Opinion
Civil Action 8:21-2551-TMC-KFM
11-19-2021
William Lester Sholar, Plaintiff, v. BHI Energy I Power Services, LLC, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendant's partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 10). Under the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
FACTS PRESENTED
In his amended complaint, the plaintiff alleges two causes of action: 1) interference in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(1), and 2) common law fraud and misrepresentation. The defendant is a staffing company that employed the plaintiff at the Duke Energy Oconee Nuclear Station as a radiation protection technician. The plaintiff alleges that while he was on FMLA leave, the defendant fraudulently told him that his position had been eliminated and subsequently failed to return him to work in violation of the FMLA (doc. 6, amend. comp. ¶¶ 40-50).
The plaintiff alleges in the amended complaint that federal jurisdiction is predicated upon both a federal question posed under the FMLA and diversity jurisdiction (doc. 6, amend. comp. ¶¶ 6-7). See 28 U.S.C. §§ 1331, 1332.
In February 2017, the plaintiff suffered bilateral achilles tendon ruptures and was recommended to undergo physical and orthotic therapy. The plaintiff requested FMLA leave in March 2017, and he was informed shortly thereafter that his position was eliminated such that he would not be returning to his prior position (doc. 6, amend. comp. ¶¶ 12-18). The plaintiff alleges that his doctor opined that he was able to return to work on June 1, 2017 (id. ¶¶ 24, 33). The defendant formally terminated the plaintiff's employment on June 1, 2017 (doc. 10-2; doc. 14 at 2). The plaintiff “was fairly certain” at the time of his termination from employment that “someone with training similar to [his] had to perform duties akin to those [he had performed]” (doc. 14-1, pl. aff. ¶ 7). He “saw no way that the work [he] was doing could be eliminated” (id.).
In September 2019, the plaintiff applied for and was hired as a bus driver at the Duke Energy Oconee Nuclear Station (doc. 6, amend. comp. ¶ 26). During that short term assignment, the plaintiff learned “in fall 2019" that the defendant had hired his colleague, Ray Teel, to fill the plaintiff's former position with the same job duties and job title as the plaintiff occupied at the time of his FMLA leave (doc. 6, amend. comp. ¶¶ 26-32).The plaintiff contends that he was aware that he was supposed to be reinstated at the conclusion of his FMLA leave, but he was unaware that “said fact pattern was a prima [facie] FMLA violation, potentially entitling him to damages” (doc. 14 at 2) until 2021, when he reviewed the December 15, 2020 deposition of the defendant's Rule 30(b)(6) witness in an unrelated medical malpractice lawsuit brought by the plaintiff (doc. 14-1, pl. aff. ¶¶ 10-12).The plaintiff filed this action through his attorney on August 10, 2021 (doc. 1).
In his affidavit submitted with his response in opposition to the defendant's motion, the plaintiff testified that he asked Mr. Teel “in early October 2017” who was performing the plaintiff's prior job duties, and Mr. Teel replied that he was (doc. 14-1, pl. aff. ¶ 8) (emphasis added).
In the deposition excerpts cited by the plaintiff in his affidavit, the 30(b)(6) witness testified that the defendant's site coordinator told her that the plaintiff's position had been eliminated and further testified that the plaintiff was not terminated from employment because he took FMLA leave (doc. 14-2, 30(b)(6) dep. 32-33).
APPLICABLE LAW AND ANALYSIS
In the motion now before the court, the defendant argues that the plaintiff's FMLA interference cause of action should be dismissed because it is barred by the applicable two-year statute of limitations (doc. 10-1). In response, the plaintiff argues: 1) there is no unequivocal federal precedent holding the discovery rule inapplicable to FMLA interference claims; 2) the facts as pled in the complaint show that the defendant's actions were willful, thereby extending the applicable statute of limitations to three years; 3) the statute of limitations should be equitably tolled in light of the COVID-19 pandemic; and 4) the statute of limitations should be tolled by equitable estoppel based on the defendant's actions in misinforming the plaintiff that his position had been eliminated when, in reality, he had been replaced by a colleague (doc. 14). For the reasons discussed below, the undersigned recommends that the defendant's motion be granted.
Legal Standard
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Here, the defendant and the plaintiff have submitted documents that are outside the pleadings. Specifically, the defendant submitted the plaintiff's out-processing checklist, showing that he was terminated from employment effective June 1, 2017 (doc. 10-2), and the plaintiff submitted his own affidavit (doc. 14-1) and the deposition of the defendant's Rule 30(b)(6) witness from the plaintiff's unrelated medical malpractice lawsuit (doc. 14-2). As these documents are not integral to and explicitly relied on in the complaint and have been considered by the court herein, the defendant's motion should be treated as one for summary judgment. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (stating that a court may consider a document that is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint, ” and there is no authenticity challenge (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999))).
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
FMLA Interference
The plaintiff alleges that the defendant interfered with his rights in violation of the FMLA. 29 U.S.C. § 2615(a)(1). The FMLA provides that an action may be brought “not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” Id. § 2617(c)(1). The act further provides that an action brought for a “willful violation . . . may be brought within 3 years of the date of the last event constituting the alleged violation for which such action is brought.” Id. § 2617(c)(2).
It is undisputed that the plaintiff was terminated from employment by the defendant on June 1, 2017, and this action was filed over four years later on August 10, 2021, which is well outside the statute of limitations even for willful violations. Accordingly, the defendant argues that the plaintiff's FMLA interference claim should be dismissed as it is barred by the applicable statute of limitations (doc. 10-1 at 2-3). The undersigned will address in turn each of the plaintiff's arguments in opposition to the defendant's motion.
The plaintiff first argues there is no unequivocal federal precedent holding the discovery rule inapplicable to FMLA interference claims (doc. 14 at 4-6). Neither party has cited - and the undersigned has not found - binding case law addressing whether the discovery rule applies to FMLA claims. However, the Court of Appeals for the Fourth Circuit has expressly rejected the discovery rule in an Age Discrimination in Employment Act case. Hamilton v. 1st Source Bank, 928 F.2d 86, 90 (4th Cir. 1990) (en banc) (finding that the “last possible time that pay discrimination could have occurred was the date when [the plaintiff] received his final paycheck, ” and not when the plaintiff learned that he was receiving a lesser salary than younger co-workers in his job category). See also Dawson v. Delta Air Lines, Inc., C. A. No. 1:18-cv-240 (LMB/MSN), 2018 WL 53116004, at *4 (E.D. Va. Oct. 26, 2018) (“[T]he Fourth Circuit has explicitly rejected the 'discovery rule' and has held that the statute of limitations . . . begins to run when the act occurred, not from the time of discovery.” (citing Hamilton, 928 F.2d at 90)). Further, this court has recognized that the “relevant date for determining the timeliness of [an Americans with Disability Act claim] is the date when the alleged disparate treatment occurred, rather than when the plaintiff discovered she was being treated differently.” Casey v. Plastic Omnium Auto Exterior, LLC, C. A. No. 8:11-cv-1432-HMH-KFM, 2012 WL 6966714, at *6 (D.S.C. Nov. 30, 2012) (citations omitted), R&R adopted by 2013 WL 393941 (D.S.C. Jan. 31, 2013). See Smith v. Bd. of Educ. of Carroll Cty, 200 F.Supp.2d 539, 539 (D. Md. 2002) (noting that “the very last date on which any action . . . . under . . . the FMLA could have accrued” was the date the plaintiff's employment was terminated).
The plaintiff attempts to distinguish the above cases by arguing that, unlike the employment discrimination contexts in which the Court of Appeals for the Fourth Circuit has expressly rejected the discovery rule, an FMLA violation can occur without “overt conduct” immediately noticeable to an employee (doc. 14 at 5). However, as the defendant notes, in the Hamilton decision, the Fourth Circuit expressly considered a situation in which an age discrimination plaintiff was unaware that he may have been paid less than comparator employees until well after he received the allegedly discriminatory pay. See Hamilton, 928 F.2d at 87. Notwithstanding the lack of “overt conduct” on the part of the employer, the Fourth Circuit emphatically rejected the application of the discovery rule. Id.. As the court noted, “when Congress has intended a discovery rule, it has proven capable of writing one.” Id. at 88 (citing 41 U.S.C. § 55(b) (filing period runs from “the date on which the United States first knew or should reasonably have known that the prohibited conduct had occurred”); 22 U.S.C. § 4134(a) (excluding from the filing period “any time during which ... the grievant was unaware of the grounds for the grievance and could not have discovered such grounds through reasonable diligence”)). Moreover, the court reasoned that “[a]n 'occurrence' is a discrete event, whereas a plaintiff's acquisition of knowledge is a continuing process. One can never be sure exactly when on that continuum of awareness a plaintiff knew or should have known enough that the limitations period should have begun.” Id.
Furthermore, even assuming for purposes of this motion that the discovery rule applies to the plaintiff's FMLA interference claim, the plaintiff's allegations both in his amended complaint and in the documents submitted in opposition to the defendant's motion do not support his argument that this action was timely filed. As noted above, the plaintiff alleges that he was unaware that “said fact pattern was a prima [facie] FMLA violation, potentially entitling him to damages” (doc. 14 at 2) until 2021, when he reviewed a deposition taken on December 15, 2020, in an unrelated medical malpractice lawsuit brought by the plaintiff (doc. 14-1, pl. aff. ¶¶ 10-12). However, as the defendant notes (doc. 16 at 5 n.2), the discovery rule, even if applicable, provides that a claim accrues “upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong.” Wastak v. Lehigh Valley Health Network, 343 F.3d 281, 287 (3rd Cir. 2003) (citation and internal quotation marks omitted). In his affidavit, the plaintiff testified that during his 2017 FMLA leave, he disbelieved any assertion by the defendant that his position had been eliminated, and he was “fairly certain” that his duties were being performed by someone else (doc. 14-1, pl. aff. ¶ 7). Thus, it is clear that the plaintiff was aware of the key allegations underlying his FMLA claim - that he was supposed to be reinstated at the conclusion of his FMLA leave, that he was informed while he was on FMLA leave that his position was eliminated such that he would not be returning to his prior position, that someone else would need to perform his position, and that the defendant allegedly misrepresented that his position was eliminated - at the time he was terminated from employment on June 1, 2017. Accordingly, even if the discovery rule applies, the plaintiff's FMLA interference claim is still untimely.
The plaintiff next argues that the facts as pled in the amended complaint show that the defendant's actions were willful, thereby extending the applicable statute of limitations to three years under 29 U.S.C. § 2617(c) (doc. 14 at 6-8). “A violation is 'willful' if 'the employer knew or showed reckless disregard [as to] whether its conduct was prohibited' by the FMLA.” Bosse v. Balt. Cty., 692 F.Supp.2d 574, 583 (D. Md. 2010) (quoting James v. Autumn Corp., C. A. No. 1:08CV777, 2009 WL 2171252, at *13 (M.D. N.C. July 20, 2009)). In support of this argument, the plaintiff cites regulations issued by the United States Nuclear Regulatory Commission that, inter alia, impose certain requirements on staffing contractors of nuclear energy production licensees like the defendant (doc. 14 at 6-8). Based on these regulations, the plaintiff argues that the defendant “knew, or should have known, that it required, at a minimum, a trained radiation safety technician to monitor those third-party contractor employees for radiation exposure, ergo why it hired associates of the Plaintiff to fill his position” (id. at 7). The plaintiff fails to explain, however, how the defendant's alleged knowledge of these regulations shows that the defendant knew or showed reckless disregard as to whether its conduct in terminating the plaintiff's employment was prohibited by the FMLA. Further, even assuming that the three-year statute of limitations for willful violations is applicable to the plaintiff's claim, the plaintiff's claim was filed over four years after he was aware of the facts underlying his FMLA interference claim, as discussed above. Thus, in order for the plaintiff's claim to be timely, the court would also have to find that the statute of limitations should be tolled. For the reasons discussed below, the undersigned recommends that the district court decline to do so.
The plaintiff argues that the statute of limitations should be equitably tolled in light of the COVID-19 pandemic (doc. 14 at 8-12). The undersigned disagrees. Equitable tolling is available only in “those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted). Certainly, the COVID-19 pandemic is an “extraordinary circumstance” that could stand in the way of a litigant pursuing his rights. See Moore v. City of Charlotte, C. A. No. 3:20CV525-GCM, 2021 WL 698150, at *3 (W.D. N.C. Feb. 22, 2021). The plaintiff's difficulty is with meeting the first requirement - showing that he has been pursuing his rights diligently. As discussed above, the plaintiff was aware of the facts underlying his claim at the time of his termination from employment in June 2017. Thus, the plaintiff had over two and a half years to file this action prior to the onset of pandemic-related disruptions in the early spring of 2020. Moreover, the plaintiff notes that the deposition of the defendant's Rule 30(b)(6) witness “conducted on 12/15/20 and not available until after the beginning of the 2021 calendar year enlightened Counsel and the Plaintiff as to the facts surrounding the latter's termination”; yet, the plaintiff delayed filing this action until August 10, 2021, nearly eight months later (doc. 1). The plaintiff clearly has not met his burden of showing that he has been pursuing his rights diligently. Accordingly, he is not entitled to equitable tolling of the statute of limitations based upon the COVID-19 pandemic.
Lastly, the plaintiff argues that the statute of limitations should be tolled by equitable estoppel based on the defendant's actions in misinforming the plaintiff that his position had been eliminated when, in reality, he had been replaced by a colleague (doc. 14 at 11-12). As the plaintiff acknowledges (doc. 14 at 11), “[e]quitable estoppel applies where, despite the plaintiff's knowledge of the facts, the defendant engages in intentional misconduct to cause the plaintiff to miss the filing deadline.” English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987) (citation omitted). In Edmonson v. Eagle National Bank, the Court of Appeals for the Fourth Circuit noted that equitable estoppel applies when “[t]he plaintiff's failure to timely file his claim derives not from his ignorance of the cause of action, but rather from conduct taken by the defendant to induce the plaintiff not to timely file his claim.” 922 F.3d 535, 549 (4th Cir. 2019). The court provided the following example, stating that “equitable estoppel might apply if a plaintiff did not timely file suit because the defendant 'promis[ed] not to plead the statute of limitations' as a defense if the plaintiff held off on filing suit during settlement negotiations.” Id. (citation omitted). No. such misconduct is even alleged by the plaintiff to have occurred here. The plaintiff's request for equitable estoppel rests solely on his allegation that the defendant misrepresented to him the status of his position, a form of alleged misconduct inapposite to the equitable estoppel doctrine.
Furthermore, to the extent the plaintiff seeks to invoke the equitable doctrine of “fraudulent concealment” to toll the limitations period, that doctrine also does not save his claim. This doctrine “applies in situations 'where the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action.'” Id. (quoting English, 828 F.2d at 1049). “Under this doctrine, because of the defendant's wrongful acts of concealment, the plaintiff is not aware of the facts giving rise to his claim within the limitations period.” Id. Here, as discussed above, the plaintiff knew of the alleged facts giving rise to his claim at the time of his termination of employment in June 2017, as he “was fairly certain” that “someone with training similar to [his] had to perform duties akin to those [he had performed], ” and he “saw no way that the work [he] was doing could be eliminated” (doc. 14-1, pl. aff. ¶ 7). Moreover, the plaintiff specifically alleges that he learned “in fall 2019," within the limitations period for a willful violation, that the defendant had hired his colleague, Mr. Teel, to fill his position with the same job duties and job title as the plaintiff occupied at the time of his FMLA leave (doc. 6, amend. comp. ¶¶ 26-32), yet he waited another nearly two years to file the instant action. The plaintiff has neither alleged nor shown further acts of concealment by the defendant that prevented him from filing a timely claim. Accordingly, the district court should decline to apply the equitable estoppel or fraudulent concealment doctrines to toll the statute of limitations for the plaintiff's FMLA interference claim.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the district court grant the defendant's motion (doc. 10), treated as a partial motion for summary judgment, and dismiss the plaintiff's FMLA interference claim as barred by the statute of limitations.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).