Opinion
C. A. 3:22-4548-DCC-SVH
01-25-2023
Bartholomew Earl Green, Plaintiff, v. Martin Marietta Materials, Inc., Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
In this case, Plaintiff alleges multiple claims of discrimination and retaliation against his former employer, which seeks to dismiss his claims for discrimination and retaliation based on disability because he failed to properly exhaust his administrative remedies.
Bartholomew Earl Green (“Plaintiff”) originally filed his complaint in the Lexington County Court of Common Pleas. Plaintiff's former employer, Martin Marietta Materials, Inc. (“Defendant”), removed the case to this court on December 16, 2022. Plaintiff alleges claims of racial discrimination, retaliation, and wrongful discharge in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); claims for failure to accommodate and retaliation in violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (“ADA”); and claims for interference and retaliation in violation of Family and Medical Leave Act (“FMLA “), 29 U.S.C. § 2601, et seq.
This matter comes before the court on Defendant's partial motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). [ECF No. 5]. The motion is fully briefed [see ECF Nos. 13, 14] and ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's partial motion to dismiss.
I. Factual and Procedural Background
Plaintiff alleged that prior to his termination, he worked for Defendant for 34 years. [ECF No. 1-1 ¶ 11]. Plaintiff suffers from renal failure, which substantially limits his ability to walk, run, lift, drive, sleep, breathe, speak, as well as other major life activities described in the ADA regulations. Id. ¶¶ 61-62. Shortly after Plaintiff filed multiple reports with Defendant regarding racist comments being made in the workplace, his medical condition caused him to take medical leave. Id. ¶¶ 24-25. Once he recovered, Plaintiff began reporting to work 3 days a week for a period of time. Id. ¶ 26.
Immediately following Plaintiff's return to work from medical leave for his qualified disability, Defendant's Plant Manager John David Law demanded that Plaintiff be moved to another quarry or be terminated. Id. ¶ 27. The position located at the other quarry was a demotion in rank and pay. Id. Defendant's Human Resources officially offered this demotion to Plaintiff, which Plaintiff declined, and under the impression that he had no other option, advised Defendant that he would be retiring. Id. ¶ 28. The next morning, prior to any personnel action, Plaintiff's position was posted. Id. ¶ 29.
Plaintiff alleges that at no time did Defendant attempt to engage in the interactive process with him to accommodate his need for medical leave in connection with his disability. Id. ¶ 67. Plaintiff is aware of other employees who had medical conditions and were provided reasonable accommodations in lieu of having to resign, retire, be demoted, or be terminated. Id. ¶ 30. On August 14, 2021, Plaintiff received a letter from his insurance company advising him that Defendant had terminated his employment and that he no longer had insurance. Id. ¶ 34. Plaintiff was taken off a patient list to receive a new kidney that he needs due to his disability. Id. ¶ 35.
Plaintiff filed a charge of discrimination (“Charge”) with South Carolina Human Affairs Commission dated October 24, 2021. [ECF No. 5-1].In his Charge, Plaintiff checked the boxes for race, retaliation, and disability. Id.
Courts generally do not consider matters outside the pleadings in ruling on a motion to dismiss. Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). However, a court may consider documents outside the pleadings without converting a motion to dismiss into one for summary judgment if those documents are “integral to and explicitly relied on in the complaint” and their authenticity is unchallenged. Copeland v. Bieber, 789 F.3d 484, 490 (4th Cir. 2015). “In the employment context, a court may consider an EEOC charge and other EEOC documentation [when considering a motion to dismiss] because such documents are integral to the complaint as Plaintiff necessarily relies on these documents to satisfy the time limit requirements of the statutory scheme.” Pierce v. Office Depot, Inc., C. A. No. 0:13-3601-MGL, 2014 WL 6473630, at *5 (D.S.C. Nov. 18, 2014) (citing Williams v. 1199 Seiu United Healthcare Workers East, C. A. No. 12-72, 2012 WL 2923164 at * 1 n. 1 (D. Md. July 17, 2012)); see also Adams v. 3D Sys., Inc., C. A. No. 019-00663-JMC-KDW, 2019 WL 8754875, at *2 (D.S.C. Nov. 26, 2019), report and recommendation adopted, C. A. No. 0:19-00663-JMC, 2020 WL 1527056 (D.S.C. Mar. 31, 2020) (same).
Plaintiff also included the following narrative:
I. Personal Harm:
• I was intimidated and harassed from on or about May 1, 2018 through August 6, 2021.
• I was demoted on or about July 26, 2021.
• I was discharged on or about August 6, 2021.
II. Respondent's Reason(s):
• There was no reason given.
• The reason given was excessive absences.
• There was no reason given.
III. Complainant's Contention(s):
• As a Foreman, I was I was subjected to racial comments by the Plant Manager (Caucasian), was told he was a “Redneck, they kill black people, the KKK headmaster lived behind the plant and did I want to take a ride.” In addition, the Plant Manager informed those under my management not to follow any instructions that I give and to address him with any matters. Moreover, I was never able to give evaluations because the Plant Manager stated, “black people cannot elevate white people.” I reported my concerns to Human Resources and the Director, but no amenable solutions were given. Because of my race, I was subjected to such treatment.
• I was demoted from Foreman to a Loader Operator. I was told I was missing too many days although my employer was
aware of my medical condition. I am aware of another employee (Caucasian) who was absent a lot due to medical issues but was not demoted. Because of my race and medical condition, I was subjected to such treatment.
• Because of the way I was treated, I requested an early retirement but was terminated instead. I believe I was terminated because of my race, medical condition and in retaliation for my complaints to Human Resources and the Director.
IV. Discrimination Statement:
I therefore believe I have been discriminated against because of my race (African American), my qualified disability and in retaliation for engaging in an activity protected by the South Carolina Human Affairs Law, as amended, Title VII of the U.S. Civil Rights Act of 1964, as amended, and the Americans with Disabilities Act of 1990, as amended.Id.
Plaintiff filed this action, alleging violations of the ADA, as well as 42 U.S.C. § 1981, Title VII, and the FMLA. Defendant seeks dismissal of Plaintiff's ADA claims for failure to accommodate and for retaliation, arguing these claims were not alleged in his Charge.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
There are three types of ADA claims: disability discrimination, failure to accommodate, and retaliation. First, the ADA prohibits disability discrimination or disparate treatment such that employers cannot “discriminate against a qualified individual on the basis of disability[.]” 42 U.S.C § 12112 (a). Additionally, employers cannot refuse “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” with certain exceptions. 42 U.S.C. § 12112(b)(5)(A). Finally, an employer cannot “discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
Prior to filing an action alleging violations of the ADA, a plaintiff must first exhaust his administrative remedies. Sydnor v. Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012). The charge procedure serves two important purposes: (1) notifying employers about the facts alleged, allowing them to address the allegations before litigation; and (2) providing the agency an opportunity to resolve the claims in a “less formal, and less expensive dispute resolution process.” Id. at 593. “Only those discrimination claims stated in the [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 [discrimination] lawsuit.” Taylor v. Va. Union Univ., 193 F.3d 219, 239 (4th Cir. 1999) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996)). The Fourth Circuit has cautioned that the “exhaustion requirement should not become a tripwire for hapless plaintiffs. While it is important to stop clever parties from circumventing statutory commands, we may not erect insurmountable barriers to litigation out of overly technical concerns.” Sydnor, 681 F.3d at 594.
1. ADA Failure to Accommodate Claim
The parties agree that Plaintiff, in his Charge, references a “medical condition,” but, as argued by Defendant, there is no mention made of Plaintiff's specific alleged disability-renal failure-or a request, or denial, of an accommodation for renal failure or any other disability. [See ECF No. 5 at 5].
In his Charge, Plaintiff checked the box for disability and alleged the following:
I was demoted from Foreman to a Loader Operator. I was told I was missing too many days although my employer was aware of my medical condition. I am aware of another employee (Caucasian) that who was absent a lot due to medical issues but was not demoted. Because of my race and medical condition, I was subjected to such treatment.[ECF No. 5-1].
Plaintiff's Charge does not indicate he either requested or was denied an accommodation based on his medical condition, nor would the agency be expected to investigate such a claim based on Plaintiff's representations in his Charge. Instead, based on his representations, the agency could reasonably be expected to investigate an ADA discrimination claim including why Plaintiff was demoted from Foreman to Loader Operator and whether other similarly-situated employees were treated differently.
A claim for ADA discrimination is distinct from a claim for ADA failure to accommodate and asserting the former in a charge is not the same as asserting the latter, as this court has held numerous times. See, e.g., Butler v. Pennington, C. A. No. 2:15-4455-BHH, 2019 WL 1614834, at *9 (D.S.C. Apr. 16, 2019) (“the absence of the failure to accommodate allegation in the charge of discrimination is fatal to the viability of that pleading theory in this Court”), aff'd in part, appeal dismissed in part, 803 Fed.Appx. 694 (4th Cir. 2020); Allen v. Michelin N. Am., Inc. USA, C. A. No. 6:18-791-TMC-KFM, 2018 WL 4346226, at *1 (D.S.C. Aug. 16, 2018) (concluding failure to accommodate claim was barred because the “charge allege[d] only disability discrimination”), report and recommendation adopted sub nom. Allen v. Michelin N. Am., Inc., C. A. No. 6:18-00791-TMC, 2018 WL 4334899 (D.S.C. Sept. 11, 2018); Cox v. Nucor Corp., C. A. No. 2:16-03073-PMD-MGB, 2017 WL 9250339, at *5 (D.S.C. June 14, 2017) (concluding employee had not exhausted failure to accommodate claim when charge alleged only disparate treatment), report and recommendation adopted, C. A. No. 2:16-3073-PMD, 2017 WL 3599587 (D.S.C. Aug. 22, 2017); see also Hamar v. Ashland, Inc., 211 Fed.Appx. 309, 310 (5th Cir. 2006) (“Discrimination Statement: ‘I believe that I have been discriminated against in that I have been perceived as having a disability in violation of the Americans with Disabilities Act of 1990.' He argues that from this charge, which asserts only a disparate treatment claim, an investigation into Ashland's failure to accommodate his disability could reasonably have been expected to grow. But the scope of Hamar's administrative charge is too narrow to have exhausted a claim for failure to accommodate.”); but see Felder v. TD Bank U.S. Holding Co., C. A. No. 3:21-317-MGL-PJG, 2021 WL 2228674, at *3 (D.S.C. Mar. 29, 2021) (holding the plaintiff exhausted her administrative remedies as to an ADA failure to accommodate claim where “[i]n her charge of discrimination to SCHAC, she checked the box for disability discrimination and alleged that she was denied personal time off because of her disability, while other employees were not denied personal time”), report and recommendation adopted, C. A. No. 3:21-00317-MGL, 2021 WL 1940567 (D.S.C. May 14, 2021).
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to Plaintiff's claim for ADA failure to accommodate.
2. ADA Retaliation Claim
Plaintiff's complaint alleges that Defendant retaliated against him under the ADA because he allegedly “engaged in protected activity when he reported his demotion to Martin Marietta HR.” [ECF No. 1-1 ¶ 72]. However, Plaintiff's Charge states he was demoted on or about July 26, 2021, the reason given was excessive absences, he complained about treatment he received to “Human Resources and the Director” concerning racial comments, and he was terminated “because of my race, medical condition and in retaliation for my complaints to Human Resources and the Director.” [ECF No. 5-1].
Nothing in Plaintiff's charge indicates that he was retaliated against for engaging in a protected activity as defined by the ADA. See, e.g., Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (“The ADA's retaliation provision only prohibits retaliation against a person because the person ‘opposed any act or practice made unlawful by this chapter' or ‘made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this chapter.'”) (citing 42 U.S.C. § 12203(a)); see also Rosier v. TargetX, C. A. No. 2:17-1306-RMG-MGB, 2018 WL 1832998, at *3 (D.S.C. Mar. 28, 2018) (“The Plaintiff's argument that he was terminated ‘in retaliation for the disability' is not a retaliation claim. Having a disability is not a protected activity under the ADA's retaliation provision. Termination for having a disability is a wrongful termination claim under the ADA, which the Plaintiff has brought in his First Cause of Action. The Plaintiff is attempting to creatively rephrase a wrongful termination claim to make a retaliation claim.”) (citations omitted)), report and recommendation adopted sub nom. Rosier v. TargetX; TargetX.com, C. A. No. 2:17-1306, 2018 WL 1832315 (D.S.C. Apr. 17, 2018).
Plaintiff references his pro se status when he filed his administrative charge.
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss Plaintiff's claim for ADA retaliation.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion to dismiss [ECF No. 5] Plaintiff's ADA failure to accommodate and ADA retaliation claims with prejudice for failure to exhaust the applicable administrative remedies.
Plaintiff requests, briefly, “that the Court allow Green to amend the Complaint, if such an amendment is necessary.” [ECF No. 13 at 7]. However, Plaintiff “cannot now attempt to expand the scope of his charge with entirely new claims and allegations because the charge frames the scope of future litigation.” Workman v. Bill M., C. A. No. 6:17-972-RBH-KFM, 2017 WL 4863055, at *5 (D.S.C. Aug. 29, 2017) (citations omitted), report and recommendation adopted, C. A. No. 6:17-00972-RBH, 2017 WL 4843968 (D.S.C. Oct. 26, 2017), aff'd, 717 Fed.Appx. 278 (4th Cir. 2018); see also Kelly v. QVC, C. A. No. 4:17-02858-RBH, 2018 WL 3322970, at *2 (D.S.C. July 6, 2018) (“Accordingly, the Court will dismiss with prejudice Plaintiff's claims of retaliation and discrimination based on national origin, religion, and disability because he did not exhaust his administrative remedies as to these claims.”); Kramer v. Omnicare ESC, LLC, 307 F.R.D. 459, 465 (D.S.C. 2015) (“[C]ourts have denied leave to amend as futile discrimination claims for failure to exhaust administrative remedies.”) (citations omitted)).
IT IS SO RECOMMENDED.
However, any “contention that [a] pro se status excuses [his] failure to administratively exhaust [his] claims is foreclosed by the Fourth Circuit Court of Appeals' ruling in Balas[.]” Allen, 2018 WL 4346226, at *2. In Balas, the Fourth Circuit held “we are not at liberty to read into administrative charges allegations they do not contain,” even if the employee was pro se. Balas v. Huntington Ingalls, 711 F.3d 401, 408 (4th Cir. 2013).
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).