Opinion
C. A. 1:23-3858-JFA-SVH
03-15-2024
Fantasia Chandler, Plaintiff, v. SC House Calls, Inc., Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Fantasia Chandler (“Plaintiff”) sues her former employer, alleging she was denied a pay raise and forced to quit her position as a nurse practitioner because of her former employer's discriminatory practices. The former employer seeks dismissal.
Plaintiff asserts four claims against by S.C. House Calls, Inc. (“Defendant”): breach of contract, breach of contract with fraudulent intent, race discrimination in violation of 42 U.S.C § 1981, and defamation. [See ECF No. 1]. Plaintiff additionally refers to “Title VII of the Civil Rights Act of 1964, as amended (42 USC § 2000e et. seq.) [(“Title VII”)], the South Carolina Human Affairs Law [(“SCHAL”)], and the United States Equal Employment Opportunity Laws [(“EEO”)].” Id. ¶ 68.
Defendant informs the court that it was formerly incorporated as Agape Senior Primary Care, Inc., but changed its name with the South Carolina Secretary of State in early 2019 to S.C. House Calls, Inc. [See ECF No. 8 at 2 n.1].
This matter comes before the court on Defendant's motion to dismiss. [ECF No. 8]. Because Defendant presented matters outside the pleading in conjunction with its motion to dismiss, the court gave notice to the parties of its intent to treat Defendant's motion to dismiss as one for motion for summary judgment. [See ECF No. 10]. The motion having been fully briefed [ECF Nos. 12, 13], it is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion.
I. Factual and Procedural Background
Plaintiff alleges that she began working for Defendant as a nurse practitioner in August 2019, providing in-home care, evaluation, treatment, and medical assistance for patients with limited mobility or transportation issues. [ECF No. 1 ¶¶ 5-6]. Plaintiff alleges that due to her race as an African American, she was hired by Defendant at a lower salary than other Caucasian nurses. Id. ¶ 8. Defendant assured Plaintiff that her low salary was common because she would have the opportunity to receive bonuses that would supplement her pay and ensure higher earnings. Id. ¶ 9.
Plaintiff alleges her Caucasian counterparts had not been given similar low pay, nor were they informed that a bonus structure would supplement a lower salary. Id. ¶ 10. Plaintiff alleges the bonuses were difficult to achieve and that many nurses were unable to secure the promised off-set of income increase.
At the time of Plaintiff's hiring, Defendant had a payment system comprised of billing and coding, which included both at-home and telephone visits with patients. Id. ¶ 12. Plaintiff alleges that Defendant would encourage nurse practitioners to adjust their billing and coding invoices to appear that more billing was required. Plaintiff alleges that in turn, upon information and belief, Defendant would receive more money for how often and for how long a nurse practitioner spent in the home of the patient. Id. ¶ 14.
Plaintiff alleges that although several nurse practitioners complained of these billing and coding practices, only she was reprimanded for her complaints. Id. ¶ 13. Further, Plaintiff was additionally reprimanded for following appropriate coding and billing procedures despite the pressure by Defendant to deviate from them. Id. ¶ 15. Plaintiff alleges she feared reprimand or a loss of her license if she complied with the expectations of her supervisors in violation of her standards of professionalism. Id. ¶ 17. She alleges the unethical practices became more aggressive when Defendant transitioned into S.C. House Calls. Id. ¶ 18.
Plaintiff alleges that Defendant's changes to the billing and coding practices due to COVID-19-which incentivized only telehealth calls between patients, as opposed to home visits-directly affected nurse practitioners like Plaintiff. Id. ¶ 19. Plaintiff alleges telehealth calls were infrequent, and along with the bonus structure, greatly increased the disparity in pay she faced. Id. ¶ 20.
In August 2021, Plaintiff requested a pay raise. Id. ¶ 21. She claims that in addition to having worked for Defendant as a valued employee for over a year, she noticed that new, Caucasian hires were not only being hired at a higher rate of pay, but also were recent graduates, did not make in-home visits, worked via telephone communication with patients, and/or had less overall medical experience than Plaintiff. Id. ¶¶ 21-22.
Plaintiff's supervisor, Jennifer Kistler (“Kistler”), a Caucasian female, denied Plaintiff's raise. Id. ¶ 23. Plaintiff's raise was further denied by the Caucasian male Director of Operations Matt Whitehead. Id. Kistler informed Plaintiff that salaries were non-negotiable and did not change, which Plaintiff alleges was an inaccurate statement made solely because of her race as an African American and not due to any policy or procedure. Id. ¶ 24.
After her request, Plaintiff alleges she endured an increasingly racially hostile and racially discriminatory work environment because of her race and in retaliation for requesting more, racially-equal, and experience-based pay. Id. ¶ 25. Plaintiff says she was disciplined and chastised more harshly than her Caucasian counterparts. Id. ¶ 26. Plaintiff alleges that “Defendant's agents made a habit of verbally reprimanding and counseling Plaintiff about the unethical billing practices she wished not to follow-in which Defendant wanted Plaintiff to falsify her time spent with patients.” Id. ¶ 27.
Plaintiff alleges that her Caucasian counterparts were counseled, but did not face threats to their employment, denial of raises, nor were they consistently monitored and pressured to make false statements for their refusal to alter billing. Id. Defendant instead made a habit of voluntarily transferring or moving Caucasian nurses to different departments or roles instead of reprimanding them. Id. ¶ 28.
In contrast, Plaintiff alleges she faced major involuntary changes to her employment because of her race and in retaliation for asking for a raise. Id. Around December 2021, Plaintiff was informed that she would be reassigned to a different territory of patients and that her current territory would be assigned to a newly promoted, full-time Caucasian hire. Id. ¶ 29. Since her hiring, Defendants assigned Plaintiff to a territory that was reasonably located to her home upon a mutual agreement at her onboarding. Id. ¶ 30. Plaintiff alleges she maintained the territory for nearly two years until Defendant retaliated against her when they reassigned her to a new area that would require a commute of over an hour each way. Id. When Plaintiff inquired about the change, she was told by Defendant's agents that the promoted employee would have to drive too far. Id. ¶ 31. However, Plaintiff alleges Defendant's racial animus and race-based retaliation due to her wage concerns fueled this change, as Plaintiff discovered that she and the Caucasian new hire would have the same commute to the new location. Id.
Plaintiff alleges that she continued to endure racial animosity and learned that new, Caucasian employees were hired at a higher pay rate and some current, Caucasian counterparts had received raises, contrary to what her supervisor told her. Id. ¶ 32. Plaintiff alleges that because of her race, she was then underpaid and travelling very far from her agreed-upon location for work. Id. Plaintiff alleges she could no longer endure the situation, and in February 2022, resigned her employment with Defendant. Id. ¶ 33.
Plaintiff alleges that when she originally was hired, she entered a covenant not to compete (“covenant”), which restricted her from working with employers who were partners of Defendant following her employment. Id. ¶¶ 35, 38. However, after she resigned her employment with Defendant, Plaintiff alleges that Defendant prevented her from obtaining employment with an employer who was new to the state and had no prior affiliations with Defendant. Id. ¶¶ 38-39.
“On a motion to dismiss courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Cobin v. Hearst-Argyle Television, Inc., 561 F.Supp.2d 546, 550 (D.S.C. 2008) (citations and emphasis omitted); see also Martineau v. Wier, C/A No. 3:16-2650-SAL, 2020 WL 5757520, at *3 (D.S.C. Sept. 9, 2020) (“A court may also consider documents attached to a defendant's motion to dismiss if the document is integral to and explicitly relied on in the complaint, provided the plaintiff does not challenge the authenticity of the document.”). Defendant has submitted to the court in conjunction with its motion to dismiss four documents, including an employee agreement and employee handbook. [See ECF Nos. 14-1, 14-4]. In an abundance of caution, however, the court gave notice to the parties of its intent to treat Defendant's motion to dismiss as one for motion for summary judgment to consider these documents. [See ECF No. 10]. These documents solely concern Plaintiff's breach of contract claims.
She alleges the covenant “effectively forbade Plaintiff from finding employment as several potential employers rescinded her opportunity to interview and/or become employed due to the covenant.” Id. ¶ 42, 48. Plaintiff alleges she is unaware of any similarly-situated Caucasian employees who left Defendant and were held to such a restrictive covenant and that she was held to this arbitrary standard due to her race. Id. ¶ 44. Plaintiff was further placed on Defendant's do-not-rehire list, despite having no formal discipline or other record with the company that would necessitate such a decision. Id. ¶ 47. Plaintiff asserts that all Defendant's actions were a result of race-based discrimination and retaliation for voicing her protected complaints. Id. ¶ 43.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsbor o, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Be l Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
C. Analysis
1. Breach of Contract Claims
In her breach of contract claim, Plaintiff alleges that Defendant “maintains an employee handbook” (“handbook”), that Defendant made assurances to her that it “would act pursuant to [the] policies and procedures” as found in the handbook including antidiscrimination policies, Plaintiff relied on these assurances, and “Defendant, through its agents, unjustifiably failed to perform their contractual duties by racially discriminating against and racially harassing Plaintiff.” [ECF No. 1 ¶¶ 51- 53, see Id. ¶ 56 (“Defendant's conduct, by and through its agents, was done in bad faith and breached the implied covenant of good faith and fair dealings that is implied in the employment contract.”)].
Neither Plaintiff's first cause of action for breach of contract, nor second cause of action for breach of contract with fraudulent intent reference specific compensation terms or the covenant and instead focus on race discrimination, including racially-disparate treatment. [See ECF No. 1 ¶¶ 50-63, see also, e.g., Id. ¶ 61 (“In furtherance of such intentional design, Defendant, through its agents, intentionally and maliciously placed Plaintiff in a position of being subjected to extreme racial harassment and disparate treatment under the guise of protecting her from the same. Defendant ensured Plaintiff that she would not be subjected to the racially disparate treatment, harassment, and other policy violations which Defendant continuously meted out to Plaintiff. It became readily apparent to Plaintiff that Defendant's false reassurances were fraudulent as Defendant's continual violations of its own policies demonstrated.”)].
Defendant argues Plaintiff's breach of contract claim is subject to dismissal as barred by S.C. Code Ann. § 41-1-110, which provides:
It is the public policy of this State that a handbook, personnel manual, policy, procedure, or other document issued by an employer or its agent after June 30, 2004, shall not create an express or implied contract of employment if it is conspicuously disclaimed. For purposes of this section, a disclaimer in a handbook or personnel manual must be in underlined capital letters on the first page of the document and signed by the employee. For all other documents referenced in this section, the disclaimer must be in underlined capital letters on the first page of the document. Whether or not a disclaimer is conspicuous is a question of law.
Defendant has provided a page from its employee handbook that states as follows:
(Redacted)
[ECF No. 8-1 at 9-10, see also ECF No. 8-2 at 1, ECF No. 8-4 at 1-2]. On the same page, Plaintiff acknowledges receipt, with her name and signature, dated on August 29, 2019, as follow:
(Redacted)
Defendant additionally argues that Plaintiff's breach of contract claims should be dismissed because Plaintiff has:
(1) failed to identify any specific policy or procedure in the handbook that would create a binding contract where Defendant has strictly followed the requirements set forth in S.C. Code Ann § 41-1-110; and (2) even if Plaintiff had identified specific language in the LTC Management, LLC Employee Handbook, courts have repeatedly held that typical anti-discrimination language found in employee handbooks, alone, does not constitute a contract.[ECF No. 8 at 7 (citing Babayan v. Delfin Grp. USA LLC, C/A No. 2:13-2667-PMD, 2014 WL 5488405, at *9-10 (D.S.C. Oct. 29, 2014))].
In response, Plaintiff argues only that she was “made mandatory promises regarding compensation, which were later reneged upon,” although she does not identify any specific portion of any agreement she is referencing, further arguing that she “believes more discovery is necessary, to determine the authenticity of any relevant documents.” [ECF No. 12 at 10, see also Id. at 7-10].
The court is not persuaded. Plaintiff was provided notice that the court intended to treat Defendant's motion to dismiss as one for summary judgment, and, although Plaintiff admits she was provided adequate notice, she “disputes the authenticity of the documents provided by Defendant, which as of yet have not been exchanged in discovery.” Id. at 7.
Fed. R. Civ. P. 12(d) provides, “[i]f, 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.” Plaintiff admits she was provided a reasonable opportunity to present all the material pertinent to Defendant's motion and has failed to do so, instead arguing without further explanation or support that the document provided by Defendant bearing Plaintiff's signature may not be authentic. This is insufficient to meet her burden in response to Defendant's motion.
Plaintiff appears to argue that even if the court finds that the relevant disclaimer provided by Defendant meets the mandates of S.C. Code Ann. § 41-1-110, the court should continue its analysis and “focus[] on whether the handbook contained a promise,” as found in Hessenthaler v. Tri-Cnty Sister Help, 616 S.E.2d 694 (S.C. 2005). [See ECF No. 12 at 9-10]. However, that case concerned an employee who was terminated in 1996 and did not examine the facts of the case in context of S.C. Code Ann. § 41-1-110, although the court, in a footnote, noted the recently-enacted statute. See Hessenthaler, 616 S.E.2d at 695-97 & n.5; see also, e.g., Smith v. City of Anderson, C/A No. 8:15-3395-TMC-KFM, 2017 WL 486934, at *4 (D.S.C. Jan. 20, 2017) (“Here, the City's policies and disclaimers, taken together, establish that an enforceable promise does not exist. The City's employee handbook contains a disclaimer that is underlined and in capital letters stating that the recipient acknowledges that the handbook is not an employment contract and that his employment is at-will The plaintiff signed the disclaimer.”) (citations omitted)), report and recommendation adopted, C/A No. 8:15-3395-TMC, 2017 WL 479525 (D.S.C. Feb. 6, 2017).
Plaintiff does not argue that the disclaimer at issue fails to satisfy the mandates of S.C. Code Ann. § 41-1-110, nor does she indicate how additional discovery could aid in this analysis. Plaintiff has failed to show how the handbook created an implied or express employment contract that could have been breached. See S.C. Code Ann. § 41-1-110.
Even if the court were to find the relevant disclaimer insufficient as a matter of law, Plaintiff would also have to identify portions of the handbook that are mandatory, applicable to her, and were breached. See, e.g., Daniels v. Harsco Corp., C/A No. 3:22-2752-JFA-KDW, 2023 WL 2815337, at *10 (D.S.C. Feb. 9, 2023) (“However, finding the disclaimer is not conspicuous as a matter of law does not end the court's analysis. Plaintiff must also identify portions of the Handbook that are mandatory, are applicable to him, and were breached.”) (citing Grant v. Mount Vernon Mi ls, Inc., 634 S.E.2d 15, 20 (S.C. Ct. App. 2006), report and recommendation adopted, C/A No. 3:22-2752-JFA-KDW, 2023 WL 2569438 (D.S.C. Mar. 20, 2023). Plaintiff has not done so here.
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss, treated as a motion for summary judgment, and dismiss Plaintiff's claims for breach of contract with prejudice.
Plaintiff has also brought a breach of contract with fraudulent intent claim that the undersigned recommends should be dismissed for the same reasons identified above. Additionally, Plaintiff fails to address Defendant's argument that she has “fail[ed] to establish fraudulent intent and d[id] not allege a fraudulent act” and that her allegations “fail to rise to the level of particularity required under Federal Rule 9(b)'s heightened pleaded standard, as Plaintiff failed to identify the time, place, or contents of the false representation.” [ECF No. 8 at 10, see also ECF No. 12].
2. Claim of Race-Discrimination under 42 U.S.C § 1981
Section 1981 provides in relevant part that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Courts rely on the McDonnell Douglas burden-shifting framework to evaluate 42 U.S.C. § 1981 claims of race-based discrimination in employment where, as here, the plaintiff does not provide any direct evidence of discrimination. Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004). However, the Supreme Court has clarified that McDonnell Douglas does not address the causation standard relevant for 42 U.S.C. § 1981 racial-discrimination claims. Comcast Corp. v. Nat/l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020). Instead, to survive a motion to dismiss on such a claim, “a plaintiff must initially plead . . . that, but for race, [she] would not have suffered the loss of a legally protected right.” Id.
To establish a prima facie case of race discrimination pursuant to 42 U.S.C. § 1981, “an employee must eventually show (1) membership in a protected class, (2) satisfactory job performance, (3) an adverse employment action, and (4) that such adverse employment action occurred ‘under circumstances giving rise to an inference of unlawful discrimination,'” such as she was treated differently from similarly-situated employees outside her protected class. Ofoche v. Apogee Med. Grp., Virginia, P.C., 815 Fed.Appx. 690, 692 (4th Cir. 2020) (citing Adams v. Tr. of Univ. of N.C. -Wilmington, 640 F.3d 550, 558 (4th Cir. 2011); see also Irani v. Palmetto Health, 767 Fed.Appx. 399, 418 (4th Cir. 2019).
Plaintiff argues she has met the relevant standard:
First, there is no dispute that Plaintiff is a member of a protected class as an African American. Second, Plaintiff by all accounts performed her job in a satisfactory manner. Third, Plaintiff suffered an adverse employment action when she was denied a raise and ultimately forced to resign. Fourth, she was treated differently than other similarly-situated Caucasian nurse practitioners in that she was subjected to numerous instances of retaliation for refusing to follow Defendant's unethical billing practices, and ultimately held to a more restrictive covenant than her Caucasian counterparts. Therefore, Plaintiff has adequately proven her discrimination claim.[ECF No. 12 at 11-12]. The court considers each of Plaintiff's arguments in turn below.
a. Pay Raise Denied
Plaintiff's allegation in full as to her denial of a raise states:
Plaintiff's supervisor, Jennifer Kistler (Caucasian Female), denied Plaintiff the raise and stated to the plaintiff that Mr. Matt Whitehead (Caucasian Male), Director of Operations, was informed of Plaintiff's request and also declined to approve a raise.
Ms. Kistler also stated to Plaintiff that salaries upon onboarding are non-negotiable and do not change. Plaintiff contends that her race, not a policy, procedure, or Plaintiff's quality of work was the cause of Ms. Kistler's statements . . . .
While Plaintiff continued to endure the racial animosity meted out to her by her supervisors, she learned that new, Caucasian, employees were either hired at a higher pay rate and that some current, Caucasian, counterparts who received raises, contrary to what the plaintiff was told by her supervisor. Because of her race, the plaintiff was now both underpaid and had to travel very far from her agreed upon location.[ECF No. 1 ¶¶ 23-24, 32, see also Id. ¶ 15 (alleging “similarly situated Caucasian counterparts [were not denied] raises”)].
In sum, Plaintiff alleges she was denied a raise, was told raises were not provided, and learned that unidentified white counterparts received raises. Even if denial of a raise, where Plaintiff has also pleaded that a detailed pay structure was provided to her, were an adverse employment action, taking the allegations in light most favorable to her, the court finds she has failed to provide sufficient allegations to create a plausible inference that she was denied a pay raise because of her race.
The Fourth Circuit's opinion in Nadendla v. WakeMed, 24 F.4th 299, 305-06 (4th Cir. 2022), is instructive, where the court dismissed the plaintiff's claims pursuant to 42 U.S.C. § 1981 “[b]ecause her allegations do not provide sufficient detail to create a plausible inference that WakeMed's actions were because of Nadendla's race,” where the plaintiff alleged as follows:
Nadendla only generally alleges that “WakeMed similarly forced out one or more other physicians of Indian origin and removed their clinical privileges unjustifiably.” J.A. 24. She also alleges that WakeMed “treated [her] differently than Caucasian physicians similarly situated.” J.A. 25. Moreover, “a double standard of medical peer review exists at [WakeMed's] hospital whereby minority physicians are scrutinized more harshly by [WakeMed] than are Caucasian physicians.” J.A. 26. And Nadendla alleges that the reasons offered by WakeMed for the denial of her privileges and its refusal to abide by the process as laid out in the Bylaws were pretextual.
However, Nadendla provides no details about any of these conclusory allegations. For example, she does not give any facts to suggest that WakeMed's treatment of other physicians of Indian descent was unjustified. She does not provide any details about how the peer review process for physicians of Indian descent was different from the process for white physicians either. She does not even describe how she was treated differently than the similarly situated white physicians . . . .
Nadendla finally insists that she has sufficiently pled a claim for racial discrimination because she pled that “[b]ut for Plaintiff's race, [WakeMed]'s wrongful conduct [that] Plaintiff alleged herein would not have occurred.” J.A. 25. She argues further that she also pled that she “suffered numerous harms and damages ‘as a direct and proximate result' of the racial discrimination of [WakeMed].” J.A. 31. But as with her allegations about discrimination, her allegations about causation fall short. Instead, she alleges mere recitals of the elements of a cause of action, which, without specific facts supporting those elements, do not state a plausible claim for relief. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
Nadendla's allegations seem to be precisely the type that Iqbal and Twombly tell us are insufficient.
Here, too, the court finds insufficient Plaintiff allegations that she was denied a raise, was told raises were not provided, and learned that unidentified white counterparts received raises. “[A]lthough the plaintiff need not plead facts that constitute a prima facie case under the framework of McDonne l Douglas . . ., in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), a civil rights plaintiff retains the burden of alleging facts sufficient to state a claim entitling her to relief.” Harman v. Unisys Corp., 356 Fed.Appx. 638, 640 (4th Cir. 2009). Plaintiff has failed to do so here.
b. Voluntary Resignation
Plaintiff has failed to state a claim where her voluntary resignation does not constitute an adverse employment action. See, e.g., Benjamin v. Sparks, 986 F.3d 332, 352 (4th Cir. 2021) (“Here, there was no adverse action because the jury determined that Benjamin resigned voluntarily.”); cf. Laird v. Fairfax Cnty., 978 F.3d 887, 894 (4th Cir. 2020) (finding no “actionable adverse action” to support an employment-discrimination claim where the employee voluntarily requested a transfer).
Plaintiff may be arguing that she was constructively discharged. A constructive discharge claims requires a plaintiff to sufficient allege her “working conditions [became] so intolerable that a reasonable person in the employee's position would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016) (citing Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)); E.E.O.C. v. Consol. Energy, Inc., 860 F.3d 131, 144-45 (4th Cir. 2017). “[M]ere dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions” do not constitute objectively intolerable conditions. Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 262 (4th Cir. 2006) (citation omitted).
Here, Plaintiff has failed to allege objectively intolerable conditions that led her to resign. See, e.g., Evans v. Int'l Paper Co., 936 F.3d 183, 193 (4th Cir. 2019) (“Unless conditions are beyond ‘ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress.”) (citation omitted).
c. Disparate Discipline
Plaintiff also indicates she was subjected to disparate discipline. For example, she alleges as follows:
Plaintiff states that Defendant's agents would encourage nurse practitioners to adjust their billing and coding invoices to appear that more billing was required. In turn, upon information and belief, Defendant and/or the nurse supervisor would receive more money for how often and for how long a nurse practitioner spent in the home of the patient.
However, because of her race, Plaintiff would receive reprimand for her practice of correctly billing patients for her visits where her similarly situated Caucasian counterparts would not face threats of adverse employment action, reduction in or denial of raises, or any other mistreatment because of billing and coding decisions. Plaintiff asserts that her counterparts received suggestions to complete this unethical task where she, an African-American, faced harsher supervision, frequent talks, and suggestions of insubordination for her correct billing.[ECF No. 1 ¶¶ 14-15].
Plaintiff's claim based on these allegations is subject to dismissal. First, Plaintiff has failed to identify with any particularity how any disparate discipline she received “adversely affect[ed] the terms, conditions, or benefits of the plaintiff's employment.” Ho land v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (citation omitted). Although “[c]onduct short of ultimate employment decisions can constitute adverse employment action,” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir. 2004) (citation omitted), “adverse employment action . . . denotes some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it,” Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015). “An adverse action is one that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (citation omitted).
Although Plaintiff references “reprimands,” “threats,” and “discipline,” she has failed to allege that anything that occurred that affected the terms, conditions, or benefits of her employment. Additionally, Plaintiff has failed to sufficiently allege that the “similarly situated Caucasian counterparts” are appropriate comparators.
In assessing whether there is a proper comparator group, “[t]he similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.” Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008). That showing typically includes evidence that the employees “dealt with the same supervisor . . . [were] subject to the same standards[,] and . . .engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct.” Hurst v. Dist. of Columbia, 681 Fed.Appx. 186, 191 (4th Cir. 2017) (citing Mitche l v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). “Overall, the inquiry simply asks whether there are sufficient commonalities on the key variables between the plaintiff and the would-be comparator to allow the type of comparison that, taken together with the other prima facie evidence, would allow a jury to reach an inference of discrimination.” Swaso v. Onslow Cty. Bd. of Educ., 698 Fed.Appx. 745, 748 (4th Cir. 2017) (citing Eaton v. Ind. Dep't of Corr., 657 F.3d 551, 556 (7th Cir. 2011)). “The most important variables in the disciplinary context, and the most likely sources of different but nondiscriminatory treatment, are the nature of the offenses committed and the nature of the punishments imposed.” Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985).
Here, Plaintiff has failed to identify any characteristic of any comparator other than alleging they are Caucasian. This is insufficient.
d. Restrictive Covenant
Plaintiff argues she was treated differently from her Caucasian counterparts by being subjected to a more-restrictive covenant following her resignation. This claim fails for the same reason stated above, as Plaintiff has failed to provide any allegation indicating these comparators are in fact proper comparators. Plaintiff's claim based on these allegations also fails because she has failed to identify any comparator who was treated better than her where she alleges only as follows:
Plaintiff is unaware of any similarly situated Caucasian employees who left the defendant and were restricted from continuing to find work in the healthcare field due covenant and the assertions of Defendant and/or its agents in enforcing the covenant to further harm Plaintiff because of her race.[ECF No. 1 ¶ 44].
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to Plaintiff's race-discrimination claims pursuant to 42 U.S.C § 1981.
In her complaint, Plaintiff references Title VII, SCHAL, and the EEO. [ECF No. 1 ¶ 68]. Plaintiff has failed to address Defendant's arguments that these claims are barred for failure to exhaust administrative remedies. To the extent Plaintiff is attempting to assert any of these claims, the undersigned recommends dismissal of these claims. See Bryant v. Be l Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002) (“Before a plaintiff has standing to file suit under Title VII, he must exhaust his administrative remedies by filing a charge with the EEOC.”); Kramer v. Omnicare ESC, LLC., 307 F.R.D. 459, 464 (D.S.C. 2015) (“This exhaustion [of administrative remedies] requirement applies with equal force to claims filed pursuant to the SCHAL.”); Jaghinan v. Delfin Grp. USA LLC, C/A No. 2:13-2992-PMD, 2014 WL 5488407, at *3 n.4 (D.S.C. Oct. 29, 2014) (“Plaintiff's Amended Complaint does not contain any allegations relating to the exhaustion of his administrative remedies under SCHAL, and therefore to the extent Plaintiff is attempting to assert his claims under SCHAL, that statute should also be dismissed as an avenue for relief in the Complaint.”)).
3. Defamation Claim
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of the defendant's communications to others of a false message about the plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, to state a cause of action for defamation, a plaintiff must show the existence of some message that (1) is defamatory, (2) is published with actual or implied malice, (3) is false, (4) is published by the defendant, (5) concerned the plaintiff, and (6) resulted in legally presumed or in special damages. Parker v. Evening Post Pub. Co., 452 S.E.2d 640, 644 (S.C. Ct. App. 1994). “Defamation claims can be brought for either libel or slander. Libel is the publication of defamatory material by written or printed words, while slander is spoken defamation.” McGlothlin v. Henne ly, 370 F.Supp.3d 603, 611 (D.S.C. 2019) (citations omitted).
Plaintiff argues she has sufficiently alleged a defamation claim because she “has pled that the Defendant made defamatory statements regarding her work or at the very least, insinuated Plaintiff was unable to do her job by placing her on the Do-Not-Rehire List, for which an employee would normally be considered only if they were less than satisfactory.” [ECF No. 12 at 12, see also ECF No. 1 ¶ ¶ 47, 71-76 (“Since her resignation, Plaintiff has learned that she had been placed on Defendant's do not rehire list although she was never formally reprimanded, did not leave the defendant in a hostile or improper manner, and remained a faithful and ardent employee during her tenure with Defendant . . . . The Defendant published false statements of fact alleging that Plaintiff was guilty of misconduct. The false statements were circulated among the community through the Defendant and caused Plaintiff to suffer material harm to her reputation.”)].
Plaintiff's allegations are insufficient to state a defamation claim. She has not alleged any specific defamatory statements were made, to whom they were made to, or when they were made. As stated by this court:
A complaint that does not “state with specificity the time, place, medium, and listener of the alleged defamatory statements” fails to state a claim for defamation. Doe v. Cannon, 2017 WL 591121, at *1 (D.S.C. Feb. 14, 2017); see Carson v. Emergency MD, LLC, 2020 WL 5077655, at *5 (D.S.C. Aug. 25, 2020) (“Many courts applying South Carolina law have found that a lack of specificity in a plaintiff's allegations regarding a defamation claim warrants dismissal.”).Hughs v. Royal Energy Res., Inc., C/A No. 2:20-01566-DCN, 2020 WL 6689132, at *3 (D.S.C. Nov. 12, 2020).
Accordingly, the undersigned recommends the district judge grant Defendant's motion to dismiss as to Plaintiff's defamation claim. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion [ECF No. 8], dismissing Plaintiff's breach of contract claims with prejudice and Plaintiffs remaining claims without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).