Report and Recommendation

MARY GORDON BAKER, Magistrate Judge.

The Plaintiff, through counsel, filed the instant employment action in the Beaufort County Court of Common Pleas on July 27, 2017, and the case was removed by the Defendants on September 5, 2017.1 (Dkt. No. 1.) Now before the court is Defendants Lockheed Martin Corp. and Lee Tincher's Motion to Dismiss ("Motion to Dismiss"). (Dkt. No. 8.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge. For the reasons stated herein, the undersigned recommends that the Motion to Dismiss (Dkt. No. 8) be granted with prejudice as to the Plaintiff's Intentional Infliction of Emotional Distress ("IIED") claim and without prejudice as to the Plaintiff's civil conspiracy and negligent misrepresentation claims.

Alleged Facts2

The Plaintiff was an employee of Defendant Rockwell Collins from October of 2014 through her termination in December of 2015. (¶ 2.) The Plaintiff was employed as a customer support specialist at the Beaufort Pilot Fit Facility ("the Facility"). (¶ 2.) The Plaintiff was one of six individuals that worked at the Facility. (¶ 17.) Of these six individuals, two of the individuals were employed by Defendant Rockwell Collins, including the Plaintiff; two were employed by Defendant RFD Beaufort, Inc. ("RFD"), including Defendant Grealish; and two were employed by Defendant Lockheed, including Defendant Tincher. (¶ 17.) Defendant Tincher was the Facility Manager and was viewed as the supervisor by everyone who worked at the Facility. (¶ 19.)

The Plaintiff was the only female working at the Facility. (¶ 18.) The Plaintiff alleges she began to experience sex discrimination and a hostile work environment starting in late July of 2015 when Defendant Grealish called the Plaintiff a "c—t" while at work. (¶ 22.) Defendant Tincher observed the offensive behavior and did not correct it. (¶ 24.) Instead, Defendant Tincher snickered and walked away. (¶ 24.) In August of 2015, Defendant Grealish took a cookie from the Plaintiff's desk, rubbed it on his crotch, and threw the cookie striking the Plaintiff in the head. (¶ 25.) Defendant Grealish then screamed, "F—k you, you c—t!" and kicked the Plaintiff's trash can across the room. (¶ 25.)

In August of 2015, the Plaintiff complained about Defendant Grealish's behavior to Defendant Tincher, whom she viewed as her supervisor. (¶¶ 28-30.) Defendant Tincher assured the Plaintiff that he would take corrective action. (¶ 31.) Following her complaint to Defendant Tincher, the Plaintiff alleges that she was treated differently at work. (¶ 33.) Defendants Tincher and Grealish would play video games and watch movies in Tincher's office. (¶ 35.) Defendant Grealish would roll his eyes and mock the Plaintiff when she talked. (¶ 36.) Defendant Grealish would tell the Plaintiff he would "see you next Tuesday," which is an acronym for "c—t." (¶ 37.)

During this same time period, Defendant Grealish asked another co-worker to bring a handgun with ammunition to work because Grealish wanted to do "some target practice." (¶ 39.) Defendant Grealish made these remarks while staring at the Plaintiff in a "threatening and frightening manner." (¶ 39.) Defendant Grealish repeatedly told the Plaintiff that he wanted their co-worker to bring in the handgun because he had bullets with the Plaintiff's name on them. (¶ 40.) The Plaintiff continued to rely on Defendant Tincher to take corrective action, but he never did. (¶ 41.)

In November of 2015, Daniel Kalsow, the Plaintiff's supervisor with Defendant Rockwell, visited the Facility.3 (¶ 43.) The Plaintiff complained to Kalsow about all of Grealish's ongoing behaviors. (¶ 44.) Kalsow criticized the Plaintiff for not reporting the behaviors sooner, but pledged to investigate the threats of violence. (¶¶ 45-46.) Following her complaint to Kalsow, Defendant Grealish was suspended. (¶ 49.) On November 20, 2015, the Plaintiff was informed by a text message the Defendant Grealish would be returning to work the following Monday without any explanation. (¶ 50.) The Plaintiff repeatedly attempted to contact Kalsow to complain that no corrective action was taken against Grealish. (¶ 52.) On December 4, 2015, the Plaintiff had "a nervous breakdown or emotional distress episode at work due to her continuing fears in the work place." (¶ 53.)

The Plaintiff was instructed by Kalsow to report in person to his office in Iowa on December 7, 2015. (¶ 55.) After she arrived, she was presented with a "Performance Recovery Plan" ("PRP) by Kalsow and other agents of Defendant Rockwell. (¶ 56.) The Plaintiff alleges that the PRP was full of inaccuracies and unfair criticisms of the Plaintiff and was discriminatory. (¶ 57-58.) The Plaintiff refused to sign the PRP because she believed it was inaccurate and was in retlaiation for her complaints about her work environment. (¶ 60.) Kalsow and other executives with Defendant Rockwell told the Plaintiff that she needed to tolerate her workplace because they were not willing to lose the contract they had with Defendant Lockheed. (¶ 61.) Kalsow informed the Plaintiff that her work hours were being changed, which the Plaintiff alleges changed a material term of her employment and was done to retaliate against her. (¶¶ 63-64.) The Plaintiff informed Kalsow that she refused to resign from her position despite coercion from executives with Defendant Rockwell. (¶¶ 66-68.) The Plaintiff was informed by a text message that she was to work from home on December 14-16, 2015. (¶ 69.) The Plaintiff was terminated on December 15, 2016. (¶ 70.)

Standards of Review

On a motion to dismiss pursuant to Rule 12(b)(6), a "complaint must be dismissed if it does not allege `enough facts to state a claim to relief that is plausible on its face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are `enough to raise a right to relief above the speculative level.'" Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). "A plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

For purposes of a motion to dismiss, the district court must "take all of the factual allegations in the complaint as true." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party." Stansbury v. McDonald's Corp., 36 F. App'x 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). However, while the court must draw all reasonable inferences in favor of the Plaintiff, it need not accept the "legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).

Analysis

The Amended Complaint contains the following six causes of action:

Defendants Lockheed and Tincher (collectively "the Lockheed Defendants") move for all of the claims against them to be dismissed. (Dkt. No. 8.)

1. Intentional Infliction of Emotional Distress

The Lockheed Defendants argue that the Plaintiff has failed to state a claim for IIED against them because Defendant Tincher's conduct was neither "extreme or outrageous" or "utterly intolerable in a civilized community." (Dkt. No. 8-1 at 7-10.) A plaintiff must show the following elements to establish an intentional infliction of emotional distress claim:

Bass v. S.C. Dep't of Soc. Servs., 414 S.C. 558, 575, 780 S.E.2d 252, 260-61 (2015) (quoting Argoe v. Three Rivers Behavioral Health, LLC, 392 S.C. 462, 475, 710 S.E.2d 67, 74 (2011)); see also Morris v. Ocwen Loan Servicing, LLC, No. 0:16-cv-01772-JMC, 2017 WL 1035944, at *4 (D.S.C. Mar. 17, 2017).

The Plaintiff has failed to state a claim for IIED against the Lockheed Defendants. The Plaintiff has not alleged that Defendant Tincher actually committed any tortious conduct. In her Memorandum in Response, the Plaintiff specifically cited to Defendant Tincher's role as the "facility manager" and as being a "witness" to the behavior of Defendant Grealish. (Dkt. No. 30 at 2.) The Plaintiff alleges that as the "facility supervisor," Defendant Tincher "arguably joined in and condoned" Defendant Grealish's alleged conduct by "repeatedly telling Plaintiff he was taking care of this situation. . . ." (Dkt. No. 30 at 2-3.)

Accepting the Plaintiff's allegations as true, the Plaintiff has failed to allege an IIED claim against the Lockheed Defendants. The first element of an IIED claim requires that the defendant inflict the distress. Bass, 414 S.C. at 575, 780 S.E.2d at 260-61. There is no allegation that the Lockheed Defendants inflicted any distress on the Plaintiff. Instead the Plaintiff alleges that Defendant Tincher failed to stop Defendant Grealish from inflicting emotional distress. Similarly, the third element of an IIED claim requires that "the actions of the defendant" cause the distress. Bass, 414 S.C. at 575, 780 S.E.2d at 260-61 (emphasis added). Plaintiff's argument specifically alleges that Defendant Tincher did not take any actions. (Dkt. No. 30 at 2-3.) The Amended Complaint clearly alleges that Defendant Grealish inflicted the distress on the Plaintiff, not the Lockheed Defendants. The Plaintiff is attempting to impart Grealish's conduct to Defendant Tincher. The Plaintiff has not provided any law to support her theory of establishing an IIED claim by failing to act. This court has not been able to find any case to support such a theory. "Extreme insensitivity" is not sufficient to establish an IIED claim. Hawkins v. Greene, 311 S.C. 88, 91, 427 S.E.2d 692, 694 (Ct.App.1993) ("Facts which may show extreme insensitivity on the part of the defendant do not necessarily establish the tort of outrage.") Therefore, this court recommends that the Plaintiff's IIED claim be dismissed with prejudice as to the Lockheed Defendants.

2. Civil Conspiracy

The Lockheed Defendants argue that the Plaintiff has failed to allege any special damages as required to establish a civil conspiracy claim under South Carolina law. (Dkt. No. 8-1 at 10-12.) Under South Carolina law, "[t]he tort of civil conspiracy has three elements: (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, and (3) causing plaintiff special damage. Hackworth v. Greywood at Hammett, LLC, 385 S.C. 110, 115, 682 S.E.2d 871, 874 (Ct. App. 2009). ""[I]n order to establish a conspiracy, evidence, direct or circumstantial, must be produced from which a party may reasonably infer the joint assent of the minds of two or more parties to the prosecution of the unlawful enterprise." Pye v. Estate of Fox, 369 S.C. 555, 567, 633 S.E.2d 505, 511 (2006) (quoting Island Car Wash, Inc. v. Norris, 292 S.C. 595, 601, 358 S.E.2d 150, 153 (Ct.App.1987)). "The gravamen of the tort of civil conspiracy is the damage resulting to the plaintiff from an overt act done pursuant to the combination, not the agreement or combination per se." Id. at 567-68. "If a plaintiff merely repeats the damages from another claim instead of specifically listing special damages as part of their civil conspiracy claim, their conspiracy claim should be dismissed." Hackworth, 385 S.C. at 117.

The Plaintiff argues that the Amended Complaint alleged the essential elements of a civil conspiracy claim, but does not cite to any allegations of special damages in the Amended Complaint. (Dkt. No. 30 at 3-4.) "Special damages must . . . be specifically alleged in the complaint to avoid surprise to the other party." Hackworth, 385 S.C. at 117. The Plaintiff failed to specifically allege any special damages in the Amended Complaint. While not alleged in the Amended Complaint, the Plaintiff claims five specific special damages in her Memorandum. (Id. at 4.) Plaintiff's arguments in her Response are not sufficient to cure her failure to plead a civil conspiracy claim. This court recommends that the Plaintiff's civil conspiracy claim against the Lockheed Defendants be dismissed without prejudice.4

3. Negligent Misrepresentation

The Lockheed Defendants argue that the Plaintiff has failed to allege a claim for negligent misrepresentation because any misrepresentations alleged by the Plaintiff referred to future events, not established facts. (Dkt. No. 8-1 at 12-15.) The Lockheed Defendants argue that the Plaintiff failed to allege any pecuniary loss as well. (Id.) To establish a claim for negligent misrepresentation, a Plaintiff must allege the following elements:

Quail Hill, LLC v. Cty. of Richland, 387 S.C. 223, 240, 692 S.E.2d 499, 508 (2010) (citation omitted). To establish a negligent misrepresentation claim, "the representation must relate to a present or pre-existing fact and be false when made." Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 408, 581 S.E.2d 161, 167 (2003) (citation and quotation omitted). "Representations based on statements as to future events or unfulfilled promises are not usually actionable." Id.

The Plaintiff concedes that the Amended Complaint did not clearly allege any representations relating to a present or pre-existing fact made by the Lockheed Defendants. (Dkt. No. 30 at 4-6.) The Plaintiff concedes that she "could have and should have more specifically" alleged in the Amended Complaint the exact statements made by Defendants Tincher and how they were misrepresentations. (Dkt. No. 30 at 5.)The Plaintiff argues that the "totality of her Amended Complaint" may be "reasonably inferred" to allege that Defendant Tincher was making false representations to the Plaintiff that he was addressing her complaints regarding Defendant Grealish while Defendant Tincher actually wanted her removed from the workplace. (Dkt. No. 30 at 5.) The Plaintiff argues that her testimony at trial will support a claim for negligent misrepresentation. (Id.)

While the court must draw all reasonable inferences in favor of the Plaintiff, it may not accept "legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298). Given the Plaintiff's admission that she "could have and should have more specifically" alleged what negligent misrepresentations were made, and her argument that her testimony will support such a claim, this court recommends dismissing the Plaintiff's negligent misrepresentation claims against the Lockheed Defendants without prejudice.5

Conclusion

Wherefore, it is RECOMMENDED Motion to Dismiss (Dkt. No. 8) be GRANTED WITH PREJUDICE as to the Plaintiff's Intentional Infliction of Emotional Distress ("IIED") claim AND GRANTED WITHOUT PREJUDICE as to the Plaintiff's civil conspiracy and negligent misrepresentation claims.

IT IS SO RECOMMENDED.