Opinion
Civil Action 2:20-cv-01144-RMG-MGB
11-20-2020
Joel Washington, Plaintiff, v. The Boeing Company, Defendant.
ORDER AND REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this action alleging race discrimination, hostile work environment and retaliation in violation of 42 U.S.C. § 1981, breach of contract, breach of contract accompanied by a fraudulent act, and promissory estoppel. This matter is before the Court upon Defendant's Partial Motion and Memorandum to Dismiss Plaintiff's Second Amended Complaint and to Strike. (Dkt. No. 37.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) 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 consideration. For the reasons set forth below, the undersigned grants Defendant's motion to strike, and recommends that the Court grant in part and deny in part Defendant's motion to dismiss.
BACKGROUND
Plaintiff, along with co-Plaintiffs Kevin Austin, Donta Alston, and Jonathan Bennett, initially filed a complaint against Defendant on September 24, 2019, alleging race discrimination, hostile work environment and retaliation in violation of 42 U.S.C. § 1981, breach of contract, breach of contract accompanied by a fraudulent act, and promissory estoppel.0F (Dkt. No. 2.) On November 8, 2019, Defendant filed its initial motion to dismiss. (Dkt. No. 5.) On March 24, 2020, this Court ordered that the claims be severed into four separate actions, noting that each Plaintiff should file an amended complaint. (Dkt. No. 1.) Plaintiff filed his Amended Complaint on May 5, 2020. (Dkt. No. 6.) Defendant then filed a Partial Motion to Dismiss Plaintiff's Amended Complaint and Supporting Memorandum on May 19, 2020. (Dkt. No. 7.) On June 22, 2020, Defendant also filed a Motion to Strike Plaintiff's Sur Reply. (Dkt. No. 15.)
The original complaint also included a claim for workers' compensation retaliation on behalf of Plaintiff Austin. (Dkt. No. 2 at 11.) Plaintiff voluntarily withdrew his claim for promissory estoppel in his response (Dkt. No. 8) to Defendant's Partial Motion to Dismiss (Dkt. No. 7) and Plaintiff did not include it in his Second Amended Complaint (Dkt. No. 36).
This reference refers to the Docket for Donta Alston v. The Boeing Company, Civil Action No. 2:19-02713-RMG-MGB.
On August 11, 2020, the undersigned issued an Order and Report and Recommendation recommending that the Court grant in part and deny in part Defendant's Partial Motion to Dismiss (Dkt. No. 7) without prejudice, and ordering that Defendant's Motion to Strike Plaintiff's Sur Reply (Dkt. No. 15) be granted. (Dkt. No. 28.) In response, Plaintiff filed a Motion to Amend/Correct his Amended Complaint. (Dkt. No. 32.) Plaintiff's motion was granted (Dkt. No. 33) on September 2, 2020 and he filed his Second Amended Complaint (Dkt. No. 36) on September 11, 2020. In light of the filing of Plaintiff's Second Amended Complaint (Dkt. No. 36), the Court declined to adopt the undersigned's Report and Recommendation (Dkt. No. 28) and denied Defendant's Partial Motion to Dismiss (Dkt. No. 38) without prejudice as moot.
Defendant then filed this Partial Motion and Memorandum to Dismiss Plaintiff's Second Amended Complaint and to Strike. (Dkt. No. 37.) Plaintiff filed his Response in Opposition to Defendant's Motion (Dkt. No. 41) on October 9, 2020 and Defendant filed its Reply to Plaintiff's Response in Opposition (Dkt. No. 42) on October 13, 2020. As such, the motions before the Court have been fully briefed and are ripe for disposition.
DISCUSSION
Defendant asserts that Plaintiff's claims for breach of contract, breach of contract accompanied by a fraudulent act, retaliation, and hostile work environment should be dismissed based on Plaintiff's failure to state claims upon which relief may be granted. (Dkt. No. 37 at 1.) Defendant also asks the Court strike all references to “Title VII” and “South Carolina Human Affairs Law” in Plaintiff's Second Amended Complaint, arguing that “[although Defendant] assumes they are merely a scrivener's error, their inclusion is improper because Plaintiff failed to administratively exhaust these claims.” (Id. at 2, 21.) For the reasons set forth below, the undersigned grants Defendant's motion to strike, and recommends that the Court grant in part and deny in part Defendant's motion to dismiss.
I. Partial Motion to Dismiss
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. at 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 Fed.Appx. 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).
A. Breach of Contract
Defendant first seeks to dismiss Plaintiff's breach of contract claim, arguing that Plaintiff “still fails to establish the existence of an enforceable contract between Boeing and Plaintiff that altered the status of his at-will employment.” (Dkt. No. 37 at 4-5.) On the other hand, Plaintiff asserts that he “has adequately pled that [Plaintiff] has an enforceable contract with Boeing” because “[t]he language provided in Defendant's EEO Policy clearly states that it covers ‘all terms and conditions of employment' and that it prohibits ‘retaliation against a person who has made a complaint.'” (Dkt. No. 41 at 3, 5.)
To establish a breach of contract claim, Plaintiff must show that he entered into a contract with Defendant. The elements required to establish 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)). In the employment context, “[f]or a contract to be created, the employee must be aware of promises . . ., must have relied on (and continued work in reliance on) those promises, and the promises must restrict the right to discharge.” Lawrence v. Westinghouse Savannah River Co., Inc., No. 1:03-cv-484-27, 2005 WL 3968031, at *14 (D.S.C. Mar. 31, 2005); see also Storms v. Goodyear Tire & Rubber Co., 775 F.Supp. 862, 867 (D.S.C. 1991) (finding language in the agreement insufficient to form a contract when it is “not couched in mandatory terms and does not contain language that specifically limits the employer's right to demote or terminate [plaintiff] without cause”).
In South Carolina, there is a presumption of at-will employment. Prescott v. Farmer's Tel. Co-Op., Inc., 335 S.C. 330, 516 S.E.2d 923, 927, n.8 (1999). Thus, “in order to survive a Rule 12 motion to dismiss on a claim for breach of contract of employment, a [p]laintiff must ‘plead sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship.'” Perrine v. G4S Secure Solutions (USA), Inc., No. 2:11-cv-1210-RMG, 2011 WL 3563110, at *1 (D.S.C. Aug. 9, 2011) (quoting Amason v. P.K. Management, LLC, No. 3:10-cv-1752-JFA, 2011 WL 1100169, at *6 (D.S.C. Mar. 23, 2011)). In other words, a complaint for breach of contract of employment must “set forth sufficient factual allegations . . . to state a facially plausible claim that the [p]arties entered into a contract with terms of employment that limited the duration of the relationship or the right of termination or both.” Weaver v. John Lucas Tree Expert Co., No. 2:13-cv-01698-PMD, 2013 WL 5587854, at *6 (D.S.C. Oct. 10, 2013). In some instances, an employer may alter an employee's at-will status through mandatory language in a handbook. See Grant v. Mount Vernon Mills, Inc., 370 S.C. 138, 634 S.E.2d 15, 20 (S.C. Ct. App. 2006).
Here, Plaintiff claims that Defendant's employee handbook contains such mandatory language. (Dkt. No. 36 at 4-5.) Specifically, Plaintiff alleges that Defendant's Equal Employment Opportunity (“EEO”) policy and Code of Conduct “altered the at-will relationship between the Plaintiff and Defendant.” (Id. at 5.) Plaintiff's Second Amended Complaint states:
25. Defendant publishes and maintains an Employee Handbook, which definitely assures employees of their right to report harassment and bullying, and an anti-retaliation clause.
26. Defendant further states, in its Employee Handbook, that it is an Equal Opportunity employer, and declares in its Equal Employment Opportunity (“EEO”) Policy, that there will be no discrimination as to race, color, gender, age, religion, disability, national origin, or veteran's status. Further, the EEO Policy states that “this nondiscrimination policy applies to applicants as well as employees and covers all terms and conditions of employment, including recruiting, hiring, transfers, promotions, terminations, compensation and benefits.”
27. Additionally, the EEO Policy further provides, in mandatory and promissory terms, that, “discrimination or harassment based on any of the above factors is prohibited, as is retaliation against a person who has made a complaint or given information regarding possible violations of this policy.”
28. In line with [the] EEO Policy's anti-retaliation provisions, Defendant's Code of Conduct, provides in mandatory and promissory terms, that “[r]etaliation against employees who come forward to raise genuine concerns will not be tolerated.”
29. Plaintiff and Defendant entered into a binding and valid contract whereby Plaintiff relied on Defendant's, through its agents, reassurance [] pursuant to the Employee Handbook and the above-referenced policies and procedures. Plaintiff also relied on the Defendant's reassurance that it must follow its policies when promoting its employees, paying its
employees, and its treatment of its employees regarding its EEO policies and regarding investigating complaints of harassment.(Id. at 5) (internal citations omitted).
In an action asserting breach of contract based on a company policy, the employer may be held liable for breach of contract where the employer voluntarily publishes the policy to its employees. Grant, 634 S.E.2d at 20. However, the employee must establish that the policy applies to the employee, sets out procedures binding on the employer, and does not contain a conspicuous and appropriate disclaimer. Id. A handbook or policy cannot alter the at-will employment relationship if it is “couched in permissive language” such as “normally” and “should.” Id. at 21-22. To be considered mandatory language, the purported contract must be “definitive in nature, promising specific treatment in specific situations.” Anthony v. Atl. Grp., Inc., 909 F.Supp.2d 455, 467 (D.S.C. 2012) (quoting Hessenthaler, 616 S.E.2d at 698). As explained in Lawrence, “the plaintiff must direct the court to some particular provision he claims was violated that limited the employer's right to discharge him. Additionally, the handbook promise must restrict the right of an employer to discharge.” 2005 WL 3968031, at *4. Plaintiff fails to meet this burden.2F
Plaintiff has now provided the Court with Defendant's EEO Policy and its Code of Conduct. (Dkt. No. 36-1; Dkt. No. 36-2.) After considering Plaintiff's quoted passages and conducting an independent review of the policies, the undersigned finds no language in either policy relating to specific steps that Defendant must take in specific situations and no language limiting Defendant's ability to terminate employees. (See generally Dkt. No. 36-1; Dkt. No. 36-2.)
First, the portions of Defendant's policies that Plaintiff cites as “mandatory and promissory terms” are standard anti-discrimination and non-retaliation provisions. (See supra 6; Dkt. No. 36-1; Dkt. No. 36-2.) This Court has long held that such statements are insufficient to overcome the presumption of at-will employment. See, e.g., Frasier v. Verizon Wireless, No. 8:08-cv-356-HMH, 2008 WL 724037, at *2 (D.S.C. Mar. 17, 2008) (holding that handbook policy prohibiting retaliation “does not create an expectation that employment is guaranteed or that a particular process must be complied with before an employee is terminated”); 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) (holding that policy indicating “there will be no discrimination or recrimination against an employee who asserts a complaint against the Company” does not mean that “employment is guaranteed or that a particular process must be complied with before an employee is terminated”); Petrosyan v. Delfin Grp. U.S.A., LLC, No. 2: 13-cv-2990-PMD, 2015 WL 685266, at *12 (D.S.C. Feb. 18, 2015) (collecting cases, and observing that “the language cited by the Plaintiff in his . . . 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”).
Further, Plaintiff does not allege that Defendant's Employee Handbook contains any language limiting Defendant's right to terminate him. (Dkt. No. 36 at 4-5.) Rather, Plaintiff seems to conflate Defendant's general employment policies with an enforceable employment contract. For example, Plaintiff mentions that he relied on “Defendant's reassurances that it must follow its policies when promoting its employees, paying its employees, and its treatment of its employees regarding its EEO policies and regarding investigating complaints of harassment, ” (Id. at 5), but this reliance is insufficient to create an employment contract and overcome the presumption of at-will employment. Oroujian v. Delfin Grp. USA LLC, 57 F.Supp.3d 544, 558 (D.S.C. 2014) (“[T]o establish that he had a ‘contract' of employment with the Defendant, Plaintiff [must] show that he and the Defendant entered into mandatory and binding terms for his employment such as a definite term . . . or other such indices of a contract of employment.”). Additionally, Plaintiff alleges that “Defendant . . . failed to perform its contractual duties by racially discriminating against and racially harassing Plaintiff and by failing to protect Plaintiff from [] retaliatory actions.” (Dkt. No. 36 at 5.) However, Defendant's standard anti-retaliation and non-discrimination policies cannot create “contractual duties” for Defendant because the policies do not contain mandatory language that is “definitive in nature, promising specific treatment in specific situations.” Anthony, 909 F.Supp.2d at 467 (quoting Hessenthaler, 616 S.E.2d at 698). Thus, even considering Plaintiff's allegations as true and viewing them in the light most favorable to Plaintiff, Plaintiff fails to establish a plausible claim for breach of contract. See Storms, 775 F.Supp. at 867 (noting that language cited by the employee was “not couched in mandatory terms and [did] not contain language that specifically [limited] the employer's right to demote or terminate [the Plaintiff] without cause”).
To the extent Plaintiff alleges that he established a unilateral contract with Defendant, Plaintiff still has not alleged facts sufficient to overcome the presumption of at-will employment. (See generally Dkt. No. 36.) The elements of a unilateral contract are: (1) specific offer; (2) communication of that offer to the employee; and (3) performance of employment-related duties in reliance on the offer. Monroe v. Brawo USA, Inc., No. 6:19-cv-2268-HMH-KFM, 2019 WL 5790826, at *2 (D.S.C. Oct. 9, 2019), adopted, No. 6:19-cv-2268-HMH, 2019 WL 5784989 (D.S.C. Nov. 6, 2019). Even assuming, in arguendo, that Plaintiff's Second Amended Complaint alleges facts to satisfy these elements, Plaintiff does not state that his offer of employment included any limitations regarding the duration of his employment relationship or his right to termination. See Weaver, 2013 WL 5587854, at *6 (the complaint must “set forth sufficient factual allegations . . . to state a facially plausible claim that the [p]arties entered into a contract with terms of employment that limited the duration of the relationship or the right of termination or both”).
In sum, Plaintiff has not alleged facts that allow the Court to draw a reasonable inference that Plaintiff and Defendant entered into an enforceable employment contract (through Defendant's employment policies or otherwise). (See generally Dkt. No. 36.) Because Plaintiff has not alleged facts sufficient to overcome the presumption of at-will employment, he has failed to state a valid breach of contract claim and his breach of contract claim cannot withstand a Rule 12(b)(6) motion. Perrine, 2011 WL 3563110, at *1 (quoting Amason, 2011 WL 1100169, at *6) (stating that a [p]laintiff must “plead sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship” to survive a Rule 12 motion to dismiss on a claim for breach of contract of employment).
B. Breach of Contract Accompanied by a Fraudulent Act
Defendant next asserts that the Court should dismiss Plaintiff's claim for breach of contract accompanied by a fraudulent act, stating that Plaintiff “failed to plead facts sufficient to establish a breach of contract, much less facts that establish a fraudulent intent and fraudulent acts accompanying the alleged breach of contract.” (Dkt. No. 37 at 12.) A valid claim for breach of contract accompanied by fraudulent act requires, as a threshold matter, the existence of a contract. Maro v. Lewis, 389 S.C. 216, 697 S.E.2d 684, 688 (S.C. Ct. App. 2010). Because the undersigned has determined that Plaintiff failed to establish the existence of a contract that changed Plaintiff's at-will employment, Plaintiff's cause of action for breach of contract accompanied by a fraudulent act must fail.
C. Hostile Work Environment
Defendant also requests that the Court dismiss Plaintiff's claim for hostile work environment, arguing that Plaintiff's allegations are “wholly insufficient to state a cognizable hostile work environment claim.” (Dkt. No. 37 at 15.) “A hostile environment exists when the 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.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Thus, to establish a claim for a racially hostile work environment, Plaintiff must show that there is (1) unwelcome conduct; (2) based on his race; (3) which is sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) which is imputable to Defendant. See Boyer-Liberto, 786 F.3d at 277 (citing Okoli v. Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)).
The degree of hostility or abuse to which Plaintiff was exposed must be determined by “examining the totality of the circumstances.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (referencing Harris, 510 U.S. at 23). Relevant considerations “include 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.” Id. Further, the “severe or pervasive” element of a hostile work environment claim includes both subjective and objective components; thus, Plaintiff must show that he subjectively perceived the environment to be abusive, and that the conduct was such that “a reasonable person in [Plaintiff's] position” would have found the environment objectively hostile or abusive. E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
Plaintiff's Second Amended Complaint states that Plaintiff was subjected to “disparate treatment and a hostile working environment due to his race, ” “on the job racially hostile treatment, ” “racially disparate treatment and adversity, ” and “racially hostile treatment by [Eric] Infinger [(Plaintiff's manager)].” (Dkt. No. 36 at 2-3.) Plaintiff further alleges that Defendant “began a pattern and practice of targeting the Plaintiff through systemic race-based harassment” and “[k]nowingly allow[ed] a workplace full of racial hostility to exist which was so subjectively and objectively severe and pervasive [as to] creat[e] a racially hostile work environment.” (Id. at 3-4.) More specifically, the Second Amended Complaint states that:
18. Plaintiff alleges that the on the job racially hostile treatment was guised as Defendant made promises that Plaintiff's protected complaints would be addressed. Nevertheless, these promises were purely pretextual. Plaintiff alleges that the Defendant, through its agents, initiated discriminatory and hostile practices against Plaintiff and was reckless, wanton, and intentional in the race discrimination based on his race to wit to include:
a. Continuously, beginning in January 2018, Defendant allowed Infinger to racially harass and continually racially discriminate against Plaintiff Washington by holding up and denying his promotional opportunities. Defendant allowed Infinger to racially harass and continually racially discriminate against Plaintiff Washington in terms of mistreatment and work assignments to include sending African American employees to work in unsanitary and undesirable areas of the plant all to the exclusion of Caucasian workers while allowing Caucasian workers to work in desirable assignments;
b. Continuously, beginning in January 2018, Defendant racially discriminated against Plaintiff in terms of allowing lesser qualified Caucasian workers to receive a higher rate of pay and by requiring Plaintiff to work greater shifts without advance notice all to the exclusion of Plaintiff Washington's similarly situated Caucasian colleagues;
c. Continuously, beginning in January 2018, Infinger made numerous racially charged and derogatory remarks [] concerning and towards Plaintiff and other African-American employees, and also openly berated and talked down to Plaintiff in front of other coworkers, causing Plaintiff to suffer harassment, embarrassment and ridicule;
d. Continuously, beginning in January 2018, Infinger singled out and targeted Plaintiff and his African-American colleagues by micro-managing them and more closely monitoring their work progress and whereabouts, to the exclusion of similarly-situated Caucasian colleagues; and,
e. Defendant, allowed Infinger and other supervisory Caucasian employees, to set, enforce [] two different sets of safety protocols, rules and treatment, one for Plaintiff and African American colleagues, and one for similarly situated Caucasian colleagues[.](Id.)
Construing Plaintiff's Second Amended Complaint in the light most favorable to him, Plaintiff's allegations, without more, do not rise to the level of harassment contemplated by 42 U.S.C. § 1981. Rather, Plaintiff's statements that Defendant did not promote him and gave him to less desirable work rules, tasks, shifts, and locations because of his race shows, at most, that Plaintiff was treated differently than his Caucasian colleagues; these allegations do not, however, show that Defendant's conduct was sufficiently severe or pervasive to create an abusive atmosphere. See, e.g., Shack v. Beaufort Cty. Sch. Dist., No. 9:11-cv-3201-DCN-BHH, 2013 WL 4434344, at *10 (D.S.C. July 15, 2013), aff'd in part, No. 9:11-cv-03201-DCN, 2013 WL 4434346 (D.S.C. Aug. 15, 2013) (concluding that courts have repeatedly held that “job-duty- related disparities and grievances are not of the kind of severity” contemplated by hostile work environment claims, and that plaintiff's allegations, at best, demonstrate that she was treated differently).
Further, Plaintiff does not allege specific facts suggesting that a reasonable person in Plaintiff's position could have found the work environment objectively hostile. Although Plaintiff states that his manager made “racially charged and derogatory remarks” to him, “berated and talked down to Plaintiff, ” and micro-managed him, Plaintiff does not point to specific comments made by his manager, nor does he provide examples of this alleged behavior. (See generally Dkt. No. 36.) Rather, Plaintiff summarily alleges mistreatment without providing factual support. See 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.”). As a result, the undersigned cannot determine if Defendant's conduct could be sufficiently severe or pervasive to alter the conditions of Plaintiff's employment and create an abusive working environment. See, e.g., Cox v. Nucor Corp., No. 2:16-cv-3073-PMD, 2017 WL 3599587, at *2 (D.S.C. Aug. 22, 2017) (finding that plaintiff's repeated use of the word “harassment” without further detail was insufficient to withstand a motion to dismiss a hostile work environment claim); Bradley v. United Parcel Serv., Inc., No. 3:15-cv-4734-CMC-KDW, 2016 WL 1521559, at *7 (D.S.C. Mar. 10, 2016), adopted, No. 3:15-cv-4734-CMC, 2016 WL 1448484 (D.S.C. Apr. 13, 2016) (concluding that plaintiff's “bare-bones assertion” that the alleged conduct would make a reasonable woman “believe that the working environment is hostile, ” was insufficient to demonstrate any plausible claim for harassment).
The undersigned therefore agrees with Defendant that Plaintiff fails to state a hostile work environment claim upon which relief may be granted. See Buchhagen v. ICF Int'l, Inc., 545 Fed.Appx. 217, 219 (4th Cir. 2013) (holding that supervisor “mockingly” yelling at plaintiff, making “snide comments” to plaintiff, “playing favorites with employees, ” “repeatedly harping” on plaintiff's mistake, and “unfairly scrutinizing and criticizing” plaintiff failed to state hostile work environment claim); see also Oroujian, 57 F.Supp.3d at 553-56 (dismissing hostile work environment claim where plaintiff alleged that defendant “demonstrated a pattern of discriminatory treatment, ” made “disparaging remarks, ” “reassign[ed] Armenians to menial tasks, ” and made “a No. of [demeaning] racial comments” that were “severe, pervasive and happened almost daily”).
D. Retaliation
Finally, Defendant asks the Court to dismiss Plaintiff's retaliation claim. (Dkt. No. 37 at 19.) In doing so, Defendant argues that Plaintiff has “failed to establish all of the elements required to plead a retaliation claim.” (Id.) The Court disagrees.
To establish a viable claim for retaliation, Plaintiff must allege facts sufficient to support a showing that: (1) Plaintiff engaged in activity protected under 42 U.S.C. § 1981; (2) Defendant took an adverse employment action against him; and (3) a causal connection exists between the protected activity and the adverse action. Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019); Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007); Munday v. Waste Management of North America, Inc., 126 F.3d 239, 242 (4th Cir. 1997); Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). Protected activity does not include opposition to general employment practices; an employee must actually oppose an employment practice that is unlawful pursuant to a specific anti-discrimination statute. Sutton v. Vilsack, No. 2:12-cv-01386-DCN, 2014 WL 4199163, at *8, n.10 (D.S.C. Aug. 20, 2014). An adverse employment action is one that a reasonable employee would have found materially adverse, which, in this case, means that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Further, it is well-established in the Fourth Circuit that “very little evidence of a causal connection is required to establish a prima facie case of retaliation.” Burgess v. Bowen, 466 Fed.Appx. 272, 283 (4th Cir. 2012) (internal citations omitted).
Here, Plaintiff alleges that he was “repeatedly subjected to and protested violations of his federally protected rights” and that those protests “subjected Plaintiff to being mistreated in a retaliatory manner and to a continuance of unlawful racial harassment and retaliation.” (Dkt. No. 36 at 7.) Plaintiff also alleges that he “informed Defendant of the racial harassment and mistreatment that Plaintiff daily was exposed to (protected complaints), ” and that Defendant engaged in “a continuing pattern of animus, harassment, and denial of opportunities and relocations.” (Id.) More precisely, Plaintiff alleges that:
6. During the first two years of his tenure with the company, he worked as a contractor in building 8819 cell 140 area. During this time period, he experienced racial discrimination, racially disparate treatment and adversity to include being told to stay late and work extra shifts without the same level of notification given his similarly situated Caucasian counterparts and mandatory weekend overtime.
7. Plaintiff Washington complained of this racially disparate treatment by making protected complaints to Defendant's upper management in accordance with Defendant's policies and procedures which constitute Plaintiff Washington's [reliance] upon employment handbook and contractual promises made to him by Defendant. Nevertheless, Plaintiff was rebuffed and his complaints were not addressed by the Defendant.
8. Defendant made it clear even during this early time period of Plaintiff Washington's employment that it had no concern regarding the complaints of Plaintiff and other African American workers regarding protected activity and complaints of race discrimination and instead used these complaints as an opportunity to institute a long-standing campaign of continual retaliation against Mr. Washington.
9. On or around January 2018, Plaintiff started working first shift in the paint shop with Eric Infinger (WM) as his manager.
10. On days when work was slow, Infinger made it a pattern and practice to send a group of African American workers, to include, Plaintiff Washington to Building 8822 within Defendant's Plant. This was an undesirable transfer based upon the work conditions in Building 8822 which were dirty and hazardous as compared to Plaintiff Washington's standard work conditions and was clearly based upon racially discriminatory intent, veiled intentions, and pretextual and racially hostile treatment by Infinger.
11. Plaintiff, during this time period, also applied for Level B positions through Infinger and completed all necessary position qualifications as this position would have been a promotion for which Plaintiff Washington was fully qualified to receive. Infinger held up Plaintiff Washington's promotion for an extended period of time while allowing numerous lesser qualified Caucasians to receive promotions over Plaintiff Washington. By the time Plaintiff Washington finally got the promotion, he received a pay increase which was less than half that of his similarly situated Caucasian counterparts. This is clearly an act of race discrimination and retaliation for Plaintiff's earlier protected complaints of race discrimination, and violations of Plaintiff's employment contract.
12. In or about January 2020, after returning from medical leave, Plaintiff received two pretextual and unsubstantiated corrective actions, from two of Defendant's Caucasian employees, Joey Windham and Steve Cancro. After Plaintiff challenged these corrective actions, Defendant admitted that Cancro's corrective action against Plaintiff was unsubstantiated, and based on this determination, Defendant overturned Cancro's corrective action and removed it from Plaintiff's personnel record. Upon information and belief, both Windham and Cancro's disciplinary actions were false
and unsubstantiated and wrongly imposed on Plaintiff in retaliation of Plaintiff's protected complaints.
13. Plaintiff Washington, in addition to that stated above, was deprived of training opportunities which were given to his similarly situated Caucasian counterparts. Plaintiff states that this is clearly more of the same as stated above and is merely a pretextual attempt to stifle his further promotability within the company and a veiled attempt to pretextually constructively terminate his employment all in an attempt to racially discriminate and retaliate against him in violation of state and federal law. Plaintiff has suffered and is still suffering tremendously in terms of his physical, mental and emotional health as well as suffering other ongoing actual and compensatory damages as a result of the Defendant's unlawful treatment towards him.(Id. at 2-3.)
Taking all of the factual allegations in Plaintiff's Second Amended Complaint as true and viewing the Second Amended Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff has alleged sufficient facts to demonstrate a “right to relief above the speculative level” with respect to his retaliation claim. Twombly, 550 U.S. at 555. Plaintiff explains that he engaged in protected activity by reporting racial discrimination in the workplace within Defendant's upper management, in accordance with Defendant's policies and procedures. See Bowman v. Holopack Intern. Corp., No. 3:06-cv-1648-CMC, 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.”). He then states that Defendant adversely acted against him because Mr. Infinger “held up [Plaintiff's] promotion for an extended period of time while allowing numerous lesser qualified Caucasians to receive promotions over [him]” and because “he received a pay increase which was less than half that of his similarly situated Caucasian counterparts” upon finally being promoted. (Dkt. No. 36 at 2.) Plaintiff also alleges that Defendant adversely acted against him by depriving him of training opportunities and issuing unsubstantiated corrective actions against him. (Id. at 2-3.)
While the Court notes that Plaintiff's Second Amended Complaint is unclear regarding the specific timeframe during which Plaintiff made his complaints to Defendant's upper management, Plaintiff indicates that he complained more than once. (Id.) He also clearly asserts that he made his complaints to upper management prior to applying for the promotion to a Level B position, being deprived of training opportunities, and receiving allegedly unsubstantiated corrective actions.3F (Id.) Based on these allegations, the Court can infer all required elements of Plaintiff's retaliation claim and the Court therefore finds that Defendant's motion to dismiss Plaintiff's retaliation claim should be denied. Oroujian, 57 F.Supp.3d at 553 (citing 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.”).
To the extent Defendant argues that the time between Plaintiff's complaints and Defendant's purported adverse actions is too attenuated to satisfy the causation requirement for Plaintiff's retaliation claim, the undersigned finds this determination premature.
II. Motion to Strike
Defendant has also moved the Court for an order striking all references to “Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. Sec. 2000e et. Seq.)” and the “South Carolina Human Affairs Law” in Plaintiff's Second Amended Complaint. (Dkt. No. 37 at 21.) Defendant notes that it assumes these references are merely scrivener's error, but argues that “their inclusion is improper because Plaintiff failed to administratively exhaust these claims.” (Id.) Defendant further notes that “Plaintiff has not formally asserted any causes of action under these statutes.” (Id. at 22.)
Rule 12(f) permits the Court to strike from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “‘Immaterial' matter is that which has no essential or important relationship to the claim for relief, and ‘impertinent' material consists of statements that do not pertain to, and are not necessary to resolve, the disputed issues.” CTH 1 Caregiver v. Owens, No. 8:11-cv-2215-TMC, 2012 WL 2572044, at *5 (D.S.C. July 2, 2012) (internal citations omitted). “‘Scandalous' includes allegations that cast a cruelly derogatory light on a party to other persons.” Id. Although the decision of whether to grant a motion to strike under Rule 12(f) is within the sound discretion of the court, the Fourth Circuit views Rule 12(f) motions with disfavor “because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001); see also Commodity Futures Trading Comm'n v. Dupont, No. 8:16-cv-03258-TMC-JDA, 2017 WL 4465700, at *2 (D.S.C. Sept. 7, 2017), adopted, No. 8:16-cv-03258-TMC, 2017 WL 4418673 (D.S.C. Oct. 5, 2017).
Defendant is correct that Plaintiff has not asserted claims under “Title VII” and the “South Carolina Human Affairs Law” and the undersigned therefore finds these references immaterial and impertinent. See Owens, 2012 WL 2572044, at *5 (D.S.C. July 2, 2012) (“‘Immaterial' matter is that which has no essential or important relationship to the claim for relief, and ‘impertinent' material consists of statements that do not pertain to, and are not necessary to resolve, the disputed issues.”) Further, Plaintiff does not appear to oppose Defendant's request, as he did not address it in his response in opposition to Defendant's motion. (See generally Dkt. No. 41.) As such, the undersigned grants Defendant's motion to strike these references from Plaintiffs Second Amended Complaint.
CONCLUSION
Based on the foregoing, the undersigned recommends that the Court grant in part and deny in part Defendant's Partial Motion to Dismiss. (Dkt. No. 37.) Specifically, the undersigned recommends that the Court grant Defendant's motion with respect to Plaintiffs breach of contract and breach of contract with fraudulent intent claims, and Plaintiffs hostile work environment claim under 42 U.S.C. § 1981. The undersigned recommends that the Court deny Defendant's motion with respect to Plaintiffs claim for retaliation under 42 U.S.C. § 1981.
The undersigned grants Defendant's Motion to Strike (Dkt. No. 37) and orders that all references to “Title VII” and “South Carolina Human Affairs Law” shall be stricken from Plaintiffs Second Amended Complaint (Dkt. No. 36).
IT IS SO RECOMMENDED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).