Opinion
C. A. 3:21-202-SAL-PJG
07-07-2021
Hannah Victoria McLeod, Plaintiff, v. University of South Carolina; Darla Moore School of Business, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
The plaintiff, Hannah Victoria McLeod, filed this action pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., against her former employer. The Complaint alleges that the defendants failed to accommodate the plaintiff's disability and retaliated against her for attempting to assert her rights. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' motion to dismiss based on a statute of limitations defense. (ECF No. 6.) The motion has been fully briefed and is ready for resolution. (See ECF Nos. 6-1, 12, & 13.) Having reviewed the parties' submissions and the applicable law, the court recommends that the defendants' motion be granted and the case dismissed.
The plaintiff's claims against Defendant Darla Moore School of Business should be dismissed for the independent reason that the proper defendant in this action is the University of South Carolina. (Defs.' Mot. Dismiss at 1 n.1, ECF No. 6 at 1 n.1; see also Defs.' Ans. to 26.01 Interrogatories, ECF No. 7 at 2.).
DISCUSSION
A. Motion to Dismiss Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)). Moreover, although the statute of limitations is typically an affirmative defense, it may be properly asserted through a Rule 12(b)(6) motion if the untimeliness is apparent from the face of the Complaint. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007); see also Dean v. Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005) (“The raising of the statute of limitations as a bar to plaintiffs' cause of action constitutes an affirmative defense and may be raised by motion pursuant to Fed.R.Civ.P. 12(b)(6), if the time bar is apparent on the face of the complaint.”).
B. Plaintiff's Claims
The parties agree that the federal Rehabilitation Act does not contain its own statute of limitations and that claims arising under Section 504 of the Rehabilitation Act are subject to the statute of limitations for the most analogous state law claim. (See Defs.' Mem. Supp. Mot. Dismiss at 2, ECF No. 6-1 at 2; Pl.'s Mem. Opp'n Mot. Dismiss at 2, ECF No. 12 at 2) (both citing McCollough v. Branch Banking & Trust, Co., 35 F.3d 127, 129 (4th Cir. 1994)); see also Semenova v. Md. Transit Admin., 845 F.3d 564 (4th Cir. 2017) (ADA). The parties disagree, however, as to which state statute of limitations is most analogous and should therefore apply.
There is no dispute that if a one-year statute of limitations applies, the plaintiff's Rehabilitation Act claims are time barred.
Although the plaintiff urges the court to apply the three-year statute of limitations for the tort of wrongful discharge in violation of public policy, she cites no authority for her proposition that this is the most analogous statute of limitations to her Rehabilitation Act claims for failure to accommodate her disability and retaliation. (See generally Pl.'s Mem. Opp'n Mot. Dismiss at 3, ECF No. 12 at 3.) By contrast, the defendants cite an abundance of persuasive authority concluding that the one-year statute of limitations in the South Carolina Human Affairs Law should be used for employment discrimination claims arising under the federal Rehabilitation Act. See Woods v. S.C. Dep't Health & Human Servs., C/A No. 3:18-834-MGL, 2020 WL 614076, at * 3 (D.S.C. Feb. 10, 2020); Grant-Davis v. S.C. Office of Governor, C/A No. 2:15-2521-PMD-MGB, 2018 WL 1406740, at *1 (D.S.C. Mar. 21, 2018); Levin v. S.C. Dep't of Health & Human Servs., C/A No. 3:12-0007-JFA, 2015 WL 1186370, at *5 (D.S.C. Mar. 16, 2015); Cockrell v. Lexington Cty. Sch. Dist. One, C/A No. 3:11-2042-CMC, 2011 WL 5554811, at *11 (D.S.C. Nov. 15, 2011), affd 738 Fed.Appx. 790 (4th Cir. 2018); Jackson v. S.C. Dep't of Disabilities & Special Needs, C/A No. 4:15-5033-BHH-KDW, 2016 WL 3647981, at *4 (D.S.C. June 15, 2016), adopted by 2016 WL 3633660 (D.S.C. Jul. 7, 2016); Mestrich v. Clemson Univ., C/A No. 8:12-2766-TMC, 2013 WL 842328, at *2-3 (D.S.C. Mar. 6, 2013).
As the defendants point out, for Rehabilitation Act claims arising outside of an employment relationship, courts in this district have used South Carolina's three-year personal injury statute of limitations rather than the one-year limitations period of the South Carolina Human Affairs Law. See, e.g., Valentine v. State of South Carolina, C/A No. 3:18-895-JFA, ECF No. 80 at 18-24; Gresham v. Arclabs, LLC, C/A No. 9:19-1237-RMG, 2019 WL 3020931 (D.S.C. July 10, 2019). These cases do not avail the plaintiff, however, as her claims indisputably arise from her employment with the defendants. Because the South Carolina Human Affairs law provides substantially the same rights and remedies as the Rehabilitation Act with respect to employment discrimination, it is the most analogous here. Compare Semenova v. Md. Transit Admin., 845 F.3d 564 (4th Cir. 2017) (ADA) (analyzing which Maryland law statute of limitations should be applied to the plaintiff's claim for disability discrimination in the provision of public services and observing that if the analogous state statute prohibits the same type of discrimination alleged in the underlying complaint and provides the same rights and remedies, that claim's limitations period is the most analogous and choosing the Maryland's three-year general personal injury limitations period over Maryland's Anti-Discrimination Law's two-year period because the latter did not address discrimination in the provision of public services) with Wolsky v. Med. College of Hampton Rds., 1 F.3d 222, 225 (4th Cir. 1993) (holding that the Virginia Rights of Persons with Disabilities Act was more analogous to the Rehabilitation Act than Virginia's general personal injury statute of limitations).
The plaintiff alternatively submits that “good cause” exists to “extend” the statute of limitations because she was pursuing administrative remedies before the Equal Employment Opportunity Commission. To the extent this argument is one for equitable tolling, it too fails. See Mensack v. S.C. Dep't of Mental Health, C. A. No. 3:16-723-CMC-KDW, 2016 WL 11409595, *6 (D.S.C. July 6, 2016) (declining to equitably toll the one-year statute of limitations of the South Carolina Human Affairs Law while the plaintiff was exhausting administrative remedies), adopted by 2016 WL 4374845 (D.S.C. Aug. 17, 2016); Brown v. Lexington Cty. Health Servs. Dist., Inc., C/A No. 3:12-2674-MBS-PJG, 2013 WL 5467623, at *5 (D.S.C. July 11, 2013), adopted by 2013 WL 5467626 (D.S.C. Sept. 27, 2013) (same). Furthermore, because the Rehabilitation Act does not contain a requirement to exhaust administrative remedies before pursuing a lawsuit, equitable tolling would not be warranted here. See Ott v. Md. Dep't of Pub. Safety & Corr. Servs., C/A No. RDB-16-3394, 2017 WL 3608181, at *5 (D. Md. Aug. 22, 2017). Nor does the plaintiff's prior voluntary dismissal of her Rehabilitation Act claims in an earlier lawsuit present the extraordinary circumstances needed for equitable tolling. See Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr., 687 S.E.2d 29, 32 (S.C. 2009) (“It has been observed that [e]quitable tolling typically applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control.”) (internal quotation marks and citation omitted).
RECOMMENDATION
Because the Complaint shows that this action was filed outside the applicable one-year statute of limitations, the plaintiff s claims should be dismissed.
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).