Opinion
C/A 4:21-1483-SAL-KDW
10-19-2021
Sulester Dukes, Plaintiff, v. Town of Kingstree, Defendant.
ORDER
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Plaintiff Sulester Dukes (“Plaintiff” or “Dukes”) seeks recovery against his former employer, Town of Kingstree (“Defendant” or “Town”), and brings federal claims of discrimination and retaliation in violation of the Americans with Disabilities Act, as amended (“ADA”) and a state-law-based claim of negligent supervision and retention. Am. Compl., ECF No. 5. Now pending before the court is Defendant's Partial Motion to Dismiss, seeking Rule 12(b)(6) dismissal of Plaintiff's claim of negligent supervision and retention. Mot. Dism., ECF No. 8. Having considered the Motion, Plaintiff's Response in Opposition, ECF No. 9, and Defendant's Reply, ECF No. 10, the undersigned submits this Report and Recommendation recommending Defendant's Motion be granted.
Defendant does not seek Rule 12(b) dismissal of the ADA claims. However, Defendant has not yet filed an answer to such claims, indicating it is “proceeding with the assumption that a partial motion nevertheless suspends the time to answer the complaint.” Def. Mem. 1 n.1.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2)(g), D.S.C. Because the Motion to Dismiss is dispositive, this Report and Recommendation is entered for the district judge's consideration.
I. Factual Background
Plaintiff was employed by Defendant as a water laborer. Am. Compl. ¶ 6. Plaintiff suffers from asthma, which, prior to the COVID-19 pandemic, “has not historically had any effect on 1 Plaintiff's ability to perform his job duties.” Id. ¶ 8. In early March 2020 Plaintiff attended a meeting with Defendant's Town Manager, Richard Treme, regarding COVID-19 protocols. Id. ¶ 10. During the meeting Plaintiff advised Treme about his asthma diagnosis. Id. Plaintiff indicates his asthma makes him more at risk if he were to contract COVID-19. Id. ¶ 11. Plaintiff also met with Defendant's Human Resources (“HR”) Manager, Leonard Lowery, to notify Lowery of his asthma and that he wanted to be provided with PPE (Personal Protective Equipment) to protect himself at work. Id. ¶ 12.
Considered an essential worker, Plaintiff continued to work his normal schedule during the time of the state's shelter-in-place order. Id. ¶ 13. In April 2020 Defendant began taking employees' temperatures daily. Id. ¶ 15. Plaintiff alleges the employee taking the temperatures was not using PPE. Id. ¶ 16. In April 2020 Plaintiff wrote a letter to his immediate supervisor, Cedric Hudson; Lowery; and Treme explaining his concerns about the lack of sanitation and PPE during temperature checks and about a lack of proper hand-cleansing and general misuse of PPE. Id. ¶ 17. In June 2020, after one of Defendant's employees had been diagnosed with COVID-19, Plaintiff was tested, received a negative result, and returned to work. Id. ¶¶ 18, 19. When Plaintiff returned Defendant's employees still were “still failing to use sanitation and proper PPE, there was lack of proper hand cleansing between each employee, and a misuse of gloves and masks during temperature checks.” Id. ¶ 20. Plaintiff purchased his own thermometer and began taking his own temperature. Id. ¶ 21. He did so without issue for about one month. Id. ¶ 22.
On June 24, 2020, one of Defendant's employees, Jeremy Morris, requested to take Plaintiff's temperature. Id. ¶ 23. As Morris was “smoking and not wearing a mask, ” Plaintiff explained he had been taking his own temperature to reduce risk of COVID-19 exposure due to his disability. Plaintiff indicated he did not want Morris taking his temperature without wearing a mask. Id. Morris reported 2 that Plaintiff had refused to have his temperature taken. Id. Plaintiff was terminated on that day “for the stated reason that he refused to have his temperature checked.” Id. ¶ 24.
Potentially relevant to the cause of action at issue herein Plaintiff alleges, upon information and belief, that “previous complaints have been made to Defendant Town about Treme and Lowery's poor management and about both making personal Town decisions based on personal reasons.” Id. ¶ 25. As part of the Negligent Supervision and Retention claim itself Plaintiff avers Defendant was “on notice that Treme and Lowery engaged in retaliatory employment practices[, ]” and “had reason to know Treme required excessive supervision given his past conduct which included Treme's complaints made by other employees regarding Treme's conduct.” Id. ¶¶ 41, 44. Plaintiff avers Defendant had “reason to know Lowery required excessive supervision given his past conduct which included prior arrests and complaints made by other employees regarding Williams' conduct.” Id. ¶ 45. Plaintiff avers that “Defendant had a duty to supervise its supervisors in such a way that they did not behave inappropriately and cause foreseeable harm to its employees' careers and livelihoods[, ]” and that it failed to exercise reasonable care to supervise Treme and Lowery, “resulting in foreseeable harm [to] Plaintiff and others.” Id. ¶¶ 42-43. Plaintiff indicates he seeks “damages for pecuniary as a result of this claim, ” and not damages for physical or mental injury. Id. ¶¶ 47-49.
Plaintiff's pleading does not identify who “Williams” is.
II. Standard of Review
A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Fed.R.Civ.P. 12(b)(6). 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). Further, on a motion pursuant to 3 Rule 12(b)(6), 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).
The Supreme Court considered the issue of well-pleaded allegations, explaining 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 [].550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.” (citing Twombly, 550 U.S. at 556)). When ruling on a motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nonetheless, the court need not 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).
III. Analysis
Defendant seeks Rule 12(b)(6) dismissal of Plaintiff's claim of negligent supervision and retention based largely on the argument that no negligence-based claim will lie for an at-will employee such as Plaintiff against his employer. Def. Mem. 1-4; Reply 1-2. Although Plaintiff does not agree with Defendant's legal premise, he does not dispute that he was anything other than an at-will employee. See Pl. Mem. 6. 4
The undersigned agrees with Defendant. A bedrock principle of South Carolina law is that an at-will employee such as Plaintiff may “be terminated at any time, for any reason, or for no reason at all, irrespective of any inadequate investigations, false assumptions, or failures to reevaluate on the part of the employer.” Gause v. Doe, 451 S.E.2d 408, 409 (S.C. Ct. App. 1994) (citing Small v. Springs Indus., Inc., 388 S.E.2d 808 (S.C. 1990)). In Gause, the court recognized that employers do not owe a duty to at-will employees regarding their employment status because they could be terminated at any time, for any reason, or for no reason at all, irrespective of any inadequate investigations, false assumptions, or failures to reevaluate on the part of the employer. Id. An at-will employee, Gause sued his former employer in negligence, claiming the employer failed to adequately investigate allegations against him before terminating him and negligently failed to reinstate him later. Id. Based on his at-will status, though, the Court of Appeals affirmed the trial court's grant of a motion to dismiss because there was no duty to Gause that his employer breached-he could be terminated for any reason or no reason. Id.; see also Parsons v. Smith, No. 2015-UP-403, 2015 WL 4755608, at *2 (S.C. Ct. App. Aug. 12, 2015) (citing Gause and reaffirming this principle as to wrongful-termination claim brought by at-will employee against her former employer regarding alleged negligent supervision by another employee). Several decisions by this court have reached similar conclusions. See Brotherton v. CN&I Project Servs. Grp., LLC, No. CV 1:18-3539-CMC-PJG, 2019 WL 2077625, at *1 (D.S.C. Feb. 11, 2019) (recommending plaintiff's claim for negligence/gross negligence be dismissed because defendant-employer owed no duty to plaintiff, an at-will employee), report and recommendation adopted, 2019 WL 1593996 (D.S.C. Apr. 15, 2019) (granting motion to dismiss negligence claim in employment context); Anthony v. Atl. Grp., Inc., 909 F.Supp.2d 455, 474 (D.S.C. 2012) (analyzing employees' claims for negligence/gross negligence under South 5 Carolina law and finding employer owed no duty to conduct an adequate investigation regarding at-will employees).
Plaintiff acknowledges Gause but argues the later case of Sabb v. South Carolina State University, 567 S.E.2d 231, 237 (S.C. 2002), supports his position that a duty of care “arose within an at-will employment relationship, ” not merely “because of” that relationship. Pl. Mem. 4-7. In Sabb, the plaintiff sued her employer, complaining it negligently failed to address concerns about her supervisor that she and others had raised. 567 S.E.2d at 234-36. Sabb was not terminated but was reassigned to different positions. Rather than termination-related pecuniary injuries, Sabb claimed various personal injuries. Id. at 234-35 (personal injuries included escalated blood pressure, anxiety, depression, hypertension). After a jury trial the court determined the trial court had properly denied the motions for directed verdict and judgment notwithstanding the verdict because evidence existed to show that the defendant potentially had breached a duty owed to the plaintiff. Sabb, 567 S.E.2d at 238.
Although Plaintiff cites other cases for the proposition that a duty can be created based on various relationships, see Pl. Mem. 3, most of those cases do not relate to or discuss the at-will employee/employer relationship. While Loges v. Mack Trucks, Inc., 417 S.E.2d 538, 540 (S.C. 1992), does relate to the employment relationship it is focused on a slander claim and the applicability of the Workers Compensation Act's exclusivity provision.
The undersigned is not persuaded that Sabb operates to supplant the well-established rule that an employer can terminate an at-will employee such as Plaintiff for any reason or for no reason at all. Significantly, the Sabb court never discussed the legal issue of whether a duty was owed to an at-will employee. Further, the plaintiff was not suing for alleged negligence that resulted in termination; rather, she sought personal-injury-type damages as a result of injuries she sustained while performing her job. Plaintiff's claim that a duty of care arose “within” the at-will employment relationship that 6 impacted the employer's ability to terminate him for any cause or no cause is unavailing. In addition, Plaintiff's claim that a duty of care exists “within” his at-will employment relationship with Defendant is undercut by the Court of Appeals' 2015 decision in Parsons. In that case the court declined to impose a duty on the employer although the at-will employee had previously complained about her treatment by her supervisor. 2015 WL 4755608, at *1.
The undersigned also notes that the court began its opinion by finding that the negligence claims arose under the exclusive-remedy provision of the Workers' Compensation Act, SC Code. Ann. §
The undersigned is unpersuaded by Plaintiff's argument that a duty of care arose within his at-will-employment relationship with Defendant. “An essential element in a cause of action for negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Without a duty, there is no actionable negligence.” Bishop v. S.C. Dep't of Mental Health, 502 S.E.2d 78, 86 (S.C. 1998). The question of whether a duty of care exists under the facts alleged is one of law for the court. See, e.g., Steinke v. S.C. Dep't of Labor, Licensing & Regulation, 520 S.E.2d 142, 149 (S.C. 1999) (“The court must determine, as a matter of law, whether the law recognizes a particular duty.”). As Defendant had no legal duty to Plaintiff under the facts of this case, the claim of negligent supervision and retention should be dismissed.IV. Conclusion and Recommendation
Based on this recommendation the undersigned need not consider Defendant's further arguments. The undersigned agrees with Defendant that, to the extent Plaintiff is considered to be claiming physical injury his negligence claim is foreclosed by the exclusivity provision of the Workers' Compensation Act. Sabb, 567 S.E.2d at 233.
For the foregoing reasons, the undersigned recommends Defendant's Partial Motion to Dismiss, ECF No. 8, be granted and Plaintiff's Third Cause of Action for Negligent Supervision and 42-1-540. 567 S.E.2d at 234 (“Because Sabb's claims, as employee of [Defendant], arose out of and in the course of her employment, the Workers' Compensation Act (the Act) provides the exclusive remedy for her.”). The court found, however, that the employer had waived its right to assert the exclusivity provision as a defense to Sabb's tort action and considered the appellate issues on their merits. Id. 7
Retention be dismissed. Subsequent to the District Judge's ruling on this Report and Recommendation and Defendant's responsive pleading the undersigned will issue a scheduling order. IT IS SO RECOMMENDED.
In a footnote Plaintiff requests that he be given leave to amend any deficient allegations. Pl. Mem. 13 n. 2. However, no amendment could cure the negligent supervision and retention claim.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.” 8