Opinion
Civil Action 7:22-cv-173-MGL-KFM
12-02-2022
Roman Clement, Plaintiff, v. Spartanburg Steel Products, Inc., Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This matter is before the court on the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 71). The plaintiff, proceeding pro se and in forma pauperis, brings this employment action under 42 U.S.C. § 1981. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
I. PROCEDURAL BACKGROUND
As an initial matter, the court takes judicial notice of the plaintiff's prior action in this court seeking damages for employment discrimination against his employer, the same defendant named in this action. See Clement v. Spartanburg Steel Prods., C/A No. 7:19-cv-00666-MGL (D.S.C.) ("Clement I"). In his original complaint in Clement I, the plaintiff alleged race discrimination in violation of the Equal Pay Act ("EPA"), race discrimination in violation of Genetic Information Nondiscrimination Act ("GINA"), retaliation and race discrimination based on failure to promote and unequal terms and conditions of employment under Title VII of the Civil Rights Act of 1964 (“Title VII”), and breach of the collective bargaining agreement (“CBA”) (Clement I, doc. 1). The undersigned issued an order finding that the plaintiff's original complaint was subject to summary dismissal but allowing the plaintiff to file an amended complaint to correct the deficiencies (Clement I, doc. 16). The plaintiff then filed an amended complaint alleging that the defendant retaliated against him, failed to promote him, and subjected him to unequal terms and conditions of employment based upon his race in violation of Title VII, and the undersigned authorized service of process (Clement I, doc. 18). The defendant filed a motion to dismiss (Clement I, doc. 27), and the undersigned issued a report and recommendation recommending that defendant's motion be granted (Clement I, doc. 41), which the district court adopted (Clement I, doc. 50). The plaintiff then filed a second amended complaint against the defendant, alleging pay discrimination based on his race in violation of Title VII and the EPA (Clement I, doc. 53). The defendant filed a second motion to dismiss (Clement I, doc. 55), and the undersigned issued a report and recommendation recommending that the defendant's motion be granted (Clement I, doc. 67). The district court issued an order adopting the report and recommendation (Clement I, doc. 79), which was affirmed by the Court of Appeals for the Fourth Circuit. Clement v. Spartanburg Steel Prods., Inc., C/A No. 21-1344, 2021 WL 5563964 (4th Cir. Nov. 29, 2021).
See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
In the present action (" Clement II"), the plaintiff filed a complaint against the defendant on January 19, 2022, alleging failure to promote and hostile work environment because of his race in violation of Section 1981 (doc. 1). By order issued February 24, 2022, the undersigned noted that the plaintiff's complaint was subject to summary dismissal, allowed the plaintiff an opportunity to correct the defects identified in his complaint, and warned the plaintiff that if he failed to file an amended complaint or cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed (doc. 13). The plaintiff filed an amended complaint on February 25, 2022, alleging hostile work environment, pay discrimination, and failure to promote because of his race in violation of Section 1981 (doc. 15). On March 4, 2022, the undersigned filed a report and recommendation recommending that the district court summarily dismiss all of the plaintiff's claims with the exception of his Section 1981 hostile work environment claim for the time period of February 27, 2020, through February 25, 2022 (doc. 18). The plaintiff filed two motions to amend his complaint on March 9, 2022 (docs. 22; 24), and on March 10, 2022, the undersigned filed a supplemental report and recommendation recommending that both motions be denied (doc. 25). On April 6, 2022, the defendant filed a motion to dismiss for lack of jurisdiction and insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(2), (5) (doc. 32). On June 23, 2022, the undersigned filed a report and recommendation recommending that the district court deny the defendant's motion as moot, as the plaintiff had attempted to serve the defendant again with the amended summons and amended complaint since the filing of the defendant's motion (doc. 57). The district court adopted all three report and recommendations on September 2, 2022 (doc. 65). On September 23, 2022, the defendant filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 71). The plaintiff filed a response on October 12, 2022 (doc. 81). On October 19, 2022, the defendant filed a reply (doc. 83), and on October 21,2022, the plaintiff filed a sur-reply (doc. 84). This matter is now ripe for review.
On October 6, 2022, the plaintiff filed a notice of appeal of the district court's order adopting the undersigned's report and recommendations, which is currently pending before the Court of Appeals for the Fourth Circuit (doc. 77). Because the plaintiff has not requested a stay of this matter pending resolution of his appeal, the plaintiff has not presented any argument on the relevant factors for considering whether a stay is appropriate, and the instant motion to dismiss deals with a claim not presently before the Fourth Circuit on appeal, the undersigned declines to stay this matter and will consider the defendant's motion herein. See Levin v. Alms & Assocs., Inc., 634 F.3d 260, 256 (4th Cir. 2011) (“As a general rule, the filing of an appeal ‘confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.'”) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (emphasis added)); Condon v. Haley, 21 F.Supp.3d 572 (D.S.C. 2017) (“A stay is not a matter of right and the party seeking a stay bears the burden of demonstrating the presence of the exacting standards for the granting of such relief. The standards for granting a stay closely resemble the standards for the grant of a preliminary injunction, including (1) a strong showing that the party requesting the stay will succeed on the merits; (2) the presence of irreparable injury by the party seeking the stay; (3) whether the stay will substantially injure other parties to the litigation; and (4) whether the public interest is served by the grant of the stay.”) (internal citations and quotation marks omitted).
II. FACTUAL ALLEGATIONS
In his amended complaint, the plaintiff alleges that since being transferred to the tool and die department, he has been "referred to as a Nigger hang or N. Hang by shop manager [Mr.] Barnwell" (doc. 15-1 at 1). The plaintiff further alleges that this "N. Hang reference . . . is used often by Mr[.] Barnwell" (id.). The plaintiff submits that there is a sign that says "N. Hang" on a board in the workplace, it is "made know[n that this sign] stands for nigger hang," and he is asked to stand in front of the sign "each and every day" (id. at 2). The plaintiff submits that he is "the only employee that is required to come in [and] stand in front of the board" (id.). The plaintiff contends that according to Mr. Rick, his shift supervisor, "they do all black employee[s] that enter the department are done this way" (id.). The plaintiff acknowledges that this "unwelcome offensive joke . . . has been going on in the department since before my original case was filed . . . it[']s been four years plus" (id. at 5).
The plaintiff also submits that Mr. Barnwell has spoken to Mr. Rick on a number of occasions about the plaintiff being late, but he is not late and has one of the best attendance records in the department (doc. 15-1 at 3). Mr. Rick told the plaintiff that "all he can say is Roman I know you are here on time however Shannon keep getting on my ass and I don't know what to say cause you're here" (id.). The plaintiff submits that Mr. Rick “doesn't want to hear no references] to Hang as [H]ang i[s] not his name” (id.). The plaintiff contends that Mr. Barnwell wants him to stand in front of the N. Hang sign every day and "[Mr. R]ick told me Roman just stand in front of the board while [shaking] his head" (id.).
The plaintiff further alleges that on February 22, 2021, Mr. Rick submitted the plaintiff's pay promotional review to the human resources department, but the review was lost (doc. 15-1 at 3-4). When the plaintiff asked what happened to the review and why he did not receive it, he "was told they didn't know what happened to it [and] again references [were] made to nigger hang" and "N. Hang" (id. at 4). The plaintiff submits that he kept asking about the review, and he was subsequently given a new review, which granted the pay increase (id.). Moreover, the plaintiff alleges that on or around October 21, 2021, his pay was reduced by $1.83 per hour (id.). When the plaintiff asked about this reduction, he was told that a new contract that took effect on July 1, 2021, required the reduction (id.). However, the plaintiff submits that he was the only employee in the entire company who had his pay reduced (id.). The plaintiff alleges that "after a few weeks of . . . continuously speaking to people about this matter[,] the company" agreed to give him $1.27 per hour back but withheld the 2.5% annual pay increase that every employee receives pursuant to the CBA (id.). When he asked why he would not receive the 2.5% annual pay increase, the plaintiff was told "I don't have to give you that" (id.). A few weeks later, after the plaintiff spoke with "a few people" and told "management that [he] would have to speak to the [Equal Employment Opportunity Commission] about this[,] the company came back and gave [him] the 2.5% increase" (id.). The plaintiff submits that when trying to get the defendant to pay him, there were references to "N. Hang[, w]hich was then joked about a financial hanging as it was Christmas time look at the nigger try to get presents" (id.). The plaintiff states that "taking an individuals pay at any time yet alone at Christmas then . . . standing back making jokes about how he's not gone be able to get Christmas this laughing like it's a financial hanging instead of it being rope round your neck and him swanging from a tree constitutes [a h]ostile work environment" (id. at 5-6).
III. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
“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) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing 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.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[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. American Honda Motor Co., Inc., 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) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if 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)); see also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).
B. Res Judicata
The defendant argues that the plaintiff's remaining hostile work environment claim should be dismissed based on res judicata (doc. 71-1 at 5-9). "Under res judicata, or claim preclusion, '[a] final judgment on the merits of an action precludes the parties or their privies from re-litigating issues that were or could have been raised in [the prior] action.'" Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004) (quoting Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). "By precluding parties in a subsequent proceeding from raising claims that were or could have been raised in a prior proceeding, '[r]es judicata ... encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.'" Id. (quoting Brown v. Felsen, 442 U.S. 127, 131 (1979)). In order for res judicata to apply, there must have been (1) a final judgment on the merits in a prior suit; (2) the identity of the cause of action in both suits; and (3) the same parties or their privies in the two suits. Id. at 354-55 (citing Nash Cnty. Bd. of Educ. v. The Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)).
As discussed above, there was a final judgment on the merits in a prior lawsuit involving the same parties in this action. In Clement I, this court dismissed the plaintiff's claims with prejudice, which was affirmed by the Fourth Circuit. Moreover, the parties are identical in Clement I and Clement II. Thus, at issue here is the second element - identity of the cause of action in both suits. "The determination of whether two suits arise out of the same cause of action . . . does not turn on whether the claims asserted are identical. Rather, it turns on whether the suits and the claims asserted therein 'arise out of the same transaction or series of transactions or the same core of operative facts.'" Pueschel, 369 F.3d at 355 (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1316 (4th Cir. 1996)). "Under this transactional approach, res judicata will bar a 'newly articulated claim[]' if it is based on the same underlying transaction and could have been brought in the earlier action." Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013) (quoting Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 162 (4th Cir. 2008)). Focusing solely on the claims asserted in each suit "would allow parties to frustrate the goals of res judicata through artful pleading and claim splitting given that [a] single cause of action can manifest itself into an outpouring of different claims, based variously on federal statutes, state statutes, and the common law.'" Pueschel, 369 F.3d at 355 (citation and internal quotation marks omitted).
As an initial matter, the plaintiff raises allegations in his response to the defendant's motion to dismiss that were not raised in his amended complaint. However, under the standard for ruling on a motion to dismiss pursuant to Rule 12(b)(6), the undersigned declines to consider these new allegations. See Adams v. 3D Sys., Inc., C/A No. 0:19-cv-663-JMC, 2020 WL 1283712, at *2 (D.S.C. Mar. 18, 2020) ("[I]n ruling on a motion to dismiss under Rule 12(b)(6), the court may only look to the allegations of the complaint ... [and] the Court will not consider any additional facts that were not alleged in the complaint.") (citations and internal quotation marks omitted); Carroll v. United Parcel Serv., Inc., C/A No. 1:17-cv-3108-DCC-JDA, 2018 WL 4126450, at *4 (D.S.C. Mar. 15, 2018) ("As an initial matter, in her brief, Plaintiff argues factual allegations not included in her Complaint. On a motion to dismiss, the Court will consider only the allegations included in Plaintiff's Complaint.") (internal citations omitted), R&R adopted in relevant part by 2018 WL 4111017 (D.S.C. Aug. 29, 2018); El Hadidi v. Intracoastal Land Sales, Inc., C/A No. 4:12-cv-00535-RBH, 2013 WL 625575, at *3 n.3 (D.S.C. Feb. 20, 2013) ("Plaintiff did not allege the May 6, 2009, date in his complaint and raises it for the first time in his response to the motion to dismiss. The Court, however, in ruling on a motion to dismiss filed under Rule 12(b)(6), may only look to the allegations of the complaint. Accordingly, the Court will not consider any additional facts that were not alleged in the complaint.").
As discussed in the report and recommendation filed on March 4, 2022, the undersigned previously recommended that the district court find that the plaintiff's employment discrimination claims in his amended complaint for actions prior to February 27, 2020, were barred by res judicata because they were already adjudicated and decided adversely to the plaintiff in Clement I (doc. 18 at 4-5). The undersigned now recommends that the district court find that the plaintiff's hostile work environment allegations occurring on or after that date are not barred by res judicata.
The Supreme Court of the United States has addressed the impact of subsequent conduct on res judicata in Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955), ruling that a judgment dismissing with prejudice a previous antitrust action did not bar a second antitrust lawsuit. Id. at 327. In that case, the defendants' conduct that led to the second lawsuit occurred after the judgment disposing of the first action. Id. at 328. The Supreme Court explained:
That both suits involved essentially the same course of wrongful conduct is not decisive. Such a course of conduct -for example, an abatable nuisance - may frequently give rise to more than a single cause of action. . . . And so it is here. The conduct presently complained of was all subsequent to the [former] judgment. In addition, there are new antitrust violations alleged here . . . not present in the former action. While the [former] judgment precludes recovery on claims arising prior to
its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case.Id. at 327-28. Holding otherwise would allow an wrongful actor to continue or repeat unlawful conduct with immunity from further suit by virtue of a prior suit on the same legal theory. Id. at 329 ("Acceptance of the respondents' novel contention would in effect confer on them a partial immunity from civil liability for future violations. Such a result is consistent with neither the antitrust laws nor the doctrine of res judicata."). The Fourth Circuit has noted that "[t]his circuit and others have relied on Lawlor to hold that 'res judicata has very little applicability to a fact situation involving a continuing series of acts, for generally each act gives rise to a new cause of action.'" Parma Corp. v. Super Sagless Corp., C/A No. 91-2202, 1992 WL 110716, at *2 (4th Cir. May 22, 1992) (quoting Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir. 1977)).
As set out above, in his amended complaint, the plaintiff acknowledges that there have been references to "N. Hang" since before he filed his complaint in Clement I. Further, the plaintiff asserted that the alleged discriminatory acts in his amended complaint began in "mid January 2018" and were "on[]going" (doc. 15 at 4). Additionally, the plaintiff made references to "N. Hang" in his complaint and amended complaint in Clement I (see Clement I, docs. 1 at 7-9 (alleging that he was asked to work with "N. Hang," "N. Hang isn't [an employee's] name," and this "goes to show the racist sentiment in this department"); 18 at 8 (“[T]he shop manager came back ask me to work with Mr. N. Hang.”)). Nevertheless, while the plaintiff could have brought a hostile work environment claim in Clement I regarding the defendant's use of "N. Hang,” the plaintiff also alleges that Mr. Barnwell has used this language subsequent to Clement I and that new comments have been made, including a “joke[] about a financial hanging as it was Christmas time look at the nigger try to get presents” (doc. 15-1 at 4). Similar to Lawlor, the undersigned notes that this alleged conduct occurred subsequent to Clement I and, despite involving the same type of wrongful conduct, could not have been sued upon in the prior suit. In other words, while the plaintiff's allegations occurring prior to February 27, 2020, are barred by res judicata, as discussed in the report and recommendation filed on March 4, 2022 (doc. 18), the undersigned finds that his allegations subsequent to the judgment in Clement I reflect new factual development and a new cause of action. Further, as discussed below, the undersigned finds that the plaintiff's allegations occurring on or after February 27, 2020, are sufficient on their own to state a hostile work environment claim that is plausible on its face. See Bennett v. Garner, 913 F.3d 436, 440 (4th Cir. 2019) ("A party is not precluded from bringing a claim that he was unable to bring in the initial litigation, regardless whether that claim constitutes part of the same conduct, transaction, or occurrence") (citations and internal quotation marks omitted); Root v. Cnty. of Fairfax, 541 Fed.Appx. 333, 335 (4th Cir. 2013) (recognizing that "new factual development" can give rise to "a fresh cause of action"); Ohio Valley Env'tal Coal. v. Aracoma Coal Co., 556 F.3d 177, 211 (4th Cir. 2009) ("The fact that the two suits involve challenges to very similar courses of conduct does not matter; a prior judgment cannot be given the effect of extinguishing claims which did not even then exist....") (citation and internal quotation marks omitted); see also Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 348 (2d Cir. 2003) ("Where the facts that have accumulated after the first action are enough on their own to sustain the second action, the new facts clearly constitute a new claim and the second action is not barred by res judicata.") (citations omitted).
The defendant argues that by relying on his pay reduction and failure to receive the annual 2.5% pay increase in 2021, the plaintiff is improperly attempting to use his previously dismissed pay discrimination claims in conjunction with his hostile work environment claim to avoid dismissal on res judicata grounds (doc. 83 at 1). However, as discussed below, the undersigned finds that the plaintiff's allegations regarding the joke about “a financial hanging as it was Christmas time look at the nigger try to get presents” when he was trying to get his pay adjusted, along with the allegations regarding Mr. Barnwell referring to him as “N. Hang” and asking him to stand in front of the “N. Hang” sign in the workplace post-Clement I, are separate from his pay discrimination claims and are sufficient to state a plausible claim of hostile work environment. Accordingly, accepting the plaintiff's allegations as true, the undersigned recommends that the defendant's motion to dismiss on res judicata grounds be denied.
C. Failure to State a Plausible Claim
The defendant also argues that the plaintiff's amended complaint does not state a plausible hostile work environment claim (doc. 71-1 at 9-13). "To demonstrate . . . a racially hostile work environment, a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer." Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011) (citations and internal quotation marks omitted). This test applies to hostile work environment claims asserted under Section 1981 and Title VII. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015). To show that the unwelcome conduct was based on the plaintiff's race under Section 1981, he must show but-for causation. Comcast Corp. v. Nat'l Assoc. of African Am.-Owned Media, 140 S.Ct. 1009, 1014 (2020) (holding a plaintiff bringing a claim under Section 1981 "bears the burden of showing that race was a but-for cause of its injury"). The severe or pervasive element “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 v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
The undersigned finds that the plaintiff has alleged that there was unwelcome conduct that was based on his race through his allegations that post-Clement I, Mr. Barnwell referred to him as “N. Hang” and “nigger hang,” Mr. Barnwell asked him to stand in front of the “N. Hang” sign on the board in the workplace, he had to stand in front of the “N. Hang” sign every day, and there was a “joke[] about a financial hanging as it was Christmas time look at the nigger try to get presents" when he was attempting to deal with his pay reduction and receive the 2.5% annual pay increase. The defendant argues that the plaintiff has not shown that but-for his race, he would not have been subject to these actions because the board is a legitimate, non-discriminatory employment tool containing the names and assignments of each employee in the plaintiff's department and there is an employee in that department whose name is similar to “N. Hang” (doc. 71-1 at 11). The defendant bases its argument on a photograph attached as an exhibit to its motion that it claims depicts the board in the plaintiff's workplace (doc. 71-5 at 2). However, on a motion under Rule 12(b)(6), the undersigned must assess the sufficiency of the plaintiff's amended complaint, and matters outside the pleadings are inappropriate for consideration by the court. Accordingly, the undersigned declines to consider this photograph.
The defendant argues that the plaintiff's hostile work environment claim is based entirely on this board and the alleged racial slur it contains, and thus reference to the extrinsic evidence contained in the photograph is appropriate in this motion to dismiss (doc. 71-1 at 11) (citing Triple R Ranch, LLC v. Pilgrims Pride Corp., 456 F.Supp.3d 775, 779 (N.D. W.Va. 2019) (stating that a court may rely on extrinsic evidence in considering a motion to dismiss “if the documents are central to Plaintiff['s] claim or are sufficiently referred to in the [c]omplaint”)). Here, however, the defendant asks that the court assume as true numerous facts that were not alleged in the amended complaint based on a photograph that was not included in the amended complaint and has not been authenticated by affidavit.
Further, the undersigned finds that the plaintiff's allegations are sufficient to state that the unwelcome conduct was sufficiently severe or pervasive to alter his conditions of employment and to create an abusive work environment, as the Fourth Circuit has held that a single use of the n-word or a similar racial slur by a supervisor can engender a hostile work environment. Boyer-Liberto, 786 F.3d at 280 (recognizing that a reasonable jury could find that a supervisor's "two uses of the 'porch monkey' epithet - whether viewed as a single incident or as a pair of discrete instances of harassment - were severe enough to engender a hostile work environment."); see White v. BFI Waste Servs., LLC, 375 F.3d 288 ("Far more than a mere offensive utterance, the word ‘nigger' is pure anathema to African Americans. Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates.") (internal citations and quotation marks omitted). In addition, the plaintiff alleges that Mr. Barnwell, the shop manager, has used these racial slurs towards him. See Strothers v. City of Laurel, Md., 895 F.3d 317, 333 (4th Cir. 2018) (“If the harasser is a supervisor, then the employer may be either strictly or vicariously liable for the supervisor's actions.”). Accepting these allegations as true, the undersigned finds that the plaintiff has stated a hostile work environment claim that is plausible on its face and recommends that the district court deny the defendant's motion to dismiss.
IV. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the defendant's motion to dismiss (doc. 71) be denied.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).