Opinion
C. A. 6:22-cv-01152-TMC-JDA
10-25-2022
Jeremy Jones, Plaintiff, v. South Atlantic Galvanizing, Rusty Williams, Brian Solois, Defendants.[1]
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on a motion to dismiss filed by Defendants South Atlantic Galvanizing (“SAG”) and Rusty Williams (collectively, “Moving Defendants”). [Doc. 19.] Proceeding pro se, Plaintiff alleges claims for employment discrimination. [Docs. 1; 11.] 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.
Defendant Brian Solois has not been served. [See Doc. 32 (summons returned unexecuted on June 2, 2022).]
Plaintiff brought suit in this Court on April 8, 2022. [Doc. 1.] On June 13, 2022, Moving Defendants filed a motion to dismiss. [Doc. 19.] The next day, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 22.] Plaintiff filed a response in opposition to the motion on July 18, 2022, and Moving Defendants filed a reply on July 25, 2022. [Docs. 25; 28.] Accordingly, the motion is now ripe for review.
Plaintiff submitted 39 pages of attachments with his response. [Doc. 25-1.] He also submitted a non-standard item to the Court on July 18, 2022, and on July 21, 2022, he submitted a letter regarding medical records, along with attachments. [Docs. 26; 27.]
BACKGROUND
Plaintiff alleges he is a former employee of SAG. [Doc. 1 at 6.] He claims that he twice injured his arm and wrist while working for SAG, once in June 2020 and again in October 2020; he sought medical attention on October 17, 2020, for his injuries; he returned to work on October 19, 2020; and he was subsequently terminated. [Id. at 5-6; Doc. 4 at 1.] Plaintiff also alleges that he was intimidated, harassed, insulted, and verbally abused by Solois. [Doc. 1 at 6.] On August 24, 2020, Plaintiff emailed a complaint to Ann Somerville in SAG's human resources department (“the Complaint to SAG”), which stated as follows:
We[dne]sday the 19th of August my fiancee called [SAG to] notif[y] me that she had been in an accident and needed me [to] come get her. [Williams,] [SAG] plant man[a]ger[,] question[ed] my fiancee about her [whereabouts] as if he didn't believe her. My personal life is [m]y personal life [and] he had no right to question her. I was then wr[itten] up for leaving [to] take care of a personal matter. I would like to add that my safety is a big concern. I work around some very dangerous and very hazardous chemicals. Acid [a]nd [ammonia]. To add to [these] conditions almost every employee is intoxicated in some form [or] another on a daily basis. [I] spoke [to] my supervisor Br[ia]n about it multiple times stating that it is a safety hazard. I was told that [Williams] would rather get something done than nothing[.] I spoke to [Williams] about it after work today August 19th. I was told that if he drug tested everybody he would not have either shift 1st or 2nd.
Br[ia]n my supervisor ha[s] been very disrespectful to his employees. He snatched a remote to a crane out of anger telling me to give him the f****** remote and go get the next f****** job. I have been told [to] shut up numerous times[. T]his is very disrespectful and should not have to be tolerated. He has . . . referred to fellow employees as stupid motherf****** retarded and dumb. I feel fellow employees are afraid to speak up because of the fear of [losing their jobs]. I myself have seen many employees fired by Brian. [These] matters need to be addressed immediately.[Docs. 1-2 at 2 (asterisks added); 11 at 2.]
Plaintiff alleges that Williams told SAG employees that Plaintiff had made the Complaint to SAG. [Doc. 1 at 6.] Plaintiff alleges that his making the Complaint to SAG led to his “being verbally ass[a]ulted and threatened by Na'quone Smith.” [Id.; see Doc. 4 at 1 (alleging that Plaintiff was “retaliated [against] for using open door policy”).] Plaintiff alleges that Smith, like Williams and Solois, was a SAG employee. [Doc. 1 at 2, 6.]
Plaintiff subsequently filed a charge of discrimination (“the Charge”) with the Equal Employment Opportunity Commission (“EEOC”), stating in relevant part:
I Jeremy Jones would like to file a Charge of Discrimination against [SAG] . . .
Rusty Williams Plant manager ....
1) Racial
2) Age
3) retaliation
1) [I] was told I[']m white who they gonna bel[ie]ve me [or] you. [A]fter I filed complaint with [corporate] office.
Heard Supervisor Brian tell Kelvin Booker [h]e could not stand [h]is black ass after [h]e went to Supervisor William Rakes to complain about Brian.
Plant manager Rusty William[s] stated he pay[s] us for [our] backs and the work we were doing called g[r]unt work.
Cole who at the time was a supervisor in training state[d] the[y] were looking for muscle and no brains.
2) I complained to [corporate] office about why so many [young] black me[n were] working there but none in [the] office. I [tried] teaching them Osha law and was shunned for it[.]
3) I was fired shortly [a]fter I complained to Osha.
This all began [a]fter [the July Fourth holiday break] when Supervisor Brian [t]hrew ammonia pellets in zin[c] kettle and smoked the building out to the [p]oint we had to evacuate the building. Me and Kelvin [B]ooker talk[ed] to some employee about [complaining] to Osha. Grieg [A]nderson told Brian after we were targeted [until] we both were . . . fired. None of this happened until we wanted to complain.
I have additional information on file with Osha dates, voice [r]ecorder[, p]ictures, text, email, Facebook [messages.] [F]iled complaint with [corporate] office [August] 25, 2020.... [T]alked with Betty [H]armon[.] [F]iled complaint with [OSHA] on [the] first week [of September].[Doc. 19-2 at 2-3. The EEOC issued a notice-of-right-to-sue letter on January 10, 2022 [Doc. 1-1.]
Moving Defendants attached the Charge to their motion to dismiss. Because it is a public record, the Court takes judicial notice of its contents. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (stating that courts may take judicial notice of matters of public record, documents attached to the complaint, and documents attached to the motion to dismiss so long as they are integral to the complaint and authentic).
Construed liberally, Plaintiff's pro se Complaint, including his answers to this Court's special interrogatories, alleges Moving Defendants violated his rights under Title VII of the Civil Rights Act of 1964 (“Title VII”); the Americans with Disabilities Act (“the ADA”), the Genetic Information Nondiscrimination Act (“the GINA”), the Age Discrimination in Employment Act (“the ADEA”), and the Occupational Safety and Health Act (“OSHA”), and he also alleges state-law claims. [Docs. 1 at 5-6; 11.] As his injuries, Plaintiff identifies lost wages, cost of medical treatment, continued loss of sleep, and depression. [Doc. 1 at 5.] He also contends that he cannot perform some tasks at his current job, which is preventing him from advancing. [Id.] As his relief, he seeks money damages, including punitive damages. [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to considering the sufficiency of the allegations set forth in the complaint and the ‘documents attached or incorporated into the complaint.'” Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015). However, a court may also “consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). Additionally, “a court may properly take judicial notice of ‘matters of public record' and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.'” Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). However, Rule 201 restricts a court to taking judicial notice of adjudicative facts only if they are “not subject to reasonable dispute” insofar as they are “(1) generally known within the trial court's territorial jurisdiction; or (2) [capable of being] accurate and ready determined from resort to sources whose accuracy cannot reasonably be questioned.”
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that 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.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. (internal quotation marks omitted). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” (internal quotation marks omitted)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
DISCUSSION
Moving Defendants argue that it is not apparent from Plaintiff's Complaint what claims he intends to assert and what facts he alleges in support of those claims. [Doc. 191 at 5 & n.3.] Nonetheless, Moving Defendants maintain that they are entitled to dismissal of all claims that Plaintiff is even arguably alleging in this action. [Id. at 6-16.] The Court agrees.
Claims Against Employees in their Individual Capacities
Moving Defendants argue that, to the extent Plaintiff alleges claims against Williams in his individual capacity under the ADA, the ADEA, the GINA, and, Title VII, such claims must be dismissed because these statutes do not create or permit causes of action against employees in their individual capacities. [Doc. 19-1 at 14.] The Court agrees. Title VII, the ADEA, the ADA, and the GINA prohibit discriminatory acts by employers; employees are not liable in their individual capacities for violations of these statutes. Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (Title VII and ADEA); Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir.1999) (ADA); Gray v. Brent, No. 7:13-CV-198-BR, 2014 WL 1327011, at *3 (E.D. N.C. Apr. 2, 2014) (GINA).
For this reason, the Court recommends granting Moving Defendants' motion to dismiss to the extent that Plaintiff asserts claims under the ADA, the ADEA, the GINA, and Title VII against Williams in his individual capacity. For the same reason, the Court recommends dismissing such claims asserted against Solois in his individual capacity.
As stated, Plaintiff has not served Solois, and thus he has not joined in Moving Defendants' motion to dismiss. Nonetheless, Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute, which authorizes a court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). For the reasons explained in this Report and Recommendation, the Court concludes that to the extent Plaintiff brings this action against Solois, he has failed to state a claim against Solois and the claims against Solois should be dismissed on that basis. Alternatively, the undersigned recommends that Solois be dismissed without prejudice for lack of timely service. Plaintiff filed his Complaint on April 8, 2022. [Doc. 1.] The undersigned authorized service on all Defendants on May 10, 2022. [Doc. 14.] In that Order, the undersigned advised Plaintiff that any unserved defendant may be dismissed as a party if not served within the 90-day limit established by Rule 4(m) of the Federal Rules of Civil Procedure. [Id. at 3.] The Order further noted that the 90-day period would begin on the date on which the summons was issued. [Id. at 1.] A summons for Solois was issued on May 10, 2022. [Doc. 16.] However, on June 2, 2022, that summons for Solois was returned unexecuted with the notation “Solois no longer works [at] company and has moved to [Pennsylvania].” [Doc. 32.] Rule 4(m) provides that unless a particular defendant is served within 90 days after the complaint is filed, this Court must dismiss an action without prejudice as to that particular defendant or order that service be made within a specified time. Fed.R.Civ.P. 4(m). Here, the 90-day limit began to run when the summons was issued on May 10, 2022. [Doc. 16.] Therefore, the deadline for service on Solois was August 8, 2022. Because that deadline has passed, the undersigned recommends that Solois be dismissed from this action without prejudice to the extent that he is not dismissed on the basis of Plaintiff's failure to state a claim.
OSHA Claim
Moving Defendants argue that to the extent Plaintiff alleges a claim for discrimination and/or retaliation under the OSHA, such claims necessarily fail because that Act does not provide or create a private right of action. [Doc. 19-1 at 13-14.] The Court agrees.
As is relevant here, OSHA prohibits terminating or discriminating in any manner against an employee who “has filed any complaint or instituted or caused to be instituted any proceeding under or related to” OSHA. 29 U.S.C. § 660(c)(1). However, the Fourth Circuit has held that this provision does not provide a private right of action through which an individual can sue his or her employer. See Scarborough v. Aegis Commc'ns Grp., Inc., 217 F.3d 840, 2000 WL 790965 (4th Cir. 2000) (unpublished table decision). Accordingly, the Court recommends that Moving Defendants' motion to dismiss be granted to the extent Plaintiff alleges a claim under OSHA.
Failure to Exhaust Claims under the ADA or the GINA
Moving Defendants argue that SAG is entitled to dismissal of any claim raised under the ADA or the GINA because Plaintiff has failed to exhaust administrative remedies as to such claims. [Doc. 19-1 at 8-12.] The Court agrees.
Before filing suit under the ADA or the GINA, a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC. 42 U.S.C. § 12117(a) (ADA); 42 U.S.C. § 2000ff-6(a)(1) (GINA); Workman v. Bill M., No. 6:17-972-RBH-KFM, 2017 WL 4863055, at *4 (D.S.C. Aug. 29, 2017), Report and Recommendation adopted by 2017 WL 4843968 (D.S.C. Oct. 26, 2017), aff'd, 717 Fed.Appx. 278 (4th Cir. 2018). The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge” (internal quotation marks omitted)). Because the EEOC has the authority to investigate charges and take necessary action to reach a resolution of the claims, permitting a federal complaint to include allegations outside the scope of the predicate EEOC charge would circumscribe the EEOC's purpose as well as deprive the employer of notice of the plaintiff's charges. See Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002). Accordingly, only those claims stated in the initial administrative charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (affirming the district court's dismissal of some of the plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time barred).
For many years, it has been this circuit's law that this exhaustion requirement was jurisdictional. See Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013). However, in Fort Bend County v. Davis, 139 S.Ct. 1843 (2019), the Supreme Court held that “Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription deliniating the adjudicatory authority of the courts.” Id. at 1851. “Nonetheless, Fort Bend County did not soften the administrative procedural requirements of Title VII.” Monroe v. Brawo USA, Inc., 6:19-2268-HMH-KFM, 2019 WL 5790826, at *3 (D.S.C. Oct. 9, 2019) (internal quotation marks omitted), Report and Recommendation adopted by 2019 WL 5784989 (D.S.C. Nov. 6, 2019).
Where a charge alleges only a particular type of discrimination and does not allege facts suggesting any other improper motivation for the challenged adverse action, administration of other types of discrimination or retaliation cannot generally be reasonably expected. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009), abrogated on other grounds by Fort Bend Cnty. v. Davis, 139 S.Ct. 1843 (2019); Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). Thus, “a claim in formal litigation will generally be barred if the EEOC charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such as sex.” Jones, 551 F.3d at 300; see also Fowler v. S.C. Dep't of Corr., No. 3:10-cv-3230-JFA-PJG, 2012 WL 7678131, at *3 (D.S.C. Sept. 25, 2012), Report and Recommendation adopted by 2013 WL 876407 (D.S.C. Mar. 8, 2013). Nonetheless, because the administrative charges are generally completed without counsel, “courts construe them liberally.” Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005). And, in determining whether the exhaustion requirement has been met in any individual case, a court must endeavor to “strike a balance between providing notice to employers and the EEOC on the one hand and ensuring plaintiffs are not tripped up over technicalities on the other.” Sydnor v. Fairfax Cty., 681 F.3d 591, 594 (4th Cir. 2012).
Given that Plaintiff did not explicitly allege in the Charge that he was discriminated or retaliated against in violation of the ADA or the GINA, the exhaustion question becomes whether either of his claims under these two statutes “is reasonably related to h[is] EEOC charge such that it would have reasonably been expected to follow from an administrative investigation of that charge.” Miles v. Dell, Inc., 429 F.3d 480, 491-92 (4th Cir. 2005). Here, there is no such reasonable relation as Plaintiff, in the Charge, “makes no mention whatsoever of . . . an alleged disability, or any genetic information.” Workman, 2017 WL 4863055, at *5. Instead, the Charge focuses on issues of race and age discrimination and retaliation for making complaints concerning health and safety. Accordingly, the Court recommends that Plaintiff's motion to dismiss be granted as to any claim brought under the ADA or the GINA.
Plaintiff Fails to Plausibly Allege a Violation of Title VII
Moving Defendants argue that Plaintiff has failed to plausibly allege a violation of Title VII. [Doc. 19-1 at 7-8.] The Court agrees.
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . 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). Additionally, Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To state a plausible Title VII claim so as to survive a motion to dismiss, a plaintiff must allege facts that “allow a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 585 (4th Cir. 2015)..
Through the two clauses of the antiretaliation provision, Title VII protects activities that “fall into two distinct categories: participation or opposition.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). “Employees engage in protected oppositional activity when, inter alia, they complain to their superiors about suspected violations of Title VII.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (internal quotation marks omitted).
Plaintiff has not plausibly pled either type of Title VII claim here. Indeed, nothing in Plaintiff's Complaint, the attachments to his Complaint, or his answers to the Court's special interrogatories mentions Title VII discrimination or retaliation, nor do these documents mention anything about race or any other characteristic protected by Title VII. The only thing before the Court that references race or any other characteristic protected by Title VII is the Charge, which, as stated, Defendants attached to their motion to dismiss. However, even giving Plaintiff the benefit of every conceivable doubt and considering the facts alleged in the Charge for purposes of determining whether Plaintiff has plausibly alleged a Title VII violation, cf. Jackson v. Corp. Serv. Co., No. H-11-4404, 2013 WL 12177339, at *6 (S.D. Tex. Feb. 6, 2013) (construing the allegations in both the pro se complaint and the EEOC charge attached to the pro se complaint in considering the defendant's entitlement to dismissal for failure to state a claim), Plaintiff has not plausibly alleged a race discrimination claim.
In the Charge, Plaintiff alleged that Solois once told another employee that he could not stand the employee's “black ass” after the employee had lodged a complaint about Solois; that Plaintiff was told that SAG would believe Williams over Plaintiff regarding Plaintiff's complaints about Williams on the basis that Williams was white and Plaintiff was black; and that Plaintiff once complained to corporate that there were so many young, black men working for SAG but none in the office. [Doc. 19-2 at 2.] However, Plaintiff does not allege facts that would support an inference that Plaintiff was treated differently because of his race. In fact, he specifically alleges that he was terminated after a work-related injury and after he complained to OSHA regarding safety matters. [Docs. 1 at 6; 11 at 2; 19-2 at 2.] Because the facts alleged do not give rise to a non-speculative inference that Plaintiff was the victim of race discrimination, the Court recommends that Moving Defendants' motion to dismiss be granted as to any Title VII race discrimination claim. See Jones v. Karnick, Inc., No. 8:11-cv-01554-HMH-JDA, 2011 WL 6942938, at *3 & n.9 (D.S.C. Nov. 30, 2011) (holding that the amended complaint was “devoid of any facts from which to infer race- . . . based discrimination” when “[t]he only factual allegation . . . that implie[d] racial animus [wa]s that the area manager told [the plaintiff] she believed another employee instead of [the plaintiff] because the other employee was Caucasian”; explaining that “this single allegation is insufficient to state a claim of race discrimination because [the plaintiff] failed to allege the statement was connected in any way to” his termination), Report and Recommendation adopted by 2012 WL 13774 (D.S.C. Jan. 3, 2012).
Plaintiff does not identify who told him. [Doc. 19-2 at 2.]
Plaintiff fails to plausibly allege a Title VII claim for retaliation for similar reasons. Assuming that Plaintiff's complaint about young, black men not working in the office constituted protected activity, Plaintiff has not pled facts linking that statement to any adverse action taken against him, and again, as noted, he alleges that he was terminated shortly after he was injured after he made a different, non-race-related complaint about work safety. See Abraham v. Rohoho, Inc., No. 3:18-CV-3082-MGL-KDW, 2019 WL 1715657, at *8 (D.S.C. Mar. 27, 2019) (“Even if a protected act had been alleged, Plaintiff has offered no plausible linkage between such act and his termination. Instead, he has alleged he was terminated because he knew another individual who had made some sort of complaint to management.”), Report and Recommendation adopted by 2019 WL 1670800 (D.S.C. Apr. 17, 2019); see also Univ. of Tx. SW Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (holding that but-for standard of causation applies to Title VII retaliation claims). As with his Title VII race discrimination claim, the facts alleged do not give rise to a non-speculative inference that Plaintiff was a victim of Title VII retaliation.
Plaintiff's other complaints to the corporate office regarding being written up for taking care of a personal matter, safety concerns, and Solois being disrespectful to all employees [Doc. 1-2 at 2] do not constitute protected activity under Title VII because they are not complaints about suspected violations of Title VII.
For these reasons, the Court recommends that Plaintiff's Title VII claim, to the extent he asserts one, be dismissed.
Plaintiff Fails to Plausibly Allege a Violation of the ADEA
Moving Defendants also contend that Plaintiff has failed to plausibly allege a violation of the ADEA. [Doc. 19-1 at 7-8.] The Court agrees.
The ADEA “prohibits employers from refusing to hire, discharging, or otherwise discriminating against any person who is at least 40 years of age because of the person's age.” EEOC v. Balt. Cnty., 747 F.3d 267, 272 (4th Cir. 2014) (internal quotation marks omitted); see 29 U.S.C. §§ 623(a), 631(a). The ADEA also makes it unlawful for an employer to retaliate against an individual for complaining about conduct that violates the ADEA. 29 U.S.C. § 623(d). Here, Plaintiff does not allege that he is at least 40 years old or that he complained about discrimination against anyone at least 40 years old, nor does he allege facts from which it could be inferred that his age or complaints about discrimination against anyone at least 40 years old were causally related to any adverse action taken against him.
Again, giving Plaintiff the benefit of every conceivable doubt, for purposes of determining whether Plaintiff has plausibly alleged a violation of the ADEA, the Court considers the facts alleged in the Charge as well as those alleged in Plaintiff's Complaint, the attachments to his Complaint, and his answers to the Court's special interrogatories. Cf. Jackson, 2013 WL 12177339, at *6.
Accordingly, the Court recommends that Plaintiff's ADEA claim be dismissed as well.
Because the Court recommends dismissal of all of Plaintiff's federal claims for the reasons the Court has discussed, the Court declines to address Moving Defendants' additional arguments for dismissal of the federal claims. However, the Court notes that, to the extent Moving Defendants argue that the Charge was untimely, they fail to address the issue of whether his “inquiry in July” 2021 [Doc. 25-1 at 1] constituted a charge for statute-of-limitations purposes. See, e.g., Brown v. Bratton, No. ELH-19-1450, 2020 WL 886142, at *23 (D. Md. Feb. 21, 2020) (finding that the plaintiff's EEOC questionnaire was “the operative ‘charge' for the purpose of Title VII's limitations period”). They also fail to address whether at least some of the actions Plaintiff complained about in the Charge, including his termination, may have occurred after the September 14, 2020, date identified in the notice of charge as the last date that the complained-of actions allegedly occurred [Doc. 19-2 at 4], as suggested by the fact that Plaintiff alleges he returned to work after his second injury on October 19, 2020 [Doc. 1 at 5].
State-Law Claims against Moving Defendants
Construed liberally, Plaintiff's pro se Complaint alleges state-law claims based on his work-related injury and/or retaliation he suffered as a result of his complaining about health and safety violations. [Doc. 1 at 5-6.] Moving Defendants argue that, insofar as Plaintiff asserts any state-law claim arising from an injury incurred during the course of his employment with Defendant, such a claim should be dismissed under the exclusivity provision of the South Carolina Worker' Compensation Act (“the Act”). [Doc. 19-1 at 15-16.] The Court agrees.
Plaintiff's state-law claims can be heard by this Court through the exercise of supplemental jurisdiction, which allows federal courts to hear and decide state-law claims along with federal law claims. Federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” In deciding whether to exercise supplemental jurisdiction, courts look at “convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Applying these factors, the Court concludes that the factors counsel in favor of the Court retaining jurisdiction to the extent Plaintiff alleges any state-law claims. Plaintiff brought this case in federal court and resolution of the state-law claims, to the extent Plaintiff alleges any, involves only the straight-forward application of established state-law principles, such that judicial economy strongly favors retaining jurisdiction.
The exclusivity provision provides in relevant part that
[t]he rights and remedies granted by this title to an employee when he and his employer have accepted the provisions of this title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, . . . at common law or otherwise, on account of such injury, loss of service or death.S.C. Code § 42-1-540. Based on this provision, South Carolina courts hold that the Act provides the exclusive remedy against an employer for an employee who sustains injuries arising out of his employment. Sabb v. S.C. State Univ., 567 S.E.2d 231, 234 (S.C. 2002). The exclusivity provision is jurisdictional and bars all common law actions against an employer based on injuries within the scope of the Act. Id. at 234 n.3 (“The phrase ‘shall exclude all other rights and remedies' in the exclusivity provision demonstrates plain and unambiguous legislative intent to vest the Workers' Compensation Commission with exclusive original jurisdiction over an employee's claims.”).
Plaintiff's claim seeking to recover for a work-related injury is therefore barred, and the Court recommends granting Moving Defendants' motion to dismiss the claim on that basis. See Dickert v. Metro. Life Ins. Co., 428 S.E.2d 700, 701 (S.C. 1993) (holding that employee's claim that employer negligently failed to exercise reasonable care in protecting her from being harassed by her supervisor was barred by the exclusivity provision).
To the extent Plaintiff seeks to allege a state-law claim for retaliation under S.C. Code § 41-15-510, a violation of that statute does not give rise to a private right of action for private sector employees. See S.C. Code § 41-15-520. Because section 41-15-10 does not create a private right of action for private sector employees, the Court recommends that Plaintiff's claim based on a violation of that statute be dismissed as well.
Instead, section 41-15-520 provides that a private sector employee's remedy is “to file a complaint with the Director of the Department of Labor, Licensing and Regulation,” who may then forward the complaint to the United States Department of Labor Whistleblower Program or cause an investigation to be made; if the director determines after an investigation that a violation has occurred, the director may institute an appropriate action.
RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Moving
Defendants' motion to dismiss [Doc. 19] be GRANTED. Additionally, Plaintiff's claims against Defendant Solois are subject to summary dismissal pursuant to 28 U.S.C. § 1915 for failure to state a claim and the undersigned recommends that they be DISMISSED on that basis.
IT IS SO RECOMMENDED.