Opinion
C. A. 22-cv-2767-JFA-KDW
03-07-2023
Daniel Joachin, Plaintiff, v. AME, Inc.; Chris Eddy, and Rick Wyatt, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
This employment-related matter is before the court for issuance of a Report and Recommendation (“Report”) pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Plaintiff filed an Amended Complaint, in which he brings national-origin discrimination and hostile-work-environment claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). He also alleges retaliation in violation of Title VII. In addition to his federal-law-based claims against Defendant AME, Inc. (“Defendant” or “AME”),Plaintiff also sues AME for wrongful discharge in violation of public policy (“WDPP”) under South Carolina law. Plaintiff also alleges a state-law-based claim of negligent retention and supervision against all Defendants (including AME, Defendant Chris Eddy, and Defendant Rick Wyatt), and an assault and battery claim against Eddy. Am. Compl., ECF No. 12. In response, Defendants filed an Answer and a Partial Motion for Dismissal Pursuant to Rule 12(b)(6). ECF No. 15. In the Motion for Partial Dismissal, Defendants seek dismissal of Plaintiff's Title VII retaliation claim, as well as his state-law-based claims for WDPP and negligent supervision and retention. Plaintiff opposes the Motion, ECF No. 19; Defendants filed a Reply, ECF No. 21. Having considered the parties' filings and applicable law, the undersigned recommends Defendants' Motion for Partial Dismissal, ECF No. 15, be granted.
AME indicates Plaintiff was employed by a staffing agency and was not an AME employee. Def. Mem. 2 n.2. That issue is not before the court at this time, and the court notes AME's indication that nothing in its Motion “should be construed as an admission by AME, Inc., that it was Plaintiff's employer.” Id.
I. Legal standard
Defendants' challenges, including Defendant AME's challenges concerning failure to administratively exhaust administrative remedies, are considered pursuant to Rule 12(b)(6). See Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1850-51 (2019) (holding “Title Vil's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”); Lee v. Esper, No. CV 3:18-3606-TLW-KFM, 2019 WL 7403969, at *2 (D.S.C. Aug. 13, 2019) (noting challenge to administrative-exhaustion requirements appropriately considered under Rule 12(b)(6)), report and recommendation adopted, No. 318CV03606TLWKFM, 2020 WL 32526 (D.S.C. Jan. 2, 2020).
“A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. 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 considering 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). The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, 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).
“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. at 448 (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)); Bowie v. Univ. of Md. Med. Sys., No. CIV.A. ELH-14-03216, 2015 WL 1499465, at *6 (D. Md. Mar. 31, 2015) (granting Rule 12(b)(6) dismissal of plaintiff's ADA claim as time-barred and considering the Equal Employment Opportunity Commission (“EEOC”) Charge and Right to Sue Letter as being “integral” to the decision).
II. Background
The following facts are taken from Plaintiff's Amended Complaint and construed in the light most favorable to him:
This litigation arises out of Plaintiff's former work with AME. Plaintiff, an African-American male of Haitian descent, began working for AME as a concrete finisher around February 2019. Am. Compl. ¶¶ 4, 15. Plaintiff's immediate supervisor was Defendant Eddy; Eddy reported to AME's Senior Project Manager, Defendant Wyatt. Am. Compl. ¶¶ 17-18.
In early June 2020, Plaintiff alleges that Eddy became “enraged at Plaintiff” when he was pouring concrete on a job site. Eddy allegedly approached Plaintiff and “forcibly removed the shovel that Plaintiff was holding.” Am. Compl. ¶ 26. Plaintiff submits Eddy swung the shovel at him, narrowly missing him, and used the shovel to throw concrete on Plaintiff's body. Am. Compl. ¶¶ 27-28. Eddy then allegedly “approached Plaintiff with fists raised threatening to fight Plaintiff, prompting Plaintiff to leave the job site out of fear.” Am. Compl. ¶ 29. Plaintiff avers he contacted Wyatt and AME's Human Resources Department about the incident. Am. Compl. ¶¶ 32-34. Plaintiff states he requested that he be assigned to work not supervised by Eddy. Am. Compl. ¶ 32. Plaintiff alleges no action was taken regarding that request. He further avers he previously had complained to Wyatt and Human Resources about harassment by Eddy, but no action had been taken. Am. Compl. ¶¶ 35-36, 39. Plaintiff alleges he was constructively discharged because of AME's “unlawful harassment and discriminatory behavior” against him. Am. Compl. ¶ 40. Plaintiff's Amended Complaint also includes allegations that Eddy had harassed him prior to June 3, 2020, including calling him stupid, questioning his citizenship status, and saying Plaintiff was “too stupid to be a citizen.” Am. Compl. ¶ 24; id. ¶ 21 (averring Eddy told Plaintiff to “go back to his own country”); see id. ¶¶ 19-25. Plaintiff also states that he had notified AME's Human Resources department of harassment he endured from Eddy prior to the June 3, 2020 incident, but nothing was done. Am. Compl. ¶ 36.
Plaintiff filed a Charge with the Equal Employment Opportunity Commission (“EEOC”), received a Notice of Right to Sue on May 20, 2022, and filed his Complaint in this court on August 18, 2022. See Am. Compl. ¶¶ 12-13. A copy of the EEOC Charge is found at ECF No. 19-1. Plaintiff filed his Amended Complaint in response to Defendants' earlier Motion for Partial Dismissal.
III. Analysis
A. Failure to exhaust retaliation claim
AME first moves for Rule 12(b)(6), for dismissal of Plaintiff's Title VII retaliation claim. AME argues Plaintiff failed to exhaust his administrative remedies because his Charge of Discrimination did not indicate or reference a claim for retaliation. Def. Mem. 5-8.
Before filing suit under Title VII, a plaintiff must exhaust his administrative remedies by bringing a charge with the EEOC or, in a “deferral” jurisdiction such as South Carolina, with an appropriate state or local agency, within a specified time “after the alleged unlawful employment practice occurred.” 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1). One of the primary purposes behind the exhaustion of administrative remedies requirement is to give notice to an employer of the plaintiff s allegations. The Fourth Circuit has noted the importance of notice:
Congress intended the exhaustion requirement to serve the primary purpose 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 action. 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.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted). This requirement has been interpreted to mean that each discrete incident of discriminatory treatment must be administratively exhausted. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (stating that 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”) (internal quotation marks omitted). The Fourth Circuit has made it clear that only those discrimination claims stated in an administrative charge, those reasonably related to the original charge, and those developed by reasonable investigation of the original charge, may be maintained in a subsequent lawsuit. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (upholding dismissal of harassment and age discrimination claims where plaintiff's EEOC charge related solely to failure to promote because of sex).
Specific to claims of retaliation, such claims that could have been raised in the original EEOC charge must be administratively exhausted or it is procedurally barred. McMillan v. S.C. Dep't of Corr., 16 F.Supp.2d 635, 646 (D.S.C. 1997) (“Administrative remedies must be exhausted . . . when the alleged retaliation could have been raised in the original EEOC complaint.”). When examining retaliatory acts that have occurred after the filing of the administrative charge, though, the Fourth Circuit has held that a plaintiff need not file an additional charge to allege that she was retaliated against for filing a charge with the EEOC. See Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992). Notably, this exception has been found not to apply when the plaintiff “had knowledge of the factual basis for her retaliation claim before she filed her charge with the EEOC.” Tonkin v. Shadow Mgmt., Inc., 605 Fed.Appx. 194, 194 (4th Cir. 2015) (emphasis added).
Here, Plaintiff digitally signed and filed his EEOC Charge on June 17, 2020. Charge, ECF No. 19-1. In the Charge, Plaintiff stated both the “earliest” and “latest” date discrimination took place was June 3, 2020. He also checked the box to indicate “continuing action.” Id. Plaintiff checked the box indicating he was complaining about discrimination based on national origin; however, he did not check the box indicating a claim based on retaliation. Id. In the “Particulars” section of the Charge, Plaintiff stated as follows:
I. I was hired by the above named employer in or around February 2019, as a Concrete Finisher. Beginning in April 2019, and continuing, my supervisor began harassing me because of my national origin. My supervisor repeatedly told me that I needed to go back to school to learn English, made fun of my accent, called me stupid, and screamed at me. Others not of my national origin were treated better than I was treated. On April 1, 2020, my supervisor asked if I was an illegal citizen. I sent my supervisor information showing that I was a citizen and his response was that it was bull sh*t. My supervisor also repeatedly threatened to kill me. On June 3, 2020, I left the job and did not return.
II. On June 3, 2020, my supervisor forcefully removed a shovel from my hands[,] began to move concrete from one side to another while cursing at me and calling me names such [as] stupid. He approached me and balled up his hands like he was going to hit me. He threatened to kill me. I left because the harassment got so bad I could no longer work there.
III. I believe I have been discriminated against on the basis of my national origin (Haitian), in violation of Title VII of the Civil Rights Act of 1964, as amended.Id.
In his Amended Complaint, Plaintiff avers that, in retaliation for his complaints to Wyatt and to Human Resources, “Defendant[] refused to allow Plaintiff to work under the supervision of a supervisor who would not harass him or otherwise correct the harassment and discrimination resulting in Plaintiff's constructive termination.” Am. Compl. ¶ 79. The most liberal reading of Plaintiff's Charge does not include allegations that he made complaints about his supervisor or any allegations of retaliation. Rather, Plaintiff's Charge complains of discrimination and harassment.
The undersigned agrees with AME that Plaintiff did not exhaust administrative remedies as to his retaliation cause of action. Further, the retaliation now pleaded in the Amended Complaint would have taken place at the time of his “constructive termination,” which was before he filed his Charge. He could have included claims of retaliation but he did not.
In his Response, Plaintiff does not dispute that he did not check the retaliation box and that his factual assertions “primarily allege the factual basis for his discrimination claims.” Pl. Mem. 5. Plaintiff argues, though, that the Charge's allegations also provide the basis for a retaliation claim, looking to the allegation that Eddy “continually harassed Plaintiff on the basis of his national origin and citizenship status” and noting Eddy's “response to Plaintiff objecting to being deemed an illegal citizen,” asserting that “serves as the basis for the escalation in discriminatory conduct.” Id. Plaintiff submits such escalation was a “retaliatory response” to Plaintiff's “opposing and responding to being called an illegal alien by Eddy.” Id. Plaintiff submits the allegations and “implications,” as well as the EEOC's investigation “would have uncovered” retaliatory conduct. Id. at 5-6.
However, Plaintiff's argument does not convince the court that he administratively exhausted a claim of retaliation. Despite Plaintiff's characterization of what his Charge says, it includes nothing about any “objection” by Plaintiff. Further, the escalation described reads more like a harassment claim (which he has also included in his Amended Complaint). Although courts are to construe charges of discrimination liberally, courts are “not at liberty to read into administrative charges allegations they do not contain.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th Cir. 2013).
Plaintiff clearly limited the allegations in his Charge to national-origin discrimination and omitted any reference to retaliation or to the facts he now alleges in support of his retaliation claim. Additionally, Plaintiff had knowledge of the factual basis for his retaliation claim before he filed the Charge with the EEOC, such that he could have raised the retaliation claim in his original EEOC Charge. See Riley v. Tech. and Mgmt. Servs., Corp., Inc., 872 F.Supp. 1454, 1459-60 (D. Md. 1995); see also McMillan, 16 F.Supp.2d at 646. Therefore, the undersigned concludes that Plaintiff failed to administratively exhaust his retaliation claim, such that it is procedurally barred. See id.; Tonkin, 605 Fed.Appx. at 194-95. Accordingly, the undersigned recommends that AME's 12(b)(6) Motion to Dismiss the retaliation claim be granted.
B. Negligent retention and supervision claim
Defendants seek dismissal of Plaintiff's negligent retention and supervision claim, which has been brought against all Defendants. Defendants argue the South Carolina Workers' Compensation Act (the Act)'s exclusivity provision applies to this employment-related claim. Defs. Mem. 8-11 (citing cases). While Plaintiff opposes other portions of Defendants' Rule 12(b)(6) Motion, his opposition does not discuss the negligent retention and supervision claim in any manner. Defendants submit on reply that Plaintiff's negligent retention and supervision claim should be dismissed as it has been abandoned. The undersigned agrees. See Ferdinand-Davenport v. Children 's Guild, 742 F.Supp.2d 772, 783 (D. Md. 2010) (stating that a party who fails to address arguments in opposition to a motion to dismiss abandons their claim); see also Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Sawyers v. United Parcel Serv., Inc., C/A No. 1:18CV1037, 2019 WL 4305771, at *3 (M.D. N.C. Sept. 11, 2019) (collecting cases showing that “[t]his district and others within the Fourth Circuit agree that failing to respond to an argument constitutes an abandonment of a claim”).
Defendants' Motion to Dismiss Plaintiff's claim for Negligent Retention and Supervision should be granted. As this is the only cause of action raised against Defendant Wyatt, he should be dismissed from the case.
C. Wrongful discharge in violation of public policy claim
Finally, Defendants seek dismissal of Plaintiff's WDPP claim brought against AME. Defs. Mem. 11-13. Defendants acknowledge South Carolina law recognizes a narrow exception to the employment-at-will doctrine such that an at-will employee cannot be terminated when “an employee's discharge violates a clear mandate of public policy.” Defs. Mem. 11 (citing Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213, 216 (S.C. 1985)). Defendants further note that courts have “recognized the public policy exception” in two instances: when an employer requires an employee to violate a criminal law as a condition of maintain employment, and when the act of terminating an employee is itself illegal. Defs. Mem. 12 (citing Taghivand v. Rite Aid Corp., 768 S.E.2d 385, 387 (S.C. 2015)). Defendant notes, too, that “the public policy exception does not [] extend to situations where the employee has an existing statutory remedy for wrongful termination.” Barron v. Labor Finders of S.C., 713 S.E.2d 634, 637 (S.C. 2011).
In response, Plaintiff argues South Carolina Code Section 1-13-20, also known as the South Carolina Human Affairs Law (“SCHAL”), provides the “clear mandate of public policy” in that it makes the “practice of discrimination against an individual because of race, religion, color, sex, age, national origin, or disability . . . unlawful[.]” Pl. Mem. 8 (quoting S.C. Code Ann. § 1-13-20). While acknowledging the SCHAL is “very similar to its federal counterpart, Title VII,” Plaintiff submits, without further explanation or citation of authority, that his “state law claim for wrongful termination focuses on the termination and labor aspects of the claim, where Title VII discrimination focuses on a violation of civil rights as the harm to be remedied.” Pl. Mem. 19.
The court notes Plaintiff's suggestion that this claim should be permitted to proceed because at times employees are permitted to pursue both Title VII and SCHAL causes of action in the alternative. Pl. Mem. 9 (citing Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623 (D.S.C. 2010)). However, that is not what Plaintiff has done here. Plaintiff has not pleaded a separate SCHAL claim of discrimination (or otherwise). See generally, Clark v. Sch. Dist. Five of Lexington & Richland Ctys., 247 F.Supp.3d 734, 752 (D.S.C. 2017) (in slightly different context, acknowledging the “declaration of policy” set out in SCHAL, but noting it “provide[d] for an administrative remedy for discrimination via the State Human Affairs Commission,” a claim and remedy not pursued by plaintiff).
Plaintiff's Title VII claims offer potential remedies for his alleged discrimination based on his national origin. The public policy exception “is not designed to overlap an employee's statutory or contractual rights to challenge a discharge, but rather to provide a remedy for a clear violation of public policy where no other reasonable means of redress exists.” Stiles v. Am. Gen. Life Ins. Co., 516 S.E.2d 449, 452 (S.C. 1999) (emphasis supplied) (Toal, J., concurring). Here, Plaintiff is looking to SCHAL's policy declaration to provide him a WDPP cause of action. That is not the law, and Plaintiff has pointed to no case permitting a SCHAL-focused WDPP cause of action to proceed when Title VII claims have been raised. Plaintiff's WDPP cause of action should be dismissed.
IV. Conclusion and recommendation
For the reasons set forth above, it is recommended that Defendants' Partial Motion to Dismiss, ECF No. 15, be granted. If this Report and Recommendation is adopted, Plaintiff's causes of action for Title VII retaliation and state-law-based claims of negligent retention and supervision and wrongful discharge in violation of public policy will all be dismissed. As the only claim brought against Defendant Wyatt is one for negligent retention and supervision, he should be dismissed as a party to this action. This matter should continue as to Plaintiff's Title VII claims of discrimination and hostile work environment against AME and the assault and battery claim against Defendant Eddy.
An amended scheduling order is in place. ECF No. 30.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”