Opinion
Civil Action 7:21-2622-TMC-KFM
11-09-2021
Clifton Ashley, Plaintiff, v. Milliken & Company, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) and (6) (doc. 15). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil 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.
The defendant filed the instant motion to dismiss on October 12, 2021 (doc. 15). On October 13, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately to the defendant's motion (doc. 16). The plaintiff filed his response in opposition on October 29, 2021 (doc. 18), and the defendant filed a reply on November 8, 2021 (doc. 20).
FACTUAL ALLEGATIONS
In his complaint, the plaintiff, who is proceeding pro se, alleged that he took Family and Medical Leave Act (“FMLA”) leave in March 2020, and, while getting medical leave approval, a female human resources manager “made multiple statements to the Plaintiff that left [him] with the reasonable and distinct impression that [she] had sexually harassed him” (doc. 1, comp. ¶ 4). Within 48 hours of the plaintiff's conversation with the human resources manager, the plaintiff's wife sent a text message to her, “insisting that the human resources manager use professional language when speaking to the Plaintiff” (id. ¶ 5). Approximately eight weeks later, the plaintiff contacted the human resources manager's supervisor, Kelly Cash, and reported “the perceived sexual harassment, ” and thereafter he had “a number of conversations and emails communications” with Cash and other members of the defendant's management (id. ¶¶ 6-7). The plaintiff alleged that on November 4, 2020, “with [his] FMLA leave coming to an end, ” he requested that Cash contact him “for the purpose of making sure circumstances were adjusted, reconciled, and in good order to resume is 20 year career with the Defendant” (id. ¶ 8). The plaintiff alleged that he “made it clear” in an email sent through his Milliken email account and in a voicemail left for Cash that “he would not report to work until he first had an opportunity to speak directly to [the human resources director] as the assurance he needed and required” (id. ¶ 9). The plaintiff alleged that the defendant did not contact him until approximately a month later when he received a letter from Cash stating that he was terminated from employment for abandoning his job (id. ¶ 10). The plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that the defendant discriminated against him because of his sex and in retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended (id. ¶ 11; doc. 12). The EEOC issued a notice of right to sue on May 28, 2021, and the plaintiff filed his complaint in this action on August 16, 2021 (doc. 1, comp. ¶ 12)
The plaintiff notes that he “was locked out of his personal email account due to storage during this time, ” and thus any attempt by the defendant to contact him was not received unless it was sent through his work email account (doc. 1, comp. ¶ 8).
The plaintiff attached as exhibits to his complaint a copy of his EEOC charge and notice of right to sue (docs. 1-2, 1-3); a screenshot of the contact information for the human resources manager (doc. 1-4); a screenshot of the text message thread between the plaintiff and his wife and the human resources manager (doc. 1-5); a screenshot showing an outgoing call of 31 seconds to Cash on November 4, 2020 (doc. 1-6); and a copy of an email from HR Operations Leader Cash to the plaintiff dated December 2, 2020, stating that the defendant was “administratively terminating [the plaintiff's] employment . . . based on [his] failure to communicate about [his] return to work and abandonment of [his] position/voluntary resignation, since [the plaintiff had] failed to follow [the defendant's] return to work process or communicate with [the defendant] to provide any information that suggests [he needs] any additional accommodation” (doc. 1-7).
The defendant submitted as an exhibit to the motion to dismiss the plaintiff's affidavit that was attached to his EEOC charge of discrimination (doc. 15-2). In that affidavit, the plaintiff stated that he had an “emotional breakdown” on April 17, 2020, and his wife called his supervisor to tell him of the situation. The supervisor stated that someone from human resources would call and give them information for medical help. Thereafter, the human resources manager called the plaintiff and had the conversation with him that is at issue in this lawsuit. The plaintiff provided the following details regarding the conversation: the human resources manager told him about her struggles with depression, “how her medicine makes her fat, ” that her husband found her unattractive, that her husband “can either have a fat nice bitch or a skinny mean bitch, ” that she could give the plaintiff FMLA papers and fix the date later, and that the plaintiff could call her anytime to talk (id. at 2). The plaintiff noted that the conversation upset his wife:
As noted by the defendant, the plaintiff's affidavit is appropriate for consideration without converting the Rule 12(b)(6) motion into one for summary judgment since it was attached to the plaintiff's EEOC charge of discrimination, which is specifically referenced in the complaint, and the plaintiff does not dispute its authenticity. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (stating that a court may consider a document that is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint, ” and there is no authenticity challenge (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999))).
The conversation was so inappropriate, my wife questioned the type of relationship Ms. Bagwell and I had with each other. Of all the people she could have confided in about her marital problems: a friend, a relative, a pastor; she chose a man having a mental breakdown. My wife wanted to call her back and question her about her conversation, but I asked her not to because I did not need any more stress. So, my wife text [sic] Ms. Bagwell from my phone asking her to be more professional. Not to talk to me about her mental health, her weight, or her struggles within her marriage.(Id.).
As noted above, the plaintiff attached to his complaint a screenshot of text messages between him and his wife and the human resources manager (doc. 1-5). In these text messages, the human resources manager gave the plaintiff information on medical providers and appointment availability. The plaintiff responded “Thank you. My wife got me an appointment next Thursday. Thank you again for helping me and talking to me. It means more than you know” (id.). The human resources manager then stated, “Great! You know I'll do anything I can to help you in any way” with a thumbs up emoji at the end. The plaintiff's wife then sent a message stating, “[P]lease do not talk to Clifton about your personal problems with your husband or your mental health. It is not professional thank you” (id.).
APPLICABLE LAW AND ANALYSIS
The defendant argues that the plaintiff's complaint fails to state a claim upon which relief can be granted for Title VII sexual harassment and retaliation. The undersigned agrees.
Because the undersigned recommends that the district court grant the defendant's motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the defendant's alternative argument that the plaintiff's complaint should be dismissed pursuant to Rule 12(b)(5) for insufficient service of process will not be addressed.
Legal Standard
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978). However, “liberal construction does not mean overlooking the pleading requirements under the Federal Rules of Civil Procedure.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020) (citation omitted), cert. denied, 141 S.Ct. 1376 (2021).
Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). However, “[i]n deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co., 637 F.3d at 448. The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint, ” and there is no authenticity challenge. Id. (quoting Phillips, 190 F.3d at 618). See also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)).
The plaintiff is not “require[d] to plead facts establishing a prima facie case [of discrimination], ” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 (2002). “In other words, a plaintiff is not charged with ‘forecasting] evidence sufficient to prove an element' of her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003) (quoting Iodice v. United States, 289 F.3d 270, 281 (4th Cir.2002)). “[T]he prima facie case ... is an evidentiary standard, not a pleading requirement, that may require demonstrating more elements than are otherwise required to state a claim for relief”; therefore, “requiring a plaintiff to plead a prima facie case would amount to a heightened pleading standard.” McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 584 (4th Cir. 2015) (quoting Swierkiewicz, 534 U.S. at 510-12 (internal citations and quotation marks omitted)). In the context of a Title VII case, the Court of Appeals for the Fourth Circuit has stated that a plaintiff is “required to allege facts to satisfy the elements of a cause of action created by that statute.” Id. at 585. The pertinent statute at issue here, Title VII, prohibits an employer from “discharging] any individual, or . . . otherwise discriminating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ” or from “discriminating] against any individual . . . because he has opposed any practice made an unlawful employment practice” by Title VII. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). Accordingly, the “inquiry is whether [the plaintiff] alleges facts that plausibly state a violation of Title VII ‘above a speculative level.'” Bing, 959 F.3d at 617 (quoting Coleman, 626 F.3d at 190).
Even so, absent direct evidence, “courts may look to the requirements of a prima facie case as a guide in assessing the plausibility of plaintiff's claim for relief.” Craft v. Fairfax Cty. Gov't, C. A. No. 1:16cv86 (JCC/MSN), 2016 WL 1643433, at *4 (E.D. Va. Apr. 26, 2016) (citing Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (“reciting elements of a prima facie case ... en route to affirming dismissal for failure to state a claim”)).
Sexual Harassment
The defendant first argues that the plaintiff has failed to state a plausible claim of sexual harassment. To the extent the plaintiff has attempted to bring such a claim against the defendant, the undersigned agrees that the complaint fails to state a plausible claim.
It is unclear to the undersigned that the plaintiff has even attempted to bring a claim for sexual harassment or hostile work environment in violation of Title VII; it appears that the plaintiff has alleged only a claim for Title VII retaliation. The complaint bears the heading “Complaint Title VII - Retaliation, ” the plaintiff recites the “legal standard for retaliation civil rights claim, ” and he states that he “seeks a jury trial with respect to the losses and damages as pled herein due to the retaliation he suffered that resulted in the Defendant's termination of his employment after reporting actions that he reasonably believed was unlawful” (doc. 1, comp.). However, in the first paragraph of the complaint, the plaintiff does state that the action is for damages based on violations of 42 U.S.C. § 2000e-2 and § 2000e-3 (doc. 1, comp. ¶ 1) (emphasis added). Accordingly, the undersigned has assumed for purposes of this motion that the plaintiff has attempted to bring a claim of sexual harassment in violation of Title VII.
As the Court of Appeals for the Fourth Circuit has held, “only harassment that occurs because of the victim's ... [protected class] is actionable.” Hartsell v. Duplex Prod., Inc., 123 F.3d 766, 772 (4th Cir. 1997) (emphasis added). A workplace becomes “hostile” only “[w]hen 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Further, the Supreme Court has stated that “in order to be actionable under [Title VII], a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
As set out above, the plaintiff's complaint arises from a single telephone conversation with a female human resources manager. Considering the complaint, attachments, and submitted documents that are integral to the complaint and authentic as discussed above, and assuming that the plaintiff's allegations are true, the facts as alleged do not plausibly state a violation of Title VII above a speculative level. The conversation recounted by the plaintiff fails to support a reasonable inference that it was related to the plaintiff's sex in any way. Moreover, the plaintiff has failed to present facts plausibly showing that a reasonable person would have found the conversation objectively offensive. Accordingly, the motion to dismiss should be granted as to this claim.
Retaliation
With regard to his retaliation claim, the plaintiff is “required to plead facts that plausibly give rise to a claim that []he received adverse treatment due to h[is] opposition to any unlawful practice.” Carroll v. United Parcel Serv., Inc., C. A. No. 1:17-cv-03108-DCC, 2018 WL 4111017, at *6 (D.S.C. Aug. 29, 2018). For a plaintiff to show that he engaged in a protected activity, he must allege facts that plausibly show that he “opposed an unlawful employment practice [that] he reasonably believed had occurred or was occurring.'" Coleman v. Loudoun Cty. Sch. Bd., 294 Fed.Appx. 778, 781 (4th Cir. 2008) (citation omitted). The United States Court of Appeals for the Fourth Circuit has explained that the inquiry is whether: “(1) the plaintiff subjectively (in good faith) believed that the defendant engaged in an unlawful action; and (2) whether this belief was objectively reasonable in light of the facts." Davis v. Dimensions Health Corp., 639 F.Supp.2d 610, 617 (D. Md. 2009).
As set out above, accepting the plaintiff's account of the conversation with the human resources manager as true, no objectively reasonable person could believe that the conversation constituted sexual harassment in violation of Title VII. Moreover, the plaintiff's own text messages thanking the human resources manager for her assistance immediately after their conversation belie any characterization of the conversation as harassing (doc. 1-5). Further, the plaintiff's allegations do not plausibly suggest a causal connection between the plaintiff's reporting of the conversation and his termination from employment several months later. As noted, the plaintiff attached to his complaint as an exhibit the correspondence he received from Cash detailing the defendant's efforts to return the plaintiff to work from his medical leave and the plaintiff's failure to communicate about his leave status or to return to work as scheduled (doc. 1-7). In order to survive a motion to dismiss, the plaintiff would need to plead facts that support a plausible inference that the defendant's motivation for firing him was retaliatory and not because the plaintiff failed to return to work following the expiration of his FMLA leave. He has not done so. See Samnang v. Bouchard Ventures, LLC, C. A. No. SAG-21-01398, 2021 WL 4197662, at *3 (D. Md. Sept. 15, 2021) (“Plaintiff's complaint, however, does not contain sufficient factual matter to allege a plausible causal link between her protected conduct and subsequent termination.” (citation omitted)). Accordingly, the plaintiff's complaint fails to state a claim upon which relief can be granted for Title VII retaliation.
In his response in opposition to the defendant's motion to dismiss, the plaintiff argues:
Someone with a mental illness, suffering under a psychiatric episode recognized by the treating physician and the employer, was NOT afforded a “Pre-Resume” work (End of FMLA leave) conversation after 20 ears of employment with the HR Director is negligent, and does entitle me to relief, and not the termination of my employment. The termination of my employment rather that a conversation was an act prohibited by FMLA and prohibited by Title VII.(Doc. 18 at 4).The plaintiff did not plead an FMLA cause of action in his complaint. Moreover, the facts alleged by the plaintiff fail to state a plausible FMLA interference or retaliation claim, and thus the plaintiff should not be granted leave to amend his complaint to attempt to state such a claim. See United States v. Kellogg Brown & Root Inc., 525 F.3d 370, 376 (4th Cir. 2008) (stating that amendment of a complaint that fails to state a claim under Rule 12(b)(6) would be futile). See also Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 411, 429 (4th Cir. 2015) (“Retaliation claims brought under the FMLA are analogous to those brought under Title VII.” (citations omitted)); Wallace v. Rite Aid Corp., C. A. No. PJM 10-2190, 2012 WL 366896, at *3 (D. Md. Feb. 1, 2012) (“As of July 7, [the plaintiff] was no longer entitled to FMLA benefits. It follows that [the defendant's] decision to terminate [the plaintiff] after he failed to show up for work or contact [the defendant] did not interfere with his rights under the FMLA.”).
CONCLUSION AND RECOMMENDATION
Here, the plaintiff's factual allegations are insufficient to support his theories of legal liability, and there is no indication in the plaintiff's response to the motion to dismiss that there are other relevant facts that were not considered here. See Bing, 959 F.3d at 611 (“[U]nless the record provides some reason to think that there are additional relevant facts that have not been included in the complaint, we should not treat a without-prejudice dismissal as unappealable simply because we can imagine facts that might be helpful to the plaintiff.”). As the plaintiff cannot cure the defects in his complaint by amending his complaint, the undersigned recommends that the district court decline to automatically give the plaintiff leave to amend his complaint, grant the defendant's motion to dismiss for failure to state a claim (doc. 15), dismiss the plaintiff's Title VII claims, and close this case.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).