Opinion
C/A 5:24-4071-SAL-SVH
11-19-2024
LaTonya K. White, Plaintiff, v. Orangeburg High School for Health Professionals; Derwin Farr, Principal/Exec. Dir., in his Official Capacity; and Shanna White, in her Official Capacity, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this employment discrimination case, an employee sues her former employer and associated employees, alleging that during her employment, she was subjected to race-based discrimination and retaliation and that her former employer breached her contract. Defendants move for dismissal.
LaTonya K. White (“Plaintiff”) asserts in her second amended complaint against Orangeburg High School for Health Professionals (“Orangeburg High”), Derwin Farr (“Farr”), and Shanna White (“White”) (collectively, “Defendants”) claims for retaliation and hostile work environment pursuant to 42 U.S.C. § 1981 and state law claims for breach of contract and breach of contract accompanied by a fraudulent act. [ECF No. 16].
This matter comes before the court on Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). [ECF No. 18]. The motion having been briefed [see ECF Nos. 19, 21], it 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 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 in part and deny in part Defendants' motion, dismissing Plaintiff's breach of contract claims.
I. Factual and Procedural Background
Plaintiff is a 47-year-old black woman who began working for Orangeburg High in 2020. [ECF No. 16 ¶ 6]. Plaintiff held the position of a fulltime health science teacher in 2021, was promoted to department head of health science, and additionally held several other positions during the relevant period that included various and extensive responsibilities. Id.
Plaintiff alleges she never received any form of disciplinary action until White became her supervisor. Id. ¶ 12. Plaintiff also alleges she did not have a written contract with Orangeburg High, but instead had an oral contract with Farr that Plaintiff accepted due to staffing needs. Id. ¶ 14.
Plaintiff alleges that on June 2, 2023, while conversing with a white coworker, White walked up to Plaintiff and her coworker and “abruptly uttered the word ‘niggers' for no apparent reason,” even though “[n]o one else was near them” and White did not appear to be conversing on her cell phone. Id. ¶ 15. Plaintiff repeatedly reported the incident to Farr on the same day and on June 5, 2023, but received no response. Id. ¶¶ 16-17.
Shortly after Plaintiff's second report concerning the incident, White began assigning Plaintiff extra work in addition to her original and existing duties that were “well beyond her scope of employment which was a form of retaliation against Plaintiff for making the said report.” Id. ¶ 18. No other employee similarly-situated to Plaintiff received these types of assignments as extra work without compensation, and Plaintiff had to use her free time to complete these extra assignments, as she was a part-time employee during the relevant period. Id. ¶¶ 19-20.
When Plaintiff was unable to complete all the extra assignments, White disciplined her, issuing her a write-up for “‘insubordination' for failing to complete the assigned extra assignments.” Id. ¶ 22. Because of her relationship with White, Plaintiff requested reassignment and informed Farr of her request. Id. ¶ 23. Farr offered to relocate Plaintiff to another school, but Plaintiff was never relocated, and Farr never followed up or discussed the relocation with Plaintiff after the initial offer. Id.
Plaintiff alleges that due to the stress and anxiety at work, she began having gastric disturbances and was later treated by a physician. Id. ¶ 25.
On March 5, 2024, Plaintiff became ill and informed a coworker she would not be at work due to her illness. Id. ¶ 26. On the next morning, Plaintiff received an email sent by White the night before at 8:59 p.m., indicating there were some issues with the academic performance of some of Plaintiff's students. Id. ¶ 27. White “demanded that Plaintiff have something in place to address the deficiencies by or before 6 p.m. that business day.” Id.
Plaintiff informed Farr she could not go to work and attempted to have Farr address the issue in White's email. Id. ¶ 28. Also, Plaintiff carefully reviewed her records and procedures that were already in place and “realized the students at issue with Defendant White had already been addressed and placed on remediation by Plaintiff for failing to maintain a 60% proficiency level or above.” Id. ¶ 29.
Plaintiff alleges that “[d]ue to Defendant White's continuous harassment and ongoing/pervasive hostility in Plaintiff's work environment, Plaintiff was forced to resign from her position for the wellbeing of her health,” and, subsequently, “Plaintiff has suffered irreparable harm to her livelihood, employment, and mental health due to unforeseen emotional distress.” Id. ¶¶ 30-31.
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 a 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. Section 1981 Retaliation Claim
Under Section 1981, “[a]ll persons within the jurisdiction of the United States shall have the same right in every State . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The statute also guarantees equal treatment in “the employment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
Courts apply the same elements to a 1981 claim as under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., which prohibits an employer from retaliating against an employee because the employee has “opposed any practice made an unlawful employment practice” under Title VII or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. See 42 U.S.C. § 2000e-3(a); see also Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (“A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements [as a Title VII claim].”).
To make a prima facie claim of retaliation, a plaintiff must show: (1) that he engaged in protected activity, (2) that the employer took a materially adverse action against him, 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).
Plaintiff argues that her retaliation claim is “based on the unjustifiable amount of work Plaintiff was forced to do [by White] shortly after Plaintiff engaged in protected activity on her job,” complaining about White's comment to Plaintiff and her coworker on June 2, 2023. [ECF No. 19 at 8]. Defendants argue that Plaintiff has failed to allege a materially-adverse action where she has not sufficiently alleged that she was constructively discharged. [ECF No. 18-1 at 3 (citing Rankin v. Greater Media, Inc., 28 F.Supp.2d 331, 340 (4th Cir. 1997) (holding to maintain a claim for constructive discharge, “a plaintiff must show that his or her employer deliberately made an employee's working conditions intolerable and thereby forced him to quit his job.”))].
Plaintiff argues that she need not plead constructive discharge to maintain a retaliation claim. The undersigned agrees. To maintain her retaliation claim, Plaintiff must plead an adverse action was taken against her. Not every personnel decision constitutes an adverse employment action for purposes of a discrimination claim. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 570 (D.S.C. 2013); see also Thorn v. Sebelius, 766 F.Supp.2d 585, 599 (D. Md. 2011), aff'd, 465 Fed.Appx. 274 (4th Cir. 2012) (“[N]ot everything that makes an employee unhappy is actionable adverse action.”). Rather, an adverse employment action is explicitly limited to those actions that affect employment or alter the conditions of the workplace. Burlington N., 548 U.S. at 62. Ultimate employment actions such as “discharge, demotion, decrease in pay or benefits, loss of job, title or supervisory responsibility, or reduced opportunities for promotion” are typically required to show an adverse action. Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999) (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (en banc)), abrogated on other grounds by Burlington N., 548 U.S. 53.
Here, Plaintiff's allegation that she received a significant amount of work from White in addition to her standard work that was not given to other similarly-situated employees following her complaints about White is sufficient at this stage of the case. See, e.g., Rosell v. BAH Shoney's Corp., C/A No. 2:19-1479-DCN-MGB, 2019 WL 13269929, at *6 (D.S.C. Aug. 29, 2019) (“Although discovery will provide greater insight into the merits of this allegation, the undersigned finds that extra work duties may amount to an adverse action depending on the weight of the additional tasks and, thus, Plaintiff's allegation is sufficient to show an adverse action under Rule 8's pleading standard.”), report and recommendation adopted, C/A No. 2:19-1479-DCN-MGB, 2019 WL 13269930 (D.S.C. Sept. 23, 2019); Anusie-Howard v. Todd, No. CIV. WDQ-12-199, 2015 WL 857360, at *5 (D. Md. Feb. 26, 2015), aff'd, 615 Fed.Appx. 119 (4th Cir. 2015) (explaining that an expectation that the employee “complete double the amount of workload in half the time” may constitute an adverse action); see also Dickinson v. Univ. of N. Carolina, 91 F.Supp.3d 755, 769 (M.D. N.C. 2015) (noting that, at the early stages of litigation, extra work assignments may be sufficient to show adverse action and survive a 12(b)(6) motion).
Accordingly, the undersigned recommends the district judge deny Defendants' motion to dismiss Plaintiff's Section 1981 retaliation claim.
2. Section 1981 Hostile Work Environment Claim
To state a claim for a Section 1981 hostile work environment claim, Plaintiff must allege conduct was (1) unwelcome; (2) based on her race and/or sex; (3) sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) imputable to her employer. Pryor v. United Air Lines, Inc., 791 F.3d 488, 495-96 (4th Cir. 2015); Boyer-Liberto, 786 F.3d at 277 (“The same [Title VII] test applies to a hostile work environment claim asserted under 42 U.S.C. § 1981.”).
As the Supreme Court has held, a hostile work environment exists when an employee's “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted).
Defendants argue that Plaintiff has failed to state a Section 1981 hostile work environment claim as follows: “In sum, Plaintiff's only contention in support of her hostile work environment claim is her bare allegation regarding the single incident involving Defendant White on June 2, 2023.” [ECF No. 181 at 7]. Plaintiff disagrees, noting White's alleged retaliation in assigning her more work and writing up Plaintiff thereafter for insubordination, and arguing as follows:
Taken in the totality of the circumstances based upon Plaintiff's numerous complaints and her request to be relocated to a new school along with Defendant White's offensive and hostile language directed towards Plaintiff, Plaintiff has sufficiently pled enough facts to state a plausible Hostile Work Environment claim.[ECF No. 19 at 5-6].
Plaintiff has alleged she was subjected to unwelcome conduct because of her race that is imputable to her employer. Unwelcomed conduct rises to the level of being severe or pervasive if, inter alia, that conduct created an environment that a reasonable person would find hostile. See E.E.O.C. v. Sunbelt Rentals, 521 F.3d 306, 315 (4th Cir. 2008). Although no one factor is dispositive, an objective analysis involves a consideration of all circumstances, including “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.
As Defendants correctly argue, the Fourth Circuit has determined that “[s]imple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Sunbelt Rentals, 521 F.3d at 315. Likewise, the Fourth Circuit has also concluded that “complaints premised on nothing more than . . . callous behavior by one's supervisors or a routine difference of opinion and personality” do not necessarily establish the presence of a hostile work environment. Id. at 315-16.
However, an isolated incident of harassment can “amount to [a] discriminatory change[ ] in the terms and conditions of employment” if the incident is “extremely serious.” Id. For instance, the Fourth Circuit has found that the use of racial slurs such as “porch monkey” and “nigger” constitute such isolated, serious comments. Boyer-Liberto, 786 F.3d at 280. As the Fourth 10 Circuit has stated, nothing “more than a single incident of harassment”-if sufficiently serious-is required to establish a “viable hostile work environment case.” Id. at 281.
Additionally, in determining the severity of harassing conduct, the Fourth Circuit has explained that the status of the harasser is significant. Id. at 278. “[A] supervisor's use of [a racial epithet] impacts the work environment far more severely than use by co-equals.” Id. (quoting Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)). This is because “a supervisor's power and authority invests his or her harassing conduct with a particularly threatening character.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998).
Plaintiff has alleged an abusive work environment sufficient to withstand Defendants' motion to dismiss. Accordingly, the undersigned recommends the district judge deny Defendants' motion to dismiss as to Plaintiff's Section 1981 hostile work environment claim.
3. Breach of Contract Claim
Plaintiff's breach of contract claim is premised on her argument that the hostile work environment and retaliation that occurred were in violation of Defendants' oral contract with Plaintiff, employment handbook, workplace conduct policy, and “other contractual policies and procedures of Defendant.” [See ECF No. 16 ¶ 45]. More specifically, Plaintiff alleges:
Plaintiff did not have a written contractual agreement with Orangeburg High School for Health Professionals but instead had an oral contract with Defendant Principal/Executive Director Derwin Farr which she voluntarily accepted due to staffing needs ....
Plaintiff and Defendant entered into a verbal agreement binding them to a valid oral contract. Moreover, Plaintiff relied upon Defendant's assurances to act in conformity with its own policies and procedures regarding conduct in the workplace, retaliation, and other applicable policies and procedures with respect to Plaintiff ....
Defendant and agents of Defendant, unjustifiably failed to perform their contractual duties by knowingly permitting the hostile work environment of Plaintiff, by failing to protect her from the retaliatory actions of its agents, and by not taking action in favor of Plaintiff; despite her multiple complaints, and in violation of her protected status as an employee of Defendant.
All of these actions violate the contractual provisions within Defendant's oral contract with Plaintiff, Defendant's Employment Handbook (contract), Defendant's workplace conduct policy, and other contractual policies and procedures of Defendant. Defendant further breached its contractual policies and procedures, when it failed to protect Plaintiff from the actions of agents acting on behalf of Defendant.Id. ¶¶ 14, 42, 44-45.
South Carolina generally recognizes and upholds at-will employment, but an employer and employee may contractually alter those terms, including through an employee handbook. See Weaver v. John Lucas Tree Expert Co., C/A No. 2:13-1698-PMD, 2013 WL 5587854, at *6 (D.S.C. Oct. 10, 2013); see also Small v. Springs Indus., 357 S.E.2d 452 (S.C. 1987). At a minimum, to prevail on a breach of contract claim 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 Atlantic, Inc., 852 F.Supp. 1279, 1286 (D.S.C. 1994) (citing Fuller v. Eastern Fire & Cas. Ins. Co., 124 S.E.2d 602 (S.C. 1962)).
Here, Plaintiff has failed to identify any specific and mandatory contract terms that were allegedly breached. See, e.g., Grant v. Mount Vernon Mills, Inc., 634 S.E.2d 15, 20 (S.C. Ct. App. 2006) (holding that in an action asserting breach of contract based on a company policy, once an employer voluntarily publishes the policy to its employees, the employer may be held liable for breach of contract if the employee can establish that the policy applies to the employee, sets out procedures binding on the employer, and does not contain a conspicuous and appropriate disclaimer); Battle v. Nikanth, LLC, C/A No. 2:13-543-PMD, 2013 WL 4874976, at *4 (D.S.C. Sept. 11, 2013) (“Plaintiff has failed to allege or cite to any language from the handbook's non-discrimination policy to alter the at-will presumption. Therefore, Plaintiff's mere allegation in her Complaint that the handbook contained anti-discrimination provisions is not, by itself, sufficient to establish that a contract was formed by such language.”) (collecting cases)); King v. Marriott Int'l, Inc., 520 F.Supp.2d 748, 756 (D.S.C. 2007), aff'd, 267 Fed.Appx. 301 (4th Cir. 2008) (“Marriott's promise that ‘there will be no discrimination or recrimination' against an employee who asserts a complaint against the Company does not create an expectation that employment is guaranteed or that a particular process must be complied with before an employee is terminated.”).
Case law Plaintiff cites does not counsel a different result. Plaintiff relies on Hall v. Fam. YMCA of Greater Aug., C/A No. 1:17-00337-JMC, 2017 WL 3158776, at *5 (D.S.C. July 25, 2017), where the court noted it may “determine, as a matter of law, that an employee handbook does not amount to an enforceable contract, but only when the statements in the handbook and any disclaimer, taken together, establish beyond doubt that the handbook does not create contractual obligations.” However, in Hall, the plaintiff made key allegations not found here, including that a contractual term “applied to Plaintiff and contained, in mandatory language, termination procedures that were binding on Defendant.” Id.
Plaintiff argues in briefing without supporting citations that “White[‘s] oral contract made mandatory promises to her that she would not be retaliated against, nor would she be subjected to a hostile work environment based on standard policies and procedures of Defendants' Handbook.” [ECF No. 19 at 4]. The court does not discern this allegation in Plaintiff's second amended complaint. Even if Plaintiff made such an allegation, though, she still has not alleged White's oral contract addressed the duration of the employment relationship or the right of termination or both.
This court has addressed this issue previously. See Dickerson v. NHC Healthcare-Charleston, LLC, C/A No. 2:21-2170-DCN-MGB, 2021 WL 11427094, at *10 (D.S.C. Sept. 13, 2021) (finding that, unlike in Hall, “[c]ritically, Plaintiff has failed to allege that any of the provisions in the employee handbook ‘limited the duration of the [employment] relationship or the right of termination or both.'”), report and recommendation adopted, C/A No. 2:21-2170-DCN-MGB, 2021 WL 11427108 (D.S.C. Oct. 4, 2021); Smith v. Palmetto Denture Care, P.A., C/A No. 7:17-1043-AMQ-KFM, 2018 WL 3611368, at *3-*4 (D.S.C. July 27, 2018) (noting that in Hall, “the policies in the [defendant's] handbook prevented Defendant from terminating employees without first seeking approval of the Policy Council” and “[u]nlike the allegations in Hall, Plaintiff has not asserted specific factual allegations regarding the terms in the Employee Handbook”); see also id. *3 (“Applying South Carolina law, courts in this District have previously held that typical anti-discrimination and anti-retaliation polices found in most employee handbooks are insufficient to form a contract of employment necessary to overcome the at-will presumption.”); Frasier v. Verizon Wireless, C/A No. 8:08-356-HMH, 2008 WL 724037, at *2 (D.S.C. Mar. 17, 2008) (dismissing claim that the defendant violated the terms of its code of conduct and finding that an employer's promises that “everyone should feel comfortable to speak his or her mind” and that the employer “prohibits retaliation against employees who, in good faith, submit or participate in the investigation of any complaints . . . do not create an expectation that employment is guaranteed or that a particular process must be complied with before an employee is terminated.”); Brailsford v. Fresenius Med. Ctr. CNA Kidney Centers LLC, C/A No. 2:15-04012-DCN, 2017 WL 1214337, at *7 (D.S.C. Apr. 3, 2017) (dismissing breach of contract claim because plaintiff's general and conclusory allegations were not sufficient to establish the existence of an employment contract; “The fact that an employer is obligated to protect employees from harassment or investigate workplace incidents has little to do with the employer's obligation to maintain the employment relationship.”); Nicholson v. Sci. Applications Int'l Corp., C/A No. 2:12-2779, 2012 WL 6568399, at *2 (D.S.C. Nov. 27, 2012) (“Plaintiff has only alleged in very general and conclusory terms that she ‘entered into a contract' with the Defendant, executed various [unspecified] documents which constituted a contract of employment, and that the Defendant had an Employee Handbook which used ‘mandatory language creating a contractual agreement.'”); Hessenthaler v. Tri-Cnty. Sister Help, Inc., 616 S.E.2d 694, 698 (S.C. 2005) (dismissing claim for breach of anti-retaliation policy and finding that “[u]nlike a mandatory, progressive discipline procedure, a general policy statement of nondiscrimination does not create an expectation that employment is guaranteed for any specific duration or that a particular process must be followed before an employee may be fired.”).
Plaintiff has failed to state a claim for breach of contract, and the undersigned recommends the district judge dismiss this claim.
For the same reasons, the undersigned recommends dismissal of Plaintiff's. breach of contract accompanied by a fraudulent act claim. See, e.g., Smith, 2018 WL 3611368, at *5 (“A breach of contract is an essential element of a claim for breach of contract with fraudulent intent. The Court has already addressed Plaintiff's arguments regarding the existence of a contract and found that Plaintiff has failed to state a claim. Therefore, this defect necessarily is fatal to Plaintiff's breach of contract with fraudulent intent claim.”). Given these recommendations, the court need not address Defendants' additional arguments in support of dismissing Plaintiff's breach of contract claims.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant in part and deny in part Defendants' motion to dismiss, dismissing Plaintiff's breach of contract claims. [ECF No. 18].
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).