Opinion
Civil Action 0:22-cv-2903-MGL-TER
07-11-2023
ALICIA OVERTON, Plaintiff, v. LASH GROUP, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This action arises from Plaintiff's employment with Defendant. Plaintiff originally filed this action in the Court of Common Pleas, York County, South Carolina. Defendants removed it to this court. Plaintiff alleges causes of action for race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. Presently before the Court is Defendant's Motion to Dismiss (ECF No. 4). Plaintiff filed a Response (ECF No. 5), and Defendant filed a Reply (ECF No. 7). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTUAL ALLEGATIONS
Plaintiff is a Korean female, who began working for Defendant in December of 2008 in the operations department reporting to two female Caucasian supervisors. Compl. ¶¶ 6-7 (ECF No. 1-1). During her first ten years of employment, Plaintiff routinely received exemplary performance evaluations, was promoted on several occasions, and was one of ten out of approximately two thousand employees selected for a special program called the LEAD Group. Compl. ¶ 8. In June of 2019, Plaintiff was promoted to Senior Operations Manager, and led her team through several successful projects. Compl. ¶¶ 9-10.
In November of 2019, Plaintiff was assigned to a new supervisor, Andrew Muniz, a Hispanic male. Compl. ¶ 11. Plaintiff alleges that shortly after becoming Plaintiff's supervisor, Muniz began treating Plaintiff differently than her Caucasian male counterparts. Plaintiff alleges Muniz would overly criticize her work product for mistakes and her interactions with clients but did not offer the same criticisms to Caucasian male employees for similar behavior. Compl. ¶ 12.
In July of 2020, Plaintiff applied for another position within Lash Group, and emailed Muniz to let him know, but he did not respond to her email. Compl. ¶ 13. Plaintiff spoke to Muniz in person about her decision, and Muniz told her she was unqualified for the position and likely would not receive an interview. Compl. ¶ 14.
At some point thereafter, Plaintiff informed Muniz of her intent to place one of her Caucasian male subordinates on a Performance Improvement Plan (PIP) for his failure to perform basic job duties. Muniz discouraged Plaintiff from placing the employee on a PIP plan because he was a relatively new employee and suggested Plaintiff provide the employee with more specific coaching before placing him on a PIP. Compl. ¶ 15.
On September 18, 2020, Muniz placed Plaintiff on her own PIP to improve Plaintiff's quality of work, interpretation of client needs, and work priorities. Many of the tasks that Muniz criticized were those that Plaintiff had only recently performed for the first time in her role as Senior Operations Manager with minimal direction or feedback from Muniz. Compl. ¶ 16. Prior to placing Plaintiff on the PIP, Muniz failed to issue Plaintiff a warning, which was inconsistent with company policy. Compl. ¶ 18. As a result of receiving the PIP, Plaintiff informed Mike Rauco, a member of Defendant's human resources department, that she felt she was being targeted by Muniz and the PIP was inappropriate. Rauco advised Plaintiff to speak with Muniz to discuss her issues with the PIP and to ask him to remove the PIP. Compl. ¶ 19. Plaintiff's attempt to discuss the removal of her PIP with Muniz was unsuccessful, and thereafter he began to record false and inaccurate information on Plaintiff's weekly performance review documents, which were required for a period of eight weeks under the PIP. Compl. ¶¶ 20-21. Plaintiff submitted a written rebuttal to the PIP in which she noted that company policy was not followed in issuing the PIP and that she believed she was being targeted and retaliated against. Compl. ¶ 22.
Plaintiff also filed a formal complaint about Muniz's behavior towards her through Defendant's official complaint system, AskHR, and updated her complaint as Muniz's behavior continued. Compl. ¶ 23. Plaintiff was not contacted by anyone in Defendant's human resources department after submitting her complaint through AskHR. Compl. ¶ 24.
On October 9, 2020, Plaintiff resigned from her employment with Defendant as a result of Muniz's “increasingly hostile behavior” towards her. Compl. ¶ 25. After resigning her employment, Plaintiff was contacted by Melanie Wilson, another member of Defendant's human resources department, who acknowledged that Plaintiff should not have been placed on a PIP. Compl. ¶ 26.
Plaintiff alleges that given Muniz's different treatment of her versus her Caucasian male counterparts, it appears that Plantiff's race and sex were motivating factors in Muniz's decision to place Plaintiff on a PIP. Compl. ¶¶ 31, 40.
III. STANDARD OF REVIEW
Defendant moves to dismiss Plaintiff's causes of action pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003).
IV. DISCUSSION
Defendant argues that dismissal of Plaintiff's claims is appropriate because (1) she does not allege an actionable adverse employment action, (2) her allegations of discrimination are conclusory and devoid of factual support, and (3) she does not allege that she was meeting Defendant's legitimate expectations at the time of the alleged adverse employment action. Title VII makes it unlawful for an employer to discriminate against an employee with respect to compensation, terms, conditions or privileges of employment on the basis of a protected trait like race or sex. 42 U.S.C. § 2000e-2(a). To state a prima facie case for disparate treatment based on race in violation of Title VII or § 1981, Plaintiff must show “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated
employees outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citation omitted), aff'd, 566 U.S. 30 (2012); Gairola v. Com. of Va. Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985) (noting the standards applicable to suits under Title VII are also applicable to suits brought under Section 1981); Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (evaluating Section 1981 racial discrimination claim and a Title VII racial discrimination claim under the same prima facie case framework). A Title VII plaintiff need not satisfy all of the prima facie elements set forth above to survive a motion to dismiss. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002) (“The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement.”). “Although a plaintiff need not plead a prima facie case at this stage, reference to the elements of a claim is helpful to assess whether the plaintiff has stated a plausible claim.” Allgaier v. Microbiologics, Inc., No. 1:22-CV-01900-ELH, 2023 WL 2837336, at *7-8 (D. Md. Apr. 7, 2023) (citing Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761,765 (4th Cir. 2003); Young v. Giant Food Stores, LLC, 108 F.Supp.3d 301, 314 (2015); Cloud v. Brennan, 436 F.Supp.3d 1290, 1300-01 (N.D. Cal. 2020) (“When a plaintiff does not plead a prima facie case, courts still look to the elements of the prima facie case ‘to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'”)). A plaintiff fails to state a plausible discrimination claim when she fails to allege “any action that could reasonably be considered an adverse employment action.” Jensen-Graf v. Chesapeake Employers' Ins. Co., 616 Fed.Appx. 596, 598 (4th Cir. 2015).
For the purposes of a Title VII discrimination claim, an “adverse employment action” is one that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321,337 (4th Cir. 2011) (internal quotation marks omitted). In other words, Plaintiff must show that the action “adversely affect[ed] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation marks omitted). To qualify as an adverse employment action, the harm alleged must “work a ‘significant' detriment” on a plaintiff. Adams v. Ann Arundel Cty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015). “[A] poor performance evaluation ‘is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment.'” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (citing Spears v. Missouri Dep't of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir.2000)). The Fourth Circuit has specifically found that placement on a PIP is not sufficient to state an adverse employment action where the PIP was not accompanied by a significant change in employment status. See Jesnsen-Graf, 616 Fed.Appx. at 598 (explaining that “[a]n adverse employment action is an action that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” and holding that the plaintiff's complaint failed to state a plausible claim for discriminatory issuance of a PIP because it did not “allege that she received lower pay, was demoted, was passed over for a promotion, failed to receive a bonus, or given significantly different responsibilities because she was placed on the PIP”); Melendez v. Bd. of Educ. for Montgomery County, 711 Fed.Appx. 685, 688 (4th Cir. 2017) (unpublished) (“Melendez's placement into PIP likewise does not constitute an adverse action.”); see also Dortch v. Cellco Partn., CV 3:17-145-DCC-PJG, 2018 WL 4560537, at *5 (D.S.C. Apr. 4, 2018)(unpublished) (finding a PIP and final warning did not create an adverse employment action because Dortch's “title and position.. .pay, benefits, and other terms and conditions of employment did not decrease,” concluding such “types of actions are insufficient as a matter of law to constitute adverse employment actions.”); Williamson v. Carolina Power & Light Co., 856 F.Supp.2d 757, 762 n.1 (E.D. N.C. 2012) (unpublished) (holding that “placing an employee on a PIP is not an adverse employment action[and] cannot provide a basis for [a] discrimination claim.”); Eady v. Veolia Transp. Services, Inc., 609 F.Supp.2d 540, 556 (D.S.C. 2009) (“[T]he Court does not find that the defendant's issuance of the PIP to the plaintiff was an “adverse employment action” because there is no evidence that it caused any change whatsoever in plaintiff's job, pay, or benefits or in his employment status.”); Pulley v. KPMG Consulting, Inc., 348 F.Supp.2d 388, 394 (D. Md. 2004) (unpublished) (“Neither the poor evaluation rating, nor the placement on a PIP constitute adverse employment actions.”).
In the present case, the complaint contains no allegations that Plaintiff's placement on the PIP was accompanied by any change in the terms or conditions of her employment. Plaintiff argues that the court can reasonably infer that Plaintiff's placement on the PIP was done for the purpose of discriminating against her since Muniz discouraged her from placing one of her Caucasian males subordinates on a PIP but then placed her on one shortly thereafter. However, even if this is a reasonable inference from the facts alleged, it still does not lead to an inference that the PIP itself was an adverse employment action under the law. Plaintiff also argues that the court can reasonably infer that her placement on the PIP was meant to alter the terms of her employment because she was placed on plan shortly after notifying Muniz that she had applied for a new position within the company. Plaintiff does not cite to any case law holding that an employer's intent to create an adverse employment action is relevant where no such action occurs. Defendant notes that Plaintiff resigned her employment with Defendant within three weeks of being placed on the PIP and, as stated above, there are no allegations that her placement on the PIP altered the terms or conditions of her employment during that time, regardless of any intent held by Muniz as to what could happen in the future.
Defendant also argues that Plaintiff fails to sufficiently allege that other employees outside her protected class were treated differently. As stated above, to show discrimination, Plaintiff must show that similarly situated employees outside the protected class received more favorable treatment. Coleman, 626 F.3d at 190. In this regard, Plaintiff alleges that shortly after becoming Plaintiff's supervisor, Muniz began treating her differently than her Caucasian male counterparts. Plaintiff alleges Muniz would overly criticize her work product for mistakes and her interactions with clients but did not offer the same criticisms to Caucasian male employees for similar behavior. Compl. ¶ 12. Plaintiff also alleges that Muniz discouraged her from placing her Caucasian male subordinate on a PIP because he was a relatively new employee yet placed her on a PIP even though she was relatively new in her position as Senior Operations Manager. Compl. ¶¶ 15-16. Plaintiff does not name the Caucasian male employees who received more favorable treatment, provide the job titles of the employees, or provide any other information from which the court could draw an inference that such employees are actually similarly situated to Plaintiff. In addition, as alleged, the reasonable inference with respect to the Caucasian male employee who was not placed on the PIP is that he was not similarly situated to Plaintiff because he was her subordinate. Plaintiff's allegation that “on multiple occasions, Muniz treated Plaintiff differently and more harshly than her [Caucasian] male counterparts” is a conclusory allegation void of any factual support. See Lee v. Stegall, Inc., No. 7:21-cv-528, 2022 WL 3971042, at *6 (W.D. Va. Aug. 31, 2022) (dismissing Title VII discrimination claim where plaintiff “failed to identify a sufficiently similar comparator to give rise to an inference of discrimination on the basis of race”); see also McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (dismissing Title VII discrimination claim where plaintiff failed to provide any information about comparators other than their names).
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion to Dismiss (ECF No. 4) be granted. However, Plaintiff may cure the deficiencies in his complaint by providing further factual information. The undersigned therefore recommends that Plaintiff be given the opportunity to amend his complaint. To the extent the District Judge agrees, the undersigned recommends that Plaintiff be ordered to file an amended complaint within ten days of the Court's final disposition of the present motion.