Opinion
Civil Action 6:23-cv-3785-TMC-KFM
10-31-2023
Gregorio Caraballo, Plaintiff, v. Golden Brown & Delicious, 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 the plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 10). Under the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in employment discrimination cases and submit findings and recommendations to the district court.
I. BACKGROUND
The plaintiff, who is proceeding pro se, filed his initial complaint against the defendant Golden Brown & Delicious (“GB&D” or “the defendant”), his former employer, in the Court of Common Pleas for the State of South Carolina, County of Greenville, Case No. 2021-CP-23-02978, asserting one cause of action for “race/color/nationality discrimination” in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended (doc. 1-1 at 4). The defendant removed the case to this court on August 3, 2023, based on federal question jurisdiction (doc. 1 at 2). The defendant filed the motion to dismiss now before the court for consideration on August 10, 2023 (doc. 10). By order filed August 11, 2023, 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. 11). The plaintiff filed a response in opposition to the motion to dismiss (doc. 14) on August 24, 2023, and the defendant filed a reply (doc. 16) on August 31, 2023. The plaintiff filed a sur-reply (doc. 20) on September 1, 2023.
II. FACTUAL ALLEGATIONS
The plaintiff, who is a Hispanic male, alleges in his complaint that he was employed by restaurant GB&D for five years (doc. 1-1 at 3, comp.). He alleges that he assisted Alex, the owner, and Jen, the chef, in the kitchen by prepping meals and washing dishes (id.). He alleges that “Jen decided to dictate the pace and set [him] up in an act” and that “Alex was a terrible communicator and never addressed any work issues,” such as wanting the plaintiff to work on Saturdays when he did not agree to work every Saturday (id.). He further alleges that Jen treated him “differently and more harshly than white employees and other ethnic minorities” (id.). He contends that Jen degraded him and “thus made the environment so hostile that [he] was out of work for nearly two weeks due to her treatment . . . “ (id.). When the plaintiff returned to work, the plaintiff and Jen got into an argument in which “both used profanity,” Jen terminated his employment, and Alex “told [the plaintiff] to get out” (id. at 4). The plaintiff was told that if he returned to the premises, GB&D would call the police because they believed he was dangerous and aggressive (id.). He alleges that he returned on one occasion, but not to the defendant's establishment, and was told that the defendant was calling the police, so he left immediately (id.). The plaintiff alleges that he was harassed and terminated from employment because he is Hispanic and due to the color of his skin (id.).
In his one cause of action brought pursuant to Section 1981 and Title VII, the plaintiff alleges that he was qualified for his position; performed his job satisfactorily; the defendant terminated his employment “because of his race, color of his skin, and nationality”; the discrimination was intentional and willful; and, as a result of such discrimination, he suffered a loss of income, humiliation, loss of reputation, and other special and general damages (doc. 1-1 at 4, comp.).
III. APPLICABLE LAW AND ANALYSIS
The plaintiff's complaint alleges (1) that he was treated differently than other employees during the course of his employment with the defendant because of his race, color, and national origin and (2) that he was terminated from employment because of his race, color, and national origin (doc. 1-1 at 3-4). In the motion to dismiss now before the court for consideration, the defendant argues that, when read in the light most favorable to the plaintiff, the complaint fails to allege any facts from which it could be reasonably inferred that he was discriminated against in either regard (doc. 10-1 at 3-7). The undersigned agrees.
A. Rule 12(b)(6) 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).
“In 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. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). 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 v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). 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)). 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).
B. Title VII and Section 1981
Title VII makes it “an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . .” 42 U.S.C. § 2000e-2(a)(1). Section 1981 states, in relevant part, that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C § 1981(a). The standards applicable to lawsuits under Section 1981 are the same as the standards applicable to lawsuits under Title VII, with the same case law being used to evaluate a claim under either statute. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (recognizing Title VII and § 1981 claims are governed by the same standard).
1. Disparate Treatment
In Woods v. City of Greensboro, the Court of Appeals for the Fourth Circuit stated that a plaintiff “need not plead facts sufficient to establish a prima facie case of race-based discrimination to survive a motion to dismiss,” but, rather, the “pleading standard established in Iqbal and Twombly applies[.]” 855 F.3d 639, 648 (4th Cir. 2017) (citations omitted). As noted in Woods, “a plaintiff is nonetheless 'required to allege facts to satisfy the elements of a cause of action created by [the relevant] statute' in compliance with Iqbal.” Id. (quoting McCleary-Evans v. Maryland Dep't of Trans., 780 F.3d 582, 585 (4th Cir. 2015)). See Holloway v. Maryland, 32 F.4th 293, 298-9 (4th Cir. 2022) (finding the district court erred in requiring the plaintiff to plead facts establishing a prima facie case of discrimination and noting that “to state a claim for unlawful termination, a Title VII plaintiff must allege facts sufficient to raise a plausible inference that his employer discharged him because of his race” (citations omitted)). In other words, at the motion to dismiss stage the question “is whether [the plaintiff] alleges facts that plausibly state a violation of Title VII ‘above a speculative level.'” Bing v. Brivo Sys., LLC, 959 F.3d 605, 617 (4th Cir. 2020) (quoting Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Circ. 2010)). “To that end, reference to the prima facie case informs a court's evaluation of a motion to dismiss.” Tynes v. Mayor and City Council of Baltimore, C. A. No. 1:22-cv-1452-ELH, 2023 WL 2664233, at *10 (D. Md. Mar. 28, 2023) (citations omitted). The elements of a prima facie case for a disparate treatment claim are: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Forgus v. Mattis, 753 Fed.Appx. 150, 153 (4th Cir. 2018) (citation and internal quotation marks omitted).
As argued by the defendant, the plaintiff has failed to state a claim for disparate treatment that is plausible on its face because he has failed to allege any facts to justify an inference that the defendant discriminated against him because of his race, color, or national origin. 42 U.S.C. § 2000e-2(a)(1) (stating that it is an unlawful employment practice for an employer to discriminate against any individual “because of such individual's race, color, . . . or national origin. . . ”) (emphasis added). Specifically, the plaintiff alleges only that GB&D's chef “would degrade [him] and think less of [him]” and generally “treated him “differently and more harshly than white employees and other ethnic minorities” (doc. 1-1 at 3, comp.) without alleging any facts about how the chef allegedly degraded him and how such conduct differed from her treatment of non-Hispanic employees. As the Supreme Court of the United States stated in Iqbal, “[A] complaint [will not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'” 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Without any such factual allegations, the complaint fails to “raise a right to relief above the speculative level” and fails to state a claim to relief for disparate treatment that is plausible on its face. Cf. Woods, 855 F.3d at 651 (finding that the plaintiff had pleaded sufficient facts to justify an inference that the defendant treated it differently from the way it treated nonminority businesses under arguably similar circumstances and that it did so on account of race).
In his response and sur-reply, the plaintiff fails to address any reason why he contends the factual allegations in his complaint are sufficient to survive the defendant's motion for dismissal pursuant to Rule 12(b)(6) (see docs. 14, 20). Instead, in his response to the motion to dismiss (doc. 14), the plaintiff argues about the identity of the defendant's owner and addresses his previous willingness to voluntarily dismiss this action if the defendant would meet various terms (id. at 1-2). The plaintiff also includes as an attachment to his response two pages of text messages between himself and Alex regarding the plaintiff's termination from employment, along with the plaintiff's handwritten notes (doc. 14-1). In his sur-reply (doc. 20), the plaintiff again addresses his previous willingness to resolve the case and other facts not included in his complaint - e.g., that he sent a text message to Alex on February 25, 2022; that he took planned days off on February 19-20, 2022; and that February 26-27, 2022, were not planned days off but were instead taken because Jen “had a problem with [the plaintiff] and decided to provoke and set [him] up in act because she only cares about her paycheck” (id. at 1).
As argued by the defendant in its reply (doc. 16 at 3), factual matters outside of the allegations of the plaintiff's complaint are not properly considered on a Rule 12(b)(6) motion to dismiss. Halscott Magero, P.A. v. McCollum, 66 F.4th 151, 157 (4th Cir. 2023) (“Courts are limited to considering the sufficiency of the allegations set forth in the complaint and the documents attached or incorporated into the complaint . . . .” (citation omitted)). Moreover, the text messages referenced in and attached to the plaintiff's response to the motion to dismiss are not properly considered on a Rule 12(b)(6) motion to dismiss as the document was not attached to or incorporated into the complaint nor was it integral to and explicitly relied on in the complaint. E.I. du Pont de Nemours & Co., 637 F.3d at 448. Furthermore, the plaintiff's assertions regarding potential settlement discussions with the defendant are irrelevant and inappropriate for consideration on the motion now before the court. Accordingly, the undersigned has disregarded all factual matters and documents submitted by the plaintiff outside of his complaint and considered only the allegations set forth in the plaintiff's complaint, as discussed above.
Based upon the foregoing, the plaintiff's complaint fails to state a claim for disparate treatment that is plausible on its face, and, therefore, the defendant's motion to dismiss this claim should be granted.
2. Discriminatory Discharge
As set out above, a plaintiff does not need to plead facts sufficient to establish a prima facie case of discrimination to survive a motion to dismiss. Woods, 855 F.3d at 648. However, “reference to the prima facie case informs a court's evaluation of a motion to dismiss.” Tynes, 2023 WL 2664233, at *10. The elements of a prima facie case for a discriminatory discharge claim are: (1) plaintiff is a member of a protected class; (2) he was qualified for his job and his job performance was satisfactory; (3) he was fired; and (4) other employees who are not members of the protected class were retained under apparently similar circumstances. Phillips v. Bimbo Bakeries Unites States, C. A. No. 5:20-2483-JMC-SVH, 2020 WL 6809111, at *2 (D.S.C. Aug. 18, 2020) (citing Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002)), R&R adopted by 2020 WL 6806660 (D.S.C. Nov. 19, 2020).
With regard to the discriminatory discharge claim, the plaintiff alleges in his complaint that Jen treated him “differently and more harshly than white employees and other ethnic minorities”; Jen degraded him and “thus made the environment so hostile that [he] was out of work for nearly two weeks due to her treatment . . . “; when he returned to work, the plaintiff and Jen got into an argument in which “both used profanity”; Jen terminated his employment, and Alex “told [the plaintiff] to get out” (doc. 1-1 at 3-4, comp.). While the plaintiff also alleges that he was qualified for his position, performed his job satisfactorily, and GB & D terminated his employment “because of his race, color of his skin, and nationality” (id. at 4), “'a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). As with the disparate treatment claim, the plaintiff again “tenders 'naked assertions]' devoid of 'further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). The plaintiff's complaint fails to state a claim for discriminatory discharge because he fails to “allege facts sufficient to raise a plausible inference that his employer discharged him because of his race[,]” color, or national origin. Holloway, 32 F.4th at 299 (citations omitted) (emphasis added). See 42 U.S.C. § 2000e-2(a)(1) (stating that it is an unlawful employment practice for an employer to discharge any individual “ because of such individual's race, color, . . . or national origin. . . ”) (emphasis added). Accordingly, the defendant's motion to dismiss should be granted as to this claim.
IV. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the defendant's motion to dismiss for failure to state a claim (doc. 10) should be granted. The plaintiff's factual allegations in his complaint are insufficient to support his theories of legal liability, and there is no indication in the plaintiff's response and sur-reply (docs. 14, 20) 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 the complaint for failure to state a claim, and close this case.
As noted above, the plaintiff alleges additional facts in his response and sur-reply that were not alleged in his complaint (docs. 14, 20). However, even if the court allowed the plaintiff to amend his complaint to allege those additional facts, they do nothing to save his claims as the plaintiff has failed to indicate any facts sufficient to raise a plausible inference that the defendant discriminated against him and/or terminated his employment because of his race, color, or national origin.
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).