Opinion
Civil Action No.6:20-cv-00655-HMH-JDA
03-24-2020
Kristin Cosby, Plaintiff, v. South Carolina Probation Parole and Pardon Services, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Defendant's motion to dismiss. [Doc. 6.] Plaintiff alleges discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), as well as state law claims. [Doc. 1-1.] 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.
Plaintiff brought suit in the Greenville County Court of Common Pleas on December 27, 2019. [Doc. 1.] Defendant removed the case to this Court on February 6, 2020, and, on February 10, 2020, filed a motion to dismiss for failure to state a claim. [Docs. 1; 6.] Plaintiff filed a response opposing the motion to dismiss on February 24, 2020, and on March 2, 2020, Defendant filed a reply. [Docs. 9; 11.] Accordingly, the motion is ripe for review.
BACKGROUND
For purposes of a motion to dismiss, a court must accept as true a plaintiff's well-pleaded allegations and may rely on the complaint and documents attached to the complaint as exhibits or incorporated by reference. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). Thus, the following Background is a summary of the allegations contained in the Complaint, Docket Entry Number 1-1.
Defendant originally hired Plaintiff in 2006. [Doc. 1-1 ¶ 8.] Plaintiff left her employment with Defendant in 2010 and then applied to return to work for Defendant in 2012 but was told that Defendant wanted to hire a male for the position Plaintiff sought. [Id.] Plaintiff subsequently filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), asserting that Defendant's refusal to hire her because of her gender violated Title VII. [Id.] As a result of that charge, Defendant was required to rehire Plaintiff in 2012. [Id.]
During approximately the fall of 2018, Plaintiff had applied for a promotion, and Plaintiff's agent in charge ("AIC") and assistant agent in charge ("AAIC") began investigating a purported inappropriate relationship between Plaintiff and another employee and other related matters. [Id. ¶ 10.] Plaintiff objected to the investigation, which she maintained was baseless and for the purpose of preventing her from receiving the promotion she was seeking. [Id.] Her objections were validated when a regional director subsequently advised the AIC and AAIC that there was no evidence of wrongdoing by Plaintiff and that they were not to take any further action against her regarding the allegations. [Id.] The AIC and AAIC nonetheless continued to harass Plaintiff. [Id.]
On approximately October 19, 2018, Plaintiff made another complaint to Defendant concerning the conduct of her AIC and AAIC, asserting that they were subjecting her to a hostile work environment and discriminatory conduct based on gender and retaliatory animus. [Id. ¶ 11.] Defendant took no action to investigate or stop the conduct Plaintiff had alleged. [Id.] Rather, on November 7, 2019, Plaintiff's AIC and AAIC were informed of her complaint and they instituted yet another investigation into Plaintiff's conduct for the purpose of retaliating against Plaintiff and preventing her from being promoted. [Id.] This latest investigation concerned sexual conduct that had allegedly occurred between Plaintiff and one of her subordinates during an off-duty party in May 2015. [Id. at 11-12.] Plaintiff disclosed that the subordinate in question had attempted to engage in sexual activity with her at the party—a fact that she had disclosed to her AIC around the time the incident had occurred. [Id. at 12.] Although the activity or relationship would not have violated any policy or rules even had the subordinate's attempt been successful, Defendant required Plaintiff to take a polygraph regarding the issue. [Id.]
Following the test, the agent who had administered it informed Plaintiff that he believed she had not been honest, and he encouraged her to write a statement acknowledging that sexual activity had occurred. [Id. ¶ 13.] Upon the agent's repeated urging that it would be in Plaintiff's interest to admit the sexual activity, Plaintiff wrote a statement confirming again events that she had previously acknowledged. [Id.] Defendant subsequently advised Plaintiff that she could either resign or be subjected to whatever adverse action Defendant deemed appropriate. [Id. ¶ 14.] Believing that Defendant would continue its pattern of retaliation against her if she did not resign, she submitted her resignation on December 19, 2018. [Id.]
On January 3, 2019, even though Plaintiff had resigned, "Defendant falsely reported to the [Law Enforcement Training Council ("LETC")] that Plaintiff's employment had been terminated by Defendant and further reported said 'termination' as resulting from 'MISCONDUCT.'" [Id. ¶ 15.] The purpose of this communication was to retaliate against Plaintiff for her prior complaints and charge and bring about the revocation of Plaintiff's law enforcement certification. [Id.]
On September 25, 2019, Plaintiff filed a charge of discrimination with the EEOC "complaining of the same discrimination and retaliation outlined in [her Complaint in this Court], including claims under Title VII." [Id. ¶ 19.] The EEOC issued Plaintiff a Notice of Right to Sue on September 30, 2019, stating that "[t]he facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC." [Id.; id. at 16.]
Plaintiff then filed this action on December 27, 2019, alleging claims under Title VII for gender discrimination and retaliation, as well as state-law claims of fraud and defamation based on Defendant's communication to the LETC regarding Plaintiff's separation from her employment. [Id. ¶¶ 20-39.] As her relief, Plaintiff requests compensatory and punitive damages, as well as attorneys' fees and costs. [Id. at 14.]
APPLICABLE LAW
Motion to Dismiss Standards
Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. Fed. R. Civ. P. 12(b)(1). It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. See id. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: "'(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
Rule 12(b)(6)Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that 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." While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "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." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 ("Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
Title VII Claims
Defendant argues that Plaintiff's Title VII claims should be dismissed because Plaintiff failed to exhaust her administrative remedies. [Doc. 6-1 at 4-7.] The Court disagrees.
Before filing suit under Title VII, a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC. Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (citing King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976)). Failure to exhaust administrative remedies deprives a federal court of subject-matter jurisdiction over the claim. Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King, 538 F.2d at 583 (stating that a subsequent civil suit "may encompass only the 'discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge'") (quoting EEOC v. General Electric Co., 532 F.2d 359, 365 (4th Cir. 1976)). Only those claims stated in the initial administrative 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. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (affirming the district court's dismissal of some of the plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time barred). Because the EEOC has the authority to investigate charges and take necessary action to reach a resolution of the claims, permitting a federal complaint to include allegations outside the scope of the predicate EEOC charge would circumscribe the EEOC's purpose as well as deprive the employer of notice of the plaintiff's charges. See Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002) ("Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." (internal quotations and citation omitted)). When a claim "raised under Title VII exceed[s] the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, [it is] procedurally barred." Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995).
Here, Defendant makes no argument that the Title VII claims Plaintiff alleges in her Complaint do not bear the required relationship to the claims Plaintiff included in her EEOC charge. In fact, Defendant's argument has nothing to do with the content of Plaintiff's charge, but rather, is based solely on the fact that the EEOC, in its Notice of Right to Sue, reported its conclusion that "[t]he facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC." [Doc. 6-1 at 4-7.] Defendant offers no support for its implicit assertion that the EEOC's assessment of the merits of Plaintiff's claims plays any analysis regarding whether Plaintiff has exhausted her administrative remedies, and the undersigned is not aware of any support for that assertion. Accordingly, the undersigned concludes that Defendant is not entitled to dismissal of Plaintiff's Title VII claims on this basis.
Plaintiff attached a copy of her EEOC charge to her response in opposition of Defendant's motion to dismiss. [Doc. 9-1.] In her charge, she alleged:
I began my employment with South Carolina Department of Probation, Parole, and Pardon as an Agent in September 2012. My performance was above satisfactory, and my most recent position was Sex Offender/GPS Supervisor. I was terminated on December 18, 2018.[Doc. 9-1 at 2-3.]
On October 19, 2018, I filed an official harassment complaint with the Office of Professional Responsibility against Chad Gambrell, Agent in Charge (male), and Robert Honeycutt, Assistant Agent in Charge (male), due to the harassing and berating treatment that I had been subjected to in the work environment. On November 7, 2018, AIC Gambrell and AAIC Honeycutt were official[ly] notified of the official complaint filed against them. Shortly after AIC Gambrell and AAIC Honeycutt learned of the official complaint, a pretext complaint was opened by them against me, . . . which I was subsequently terminated for on December 18, 2018.
I believe I have been discriminated against in violation of Title VII of the Civil Right[s] Act of 1964, as amended, due to my sex, female, and retaliated against due to my engagement in protected activity.
Fraud and Defamation Claims
Defendant argues that Plaintiff's fraud and defamation claims are statutorily barred by S.C. Code § 23-23-90. [Doc. 6-1 at 3.] The Court agrees.
That section provides:
An oral or written report, document, statement, or other communication that is written, made, or delivered concerning the requirements or administration of this chapter or regulations promulgated pursuant to it must not be the subject or basis for an action at law or in equity in any court of the State if the communication is between:S.C. Code § 23-23-90. Defendant correctly argues that both the fraud and defamation claims are based on alleged communications between Defendant, the South Carolina Department of Probation, Parole and Pardon Services, and the South Carolina Law Enforcement Training Council. [See Doc. 1-1 ¶¶ 15 ("Defendant falsely reported to the LETC that Plaintiff's employment had been terminated by Defendant and further reported said 'termination' as resulting from MISCONDUCT."), 17 (similar), 18 (similar), 28 (similar), 32 (similar), 36 (similar).] Plaintiff does not dispute that both are "law enforcement agencies" within the meaning of the statute. However, Plaintiff argues that "the communications alleged to have been made by Defendant were actually made by the Defendant's Director, who is a member of the LETC, the CJA's governing body." [Doc. 9 at 8.] But it is not the facts the parties allege in their legal memoranda that the Court considers in weighing a motion to dismiss a complaint for failure to state a claim. Rather, it is the allegations in the complaint. Accordingly, because the Complaint does not allege that Defendant's Director made the challenged statements, the Court has no occasion to decide how S.C. Code § 23-23-90 would apply had the statements been made by the Director.
(1) law enforcement agencies, their agents, employees, or representatives; or
(2) law enforcement agencies, their agents, employees, or representatives and the academy or the council.
Plaintiff also contends that Defendant's motion to dismiss should be denied as to the state-law claims because this Court has previously declined to employ S.C. Code § 23-23-90 to dismiss claims similar to Plaintiff's. [Doc. 9 at 7-8.] But the cases Plaintiff cites cites, Bell v. Town of Port Royal, 586 F. Supp. 2d 498 (D.S.C. 2008), and Cason v. S.C. State Ports Auth., No. 2:11-cv-2241-DCN-BM, 2013 WL 1826447 (D.S.C. Apr. 3, 2013), are inapposite. At issue in Bell was a predecessor statute to S.C. Code § 23-23-90, which precluded certain statements from "'be[ing] the subject of or basis for an action at law or in equity for slander or libel in any court of the State.'" Bell, 586 F. Supp. 2d at 500, 518 n.5 (emphasis added). The Bell court reasoned that the statute did not apply to the claim before it, which was not a state-law action for libel or slander, but rather, a federal § 1983 claim. Id. Unlike the statute before the court in Bell, § 23-23-90 is not limited to actions for libel or slander; rather, it applies to an "action at law or in equity in any court of the State." Accordingly, Bell has no application to the present case.
Additionally, the claims at issue in the present case are state-law claims for fraud and defamation rather than federal § 1983 claims.
Cason is no help to Plaintiff either. In that case, the district court dismissed a similar § 1983 claim and denied a motion by plaintiffs for entry of final judgment pursuant to Rule 54(b). Cason, 2013 WL 1826447, at *2, 5. Plaintiff emphasizes that the district court in Cason noted that plaintiffs were "pursuing separate litigation in state court against the[] same Defendants for defamation . . . based on the[] same underlying allegations." Id. at *4. However, the fact that Plaintiff was pursuing such claims in state court is irrelevant here because the Cason court did not purport to comment on the merits of those state-law claims, and certainly did not purport to specifically consider how § 23-23-90 or any similar statute might affect those claims.
Because the undersigned concludes that Plaintiff's fraud and defamation claims are barred by S.C. Code § 23-23-90, the undersigned does not address Defendant's alternative argument that those claims fail to state a claim because Plaintiff is a "public official" under the meaning of New York Times Co v. Sullivan, 376 U.S. 254 (1964). [Doc. 6-1 at 3-4.] The undersigned also notes that Plaintiff indicates that if this Court rules that her fraud and defamation claims are barred by S.C. Code § 23-23-90, she will seek permission to amend her Complaint. [Doc. 9 at 9.] At this point, Plaintiff has not sought such permission or filed a proposed amended complaint. Absent a proposed amended pleading, the undersigned would be unable even to determine whether the proposed amendment would be futile.
RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Defendant's motion to dismiss [Doc. 6] be GRANTED as to Plaintiff's claims for fraud and defamation but DENIED as to Plaintiff's Title VII claims.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 24, 2020
Greenville, South Carolina