Opinion
C. A. 3:23-5903-MGL-SVH
04-18-2024
Joshua Andrew Wallace, Plaintiff, v. Cougar Columbia Hudson LLC, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Joshua Andrew Wallace (“Plaintiff”), proceeding pro se, sues his former employer Cougar Columbia H, LLC dba Midlands Honda (“Defendant”),under multiple theories of recovery, including that Defendant violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). Defendant seeks dismissal.
Defendant informs the court that it has been improperly identified as Cougar Columbia Hudson LLC. [See ECF No. 27-1 at 1]. The court uses Defendant's correct name and directs the Clerk of Court to correct the caption accordingly.
This matter comes before the court on Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [ECF No. 27]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the motion to dismiss procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 30]. Defendant's motion having been fully briefed [see ECF Nos. 32, 33], the matter is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been referred 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 Defendant's motion to dismiss, dismissing the complaint with prejudice.
I. Factual and Procedural Background
On September 7, 2023, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging in full as follows:
I began my employment with Respondent around May 2019, and I was most recently employed as a Detailer. Throughout my employment I have performed my job duties at a satisfactory level. Around August 8, 2023, one of my coworkers (Black) thought another coworker and I were taking about him. We assured this co-worker we were not talking about him, but my coworker became upset and physically assaulted me by punching me in the face. I was informed by my supervisor, Mr. Ed Yager and Ms. Patricia from human resources that I needed to write a statement regarding this incident. On August 9, 2023, after providing this written statement to Respondent, I was terminated, but not provided any paperwork for my termination. Before my termination, I have submitted complaints to human resources addressing issues of feeling targeted, wages, being left shorthanded or staffed, and people bring stressed in this work environment. I have also submitted complaints to OSHA regarding my coworker who assaulted me for making threats of violence in the past, as well as to the Department of Labor regarding my manager. I believe I have been discriminated and
unlawfully retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended, due to my race, Black.[ECF No. 33-1, see also ECF Nos. 1-1, 1-2 at 1-9, 19-38 (documentation concerning EEOC and OSHA complaints)].
“On a motion to dismiss courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Cobin v. Hearst-Argyle Television, Inc., 561 F.Supp.2d 546, 550 (D.S.C. 2008) (citations and emphasis omitted); see also Martineau v. Wier, C/A No. 3:16-2650-SAL, 2020 WL 5757520, at *3 (D.S.C. Sept. 9, 2020) (“A court may also consider documents attached to a defendant's motion to dismiss if the document is integral to and explicitly relied on in the complaint, provided the plaintiff does not challenge the authenticity of the document.”). Also, “[i]n the employment context, a court may consider an EEOC charge and other EEOC documentation [when considering a motion to dismiss] because such documents are integral to the complaint as Plaintiff necessarily relies on these documents to satisfy the time limit requirements of the statutory scheme.” Pierce v. Office Depot, Inc., C/A No. 0:13-3601-MGL, 2014 WL 6473630, at *5 (D.S.C. Nov. 18, 2014) (citing Williams v. 1199 Seiu United Healthcare Workers East, C/A No. 12-72, 2012 WL 2923164 at * 1 n. 1 (D. Md. July 17, 2012)); see also Adams v. 3D Sys., Inc., C/A No. 019-00663-JMC-KDW, 2019 WL 8754875, at *2 (D.S.C. Nov. 26, 2019), report and recommendation adopted, C/A No. 0:19-00663-JMC, 2020 WL 1527056 (D.S.C. Mar. 31, 2020) (same).
After the EEOC issued Plaintiff a right to sue letter [ECF No. 1-1], he filed a complaint. [ECF Nos. 1, 4]. The undersigned issued an order and notice noting numerous deficiencies in Plaintiff's complaint. In response, Plaintiff filed an amended complaint on December 28, 2023. [ECF No. 9].
In his amended complaint, in addition to Defendant, Plaintiff named individuals as defendants who have been dismissed. [See ECF Nos. 14, 23].
In his amended complaint, Plaintiff alleges he had a history of asking Defendant's service manager Ed Yeager (“Yeager”) about pay increases that were denied and that he was passed over for a promotion from assistant manager to manager. Id. at 3, 10-12, 15-16. As to the pay increases, Plaintiff alleges Yeager “let his views be known that black people should not be paid as high as white people.” Id. at 17. As to the failure to promote, Plaintiff alleges:
Plaintiff was in fact, next to become manager, as he was titled assistant manager to William Hunt (Hired Consultant) when Ed Yeager was describing Joshua Andrew Wallace work relationship with the company. Joshua Andrew Wallace maintained assistant managerial duties for two years without compensation. Once speaking very highly of Plaintiff to Mr. Hunt, Ed Yeager still did not even allot the opportunity of an evaluation to determine if Plaintiff was qualified for the position. He was passed over for that management position and never evaluated for the position.Id. at 8-9, 20. Plaintiff also alleges that Yeager “attempt[ed] to drive out” other employees, including black males “due to their ethnicity.” Id. at 14, see also id. at 16.
Plaintiff alleges another employee, Benson Essien (“Essien”), attacked him on August 8, 2023. Id. at 11-12. After the assault, Plaintiff alleges Yeager immediately procured a statement from Essien, but waited five hours to procure Plaintiff's statement. Id. at 12. Plaintiff alleges he was terminated for writing this statement, a statement requested by management. [ECF No. 9 at 11, see also ECF No. 1-2 at 58-59 (statement dated August 8, 2023)].
In his amended complaint, Plaintiff alleges that until he was told to write the above statement, he was “secretly restricted from filing anything to HR.” [ECF No. 9 at 11]. However, in his EEOC charge, he stated prior to his termination that he had submitted multiple complaints to HR. [ECF No. 331]. Plaintiff has also submitted documentation to the court of letters he wrote to HR prior to his termination concerning issues as presented in this case. [ECF No. 1-2 at 11-14].
Plaintiff alleges he was informed his employment was terminated because he “caused a toxic work environment,” which Plaintiff denies. [ECF No. 9 at 11]. Plaintiff alleges that Yeager and Melaena Beckman (“Beckman”), Defendant's human resources (“HR”) manager, “conspire[ed] to discriminate against and conspire[ed] to terminate an employee, due to ethnic background, age, and high pay rate potential.” Id. at 3, 13. Plaintiff also alleges that Defendant's employee handbook did not contain termination procedures or termination procedures applicable to his termination. Id. at 12.
Plaintiff also alleges that “some of the associates would walk around with oil funnel cones on their heads posing as Klansman.” [ECF No. 9 at 17].
Although difficult to parse, Defendant identifies, and Plaintiff does not dispute, that he asserts the following causes of action in his amended complaint:
(1) breach of contract under 5 C.F.R. § 551, 12 C.F.R. § 239.41, 29 C.F.R. § 1601, 29 C.F.R. § 1614.501, and 41 U.S.C. § 6503;
(2) failure to promote under Title VII, the South Carolina Unfair Trade Practices Act (“SCUTPA”), 5 C.F.R. § 9701.517, and 29 U.S.C. § 158;
(3) discrimination under Title VII and 5 U.S.C. § 2302;
(4) civil conspiracy under 29 C.F.R. § 1630.12, 18 U.S.C. § 371, 18 U.S.C. § 2422, 42 U.S.C. 12203, and S.C. Code Regs. § 65-219;
(5) unfair labor practices under 5 C.F.R. § 9701.517, 29 U.S.C. § 158, and violation of the SCUTPA;
(6) unfair competition in violation of 15 U.S.C. § 45;
(7) violations of the United Nations Declaration on the Rights of Indigenous Peoples (“U.N. Declaration”), United Declaration of Human Rights (“UDHR”), and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV (“Equal Protection Clause”); and
(8) breach of contract under the Uniform Commercial Code (“UCC”) and workers' compensation retaliation.See ECF No. 9 at 20-25, see also ECF No. 27-1 at 1-2, ECF No. 32.
Defendant filed its motion to dismiss on February 23, 2024 [ECF No. 27], and Plaintiff filed a response on March 20, 2024. [ECF No. 32].
Plaintiff's response does not address any arguments raised by Defendant or otherwise address the sufficiency of his complaint. Instead, Plaintiff has submitted over 150 pages of argument and documentation, generally unrelated to the instant case. Plaintiff's filings indicate his association with “sovereign citizen” ideology. See, e.g., Parker v. Spencer, C/A No. 4:13-00430-RBH, 2015 WL 3870277, at *3 (D.S.C. June 23, 2015) (“sovereign citizens are a loosely affiliated group who believe that the state and federal governments lack constitutional legitimacy and therefore have no authority to regulate their behavior”) (quoting United States v. Ulloa, 511 Fed.Appx. 105, 106 n.1 (2d Cir. 2013)); Presley v. Prodan, C/A No. 3:12-3511-CMC-JDA, 2013 WL 1342465, at *2 (D.S.C. Mar. 11, 2013), report and recommendation adopted, C/A No. 3:12-3511-CMC-JDA, 2013 WL 1342539 (D.S.C. Apr. 2, 2013) (collecting cases describing the “sovereign citizen” movement and its common features). A review of Plaintiff's original complaint and supplemental documentation, totaling over 121 pages, also indicates the same. [See ECF No. 1-2 at 11-14, 47-57, 60-70; see also ECF No. 4].
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be based. It is the plaintiff's 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 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).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Failure to Administratively Exhaust
As a preliminary matter, the court addresses Plaintiff's allegations in his amended complaint that he has been discriminated against based on his religion, national origin, age, and disability. [ECF No. 9 at 6-7, 15, 21, see also ECF No. 27-1 at 11]. Plaintiff cannot bring such claims pursuant to Title VII, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101, et seq. (“ADA”), or the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”), without first exhausting these claims. See, e.g., 42 U.S.C. § 2000e-5(e) (Title VII); 42 U.S.C. § 12117(a) (ADA adopts procedures set forth in § 2000e-5(e)); Smith v. First Union Nat's. Bank, 202 F.3d 234, 247 (4th Cir. 2000) (“Before filing suit under Title VII a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC [or SCHAC]”); Walton v. Harker, No. 21-1041, 2022 WL 1257128, at *4 (4th Cir. Apr. 28, 2022) (“It is well settled that before filing suit under . . . the ADEA, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC.”) (citing 29 U.S.C. § 633a(d)).
The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the ‘discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge'”) (citing Equal Emp. Opportunity Comm'n v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (“A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.”).
One of the primary purposes behind the exhaustion of administrative remedies requirement is to give notice to an employer of the plaintiff's allegations. As stated by the Fourth Circuit:
Congress intended the exhaustion requirement to serve the primary purpose of notice and conciliation. First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory action. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning. Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted); see also id. at 509 (holding that if a discrimination claim “exceed[s] the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.”) (citations omitted)).
Here, Plaintiff included no reference to religion, national origin, age, or disability-based discrimination or retaliation, nor are any such allegations reasonably related to the claims raised in his EEOC charge that are focused solely on race-based discrimination and retaliation. To the extent Plaintiff seeks to assert additional discrimination and retaliation claims, even though such claims were never included in his charge, he “cannot now attempt to expand the scope of his charge with entirely new claims and allegations because the charge frames the scope of future litigation.” Workman v. Bill M., C/A No. 6:17-972-RBH-KFM, 2017 WL 4863055, at *5 (D.S.C. Aug. 29, 2017) (citations omitted), report and recommendation adopted, C/A No. 6:17-00972-RBH, 2017 WL 4843968 (D.S.C. Oct. 26, 2017), aff'd, 717 Fed.Appx. 278 (4th Cir. 2018).
Accordingly, Plaintiff's religion, national origin, age, and disabilitybased discrimination and retaliation claims under Title VII, the ADA, and the ADEA should be dismissed in their entirety with prejudice. See, e.g., Kelly v. QVC, C/A No. 4:17-02858-RBH, 2018 WL 3322970, at *2 (D.S.C. July 6, 2018) (“Accordingly, the Court will dismiss with prejudice Plaintiff's claims of retaliation and discrimination based on national origin, religion, and disability because he did not exhaust his administrative remedies as to these claims.”); see also Kramer v. Omnicare ESC, LLC, 307 F.R.D. 459, 465 (D.S.C. 2015) (“[C]ourts have denied leave to amend as futile discrimination claims for failure to exhaust administrative remedies.”) (citations omitted)).
2. Counts One and Eight: Breach of Contract Claims
Under South Carolina law, a plaintiff bears the burden of establishing the existence and terms of the contract, defendant's breach of one or more of the contractual terms, and damages resulting from the breach. Taylor v. Cummins Atl., Inc., 852 F.Supp. 1279, 1286 (D.S.C. 1994) (citing Fuller v. E. Fire & Cas. Ins. Co., 124 S.E.2d 602, 610 (S.C. 1962)). Here, however, Plaintiff has failed to make any allegations or submit documentation concerning any applicable contract, notwithstanding his argument that he is entitled to back pay and other benefits under this claim. [ECF No. 9 at 20].
Plaintiff has submitted that 2021 Hudson Management Group Employee Handbook for the South Carolina stores. [ECF No. 32-2 at 19-45, see also ECF No. 32-13 at 16 (signature page signed by Plaintiff on December 21, 2021 where it states in bold and underlined that “Hudson Automotive Group's handbooks, manuals, policies, and procedures are not contracts.”)]. Plaintiff makes no allegation how this handbook could be the basis of any contractual obligations or even how any of its terms were violated.
Additionally, the statutory and regulatory regimes Plaintiff cites in support of his breach of contract claims do not provide relief for breach of contract. 42 U.S.C § 6503 “applies only to contracts made by an agency of the United States for manufacture or furnishing of materials, supplies, articles, or equipment in an amount exceeding $10,000.” Boyd v. Diangikes, C/A No. 7:19-1077-BHH-JDA, 2019 WL 2061496, at *3 (D.S.C. Apr. 16, 2019), report and recommendation adopted, C/A No. 7:19-1077-BHH, 2019 WL 2057911 (D.S.C. May 9, 2019), aff'd, 773 Fed.Appx. 689 (4th Cir. 2019). 29 C.F.R. § 1601 contains procedural regulations related to the EEOC, and 29 C.F.R. § 1614.501 concerns federal sector equal employment.
As previously held by the court, 12 CFR § 239.41 is also inapplicable to this case. [ECF No. 14 at 4 (“In his recitation of the facts, Plaintiff peppers in various statutes and regulations that he appears to believe apply to his case. For instance, he cites to 12 C.F.R. § 239.41 as applying to him because it pertains to employment contracts. However, a review of the entire statute reveals that it does not apply to all employment contracts, but instead applies to employment contracts of a mutual holding company's officers and employees under the Federal Reserve System. A review of all of the statutes reveals none that apply to this case.”)].
Plaintiff also appears to attempt to use the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), to pursue his breach of contract claim. Specifically, he alleges, “[p]laintiff shows proof in exhibits of making complaints for inquiries to resolve neglect in pay and [c]ompensation from being denied standard yearly evaluations pursuant [to] 5 CFR Part 551.” [ECF No. 9 at 10]. However, “[t]he FLSA . . . is not a vehicle for litigating breach of contract disputes between employers and employees.” See Pioch v. IBEX Eng'g Servs., Inc., 825 F.3d 1264, 1271 (11th Cir. 2016). Additionally, Plaintiff in his amended complaint makes no allegation that Defendant violated the FLSA. [ECF No. 9].
Finally, Plaintiff's invocation of the UCC does not assist him. Although
Plaintiff asserts that his claim is one for a UCC violation, he does not state the UCC provision that Defendant allegedly violated. The UCC applies to commercial transactions. See S.C. Code Ann. § 36-1-101 et. seq. However, Plaintiff has not alleged a contract with Defendant or a sale or other commercial transaction between them as governed by the UCC. Accordingly, any claim for violation of the UCC should be dismissed.
As to Plaintiff's claims for worker's compensation retaliation, there are no allegations that Plaintiff filed a workers' compensation claim or participated in a workers' compensation proceeding and was subsequently subjected to retaliation. See Pearson v. Owen Elec. Steel Co. of S.C., C/A No. 3:17-1943-MBS-PJG, 2017 WL 9286996, at *2 n.3 (D.S.C. Oct. 6, 2017) (“No other facts are pled in the Amended Complaint that would plausibly suggest that the pursuit of his statutory workers' compensation rights, as opposed to the injury itself, was the “but for” cause of his termination.”) (citing Horn v. Davis Elec. Constructors, Inc., 416 S.E.2d 634, 636 (S.C. 1992)), report and recommendation adopted, C/A No. 3:17-1943-MGL, 2018 WL 388000 (D.S.C. Jan. 12, 2018).
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to these claims.
3. Counts Two and Three: Title VII Claims
Title VII prohibits employers from taking any personnel actions affecting employees “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Generally, to state a claim for Title VII discrimination, a plaintiff must allege (1) he is a member of a protected class; (2) he was performing his duties in a satisfactory manner; (3) he was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015).
Although a “plaintiff [is not] required to plead facts establishing a prima facie case of discrimination to survive a motion to dismiss, . . . a plaintiff is nonetheless required to allege facts to satisfy the elements of a cause of action created by the relevant statute in compliance with Iqbal.” Woods v. City of Greensboro, 855 F.3d 639, 648 (4th Cir. 2017) (citations omitted); see Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 627 (4th Cir. 2015) (considering Title VII and ADEA claims in the context of Rule 12(b)(6)); Coleman v. Maryland Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (analyzing a Title VII claim under Rule 12(b)(6)), aff'd, 566 U.S. 30 (2012).
Further, it appears Plaintiff has failed to exhaust his administrative remedies as to his Title VII failure-to-promote claim, where his charge does not indicate he asserted such a claim. Even if this claim had been exhausted, Plaintiff has failed to state such a claim, where, for example, he does not allege a management position was open, that he applied for the position, or that he was rejected for the position under circumstances giving rise to an inference of discrimination, beyond alleging generally that Yeager was racist. See, e.g., Steele v. Allied Air Enterprises, LLC, C/A No. 3:18-2670-TLW-KDW, 2019 WL 13270783, at *14 (D.S.C. Mar. 18, 2019) (granting motion to dismiss the plaintiff's Title VII claim for failure to promote because it lacked any assertion that the plaintiff had applied for a promotion, been refused one, or that any alleged denial was driven by discriminatory motives).
To the extent Plaintiff asserts a Title VII wrongful discharge claim, he has alleged he is a black male who performed his duties in a satisfactory manner and was subjected to an adverse employment action when Defendant terminated his employment. However, Plaintiff has failed to allege he was terminated under circumstances that give rise to an inference of unlawful discrimination. Plaintiff complains that he and Essien were treated differently following their altercation, with Plaintiff terminated and Essien treated with “favoritism” and “rewarded with more money and a promotion to manager.” [ECF No. 9 at 12, 17]. However, Plaintiff has identified that both he and Essien are black and fails to allege any discriminatory actions as to this treatment or otherwise,.
Plaintiff has also failed to state a claim related to his general allegations of being treated differently or poorly or that he was being ignored. See, e.g., Rivers v. Bannister, C/A No. 3:11-194-MBS-PJG, 2012 WL 486178, at *6 (D.S.C. Feb. 13, 2012) (“Since Plaintiff does not state how the discrimination she faced was caused by her membership in a protected class under Title VII, Plaintiff fails to allege sufficient facts to make her Title VII claim plausible.”); Prince-Garrison v. Md. Dep't of Health & Mental Hygiene, 317 Fed.Appx. 351, 353 (4th Cir. 2009) (finding that the employer's failure to provide the plaintiff with office supplies, reprimands for insubordination, meetings with supervisors, and directions to attend counseling do not constitute adverse employment actions).
Additionally, Plaintiff has provided that the reasons for his termination, the altercation, the statement he submitted to HR as required by management, and that he had allegedly caused a toxic work environment, do not indicate unlawful discrimination, even where he contests the accuracy of Defendant's termination reasons. As stated by the Fourth Circuit, albeit in summary judgment context, “[i]f [plaintiff] was fired for misconduct [ ]he did not actually engage in, that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.” Powell v. Biscuitville, Inc., C/A No. 20-2378, 2021 WL 2434011, at *2 (4th Cir. June 15, 2021) (citing Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017)). The court does not “sit as a super-personnel department, weighing the prudence of employment decisions made by the defendants.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998). The court need not decide “whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted).
To the extent Plaintiff attempts to assert Title VII claims for unequal pay, he has only alleged that he did not receive pay he was entitled to and that other employees received wage increases. [See, e.g., ECF No. 1-2 at 13, ECF No. 4 at 7]. Plaintiff has not alleged, however, that another non-black employee received more pay than him for performing a substantially-similar job. See, e.g., Sessions v. Univ. of S.C., C/A No. 3:04-0634-MBS, 2006 WL 2543051, at *7 (D.S.C. Aug. 31, 2006) (“In order to establish a prima facie case for race discrimination in compensation under Title VII, Plaintiff must show that (1) he is a member of a protected class; (2) he was paid less than an employee outside the class; and (3) the higher paid employee was performing a substantially similar job.”).
To make a prima facie claim of Title VII retaliation, a plaintiff must show: (1) that she engaged in protected activity, (2) that the employer took a materially adverse action against her, and (3) there is a causal connection between the protected activity and the adverse action. See Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019) (citing Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)). The Fourth Circuit has stated “[a] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004) (citations omitted).
Here, it does not appear that Plaintiff is asserting a Title VII retaliation claim. [See ECF No. 9 at 20-25]. However, to the extent Plaintiff is arguing he was retaliated against for the statement he completed on August 8, 2023 [See ECF No. 4 at 10-11], submitting such a statement is not a protected activity. See Hamlin v. PDP Grp. Inc., C/A No. JKB-21-2130, 2022 WL 1407932, at *5 (D. Md. May 3, 2022) (collecting cases and holding no protected activity alleged where the plaintiff “does not allege [the] reports to her supervisor described these incidents as discrimination on the basis of race or sex”). In general, any Title VII retaliation claim fails here where Plaintiff has failed to identify in the amended complaint any protected activity taken, when that activity may have been taken, or how any such activity relates to his termination.
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to Plaintiff's Counts Two and Three.
Plaintiff cites to 5 U.S.C. § 2302 in support of his discrimination claim under Count Three; however, this statute applies to employment disputes between the federal government and its employees. Plaintiff also invokes certain unfair labor practices statutes under Count Two. The court addresses those statutes in conjunction with Count Five.
4. Count Four: Civil Conspiracy
Under South Carolina law, “a plaintiff asserting a civil conspiracy claim must establish (1) the combination or agreement of two or more persons, (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the commission of an overt act in furtherance of the agreement, and (4) damages proximately resulting to the plaintiff.” Paradis v. Charleston Cnty. Sch. Dist., 861 S.E.2d 774, 780 (S.C. 2021). As stated by the South Carolina Supreme Court, “[s]ince civil conspiracy is an intentional tort, an intent to harm, which has also been discussed in our conspiracy law, remains an inherent part of the analysis.” Id. at 780 n.9.
In support of this claim, Plaintiff alleges that Yeager and Beckman coerced him into writing a statement concerning the August 8, 2023 altercation he had with Essien that was thereafter used to terminate Plaintiff's employment. The court is unable to discern how these allegations constitute allegations that Yeager and Beckman agreed to commit an unlawful act or a lawful act by unlawful means with intent to harm. See, e.g., Reikowski v. Int'l Innovation Co. USA, C/A No. 3:12-854-GCM, 2013 WL 526489, at *2 (W.D. N.C. Feb. 11, 2013) (collecting cases and holding “[w]hile Plaintiff contends that he has cited numerous instances that show the individual defendants conspired to terminate his employment, Plaintiff has alleged no facts explaining how this conduct was unlawful”).
Additionally, the statutory and regulatory regimes Plaintiff cites in support of his civil conspiracy claims do not provide him relief. Specifically, 18 U.S.C. § 371 is a criminal statute concerning conspiracy to commit offense or to defraud the United States, 18 U.S.C. § 2422 is another criminal statute outlining offenses involving the promotion of prohibited sexual conduct of a minor or travel to engage in prohibited sexual conduct with a minor, and 29 C.F.R. § 1630.12(b) and 42 U.S.C. § 12203 prohibit coercion of any individual who exercised a right under the ADA.Finally, SC Code Ann. Regs. 65-219 provides the South Carolina Human Affairs Commission's interpretation of unlawful conduct under the South Carolina Fair Housing Law.
Plaintiff does not allege that he is disabled under the ADA or that he engaged in conduct protected under the ADA. As already noted, even if he he failed to exhaust his administrative remedies for any ADA claim.
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to Count Four.
5. Count Five: Unfair Labor Practices
Plaintiff alleges claims for unfair labor practices under the National Labor Relations Act. However, to seek relief under these statutes and regulations for alleged unfair labor practices, Plaintiff must have file an unfair labor practice charge with the National Labor Relations Board within six months of the alleged violation-in this case, his termination on August 8, 2023. See 29 U.S.C. § 160(b). That deadline has long since passed.
5 C.F.R. § 9701.517 is also inapplicable, as it defines certain unfair labor practices that are withdrawn from Federal Labor Relations Authority's jurisdiction and assigned to the Homeland Security Labor Relations Board.
Additionally, Plaintiff fails to allege any facts in support of his SCUPTA claim. The SCUTPA broadly prohibits any “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” S.C. Code Ann. § 39-5-20. To bring an action under the SCUTPA, Plaintiff must demonstrate that (1) the defendant engaged in an unlawful trade practice, (2) the plaintiff suffered actual, ascertainable damages as a result of the defendant's use of the unlawful trade practice, and had so alleged, (3) the unlawful trade practice engaged in by the defendant had an adverse impact on the public interest. See S.C. Code Ann. § 39-5-140; Havird Oil Co. v. Marathon Oil Co., Inc., 149 F.3d 283, 291 (4th Cir. 1998); Daisy Outdoor Advertising Co., Inc. v. Abbott, 473 S.E.2d 47, 49 (S.C. 1996).
Plaintiff does not allege any facts that satisfy these elements. [See ECF No. 9]. In support of his SCUTPA claim, Plaintiff states, “Defendant by virtue of their actions and failures to act on issues described hereinabove, knowing and willingly committed violations of [the SCUTPA] with intent to cause harm to [Plaintiff].” Id. at 22. These allegations fail to specify which defendant engaged in any prohibited conduct or what that conduct might be. Also, as indicated above, SCUTPA is not available to redress a private wrong where the public interest is unaffected. Noack Enterprises v. Country Corner Interiors, 351 S.E.2d 347 (S.C. Ct. App. 1986); Key Co. v. Fameco Distribs., Inc., 357 S.E.2d 476 (S.C. Ct. App. 1987).
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss Count Five.
6. Count Six: Unfair Competition
Count Six asserts a claim for violation of 15 U.S.C. § 45 of the Federal Trade Commission Act (“FTCA”). However, Plaintiff cannot state a plausible claim under 15 U.S.C. § 45 because this provision of the FTCA does not provide a private right of action to individual citizens. “It is well-settled that there is no private, federal claim for which this court can grant relief for violations of the Federal Trade Commission Act.” See Summey v. Ford Motor Credit Co., 449 F.Supp. 132, 135 (D.S.C. 1976), aff'd, 573 F.2d 1306 (4th Cir. 1978). This claim, therefore, should be dismissed.
7. Count Seven: Treaty and Constitutional Rights
In Count Seven, Plaintiff alleges violations of Article XII of the U.N. Declaration, which he identifies as the DRIP Act, as well as the UDHR and the Fourteenth Amendment of the U.S. Constitution. However, there is no private right of action under U.N. Declaration or the UDHR. Additionally, a claim for violation of the Fourteenth Amendment can only be brought against a government entity, not an individual.
As to the U.N. Declaration, courts have consistently held it does not create a federal cause of action. See, e.g., Yahudah Washitaw of E. Terra Indians v. PHH Mortg. Corp., C/A No. 5:17-00377-BR, 2017 WL 6541508, at *2 (E.D. N.C. Dec. 21, 2017) (“courts have consistently held that UNDRIP does not create a federal cause of action”) (citing Isaac v. Sigman, C/A No. 16-5345-FLW-DEA, 2017 WL 2267264, at *6 (D.N.J. May 24, 2017) (collecting cases)), aff'd in part, dismissed in part sub nom. Yahudah Washitaw of EastTerra Indians v. PHH Mortg. Corp., 724 Fed.Appx. 281 (4th Cir. 2018).
Plaintiff also cannot state a plausible claim under the UDHAR because “[t]he UDHR provides no private right of action.” See Randolph v. Dozier, C/A No. 5:16-02920-MBS-KDW, 2017 WL 8222364, at *2 n.5 (D.S.C. Nov. 20, 2017), report and recommendation adopted, C/A No. 5:16-2920-MBS, 2018 WL 1124543 (D.S.C. Mar. 1, 2018); see also Paige v. Com. of Va., No. 95-6821, 1995 WL 581098 (4th Cir. Sept. 21, 1995) (affirming lower court's dismissal of the plaintiff's claim under the UDHR); Graham v. Warder, C/A No. 6:12-1925-MGL-JDA, 2012 WL 3843909, at *3 (D.S.C. Aug. 8, 2012) (“As the UDHR was a non-binding resolution of the United Nations General Assembly, and thus aspirational rather than prescriptive, the UDHR has no bearing on whether Plaintiff has suffered a violation of his rights contained in the United States Constitution, and cannot support Plaintiff's claims in the instant case.”), report and recommendation adopted, C/A No. 6:12-1925-MGL, 2012 WL 3844597 (D.S.C. Sept. 5, 2012).
Finally, “[p]rivate entities are not legally capable of violating a person's federal constitutional rights ....” See Nzongola v. Crisis Ministries, C/A No. 2:06-01807 SB, 2006 WL 3759815, at *3 (D.S.C. Dec. 18, 2006); Wilcox v. Lyons, 970 F.3d 452, 457 (4th Cir. 2020) (“Public employees enjoy the protection of antidiscrimination statutes such as Title VII as well as the protection of the Constitution ....”) (emphasis added)); Huddleston v. Wells Fargo Bank, N.A., C/A No. 0:23-2112-SAL-PJG, 2023 WL 8183334, at *1, 3 (D.S.C. Nov. 27, 2023) (dismissing the plaintiff's Equal Protection Clause claim because the “[p]laintiff fail[ed] to allege he [was] a public employee whose employment [was] covered by the Equal Protection Clause”).
To the extent Plaintiff asserts any other cause of action, the undersigned recommends dismissal for failure to state a claim and/or inapplicability to the present suit. For example, Plaintiff makes a single reference to 42 U.S.C. § 6703. [ECF No. 9 at 9]. However, that statute is entitled “Grants supplementing Federal contributions under other Federal laws; Federal Share” and is not applicable here. 42 U.S.C. § 6703.
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to Count Seven.
Given the recommendation above, it is unnecessary to address Defendant's additional argument for dismissal, that Plaintiff's amended complaint should be dismissed for failure to comply with Fed.R.Civ.P. 8. [See ECF No. 27-1 at 8]. However, the court notes Defendant's argument that the amended complaint should be dismissed because Plaintiff failed to respond to any of Defendant's arguments in his response to the motion to dismiss and, therefore, Plaintiff has conceded those arguments. [See ECF No. 33 at 2]. As held by this court, when a plaintiff fails to respond to an argument raised by a defendant in a motion to dismiss, “the Court can only assume that Plaintiff concedes the argument.” Campbell v. Rite Aid Corp., C/A No. 7:13-02638-BHH, 2014 WL 3868008, at *2 (D.S.C. Aug. 5, 2014) (dismissing two causes of action because the plaintiff failed to respond to the defendant's arguments in a motion to dismiss concerning those two causes of action).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion to dismiss with prejudice. [ECF No. 27].
Plaintiff has been previously notified of deficiencies in his complaint, has been given an opportunity to amend his complaint, and has availed himself of that opportunity. When a district court dismisses claims pursuant to 28 U.S.C. § 1915, and “the district court has already afforded [the plaintiff] an opportunity to amend,” the United States Court of Appeals for the Fourth Circuit has found that “the district court has the discretion to afford [the plaintiff] another opportunity to amend[,] or [it] can ‘dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.'” Smith v. Forrester, C/A No. 4:18-3317-HMH-TER, 2019 WL 1027932, at *2 (D.S.C. Feb. 6, 2019), report and recommendation adopted, C/A No. 4:18-3317-HMH, 2019 WL 1022809 (D.S.C. Mar. 4, 2019) (citing Workman v. Morrison Healthcare, 724 Fed.Appx. 280 (4th Cir. 2018); Knox v. Plowden, 724 Fed.Appx. 263 (4th Cir. 2018); Mitchell v. Unknown, 730 Fed.Appx. 171 (4th Cir. 2018); see also Gooden v. U.S. Navy/U.S. Marine Corps, 791 Fed.Appx. 411, 411 (4th Cir. 2020) (affirming the district court's dismissal of a pro se action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)).
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).