Opinion
Civil Action 2:22-01577-RMG-MGB
08-01-2022
Julius Bonayon, Plaintiff, v. The Boeing Company, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Julius Bonayon (“Plaintiff”), through counsel, has filed this lawsuit alleging: race discrimination under Title VII of the Civil Rights Act (“Title VII”) and 42 U.S.C. § 1981 (“Section 1981”); national origin discrimination, retaliation, and hostile work environment under Title VII; discrimination under the Americans with Disabilities Act (“ADA”); and violations of the Family Medical Leave Act (“FMLA”). (Dkt. No. 1-1 at 3-16.) Plaintiff originally filed this action in the Charleston County Court of Common Pleas on March 17, 2022. (Dkt. No. 1; Dkt. No. 1-1.) The case was removed to federal court on May 18, 2022. (Dkt. No. 1.)
Currently before the Court is Defendant's Motion to Dismiss and supporting memorandum. (Dkt. No. 3-3.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that the Court grant in part and deny in part Defendant's motion to dismiss.
In a motion to dismiss the court must accept the plaintiff's alleged facts as true and view them in a light most favorable to the plaintiff. Brooks v. City of Winston-Salem, N.C. , 85 F.3d 178, 181 (4th Cir. 1996). Thus, the alleged facts are taken from Plaintiff's Complaint and supporting documents. (Dkt. No. 1-1; Dkt. No. 8-1.)
This action arises out of Plaintiff's employment with Defendant from 2007 through 2020. (Dkt. No. 1-1 at 4-5.) Plaintiff is Filipino. (Id. at 4.) Plaintiff began working for Defendant in June 2007 in Structure Assembly. (Id.) In approximately September or October 2019 Timothy Mason became Plaintiff's direct supervisor. (Id. at 5.) In November 2019, Plaintiff alleges that he had an argument with Alvaro Hormazo, a “temporary manager” who would “fill[] in for Mason from time to time,” (Dkt. No. 8-1 at 5), and that the argument occurred when Plaintiff did not complete work that Hormazo instructed Plaintiff to do. (Dkt. No. 1-1 at 6.) Plaintiff contends this is because Plaintiff was completing other work for Mason. (Id.) Plaintiff states that he met with a senior manager, Anthony Coney, to discuss this incident, and when Coney asked if Plaintiff wanted to report the incident to Human Resources, Plaintiff declined. (Id.) Plaintiff claims he chose not to report the incident because he feared retaliation. (Id.)
Around this same time, Plaintiff informed Mason of his plans to take a trip to the Philippines from December 3, 2019 to January 9, 2020. (Id.) Plaintiff states that he understood he was short on leave, so in addition to vacation and sick leave, Plaintiff told Mason that he wanted to use Leave Without Pay (“LWOP”). (Id.) According to Plaintiff, Mason agreed to this and asked Plaintiff to send Mason an email with the information. (Id.) Plaintiff states he sent Mason the email but failed to mention using LWOP, and that Mason did not respond to the email. (Id.) A few days before Plaintiff was to leave for the Philippines, Plaintiff reminded Mason, both in-person and via email, of his pending trip and Plaintiff's plan to use a combination of vacation leave, sick leave, and LWOP. (Id.) Plaintiff contends that Mason did not indicate that Plaintiff could not use LWOP, and that Mason again did not respond to Plaintiff's email. (Id.)
On December 3, 2019 Plaintiff traveled to the Philippines. (Id. at 7.) On January 8, 2020 Plaintiff missed a call from Mason, and he texted Mason back. (Id.) According to Plaintiff, Mason believed Plaintiff was to have returned to work the previous day, January 7. (Id.) Plaintiff informed Mason his flight back to the United States was the next day, January 9, and that Plaintiff would be back at work on “Monday.” (Id.) The next day, while waiting at the airport in the Philippines, Plaintiff suffered a panic attack and was taken to the hospital. (Id.) While at the hospital, Plaintiff received a medical certificate from the doctor to give to Defendant detailing Plaintiff's hospital visit. (Dkt. No. 1-1 at 7; see Dkt. No. 8-1 at 11.) After leaving the hospital, Plaintiff booked another flight and texted Mason to inform him of Plaintiff's hospital visit. (Dkt. No. 8-1 at 5.) According to Plaintiff, Mason told Plaintiff to “contact . . . Total Access” if Plaintiff was intending to use FMLA time and “to go onto ETS to sign [his] time.” (Id.)
Plaintiff returned to the United States on January 15, 2020. (Dkt. No. 1-1 at 8.) Upon landing in Atlanta, Plaintiff had a text message from Mason informing Plaintiff to call Mason immediately. (Id.) Plaintiff called Mason from the airport, and Mason informed Plaintiff that Plaintiff's employment was being terminated due to excessive absences. (Id.) Plaintiff claims that he later received his termination notice by mail. (Id.) This termination notice, an Employee Corrective Action Memo (CAM) signed by Mason and dated January 15, 2020, states that Plaintiff was discharged because he “accrued extended absences considered unacceptable.” (Dkt. No. 8-1 at 12.)
Hormaza also was present on this call as a “witness.” (Dkt. No. 8-1 at 12.)
On February 19, 2020, Plaintiff met with Boeing investigators to provide a statement on his termination and course of employment with the company. (Dkt. No. 8-1 at 5-6.) Plaintiff alleged that Mason, who is African American, and Hormaza, who is Hispanic, did not like him because he is Asian. (Id. at 6.) He further alleged that he was treated differently than other employees, who were allowed to do less work with no repercussions. (Id.) Plaintiff stated that he and the only other Asian employee working under Mason had previously complained to management. (Id.; Dkt. No. 1-1 at 10.) On the same day as his meeting with Boeing investigators, Plaintiff also filed a Charge of Discrimination against Defendant with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination based on his race and national origin, and that his termination was based on his medical condition. (Dkt. No. 8-1 at 2-3.) The EEOC issued Plaintiff's right-to-sue letter on January 14, 2022. (Dkt. No. 1-1 at 5.)
As noted, Plaintiff filed this action in the Charleston County Court of Common Pleas on March 17, 2022, (Dkt. No. 1-1), and the case was removed to federal court on May 18, 2022 (Dkt. No. 1). Plaintiff's complaint brings claims against Defendant for: race discrimination under Title VII and Section 1981, and national origin discrimination under Title VII; discrimination under the Americans with Disabilities Act (“ADA”); hostile work environment based on national origin under Title VII; retaliation for his complaints about race and national origin discrimination under Title VII; and violations of the FMLA. (Dkt. No. 1-1.)
Now before the Court is Defendant's Motion to Dismiss and Memorandum, which was filed on May 18, 2022. (Dkt. No. 3-3.) After requesting and receiving an extension of time to respond, Plaintiff filed a Response in Opposition to Defendant's Motion on June 13, 2022. (Dkt. No. 8.) Defendant filed its Reply to Plaintiff's Response in Opposition on June 21, 2022. (Dkt. No. 9.) As such, the motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
I. Rule 12(b)(6) Dismissal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 F. App'x. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
II. Consideration of Documents Outside the Complaint
With its Motion to Dismiss, Defendant submitted as attachments Plaintiff's EEOC Charge of Discrimination and the Medical Certificate Plaintiff received detailing his January 2020 hospital visit in the Philippines. (Dkt. No. 3-1; Dkt. No. 3-2.) In his Response in Opposition to Defendant's Motion, Plaintiff submitted as Exhibit A this same EEOC charge with further attachments. (Dkt. No. 8-1).
There are “limited circumstances, when resolving a Rule 12(b)(6) motion, [where] a court may consider exhibits, without converting the motion to dismiss to one for summary judgment.” Brennan v. Deluxe Corp., 361 F.Supp.3d 494, 501 (D. Md. 2019) (citing Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015)). “In particular, a court may consider documents that are ‘explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits ....'” Id. (quoting Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)). The Court may also “consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity.” Goines, 822 F.3d at 166. “To be ‘integral,' a document must be one ‘that by its very existence, and not the mere information it contains, gives rise to the legal rights asserted.'” Brennan, 361 F.Supp.3d at 502 (quoting Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011)). As such, the undersigned considers herein the documents submitted as “Exhibit A” with Plaintiff's Response in Opposition to Defendant's Motion to Dismiss, (Dkt. No. 3-1), as they are either explicitly incorporated into the complaint by reference or are integral to the complaint with no dispute about their authenticity.
DISCUSSION
Defendant has filed this Motion to Dismiss Plaintiff's case in its entirety and with prejudice, contending that Plaintiff's complaint has failed to state a claim upon which relief can be granted. (Dkt. No. 3-3 at 1-2.) In support of its motion, Defendant argues that: Plaintiff has not administratively exhausted his retaliation or ADA causes of action; Plaintiff has not plausibly pleaded retaliation; Plaintiff has not shown he is entitled to FMLA protection; Plaintiff has failed to plausibly plead hostile treatment; Plaintiff's discrimination claim lacks comparator evidence; and Plaintiff has not established he has a disability under the ADA. (Id. at 4-23.) Further, Defendant's Reply to Plaintiff's Response in Opposition to this motion contends that Plaintiff's claims of hostile treatment and retaliation under Title VII should be deemed abandoned because Plaintiff failed to offer any substantive response to these arguments. (Dkt. No. 9 at 1, 8 n.11.)
At the outset, the undersigned addresses Plaintiff's failure to sufficiently address these particular arguments in Defendant's Motion to Dismiss. Specifically at issue are Defendant's contentions that: (1) Plaintiff failed to administratively exhaust his Title VII retaliation claim because he did not allege retaliation in his EEOC charge, (Dkt. No. 3-3 at 5-7); (2) Plaintiff's Title VII hostile treatment claim should fail because Plaintiff's claim lacks specific allegations of harassment based on Plaintiff's national origin; (Id. at 15-16); and (3) Plaintiff's assertion he was given excessive jobs is insufficient to be considered “severe or pervasive” harassment under Plaintiff's Title VII hostile treatment claim; (Id. at 16-18).
In Plaintiff's Response in Opposition to Defendant's Motion to Dismiss, Plaintiff purportedly addresses Defendant's stance on failure to exhaust the Title VII retaliation claim by stating that “[t]he Plaintiff failed to allege retaliation in his charge of discrimination.” (Dkt. No. 8 at 8.) The undersigned notes that this is included under the heading: “The Plaintiff has [e]xhausted all [a]dministrative [r]emedies regarding his ADA claim,” (Dkt. No. 8 at 7) (emphasis added), and acts as the entirety of Plaintiff's response to Defendant's argument for dismissal for failure to exhaust this claim. This is perilously close to a concession of the claim.
Further, Plaintiff does not address in any cogent manner Defendant's arguments for dismissal of Plaintiff's Title VII hostile treatment claim. Beyond stating that the Court “must consider the Plaintiff's employment as a whole and not [] the basic facts contained in the complaint,” Plaintiff then avers that “were [he] to present the complete factual situation perpetrated by management [it] would be a thousand-page complaint.” (Id. at 13). Plaintiff instead offers broad descriptors of the work environment that serve merely as the “labels and conclusions” the Supreme Court has found insufficient to survive a 12(b)(6) motion. Twombly, 550 U.S. at 555 (“A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions.”) (quoting Papasan, 478 U.S. at 286). Even insofar as Plaintiff's vague statements can be regarded as facts, they are outside the scope of Plaintiff's original complaint and supporting documents, and thus cannot be considered by the undersigned here. Plaintiff has similarly offered no response at all to Defendant's contention that Plaintiff's retaliation claim failed to show a causal connection between a protected activity and adverse employment action. (Dkt. No. 3-1 at 7, n.7.)
Plaintiff's decision not to proffer any substantive rebuttal, argument, or authority in response to Defendant's motion may constitute an abandonment of the claims at issue. See Hamada v. Boeing Co., No. CV 2:19-2777-DCN-BM, 2020 WL 2559806, at *10 (D.S.C. Mar. 30, 2020) (a plaintiff's failure to present an effective response to an argument in a motion to dismiss “may by itself be considered grounds for dismissal of this claim”), adopted, 2020 WL 2557029 (D.S.C. May 20, 2020); see also Coker v. International Paper Co., No. 08-1865, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (noting that a plaintiff can abandon claims by failing to offer cogent argument in response to a dispositive motion); Jones v. Family Health Ctrs., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (finding plaintiff abandoned Title VII claims where she did not address them in opposition to summary judgment motion). Although such lack of meaningful opposition may certainly provide a sufficient basis for abandonment, the undersigned finds that the better course of action is to evaluate Defendant's motion based on the merits of the claims. As such, the undersigned considers the substantive arguments put forth in Defendant's motion, below.
I. Race Discrimination and National Origin Discrimination
Plaintiff has combined the race discrimination and national origin discrimination claims into a single cause of action. For the purposes of the instant motion, the undersigned has evaluated each of them individually.
Defendant asks the Court to dismiss Plaintiff's claims for race discrimination under Title VII and Section 1981, and national origin discrimination under Title VII. Section 1981 states that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. The Supreme Court has held that Section 1981 does not provide a cause of action for discrimination based solely on national origin, St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987); however, Title VII makes it “an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....” 42 U.S.C. § 2000e-2(a).
The standards applicable to lawsuits under Section 1981 are the same as the standards applicable to lawsuits under Title VII. See Causey v. Balog, 162 F.3d 795, 804 (4th Cir.1998) (citing Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir.1985)) (noting that the elements required to establish a prima facie case are the same under Title VII and § 1981); see also Oroujian v. Delfin Group USA LLC, No. 2:13-cv-02991-PMD-BM, at *8 n.7 (D.S.C. Oct. 8, 2014), adopted, 57 F.Supp.3d 544 (D.S.C. Oct. 29, 2014). Under the McDonnell Douglas paradigm, a prima facie case for discrimination under both Title VII and Section 1981 requires that: (1) the plaintiff is a member of a protected class; (2) the plaintiff performed his job in a satisfactory manner; (3) the plaintiff was subjected to an adverse employment action; and (4) that the plaintiff was treated differently than similarly situated individuals outside of his protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002); Flowers v. International Longshoreman's Ass'n Local 1422, No. 2:19-cv-00254-DCN-MGB, 2019 WL 6093255, at *9 (D.S.C. June 4, 2019), adopted sub nom. Flowers v. International Longshoremen's Ass'n Local 1422, 2019 WL 3927444 (D.S.C. Aug. 20, 2019) (citing Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012)). While Plaintiff is not required to “plead a prima facie case of discrimination to survive a motion to dismiss,” in order to proceed with these claims Plaintiff's complaint must set forth sufficient factual matters to reasonably infer a prima facie case of discrimination. Bing v. Brivo Systems, LLC, 959 F.3d 605, 616 (4th Cir. 2020) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)) (internal quotations omitted); see also McCleary-Evans v. Maryland Dep't of Transp., 780 F.3d 582, 585 (4th Cir. 2015). Thus, at this early stage, the typical rules for evaluating the sufficiency of the complaint apply. Swierkiewicz, 534 U.S. at 510-11.
Neither party disputes that Plaintiff has sufficiently pleaded facts to satisfy the first three elements of either a race or national origin discrimination claim. However, it is unclear here if the adverse employment action claimed by Plaintiff is disparate treatment or wrongful discharge, or both, based on his complaint. Plaintiff alleges in his EEOC charge, incorporated into his complaint, that he was “discriminated against based on [his] race/national origin,” that he “was terminated based on a perceived disability in violation of the [ADA],” and that he was “not alleging [he] was discharged because [he] was Asian.” (Dkt. No. 1-1 at 5; Dkt. No. 8-1 at 2, 6.) However, Plaintiff then goes on to state in his complaint that he “was terminated for his medical condition, Race[,] and National Origin.” (Dkt. No. 1-1 at 8.) Plaintiff has not provided any facts beyond this conclusory statement that would tend to show that his termination was based on his race or national origin. Further, Plaintiff has made no allegation that he was replaced by someone from outside of his protected class. See Ferguson v. Waffle House Inc., No. CV 9:12-cv-01740-SB, at *11 (D.S.C. Jan. 15, 2014), adopted sub nom. Ferguson v. Waffle House, Inc., 18 F.Supp.3d 705 (D.S.C. May 8, 2014). Therefore, the undersigned analyzes Plaintiff's claim as a Title VII and Section 1981 disparate treatment claim.
Plaintiff alleges that he was treated “significantly different” than other employees by Mason and Hormaza, two Boeing supervisors. (Dkt. No. 1-1 at 7.) Plaintiff asserts he was given “excessive jobs while other employees were allowed to play video games.” (Id.) Plaintiff's supervisor had twenty-five employees working under him, two of which, including Plaintiff, were Asian. Plaintiff alleges that both he and the other Asian employee working under Mason “made complaints regarding treatment by Mason, (id. at 7, 10; Dkt. No. 8-1 at 6), and that Defendant “allowed [Mason] to treat Caucasian employees more favorably without repercussions” (Dkt. No. 1-1 at 10). Based on these allegations, and at this early stage of the proceedings, the Court can infer that Plaintiff may have been treated differently than similarly situated individuals outside of his protected class. Therefore, the Court finds that Defendant's motion to dismiss Plaintiff's claims for race discrimination under Title VII and Section 1981, and national origin discrimination under Title VII should be denied. See Oroujian, 57 F.Supp.3d at 553 (citing Wolman v. Tose, 467 F.2d 29, 33, n. 5 (4th Cir. 1972)) (“Under the liberal rules of federal pleading, a complaint should survive a motion to dismiss if it sets out facts sufficient for the Court to infer that all of the required elements of the cause of action are present.”).
II. Discrimination under the ADA
Plaintiff further alleges that Defendant terminated him based on a perceived disability in violation of the ADA. Defendant argues that Plaintiff's claim of discrimination under the ADA should be dismissed because Plaintiff has failed to exhaust his administrative remedies and, even if he has exhausted this claim, Plaintiff has failed to plausibly plead a disability protected under the ADA.
Plaintiff states in his complaint that he was terminated “because of his perceived disability and [Defendant's] unwillingness . . . to accommodate the disability.” (Dkt. No. 1-1 at 11.) This is the only reference Plaintiff makes to a potential failure-to-accommodate claim in his complaint. The undersigned notes for the purpose of clarity that in order to sufficiently allege a failure-to-accommodate case under the ADA, Plaintiff must plead facts demonstrating “(1) that he was an individual who had a disability within the meaning of the statute; (2) that the [employer] had notice of his disability; (3) that with reasonable accommodation he could perform the essential functions of the position[]; and (4) that the [employer] refused to make such accommodations.” Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001) (quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999)). To assert a failure-to-accommodate claim under the ADA, Plaintiff must allege an actual disability, as opposed to merely being perceived as disabled. See 42 U.S.C. § 12201(h) (An employer “need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who” is regarded as disabled); see also Yoo v. BMW Mfg. Co. LLC, No. 7:17-CV-3499-TMC, 2020 WL 415897, at *4 (D.S.C. Jan. 27, 2020). Here, Plaintiff does not allege that he suffers from an actual disability. (See generally Dkt. No. 1-1.) Further, Plaintiff makes no attempt to allege any facts regarding the ability to perform essential functions with the implementation of an accommodation, or a refusal of Defendant to make such accommodations. As such, the undersigned analyzes Plaintiff's claim as one of discriminatory discharge under the ADA.
A. Exhaustion of Administrative Remedies
The ADA prohibits an employer from discriminating “against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). The ADA requires that a plaintiff exhaust his administrative remedies by filing a charge of discrimination with the EEOC before filing suit. Sydnor v. Fairfax County, Va., 681 F.3d 591, 593 (4th Cir. 2012). The Supreme Court recently held that administrative exhaustion is not a jurisdictional prescription delineating the adjudicatory authority of courts; however, exhaustion remains mandatory in the sense that a court must enforce the rule if a party properly raises it. Fort Bend County, Tx. v. Davis, 139 S.Ct. 1843, 1849-51 (2019). The Fourth Circuit has explained:
The filing of an administrative charge is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit. Rather, Congress intended the exhaustion requirement to serve the primary purposes of notice and conciliation.
First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory actions. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning.
Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved....The EEOC's role ... is thus critical because it can promote voluntary settlement in a manner that a more adversarial process cannot.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted). Therefore, as a general rule, the scope of a subsequent lawsuit “is defined by the scope of the administrative charge from which it arises and from any findings that arise out of the investigation of the charge.” E.E.O.C. v. General Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976); see also Johnson v. Mabus, No. 2:16-cv-2073-RMG, 2017 WL 3037373, at *3 (D.S.C. July 18, 2017) (“Thus, the allegations encompassed in an EEOC charge determine the scope of a plaintiff's subsequent federal lawsuit.”). Accordingly, only those claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) (sexual harassment and discriminatory pay and benefits claims dismissed because EEOC complaint alleged only a failure to promote); see also Chacko, 429 F.3d at 509 (noting that “factual allegations made in formal litigation must correspond to those set forth in the administrative charge”).
Plaintiff alleges that he was terminated based on a perceived disability related to issues with anxiety. His complaint states “[t]hat the Plaintiff had a history of issues with anxiety. The Defendant was aware of these issues. That while traveling in the Philippines the Plaintiff suffered a[n] anxiety attack in [the] airport. The Plaintiff was taken to the hospital and issued a medical certificate.” (Dkt. No. 1-1 at 11.) His complaint further states “[t]hat the Defendant terminated the Plaintiff from his employment because of his perceived disability and their unwillingness that they may have to accommodate the disability.” (Id.) Defendant contends that this claim should be dismissed because Plaintiff's complaint “assert[s] a claim of purported ‘regarded as' disability discrimination based on an alleged workplace injury-none of which appears in his [EEOC] Charge.” (Dkt. No. 33 at 8.) Therefore, Defendant argues, any alleged discrimination based on a purported workplace injury is outside the scope of the EEOC charge and has not been administratively exhausted.
Defendant seems to be reading Plaintiff's complaint as alleging two separate and distinct disabilities/perceived disabilities-Plaintiff's anxiety and another unknown workplace injury-and thus, two separate claims of disability discrimination under the ADA requiring exhaustion. (Dkt. No. 3-3 at 8-9.) This appears to stem from the portion of Plaintiff's complaint that states “[t]hat the Plaintiff was injured during his employment. As a result of that injury, he was perceived as disabled by his employer.” (Dkt. No. 1-1 at 5.) However, beyond this one mention in the complaint, Plaintiff makes no other reference to an “injury.” Therefore, the undersigned reads this portion of Plaintiff's complaint as referring solely to Plaintiff's anxiety and analyzes Plaintiff's claim as such.
Plaintiff alleges in his EEOC charge that he “suffered a medical emergency” and “immediately notified [his] employer” of this emergency. (Dkt. No. 8-1 at 2.) In his charge he further states: “I was terminated not because of absenteeism as my managers claim . . . [but] due to my medical condition which they perceive me to be inefficient and ineffective to carry on with my duty [in] structure assembly.” (Id. at 3.) He also checked the box on the EEOC charge for “Discrimination Based on Disability.” (Id. at 2.) As noted above, one of the main purposes of an EEOC charge is to put the employer on notice of a potential discrimination claim. See Chacko, 429 F.3d at 510. Based on the foregoing, the undersigned recommends a finding that Plaintiff has properly exhausted his discrimination claim under the ADA as it applies to Plaintiff's anxiety.
B. Disability Under the ADA
Defendant next argues that Plaintiff's ADA discrimination claim has failed to sufficiently plead a disability, as defined by the ADA. The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). To adequately allege a plausible ADA discrimination claim, “a plaintiff must show that: (1) []he is disabled; (2) []he was otherwise qualified for the position; and (3) []he suffered an adverse employment action solely on the basis of the disability.” Perry v. Computer Sciences Corp., 429 Fed. App'x. 218, 220 (4th Cir. 2011). Plaintiff has not alleged that he suffers from an actual disability; therefore, as a threshold matter, he must allege facts sufficient to infer that Defendant regarded him as disabled under 42 U.S.C. § 12102(1)(C). See Stukes v. Locke, No. RWT 12cv681, 2012 WL 5829066, at *3 (D.Md. Nov.15, 2012).
Here, Plaintiff has failed to allege any facts that would lead the Court to infer that Defendant allegedly regarded Plaintiff as having a disability, much less that Plaintiff's termination was based on such a perception. Plaintiff merely provides conclusory statements with no foundation in fact. For example, Plaintiff claims that “Defendant was aware of” Plaintiff's “history of issues with anxiety.” (Dkt. No. 1-1 at 11.) However, Plaintiff provides no further context of his history of anxiety, no facts to show that he indeed has such a history, nor any facts that Defendant was aware of these issues prior to his conversation with his manager a week prior to his termination. Insofar as Plaintiff relies on this conversation to allege Defendant regarded him as disabled, the purpose of the conversation was related to Plaintiff's absences from work-absences that, at the time of the conversation with management, had nothing to do with Plaintiff's anxiety, and were ultimately provided to Plaintiff as the reason he was terminated. (Dkt. No. 1-1 at 7; Dkt. No. 8-1 at 10.) Indeed, Plaintiff does not allege that he mentioned his anxiety at any point during this conversation. (Dkt. No. 1-1 at 7; Dkt. No. 8-1 at 10.) This serves to further weaken any inference that Plaintiff was discharged solely on the basis of the disability.
Plaintiff's blanket claim that Defendant “allowed employees to harass the Plaintiff based on a perceived disability,” (Dkt. No. 1-1 at 12), similarly fails to allege, without more, any substantive factual foundation that would tend to show that Plaintiff is entitled to relief on this claim. Therefore, the undersigned agrees with Defendant that Plaintiff fails to state an ADA discrimination claim upon which relief may be granted.
III. Hostile Work Environment under Title VII
A hostile work environment “exists when the 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.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Thus, to establish his claim for a hostile work environment, Plaintiff must show that there is (1) unwelcome conduct; (2) based on his national origin; (3) which is sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) which is imputable to Defendant. See id. at 277 (citing Okoli v. Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)). The degree of hostility or abuse to which Plaintiff was exposed must be determined by “examining the totality of the circumstances.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (referencing Harris, 510 U.S. at 23). Relevant considerations “include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id.
Notably, the Fourth Circuit has set “a high bar in order to satisfy the severe or pervasive test.” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). “Title VII does not establish a general civility code for the American workplace” and “complaints premised on nothing more than rude treatment by [coworkers], callous behavior by [one's] superiors, or a routine difference of opinion and personality conflict with [one's] supervisor, are not actionable under Title VII.” Id. at 315-16 (alterations in Sunbelt Rentals) (internal citations and quotation marks omitted). Although many hostile work environment claims involve repeated conduct, an isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment if that incident is “extremely serious.” Boyer-Liberto, 786 F.3d at 268. Further, the “severe or pervasive” element of a hostile work environment claim includes both subjective and objective components; thus, Plaintiff must show that he subjectively perceived the environment to be abusive, and that the conduct was such that “a reasonable person in [Plaintiff's] position” would have found the environment objectively hostile or abusive. Sunbelt Rentals, 521 F.3d at 315. Because this claim is premised upon alleged harassment based on Plaintiff's Filipino origin, Plaintiff must supply the Court with facts tending to show that his national origin was the “but for” cause of the harassment. See Smith v. First Union Nat. Bank, 202 F.3d 234, 241-42 (4th Cir. 2000) (citing Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996)) (Title VII hostile work environment claim based on gender must show that “but for the employee's gender, he or she would not have been the victim of discrimination.” (internal quotations omitted)); see also Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (same for Title VII hostile work environment claim based on race); Sunbelt Rentals, 521 F.3d at 314 (same for Title VII hostile work environment claim based on religion).
Here, Defendant argues that the Court should dismiss Plaintiff's hostile work environment claim because Plaintiff has failed to show that he suffered severe or pervasive treatment, and that, even if he has, Plaintiff has not provided factual allegations showing that any hostile treatment was based on his national origin. (Dkt. No. 3-3 at 14.) Plaintiff's complaint states that Defendant “subjected the Plaintiff to harassment and [a] hostile work environment,” that “Plaintiff's work environment was abusive, to the point of severe and pervasive,” and that “Plaintiff suffered severe emotional distress as a result of the Defendant's hostile work environment based on the Plaintiff's National Origin.” (Dkt. No. 1-1 at 13.) Plaintiff's complaint merely recites the elements of a hostile work environment claim and fails to properly plead this claim. See Iqbal, 556 U.S. at 678 (noting that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive a motion to dismiss). In addition, Plaintiff's supporting documentation provides that “[i]n general, there is a lack of respect in the department. There are a couple of teammates . . . who refuse to speak to [Plaintiff] when [he] greet[s] them.” (Dkt. No. 8-1 at 6.) Plaintiff also states that he “assume[s] the reason people don't like [him] is because [he] is Asian.” (Id.) Plaintiff does not describe unwelcome comments or actions in support of his claim, nor can the Court determine the conduct that Plaintiff considers hostile or abusive-let alone whether the conduct could be sufficiently severe or pervasive to alter the conditions of Plaintiff's employment and create an abusive working environment. (See generally Dkt. No. 1-1; Dkt. No. 8-1.) Further, and as previously noted, Plaintiff's complaint and supporting documentation make no mention of any conduct or statements from others regarding his Filipino origin.
The undersigned agrees with Defendant that Plaintiff fails to state a hostile work environment claim upon which relief may be granted. See, e.g., Cox v. Nucor Corp., No. 2:16-cv-3073-PMD, 2017 WL 3599587, at *2 (D.S.C. Aug. 22, 2017) (finding that plaintiff's repeated use of the word “harassment” without further detail was insufficient to withstand a motion to dismiss a hostile work environment claim); Bradley v. United Parcel Serv., Inc., No. 3:15-cv-4734-CMC-KDW, 2016 WL 1521559, at *7 (D.S.C. Mar. 10, 2016), adopted, 2016 WL 1448484 (D.S.C. Apr. 13, 2016) (concluding that plaintiff's “bare-bones assertion” that the alleged conduct would make a reasonable woman “believe that the working environment is hostile,” was insufficient to demonstrate any plausible claim for harassment). Therefore, the undersigned recommends that Plaintiff has failed to state a hostile work environment claim under Title VII.
IV. Retaliation Under Title VII
Plaintiff further alleges that Defendant retaliated against him under Title VII.Defendant argues that Plaintiff failed to exhaust his administrative remedies as to a retaliation claim, and that, even if he has, Plaintiff has failed to show that there is a causal connection between any protected action taken by Plaintiff and any adverse employment action taken by Defendant.
The undersigned notes that in Plaintiff's Response to Defendant's Motion to Dismiss, Plaintiff states that he “has filed a Motion to Amend the Complaint to [c]larify his final cause of action for Retaliation is not pursuant to Title VII but to 42 U.S.C. [§] 1981.” (Dkt. No. 8 at 16.) The Court has not received such a motion and is therefore confined to the claims brought through Plaintiff's original complaint. (Dkt. No. 11).
A. Exhaustion of Administrative Remedies
Like with ADA claims, Title VII requires that a plaintiff exhaust his administrative remedies by filing a charge of discrimination with the EEOC before filing suit. Sydnor, 681 F.3d at 593. However, the Fourth Circuit has carved out a limited exception to the general exhaustion requirement. The exception allows a plaintiff to “raise a retaliation claim for the first time in federal court without exhausting his administrative remedies if the discrimination complained of is ‘like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.'” Mezu v. Morgan State Univ., 367 F. App'x. 385, 389 (4th Cir. 2010) (quoting Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)). In turn, district courts may hear claims for the first time if they are “reasonably related to the original complaint” and “developed by reasonable investigation of the original complaint.” Stewart v. Iancu, 912 F.3d 693, 706 (4th Cir. 2019) (quoting Chacko, 429 F.3d at 506). However, when a plaintiff “was fully aware of the facts underlying his retaliation claim when he filed his EEOC charge, he cannot utilize the Fourth Circuit's limited exception allowing a retaliation claim to be brought for the first time in district court.” Baker v. Boeing, 2:18-02574-RMG-MGB, 2021 WL 2819460, at *8 (D.S.C. May 19, 2021), adopted in part, 2021 WL 2283808 (D.S.C. June 4, 2021); see Phillips v. Georgetown County, No. 2:16-cv-1612-PMD-MGB, 2018 WL 3119234, at *7 (D.S.C. Jan. 24, 2018), adopted, 2018 WL 1324502 (D.S.C. Mar. 15, 2018) (“The Nealon exception does not apply to Title VII retaliation claims where a plaintiff ‘had knowledge of the factual basis for [his] retaliation claim before [he] filed h[is] charge with the EEOC.'” (quoting Tonkin v. Shadow Mgmt., Inc., 605 Fed.Appx. 194 (4th Cir. 2015))).
Here, Defendant contends that Plaintiff did not administratively exhaust his retaliation claim because Plaintiff did not check the box for retaliation on his EEOC charge, nor did he allege retaliation in the narrative portion of the charge. (Dkt. No. 3-3 at 5.) Defendant argues that because Plaintiff was terminated on January 15, 2020 and his EEOC charge filed on February 19, 2020, Plaintiff was aware of the existence of any alleged retaliation taken against him at the time of filing. As noted, Plaintiff submitted his EEOC charge and supporting documentation with his Response to Defendant's Motion to Dismiss. Included is a statement given to Boeing investigators where Plaintiff notes that he “had an argument with Hormaza in October or November 2019[] regarding my work assignment,” which led to Plaintiff “[meeting] with Senior Manager Anthony Coney.” (Dkt. No. 8-1 at 6.) Plaintiff stated that he “believe[s] . . . Hormaza . . . may be trying to get back at [him].” (Id.)
The Fourth Circuit has noted that courts should “not erect insurmountable barriers to litigation out of overly technical concerns,” and should instead seek “to strike a balance between providing notice to employers and the EEOC on the one hand and ensuring plaintiffs are not tripped up over technicalities on the other.” Sydnor, 681 F.3d at 594. As such, EEOC charges must be read by courts with the “utmost liberality.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th Cir. 2013) (internal citations and quotations omitted). Therefore, “[d]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies.” Sydnor, 681 F.3d at 594 (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 406 (2008)) (internal quotations omitted).
At this early stage of the proceedings, the undersigned is hesitant to recommend dismissal of this charge based on failure to exhaust. Because Plaintiff's statement was given to Boeing investigators on the same day as his filing an EEOC charge, Plaintiff has pleaded facts sufficient to allege that Boeing was placed on notice of his retaliation claim and that can be construed at this early stage as “a finding arising out of investigation of the charge.” Sydnor, 681 F.3d at 594. Therefore, the Court recommends that Defendant's motion to dismiss Plaintiff's retaliation claim for failure to exhaust be denied.
B. Causal Connection
Title VII makes it unlawful for an employer to retaliate against an employee because that individual opposed any practice made unlawful under Title VII, or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Thus, protected Title VII activities may fall into two categories: opposition and participation. The Fourth Circuit has held that protected activities under the opposition clause “may include ‘staging informal protests and voicing one's own opinions in order to bring attention to an employer's discriminatory activities,' as well as ‘complaints . . . about suspected violations.'” E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (quoting Bryant v. Aiken Reg'l Med. Ctrs., 333 F.3d 536, 543-55 (4th Cir. 2003)). To state a claim for retaliation, a Title VII plaintiff must show: “(1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action.” Coleman, 626 F.3d at 190 (citing Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004)). However, at the pleading stage, plaintiff need not specifically articulate every element of the prima facie case under McDonnell Douglas, which “is an evidentiary standard, not a pleading requirement.” Swierkiewicz, 534 U.S. at 510. Defendant contends that even if Plaintiff exhausted his retaliation claim, he has failed to allege any facts showing this causal link between a protected activity and the adverse employment action.
In describing his retaliation cause of action, Plaintiff states: “[T]he Plaintiff participated in a protected act when he reported discrimination and retaliation,” and “[t]hat the Defendant took adverse employment action against the Plaintiff because he had engaged in actions protected by Title VII when he complained of national origin discrimination and race discrimination.” (Dkt. No. 1-1 at 14.) While Plaintiff's complaint is unclear, for the purposes of this analysis the Court assumes that Plaintiff is referencing his meeting with Anthony Coney, a Boeing senior manager. (Dkt. No. 8-1 at 6.) Plaintiff alleges that the impetus for this meeting was an argument with Alvaro Hormaza, who “filled in from time to time as a temporary manager.” (Id. at 5.) This argument was “regarding [Plaintiff's] work assignment,” and occurred because Hormaza told Plaintiff to stay late to finish job assignments. (Id.) Plaintiff alleges that the work assigned to him by his direct supervisor, Timothy Mason, precluded him from completing the work assigned by Hormaza. (Id.) Plaintiff met with Coney, who asked if Plaintiff wanted to report the incident to human resources. (Id.) Plaintiff's statement to Boeing investigators asserts that he declined to report the incident “because [he] wanted to work it out.” (Id.) Plaintiff's complaint states “that he did not want to report it as he was afraid of retaliation.” (Dkt. No. 1-1 at 6.) This argument occurred in October or November of 2019-presumably Plaintiff met with Coney shortly thereafter-and Plaintiff was terminated by Mason in January of 2020. (Dkt. No. 8-1 at 6.)
Despite the limited facts alleged, for the purposes of the instant motion the undersigned assumes, without deciding, that this meeting qualifies as the protected activity at issue, as neither party has alleged otherwise. As for the adverse employment action, Plaintiff's complaint is less clear. While the only factual allegations in the complaint and supporting documentation that could potentially show an inference of an adverse employment action is Plaintiff's termination, Plaintiff's complaint asserts “[t]hat the Defendant treated the Plaintiff differently regarding the terms and conditions he reported discriminatory actions. The Plaintiff suffered retaliation for his complaints regarding discrimination.” (Dkt. No. 1-1 at 14) (grammatical errors in original). Other than this one conclusory statement, Plaintiff has not alleged any instances of retaliatory treatment after his meeting with Coney. (See generally Dkt. No. 1-1; Dkt. No. 8-1.) Further, Plaintiff has failed to sufficiently allege a causal connection between his meeting with Coney and any adverse employment action.
At the pleading stage, the presence of a “close” temporal relationship between the protected activity and the alleged adverse action can be sufficient to establish a causal connection. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (holding that alleged “temporal proximity” must be “very close” to satisfy this third element). The Fourth Circuit has not set forth a specific timeframe for what constitutes “very close.” Pascaul v. Lowe's Home Centers, Inc., 193 F. App'x. 229, 233 (4th Cir. 2006). However, while this may allow a court to infer a causal connection, importantly the adverse action must occur “shortly after learning of the protected activity.” Cepada v. Bd. of Educ. of Baltimore County, 814 F.Supp.2d 500, 515 (D. Md. 2011) (emphasis added). Here, Plaintiff's termination is the only specific allegation of an adverse employment action taken after his meeting with Coney. Despite his termination occurring approximately two to three months after meeting with Coney, Plaintiff has not made any allegation that Mason or Hormaza ever learned of this meeting. In fact, Plaintiff chose not to report his argument with Hormaza to human resources. (Dkt. No. 8-1 at 6.) While fear of retaliation may excuse a failure to report, Plaintiff must still set forth before the Court sufficient factual allegations showing that Plaintiff's termination could be due to his engagement in a protected activity under Title VII. See Boyer-Liberto, 786 F.3d 264. As Mason and Hormaza are the managers responsible for Plaintiff's termination, (Dkt. No. 8-1 at 12), Plaintiff has failed to allege any facts that would tend to show that they had knowledge of Plaintiff's protected activity or that this influenced their decision to terminate Plaintiff. Therefore, the undersigned agrees with Defendant that Plaintiff fails to state a retaliation claim under Title VII upon which relief may be granted.
V. Violations of FMLA
The FMLA makes it unlawful for an employer to discharge or otherwise retaliate against any individual for exercising his or her substantive rights under the Act. 29 U.S.C. § 2615(a)(2). “The FMLA creates two types of claims: (1) interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act; and (2) retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.” Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 633 n.3 (D.S.C. 2010) (citation omitted). To state a claim of FMLA interference, a plaintiff must show that “(1) []he was an eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) []he was entitled to leave under the FMLA, (4) []he gave the employer notice of [his] intention to take leave, and (5) the employer denied the employee FMLA benefits to which []he was entitled.” Noisette v. Holy City Hospitality, No. 2:16-cv-02829-RMG, 2017 WL 3314227, at *3 (D.S.C. Aug. 3, 2017) (referencing Ainsworth v. Loudon Cty. Sch. Bd., 851 F.Supp.2d 963, 975 (E.D. Va. 2012)) (internal quotations omitted).
The elements that Plaintiff must establish to make a prima facie showing of retaliation in violation of the FMLA are the same as those required for a prima facie showing of retaliation in violation of Title VII. Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006). Therefore, a plaintiff stating an FMLA retaliation claim must establish that: (1) he engaged in a protected activity, (2) his employer took an adverse employment action against him, and (3) the adverse employment action was causally connected to the plaintiff's protected activity. Id.; see also Perkins v. Int'l Paper Co., 936 F.3d 196, 213 (4th Cir. 2019). As with Title VII retaliation claims Plaintiff's FMLA retaliation claim is subject to the three-step burden-shifting McDonnell Douglas framework, Yashenko, 446 F.3d at 550-51 (4th Cir. 2006), and a plaintiff need not plead a prima facie case. Swierkiewicz, 534 U.S. at 510. A court need only evaluate whether a plaintiff has pleaded sufficient facts showing he is entitled to relief. Id.
Here, Plaintiff has not alleged the specific FMLA claim he is seeking to establish. He states in his complaint “[t]hat the Defendant, Boeing, terminated the Plaintiff while he should have been on [FMLA leave] due to a serious medical condition.” (Dkt. No. 1-1 at 15.) Defendant has argued for dismissal under the retaliation framework, stating that, because Plaintiff argues that “he should have been on” FMLA leave when he was terminated, the Court should construe Plaintiff's claim as that of “alleging wrongful discharge under the FMLA.” (Dkt. No 3-3 at 10, n.10); see Dodgens v. Kent Mfg. Co., 955 F.Supp. 560, 566 (D.S.C. Feb. 20, 1997) (providing that wrongful discharge under the FMLA is an FMLA retaliation claim). However, Plaintiff has failed to sufficiently allege facts necessary to establish a claim under either the retaliation or interference framework. See Gray v. American Homepatient, Inc., No. 2:14-01207-DCN-BM, 2014 WL 7965987, at *5 (D.S.C. Oct. 24, 2014) (recognizing that at the motion to dismiss stage, courts have analyzed wrongful discharge claims under the FMLA using both the retaliation and interference frameworks), adopted, 2015 WL 892780 (D.S.C. Mar. 3, 2015). To analyze this claim under either framework, Plaintiff must first establish that his medical condition makes him eligible for FMLA leave.
In his complaint, Plaintiff refers to his anxiety as “a serious medical condition.” (Dkt. No. 1-1 at 15.) The FMLA qualifies “a serious health condition” as that which “makes the employee unable to perform the functions of the position of such employee,” 29 U.S.C. § 2612(a)(1)(D), and defines it as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care . . . or (B) continuing treatment by a health care provider.” Id. § 2611(11)(A)-(B); see also 29 C.F.R. § 825.114 (“Inpatient care means an overnight stay in a hospital ....”); 29 C.F.R. § 825.115 (“[C]ontinuing treatment . . . includes . . . [a] period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition ....”)
Here, Plaintiff has not alleged facts that would lead the Court to determine that his anxiety qualifies, or has qualified, as an eligible condition under the FMLA. Further, Plaintiff stated in his interview with Boeing investigators that although he has “used FMLA within the last year,” he does “not know the date [he] last used it” and does “not know whether [he] had an FMLA balance available . . . as of January 8, 2020.” (Dkt. No. 8-1 at 5.) Plaintiff does not indicate whether his previous use of FMLA is related to the “severe anxiety” that led to his hospital visit in the Philippines. In his conversation informing Mason of his hospital visit, Mason responded: “Ok get in contact with Total Access if you will use FMLA to cover it.” (Id.) (emphasis added.) By Plaintiff's own admission, he made no attempt to contact Total Access. The medical certificate issued to Plaintiff for his hospital visit and included with his supporting documentation reads: “Reason for consultation: Routine follow-up checkup.” (Id. at 11.) Plaintiff has not alleged any facts showing that he was entitled to FMLA benefits at the time of termination, nor that Defendant had a duty to provide those benefits. See Ahmed v. Salvation Army, No. CIV. CCB 12-707, 2012 WL 6761596, at *8 (D. Md. Dec. 28, 2012) (finding that the employer's duty to provide FMLA leave was never triggered because employee did not submit a completed certification form), aff'd, 549 F. App'x. 196 (4th Cir. 2013). Therefore, the undersigned agrees with Defendant that Plaintiff fails to state an FMLA claim upon which relief may be granted.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Motion to Dismiss (Dkt. No. 3) be granted in part and denied in part. Specifically, the undersigned recommends that the Court grant Defendant's motion with respect to Plaintiff's ADA discrimination claim, FMLA claim, and retaliation and hostile work environment claims under Title VII. The undersigned recommends that the Court deny Defendant's motion with respect to Plaintiff's claims for race discrimination under Title VII and Section 1981 and national origin discrimination under Title VII.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).