Opinion
Civil Action 2:21-cv-03277-BHH-KFM
12-20-2021
Susan Burris, Plaintiff, v. Atlatl Software, Inc., and Justin Scott, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on Atlatl Software, Inc.'s ("Atlatl") partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 8). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil 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.
I. BACKGROUND AND FACTUAL ALLEGATIONS
Susan Burris ("Ms. Burris") alleges that she was employed as the vice president of sales for Atlatl, a software company headquartered in Charleston, South Carolina, from November 17, 2015, until June 26, 2020 (doc. 1-1, compl. ¶¶ 10, 12). Ms. Burris contends that she was responsible for obtaining 90% of Atlatl's accounts, always met or exceeded Atlatl's expectations for job performance and conduct, and her reviews and evaluations were always above satisfaction (id. ¶ 13). Further, Ms. Burris submits that her sexual orientation is homosexual, and she is engaged to a woman (id. ¶ 14).
Ms. Burris first met Justin Scott ("Mr. Scott") in February 2019, when Mr. Scott was working as a consultant for Atlatl (doc. 1-1, compl. ¶ 16). Within minutes of meeting Mr. Scott, Ms. Burris contends that he started asking her personal and invasive questions and "complimented . . . her glasses in a way that was creepy" (id. ¶ 17). Mr. Scott asked Ms. Burris if she was in a relationship (id. ¶ 18). When Ms. Burris responded that she was engaged to a woman, Mr. Scott replied, "That's a shame" (id.).
Ms. Burris contends that in June 2019, Atlatl hired Mr. Scott as a chief growth officer and assigned him as her direct supervisor (doc. 1-1, compl. ¶ 19). While working for Atlatl, Ms. Burris split her time between her home office in Rowan County, North Carolina, and Atlatl's headquarters in Charleston (id. ¶ 20). When Ms. Burris would return to the office in Charleston, Mr. Burris alleges that Mr. Scott would insist on hugging her, claiming that it was necessary because of her time away from Charleston (id. ¶ 20). Mr. Scott's hugs made Ms. Burris feel uncomfortable, but she felt that she had no choice but to allow it because Mr. Scott was her supervisor (id. ¶ 21). Ms. Burris submits that Mr. Scott constantly leered at her in the office and during meetings, which made her uncomfortable, and he invaded her personal space by standing too close and occasionally touching her (id. ¶¶ 22-23).
Ms. Burris alleges that on December 13, 2019, Atlatl hosted a Christmas party at its office in Charleston for employees and their significant others (doc. 1-1, compl. ¶ 25). Atlatl provided an open bar and arranged transportation through Uber for employees' travel to and from the party (id. ¶¶ 25-26). Ms. Burris contends that many people at the party, including Mr. Scott, were noticeably intoxicated (id. ¶ 26). The owner of Atlatl, as well as several board members, were present at the party (id. ¶ 27). Ms. Burris alleges that Mr. Scott and his wife arrived to the party together but that his wife left early in the night (id. ¶ 28). Ms. Burris attended the party with her fiancée (id. ¶ 29).
Ms. Burris alleges that Mr. Scott approached her and her fiancée at the party and "told them both how good they looked and proceeded to look them both up and down" (doc. 1-1, compl. ¶ 29). Mr. Scott then put his arms around their hips and pulled them both close to him so that he was sandwiched between them (id. ¶ 30). Ms. Burris and her fiancée immediately pulled away and walked away from Mr. Scott (id.). Ms. Burris contends that Mr. Scott continued to stare at and follow her around the party, which made her and her fiancée concerned for their safety (id. ¶ 31). When Ms. Burris and her fiancée sat down, Mr. Scott "pulled up a chair directly in front of Ms. Burris' fiancée and leaned close into her face and asked her if when she and Ms. Burris are alone, if Ms. Burris tore off her glasses like a sexy librarian" (id. ¶ 32). Because of this behavior, Ms. Burris and her fiancée left the party (id. ¶ 33).
Ms. Burris alleges that, after she and her fiancée left the party, Mr. Scott continued to behave inappropriately with other employees (doc. 1-1, compl. ¶ 34). Specifically, Ms. Burris contends that "Mr. Scott and Ali Pringle [("Ms. Pringle.")], an Atlatl employee, made-out at the party" (id. ¶ 35). Ms. Burris further contends that Mr. Scott and Ms. Pringle then left the party in an Uber together, and Mr. Scott spent the night at Ms. Pringle's home (id. ¶ 36). Ms. Burris submits that Mr. Scott and Ms. Pringle continued to have an intimate relationship for an unknown period of time (id. ¶ 37). Moreover, Ms. Burris alleges that Atlatl was aware of Mr. Scott's behavior at the party, as it happened in open view in front of the employees, owner, and several board members (id. ¶ 38). Nevertheless, Ms. Burris submits that Atlatl did not take remedial measures (id.).
Ms. Burris contends that because she rebuffed Mr. Scott's advances at the party, he began to hinder her job performance by refusing to answer her job-related questions and excluding her from meetings that she previously attended (doc. 1-1, compl. ¶ 39). When she asked to attend meetings, her request was unanswered (id. ¶ 40). Ms. Burris alleges that other female employees who rebuffed Mr. Scott's advances were also marginalized, whereas Ms. Pringle received additional job responsibilities (id. ¶ 42- 43). On June 23, 2020, Ms. Burris submits that she complained of Mr. Scott's behavior to Ms. Pringle, who was working as Atlatl's human resources manager (doc. 1-1, compl. ¶ 44). Ms. Pringle told Ms. Burris that Mr. Scott's behavior was unacceptable and that she would address the matter with Atlatl's owner (id.). Ms. Pringle asked Ms. Burris if she would be willing to speak with Atlatl's owner and if she would provide a written complaint (id. ¶ 45). Ms. Burris agreed and provided Ms. Pringle with a written complaint (id. ¶¶ 45-46). Ms. Burris' employment was terminated on June 26, 2020 (id. ¶ 47).
Ms. Burris filed a complaint in the Court of Common Pleas in Charleston County on August 20, 2021, alleging claims of Title VII discrimination, battery, assault, premises liability, and respondeat superior (doc. 1-1). The defendants removed the matter on October 8, 2021 (doc. 1). On October 15, 2021, Atlatl filed a partial motion to dismiss Ms. Burris' premises liability and respondeat superior claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 8). Ms. Burris filed a response on November 6, 2021 (doc. 14). On November 15, 2021, Atlatl filed a reply (doc. 18). The undersigned held a hearing on December 14, 2021, to hear oral arguments (doc. 27). This matter is now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint, ” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).
B. South Carolina Workers' Compensation Act
Atlatl argues that it is entitled to dismissal of Ms. Burris' premises liability and respondeat superior claims because they are barred by the exclusive remedy provision of the South Carolina Worker's Compensation Act ("the Act"), set forth in S.C. Code Ann. § 42-1-540 (doc. 8-1 at 3-5). Ms. Burris, however, argues that these claims are not covered by the Act because she was not acting within the scope of her employment during the Christmas party (doc. 14 at 2-3).
Ms. Burris submits that the undersigned should rely on the factors set forth in § 22.01 of the Larson's Workers' Compensation Law treatise for determining whether she was acting within the scope of employment during the Christmas party (doc. 14 at 3). This section provides as follows:
Recreational or social activities are within the course of employment when
(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an
employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.2 Arthur Lawson & Lex K. Larson, Larson's Workers' Compensation Law § 22.01. Ms. Burris cites several cases in which South Carolina courts have utilized these factors (doc. 14 at 3 (citing Leopard v. Blackman-Uhler, 458 S.E.2d 41 (S.C. 1995); Whigham v. Jackson Dawson Commc'n, 763 S.E.2d 420 (S.C. 2014)). However, these cases are distinguishable, as they involve work-related recreational sports games and not office parties. See Leopard, 458 S.E.2d at 41-42 (weighing the above factors and finding that an injury sustained while playing on a company softball team was not covered by the Act because it did not arise out of and within the course of employment); Whigham, 763 S.E.2d at 422-23 (weighing the above factors and finding that a plaintiff's injury at a kickball game was covered by the Act because it arose out of and in the course of employment due to the employer's expectation that the plaintiff would participate).
Atlatl contends that § 22.04 of Larson's Workers' Compensation Law is more applicable. Section 22.04 specifically discusses office parties and provides as follows:
If the locale was the employer's premises, . . . the case has a large head start toward compensability. The extent to which custom or employer expectation necessitated attendance is always a major factor, just as a showing of the completely voluntary character of the attendance can offset the mere unassisted factor of employer sponsorship. Employer benefit, as in the opportunity to work in a few remarks on salesmanship, argues for coverage, but a general boost to morale is not enough. Finally, the nature of office parties being what it is, the causal contribution of the dancing and drinking to the injurious episodes has been cited as a special link to the employment.2 Arthur Lawson & Lex K. Larson, Larson's Workers' Compensation Law § 22.04.
The undersigned notes that research revealed no relevant cases applying the Act to an injury at an office party. However, "[b]ecause South Carolina adopted large portions of the North Carolina Workers' Compensation legislation, [South Carolina courts] rely on North Carolina precedent in Workers' Compensation cases." Turner v. SAIIA Constr., 796 S.E.2d 150 (S.C. Ct. App. 2016). Moreover, North Carolina courts have addressed this issue and examine the following six questions in determining whether an employee at an office party was acting within the scope of employment:
Research did reveal one South Carolina case in which an employee attempted to recover under the Act for an injury he sustained while driving from an employer-sponsored party. Spoone v. Newsome Chevrolet-Buick, 424 S.E.2d 489, 489 (S.C. 1992). This case, however, solely stands for the proposition that an injured party cannot recover under the Act when he was intoxicated and his intoxication was the proximate cause of his injury. See Id. at 490-91. Consequently, Spoone is not relevant to the instant matter.
(1) Did the employer sponsor the event?
(2) To what extent was attendance really voluntary?
(3) Was there some degree of encouragement to attend evidenced by such factors as:
a. Taking attendance;
b. Paying for the time spent;
c. Requiring the employee to work if he did not attend; or d. Maintaining a known custom of attending?
(4) Did the employer finance the occasion to a substantial extent?
(5) Did the employees regard it as an employment benefit to which they were entitled as of right?
(6) Did the employer benefit from the event, not merely in a vague way through better morale or good will, but through such tangible advantages as having an opportunity to make speeches and awards?See, e.g., Lennon v. NC Jud. Dep't, C/A No. COA16-476, 2016 WL 7100639, at *2-3 (N.C. Ct. App. Dec. 6, 2016); Martin v. Mars Mfg. Co., Inc., 293 S.E.2d 816, 817-18 (N.C. Ct. App. 1982). Courts in North Carolina have found that office parties were both covered and not covered by the North Carolina Workers' Compensation Act, depending on the facts in relation to those six questions. See, e.g., Martin, 293 S.E.2d at 817-19 (affirming an award of workers' compensation benefits to an employee who sustained an ankle injury while dancing at an employer's Christmas party, because the employee was acting out of and in the course of her employment when the party was sponsored by the employer, employees were encouraged to attend, the employer paid for the party, and the employer derived a benefit by being given the opportunity to make speeches and present awards); compare Lennon, 2016 WL 7100639, at *1, *6 (affirming the North Carolina Industrial Commission's decision denying an employee's workers' compensation claim for injuries sustained at her employer's annual holiday party, because the injury did not arise out of and in the course of her employment when the employer did not sponsor the party, attendance was not required, no degree of encouragement existed, the employer did not finance the occasion, the employees did not regard the event as a benefit or entitlement, and the event did not provide the employer with a benefit beyond improving employee morale).
At the motion to dismiss stage, presently before the court is the issue of the sufficiency of Ms. Burris' complaint regarding her premises liability and respondeat superior claims. In her complaint, Ms. Burris alleged that Atlatl hosted a Christmas party at its office for employees and their significant others (doc. 1-1, compl. 25). Moreover, Atlatl provided an open bar with alcohol, hired bartenders to continuously serve the employees and their guests' alcohol, and arranged for employees to take transportation through Uber to and from the party (id. 25-26). The undersigned finds that these allegations are sufficient to state claims outside of the coverage of the Act regarding the Christmas party, particularly when considering that South Carolina has not addressed this issue or the relevant factors to consider in the context of an office party. Further, as noted by counsel for Ms. Burris at oral argument, the parties do not have answers to many of the relevant factors to this analysis, and perhaps this fact-specific inquiry would be better addressed at the summary judgment stage after both sides have the benefit of discovery. Therefore, the undersigned recommends that the district court deny Atlatl's partial motion to dismiss.
III. CONCLUSION
Wherefore, based on the foregoing, the court recommends that Atlatl's partial motion to dismiss (doc. 8) be denied.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).