Opinion
Civil Action 4:22-cv-1437-JD-TER
12-16-2022
ERIKA POMERANTZ, Plaintiff, v. COASTAL CAROLINA UNIVERSITY, PETER PAQUETTE, ANGEL ONLEY-LIVINGSTON, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
I. INTRODUCTION
This action arises from Plaintiff's employment with Defendant Coastal Carolina University (CCU). Plaintiff originally filed this action in the Court of Common Pleas, Horry County, South Carolina. Defendants removed it to this court. Plaintiff alleges causes of action for race discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1981, as well as state law causes of action for slander and negligent supervision. Presently before the Court is Defendants' Motion to Dismiss (ECF No. 5) Plaintiff's hostile work environment, slander, and negligent supervision causes of action. Plaintiff filed a Response (ECF No. 6) in opposition. 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 multicultural Asian, Latina, and Jamaican.” Compl. ¶ 25 (ECF No. 1-1). She is a Licensed Professional Counselor and a Licensed Addictions Counselor in South Carolina with a Master's Degree in Professional Counseling. Compl. ¶ 26. Plaintiff was hired by CCU on September 16, 2017. Compl. ¶ 27.
Elsewhere in the Complaint, Plaintiff describes herself as “Jamaican, Chinese, and Spanish.” Compl. ¶ 40.
Approximately a year and half after Plaintiff's hire, CCU decided to hire a diverse, multicultural counselor. Compl. ¶¶ 29-30, 33. On April 1, 2019, CCU hired Sitonja Valenzuela, who was unlicensed, less qualified, and less experienced than Plaintiff, but paid her more money per year than Plaintiff. Compl. ¶ 33. On April 15, 2019, Plaintiff questioned why CCU hired a less experienced person at a higher rate of pay than Plaintiff. Plaintiff was informed that the hire was due to CCU's initiate for diversity, and Plaintiff was not “multicultural enough and presented as white and therefore was not paid more. Compl. ¶ 34. Plaintiff informed Jennie Cassidy that she was being discriminated against based on race and she wanted the issue addressed. Cassidy stated she would take Plaintiff's complaint to Dr. Debbie Conner. Compl. ¶ 35. During each bi-weekly supervision meeting from April to May of 2019, Plaintiff addressed the race discrimination. Cassidy continually informed Plaintiff that she would address it with Dr. Conner and that there may be a chance for a salary inquiry in October of 2019. Compl. ¶ 36.
Several individuals mentioned in the complaint are not further identified. It is not clear from the allegations what position Jennie Cassidy held at CCU.
Plaintiff was on furlough from June 15, 2019, to August 1, 2019, per her employment contract. Compl. ¶ 39. On August 8, 2019, Plaintiff met with Kimberly Sherfesse, Associate Vice President for Human Resources/EEO Officer, and made a complaint of race discrimination specifically regarding discrimination based on race and a pay discrepancy of a less qualified employee making more money due to being “multicultural.” Plaintiff included in the complaint that she was informed she was not “multicultural enough” to be paid at the higher rate. Compl. ¶ 40. During the meeting, Plaintiff also informed Sherfesse that she protested the job posting for the new counselor and that she had suffered retaliation as a result of her complaints. Compl. ¶¶ 41-42. On August 18, 2019, Plaintiff sent an email requesting that Sherfesee follow up with her when the review of her complaints was complete. Compl. ¶ 44. On August 23, 2019, Plaintiff received an email from Sherfesee stating that she had met with Dr. Conner and Defendant Dr. Paquette, Associate Vice President for Student Affairs/Dean of Students, and they were reviewing her complaints. Compl. ¶ 45. On September 22, Plaintiff received an email setting an appointment for September 24, 2019, to review the results of the investigation, but on the day of the appointment, Sherfesee canceled the meeting. Compl. ¶ 47-48.
On October 3, 2019, Plaintiff participated in a meeting with Dockery and Canady where she was informed that she was being investigated for a Title IX violation. Franklin Ellis accused Plaintiff of making derogatory comments regarding his sexual orientation. Compl. ¶ 49. Plaintiff was informed that the complaint was unrelated to her complaint of race discrimination, and the Title IX investigation was not in retaliation for her complaint. Compl. ¶ 53. The investigations into the two complaints ran concurrently. Lori Cox, Associate Director of Employee Relations and Benefit Services also held an interview inquiring into the office climate. During the interview process it was stated to Dockery, Canady, and Cox that the investigation and retaliation had created a hostile work environment, but no actions were put into place to reduce or change the hostile work environment. Compl. ¶ 54.
It is not clear from the allegations what positions Dockery and Canady held at CCU.
That complaint was investigated and determined to be unfounded. Compl. ¶ 49.
On October 8, 2019, Plaintiff had a meeting with Sherfesee and BJ Landrum, Vice President for Human Resources University Compliance & HR, during which she was informed that she would be receiving a salary increase based on “compression,” and other employees in the office would receive a “compression” raise as well. Compl. ¶ 51. On October 11, 2019, Plaintiff was informed that should would be receiving a raise effective October 16, 2019, but it was not equal to Valenzuela's pay. Compl. ¶ 52.
On October 21, 2019, Plaintiff participated in a meetingwith Cox to discuss office dynamics. Compl. ¶ 55. On October 23, 2019, Plaintiff had a meeting with Dockery to address the allegations against Plaintiff by Ellis. Compl. ¶ 56. On November 4, 2019, Plaintiff received a letter via email from Canady which stated that the university had concluded that the evidence does not support a finding that Plaintiff violated university policies regarding Title IX. Compl. ¶ 57.
On November 11, 2019, Dr. Paquette met with Plaintiff and informed her that he was not aware of her discrimination claim. Plaintiff asked Dr. Paquette what he was going to do about the hostile work environment, and Paquette told her that was a legal term she should refrain from using and the new interim director would address it in the future. Dr. Paquette yelled at Plaintiff during this meeting. Compl. ¶ 58. On November 12, 2019, Dr. Paquette requested that Plaintiff meet with Sperduto to address any unresolved issues in the office. Compl. ¶ 59. On November 14, 2019, Dr. Paquette and Dr. Conner held a meeting with Plaintiff to discuss other issues that came to light regarding Plaintiff during the Title IX investigation, including bullying, failing to maintain a harmonious working relationship, potential breach of confidentiality, and potential inappropriate referrals. Compl. ¶ 60. The complaint states “they further informed the Plaintiff the discipline was not retaliation for her complaints,” Compl. ¶ 60, though there are no specific allegations regarding any discipline as a result of this meeting.
It is not clear from the allegations what position Sperduto held at CCU.
On December 2, 2019, Plaintiff had a meeting with Dr. Elizabeth Carter, Director of LiveWell Office, Interim Director of Counseling Services, to discuss Plaintiff's concerns regarding the hostile work environment, retaliation, and the lack of any resolution to her complaints of discrimination based on race. Dr. Carter told Plaintiff she did not have a timeline for any resolution and that Plaintiff should continue working as usual until she followed up on Plaintiff's concerns. Compl. ¶ 61.
On December 5, Plaintiff participated in a meeting with Dr. Paquette and Dr. Carter as a follow up to the concerns of bullying, failing to maintain a harmonious work environment, potential breach of confidentiality, and potential inappropriate referrals. Plaintiff alleges that the meeting itself was retaliatory, bullying, and created a hostile work environment. Plaintiff was asked during the meeting what she would do to remedy the hostile work environment, and Plaintiff suggested a mediation with staff. Compl. ¶ 63.
On January 28, 2020, Plaintiff sent an email to Dr. Carter regarding Claudia and her providing misinformation to others.
The complaint later refers to a Claudia Johnson. Compl. ¶ 70. It is not clear what misinformation Claudia was providing to others at the time of Plaintiff's email.
In June 20, 2020, Plaintiff filed a Charge of Discrimination with the EEOC alleging race discrimination, national origin discrimination, sex discrimination, religious discrimination, hostile work environment, and retaliation.
On July 28, 2020, Plaintiff saw a coworker outside of work, who was with Franklin Ellis. Plaintiff spoke to both men, and Ellis responded that they were not friends and there was no need for Plaintiff to pretend that they were. Plaintiff later learned that Ellis was reporting information regarding Plaintiff to the new Director of Counseling Services, Defendant Angel Onley-Livingston. Compl. ¶ 66.
On August 11, 2020, Plaintiff was at lunch for a co-worker's birthday when another employee made negative statements regarding Asian persons and restaurants. Compl. ¶ 67.
The same day, Plaintiff had a meeting with Onley-Livingston, who had only been working with Plaintiff for less than two weeks. During the meeting, Onley-Livingston became combative and argumentative, Compl. ¶ 67.
On August 12, 2020, Onley-Livingston posted a threatening Facebook video in which she state that she was going to dismantle the working environment, that the enemy was present and other comments about evil spirits, killing and destroying, and going into enemy camp. Plaintiff alleges these statements had a negative impact on Plaintiff's employment. Compl. ¶ 69.
On August 13, 2020, Plaintiff was scheduled to be out of the office in meetings. The schedule was posted and clearly set forth where Plaintiff was. Plaintiff also told Claudia Johnson where she would be and that she would return to the office for her “on-call” time. During her meetings, Plaintiff received an aggressive email from Onley-Livingston wanting to know where Plaintiff was. Plaintiff responded that it was on the schedule. Plaintiff learned that Johnson had failed to inform Onley-Livingston where Plaintiff was and when she was to return. Later in the day, Johnson yelled at Plaintiff during a meeting and accused Plaintiff of having a tone. Onley-Livingston supported Johnson and shut Plaintiff down whenever she attempted to speak. During the meeting, Johnson addressed many issue that had occurred in the past that presented Plaintiff in a false light. Plaintiff alleges that these actions of Johnson and Onley-Livingston perpetuated the hostile work environment. Compl. ¶ 70. The same day, Onley-Livingston requested that Plaintiff and each counselor schedule a 1 on 1 meeting/staffing to replace weekly staff meetings for Wednesdays from 9:00 am to 11:00 am. Compl. ¶ 71.
On August 14, 2020, Onley-Livingston made a post to Facebook stating “the hole you dug for me is going to be the hole right next to yours-me.” Plaintiff alleges this statement perpetuated the hostile work environment. Compl. ¶ 72.
On August 19, 2020, at 1:30 am Onley-Livingston sent an email informing staff that they had training at 8:00 am. The training was not listed on the schedule, so the Plaintiff had no notice of the training. The workday in the Department was 8:30 am not 8:00 am. Plaintiff did not know of this training until 7:15 am and requested that she be permitted to zoom from home. As a result of the Plaintiff's email, the Defendant informed the Plaintiff that there were other emails and that the training would be moved to 8:30 am. Compl. ¶ 75. It is not clear from the allegations whether Plaintiff was allowed to participate from home via zoom, but later that day Onley-Livingston admitted to Plaintiff that she forgot about the training and had failed to put it on the calendar. Compl. ¶ 77. The training addressed diversity, equity, and inclusion in the working environment. Compl. ¶ 76.
Later that day, Pliantiff requested a meeting about what was happening in the department, and Plaintiff presented Onley-Livingston with a list of questions, which she answered. They further discussed Johnson and her presentation of misinformation. Compl. ¶ 77.
On August 20, 2020, the on-call schedule stated that Plaintiff was on-call August 23, 2020, but changes were later made to the schedule without notifying anyone, and Plaintiff was placed on-call for August 28, 2020. Compl. ¶ 78. This change later caused chaos and confusion for Plaintiff on August 23, 2020, and caused Plaintiff to be on-call for an extra 12 hours. Compl. ¶ 82. During the same week, Onley-Livingston recognized all the counselors but Plaintiff, which put everyone on notice that Onley-Livingston treated Plaintff differently, At some point, Plaintiff was placed on mandatory furlough, and the policy of the University was not to conduct any business for the University while on furlough. Compl. ¶ 80. When she returned from furlough on August 25, 2020, Plaintiff requested leave for Labor Day on September 7, 2020, within the time frame dictated by Onley-Livingston. Onley-Livingston refused to adjust the on-call schedule for Plaintiff and denied her leave, though she had adjusted the schedule for others. Another employee agreed to switch with Plaintiff, but Onley-Livingston instructed the employee not to switch with Plaintiff. Compl. ¶¶ 84-86.
On August 26, 2020, Plaintiff had a meeting with Onley-Livingston, who was combative and refused to answer questions. She issued Plaintiff an oral reprimand and informed her that she was not complying with the demands of the job by abusing leave, which should only be taken during the summer and not during the semester. Plaintiff informed Onley-Livingston that she had only taken mandatory furlough days, each of which had been approved by Onley-Livingston. Onley-Livingston accused Plaintiff of insubordination and failing to complete jobs though she could not provide specific details when asked. Compl. ¶ 88. Onley-Livingston set forth expectations for Plaintiff to meet during the next 30 days and informed Plaintiff that if she could not agree to those expectation, she would immediately be terminated. Compl. ¶ 90. The same day, Plaintiff provided Onley-Livingston with a doctor's note for her to be out of work that day and the next. Johnson was made aware that Plaintiff would be out but failed to call and cancel appointments until “late.” She was not disciplined for this failure. Compl. ¶ 91.
On September 9, 2020, a staff meeting was on the schedule for all counseling staff. Plaintiff was not notified of the meeting, which Plaintiff alleges was purposeful. All staff went to lunch together on the same day and left Plaintiff out, specifically ostracizing Plaintiff. Compl. ¶ 93.
On September 20, 2020, CCU was notified by Plaintiff's attorney that a second Charge of Discrimination had been filed with the EEOC. Compl. ¶ 97.
On September 30, 2020, Onley-Livingston informed Plaintiff by email that she was in the parking lot and noticed Plaintiff was not at work at 8:30 am, and she should notify her when she's going to be late. Plaintiff alleges that this amounts to stalking and furthered the hostile work environment. Compl. ¶ 98.
On October 8, 2020, Paquette and Onley-Livingston presented Plaintiff with a Notice of Written Reprimand and Associative Corrective Action Needed form. Compl. ¶ 99. On October 21, 2020, Plaintiff submitted a rebuttal to the reprimand, asserting that Onley-Livingston treated other employees who had not complained of discrimination more favorably than she treated her. Compl. ¶ 100.
On February 12, 2021, Onley-Livingston informed Plaintiff that the comp time on the schedule was not approved and had been removed from the schedule and Plaintiff would be required to work. Onley-Livingston threatened to take Plaintiff to HR for changing her schedule, and Plaintiff informed her that Johnson had changed the schedule, not her. Nevertheless, Plaintiff agreed that an appointment with HR would be the best way to handle the situation because Onley-Livingston was creating a hostile work environment for Plaintiff. Compl. ¶¶ 102-03.
On March 11, 2021, Plaintiff refused to breach the confidentiality policy and was disciplined for not following procedure and not breaching confidentiality. The policy was changed after this incident. Compl. ¶ 104.
On August 18, 2021, Onley-Livingston sent a request to HR and Dr. Paquette to meet with Plaintiff and HR to discuss Plaintiff's position and her willingness to complete her job duties and “create and keep a harmonious environment.” Onley-Livingston further stated in the request that Plaintiff is only happy as long as she lets her take days off on a continuous basis. She stated “I will not be bullied, manipulated or gaslighted on a continual basis this year by [Plaintiff]. I am asking that the university review her being in this department .... I will not endure the psychological stress that I have endured supervising her this past year.” Plaintiff alleges Onley-Livingston placed her in a false light and intentionally caused Plaintiff to fear for her job. Compl. ¶ 106.
On August 20, 2021, Plaintiff was informed that she would be required to meet with the new VP who was above Dr. Paquette due to all the conflict occurring in the work environment. Compl. ¶ 107.
III. STANDARD OF REVIEW
Defendants move to dismiss Plaintiff's hostile work environment, slander, and negligent supervision 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
A. Hostile Work Environment
Defendants move to dismiss Plaintiff's third cause of action alleging a hostile work environment in violation of Title VII and 42 U.S.C. § 1981. Under Title VII, it is unlawful for an employer “to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); see also 42 U.S.C. § 1981(a) (providing that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens”). “Because ‘an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.'” Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (quoting EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001)). Plaintiff must allege that she suffered from harassment that was (1) unwelcome, (2) based on a protected status, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to the employer. EEOC v. C. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). The same test applies to a hostile work environment claim asserted under 42 U.S.C. § 1981. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir.2001); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 373, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) (recognizing that hostile work environment claims may be brought under § 1981).
Defendants argue that Plaintiff fails to allege sufficient facts of harassment that was so severe or pervasive that it altered the conditions of her employment. Plaintiff's alleges that the investigation regarding her use of derogatory comments about a coworker's sexual orientation, which was later determined to be unfounded, created a hostile work environment. She further alleges that the written reprimand she received regarding bullying and failure to maintain a harmonious work environment, among other issues, and a subsequent follow up meeting on the reprimand contributed to the hostile work environment. She alleges that Onley-Livingston sent her an “aggressive email” and coworker Johnson yelled at her during a meeting. She also alleges that Onley-Livingston made two Facebook posts that Plaintiff interpreted to be about her, including “the hole you dug for me is going to be the hole right next to yours-me” and a video in which she made statements about her working environment and that the enemy and evil spirits were present. Plaintiff also alleges that Onley-Livingston created a hostile work environment by failing to notify anyone of a training scheduled for 8:00 am until 1:30 am the same morning. Plaintiff also alleges that Onley-Livingston declined to approve leave requested by Plaintiff and would not allow another employee to cover her on-call schedule. She alleges that a staff meeting was scheduled but no one notified Plaintiff and the remaining staff went to lunch together without Plaintiff. She alleges that Onley-Livingston stalked Plaintiff by noticing that she was not in the parking lot by 8:30 one morning and saying something to Plaintiff about it. She also vaguely alleges that Onley-Livingston created a hostile work environment by changing the terms and conditions of her employment and changing policies to request leave. Based on the allegations, this conduct occurred between October 3, 2019, and September 20, 2020. Plaintiff alleges that Defendants created this hostile work environment based on her race and as a result of her complaints of race discrimination.
Plaintiff argues that she is not required to plead facts sufficient to constitute a prima facie case in her complaint. As the Fourth Circuit has explained, “while a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, . . . factual allegations must be enough to raise a right to relief above the speculative level.” Coleman v. Maryland Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (internal citations omitted). The prima facie elements are helpful, but not dispositive, in determining whether a claim under Title VII is plausible. Lowman v. Maryland Aviation Administration, No. CV JKB-18-1146, 2019 WL 133267, at *5 (D. Md. Jan. 8, 2019). The “severe or pervasive” element “has both a subjective and objective component.” Perkins v. Int'l Paper Co., 936 F.3d 196, 208 (4th Cir. 2019). “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview.” Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). When deciding the objective component of a hostile work environment claim, courts consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris, 510 U.S. at 23. Plaintiff's allegations of a hostile work environment are just enough to raise a right to relief above the speculative level and survive a motion to dismiss at this stage of the litigation. The arguments raised by Defendants are more properly addressed under Rule 56 of the Federal Rules of Civil Procedure. Therefore, it is recommended that Defendants' Motion to Dismiss be denied as to Plaintiff's hostile work environment claim.
B. Slander
Defendants also move to dismiss Plaintiff's slander cause of action asserted against Onley-Livingston and Paquette. Slander is the spoken form of defamation. Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 484, 514 S.E.2d 126, 133-34 (1999) (citation omitted). The tort of defamation allows a plaintiff to recover when a defendant communicates a false message about the plaintiff to others that injures the plaintiff's reputation. McBride v. Sch. Dist. of Greenville Cty., 389 S.C. 546, 559, 698 S.E.2d 845, 852 (Ct. App. 2010). A party asserting a claim of defamation must prove the following elements: “(1) a false and defamatory statement was made; (2) the unprivileged publication of the statement to a third party; (3) the publisher was at fault; and (4) either the statement was actionable irrespective of harm or the publication of the statement caused special harm.” Williams v. Lancaster Cty. Sch. Dist., 369 S.C. 293, 302-03, 631 S.E.2d 286, 292 (Ct. App. 2006).
With respect to the fourth element, defamation that is actionable irrespective of special harm is defamation per se, which includes defamatory statements regarding 1) the commission of a crime, 2) contraction of a loathsome disease, 3) adultery, 4) unchastity, or 5) unfitness in one's business or profession. Fountain v. First Reliance Bank, 398 S.C. 434, 442, 730 S.E.2d 305, 309 (S.C. 2012) (citing Goodwin v. Kennedy, 347 S.C. 30, 36, 552 S.E.2d 319, 322-23 (S.C. Ct. App. 2001)).
Plaintiff alleges that on December 5, 2019, she participated in a meeting with Dr. Paquette and Dr. Carter as a follow up to the Notice of Written Reprimand, presumably from November 19, 2019, during which false accusations were made. Compl. ¶ 63. She alleges that Onley-Livingston intentionally placed Plaintiff in a false light and slandered her to other employees when she sent the following email to HR:
Erika today did not follow an inner office procedure which I was willing to overlook that was in place since last semester, due to her just returning from the Summer and getting back in the day-to-day process. Erika seems to be happy with our interactions and relationship at work, as long as I let her take off days on a continuous basis as requested. I also suggested as I had before that she should have applied for the Clinical Director position if she wants to make departmental decisions. I will not be bullied, manipulated or gaslighted on a continual basis this year by Erika Pomerantz. I am asking that the university review her being in this department and all that I have submitted for review formally and these emails. I will not endure the psychological stress that I have endured supervising her this past year.
Compl. ¶ 106. She later alleges generally that Defendants published false statement regarding Plaintiff's “work performance and issues regarding violations of policy,” and that they did so to make her fear her job and stop complaining about the work environment. Compl. ¶ 172-73. She alleges the false statements were also made to have Plaintiff terminated from her employment and to damage her reputation at the University. Compl. ¶ 174. Plaintiff alleges Defendants have continued the publication of false statements about her through internal and external memoranda about her performance issues. Compl. ¶ 175. Plaintiff's allegations with respect to Onley-Livingston are sufficient to survive a motion to dismiss. She alleges that Onley-Livingston made statements to HR that Plaintiff failed to follow office procedure and bullied, manipulated, and gaslighted her, which insinuates Plaintiff's unfitness in her profession as a counselor.
However, Plaintiff's allegations of slander as to Paquette lack the specificity necessary to survive a motion to dismiss. Plaintiff's only specific reference to Paquette with respect to her slander claim is that Plaintiff participated in a meeting with Carter and Paquette, during which false statements were made about her. She does not identify what the false statements were or who made the false statements during the meeting. The allegations in a complaint are insufficient to state a claim for defamation where the plaintiff does not set forth with specificity what the alleged false statements were. McNeil v. South Carolina Dep't of Corrections, 404 S.C. 186, 195, 743 S.E.2d 843, 848 (S.C. Ct. App. 2013); see also Carson v. Emergency MD, LLC, No. 6:20-1946-HMH, 2020 WL 5077655, at *5 (D.S.C. Aug. 25, 2020) (“Many courts applying South Carolina law have found that a lack of specificity in a plaintiff's allegations regarding a defamation claim warrants dismissal.”). Accordingly, dismissal is appropriate as to Plaintiff's slander claim against Paquette.
C. Negligent Supervision
Defendants also move to dismiss Plaintiff's negligent supervision cause of action against CCU. Plaintiff alleges that CCU negligently supervised its employees, Paquette and Onley- Livingston, because it knew of the retaliation and hostile work environment these employees were creating yet CCU failed to change or correct the behavior. Plaintiff alleges that CCU's negligent supervision resulted in extreme emotional distress. Compl. ¶¶ 179-80. Defendants argue that Plaintiff's negligent supervision claim is subject to dismissal because such a claim by an employee against an employer is barred by the exclusivity provisions of the South Carolina Worker's Compensation Act (SCWCA).
The SCWCA provides,
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. The South Carolina General Assembly has, therefore, vested the South Carolina Workers' Compensation Commission with exclusive original jurisdiction over an employee's work-related injuries. See Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002). Courts, applying Section 42-1-540, have held that claims for negligent supervision specifically are covered by the SCWCA. See Id.; Dewese v. Sci. Applications Int'l Corp., No. 2:11-3024-DCN-BHH, 2012 WL 1902264, at *3 (D.S.C. May 2, 2012); Palmer v. House of Blues Myrtle Beach Rest. Corp., No. 4:05-3301-RBH, 2006 WL 2708278, at *3 (D.S.C. Sept. 20, 2006); Dickert v. Metro. Life Ins. Co., 311 S.C. 218, 428 S.E.2d 700 (S.C. 1993); Washington v. Hilton Hotels Corp., No. 2:07-cv-2694-CWH, 2008 WL 747792, at * 4 (D.S.C. Mar. 17, 2008); Edens v. Bellini, 359 S.C. 433, 597 S.E.2d 863 (S.C. App. 2004).
Without citation to case law, Plaintiff first argues that workers' compensation claims are specific to accidents not intentional acts of the agents. However, Plaintiff's claim against CCU for negligent supervision, is not an intentional tort and, thus, this argument is without merit. See Lindblad v. J&I Servs., Inc., No. 4:18-1336-RBH-TER, 2019 WL 653968, at *6 (D.S.C. Jan. 30, 2019), report and recommendation adopted sub nom. Lindblad v. J&L Servs., Inc., No. 4:18-01336-RBH-TER, 2019 WL 652248 (D.S.C. Feb. 15, 2019). She also argues that the exclusivity provision does not apply where the injury is not personal injury but injury to reputation. However, with respect to Plaintiff's negligent supervision claim, she does not allege injury to reputation as part of her damages. Rather, she alleges that she suffered “severe emotional distress” as a result of CCU's negligent supervision of Onley-Livingston and Paquette. See Compl. ¶¶ 180-81. Therefore, her claim falls within the SCWCA exclusivity provision and dismissal is appropriate. See Stokes v. First Nat'l Bank, 306 S.C. 46, 410 S.E.2d 248 (1991) (mental injury arising from non-physical stress is within the SCWCA).
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion to Dismiss (ECF No. 5) be denied in part and granted in part. Specifically, it is recommended that the motion be denied as to Plaintiff's hostile work environment claim and her slander claim against Onley-Livingston. It is recommended that the motion be granted as to Plaintiff's negligent supervision claim and her slander claim against Paquette.