Opinion
Civil Action No. 9:19-cv-1210-RMG-TER
11-13-2019
ALEXANDER PASTENE, Plaintiff, v. LONG COVE CLUB OF HHI, SC, GENERAL MANAGER L. CRIMMINS, DIANE ADAMS, ASHLEY DAVIS, MICHAEL COCHRAN, GUATEMALAN WORKER SO-CALLED OSMAR, and his wife YURICA, Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff, who is proceeding pro se, filed this action in the Court of Common Pleas, Beaufort County, South Carolina, alleging causes of action for age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., unlawful discharge/retaliation, negligence, "physical injuries on the job," intentional infliction of emotional distress, loss of wages, and slander/defamation. Defendants Long Cove Club Owners' Association, Inc., Leon Crimmins, Diane Adams, Ashley Davis, and Michael Cochran removed the action to this court on April 26, 2019. Presently before the court are Plaintiff's Motion to Remand (ECF No. 15) and Defendants' Motion to Dismiss (ECF No. 4). 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.
Defendants assert that although Plaintiff named Long Cove Club of HHI, SC in the complaint, the proper legal name for the entity that employed Plaintiff is Long Cove Club Owners' Association, Inc.
II. MOTION TO REMAND
In their Notice of Removal (ECF No. 1), Defendants assert that jurisdiction is proper in this court pursuant to 28 U.S.C. § 1331 because Plaintiff has alleged a cause of action under the ADEA. They further assert that this court has supplemental jurisdiction over Plaintiff's state law causes of action pursuant to 28 U.S.C. § 1367. Defendants represent that the remaining Defendants, Guatemalan Worker So-Called Osmar and his wife Yurica, had not been served at the time of removal.
Federal courts are courts of limited jurisdiction. Lehigh Mining & Manufacturing. Co. v. Kelly, 160 U.S. 337, 327 (1895). A defendant is permitted to remove a case to federal court if the court would have had original jurisdiction over the matter. 28 U.S.C. § 1441(a). A federal district court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "[A] claim of federal question jurisdiction is to be resolved on the basis of the allegations of the complaint itself." Burgess v. Charlottesville Sav. and Loan Assoc., 477 F.2d 40, 43 (4th Cir. 1973). "The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987) (citing Gully v. First National Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936)). For a federal question to be present on the face of a well-pleaded complaint, either federal law must create the cause of action, or plaintiff's right to relief must necessarily depend on the resolution of a substantial question of federal law. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). This rule makes plaintiffs the master of their claims, and they may avoid federal jurisdiction by relying exclusively on state law if they so choose. Caterpillar Inc., 482 U.S. at 392 (citing The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913) ("Of course, the party who brings a suit is master to decide what law he will rely upon") (Holmes, J.); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, n. 6, 106 S.Ct. 3229, 3233, n. 6, 92 L.Ed.2d 650 (1986) ("Jurisdiction may not be sustained on a theory that the plaintiff has not advanced"); Great North R. Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 239-240, 62 L.Ed. 713 (1918) ("[T]he plaintiff may by the allegations of his complaint determine the status with respect to removability of a case")).
Plaintiff does not argue that he has not pleaded a federal cause of action. His complaint clearly states that his claims arise, in part, under the ADEA. Compl. ¶ 1 (ECF No. 4-1). Rather, Plaintiff argues that he is the master of his complaint and should be able to determine the forum, removal to the federal court causes him inconvenience, and the state court is as qualified to interpret federal law as it is state law. However, none of these reasons provide a proper basis to require remand of a clearly pleaded federal claim. While it is true that Plaintiff is the master of his complaint, he can avoid federal jurisdiction only by pleading solely state law claims. See Caterpillar Inc., 482 U.S. at 392. Although Plaintiff notes that grounds for remand can arise when there is a defect in the removal procedure, he does not identify any such defect in the present case. Accordingly, Plaintiff's Motion to Remand should be denied.
Plaintiff also mentions the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., but he does not assert any claim for discrimination based on disability.
Plaintiff did not number the paragraphs in his complaint. However, Defendants attach to their Motion to Dismiss a copy of Plaintiff's complaint with numbers added to each paragraph for ease of reference.
III. MOTION TO DISMISS
A. Factual Allegations
Plaintiff alleges that he was hired in April of 2017 to work part-time in the Golf Maintenance Department at Long Cove Club. Compl. ¶ 6. He performed his job duties "without reproach" and was promoted to a full time position. Compl. ¶ 7. In June or July of 2017, Plaintiff, who was 77 at the time of his employment, was working in the field with other workers when Defendant Guatemalan Worker So-Called Osmar got close to Plaintiff's face and, unprovoked and out of the blue, yelled at him "you are lazy." Compl. ¶ 12. Plaintiff informed the Superintendent of Golf, Defendant Ashley Davis, of the incident immediately, and Davis told Plaintiff he would handle it, and thus, Plaintiff decided not to call law enforcement to have Osmar arrested. Id. Around the same time, in June or July of 2017, Plaintiff began making inquiries about spraying toxic chemicals around the golf course without providing any protection for the employees. Id. Plaintiff appears to allege that his employment was terminated in retaliation for his inquiries about toxic chemicals. Compl. ¶ 24.
Shortly after he was assaulted by Osmar, Davis gave him a new assignment that involved removing and replacing twelve tee markers in every one of the 18 holes within three hours. Compl. ¶ 26. On his second day of performing this assignment, his knee "foundered" and he could not stand. Compl. ¶¶ 27, 37. He had to drag himself by his hands and arms to his golf cart to drive himself to the maintenance shop to report his injury. Compl. ¶¶ 27, 37. Thereafter, Plaintiff visited an orthopedic specialist who placed him on crutches, and Plaintiff was out of work for a month. Compl. ¶¶ 27, 37. Plaintiff alleges that Defendants were negligent in giving him a job assignment that would certainly injure anyone his age. Compl. ¶ 29. Plaintiff also suffered permanent physical injuries to his right pinky finger caused by sprayings of toxic chemicals. Compl. ¶ 39. Long Cove's insurance company offered $11,000 in Workers' Comp and subsequently offered $26,000 to settle the matter, which Plaintiff declined because it required a blanket release of responsibility. Compl. ¶ 15.
Plaintiff further alleges that Defendants discriminated and retaliated against him because of his age. Compl. ¶ 34. He was required to rake bunkers by hand instead of using a Sand Pro machine despite his experience and qualifications. Compl. ¶ 35. Davis told Plaintiff that "golf maintenance was not a job for old people like him." Compl. ¶ 36. Plaintiff was subsequently further harassed and fired. Id. As a result of losing his job, he suffered $17,220 in lost wages. Compl. ¶ 45.
Finally, Plaintiff alleges that Osmar defamed his character by calling him lazy in front of several people. Compl. ¶ 50.
Plaintiff seeks damages in an amount no less than $250,000. Compl. ¶ 56.
B. Standard of Review
Defendants move to dismiss certain causes of action pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiffs' burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
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."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). The court may consider documents attached to a complaint or motion to dismiss "so long as they are integral to the complaint and authentic." Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir.2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir.2006)).
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.
C. Discussion
Defendants move to dismiss all claims except Plaintiff's claim for age discrimination against Long Cove. The age discrimination claim is proper only as to Plaintiff's employer, Long Cove, as the ADEA does not provide for causes of action against defendants who are sued in their individual capacities. See Jones v. Sternheimer, 387 F. App'x 366, 368 (4th Cir. 2010) (per curiam) (recognizing that Title VII, the ADA, and the ADEA "do not provide for causes of action against defendants in their individual capacities"); Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (noting that the Fourth Circuit rejects claims of individual liability under the ADEA).
Plaintiff's negligence, "physical injuries on the job," and intentional infliction of emotional distress each arise from Plaintiff's allegations that he was injured while working. Defendants argue that these claims are barred by the exclusivity provision of the South Carolina Workers Compensation Act (SCWCA). The "exclusivity provision," provides:
"Physical injuries on the job" is not a separate cause of action.
The rights and remedies granted by this title to an employee when he and his employer have accepted the provisions of this title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death.S.C. Code Ann. § 42-1-540. Based on this provision, South Carolina courts hold that the SCWCA provides the exclusive remedy against an employer for an employee who sustains injuries arising out of his employment. Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002). The exclusivity provision is jurisdictional and bars all common law actions against an employer based on injuries within the scope of the SCWCA. Id. at 234 n.3 ("The phrase 'shall exclude all other rights and remedies' in the exclusivity provision demonstrates plain and unambiguous legislative intent to vest the Workers' Compensation Commission with exclusive original jurisdiction over an employee's claims."). The South Carolina Supreme Court has held that causes of action for intentional infliction of emotional distress and negligence constitute personal injuries within the scope of the Act. Loges v. Mack Trucks, Inc., 308 S.C. 134, 417 S.E.2d 538 (1992) (outrage); Sabb, 567 S.E.2d at 234 (negligence); see also Stokes v. First National Bank, 306 S.C. 46, 410 S.E.2d 248 (1991) (mental injury arising from non-physical stress covered by the SCWCA). Accordingly, dismissal of Plaintiff's claims for negligence, "personal injuries on the job," and intentional infliction of emotional distress is appropriate.
Plaintiff also asserts a claim for unlawful discharge/retaliation. Within this cause of action, Plaintiff alleges that "Defendants Davis and Cochran retaliated against [him] after he asked questions about spraying toxic chemicals without requiring protection to golf workers in a place where the wind blows constantly and everywhere." Compl. ¶ 17. To the extent Plaintiff seeks relief under South Carolina's common law doctrine of wrongful discharge in violation of public policy, Plaintiff's claim fails.
South Carolina law allows an employer to discharge an employee without incurring liability for good reason, no reason, or bad reason. Culler v. Blue Ridge Elec. Coop., 309 S.C. 243, 245, 422 S.E.2d 91, 92 (1992). However, the South Carolina Supreme Court has recognized a "public policy" exception to this doctrine. Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 225, 337 S.E.2d 213, 216 (1985). In Ludwick, the court held that an employee has a tort cause of action for wrongful discharge where there is a retaliatory discharge of the at-will employee in violation of a clear mandate of public policy. Id. The South Carolina Supreme Court has expressly recognized two situations in which an action for wrongful discharge in violation of public policy can be maintained: (1) when an employer requires an employee to violate a criminal law as a condition of maintaining employment, see Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213, 214-16 (1985), and (2) when the act of terminating an employee is itself in violation of a criminal law, see Culler v. Blue Ridge Elec. Coop., Inc., 309 S.C. 243, 422 S.E.2d 91, 92-93 (1992). "South Carolina courts have been careful to narrowly interpret the exception, often declining to extend the exception beyond the bounds of Ludwick and Culler." Desmarais v. Sci. Research Corp., 145 F. Supp. 3d 595, 598 (D.S.C. 2015) (collecting cases); see also Merck v. Advanced Drainage Systems, Inc., 921 F.2d 549, 555 (4th Cir. 1990) (explaining that the public policy exception "is to be very narrowly applied" and is not "an open-ended concept"); Taghivand v. Rite Aid Corp., 411 S.C. 240, 244, 768 S.E.2d 385, 387 (S.C. 2015) ("We exercise restraint when undertaking the amorphous inquiry of what constitutes public policy.").
Green v. Quest Diagnostics Clinical Labs., 455 F.Supp.2d 483 (D.S.C. 2006), is instructive. In Green, this court dismissed a wrongful termination suit based in part on the plaintiff's claim that she was fired for internally reporting wrongdoing by coworkers who were not complying with laws and regulations applicable to healthcare providers. The plaintiff asked that the court to expand the public policy exception to encompass situations where employees internally report alleged illegal conduct to their superiors. Id. at 490. The court found no public policy supporting the rights of employees to internally report potentially harmful conduct to their superiors and therefore found the plaintiff did not fall within the recognized bounds of the public policy exception to the at-will employment doctrine. Id. at 490-91; see also Desmarais, 145 F.Supp.3d at 600. Likewise, in the present case, Plaintiff's allegations that he was terminated after he internally complained of the use of toxic chemicals is insufficient to give rise to a cause of action for wrongful termination in violation of public policy and dismissal is appropriate.
Additionally, South Carolina courts have refused to extend the public policy exceptions to situations where the employee has an existing statutory remedy. both federal and state OSHA laws provide a statutory remedy for wrongful termination. See Barron v. Labor Finders of S.C., 713 S.E.2d 634, 637 (S.C. 2011) ("The public policy exception does not ... extend to situations where the employee has an existing statutory remedy for wrongful termination."); see also Stiles v. American Gen'l Life Ins. Co., 516 S.E.2d 449 (S.C. 1999) (holding that a wrongful termination claim should not overlap with statutory or contractual rights but "provide[s] a remedy for a clear violation of public policy where no other reasonable means of redress exists"); Dockins v. Ingles Markets, Inc., 413 S.E.2d 18 (S.C. 1992) (holding that wrongful termination claim is unavailable where the employee has a state or federal statutory remedy); see also 29 U.S.C. § 660(c) and S.C. Code Ann. § 41-15-520 (providing federal and state statutory remedies for OSHA violations, respectively).
Plaintiff's loss of wages claim is not a proper cause of action under South Carolina law. Although he cites to the South Carolina Payment of Wages Act, (SCPWA), S.C. Code Ann. § 41-10-10, et seq., the damages he seeks do not fall under that statute. The SCPWA permits recovery by a plaintiff of all wages due but unpaid by an employer. Baugh v. Columbia Heart Clinic, P.A., 738 S.E.2d 480, 495 (S.C. Ct. App. 2013). Plaintiff seeks recovery for the wages he would have been paid had his employment not been terminated. The South Carolina Supreme Court has specifically found the SCPWA does not apply to prospective wages. See Mathis v. Brown & Brown of S.C., Inc., 389 S.C. 299, 318, 698 S.E.2d 773, 783 (2010). Therefore, dismissal of this cause of action is appropriate.
The undersigned makes no recommendation regarding whether Plaintiff is entitled to lost wages as an element of damages for any surviving causes of action.
Finally, Plaintiff asserts a cause of action for defamation because Osmar called him lazy in front of several people. It appears that Plaintiff asserts this cause of action only against Osmar and includes factual allegations regarding only the above-mentioned comment by Osmar. To the extent Plaintiff asserts this defamation claim against any of the other Defendants, dismissal is appropriate.
In sum, it is recommended that Defendants' Motion to Dismiss be granted, and all claims be dismissed except for Plaintiff's claim for discrimination in violation of the ADEA against Long Cove and his defamation claim against Osmar.
IV. CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff's Motion to Remand (ECF No. 15) be denied, and Defendants' Motion to Dismiss (ECF No. 4) be granted. If the district accepts this recommendation, the only remaining causes of action will be Plaintiff's ADEA claim against Long Cove and his defamation cause of action against Osmar.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge November 13, 2019
Florence, South Carolina