PATRICK MICHAEL DUFFY, District Judge.
This matter is before the court upon the magistrate judge's recommendation that defendant's motion to dismiss be granted. The record includes the report and recommendation of the United States Magistrate Judge made in accordance with this Court's Order of Reference and 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C.
The Court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). No objections have been filed to the magistrate judge's report.
A review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. For the reasons articulated by the magistrate judge, it is
BRISTOW MARCHANT, United States Magistrate Judge.
This action has been filed by the Plaintiff asserting civil rights claims against the Defendant Delfin Group USA, LLC. This case is one of nine (9) separate cases filed against this same Defendant, all of which have been assigned to the undersigned United States Magistrate Judge.
The Defendant has filed a motion to dismiss Plaintiff's Amended Complaint on the grounds that Plaintiff has failed to set forth sufficient factual matter to state any plausible claim for relief. Plaintiff has filed a memorandum in opposition to the Defendant's motion, to which the Defendant has filed a reply. Defendant's motion is now before the Court for disposition.
Plaintiff, a former employee of the Defendant, alleges that he is of Armenian nationality, and asserts federal claims in his Amended Complaint pursuant to Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, as well as a state law contract claim. Plaintiff
Plaintiff further alleges that the handbook has "mandatory language" setting forth various work rules and prohibitions, and quotes language from the handbook setting forth rules with regard to clothing, absences, solicitations, doctor visits, comp time, use of company property and equipment, and use of company software and computer equipment. Finally, Plaintiff quotes language from the handbook which provides that the Defendant "will not tolerate retaliation against any employee for making a complaint" regarding prohibited conduct. Plaintiff alleges that the "contract indicated he would be paid for working", and that he "performed his contractual obligations and despite the fact he was discriminated against".
Plaintiff also alleges that John Gordon is the Defendant's President and "alter-ego" of the Defendant, and that during his period of employment Gordon "demeaned" him "with a number of racial comments", which Plaintiff alleges were "severe, pervasive and happened almost daily". Plaintiff further alleges that Gordon demonstrated a pattern of discriminatory treatment toward Armenians "by making disparaging remarks, reassigning Armenians to menial tasks, and laying them off in disproportionate numbers". Plaintiff alleges he complained to Human Resources about Gordon's racial comments, following which Gordon not only continued his racial comments towards the Plaintiff and other Armenians, but "made a pointed effort to continue his racial comments and began having the Plaintiff's supervisors issue him pretextural write-ups". Plaintiff further alleges that Gordon tried to have him sign a letter stating that he would not like a raise, but that Plaintiff refused to sign the letter and complained to the Defendant's manager (someone named Marcus) about Gordon's discriminatory conduct. Plaintiff alleges that during this period of time Gordon was also making racial comments to others regarding Armenians, "set in place motions to have Armenians terminated", and that due to Plaintiff's complaints of discrimination he was retaliated against and was "constantly subjected to poor treatment, which created a hostile work environment". Plaintiff alleges that he was discriminated against on the basis of his color, race and national origin (Armenian), and in retaliation for his reporting of discrimination, with the Defendant ultimately wrongfully terminating him on or about December 26, 2012.
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Plaintiff seeks monetary damages, to include reinstatement of benefits and front pay. See generally, Amended Complaint.
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 the Plaintiff has failed to set forth sufficient factual matters in the Complaint to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the complaint alleges sufficient facts which, if true, would permit a reasonable fact finder to find defendants liable." Vogt v. Greenmarine Holding, LLC, 318 F.Supp.2d 136, 144 (S.D.N.Y. 2004). For the reasons set forth hereinbelow, the Defendant's motion should be
Plaintiff has alleged in his Amended Complaint that he is a member of a protected class (Armenian by race and nationality), that he was qualified for his job and performing his job duties well, and that he was subjected to an adverse employment action when he was terminated. With respect to the fourth prong of his prima facie case; i.e., whether Plaintiff has alleged factual allegations sufficient to give rise to a plausible claim that
Plaintiff only alleges in a general and conclusory manner that Gordon had a "pattern of discriminatory treatment towards Armenians", and made a "number of [demeaning] racial comments" towards the Plaintiff. No specifics are provided, and these allegations, standing alone, are quintessential conclusory allegations lacking any factual support. House v. New Castle County, 824 F.Supp. 477, 485 (D.Del.1993) [Conclusory allegations insufficient to maintain claim]; Harper v. United States, 423 F.Supp. 192, 196 (D.S.C.1976) ["[W]here the claims in a complaint are insufficiently supported by factual allegations, these claims may be properly dismissed by summary dismissal"]; Ashcroft, 556 U.S. at 681, 129 S.Ct. 1937 [Allegations that are no more than conclusions are not entitled to the assumption of truth]. Further, Plaintiff's bare allegation that he was "wrongfully" terminated, without any factual allegations tying this event to his race and/or nationality, is simply not sufficient to state a claim. Carpenter v. County School Board, 107 Fed.Appx. 351, 351-352 (4th Cir.2004) [Claim subject to dismissal where Plaintiff does "nothing more than state that he was in a protected class and that he suffered adverse employment decision"]; Johnson v. Holder, No. 11-2650, 2012 WL 4587355 at *1 (D.S.C. Sept. 28, 2012) ["A formulaic recitation of the elements of a cause of action will not do"] quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), adopted by, 2013 WL 314753 (D.S.C. Jan. 28, 2013); Griffith v. State Farm Fire & Casualty Co., No. 12-239, 2012 WL 2048200, at *1 (D.S.C. June 5, 2012) ["An unadorned, the—defendant—unlawfully—harmed me accusation" is not sufficient to state a claim for relief].
Therefore, the Defendant is entitled to dismissal of Plaintiff's disparate treatment claim set forth in his First and Second Causes of Action. Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir.2002) [Plaintiff has burden of alleging facts sufficient to state all the elements of a claim]; Harper, 423 F.Supp. at 196["[W]here the claims in a complaint are insufficiently supported by factual allegations, these
Defendant argues that Plaintiff's retaliation claim is "vague, ambiguous, [and] confusing." However, after considering the arguments of counsel, accepting the allegations and the pleading is true, and drawing all reasonable factual inferences from those allegations in favor of the Plaintiff, the undersigned concludes that, at least at this point in the proceedings, Plaintiff's retaliation claim should be allowed to proceed. See Austen, 709 F.Supp.2d at 172 [Iqbal's plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]"]. Plaintiff alleges in his Amended Complaint that he complained directly to Human Resources about the way Gordon spoke to the him, as well as to the "Defendant's Manager" (whose name was Marcus). Cf. Rodas v. Town of Farmington, 918 F.Supp.2d 183, 189 (W.D.N.Y.2013) ["`Protected activity' includes opposing employment practices that are prohibited under Title VII (such as discrimination based on race, color, religion, sex, or national origin), or making a charge of discrimination, or participating in any investigation, proceeding, or hearing arising under Title VII."]; Bowman v. Holopack Intern. Corp., No. 06-1648, 2007 WL 4481130 at *14 (D.S.C. Dec. 19, 2007) ["[T]he opposition clause encompasses informal protests, such as voicing complaints to superiors or protests using an employer's grievance procedures."]. Plaintiff alleges that after he engaged in this protected conduct, Gordon not only continued making "racial comments" towards the Plaintiff, but made a "pointed effort" to do so; began having the Plaintiff's supervisors issue him pretextural write-ups even though Plaintiff was performing his job well and was "efficient and effective in his work"; and that Gordon tried to have Plaintiff sign a paper stating that he wouldn't like a raise, which Plaintiff refused to sign; all of which ultimately resulted in his "wrongful" termination by the Defendant on or about December 26, 2012. Cf. Awad v. City of New York, No. 13-5753, 2014 WL 1814114 at *3 (E.D.N.Y. May 7, 2014); but cf. Nichols v. Truscott, 424 F.Supp.2d 124, 137 (D.D.C.2006).
Liberally construed, and drawing all reasonable factual inferences in favor of the Plaintiff, these allegations are sufficient
Therefore, the Defendant is not entitled to dismissal of Plaintiff's retaliation claim as set forth in his First and Second Causes of Action at this time. Wolman v. Tose, 467 F.2d 29, 33, n. 5 (4th Cir.1972) ["Under the liberal rules of federal pleading, a complaint should survive a motion to dismiss if it sets out facts sufficient for the Court to infer that all of the required elements of the cause of action are present."].
Defendant argues that the allegations of Plaintiff's Amended Complaint fail to meet the standards for a hostile work environment claim because Plaintiff only asserts "some unspecified and vague comments by Delfin's President were `severe and pervasive'", thereby allegedly creating a hostile work environment. Defendant contends that these allegations are mere "legal conclusions and not entitled to the assumption of truth". Defendant's Brief, p. 9, n. 5. The undersigned agrees. Plaintiff has failed to set forth any factual allegations (as opposed to conclusory allegations) sufficient to give rise to a plausible claim that he was subjected to harassment severe and pervasive enough to effect a term, condition,
While Plaintiff does set forth a specific factual allegation that Gordon attempted to have him sign a letter stating that he would not like a raise, that one time event is not sufficient to establish a hostile work environment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 768, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.1986) ["To establish a hostile atmosphere,.... Plaintiffs must prove more than a few isolated incidents of [inappropriate conduct."]] (Thomas, dissenting)). With respect to Plaintiff's allegation that Gordon "began having the Plaintiff's supervisors issue him pretextural write-ups", in addition to being general and conclusory, a plain reading of this allegation from the Complaint is that Gordon subjected Plaintiff to this treatment out of retaliation for Plaintiff having complained of allegedly discriminatory conduct. That of course is a separate claim, already discussed herein, supra. See Bozeman v. Per-Se Technologies, Inc., 456 F.Supp.2d 1282, 1344 n. 149 (N.D.Ga.2006) ["A hostile work environment claim is a separate and distinct cause of action under Title VII, and requires a different analytical approach than a traditional retaliation claim"].
In any event, even if Gordon's conduct as set forth hereinabove was in retaliation for protected conduct (instead of based on Plaintiff's race and/or nationality),
Finally, although Plaintiff also alleges that he was terminated, that discrete act does not save his hostile work environment claim where he has otherwise failed to allege sufficiently severe and pervasive conduct to give rise to a plausible claim for relief under the applicable standards for a hostile work environment claim. Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C.Cir.2011) ["[A] Plaintiff may not combine discrete acts to form a hostile work environment claim without meeting the required hostile work environment standard"]; Kelly v. Dun & Bradstreet, Inc., 557 Fed.Appx. 896, 900 (11th Cir.2014) ["[D]iscrete acts, such as termination ..., cannot alone form the basis of a hostile work environment claim"]; Wade v. District of Columbia, 780 F.Supp.2d 1, 19 (D.D.C.2011) [rejecting plaintiff's effort to transform amalgamation of disparate treatment claims into cause of action for hostile work environment for lack of connection in pervasive pattern of severe harassment] (citing Lester v. Natsios, 290 F.Supp.2d 11, 33 (D.D.C.2003) ["Discrete acts constituting discrimination or retaliation claims ... are different in kind from a hostile work environment claim that must be based on severe and pervasive discriminatory intimidation or insult.")].
In sum, while the undersigned has concluded that Plaintiff's allegations are sufficient, at least at this stage of the proceedings, to state a plausible claim for retaliation; see discussion, supra; they do not meet the requirements to establish the third prong of his hostile work environment claim. Harper, 423 F.Supp. at 196["[W]here the claims in a complaint are insufficiently supported by factual allegations, these claims may be properly dismissed by summary dismissal"]; Iqbal, 129 S.Ct. at 1949 [Claim subject to dismissal where Plaintiff fails to set forth sufficient factual matters to state a plausible claim for relief "on its face"];
The necessary elements of a contract are an offer, acceptance, and valuable consideration. Roberts v. Gaskins, 327 S.C. 478, 486 S.E.2d 771, 773 (1997), citing Carolina Amusement Co., Inc. v. Connecticut Nat'l Life Ins., Co., 313 S.C. 215, 437 S.E.2d 122 (1993). With respect to employment, however, there is a presumption in South Carolina that employees are at-will, and therefore in order to survive a Rule 12 Motion to Dismiss on a claim for breach of a contract of employment, a Plaintiff must "plead sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship ....". Perrine v. G4S Solutions (USA), Inc., No. 11-1210, 2011 WL 3563110, at *2 (D.S.C. Aug. 9, 2011)["[T]here is a presumption in South Carolina that employees are at-will, and in order to survive a Rule 12 motion to dismiss on a claim for breach of a contract of employment, a Plaintiff must `plead sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship ....'"], quoting Amason v. PK Management, LLC, No. 10-1752, 2011 WL 1100169, at *6 (D.S.C. Mar. 23, 2011); see also Prescott v. Farmer's Tel. Co-op., Inc., 335 S.C. 330, 516 S.E.2d 923, 927, n. 8 (1999) [In South Carolina, "there is a presumption of at-will employment"]. After careful review of the allegations of the Complaint, the undersigned concludes that Plaintiff has failed to plead sufficient factual allegations to state a plausible claim that he had an employment contract with the Defendant.
Plaintiff does not assert that he had an actual employment contract with the Defendant. Rather, he contends that the Defendant's employee handbook contained sufficient "mandatory" language to make its terms an enforceable "contract". Cf. Grant v. Mount Vernon Mills, Inc., 370 S.C. 138, 634 S.E.2d 15, 20 (2006) [Employer can alter an employee's at-will status through mandatory language in a handbook]. Plaintiff alleges that the Defendant's employee handbook "uses mandatory language creating a contractual agreement", and did not contain a disclaimer that met the requirements of S.C.Code Ann. § 41-1-10.
These allegations do not set forth a plausible claim that Plaintiff had a contract of employment with the Defendant. First, Plaintiff himself alleges in his Amended Complaint that he was employed by the Defendant for an indefinite term, and an employee employed for an indefinite period of time, rather than for a stated period of time, is presumptively considered an employee at will. Cape v. Greenville School Dist., 365 S.C. 316, 618 S.E.2d 881, 883 (2005). Further, the employee handbook not only contains a specific disclaimer advising employees that the handbook is not intended to serve as a contract, create enforceable rights on the part of employees, or alter employees' at-will status, but every page of the handbook specifically states at the bottom of each page: "THIS IS NOT A CONTRACT FOR EMPLOYMENT". Plaintiff also signed an acknowledgment of the disclaimer. See Court Docket No. 7-3, p. 30.
While Plaintiff alleges (and a review of the handbook itself confirms) that the disclaimer was [arguably] not in compliance with § 41-1-10 because it was not on the first page of the handbook (it followed a "welcome" page and the table of contents), even assuming the allegation of the Complaint that the handbook did not contain a disclaimer meeting the requirements of this statute to be true for purposes of Defendant's motion, this fact does not establish a plausible claim that a contract of employment existed. While a clear compliance with the terms of the state disclosure statute would obviously be important, it is not required (and certainly does not establish the existence of a contract) if the employee handbook at issue otherwise does not contain mandatory language sufficient to alter the presumption in South Carolina of an at-will employee relationship. Cf. Grant, 634 S.E.2d at 20;
Plaintiff has failed to allege in his complaint language from the employee handbook sufficient to establish a plausible claim that his at-will employment relationship was altered by any such language. See Dickson, 309 F.3d at 213 [Plaintiff has burden of alleging facts sufficient to state all the elements of a claim]. Rather, Plaintiff simply alleges that the employee handbook "uses mandatory language" and then cites selected passages from the handbook relating to certain workplace rules and the Defendant's anti-discrimination policy. Indeed, Plaintiff's allegation is that the Defendant breached his contract of employment by breaching the allegedly "mandatory" language of its anti-discrimination policy by discriminating against him due to his nationality, race and color. However, the language cited by the Plaintiff in his Amended Complaint is typical of antidiscrimination language found in most employee handbooks, and has routinely been held by courts not to, by itself, constitute a contract. Cf. Ford v. Musashi S.C., Inc., No. 07-3734, 2008 WL 4414385 (D.S.C. Sept. 23, 2008), adopting in part and denying in part, 2008 WL 4414497, at *3 (D.S.C. July 11, 2008) ["[U]nder South Carolina law where an employee handbook provides a general policy statement of non-discrimination such a `provision does not constitute a promise altering the at-will employment relationship ...'"]; Fyall v. ATC/Ancom of South Carolina, No. 04-23086, 2005 WL 2656962, at *4 (D.S.C. Oct. 18, 2005) [same]; Hessenthaler v. Tri-County Sister Help, Inc., 365 S.C. 101, 616 S.E.2d 694, 698 (2005), citing McKenzie v. Lunds, Inc., 63 F.Supp.2d 986, 1003 (D.Minn.1999) and Cherella v. Phoenix Technologies, Ltd., 32 Mass.App.Ct. 919, 586 N.E.2d 29, 31 (1992); King v. Marriott Int'l, Inc., 520 F.Supp.2d 748, 756 (D.S.C. 2007) [Finding that the Defendant's promise that "there will be no discrimination or recrimination against an employee who asserts a complaint against [the defendant] does not create an expectation that employment is guaranteed or that a particular process must be complied with before an employee is terminated"] (internal quotations omitted); Frasier v. Verizon Wireless, C.A. No. 08-356, 2008 WL 724037, at *2 (D.S.C. Mar. 17, 2008).
Rather, to establish that he had a "contract" of employment with the Defendant, Plaintiff needs to show that he and the Defendant entered into mandatory and binding terms for his employment such as a definite term of employment, buyout provisions, right to severance pay, and other such indices of a contract of employment. Cf. Wadford v. Hartford Fire Ins. Co., No. 87-2872, 1988 WL 492127 at *5 (D.S.C. 1988) ["A review of the relevant authorities... reveals that a policy or representation must limit the duration of employment or the employer's right to terminate employment in order to alter at-will status. Other terms and conditions of employment, including pay, benefits, job duties, or location of performance may be changed prospectively by either party without violating an employment contract with an indefinite term."]. The undersigned has both reviewed the handbook language cited by Plaintiff in his Amended Complaint as well as undertaken an independent review of the employee handbook itself (provided to the Court as an exhibit), and does not find any language sufficient to establish a plausible claim that Plaintiff had a "contract" of employment by virtue of this handbook. Cf. Small v. Springs Industries, Inc., 292 S.C. 481, 357 S.E.2d 452, 455 (1987) [only policy drafted in sufficiently mandatory terms may serve to alter at-will employment status]; Grant, 634 S.E.2d at 21-22; Storms v. Goodyear Tire & Rubber Co.,
Therefore, the Defendant is entitled to dismissal of this cause of action. Amason v. PK Management, LLC, 2011 WL 1100169, at *6 (D.S.C. Mar. 23, 2011); cf. Williams v. Intier Automotive Interiors of America, Inc., No. 09-1144, 2010 WL 5811848 (D.S.C. Nov. 5, 2010); see also Harper, 423 F.Supp. at 196 ["[W]here the claims in a complaint are insufficiently supported by factual allegations, these claims may be properly dismissed by summary dismissal"]; Perrine, 2011 WL 3563110, at *2 [In order to survive a Rule 12 motion to dismiss on a claim for breach of a contract of employment, a Plaintiff must "plead sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship"]; Prescott, 516 S.E.2d at 927, n. 8 [In South Carolina, "there is a presumption of at-will employment"].
Based on the foregoing, it is recommended that the Defendant's motion to dismiss Plaintiff's retaliation claim under Title VII and § 1981 as set forth in his First and Second Causes of Action be
The parties are referred to the Notice Page attached hereto.
Filed Oct. 8, 2014.
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:
Plaintiff also references the South Carolina Human Affairs Law (SCHAL) at various points in his Complaint, which would be a claim under state law. However, as was the case with Plaintiff's references to § 1983 and the "Equal Employment Opportunity Act", Plaintiff never discusses his discrimination claims separately under a SCHAL analysis. While the analytical framework for considering Plaintiff's claims under SCHAL would be the same as that for his Title VII claim; see 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.]; Robinson v. BGM America, Inc., 964 F.Supp.2d 552, 577-78 (D.S.C. 2013); SCHAL does have a different timetable for exhaustion of remedies prior to filing of a lawsuit. See S.C.Code Ann. § 1-13-90(d)(6). Plaintiff's Amended Complaint does not contain any allegations relating to the exhaustion of his administrative remedies under SCHAL, and therefore to the extent Plaintiff is attempting to assert his claims under SCHAL, that statute should also be dismissed as an avenue for relief in the Complaint.
