Opinion
C/A 20-2331-JMC-SVH
09-27-2021
Troy L. Scarborough, Plaintiff, v. Winthrop University and Daniel Gordon, an agent of Winthrop University and individually, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
Troy L. Scarborough (“Plaintiff”) filed this complaint against Winthrop University and Daniel Gordan (“Gordon”) (collectively “Defendants”) alleging claims of workplace racial discrimination in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 1983. This matter comes before the court on Defendants' motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6). [ECF No. 5]. The motion having been fully briefed [see ECF Nos. 8, 9], it is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendants' motion to dismiss.
I. Relevant Factual Background
Pursuant to Fed.R.Civ.P. 12(b)(6), the court examines the legal sufficiency of the facts as alleged on the face of Plaintiff's complaint. Since 2014, Plaintiff, an African American male, has served with distinction as an Instructor and Adjunct Professor at Winthrop University. [ECF No. 1 ¶¶ 12- 13]. He earned an undergraduate degree from North Carolina Agricultural & Technical State University, a Bachelor of Fine Arts in Professional Theatre with a concentration in Acting and Directing. Id. ¶ 14. In addition, Plaintiff holds a Master of Fine Arts in Acting from the University of Delaware and a Master of Arts in Theatre from Wayne State University. Id. He also possesses a certificate from one of the top Musical Theatre programs in the country, the American Musical and Dramatic Academy. Id.
During his time at Winthrop, Plaintiff has taught as an Adjunct Professor credit-hour courses including Classical Acting, Styles I & II, Musical Theatre, Contemporary Monologue/Acting, and Theatre Appreciation. Id. ¶ 18. Additionally, Plaintiff has taught a wide variety of theatre courses from Theatre Appreciation for non-majors, Acting One for non-majors, Musical Theatre, Contemporary Monologues, and upper level Styles for the Classical Theatre. Id.
In the fall of 2016, Plaintiff was encouraged by Gordon, the chair of the department, to apply for a new position of full-time Professor of Acting with a focus in Musical Theatre. Id. ¶ 19. After submitting an application in January 2017, he was offered a phone interview, like the rest of the candidates, with the full-time faculty of the department. Id.
After the brief phone interview in late February 2017, Plaintiff never received any notification of his status in the hiring process. Id. ¶ 20. He was disheartened to learn that all the applicants brought to campus were Caucasian. Id. In addition, there was no diversity on the Winthrop University Search Committee. Id.
Around this same time, Gordon offered Plaintiff two more adjunct classes because, despite the outcome of the interview process, he stated he wanted the classes covered by “the best people.” Id. ¶ 21. Plaintiff stopped by Gordon's office to pick up his textbook for the fall semester, and asked why he was passed over for the position; Gordon responded that Plaintiff looked good on paper, but his answers in his phone interview were “too short.” Id. ¶ 22.
Plaintiff later learned that Winthrop University and Gordon had filled two new positions with Caucasian males, and he was not considered for either of these roles. Id. ¶ 25. After his denial in the process, Plaintiff initially discussed his concerns with Representative King of the South Carolina Legislature. Id. ¶ 26. He informed him to speak with a graduate of the program. Id. ¶ Plaintiff filed a formal grievance to address this issue within the University process. Id. He initially met with Zan Jones, Associate Vice-President of Human Resources and Chief Diversity Officer on August 16, 2017, to address his concerns. Id. He then met with LeeAnn Pounds (“Pounds”), Employee Relations Manager on October 19, 2017, to give a full account of his concerns for the investigation into his claims. Id. Pounds claimed to have found no evidence of racism in the hiring process and then told Plaintiff that the next course of action was to contact the Provost, Debra Boyd (“Boyd”), which he did. Id. ¶ 27.
Plaintiff alleges he holds one more degree than the white males hired and that he holds a certificate from the American Musical and Dramatic Academy that neither of the white males have. [ECF No. 1 ¶ 15].
Plaintiff and Boyd met in January 2018. Id. Boyd conducted her own internal audit and could not find one negative complaint about Plaintiff concerning his interactions with the students. Id. She told him that he was a change agent, there would be a mandate to hire a person of color for the next position openings, and she, like Gordon, encouraged him to apply for future openings in the department. Id.
Plaintiff additionally alleges, and provides multiple examples, that in addition to the university's hiring practices lacking diversity, the theatre seasons, including shows chosen to be performed and people asked to direct those shows, also lacked diversity. Id. ¶¶ 28, 31-34.
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. Claims Brought Pursuant to 42 U.S.C. § 1981
Defendants argue that, in this case, 42 U.S.C. § 1983 is the sole and exclusive federal remedy for a violation of rights under 42 U.S.C. § 1981, and, therefore, Plaintiff's claims brought pursuant to 42 U.S.C. § 1983 should be dismissed. See Dennis v. County of Fairfax, 55 F.3d 151, 156, n.1 (4th Cir. 1995) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989) (“Jett held that when suit is brought against a state actor, § 1983 is the ‘exclusive federal remedy for violation of the rights guaranteed in § 1981'”); Farmer v. Ramsay, 43 Fed.Appx. 547, 553 n.8 (4th Cir. 2002) (holding the plaintiff “has no cause of action based on § 1981 independent of § 1983” against the state university medical school); see also Nat'l Ass'n for the Advancement of Colored People, Inc. by & through Myrtle Beach Branch v. City of Myrtle Beach, C/A No. 4:18-00554-SAL, 2020 WL 4482896, at *11 (D.S.C. Aug. 4, 2020) (“the Fourth Circuit, among several other circuits, expressly opposes” that “the Civil Rights Act of 1991, by adding § 1981(c) to the statute, effectively superseded the holding in Jett and created a private cause of action against state actors for violations of § 1981.”).
Plaintiff does not address Defendants' argument concerning his 42 U.S.C. § 1981 claims. See United States v. Hudson, 673 F.3d 263, 268 (4th Cir. 2012) (issues not raised in opening brief are waived); see also Awkard v. Rammelsberg, C/A No. 4:17-01542-RBH-KDW, 2018 WL 4999792, at *8 (D.S.C. Mar. 13, 2018), (“Plaintiff does not respond to Defendant Stitcher's assertion that no negligent supervision claim is stated against her, thus it appears that she concedes that point.”), report and recommendation adopted, C/A No. 4:17-01542-RBH-KDW, 2018 WL 4677716 (D.S.C. Sept. 27, 2018); Gray v. Am. Homepatient, Inc., C/A No. 2:14-1207-DCN, 2014 WL 7965987, at *10 (D.S.C. Oct. 24, 2014) (“The failure to respond to [a] motion [to dismiss] is tantamount to a waiver of any opposition on the merits”) (citations omitted), report and recommendation adopted, C/A No. 2:14-01207-DCN, 2015 WL 892780 (D.S.C. Mar. 3, 2015).
In light of the above case law, the undersigned recommends the district judge grant Defendants' motion to dismiss as to Plaintiff's claims brought pursuant to 42 U.S.C. § 1981.
2. Eleventh Amendment Immunity
A civil action brought pursuant to 42 U.S.C. § 1983 provides a means to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States, but the statute is not, itself, a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994). “Section 1983 imposes liability on any person who, under the color of state law, deprives another person ‘of any rights, privileges, or immunities secured by the Constitution and laws.'” Doe v. Kidd, 501 F.3d 348, 355 (4th Cir. 2007) (citing 42 U.S.C. § 1983). “Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
The Eleventh Amendment provides, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. The United States Supreme Court has long held the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001). A plaintiff “is not entitled to monetary damages under § 1983 against Defendants in their official capacities.” Moneyhan v. Keller, 563 Fed.Appx. 256, 258 (4th Cir. 2014) (citing Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (holding that Eleventh Amendment bars suits against a non-consenting state, its agencies, and its officers acting in their official capacities)).
Here, Plaintiff alleges that
All of the aforementioned actions were taken by agents and servants of the Winthrop University, a State entity, and Defendant Gordon and were taken and performed within the course and scope of their employment and in their official capacities as State agents.
[ECF No. 1 ¶ 38]. Defendants argue Winthrop University and Gordon, as to claims brought against him in his official capacity, are entitled to Eleventh Amendment immunity. Plaintiff disagrees, arguing, based on S.C. Code Ann. § 59-125-70 and § 59-101-650, that “the Eleventh Amendment Immunity standard imputed to the Defendants in this case should be waived.” [ECF No. 8 at 7 (citing Ram Ditta v. Md. Nat'l Capital Park & Planning Comm'n., 822 F.2d 456, 457 (4th Cir. 1987))].
S.C. Code Ann. § 59-125-70 states in pertinent part that “[t]he board of trustees of Winthrop University is hereby created a body corporate . . . . [i]t may sue and be sued and contract and be contracted with and may own, purchase, sell and convey property, both real, personal and mixed . . ., ” and S.C. Code Ann. § 59-101-650 states in pertinent part that the board of trustees of a public institution of higher learning is vested with the power of eminent domain as to private land.
The Fourth Circuit has “recognized two ways in which a State may waive its Eleventh Amendment immunity”:
(1) expressly in a state statute or constitutional provision, “as long as the provision explicitly specifies the state's intention to subject itself to suit in federal court, ” or (2) implicitly “by voluntarily participating in federal spending programs when Congress expresses a clear intent to condition participation in the programs . . . on a State's consent to waive its constitutional immunity.”Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 491 (4th Cir. 2005) (citing Litman v. George Mason Univ., 186 F.3d 544, 550 (4th Cir. 1999)).
Here, the statutes cited by Plaintiff do not explicitly specify Winthrop University's intention to subject itself to suit in federal court, nor does Plaintiff indicate Winthrop University has participated in any relevant federal spending program. Additionally, this court has held the University of South Carolina and Clemson University, who also have similar statutory provisions applicable to them as those cited by Plaintiff, as well as Winthrop University itself are entitled to dismissal of claims brought pursuant to 42 U.S.C. § 1983 under the Eleventh Amendment. See DeCecco v. Univ. of S.C., 918 F.Supp.2d 471, 497 (D.S.C. 2013) (“In sum, USC is entitled to dismissal of the Section 1983 claim both under the Eleventh Amendment and because it is not a ‘person' subject to suit for damages under the statute.”); Martin v. Clemson Univ., 654 F.Supp.2d 410, 415 (D.S.C. 2009) (“The magistrate [judge] applied sound legal principles and was correct in his analysis that Clemson is an arm of the state and entitled to Eleventh Amendment immunity for purposes of” claims brought pursuant to 42 U.S.C. § 1983 among other claims); Lee v. Winthrop Univ., C/A No. 0:17-1476-DCC-PJG, 2018 WL 6288112, at *3 (D.S.C. Sept. 7, 2018) (holding Winthrop University and faculty members, to the extent they were sued in their individual capacities, immune from suit because they are not “persons” under 42 U.S.C. § 1983 and because Eleventh Amendment immunity for 42 U.S.C. § 1983 had not been waived), report and recommendation adopted, C/A 0:17-1476-JFA-PJG, 2018 WL 6267813 (D.S.C. Nov. 30, 2018).
S.C. Code Ann. § 59-117-40 states, in part: “The board of trustees of the University of South Carolina . . . has the following powers: . . . (2) to sue and be sued by the corporate name.” S.C. Code Ann. § 59-119-60 states, in part: “The board of trustees [of Clemson University] . . . may sue and be sued and plead and be impleaded in its corporate name . . .”
Accordingly, the undersigned recommends Defendants' motion to dismiss be granted as to Plaintiff's claims brought pursuant 42 U.S.C. § 1983 against Winthrop University and Gordon in his official capacity.
Defendants additionally argue, and Plaintiff does not dispute, that as a separate and independent basis for dismissal, neither Winthrop University nor Gordon, in his official capacity, are a “person” as defined under Section 1983 and, thus, are not subject to liability.
3. Claims Brought Pursuant to 42 U.S.C. § 1983 Against Gordon in his Individual Capacity
Suits for damages against state officials sued in their individual capacity are not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991) (“[T]he Eleventh Amendment does not erect a barrier against suits to impose ‘individual and personal liability' on state officials under § 1983.”) (citation omitted). However, Defendants argue that any claims brought against Gordon in his individual capacity fail in that “Plaintiff does not set forth any factual allegation in the Complaint of conduct which constitutes ‘individual' or ‘personal motivations' distinct from Winthrop's or Professor Gordon's employment-related motivation” and “Plaintiff does not allege any individual discriminatory conduct on behalf of Professor Gordon in his or Winthrop's decision not to promote Plaintiff to the full-time Position.” [ECF No. 5-1 at 9]. Defendants further argue that “[i]n preparing the caption of the Complaint, Plaintiff referenced the word ‘individually' but this is not supported by a single factual allegation in the Complaint and fails under Twombly.” Id. at 9 n.1.
In response, Plaintiff appears to misapprehend Defendants' argument, arguing Gordon is not entitled to qualified immunity. [See ECF No. 8 at 10 (“Based upon the ruling in Albright, the Plaintiff in the instant case argues that it has sufficiently pled a valid claim for violations of the Equal Protection Clause by articulating his claim under the McDonnell Douglas framework, thus eliminating any qualified immunity granted by the Eleventh Amendment to Defendant Daniel Gordon.”) (citing Albright v. Charlotte-Mecklenburg Bd. of Educ., C/A No. 3:17-00461-FDW-DSC, 2017 WL 6028362, at *2 (W.D. N.C. Dec. 5, 2017)). However, in Albright, unlike here, “Individual Defendants contend that they are entitled to qualified immunity on Plaintiff's claims under 42 U.S.C. § 1983.” Albright, 2017 WL 6028362, at *2. Here, qualified immunity has not been invoked, and, instead, Defendants argue that Plaintiff has failed to state a claim pursuant to 42 U.S.C. § 1983 against Gordon in his individual capacity. Defendants argue, and the undersigned agrees, that “Plaintiff does not identify any factual allegation in his Response or Complaint that Professor Gordon, in his individual capacity, acted personally in the deprivation of Plaintiff's rights.” [ECF No. 9 at 5]. As stated by the Fourth Circuit, “[i]n order for an individual to be liable under § 1983, it must be ‘affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.'” Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)); see also Adams v. Trs. of Univ. of N.C. Wilmington, 640 F.3d 550, 566 (4th Cir. 2011) (holding a plaintiff is “required to plead sufficient facts” in asserting a claim under section 1983 for a violation of the equal protection clause, “to demonstrate that [s]he has been treated differently from others with whom [s]he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.”) (citations omitted).
Plaintiff has failed to identify any factual allegations that Gordon, in his individual capacity, acted personally in the deprivation of Plaintiff's rights, nor can the court discern any such factual allegations. In full, Plaintiff's allegations concerning Gordon are as follows:
• Gordon encouraged him to apply for the full-time position at issue and future openings, appeared pleased with Plaintiff's work, and offered Plaintiff adjunct classes to teach throughout the time period in question, including as recently as for the Fall 2020 semester;
• Gordon informed Plaintiff that “on paper he looks good but his answers on his phone interview were ‘too short, '” and informed Plaintiff that he was not asked to elaborate on his answers because the interviewers, including Gordon, “had to stick to a script”;
• Gordon led the department that lacked opportunities to present black-themed plays;
• Gordon originally told Plaintiff no classes were available for him to teach for the Fall semester 2018, but thereafter Plaintiff was offered a class to teach;
• Gordon was involved in the hiring of two black professors in 2018; and
• Gordon had a “complete lack of a commitment to diversity, ” as evidenced by his rejection of suggestions for several plays made by a noted black director and, instead, allowing a black play to be performed on the mainstage, following Plaintiff's formal complaint in 2017, and directed a young, biracial woman with inadequate schooling and training.
[ECF No. 1 ¶¶ 19, 21, 22, 27, 31, 33, 34, 35, 37, 39, 40(j)].
Accordingly, the undersigned recommends the district judge grant Defendants' motion to dismiss Plaintiff's claims brought pursuant to 42 U.S.C. § 1983 against Gordon in his individual capacity. Because the undersigned recommends dismissal of all of Plaintiffs claims brought pursuant to both 42 U.S.C. § 1981 and 42 U.S.C. § 1983, the undersigned additionally recommends dismissal of Plaintiffs claims for punitive damages and attorneys' fees. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion to dismiss [ECF No. 5].
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).