Opinion
C. A. 3:20-698-CMC-SVH
03-11-2022
Barry M. Keels, Plaintiff, v. Continental Tire Sumter, LLC, and Continental Tire the Americas, LLC, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this employment discrimination case, an employee alleges he was not paid the agreed-upon amount for his work and he has been discriminated against based on his race, as a black man. Defendants ask the court to dismiss two of the employee's eight claims against them.
Barry M. Keels (“Plaintiff”) filed his original complaint in the Sumter County Court of Common Pleas against his former employer, Continental Tire Sumter, LLC, and Continental Tire the Americas, LLC (collectively, “Defendants”). Defendants removed the case on February 11, 2020. In his amended complaint, Plaintiff asserts multiple causes of actions, including violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA “), and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. [ECF No. 20].
Defendants assert Continental Tire Sumter, LLC, is improperly named as a defendant in this action [see ECF No. 24 at 1 n.1], but have not requested this entity be dismissed.
The case comes before the court on Defendants' partial motion to dismiss Plaintiff's claims for conversion and FLSA retaliatory discharge. [ECF No. 24]. The motion having been fully briefed [ECF Nos. 28, 29], it is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. For the reasons that follow, the undersigned recommends the district judge grant Defendants' partial motion to dismiss.
I. Factual and Procedural Background
Plaintiff alleges he began working for Defendants on September 28, 2015, for an indefinite term. [ECF No. 20 ¶ 6]. Plaintiff alleges he was efficient and effective, performing at an above-standard level. Id. ¶ 7. Plaintiff alleges that immediately upon beginning his employment with Defendants, he was “subjected to severe and pervasive racial discrimination including frequent racially biased statements, ” offering as an example when “Jessie (Lead Tech of Preventative Maintenance) told the Plaintiff that he ‘did not want to work with a black man' and that ‘black guys were not wanted in the apprenticeship program.'” Id. ¶ 8.
Plaintiff alleges that he was told to quit, was falsely accused of poor work performance, and was constantly harassed due to his race. Id. ¶ 9. Plaintiff alleges he reported the racial harassment immediately and consistently. Id. ¶ 10. Plaintiff informed Robert Turner, the maintenance manager, who “transferred Plaintiff away from some of those employees engaged in the severe and pervasive racial discrimination.” Id. Plaintiff alleges, however, the racial discrimination continued. Id.
Plaintiff alleges he continued to complain about and report the racial discrimination and racial harassment to management, until Defendants terminated his employment on August 30, 2019. Id. ¶ 11. Plaintiff alleges Defendants took no corrective action measures to eliminate the discrimination and prevent the harassment from continuing and “the continuation of the severe and pervasive racial discrimination resulted in a hostile work environment.” Id.
Plaintiff alleges on January 12, 2018, he and Defendants entered into a new contract in which Defendants offered to increase his rate of pay as he completed progressive levels of job training. Id. ¶ 12. Plaintiff alleges that when he completed his training, however, Defendants did not increase his pay as promised, did not offer any justification for this decision, and never increased his pay pursuant to the agreement. Id. ¶¶ 13-14.
Plaintiff alleges he complained on numerous occasions regarding the insufficiency of his wage payments. Id. ¶ 15. Plaintiff alleges his employment was terminated because of his race and because of his repeated complaints concerning being underpaid and continued racial discrimination. Id. ¶ 16. Plaintiff further alleges that but for his race and his complaints about his wages and the racial discrimination, his employment would not have been terminated. Id. ¶¶ 17-19.
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
1. Conversion Claim
The parties agree that under South Carolina law, absent unusual circumstances, a plaintiff cannot maintain a claim for conversion based on unpaid wages. See, e.g., Owens v. Zippy Mart of S.C., Inc., 234 S.E.2d 217, 218 (S.C. 1977) (“Zippy”) (“Ordinarily, an action for services rendered is on contract and not in tort.”). Plaintiff argues, however, that a claim for conversion is allowed under South Carolina law if the complained-of acts are “more oppressive and more onerous than a mere contractual dispute.” [ECF No. 28 at 3]. In support, Plaintiff notes in Zippy, the court distinguished another case, Owens v. Andrews Bank & Tr. Co., 220 S.E.2d 116 (S.C. 1975), where a plaintiff was allowed to maintain a claim for conversion because that case “was predicated on conduct more onerous than a simple breach of contract, ” because “[t]he Bank attempted to withhold delivery of the depositor's funds in order to coerce the depositor's husband to satisfy a personal debt.” Owens v. Zippy Mart of S.C., Inc., 234 S.E.2d at 218 (citing Owens v. Andrews Bank & Tr. Co., 220 S.E.2d at 120); see also, e.g., Guill v. Acad. Life Ins. Co., 935 F.2d 1286 (4th Cir. 1991) (“The South Carolina Supreme Court has distinguished mere failure to pay a debt, as in Zippy, from affirmative misconduct in the failure to pay a debt, as in Andrews.”).
Here, Plaintiff has failed to allege affirmative misconduct in the failure of Defendants to pay a debt. See McTeer v. Provident Life & Acc. Ins., 712 F.Supp. 512, 518 (D.S.C. 1989) (“McTeer has not established that the defendants have engaged in onerous conduct of the sort that would transform their relationship into something more than that of debtor and creditors so as to support a conversion claim.”).
Plaintiff disagrees, citing the following from his amended complaint:
Defendants were wanton and intentional in the discrimination of the Plaintiff in the following particulars, to wit:
a. In failing to pay the Plaintiff similar amounts of wages as compared to similarly situated non-African American employees ....[ECF No. 20 ¶ 48].
However, this paragraph, as found in Plaintiff's amended complaint, appears under his Title VII disparate treatment claim and does not reference the alleged agreement made between him and Defendants nor Defendants' alleged failure to pay him an agreed-upon sum. Likewise, Plaintiff makes no mention of racial discrimination in support of his conversion claim. See id. ¶¶ 30-35. Finally, Plaintiff cites to no case law in support of his position that unpaid wages plus racial discrimination amounts to a cognizable claim for conversion under South Carolina law. See, e.g., Flowers v. Premier V.T.L., LLC, C/A No. 2:18-1279-RMG, 2018 WL 3014820, at *2 (D.S.C. June 15, 2018) (dismissing conversion claim and rejecting argument that unpaid wages plus termination in retaliation for seeking unpaid wages supported a claim for conversion under South Carolina law).
Accordingly, the undersigned recommends the district judge grant Defendants' motion to dismiss Plaintiff's claim for conversion.
2. FLSA Retaliatory Discharge Claim
“The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees ....” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013). “A plaintiff asserting a prima facie claim of retaliation under the FLSA must show that (1) he engaged in an activity protected by the FLSA; (2) he suffered adverse action by the employer subsequent to or contemporaneous with such protected activity; and (3) a causal connection exists between the employee's activity and the employer's adverse action.” Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008). Plaintiff's claim for retaliatory discharge is the only claim he states pursuant to the FLSA.
The parties dispute whether Plaintiff has alleged he engaged in an activity protected by the FLSA, where he alleged he “complained on numerous occasions regarding the insufficiency of his wage payments” and, in response, his employment was terminated. [ECF No. 20 ¶¶ 15, 42, 43]. Defendants argue Plaintiff has failed to allege he complained of activity governed by the FLSA-that is, minimum wage and overtime requirements. [ECF No. 24-1 at 6 (citing Monahan v. City of Chesterfield, 95 F.3d 1263, 1282 (4th Cir. 1996) (recognizing that an FLSA claim for non-overtime wage payments is not cognizable unless minimum wage laws are violated))]. Plaintiff disagrees, arguing that his “ complaint does not qualify nor limit the scope of the term ‘wages' in any respect, and the complaint, as written, cannot be read or interpreted to limit the term ‘wages' to only those earned within or below a 40-hour workweek ....” [ECF No. 28 at 4].
Plaintiff has failed to allege he engaged in activity protected by the FLSA where there is no indication from the complaint that Defendants did not pay minimum or overtime wages, or that Plaintiff complained about such nonpayment, resulting in his termination. See, e.g., 29 U.S.C.A. § 215 (West) (making it unlawful to discharge or discriminate against an employee in response to, for example, filing a complaint or causing to be instituted proceedings “under or related to this chapter”); Greathouse v. JHS Sec. Inc., 784 F.3d 105, 115 (2d Cir. 2015) (“employee may premise a [FLSA] retaliation action on an oral complaint made to an employer, so long as . . . the complaint is ‘sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection'”); Jafari v. Old Dominion Transit Mgmt. Co., 462 Fed.Appx. 385, 389 (4th Cir. 2012) (same); Darveau, 515 F.3d at 342 (“Although [Title VII and the FLSA] seek to combat separate workplace problems, the purpose of their retaliation provisions is one and the same-namely, to secure their substantive protections ‘by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.'”) (citation omitted)); Onken v. W.L. May Co., 300 F.Supp.2d 1066, 1068 (D. Or. 2004) (“The statute's anti-retaliation provision, therefore, is designed to encourage employees to report alleged violations of FLSA's substantive provisions without fear of reprisal.”); Miller v. Infinite Percent Partners LLC, C/A No. 20-02253-HSG, 2021 WL 391301, at *3 (N.D. Cal. Feb. 3, 2021) (“Contrary to Plaintiff's attempts to create a freestanding cause of action, the caselaw supports the proposition that the purpose of the FLSA's anti-retaliation clause is to ensure vindication of the wage-and-hour rights established by the statute.”).
Accordingly, the undersigned recommends the district judge grant Defendants' motion to dismiss Plaintiff's FMLA retaliatory discharge claim.III. Conclusion
Given the recommendation above, it is unnecessary to address the parties' arguments that Plaintiff has also failed to allege facts necessary to establish a plausible causal connection between his complaints and his employment termination.
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' partial motion to dismiss.
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.”
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).