Opinion
C.A. No. 2:18-cv-02533-DCN-MGB
12-20-2018
Cheryl Carter, Plaintiff, v. The Boeing Company, Defendant.
ORDER AND REPORT AND RECOMMENDATION
Plaintiff Cheryl Carter ("Plaintiff") brought this action pursuant to Title 42, United States Code, Section 1981. (Dkt. No. 1.) This matter is before the Court upon Defendant's Amended Motion to Dismiss Plaintiff's Third Cause of Action and to Strike References in the Complaint to Title VII, Age, Sex, and Disability Discrimination (Dkt. No. 6), and Plaintiff's Motion to Amend/Correct Complaint (Dkt. No. 10). 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 recommends that Plaintiff's third cause of action be dismissed, and orders that Plaintiff strike all remaining references to Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), and the Age Discrimination in Employment Act ("ADEA") from her Amended Complaint after the District Judge rules on Defendant's Amended Motion to Dismiss (Dkt. No. 6).
BACKGROUND
On May 23, 1988, Plaintiff began working for Defendant at the Kennedy Space Center in Florida. (Dkt. No. 1 ¶¶ 15, 24.) In 2010, Plaintiff made a lateral transfer to Defendant's location in Charleston, South Carolina as a K-level Quality Manager. (Id. ¶ 24.) In 2013, Plaintiff was transferred from the Quality Department to Defendant's Manufacturing Department. (Id. ¶ 26.) Plaintiff claims that she did not want this transfer, and that she had no experience in the manufacturing field. (Id. ¶ 27.) Around the time of the transfer, Plaintiff claims that the Senior Quality Manager had discussed Plaintiff's salary within earshot of other employees, and stated that Plaintiff was overpaid and did not interact well with her team. (Id. ¶ 26.)
At some point during the transition to her new department, Plaintiff filed an internal alternative dispute resolution form ("ADR"), based in part on the "moderately effective" rating she received on an evaluation as a Quality Manager. (Id. ¶ 27.) Plaintiff claims that Defendant's management team waited to notify her of this rating until the end of the year, thereby depriving Plaintiff of any feedback or the opportunity to improve her performance. (Id.) According to Plaintiff, the actions of management were "intentional to discriminate against [her] and prevent her from receiving a raise and promotional opportunities in the future." (Id.) The Complaint does not state the outcome of the ADR.
Sometime during the fall of 2014, Greg Garves ("Mr. Garves") became Plaintiff's Superintendent. (Id. ¶ 32.) Plaintiff claims that although Mr. Garves made her a team manager, he rewarded only the Caucasian male employees for their work performance. (Id. ¶¶ 32-33.) In 2015, Plaintiff filed an internal equal employment opportunity complaint regarding the alleged treatment she received from Mr. Garves. (Id. ¶ 34.) On June 2, 2015, Plaintiff claims that she complained to Defendant's Site Director about disparate treatment and leadership opportunities for black female employees at the Charleston facility, but nothing was done. (Id. ¶¶ 35-36.) Plaintiff claims that she also filed a "formal complaint" on August 17, 2015, stating that she was not being provided "any opportunity for advancement because of her race" and in "retaliation" for her previous complaints. (Id. ¶ 37.)
On September 15, 2015, Plaintiff alleges that she sent an email to Defendant's Human Resources Department, stating that she had submitted over seventy-eight internal applications for other positions with Defendant, and had received no inquiries despite meeting the position requirements. (Id. ¶ 39.) Following her email to Human Resources, Plaintiff claims that she applied for a number of other positions with Defendant, but was not interviewed or considered for those positions. (Id. ¶¶ 40-90.) In September 2017, Plaintiff claims she again contacted Defendant's Human Resources team and reported that "she was being discriminated against and retaliated against in her employment based on her race." (Id. ¶ 91.) Specifically, Plaintiff informed Human Resources that she had been rejected for several positions and that she believed the rejections were motivated by her race and previous complaints regarding discrimination. (Id. ¶ 92.) Following her complaint in September 2017, Plaintiff claims she submitted additional applications, but was not selected for any of the vacant positions. (Id. ¶¶ 93-107, 112-22.) According to Plaintiff, she was interviewed for only two of the positions to which she applied from 2015 to present. (Id. ¶ 123.)
On September 13, 2018, Plaintiff filed this Complaint against Defendant alleging: (1) race discrimination in violation of 42 U.S.C. § 1981; (2) retaliation in violation of 42 U.S.C. § 1981; and (3) hostile work environment in violation of 42 U.S.C. § 1981. (Id. ¶¶ 151-86.) On October 23, 2018, Defendant filed a Motion to Dismiss Plaintiff's Third Cause of Action for Hostile Work Environment and to Strike References in the Complaint to Title VII, Age, Sex and Disability Discrimination ("Motion to Dismiss and Strike"). (Dkt. No. 5.) Defendant filed an Amended Motion to Dismiss and Strike on October 25, 2018. (Dkt. No. 6.) On November 4, 2018, Plaintiff filed a Motion to Amend/Correct Complaint (Dkt. No. 10), and a Response in Opposition to Defendant's Motion to Dismiss and Strike (Dkt. No. 11). Plaintiff agreed to remove all references to Title VII, and age, sex and disability discrimination, and attached a proposed Amended Complaint with the requested revisions. (Dkt. No. 11 at 1; Dkt. No. 10-1.) On November 12, 2018, Defendant filed a Reply to Plaintiff's Response in Opposition, (Dkt. No. 12), and a Response in Opposition to Plaintiff's Motion to Amend/Correct Complaint, (Dkt. No. 13).
LEGAL STANDARD
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 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).
DISCUSSION
A. Motion to Dismiss Plaintiff's Third Cause of Action
Defendant first argues that the Court should dismiss Plaintiff's third cause of action because "the allegations in the Complaint do not support a cause of action for hostile work environment." (Dkt. No. 6 at 5.) "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 prevail on a claim for a racially hostile work environment, Plaintiff must show that there is (1) unwelcome conduct; (2) based on her race; (3) which is sufficiently severe or pervasive to alter the conditions of her 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. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)).
The same test applies to hostile work environment claims asserted under both 42 U.S.C. § 1981 and Title VII. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (noting that the elements are the same under § 1981 and Title VII).
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 she 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).
In support of her harassment claim, Plaintiff alleges only that Defendant "subjected [her] to a hostile work environment" based on her race, and that the "work environment was abusive, to the point of severe and pervasive." (Dkt. No. 1 ¶¶ 179-80.) Specifically, Plaintiff suggests that Defendant refused to consider her for the internal positions to which she applied in an effort to harass Plaintiff because of her race. (Id. ¶ 125.) As a result of this purported harassment, Plaintiff claims she suffered "severe emotional distress" and was forced to take a leave of absence, although it is unclear as to when this leave occurred and for how long. (Id. ¶¶ 124, 183.)
At the outset, the undersigned agrees with Defendant that Plaintiff's third cause of action merely recites the elements of a hostile work environment claim and, thus, fails to properly plead racially-based harassment. See Iqbal, 556 U.S. at 678 (noting that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to survive a motion to dismiss). Other than the conclusory allegations that Defendant harassed Plaintiff by rejecting her applications and refusing to "fix" her work environment, (Dkt. No. 1 ¶ 125), Plaintiff's Complaint does not provide any substantive details in support of her harassment claim. Indeed, Plaintiff does not allege any facts suggesting that a reasonable person in Plaintiff's position would have found the environment objectively hostile or abusive, or how Defendant's rejection of Plaintiff's applications created an abusive work environment. Moreover, Plaintiff does not allege that the positions in question were filled by Caucasian individuals, or provide any other facts that would suggest racial animous. Accordingly, the undersigned agrees with Defendant that Plaintiff's third cause of action fails to state a claim upon which relief may be granted. 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).
Notably, the proposed Amended Complaint attached to Plaintiff's Motion to Amend/Correct Complaint does not address the deficiencies in her third cause of action. (Dkt. No. 10-1.) Despite taking a second bite at the apple, Plaintiff did not add any details or facts to bolster her bare allegations of hostile work environment. --------
Even if the Court construed the Complaint generously and concluded that Plaintiff successfully pled a claim for hostile work environment, Plaintiff's allegations, without more, do not rise to the level of harassment contemplated by 42 U.S.C. § 1981. Indeed, Plaintiff's allegation that Defendant rejected her applications because of her race implies, at most, that Plaintiff was treated differently than her Caucasian colleagues; this allegation does not, however, show that Defendant's purported conduct was sufficiently severe or pervasive as to create an abusive atmosphere. See, e.g., Shack v. Beaufort Cty. Sch. Dist., No. CIV.A. 9:11-3201-DCN, 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); Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 191 (4th Cir. 2004) (dismissing plaintiff's hostile work environment claim because it was based on allegations of "professional frustrations" like a glass ceiling); cf. Spriggs, 242 F.3d at 184-86 (holding that supervisor's constant, daily use of racial epithets was sufficiently severe or pervasive to survive summary judgment). Accordingly, the undersigned recommends that Plaintiff's third cause of action for hostile work environment be dismissed for failure to state a claim.
B. Motion to Strike References to Title VII, ADA, and ADEA from Complaint
Next, Defendant correctly argues that Plaintiff failed to exhaust her administrative remedies prior to filing this lawsuit and, as a result, must strike from her Complaint all references to Title VII, the ADA, and the ADEA, as well as any allegations of discrimination based on age, disability, and sex. (Dkt. No. 6 at 7-9.) See Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012) (noting that a plaintiff must exhaust her administrative remedies by filing a charge with the Equal Employment Opportunity Commission before pursuing a suit in federal court under Title VII or the ADA); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (ADEA). In her Response in Opposition to Defendant's Motion to Dismiss and Strike, Plaintiff agreed to remove any and all references to age, disability, and sex discrimination, and attached a proposed Amended Complaint to her Motion to Amend/Correct Complaint reflecting these revisions. (Dkt. 11 at 1; Dkt. 10-1.)
Upon review of Plaintiff's proposed Amended Complaint, the undersigned agrees with Defendant that Plaintiff failed to remove several references to Title VII and the ADEA:
Paragraph 10: Jurisdiction of this cause arises under 42 U.S.C. 1981, Section 2000e-3(a), as amended by the Civil Rights Act of 1991 (CRA Section 91), 42 U.S.C. Section 1981A et seq.(Dkt. No. 10-1 ¶¶ 10, 148-50.) With respect to Paragraphs 148 and 149, Title 29, United States Code, Section 626 refers to the ADEA. See 28 U.S.C. 621 et seq. With respect to Paragraphs 10 and 150, Title 42, United States Code, Sections 2000e-3(a) and 2000e-5(k) refer to Title VII. See 42 U.S.C. § 2000a et seq. Accordingly, once the District Judge rules on whether or not Plaintiff's third cause of action must be dismissed, Plaintiff must remove these remaining references to age and sex discrimination in Paragraphs 10, 148, 149, and 150, and refile her Amended Complaint in this action.
Paragraph 148: Plaintiff seek [sic] all back pay and fringe benefits to which she is entitled under 29 U.S.C. Section 626(b), as well future damages and liquidated damages under the act.
Paragraph 149: As Plaintiff is seeking damages under 42 U.S.C. 1981A and 29 U.S.C. Section 626(b) Plaintiff also demands a jury trial as to all claims properly tried to a jury pursuant to 42 U.S.C. Section 1981(A)(c)(1) and pursuant to 29 U.S.C. Section 626(c)(2).
Paragraph 150: Pursuant to 42 U.S.C. Section 1988(c) and 42 U.S.C. Section 2000e-5(k), Plaintiff seeks her attorney's fees in bringing this action, including expert witness fees, and further seeks her costs associated with bringing this action pursuant to 28 U.S.C. 1920 of the Federal Rules of Civil Procedure, along with prejudgment and post-judgment interest pursuant to the law.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Motion to Dismiss Plaintiff's Third Cause of Action be GRANTED, and orders that Defendant's Motion to Strike be GRANTED, such that Plaintiff must remove any remaining references to Title VII, the ADA, the ADEA, and discrimination based on sex, disability, and age from her Amended Complaint. Plaintiff should refile her Amended Complaint after the District Judge rules on Defendant's Motion to Dismiss Plaintiff's Third Cause of Action.
IT IS SO ORDERED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE December 20, 2018
Charleston, South Carolina