most specific allegation is that on February 28, 2019, Guffee made false statements that Plaintiff threatened him and got aggressive. However, this still is an insufficient level of specificity where Plaintiff fails to whom these comments were made or in what context. See, e.g., Campbell v. Int'l Paper Co., C/A No. 3:12-CV-03042-JFA, 2013 WL 1874850, at *4 (D.S.C. May 3, 2013) (“Campbell has not sufficiently pleaded the second element of a defamation claim, publication to a third party. Nowhere in the complaint is it alleged to whom the defendants made the statements at issue. Rather, Campbell only alleges that the statements were made ‘publicly known' and that the defendants (and ‘countless others') ‘published and republished' them.”); Dixon v. Boeing Co., C/A No. 2:20-1356-BHH-MGB, 2020 WL 9211161, at *5 (D.S.C. May 11, 2020) (same), report and recommendation adopted, C/A No. 2:20-1356-BHH, 2021 WL 837479 (D.S.C. Mar. 5, 2021).
Plaintiff has failed to state a claim for defamation, and the undersigned recommends the district judge dismiss this claim.
7. FMLA Violation
The Fourth Circuit has stated that “in order to make out an ‘interference' claim under the FMLA, an employee must . . . demonstrate that (1) he is entitled to an FMLA benefit; (2) his employer interfered with the provision of that benefit; and (3) that interference caused harm.” Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015).
Although not clear, Plaintiff appears to assert a FMLA interference violation based on the following:
SCDOT adverse action interfered with the Plaintiff's right to take leave; On April 2, 2018 SCDOT accounting managers Guffee and Simmons took adverse action against the Plaintiff when “management” forced the Plaintiff to sign a document stating that if the Plaintiff used his earned sick and annual leave, his “approved excessive excused absences are also subject to disciplinary action, up to an including termination.” The adverse action made the Plaintiff w[]ary of using his earned leave time which is against the law and the SCDOT established terms of employment.
[ECF No. 53-1 at 18].
Plaintiff has failed to state an interference claim pursuant to the FMLA. First, Plaintiff does not allege he was denied FMLA leave or would have taken FMLA leave except for the actions of Defendants. Instead, Plaintiff appears to be referencing earned sick and annual leave, not FMLA leave or any other FMLA benefit. Second, Plaintiff has failed to allege that the alleged interference caused any harm beyond making him wary of taking earned sick and annual leave.
Under the FMLA, for example, an eligible employee is entitled to 12 workweeks of leave during any 12-month period due to “a serious health condition that makes the employee unable to perform the functions of such employee.” 29 U.S.C. § 2612(a)(1)(D).
Plaintiff also asserts a claim for FMLA retaliation. Retaliation claims brought under the FMLA are analogous to those brought under Title VII. Laing v. Federal Express Corp., 703 F.3d 713, 717 (4th Cir. 2013); Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006). Plaintiff must prove three elements to establish a prima facie case of retaliation: (1) he engaged in a protected activity; (2) his employer took an adverse employment action against him; and (3) there was a causal link between the two events. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015).
Plaintiff alleges that on January 24, 2018, he submitted complaints against Guffe and Smith concerning the harassment and discrimination he had experienced, and on April 2, 2018, “the Plaintiff received the notice that threatened his ability to use his annual and sick leave for family emergencies.” [ECF No. 53-1 at 18]. Here, Plaintiff's claim fails because he does not allege he was engaged in an activity protected by the FMLA or that Defendants took any causally-related adverse employment actions against him related to that protected activity.
Plaintiff has failed to state a claim for any FMLA violation, and the undersigned recommends the district judge dismiss this claim.
8. Tortious Interference with Terms of Employment
South Carolina recognizes a claim for intentional interference with contract, also known as tortious interference with contractual relations. To state such a claim, a plaintiff must allege (1) the existence of a contract; (2) the defendant's knowledge of the contract's existence; (3) the defendant's intentional procurement of the breach of the contract; (4) the absence of justification; and (5) resulting damage. Camp v. Springs Mortgage Corp., 426 S.E.2d 304, 305 (S.C. 1993).
Plaintiff fails to state a claim for tortious interferences with contractual relations where he alleges (1) Smith and another coworker withheld documentation needed by Plaintiff to complete his work, (2) Guffee promoted a less-qualified white male over Plaintiff, sent “wrong information to the Federal Auditor, ” and reprimanded Plaintiff, and (3) other coworkers mishandled Plaintiff's complaints concerning harassment. [See ECF No. 35-1 at 19-20]. Like the above concerning Plaintiff's claim for breach of contract, Plaintiff, at the least, has failed to identify the terms of the contract at issue that were allegedly breached, how those terms were breached, or how those terms were intentionally breached by Defendants. See e.g., Eldeco, Inc. v. Charleston Cty. Sch. Dist., 642 S.E.2d 726, 732 (S.C. 2007) (“An essential element to the cause of action for tortious interference with contractual relations requires the intentional procurement of the contract's breach. Where there is no breach of the contract, there can be no recovery.”) (citations omitted)).
9. Wrongful Discharge
Plaintiff also appears to assert a claim for wrongful discharge. [See ECF No. 53-1 at 23-24 (Count 10 labelled “wrongful discharge/termination, constructive dismissal”)]. Plaintiff argues generally that he was disciplined, presumably leading to his termination, as retaliation for engaging in protected activities; more specifically, Plaintiff argues “Guffee presented a misleading disciplinary action to . . . Johnson in retaliation for the Plaintiff submitting a harassment and discrimination complaint against Guffee and Smith, ” that Johnson did not properly thereafter address the action, and this led to Plaintiff's eventual termination. Id. Plaintiff further alleges retaliation on Johnson's part. Id.
Plaintiff does not appear to allege that he quit his employment, but instead that he was fired in that he was told “to not come back to work” and he “lost his job.” [See ECF No. 53-1 at 16-17)].
Here, Plaintiff's claim for wrongful discharge fails as a matter of law, and the undersigned recommends the district judge dismiss this claim. See Barron v. Labor Finders of South Carolina, 713 S.E.2d 634, 637 (S.C. 2011) (holding a claim for wrongful termination in violation of public policy is not available where the employee has an existing statutory remedy); Amason v. PK Mgmt., LLC, C/A No. 3:10-1752-MJP-JRM, 2011 WL 1100211, at *5 (D.S.C. Mar.1, 2011) (Plaintiff “may not pursue a claim for wrongful termination in violation of public policy based on an alleged Title VII violation because in South Carolina a ‘public policy' claim can only be maintained in the absence of a statutory remedy.”); Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 633 (D.S.C.2010) (“Plaintiff seeks a remedy for wrongful termination under Title VII and . . . [t]herefore, as Plaintiff has a statutory remedy for her termination claim, she may not pursue a separate state law wrongful termination cause of action.”) (citation omitted); Menton v. Nestle Prepared Foods Co., C/A No. 7:14-02542-JMC, 2015 WL 1038121, at *7 (D.S.C. Mar. 10, 2015) (“the court concurs in the Magistrate Judge's conclusion that Plaintiff's claim for wrongful termination in violation of public policy is preempted by Title VII”).
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge deny as moot Plaintiff's first motion to amend [ECF No. 34], grant in part Plaintiff subsequent motion to amend, allowing Plaintiffs Title VII claim against SCDOT for discrimination to proceed and dismissing Guffe, Smith, and Johnson from this case [ECF No. 53], and denying as moot Defendants' motion to dismiss [ECF No. 38].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).