MARGARET B. SEYMOUR, District Judge.
Plaintiff Luisa Gleaton filed the within action on June 23, 2009 against Defendant Monumental Life Insurance Company alleging sexual harassment and discrimination on the basis of race, color, national origin, and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; violation of 42 U.S.C. § 1981; wrongful termination/violation of public policy; violation of the Family Medical Leave Act ("FMLA"), 26 U.S.C.A. § 2601 et seq.; and violation of the South Carolina Human Affairs Law ("SCHAL"), S.C.Code § 1-13-10 et seq. This case is before the court on Defendant's motion to
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, this matter was referred to United States Magistrate Judge Bristow Marchant for pretrial handling. On November 12, 2009, the Magistrate Judge issued a Report and Recommendation recommending that: 1) Defendant's motion to strike be granted; 2) Plaintiff's state law claim for wrongful termination/violation of public policy be dismissed with prejudice, and 3) the remainder of Defendant's motion to dismiss be denied without prejudice. On November 30, 2009, Defendant filed objections to the Magistrate Judge's Report and Recommendation, arguing that the Magistrate Judge erred in concluding that Plaintiff's FMLA and SCHAL claims should not be dismissed at this time.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The court has considered the pleadings, motion, and memoranda offered by the parties in support of their respective positions. The court concludes that Defendant's motion to strike should be
Plaintiff's complaint alleges that she began working for Defendant in November 2006. Plaintiff avers that she is a Hispanic female and that she was assigned to report to Drew Sasko ("Sasko"), a Caucasian male District Manager. Plaintiff avers that Sasko discriminated against 2 her by making explicit sexual comments about Plaintiff's looks, racial preferences, lifestyle and national origin. Plaintiff further avers that she reported Sasko's conduct and that Sasko subsequently harassed and retaliated against her. Plaintiff also alleges that on October 1, 2007, she was placed on a performance enhancement plan while other non-Hispanic and male employees who had lower performance rates were not put on such a plan. Plaintiff avers that during October 2007 she became seriously ill and sought medical attention, and informed Defendant that she would need to take short term disability and FMLA leave in November 2007. Plaintiff alleges that she was wrongfully discharged on October 26, 2007. Plaintiff would have become eligible for FMLA leave in November 2007.
The Magistrate Judge recommended that all references to the ADEA and EEO
A court should grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) only if it finds that the complaint does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The claims in the complaint must be accepted and construed in the light most favorable to the plaintiff. See Martin Marietta Corp. v. Int'l Telecomms. Satellite Org., 991 F.2d 94, 97 (4th Cir.1992).
The Magistrate Judge recommended that Plaintiff's wrongful termination/violation of public policy claim be dismissed because 1) Plaintiff was not wrongfully discharged because of the violation of any clearly mandated public policy and 2) Plaintiff is limited to her statutory remedies under Title VII and § 1981. Plaintiff does not object to this dismissal. In the absence of objections, this court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir.1983). Nevertheless, the court has carefully reviewed the record and concurs in the Magistrate Judge's conclusion that this claim should be dismissed with prejudice.
Defendant seeks to dismiss Plaintiff's FMLA claim because Plaintiff was ineligible to take a leave of absence both when she requested leave and when she was terminated. The Magistrate Judge recommended that the court decline to dismiss Plaintiff's FMLA claim at this stage of the proceedings because the issue of whether an ineligible employee may declare an intention to take FMLA leave once they become eligible is an issue of first impression in the Fourth Circuit. Defendant argues that the Magistrate Judge erred in this recommendation and that Plaintiff's FMLA claim should be dismissed. Defendant argues that this outcome is required by the Fourth Circuit's ruling in Babcock v. BellSouth Advertising and Publ'g Corp., 348 F.3d 73 (4th Cir.2003). Defendant also argues that giving employees a right to "reserve" FMLA leave before they are eligible would extend the obligations of employers in ways that Congress never intended by preventing employers from taking any adverse action against such an employee before he or she actually takes FMLA leave.
The FMLA entitles eligible employees to 12 workweeks of unpaid leave during any 12-month period for numerous serious health conditions. 29 U.S.C. § 2612(a)(1)(A)-(D); Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721, 724, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). The FMLA defines an "eligible employee" as an employee who has been employed (1) for at least 12 months by the employer, and (2) for at least 1,250 "hours of service" with such employer during the previous 12-month period. Id. at § 2611(2)(A)(i)(ii); see also Babcock, 348 F.3d at 76-77. "The determination whether an employee has been employed by the employer for at least twelve months must be made `as of the date leave commences.'" Babcock, 348 F.3d at 77 (citing 29 C.F.R. § 825.110(d)). "An employee may sue to recover damages or equitable relief when her employer `interfere[s] with, restrain[s], or den[ies] the exercise or attempt to exercise' the rights guaranteed by the statute."
Defendant asserts that Babcock stands for the proposition that employees who are ineligible for leave under FMLA have no FMLA rights prior to their one-year anniversary. Defendant also contends that Babcock holds that employees who are ineligible for FMLA leave cannot establish either interference or retaliation claims when an employer denies the ineligible employee's request for FMLA leave or subsequently takes an adverse action against the employee. The court disagrees.
In Babcock, an employee requested FMLA leave before she was an "eligible employee" for FMLA purposes. Id. at 75. Because the employee was not yet eligible for FMLA leave, the employee took short-term disability leave pursuant to her employer's policies followed by an unexcused absence. Id. at 77. The employee subsequently requested additional unpaid medical leave after becoming eligible for FMLA leave. Id. at 77-78. The Babcock court found that because the employee re-requested leave after twelve months of employment, the employee was an eligible employee for FMLA purposes. Id. at 78. The Babcock court noted that the employer could have disciplined the employee for her un-excused absence, but that because the employer did not terminate the employee's employment, the employee's one-year anniversary triggered FMLA eligibility for the second leave request, preventing the employee's termination. Id. at 78 n. 6. The Babcock court thus affirmed a jury verdict for the employee. Babcock, 348 F.3d at 77.
In the court's view, Babcock is distinguishable because it only addresses an interference claim under 29 U.S.C. § 2615(a)(1), and does not address a retaliation claim under § 2615(a)(2), which is the type of claim before this court. See id. at 76 (citing 29 U.S.C. § 2615(a)(1)); see also Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir.2006) (indicating that interference claims arise under § 2615(a)(1), while retaliation claims arise under § 2615(a)(2)). Thus, contrary to Defendant's assertion, Babcock does not address whether employees making retaliation claims must be eligible for FMLA leave.
Defendant also cites Moore v. Sears Roebuck & Co., No. 3:06cv255, 2007 WL 1950405 (N.D.Fla. June 2, 2007) in support of its argument. The Moore court, discussing Walker v. Elmore County Bd. of Educ., 223 F.Supp.2d 1255, 1257-58 (M.D.Ala.2002), states:
Moore, 2007 WL 1950405 at *6-7. The Moore Court then ruled that the situation before the court was identical to the one in Walker because an ineligible employee requested leave to begin when the employee would still have been ineligible for leave. Id. at 8 ("because the plaintiff was an ineligible employee requesting leave that would begin when she would still have been ineligible, the Eleventh Circuit decision in Walker directly forecloses her retaliation claim."). Moore does not address the issue before this court.
District courts addressing the issue of whether an employer can be held liable for retaliation under FMLA where the employee was not eligible for FMLA leave have not been consistent. Some courts have held that an employee cannot bring a retaliation claim under FMLA unless he or she was eligible for leave at the time it was requested. See Rogers v. Bell Helicopter Textron Inc., No. CA3-99-CV-988-R, 2000 WL 1175647 (N.D.Tex. Aug. 17, 2000) (finding that a FMLA retaliation claim failed because the plaintiff was not entitled to FMLA leave); Wemmitt-Pauk v. Beech Mountain Club, 140 F.Supp.2d 571, 581 (W.D.N.C.2001) (granting summary judgment to an employer on a FMLA retaliation claim because the "Plaintiff never engaged in a `protected activity' under the FMLA; that is, she was not eligible for FMLA leave"); Morehardt v. Spirit Airlines, Inc., 174 F.Supp.2d 1272, 1280 (M.D.Fla.2001) (finding that an employee who was not eligible for FMLA leave could not establish a retaliation claim because the employee did not engage in a protected activity).
However, several courts have come to the opposite conclusion. In Beffert v. Pennsylvania Dep't of Public Welfare, for example, the court concluded that an employee could make a retaliation claim under FMLA when the employee was employed for less than twelve months but requested leave to begin more than one year after employment commenced. 2005 WL 906362, at *3 (E.D.Pa. Apr. 18, 2005). The court reasoned that:
Id. (internal citations omitted). Similarly, in Potts v. Franklin Electric Co., the court found that when an employee, before becoming eligible for leave under FMLA, puts an employer on notice of his or her intent to take FMLA leave after they become eligible, FMLA must be read to allow the employee to make a charge against the employer for an adverse employment action. No. CIV 05-433, 2006 WL 2474964, at *3 (E.D.Okla. Aug. 24, 2006). In making this conclusion, the Potts court noted that 29 U.S.C. § 2615(a), which creates FMLA's interference and retaliation causes of action, "does not say that employees must be `eligible,' or `qualify' for leave, before they may file either an interference, or retaliation claim for requesting leave." Id. The Potts court contrasted § 2615(a) with § 2612, which states that only eligible employees are entitled to FMLA leave. Id. The Potts court further noted that FMLA protects the "attempt" to exercise a right under FMLA in support of the above conclusion. Id.
Two other courts have come to similar conclusions. See Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309, 314 (6th Cir.2001) ("The right to actually take twelve weeks of leave pursuant to the FMLA includes the right to declare an intention to take such leave in the future. See 29 U.S.C. § 2612(e) (requiring an employee to give his employer notice of "foreseeable leave" in order to come under the protection of the statute)."); Reynolds v. Inter-Industry Conference on Auto Collision Repair, 594 F.Supp.2d 925, 928-29 (N.D.Ill.2009) (noting that it would be "illogical" to interpret FMLA's notice requirement in a way that requires employees to disclose requests for leave, which would expose them to retaliation, and then provide no remedy).
In the court's view, the Beffert line of cases is more consistent with the goals of FMLA and provides the more equitable result. The court finds that an employee may bring a retaliation claim under FMLA if the employee was terminated prior to becoming eligible for FMLA leave, but the employee declared an intention to take leave more than one year after employment commenced. The court declines to dismiss Plaintiff's FMLA claim for retaliation.
The Magistrate Judge recommended that Defendant's motion to dismiss Plaintiff's SCHAL claim be denied without prejudice until such time as Plaintiff's federal claim survives a summary judgment motion. Defendant claims that the Magistrate Judge erred in his recommendation because the SCHAL prohibits a plaintiff from pursuing such a claim in the same lawsuit as a federal discrimination claim.
South Carolina Code Section 1-13-90(d)(8) states:
In making his recommendation, the Magistrate Judge noted that there is no case law supporting Defendant's reading of the statute. Moreover, the Magistrate Judge indicated that § 1-13-90(d)(8) could be read to prevent a claimant from pursuing separate cases based on the same claims and seeking the same relief in both state and federal court." Report and Recommendation at 10 (emphasis in original). The Magistrate Judge hypothesized that § 1-13-90(d)(8)'s purpose could be to prevent conflicting verdicts, which is not an issue when federal and state law claims are asserted in one federal action. The Magistrate Judge also noted that there is a possibility that Plaintiff's federal claims could be dismissed for some procedural or other reason that would not apply to Plaintiff's SCHAL claim.
The court agrees with the Magistrate Judge that another interpretation of the statute is plausible. Furthermore, the court agrees with the Magistrate Judge that it is possible that Plaintiff's federal claims could be dismissed for a reason that would not apply to Plaintiff's SCHAL claim because these statutes, while similar, are not identical. See S.C.Code Ann. § 1-13-90 et seq.; cf. 42 U.S.C. § 2000e-5(c); see also Childers v. County of York, South Carolina, No. 06-897, 2008 WL 552879, at *10-11 (D.S.C. Feb. 26, 2008) (indicating that federal discrimination claims have different statutes of limitations from state discrimination claims). Thus, Federal Rule of Civil Procedure 8(d) counsels against dismissing this claim at this early stage in the proceedings. Therefore, the court denies Defendant's motion to dismiss Plaintiff's SCHAL claim without prejudice until such time as Plaintiff's federal claim survives a summary judgment motion.
Based upon the foregoing, the court adopts the Report and Recommendation of the Magistrate Judge in its entirety. Defendant's motion to dismiss and/or strike is granted in part and denied in part. It is hereby ordered that all references to the ADEA and EEO be stricken from the Complaint and that Plaintiff shall file an amended complaint so striking these references within fifteen (15) days of the entry of this order. Plaintiff's claim for wrongful termination/violation of public policy is dismissed with prejudice. Defendant's motion to dismiss Plaintiff's FMLA and SCHAL claims is denied without prejudice. The court recommits the matter to the Magistrate Judge for further pre-trial handling.
BRISTOW MARCHANT, United States Magistrate Judge.
This action has been filed by the Plaintiff pursuant to several federal and state law causes of action. The Defendant has filed a motion to dismiss several of these claims pursuant to Rule 12(b), Fed.R.Civ. P., and has also moved pursuant to Rule 12(f), Fed.R.Civ.P. to strike all claims and/or references in the Complaint to the Age Discrimination in Employment Act (ADEA) and the Equal Employment Opportunity (EEO) Act. Plaintiff consents to the motion to strike, and therefore, consistent with the Defendant's motion, all references to the ADEA and EEO should be ordered stricken from the Complaint as immaterial and/or irrelevant to Plaintiff's claims.
With respect to Defendant's Rule 12(b) motion to dismiss, Plaintiff filed a memorandum in opposition to the motion on August 25, 2009, following which the Defendant
Plaintiff alleges in her Complaint that she worked for the Defendant as an insurance agent from November 2006 to October 2007. Plaintiff alleges that she is a Hispanic female, and that she reported to the District Manager, a Caucasian male. Plaintiff alleges that the District Manager discriminated against her because of her gender and national origin, and that after she reported his conduct the Defendant harassed and retaliated against her. Plaintiff further alleges that during the month of October 2007, she became seriously ill and sought medical attention, and informed the Defendant at that time that she would be required to take short term disability and FMLA leave beginning in November 2007. Plaintiff alleges that she was then wrongfully discharged on October 26, 2007.
The Defendant has moved to dismiss with prejudice Plaintiff's causes of action alleging a state law claim for wrongful termination/violation of public policy, violation of the Family and Medical Leave Act (FMLA) 28 U.S.C. § 2601 et seq., and violation of the South Carolina Human Affairs Law (SCHAL), S.C.Code Ann. § 1-13-10 et seq. When considering a Rule 12 motion to dismiss, the Court is required to "accept the allegations in the [pleading] as true, and draw all reasonable factual inferences in favor of the Plaintiff. [The motion can be granted] only if no relief could be granted under any set of facts that could be proved." Southmark Prime Plus L.P. v. Falzone, 776 F.Supp. 888, 890 (D.Del.1991) (quoting Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3rd Cir.1991)). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) [While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, factual allegations must be enough to raise a right to relief above the speculative level].
In her Fifth Cause of Action, Plaintiff alleges that her wrongful discharge constituted a violation of a clear mandate of public policy of the State of South Carolina. Defendant argues that Plaintiff's wrongful discharge/public policy cause of action should be dismissed because this claim is based on the same allegations which support her claims arising under Title VII the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and other statutes, and also because Plaintiff has failed to allege that the cited conduct constituted a crime and/or that the Defendant required her to commit a crime. After careful review of the arguments presented with respect to this cause of action, the undersigned is constrained to agree with the Defendant that it is entitled to dismissal of this claim.
In Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213 (1985), the South Carolina Supreme Court held that a cause of action in tort exists under South Carolina law where a retaliatory discharge of an at-will employee
Plaintiff has failed to identify any public policy violation with respect to this claim. Rather, Plaintiff argues that it was a violation for the Defendant "to deny the Plaintiff her rights under Civil Rights Act and FMLA." Plaintiff's Brief, pp. 6-7. Even assuming the Defendant did deny Plaintiff her rights under one or both of those statutes, however, that is not the commission of a crime, nor is there any allegation that the Defendant required Plaintiff to violate a public policy. Lawson v. South Carolina Dept. of Corrections, 340 S.C. 346, 532 S.E.2d 259, 260-261 (2000) [Public policy claim arises where "an employer requires an employee to violate the [criminal] law or the reason for the employee's termination was itself a violation of a criminal law"]; Eady v. Veolia Transp. Services, Inc., 609 F.Supp.2d 540, 559 (D.S.C.2009) [Plaintiff failed to show violation of public policy where he claimed that he was terminated for refusing to sign a blank affidavit]; King v. Charleston County School District, 664 F.Supp.2d 571, 584-85 (D.S.C.2009); Love v. Cherokee County Veterans Affairs Office, 2009 WL 2394369, at *3 (D.S.C. Jul. 31, 2009) [Granting Rule 12 motion to dismiss where no inference could be drawn from the facts alleged that the Plaintiff's termination was in violation of a criminal law]; Barron v. Labor Finders of S.C., 384 S.C. 21, 682 S.E.2d 271, 273-274 (S.C.Ct. App.2009) [No wrongful discharge action where employee was not asked to violate the law and his termination did not violate the criminal law]; Washington, 2009 WL 386926 [Dismissing public policy claim where employer purportedly denied employee's request for FMLA leave, which neither violated a criminal law nor required the employee to do so]; Merck v. Advanced Drainage Systems, Inc., 921 F.2d 549, 554 (4th Cir.1990) [The "public policy" exception to the at-will doctrine "is to be very narrowly applied."].
Hence, while Plaintiff alleges she was wrongfully discharged, it was not because of the violation of any clearly mandated "public policy" as defined by the South Carolina Courts, but because of an alleged violation of her personal rights. The public policy exception for the discharge of an at-will employee encompasses only "public rights", not "private" rights, and Plaintiff has therefore failed to set forth a valid claim for wrongful discharge in violation of the public policy of South Carolina. See Weinberger v. MCI Telecommunications, Inc., No. 92-2550, 1994 WL 18081 at *3 (4th Cir. Jan. 25, 1994) ["The public policy exception encompasses only public rights granted by existing law, not private rights."].
In any event, the South Carolina Supreme Court has explicitly held that "[w]hen a statute creates a substantive
Therefore, the Defendant is entitled to dismissal of Plaintiff's Fifth Cause of Action for wrongful discharge.
In her Fourth Cause of Action, Plaintiff alleges that she was entitled to take leave pursuant to the FMLA, and that the Defendant discharged her because she requested leave, which was a violation of her rights under the FMLA. Defendant argues that this claim should be dismissed because, since Plaintiff had not been employed for twelve (12) months when she requested leave or when she was terminated, she was not covered by the FMLA and therefore cannot assert a claim under that statute.
To be eligible for leave under the FMLA, an employee must have been employed "for at least 12 months by [the] employer with respect to whom leave is requested." 29 U.S.C. § 2611(2)(A)(i). It is undisputed that Plaintiff had not worked for the Defendant for twelve months at the time of her termination. Defendant argues that Plaintiff was not therefore an "eligible employee" under the FMLA, and as a result cannot assert a retaliation claim under that Act.
Neither Plaintiff nor the Defendant cites any Fourth Circuit case law on this issue, which is apparently one of first impression in this Circuit.
Plaintiff asserts discrimination claims under both Title VII and SCHAL. Complaint, ¶¶ 7, 24-35, 43. Defendant argues that, since Plaintiff is seeking redress for the Defendant's alleged discriminatory conduct under Title VII and § 1981 in this Federal Court case, she may not simultaneously seek relief under the South Carolina Human Affairs Law because SCHAL specifically prohibits a complainant seeking such dual relief, citing to S.C.Code Ann. § 1-13-90(d)(8), which provides in relevant part:
Plaintiff argues that she should be allowed to proceed with this claim because Rule 8(d) Fed.R.Civ.P. allows for alternative pleading, and that in the event her Title VII and/or § 1981 causes of action do not survive, her state claim could remain which could then be pursued in state court.
Plaintiff's claim under SCHAL is evaluated under the same standards as are used for evaluating her federal claims. Burns v. South Carolina Dept. of Transportation, No. 05-3271, 2006 WL 3791361, *5 (D.S.C. Dec. 22, 2006); see also Orr v. Clyburn, 277 S.C. 536, 290 S.E.2d 804, 806 (1982); Tyndall v. National Education Centers, 31 F.3d 209 (4th Cir.1994); S.C.Code Ann. & 1-13-10 et al. (2003); cf. Cromer v. Greenwood Com'n of Public Works, No. 92-CP-24-392, 1993 WL 328182, *4 (S.C.Com.Pl. Feb. 3, 1993) ["The court notes that its ruling accords with the interpretation of federal employment discrimination laws upon which our state employment discrimination laws are modeled."]. While a literal reading of § 90(d)(8) would seem to support Defendant's position, neither party cites any caselaw interpreting this statute, and it could be argued that the intent of § 1-13-90(d)(8) is to prevent a claimant from pursuing separate cases based on the same claims and seeking the same relief in both state and federal court. This, of course, could lead to possible conflicting verdicts. However, when claims under both the federal and state statutes are asserted in one federal court action, there is no such danger. Further, while the Court is personally aware of many federal cases in which Plaintiffs have asserted claims under both a federal civil rights statute and SCHAL which have been dismissed on other grounds, the Court has been unable to locate any cases granting dismissal of a SCHAL claim on the ground asserted in this case. See generally Taylor v. Cummins, 852 F.Supp. 1279, 1283 n. 2 (D.S.C.1994) [Dismissing both ADEA and SCHAL claims at summary judgment]; Smith v. Prudential Financial Servs., Inc., 739 F.Supp. 1042 (D.S.C.1990) [Dismissing both Title VII and SCHAL claims at summary judgment]; Roberts v. Newberry College, No. 08-3198, 2009 WL 1485038 at **1-2 (D.S.C. May 27, 2009) [Title VII and SCHAL claims both dismissed as untimely]; Burns v. South Carolina Dep't of Transportation, No. 05-3271, 2006 WL 3791361 (D.S.C. Dec. 22, 2006) [Title III and SCHAL claims dismissed]; Simpkins v. Patton, No. 05-2137, 2006 WL 3337425 (D.S.C. Nov. 16, 2006) [Dismissing Title VII and SCHAL claims because they cannot be asserted against individuals]; Simpson v. Greenville Transit Authority, No. 05-1087, 2006 WL 1148167 (D.S.C. Apr. 27, 2006) [Dismissing Title VII and SCHAL claims because defendant not considered plaintiff's employer].
Based on the foregoing, it is recommended that the Defendant's motion to strike be
The remainder of the Defendant's motion to dismiss should be
