Opinion
C.A. No. 4:19-3447-DCC-KDW
11-03-2020
Allyn Bandell, as executor for Brandon Schwarz, Plaintiff, v. Sonoco Products Company, Martha Libby Schmitt d/b/a J. Michaels Restaurant, Martha Libby Schmitt, Charlie Schmitt, Bryan Michael Sansbury, Josh Hatchell, City of Hartsville, Edwin B. Pate, and Hartsville, LLC d/b/a Carolina Pines Regional Medical Center, Defendants.
Report and Recommendation
Sonoco Products Company's Motion for Judgment on the Pleadings concerning exhaustion of Title VII claim, ECF No. 72
Plaintiff Brandon Schwarz ("Schwarz" or "Plaintiff"), filed this action against his former employer, Sonoco, among other Defendants. Am. Compl., ECF No. 15. Plaintiff's Amended Complaint includes numerous causes of action against multiple Defendants. This R&R focuses only on the claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") brought against Defendant Sonoco as to which Sonoco now seeks Rule 12 dismissal. Def. Sonoco Mot. Judgment on the Pleadings as to Pl. 15th Cause of Action ("Sonoco Mot."), ECF No. 72. Plaintiff filed a responsive memorandum, ECF No. 74, to which Sonoco filed a Reply, ECF No. 75. Having reviewed the parties' submissions and the applicable law, the undersigned recommends that Defendant Sonoco's Motion for Judgment on the Pleadings, ECF No. 72, be denied.
Brandon Schwarz was the original Plaintiff in this action. Schwarz died on June 6, 2020. See ECF No. 92-2. On September 29, 2020, the court granted the motion of Allyn Bandell to be substituted as the party Plaintiff. ECF No. 93. Bandell is Schwarz' sister and the executor of his estate. See ECF No. 92-1 at 2. As this Report and Recommendation ("R&R") focuses on claims brought by Schwarz regarding his former employment with Sonoco Products Company ("Sonoco"), unless otherwise noted reference to "Plaintiff" herein will refer to the employee, Schwarz, whose interests are now represented by Bandell. Further, while Sonoco separately argues that the only other cause of action brought against it—one for defamation—does not survive Schwarz' death, see ECF No. 96, Sonoco appropriately has not challenged the survivability of the Title VII claim. See generally Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 876 (11th Cir. 1986) (finding Title VII causes of actions are remedial and survive the death of the employee).
I. Standard of Review
The standard of review for a motion seeking judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is the same as that for Rule 12(b)(6) motions to dismiss for failure to state a claim. Butler v. United States, 702 F.3d 749, 751-52 (4th Cir. 2012); see Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F. Supp. 2d 612, 622 (D.S.C. 2011) (noting court may take notice of matters of public record and those attached to complaint and Rule 12 motions, so long as authentic and integral to the complaint). "Rule 12(c) motions 'dispose of cases in which there is no substantive dispute that warrants the litigants and the court proceeding further.'" Green v. West, No. CV 2:19-00366-RMG, 2020 WL 473638, at *1-2 (D.S.C. Jan. 17, 2020) (quoting Lewis v. Excel Mech., LLC, 2:13-CV-281-PMD, 2013 WL 4585873 at * 1 (D.S.C. Aug. 28, 2013) (internal quotation omitted)). A judgment on the pleadings should be granted only if "the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law." Lewis, 2013 WL 4585873 at * 2 (citation omitted). Like motions to dismiss, Rule 12(c) motions call for the pleadings to be construed in the light most favorable to the non-moving party. Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). Accordingly, "[t]he court must accept all well pleaded factual allegations in the non-moving party's pleadings as true and reject all contravening assertions in the moving party's pleadings as false." Lewis, 2013 WL 4585873, at *2 (citation omitted).
This background information is taken from Plaintiff's Amended Complaint and construed in the light moo st favorable to him, the non-moving party.
Sonoco is a company that is headquartered in and operates in South Carolina. Am. Compl. ¶ 2. At all times relevant to his claims, Schwarz lived in Hartsville, South Carolina, where he was employed by Sonoco for six years; his last position with Sonoco was as a Supply Chain Program Manager. Id. ¶¶ 18, 22. Schwarz was involved in a verbal and physical altercation at a Hartsville-area restaurant on the evening of Friday, September 28, 2018. He was taken by ambulance to the hospital, where he received treatment for injuries sustained. Id. ¶¶ 64-70. Plaintiff was cited and arrested in the early hours of September 29, 2018. Id. ¶¶ 41-58, 82, 92. On September 30, 2018, Plaintiff told his supervisor, Daniel Meier, that he was too ill to go to work the following day. Schwarz received permission to work from home. Id. ¶ 99. On October 2, 2018, Meier questioned Schwarz about the truthfulness of his illness and demanded that he come to the office the following day. Id. ¶ 101. Plaintiff "then told Meier that he had been beaten up because he was Jewish and had gone to the emergency room." Id. On October 3, 2018, Sonoco informed Schwarz he was being terminated for "[o]ff duty conduct which impairs the employee's ability to perform the job or reflects adversely on the reputation of the Company." Id. ¶ 103.
As detailed within, Schwarz filed a Charge with the Equal Employment Opportunity Commission ("EEOC") and the South Carolina Human Affairs Commission ("SCHAC") on December 5, 2018. Charge, ECF No. 72-2 at 1 (signed by Plaintiff and notarized on December 5, 2018; stamped "Received" by EEOC on December 14, 2018); copy also available at ECF No. 74-2. Plaintiff initiated this action in December 2019.
Plaintiff and Defendant have provided a copy of the Charge with their briefs, and the court may take judicial notice of the Charge and its content. See Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F. Supp. 2d 612, 622 (D.S.C. 2011) (noting court may take notice of matters of public record and those attached to complaint and Rule 12 motions, so long as authentic and integral to the complaint).
III. Analysis
Relevant to Schwarz' Title VII claim, his Charge, completed on an EEOC "Form 5," indicates Plaintiff suffered discrimination based on religion. Form 5 Charge 1. The "Particulars" of the Charge provide:
Sonoco's challenge does not relate to the timely filing of the Charge.
My intake questionnaire and attachment will provide greater details of what I allege here.Form 5 Charge.
I was a victim of a religious hate crime on Friday, September 28, 2018. I was beat up for being Jewish and then I was arrested although I was the victim. I was hurt so badly that I was hospitalized, and no other individuals were harmed. I was diagnosed with a concussion, PTSD, and lasting physical and emotional harms from the assault. I informed my boss that I was beat up because I am Jewish. Then, the very next day, he and an on-site HR representative fired me for pretextual reasons that amount to allegedly not reflecting the values of the company. Essentially, this decision to terminate me says that being a victim of a religious hate crime amounts to grounds to fire me. I was discriminated against because of religion (Jewish) in violation of Title VII of the Civil Rights Act of 1964.
Plaintiff's Amended Complaint includes a cause of action against Sonoco for "Religious Discrimination in Violation of Title VII." Am. Compl. ¶¶ 203-09. Schwarz alleges he was "terminated by Sonoco because he is Jewish." Id. ¶ 207. Plaintiff avers the following:
In addition to Schwarz's claim for unlawful termination, Schwarz has a disparate treatment based on religion claim. Disparate treatment violates Title VII because the difference in discipline is motivated by bias against Schwarz due to his religious believes, practices, or observances. Sonoco did not fire a similarly situated employee who is not Jewish, for the same alleged conduct for which Sonoco purportedly terminated Schwarz.Am. Compl. ¶ 208.
Sonoco seeks dismissal of Plaintiff's Title VII cause of action based on Plaintiff's alleged failure to exhaust administrative remedies. Looking to the Amended Complaint and the Form 5 EEOC Charge, Sonoco argues administrative remedies have not been exhausted as to the claim of disparate-treatment religious discrimination because allegations contained in the pleading are different from the claim set out in the Form 5 Charge—a claim Sonoco characterizes as a claim based on disparate impact, not disparate treatment. Sonoco Mem. 3-10, ECF No. 72-1. As Defendant notes, a claim of disparate treatment hinges on a claim that the employer had discriminatory animus. A claim of disparate treatment, however, does not require discriminatory animus as it concerns practices that have a disproportionate effect on protected classes without legitimate justification for such practices. Def. Mem. 3 (citing Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015)).
In response, Plaintiff submits the Charge itself contains ample allegations to put Sonoco on notice of a disparate-treatment claim of religious discrimination. Pl. Mem. 5-6, ECF No. 74. Plaintiff also argues that, at the least, the claim as set out in the Charge is reasonably related to the claim in the Amended Complaint such that Plaintiff is considered to have exhausted administrative remedies. Id. at 9-12. Further, Plaintiff has provided additional EEOC-related documentation, arguing these documents—an EEOC coversheet, the EEOC Intake Questionnaire ("Intake Questionnaire"), and a lengthy "Attachment" to these documents—plainly state a disparate-treatment claim or, at the least, state a claim that is related to the allegations in the Charge such that it should be considered to have been exhausted. Id. at 6-9; ECF Nos. 74-1 (printout from EEOC database regarding Schwarz' case, indicating Charge and Intake Questionnaire were added to EEOC file on December 18, 2018 and "EEOC Charge of Discrimination Attachment" was added by Schwarz on March 27, 2019); ECF No. 74-2 at 1 (December 5, 2018 letter from Schwarz' counsel to EEOC and Sonoco's counsel including EEOC Charge and Intake Questionnaire, noting "lengthy attachment" would be supplemented in the future); ECF No. 74-2 at 2-5 (Intake Questionnaire signed by Plaintiff on December 5, 2018), ECF No. 74-2 at 6 (Form 5 Charge); ECF No. 74-3 at 1-13 (EEOC Charge of Discrimination Attachment). On Reply, Defendant argues that only the four corners of the Form 5 Charge should be considered, reiterating its arguments that the disparate-treatment claim in Plaintiff's Amended Complaint was not administratively exhausted based on the face of the Form 5 Charge. Reply, ECF No. 75.
If the contents of the four corners of the Form 5 Charge indicate Plaintiff has exhausted his claim of race-based disparate treatment, the court need not delve into whether the Intake Questionnaire or the Attachment ought to be considered in this analysis. Accordingly, the undersigned first considers whether the content of four corners of the Form 5 Charge are sufficient to administratively exhaust the Title VII disparate-treatment claim contained in Schwarz' Amended Complaint.
A. Exhaustion based on contents of Form 5 Charge
The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (affirming the district court's dismissal of plaintiff's claims because they were outside the scope of her original EEOC charge and were therefore time-barred). To determine whether a claim in an employment-based lawsuit is encompassed in the charge so as to be maintained in a subsequent Title VII lawsuit, a court may consider "[o]nly [1] those discrimination claims stated in the initial charge, [2] those reasonably related to the original complaint [of discrimination in the charge], and [3] those developed by reasonable investigation of the original complaint [of discrimination in the charge] . . . ." Evans, 80 F.3d at 963 (citing King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976)). This inquiry attempts 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 Cnty., Va., 681 F.3d 591, 594 (4th Cir. 2012). The administrative-exhaustion requirement exists to provide notice to the employer and an opportunity for conciliation or other action by the EEOC. Id. at 593.
Defendant's interpretation of the Charge is that its focus on Plaintiff's having been a victim of a religious hate crime makes it more a claim of disparate impact than disparate treatment. Def. Mem. 5-6. Sonoco submits the Charge does not allege any motive or intent to discriminate against Plaintiff based on his religion, arguing that "[s]uch an allegation would be straightforward, requiring no discussion of Schwarz's altercation or its consequences (including Schwarz's arrest)." Def. Mem. 6.
The undersigned disagrees with Sonoco and finds that the Form 5 Charge contains sufficient language that would put Sonoco on notice of a potential disparate-treatment claim. The Charge does describe Plaintiff's altercation and arrest. This description may be considered a foundation to other claims expressly made in the Charge. Plaintiff indicates that, the day after he advised his supervisor of the altercation, he was terminated "for pretextual reasons that amount to allegedly not reflecting the values of the company." Form 5 Charge. Schwartz ends his Charge by expressly alleging, "I was discriminated against because of religion (Jewish) in violation of Title VII of the Civil Rights Act of 1964." Id.
Sonoco's inclination to interpret the language of the Charge as raising a disparate-impact claim does not foreclose inclusion of a disparate-treatment claim. An employee can bring a claim of disparate impact and disparate treatment in the same Charge and subsequent complaint. See Merritt v. WellPoint, Inc., 615 F. Supp. 2d 440, 445 (E.D. Va. 2009) (citing Burwell v. E. Air Lines, 633 F.2d 361, 369 (4th Cir.1980).
By this plain language, Plaintiff has put Sonoco on notice that he was alleging different treatment based on his religion. This language was sufficient to have put Sonoco and the EEOC on notice that Plaintiff is alleging intentional discrimination. Further, notwithstanding Sonoco's argument to the contrary, the undersigned is of the opinion that any "reasonable investigation" of Plaintiff's claims would have led to consideration of disparate-treatment claims. In addition, while the Intake Questionnaire is not itself part of the Form 5 Charge, the only evidence in the record is that it was provided to Defendant at the time the Charge was provided. See ECF No. 74-2 at 1. Other courts have looked to information contained in the Intake Questionnaire in determining administrative exhaustion issues. See, e.g., Sydnor, 681 F.3d at 596-97 (finding employee's reference to specific accommodation in questionnaire evidenced notice sufficient to satisfy administrative-exhaustion requirements, noting "it is well settled that the reasonable investigation standard can encompass details 'not specifically enumerated in the [administrative] complaint.'" (quoting Chisholm v. U.S.P.S., 665 F.2d 482, 491 (4th Cir. 1981)).
Although not necessary to find administrative exhaustion, the undersigned notes that the EEOC's "reasonable investigation" may well have included detailed consideration of Plaintiff's Intake Questionnaire and subsequent Attachment. Sydnor, 681 F.3d at 596-97. --------
In making this recommendation, the undersigned notes Sonoco's reliance on Chacko v. Patuxent Institution, in which the Fourth Circuit found a plaintiff had not exhausted administrative remedies when his administrative charge had focused on "different time frames, actors, and conduct than the central evidence at trial." Chacko, 429 F.3d 505, 511 (4th Cir. 2005). Here, though, the "time frame, actors, and conduct" at issue all surround the events that took place subsequent to Plaintiff's being involved in an altercation, including his termination. Plaintiff's claim that he was "discriminated against because of religion (Jewish) in violation of Title VII of the Civil Rights Act of 1964," supports a finding that he has administratively exhausted his disparate-treatment claim of religious discrimination.
Sonoco's Motion for Judgment on the Pleadings should be denied. Plaintiff has adequately exhausted his claim of disparate-treatment religious discrimination. Because exhaustion exists based on the Form 5 Charge itself, detailed discussion of the Intake Questionnaire and Attachment is unnecessary.
B. Attorney Fees
In Schwartz' response he seeks attorney fees related to the Motion for Judgment on the Pleadings, claiming the motion is "baseless and frivolous." Pl. Mem. 12. The undersigned agrees with Sonoco, however, that such fees are not warranted. Reply 8. While the undersigned does not agree with Sonoco's legal position it does not believe the position or the motion to be "baseless and frivolous," as suggested by Plaintiff. The undersigned is of the opinion that the United States District Judge should deny Plaintiff's request for attorney fees.
IV. Conclusion and Recommendation
For the reasons set forth above, the undersigned recommends Sonoco's Motion for Judgment on the Pleadings, ECF No. 72, be denied. It is further recommended that Plaintiff's request for attorney fees associated with Sonoco's Motion be denied.
IT IS SO RECOMMENDED. V. November 3, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge