Opinion
C. A. 2:23-cv-03372-BHH-MHC
12-12-2023
Keran R. Ludwick, Plaintiff, v. Urban Nirvana, LLC, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff brings this employment discrimination action against her former employer, Urban Nirvana, LLC. ECF No. 1. Presently before the Court for disposition is Defendant's Partial Motion to Dismiss, or Alternatively, Partial Motion for Summary Judgment, which Defendant filed pursuant to Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure. ECF No. 5. Plaintiff filed a Response in Opposition to the Motion, ECF No. 6, Defendant filed a Reply, ECF No. 7, and Plaintiff filed a Sur-Reply, ECF No. 8. With leave of the Court, Defendant subsequently filed supplemental authority, ECF Nos. 10 & 11, to which Plaintiff filed a Reply, ECF No. 12. The Motion is ripe for review.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2) (D.S.C). As Defendant's Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned finds that the Motion to Dismiss should be granted, in part, and denied, in part.
THE ALLEGATIONS IN PLAINTIFF'S COMPLAINT
Accepting the truth of the allegations in Plaintiff's Complaint and viewing all inferences in the light most favorable to Plaintiff, see E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011), the facts, for purposes of ruling on the Motion to Dismiss, are as follows.
In or around May 2015, Defendant offered Plaintiff fulltime employment as a Lead Therapist at its location in North Charleston, South Carolina. ECF No. 1 at ¶ 16. During the time relevant to this action, Plaintiff was a Lead Massage Therapist, Master, and Trainer. Id.
As part of Defendant's employment offer to Plaintiff, Defendant guaranteed to Plaintiff that: (a) Defendant was an Equal Opportunity Employer; (b) Defendant published and maintained promissory policies and procedures that provide equal employment opportunities to all employees and applicants without regard to race, color, religion, sex, gender, genetic information, national origin, age, veteran status, disability, or any other status protected by federal or state law; and (c) Defendant's decisions regarding recruitment, selection, hiring, promotion, compensation, and benefits will be administered without regard to race, color, sex, creed, religion, age, national origin, physical disability, political affiliation, and in compliance with all applicable state and federal statutes and regulations. Id. at ¶ 17.
In consideration of Defendant's full-time employment offer, salary, and Defendant's express Equal Opportunity Employer policies and procedures, Plaintiff accepted a position with Defendant. Id. at ¶ 18. From May 2015 until March 2021, Plaintiff had a positive experience as Defendant's employee. Id. at ¶ 19. Plaintiff was considered an exemplary employee who capably performed all her position duties. Id. at ¶ 20.
In March 2021, Defendant assigned Plaintiff, a female, to perform a practical interview with a potential new employee, James Wesley (“Wesley”). This practical interview consisted of Wesley performing a massage on Plaintiff. Plaintiff requested another employee be present during the interview for her own protection and pursuant to standard practices when a male is to perform a practical to a female. Defendant denied her request and required Plaintiff to conduct the interview massage alone. Id. at ¶ 21.
Shortly after Wesley was hired by Defendant, a female officer from a local Police Department visited Defendant's North Charleston location. After receiving a massage, the officer reported to the director, Jennifer Dauble (“Dauble”), that Wesley may be acting inappropriately towards female customers. Defendant took no action towards Wesley after this report from the police officer. Id. at ¶ 22.
From the time he was hired, Wesley referred to female staff, including Plaintiff, with nicknames such as “honey,” “sweetie,” or “baby.” The female staff, including Plaintiff, reported their complaints to their manager, Rachel Reisinger (“Reisinger”), who assured the female staff that Wesley's behavior would be addressed. Wesley's inappropriate comments did not stop, and Plaintiff reported his behavior again to Reisinger. Reisinger reassured Plaintiff that she had talked to Wesley about his inappropriate comments. Despite Reisinger's reassurances, Wesley's behavior continued to be demeaning and insulting to female employees. Id. at ¶ 23.
In September and October of 2021, Wesley constantly and continuously acted inappropriately towards female employees, including Plaintiff, and he repeatedly asked Plaintiff out on dates or demanded that she cook for him. Despite Plaintiff's repeated rebuffs and rejection of Wesley's inappropriate behavior and requests, he continued to harass her, which she reported to management. Id. at ¶ 24.
In March 2022, Wesley's behavior escalated. Plaintiff alleges that “Wesley sexually assaulted [her] at the Defendant's North Charleston location.” Plaintiff was at one end of a room seated by the towel rack on her phone during a break. Wesley stated, “How long are you going to make me wait to be my girlfriend?” Before Plaintiff could address his remarks, Wesley forcefully grabbed Plaintiff and wrapped both of his arms around Plaintiff and pulled her tight into and against his body. Plaintiff physically pushed him away and responded “never,” and she immediately left to complain to her direct manager, Rebecca Phillips (“Phillips”). Phillips ignored Plaintiff's concerns and complaints. Plaintiff brought her concerns to upper manager Billy Vaughn (“Vaughn”), who also ignored Plaintiff's complaints. Plaintiff then brought her concerns to the director, Dauble, who assured Plaintiff that she would look into the claims and would inform Susie, one of Defendant's owners. Id. at ¶ 25.
Upon arrival to work the following day after Plaintiff complained to multiple levels of management, she was greeted by Susie, Reisinger, Vaughn, Phillips, and Dauble. Plaintiff was informed by Phillips that she spoke to Wesley about the incident. It was clear to Plaintiff that Phillips and other managers did not take Plaintiff's concerns seriously and took no steps to stop Wesley's behavior. When Plaintiff expressed her continuing concerns with Wesley's behavior to Phillips, she laughed it off and stated, “Maybe Mr. Wesley just likes you.” Id. at ¶ 26. The next day, Plaintiff followed up with Vaughn regarding Plaintiff's concerns about Wesley. Defendant did not take any action with regard to Wesley's behavior. Id. at ¶ 27.
Plaintiff alleges that Phillips, Plaintiff's supervisor, was sexually harassed by Wesley in April 2022. Phillips immediately reported her incident to Dauble and Vaughn. As with Plaintiff's complaints, this assault was ignored by Defendant's management. Phillips ended up resigning over the incident. Defendant responded by demoting Plaintiff and stripping her of certain credentials, which resulted in Plaintiff losing income. Plaintiff alleges that these actions were “clearly intended to harm Plaintiff for her complaints.” Id. at ¶ 28. It was clear to Plaintiff that management and owners of Defendant were not going to rectify the situation with Wesley, so she resigned shortly thereafter for her own safety. Id. at ¶ 29.
LEGAL STANDARD
I. Rule 12(b)(6) Standard
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to evaluate the complaint in its entirety, accept the factual allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. Kolon Indus., Inc., 637 F.3d at 440, 448.
Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks omitted).
II. Rule 56 Standard
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). The nonmoving party, however, “must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish an essential element to their case, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial,” thus the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.”).
DISCUSSION
Plaintiff asserts five causes of action in her Complaint: (1) a claim for gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), based on the following actions: (a) harassing and discriminating Plaintiff due to her gender, (b) giving preferential and favorable treatment to at least one male employee, (c) demoting Plaintiff in retaliation for reporting sexual discrimination, harassment, and a hostile work environment, and (d) forcing Plaintiff to resign due to her unfair treatment; (2) a claim for retaliation in violation of Title VII; (3) a claim for hostile work environment in violation of Title VII; (4) a state-law claim for breach of contract; and (5) a state-law claim for intentional/negligent infliction of emotional distress. ECF No. 1.
Defendant seeks dismissal of Plaintiff's claims for breach of contract, hostile work environment, gender discrimination, and negligent infliction of emotional distress, arguing that the claims either were not administratively exhausted or otherwise fail to state a claim. ECF No. 5. Alternatively, Defendant requests partial summary judgment in its favor on Plaintiff's hostile work environment and gender discrimination claims.
I. Breach of Contract Claim
Defendant first argues that Plaintiff's breach of contract claim should be dismissed because it is legally deficient and insufficiently pled. ECF No. 5-1 at 6-12. Specifically, Defendant contends that Plaintiff's breach of contract claim fails for the following reasons: (1) Plaintiff was an at-will employee; (2) Plaintiff does not allege that Defendant failed to compensate her for work performed; (3) Plaintiff voluntarily resigned; (4) even if Plaintiff was constructively discharged, an employer's termination of an at-will employee cannot give rise to a breach of contract claim; and (5) Plaintiff fails to sufficiently plead the elements of a breach of contract claim. Id.
In Response, Plaintiff argues that an at-will employment “may be contractually modified through employee handbooks or personnel manuals, provided that the traditional elements of contract formation are met (such as offer, acceptance and consideration).” ECF No. 6 at 3 (quoting Tritle v. Crown Airways, Inc., 928 F.2d 81, 85 (4th Cir. 1990)). She contends that she has alleged sufficient facts to establish all of the elements required to form a contract and a breach of that contract. Id. at 4 (pointing to her allegations that there was “(1) an offer to employ Plaintiff in a work environment free from discrimination, (2) an acceptance of this offer by Plaintiff, and (3) consideration in the form of a salary from Defendant and services from Plaintiff”). She further contends that the Complaint alleges that Defendant breached this contract “by forcing Plaintiff to suffer in a discriminatory work environment and by demoting her for her attempt to protect herself, which ultimately led to her constructive termination.” Id. (further arguing that as a result of Defendant's alleged breach, she suffered damages including lost wages and emotional distress). Finally, Plaintiff argues that the motion to dismiss is premature, as she should be given the opportunity to investigate in discovery whether the employee handbook or other materials distributed by Defendant to employees created a unilateral contract altering the at-will employment, such that her termination violated any written promises made by Defendant. Id. at 5.
Upon review of the Complaint and the relevant law, and drawing all reasonable inferences in favor of Plaintiff, the undersigned finds that Plaintiff has failed to state a viable claim for breach of contract.
Under South Carolina law, a plaintiff claiming breach of contract must show the existence of “[a] contract, its breach, and the damages caused by such breach.” Carolina Trucks & Equip., Inc. v. Volvo Trucks of N. Am., Inc., 492 F.3d 484, 494 (4th Cir. 2007). “[I]n South Carolina, at-will employment is the default employment status.” John Lucas Tree Expert Co., No. 2:13-CV-01698-PMD, 2013 WL 5587854, at *6 (D.S.C. Oct. 10, 2013). A promise of at-will employment “creates no enforceable rights in favor of the employee other than the right to collect wages accrued for work performed.” Anthony v. Atl. Grp., Inc., 909 F.Supp.2d 455, 482 (D.S.C. 2012), aff'd No. 12-2538 (4th Cir. July 12, 2013). Indeed, “[a]t-will employment is generally terminable by either party at any time, for any reason or for no reason at all,” and the “termination of an at-will employee normally does not give rise to a cause of action for breach of contract.” Prescott v. Farmers Tel. Coop., Inc., 516 S.E.2d 923, 925 (S.C. 1999).
“To alter an employee's at-will status under South Carolina law, a contract, policy, procedure, or representation must limit either the duration of the employment or the employer's right to terminate the employee.” Weaver, 2013 WL 5587854, at *6. “[W]hen an employee's at-will status has been altered by the terms of an employee handbook, an employee, when fired, may bring a cause of action for wrongful discharge based on breach of contract.” Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560 (D.S.C. 2009) (quoting Conner v. City of Forest Acres, 560 S.E.2d 606, 610 (S.C. 2002)). Thus, to survive a motion to dismiss a breach of contract claim, a plaintiff-employee “needs to have set forth sufficient factual allegations in h[er] Complaint to state a facially plausible claim that the [p]arties entered into a contract with terms of employment that limited the duration of the relationship or the right of termination or both,” and that she was terminated in violation of that agreement. Weaver, 2013 WL 5587854, at *6; see Eady, 609 F.Supp.2d at 560.
Here, Plaintiff's breach of contract claim is based on an alleged breach of “Defendant's promise to abide by its Equal Opportunity Employer policies and procedures.” ECF No. 1 at ¶ 62. She alleges that “Defendant published and maintained promissory policies and procedures that provide equal employment opportunities to all employees and applicants without regard to . . . sex” and that “Defendant's decisions regarding recruitment, selection, hiring, promotion, compensation, and benefits will be administered without regard to . . . sex.” Id. at ¶ 17. She further alleges that “Defendant “failed to follow its equal employment opportunity and anti-discriminatory policies” and “failed to protect Plaintiff on the basis of her sex and retaliated against Plaintiff when she made complaints in compliance with the anti-discrimination and sexual harassment policies.” Id. at ¶¶ 66-67. She also alleges that Defendant's breach “resulted in Plaintiff's termination.” Id. at ¶ 69.
Courts in this District have “held that [a] defendant's non-discrimination policy ‘does not constitute a promise altering the at-will employment relationship and giving rise to a breach-of-contract claim.'” Eady, 609 F.Supp.2d at 560 (quoting Fyall v. ATC/Ancon of South Carolina, L.P and Nat'l Express Corp., No 2:04-23086-CWH, 2005 WL 2656962 (D.S.C. October 18, 2005)); see also Hessenthaler v. Tri-County Sister Help, Inc., 616 S.E.2d 694, 698 (S.C. 2005) (holding that an employee handbook's nondiscrimination provision “does not constitute a promise altering the at-will employment relationship and giving rise to a breach-of-contract claim”). Thus, Defendant's Equal Opportunity Employer policies and procedures alleged in the Complaint are not sufficient to alter Plaintiff's at-will employment status or sustain a cause of action for breach of contract. See Eady, 609 F.Supp.2d at 560 (“The non-discrimination language in the defendant's Handbook will not sustain the plaintiff's cause of action for breach of contract.”); Fyall, 2005 WL 2656962, at *4 (“An employer's general non-discrimination policy is too indefinite to sustain a cause of action for breach of contract.”).
Plaintiff has not otherwise alleged facts showing the existence of a contract, policy, procedure, or representation that limited the duration of the relationship or the right of termination or both. See Weaver, 2013 WL 5587854, at *6. Nor does she allege that she was fired in violation of any such agreement limiting the duration of employment or right of termination. See id.; Eady, 609 F.Supp.2d at 560. And, termination of at-will employment generally does not give rise to a breach of contract claim. Prescott, 516 S.E.2d at 925. Finally, Plaintiff has not alleged any action by Defendant that interfered with her right to receive the wages that accrued during her employment. See Anthony, 909 F.Supp.2d at 482. Without more, Plaintiff's factual allegations are insufficient to state a plausible claim for breach of contract. Accordingly, the undersigned recommends that Defendant's motion to dismiss the breach of contract claim be granted.
II. Claim for Negligent Infliction of Emotional Distress
Defendant also argues that, to the extent Plaintiff's fifth cause of action asserts a claim for negligent infliction of emotional distress, that claim should be dismissed for failure to state a claim. ECF No. 5-1 at 15-16. Plaintiff does not make any argument regarding this claim in her Response in Opposition to the Motion to Dismiss or in her Sur-Reply, such that the undersigned finds Plaintiff has abandoned her negligent infliction of emotional distress claim. See Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D. Md. 2010) (considering motion to dismiss and finding that “[b]y her failure to respond to this argument, the plaintiff abandons . . . [the] claim”); see also Eady, 609 F.Supp.2d at 560 (failure of a party to address an issue may be considered abandonment of that issue); Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that a claim not addressed in opposition memorandum had been abandoned).
In any event, the law supports dismissal. In South Carolina, the tort of negligent infliction of emotional distress (“NIED”) “is limited to bystander recovery.” Stewart v. State Farm Mut. Auto. Ins. Co., 533 S.E.2d 597, 603 (S.C. Ct. App. 2000); see Kinard v. Augusta Sash & Door Co., 336 S.E.2d 465, 467 (S.C. 1985) (adopting a cause of action for NIED and defining the limits of the NIED action); see also Doe v. Greenville Cty. Sch. Dist., 651 S.E.2d 305, 307 (S.C. 2007) (explaining that Kinard instructed that an NIED action be “strictly limited to the ‘bystander liability' scenario”).
To set forth an NIED claim, Plaintiff must allege facts showing the following elements: (a) the negligence of the defendant caused death or serious physical injury to another; (b) the plaintiff bystander was in close proximity to the accident; (c) the plaintiff and the victim were closely related; (d) the plaintiff contemporaneously perceived the accident; and (e) the plaintiff's emotional distress must both manifest itself by physical symptoms capable of objective diagnosis and be established by expert testimony. Doe, 651 S.E.2d at 307 (citing Kinard, 336 S.E.2d at 467). In this instance, Plaintiff's claims, as alleged in the Complaint, are for injuries she suffered directly, not as a bystander, and she does not allege any facts related to the death or physical injury of a third party. Accordingly, she has not alleged a cause of action for NIED, such that the NIED claim should be dismissed as against Defendant.
However, Defendant did not challenge the claim for intentional infliction of emotional distress, such that it remains a viable claim in this action.
III. Exhaustion of Administrative Remedies
Defendant argues that Plaintiff failed to exhaust administrative remedies on her Title VII claims for hostile work environment and gender discrimination. ECF No. 5-1 at 12-15.
Title VII prohibits an “employer [from] discriminat[ing] against any individual with respect to [her] 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).
Before filing suit under Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC or, in a “deferral” jurisdiction such as South Carolina, with an appropriate state or local agency, within a specified time “after the alleged unlawful employment practice occurred.” 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1); see Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir. 1999) (dismissing plaintiff's Title VII claim for failure to exhaust administrative remedies). Title VII establishes two possible limitation periods for filing a discrimination charge: “the basic limitations period is 180 days after the alleged unlawful employment practice but can be extended to 300 days in a deferral state if state law proscribes the alleged employment practice and the charge is first filed with a state deferral agency.” Gerald v. Olsten, No. 4:20-CV-2555-CMC-KDW, 2021 WL 1394669, at *2 (D.S.C. Feb. 9, 2021) (citation and internal quotation marks omitted), report and recommendation adopted, No. 4:20-CV-2555-CMC, 2021 WL 960509 (D.S.C. Mar. 15, 2021).
One of the primary purposes behind the exhaustion of administrative remedies requirement is to give notice to an employer of the plaintiff's allegations. Notably, the Fourth Circuit has emphasized the importance of notice:
Congress intended the exhaustion requirement to serve the primary purpose of notice and conciliation. First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory
action. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning. Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted).
Courts have interpreted this exhaustion requirement to mean that each discrete incident of discriminatory treatment must be administratively exhausted. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.”); King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (stating that 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); Bishop v. Behr Heat Transfer Sys., No. 2:11-CV-3535-SB-BHH, 2012 WL 1752701, at *4 (D.S.C. Feb. 16, 2012) (“A plaintiff's failure to file a charge within the applicable limitations period bars a later lawsuit in federal court.”), report and recommendation adopted, No. CIV.A. 2:11-3535-SB, 2012 WL 1752047 (D.S.C. May 16, 2012).
The Fourth Circuit has made it clear that “only those discrimination claims stated in an administrative charge, those reasonably related to the original charge, and those developed by reasonable investigation of the original charge, may be maintained in a subsequent lawsuit. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996). Courts have routinely enforced the exhaustion requirement on the rationale that “[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge as surely as would a failure to file a timely EEOC charge.” O'Rourke v. Cont'l Cas. Co., 983 F.2d 94, 97 (7th Cir. 1993) (citation and internal quotation marks omitted).
A. Plaintiff's Charge of Discrimination
Plaintiff filed a Charge of Discrimination against Defendant (“Charge”) with the South Carolina Human Affairs Commission (“SCHAC”), which was stamped “RECEIVED Intake & Referral Unit” on January 31, 2023. ECF No. 5-2; see also ECF No. 8 at 4 (Plaintiff's Sur-Reply stating her Charge “is dated January 31, 2023”). In her Charge, Plaintiff stated that the earliest date discrimination took place was April 2, 2021, and the latest date was also April 29, 2022. Id. at 1. She indicated that her Charge was for discrimination based on sex and retaliation, and she did not identify any other basis for her Charge. Id. She further averred as follows:
In evaluating the Complaint in its entirety, the Court may consider the Charge, which is a document that “was integral to and explicitly relied on in the complaint.” See Kolon Indus., Inc., 637 F.3d at 440; see also ECF No. 1 at ¶ 11 (alleging that “Plaintiff's charge of discrimination was filed on or about September 23, 2022 with the [SCHAC]”).
I was intimidated and sexually harassed from on or about April 2, 2021, through on or about March 2, 2022. I was subjected to inappropriate comments and gestures, and unwelcome physical contact, from a counterpart (male) who propositioned me to go out with him and be his girlfriend. I let him know I was not interested. I reported the inappropriate behavior to all levels of management but the only consequence he received was being told to[] be aware of his personal space. I later found out that I was not the only person sexually harassed. When my counterpart found out about me being harassed, she voiced her concerns. Instead of our concerns being addressed, my counterpart was told, I was causing trouble. Without notice, I was demoted and stripped of all my credentials. I contend I was treated in such a manner because of my sex and in retaliation for my complaints. I was constructively discharged on or about April 29, 2022. I resigned my position after I was retaliated against for reporting sexual harassment against my coworker. I believe I was treated in such a manner because of my sex and in retaliation for my complaints. I therefore believe I have been discriminated against because of my sex (female/including sexual harassment), and retaliation for engaging in an activity protected by the South Carolina Human Affairs Commission, and Title VII of the Civil Rights Act of 1964, as amended.Id. at 2.
B. Plaintiff Exhausted Her Administrative Remedies
Defendant argues that Plaintiff failed to exhaust her administrative remedies for her hostile work environment claim and gender discrimination claim, such that those claims should be dismissed, or alternatively, summary judgment should be granted in favor of Defendant as to these two causes of action. ECF No. 5-1 at 12. Specifically, Defendant argues that because Plaintiff's Charge states that the alleged discrimination occurred between April 2, 2021, and April 29, 2022, Plaintiff should be barred from asserting any claim based on events occurring outside of that timeframe. Id. at 14. Pointing to the Complaint's allegation that Plaintiff conducted an interview massage with Wesley in March 2021, ECF No. 1 at ¶ 21, Defendant contends that the discrimination and hostile work environment claims should be dismissed to the extent they rely on allegations outside the Charge. ECF No. 5-1 at 14.
Defendant moves for dismissal for failure to exhaust under both Rules 12(b)(1) and 12(b)(6). However, as Defendant acknowledges in its Motion, Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, and not jurisdictional. See Fort Bend County, Texas v. Davis, 139 S.Ct. 1843, 1851 (2019); see also ECF No. 5-1 at 3. Accordingly, the undersigned analyzes Defendant's exhaustion argument pursuant to Rule 12(b)(6) for failure to state a claim. See Li v. Shepherd Univ., No. 20-1967, 2022 WL 16919271, at *2 n.2 (4th Cir. Nov. 14, 2022); Gillaspie v. Spencer, No. CV21900453DCNMHC, 2020 WL 12754388, at *1 n.3 (D.S.C. Aug. 17, 2020), report and recommendation adopted, No. 2:19-CV-0453-DCN-MHC, 2020 WL 12754386 (D.S.C. Sept. 28, 2020).
It does not appear to the undersigned that either claim relies on the March 2021 event, except perhaps as background information. Indeed, Plaintiff expressly states that her discrimination claim is based on the following actions, none of which are alleged to have occurred in March 2021: (a) harassing and discriminating Plaintiff due to her gender, (b) giving preferential and favorable treatment to at least one male employee, (c) demoting Plaintiff in retaliation for reporting sexual discrimination, harassment, and a hostile work environment, and (d) forcing Plaintiff to resign due to her unfair treatment. According to the Complaint, Wesley was not an employee at the time of his March 2021 interview, and the alleged harassment, disparate treatment, retaliation, and constructive discharge all occurred after he became an employee. Moreover, the Charge expressly states that Plaintiff believed she had been subject to sex discrimination, harassment, retaliation, and constructive discharge, such that the claims asserted in her Complaint are “reasonably related to the original charge” and likely to have been “developed by reasonable investigation of the original charge.” See Evans, 80 F.3d at 963.
For the first time in its Reply, Defendant argues that Plaintiff filed her Charge on January 31, 2023, which was 300 days after April 6, 2022, such that any allegations based on events occurring before April 6, 2022, would be untimely. ECF No. 7 at 5-6. Defendant specifically points to the statement in the Charge's narrative that Plaintiff “was intimidated and sexually harassed from on or about April 2, 2021, through on or about March 2, 2022.” See ECF No. 5-2 at 2. Defendant did not raise this argument in its initial memorandum in support of its Motion. See generally ECF No. 5-1.
Nonetheless, Plaintiff filed a Sur-Reply in which she addressed the newly raised argument. See ECF No. 8 at 3-6. In her Sur-Reply, Plaintiff concedes that “Defendant is correct that 300 days from March 2, 2022, is December 27, 2022, which is short of the statutory deadline by about a month.” Id. at 4. However, she emphasizes that the Charge states that the discrimination did not end until April 29, 2022, which was well within the 300-day limitation period. Id. She also cites Chako for the proposition that because lawyers do not typically fill out administrative charges, “courts construe them liberally.” Id. (quoting Chacko, 429 F.3d at 509). Finally, she contends that pursuant to the continuing violation doctrine, “provided that an act contribut[ing] to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. at 5 (quoting Morgan, 536 U.S. at 117). Plaintiff argues that while some of the acts constituting her gender discrimination and hostile work environment claims occurred more than 300 days from the execution of the Charge on January 31, 2023, these acts contributed to claims properly made within the 300-day window. Id. at 6.
The Local Rules make no provision for Sur-Replies, and Plaintiff did not seek leave of the Court to file a Sur-Reply. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 n.2 (D.S.C. Aug. 18, 2015) (explaining that “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court”). Nevertheless, the undersigned has considered the Sur-Reply in making this Report and Recommendation.
Construing the Charge liberally and drawing all reasonable inferences from the Complaint's factual allegations in favor of Plaintiff, the undersigned concludes that the Motion to Dismiss for failure to exhaust should be denied at this time, with leave to re-assert the affirmative defense after discovery. It certainly may be that, after discovery, Defendant will be able to show that all the events that form the bases for Plaintiff's discrimination and hostile work environment claims fall outside of the 300-day limitation period, such that those claims may ultimately be dismissed for failure to exhaust. However, at this time, the undersigned cannot say as a matter of law that the entirety of Plaintiff's discrimination or hostile work environment claim is untimely, especially in light of the allegations in the Complaint and the Charge's assertion that the discrimination did not end until April 29, 2022. Thus, the undersigned recommends that Defendant's Motion to Dismiss the discrimination and hostile work environment claims for failure to exhaust be denied.
To the extent Defendant seeks summary judgment in lieu of dismissal on the failure to exhaust argument, the undersigned finds that, at this early stage of the litigation, there is a genuine dispute of material fact as to whether Plaintiff exhausted her administrative remedies as to these claims, such that summary judgment should be denied. See Fed.R.Civ.P. 56(a); see also ECF Nos. 5-2; 6-1 at 3-15 (document submitted to SCHAC by Plaintiff in September 2022 referencing the initial interview with Wesley in the Spring of 2021, as well as other allegations in the Complaint).
IV. Hostile Work Environment Claim
Finally, Defendant argues that Plaintiff's Title VII hostile work environment claim should be dismissed because Plaintiff has not alleged the conduct necessary to establish such a claim. ECF No. 5-1 at 16-17.
A plaintiff may pursue a hostile work environment claim under Title VII. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc). “A hostile work environment exists ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Id. (alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted)).
To state a hostile work environment claim under Title VII, Plaintiff must allege facts showing “she was subjected to (1) unwelcome conduct, (2) based on her . . . sex, that was (3) severe or pervasive enough to make her work environment hostile or abusive and (4) imputable to . . . her employer.” Bazemore v. Best Buy, 957 F.3d 195, 200 (4th Cir. 2020) (citing Boyer-Liberto, 786 F.3d at 277).
Defendant argues that Plaintiff has failed to plead facts sufficient to establish the severe and pervasive prong of her hostile work environment claim. ECF No. 5-1 at 17. “Element three of a hostile work environment claim requires a showing that ‘the environment would reasonably be perceived, and is perceived, as hostile or abusive[.]'” Boyer-Liberto, 786 F.3d at 277 (quoting Harris, 510 U.S. at 22). “Whether the environment is objectively hostile or abusive is ‘judged from the perspective of a reasonable person in the plaintiff's position.'” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). “That determination is made ‘by looking at all the circumstances,' which ‘may 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. (quoting Harris, 510 U.S. at 23). Although “viable hostile work environment claims often involve repeated conduct[,], . . . an isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment, if that incident is extremely serious.” Id. (citations and internal quotation marks omitted). “It is not, and by its nature cannot be, a mathematically precise test.” Id. (internal quotation marks omitted).
In her Response, Plaintiff points to her allegations that from the time Wesley was hired, he called Plaintiff inappropriate nicknames; that in September and October 2021, he repeatedly asked Plaintiff out on dates and demanded that she cook for him, despite her continual rebuffs and rejection of his behavior and requests; that in March 2022, Wesley physically assaulted Plaintiff at Defendant's North Charleston location; and that Plaintiff repeatedly complained to management employees about all of these incidents, but her complaints were ignored and no steps were taken to stop Wesley's behavior. ECF No. 6 at 13-15 (citing ECF No. 1 at ¶¶ 23-28). Plaintiff contends that these factual allegations, among others, are sufficient to plead all four elements of a hostile work environment claim, such that she has stated a plausible claim for relief. Id. at 15.
Upon review, the undersigned agrees with Plaintiff. Accepting the truth of the well-pled factual allegations and drawing all reasonable inferences in favor of Plaintiff, the undersigned finds that Plaintiff has set forth sufficient facts to allege that she was subjected to (1) unwelcome conduct from Wesley, (2) based on her sex, that was (3) severe or pervasive enough to make her work environment hostile or abusive, and (4) imputable to her employer. See Bazemore, 957 F.3d at 200; see also Pryor v. United Air Lines, Inc., 791 F.3d 488, 498 (4th Cir. 2015) (“[A]n employer may be liable for hostile work environments created by co-workers . . . if it knew or should have known about the harassment and failed to take effective action to stop it by responding with remedial action reasonably calculated to end the harassment.” (emphasis in original) (citation and internal quotation marks omitted)). Accordingly, the undersigned recommends that the Motion to Dismiss the hostile work environment claim be denied.
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion to Dismiss (ECF No. 5) be GRANTED, in part, and DENIED, in part. Specifically, it is recommended that the Motion to Dismiss be granted as to Plaintiff's breach of contract and negligent infliction of emotional distress claims, such that those two claims be dismissed, but denied as to Plaintiff's Title VII discrimination and hostile work environment claims. If this Recommendation is adopted, then the following claims will proceed to discovery: the claims for sex discrimination, retaliation, hostile work environment, and intentional infliction of emotional distress.
IT IS SO RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
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
Post Office Box 835
Charleston, South Carolina 29402
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).