Opinion
C. A. 4:21-cv-2787-JD-KDW
05-12-2022
Kevin George, Sr., Plaintiff, v. Florence One Schools, Defendant.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Plaintiff Kevin George, Sr. (“George” or “Plaintiff”) brings this action against his employer, Florence One Schools (“FSD1”). Plaintiff's Complaint includes claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, as amended, and 42 U.S.C. § 1981 (“Section 1981”). Compl., ECF No. 1. Defendant seeks dismissal of Plaintiff's Section 1981 cause of action for failure to state a claim. Partial Mot. Dism. and Strike, ECF No. 9. Plaintiff opposes this Motion, ECF No. 12; Defendant filed a Reply, ECF No. 13. At the court's request, ECF No. 25, both parties have provided supplemental briefing regarding a portion of the argument concerning the Section 1981 cause of action, Pl. Surreply, ECF No. 26 and Def. Resp., ECF No. 28. Having considered the parties' filings and applicable law, the undersigned recommends Defendant's Motion for Partial Dismissal be denied as to request to strike “pattern and practice” allegations and granted as to the Section 1981 cause of action.
This employment matter was referred to the undersigned for pretrial proceedings. See 28 U.S.C. § 636(b); Local Civ. Rule 73.02(B)(2) (D.S.C.). This Report and Recommendation (“Report”) is submitted to the district judge as to Defendant's potentially dispositive motion to dismiss.
Additional allegations are discussed in analyzing Defendant's challenge to Plaintiff's Section 1981 action.
The following facts are taken from the Complaint and are construed in the light most favorable to Plaintiff, the nonmoving party. Plaintiff, an African-American male, has been employed by FSD1 since August 2001. He began as a Classroom Teacher and “advanced in education and position to Assistant Director and Assistant Principal.” Compl. ¶¶ 1-7. Plaintiff alleges he was subject to “discrimination based on race and gender; and, related to protected activity giving rise to this litigation, Plaintiff was subjected to retaliation.” Compl. ¶ 9. Plaintiff's Complaint includes the following nonexclusive list of “Defendant's alleged Title VII violations”:
• Despite his education and training (including having earned his doctorate), Defendant “continuously denied Plaintiff promotion and advancement opportunities in ways that Caucasian and Female employees were not denied in 2020.” Compl. ¶ 9a, b.
• Plaintiff applied for a vacant Middle School Principal position in 2020; however, on June 8, 2020, Defendant announced the position had been filled by a Caucasian female “less qualified than Plaintiff who did not have the same qualifications in education or experience.” Id. ¶ 9c.
o Plaintiff complained to Defendant's human resources (“HR”) representative on May 28, 2020, “about the recruitment and certification Director's interaction with him, and also to determine the status of his May application.” Plaintiff received no response and was not chosen for that position. Id. ¶ 9d.
• On June 26, 2020, Plaintiff applied for a vacant Assistant Principal position; again, the position was filled by a Caucasian female “less qualified than Plaintiff who did not have the same qualifications in education or experience.” Id. ¶ 9e.
• Plaintiff's “application to positions such as middle school principal, assistant principal, transportation or director of response and intervention were removed as pending applications between July 7, 2020 to September 7, 2020 administratively without explanation.” Id. ¶ 9f.
• In August 2020 Defendant completed an internal transfer of a Caucasian male employee to a vacant Assistant Principal position without announcing the vacancy. Id. ¶ 9g.
• In May 2021, subsequent to Plaintiff's November 9, 2020 filing of a Charge of Race and Gender Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and South Carolina Human Affairs Commission (“SCHAC”), Plaintiff applied for the vacant position of Director of the institution where he was already serving as Assistant Director. Defendant did not select Plaintiff for that position; Defendant “hand[-]selected or recruited applicants other than Plaintiff to fill that position.” Id. ¶ 9h, i. That position was filled by another applicant who “did not have the same qualifications in education or experience as Plaintiff.” Id.
• Plaintiff filed a grievance with the FSD1 Board, and the Board “upheld the decisions and actions of the administration without meeting with Plaintiff or performing an investigation.” Id. ¶ 9j.
Plaintiff received a Right to Sue Letter from the EEOC on May 29, 2021 and filed his Complaint in this court on August 27, 2021. Compl. ¶ 5.
II. Standard of review
“A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citing Twombly, 550 U.S. at 556)). 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 is also to “‘draw all reasonable inferences in favor of the plaintiff.'” Kolon Indus., 637 F.3d at 440 (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). As the Fourth Circuit recently noted, while facts must be taken as true, the test at the Rule 12(b)(6) stage “is not legally myopic. Rather, it must be applied with common sense to determine whether a complaint contains the ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,' not merely conceivable.” Tabb v. Bd. of Educ. of Durham Pub. Sch., 29 F.4th 148 (4th Cir. 2022) (quoting Iqbal, 556 U.S. at 678) (emphasis added in Tabb)). Further, although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At bottom, the court is mindful that a complaint “need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks omitted).
III. Analysis
Defendant seeks Rule 12(b)(6) dismissal of Plaintiff's Section 1981 claim, asserting: (1) as a matter of law, the individual Plaintiff cannot pursue a “pattern or practice” claim; (2) Plaintiff's individual Section 1981 pleading is insufficient because he has not pleaded that he would not have been discriminated against “but for” his race; and (3) Plaintiff's individual Section 1981 pleading is deficient as a matter of law because any Section 1981 claims against Defendant, a government entity, must sound in 42 U.S.C. § 1983 and must allege discrimination based on an official policy or custom of discrimination.
A. “Pattern or practice” claim
Defendant seeks dismissal of what it interprets to be Plaintiff's “pattern or practice” claim brought pursuant to Section 1981:
The 42 U.S.C §1981 claim asserts a pattern and practice of discrimination, alleging that the Defendant's “actions of failing to equally consider and promote African American male employees in an equal manner and on numerous occasions without proper legitimate business reasons, are all actions in violation of 42 U.S.C §1981.” (Compl. ¶24) Plaintiff further alleges that “Defendant exhibits a pattern and practice of discrimination in favor of all employees except African American Males, and the repeated conduct over time without adequate explanation or consequence is intentional.” (Compl. ¶27).ECF No. 9-1 at 2. Defendant seeks Rule 12(b)(6) dismissal of Plaintiff's purported “pattern or practice” claims, arguing such claims are impermissible outside of the class-action context. ECF No. 9-1 at 2 (citing, inter alia, Lowery v. Circuit City Stores, Inc. 158 F.3d 742, 759 (4th Cir. 1998), vacated and remanded in part on other grounds, 527 U.S. 1031 (1999)). Without any detailed briefing regarding the motion-to-strike standard, Defendant asks that the court “strike all references in the Complaint related to the ‘pattern and practice' claim.” ECF No. 9-1 at 4.
In response, Plaintiff also cites Lowery (and other cases), explaining that he has included the so-called “pattern and practice” allegations in support of individual claims of discrimination and that such evidence is not limited to the class-action setting. ECF No. 12 at 5-7. Plaintiff indicates he included the allegations to which Defendant points in support of his individual claims. He is not pursuing any sort of “class action” or a separate pattern or practice cause of action. Id.
Both parties' focus on Lowery is correct, as stated by a district court decision cited by both parties:
The Fourth Circuit has stated clearly that non-class action plaintiffs may not assert a pattern and practice claim. Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 759 (4th Cir.1998) (“[Individuals do not have a private, non-class cause of action for pattern or practice discrimination under § 1981 or Title VII.”). However, plaintiffs may use evidence of a pattern and practice of discrimination to establish a prima facie case pursuant to the McDonnell Douglas framework. Id. at 760-61.Demuren v. Old Dominion Univ., 33 F.Supp.2d 469, 479-80 (E.D. Va.), affd, 188 F.3d 501 (4th Cir. 1999).
Here, Plaintiff has indicated he is not pursuing a separate pattern and practice claim. Nor can he. However, Plaintiff is permitted to present the complained-of averments in support of his other claims. To the extent the Complaint were construed to contain separate “pattern and practice claims, ” dismissal would be appropriate. It is recommended that Defendant's request that the portions of the Complaint referencing alleged pattern and practice be struck be denied. See Rosendall v. Voight, No. 4:17-CV-0821-BHH-TER, 2017 WL 9674476, at *4 (D.S.C. Sept. 11, 2017) (“The moving party [seeking to strike portions of pleadings] bears a ‘sizable burden' to show that the challenged allegations have no possible relation or logical connection and would cause significant prejudice if not stricken.” (citation omitted)), adopted in 2018 WL 2093722.
B. Section 1981 claim
Defendant claims two separate legal grounds require Rule 12(b)(6) dismissal of Plaintiff's Section 1981 cause of action. First, Defendant submits Plaintiff's pleading cannot satisfy the standard set out by the United States Supreme Court in 2020 that requires a plaintiff pursuing a Section 1981 claim to “initially plead and ultimately prove that, but for race, [he] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020). ECF No. 9-1 at 3. Defendant looks to the Complaint's allegations that Plaintiff was denied promotions and advancement “in ways that Caucasian and Female employees were not denied in 2020, ” and that Defendant hired “less qualified female Caucasian applicants” for two positions for which he applied. Id. (citing Compl. ¶ 9 (various subparagraphs)). Defendant argues these allegations focused on characteristics besides race, as well as Plaintiff's averments that he has “advanced in education and position, ” Compl. ¶¶ 7, 9a, “contradicts any inference that he was subjected to racial discrimination” and prevents him from being able to plead the requisite “but-for” causation. ECF No. 9-1 at 3-4. On Reply, Defendant also argues Plaintiff has not set out “but-for” causation based on race because he also alleges retaliation. ECF No. 13 at 2 (citing Compl. ¶ 9d).
The causation standard for discrimination claims under Title VII is different. In contrast to Comcast's requirement that a plaintiff plead and prove that “but for race, [plaintiff] would not have suffered the loss of a legally protected right[, ]” 140 S.Ct. at 1019, a Title VII plaintiff may prove discrimination by showing that race was a “motivating factor” in the employer's adverse employment action. Id. at 1017; see also Swaso v. Onslow Cnty. Bd. of Educ., 698 Fed.Appx. 745, 747 (4th Cir. 2017), as amended (Aug. 11, 2017).
1. Challenge based on need for policy or custom violation
Defendant seeks dismissal of Plaintiff's Section 1981 cause of action because, for a state actor entity such as FSD1, Section 1981 liability is only possible under the requirement of 42 U.S.C. § 1983 that requires that plaintiff “show an official policy or custom of discrimination.” ECF No. 13 at 1.
Because Defendant waited until its reply brief to raise this dismissal-ground the court is not obligated to consider it. However, because the court finds it a ground that is worthy of full consideration Plaintiff was provided the opportunity to submit a surreply as to this ground. ECF No. 25. Plaintiff did so, and Defendant responded to the surreply. ECF Nos. 26, 28. See United States v. Head, 340 F.3d 628, 630 n.4 (4th Cir. 2003) (explaining rule that arguments raised for the first time on reply should not be considered is discretionary and may be excused if the other party is given an opportunity to respond).
In Jett v. Dallas Independent School District, 491 U.S. 701 (1989), the Supreme Court held that when suit is brought against a state actor, §1983 is the “exclusive federal remedy for violation of the rights guaranteed in §1981.” Id. at 733. For such a claim, a plaintiff must show an official policy or custom of discrimination. See also Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (the § 1983 requirement that plaintiffs show an official policy or custom of discrimination also controls in § 1981 actions against state entities). Defendant argues Plaintiff's Section 1981 claim must be dismissed because he “makes no allegation in his Complaint that any failure to promote was the result of an official custom or policy.” ECF No. 13 at 1.
In response, Plaintiff does not dispute that the “official custom or policy” requirement is applicable here. Rather, he points to several allegations of his Complaint as providing the required “official custom or policy.” ECF No. 26 at 2. In particular, Plaintiff focuses on the following portions of his pleading:
11. FSD1 should be aware of other discriminatory acts which could statistically represent disparate treatment among black and/or male employees within FSD1, in ways that include the following:
a. In United States of American vs. Florence County School District 1, et al, Civil Action No. 70-609, an Agreed Order of Unitary Status and Dismissal in September 2018, in which it was discussed that FSD1 had agreed since 1995 to recruit minority personnel and continue to insure that white and African American experienced personnel were retained in numbers comparable to the district wide averages at each school.
* * *
24. The foregoing condoned actions of failing to equally consider and promote African American male employees in an equal manner on numerous occasions without proper legitimate business reasons, are all actions in violation of 42 U.S.C. §1981.
25. The acts constituted intentional discrimination on the basis of race with respect to the enjoyment of all benefits, privileges, terms and conditions of the employment relationship between Plaintiff, a public employee, and Defendants.
***
27. Defendant exhibits a pattern and practice of discrimination in favor of all employees except African American Males, and the repeated conduct over time without adequate explanation or consequence is intentional.Compl., ECF No. 1. Plaintiff also seems to argue the requisite “custom or policy” is provided by his pleading that he was passed over for several positions that were given instead to “less qualified Caucasian women or less qualified males” provides the requisite policy. ECF No. 26 at 2-3. Plaintiff submits that the same “pattern or practice” allegations discussed above “demonstrates Defendant's policy or custom of discrimination against African Americans that is necessary pleading for the § 1983 or § 1981 claim against a state actor.” Id. at 5 (quoting Bd. of the Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997), for the proposition that an act “performed pursuant to a ‘custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.”).
The undersigned notes that many of the cases considering policies and customs in the context of liability under Section 1981 (through Section 1983) discuss “municipalities.” The same analysis applies to entities such as Defendant that are acting “under color of State law.” 42 U.S.C. § 1983. Plaintiff has not challenged that Defendant is so-considered.
Defendant argues none of these allegations referenced by Plaintiff can satisfy the legal requirement that he plead an official custom or policy sufficient to establish Section 1981 liability. Regarding the 2018 court order referenced by Plaintiff, Defendant attaches a copy of that order and notes that, rather than permitting any sort of inference of an “official custom, ” the order “clearly finds that the District is hiring staff in a non-discriminatory manner and not making employment decisions on the basis of race.” ECF No. 28 at 4 (referencing Consent Order in United States of America v. Florence Cnty. Sch. Dist. 1, C/A No. 70-609 (D.S.C. September 28, 2018), attached at ECF No. 28-2). Defendant submits the other allegations offer only general claims of discrimination and suggest no custom or policy. Id.
As Plaintiff references the Order in her Complaint it appropriately may be considered at this motion-to-dismiss stage. “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 at 448. 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. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). In addition, the court takes judicial notice of its records. See, e.g., Lolavar v. De Santibanes, 430 F.3d 221, 224 n.2 (4th Cir. 2005) (taking judicial notice of the docket sheet of a court of record); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that the most frequent use of judicial notice is notice of the content of the court's own records).
A plaintiff may demonstrate the existence of an official policy in three ways: (1) a written ordinance or regulation; (2) “certain affirmative decisions of policymaking officials”; or (3) in “certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999). “Locating a ‘policy' ensures that a municipality [or other entity subject to Section 1983, such as Defendant] is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the [entity].” Bd. of Comm'rs of Bryan Cnty., 520 U.S. at 403-04. “An official policy often refers to ‘formal rules or understandings . . . that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time,' and must be contrasted with ‘episodic exercises of discretion in the operational details of government.'” Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir. 1999) (alteration in Semple; citations omitted).
Case law discusses what is required to show an entrenched “custom” that may suffice in this context. “Outside of such formal decisionmaking channels, a municipal custom may arise if a practice is so ‘persistent and widespread' and ‘so permanent and well settled as to constitute a “custom or usage” with the force of law.'” Carter, 164 F.3d at 218 (quoting Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978)). A policy or custom “may be attributed to a municipality when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees.” Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987). However, a policy or custom that gives rise to Section 1981 liability (through Section 1983) will not “be inferred merely from municipal inaction in the face of isolated constitutional deprivations by municipal employees.” Milligan v. City of Newport News, 743 F.2d 227, 230 (4th Cir. 1984).
The court agrees with Defendant that Plaintiff's Complaint does not plead facts that would support a finding that the District has an official custom or policy of racial discrimination. Most of the averments on which Plaintiff relies to set out a “custom or policy”-including general allegations about his treatment in 2020 and 2021-are mere “episodic exercises of discretion in the operational details of government.” Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir. 1999). Plaintiff has not presented a policy so “persistent and widespread and permanent and well settled as to constitute a custom or usage with the force of law.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (internal quotations omitted). “Thus, a plaintiff cannot rely upon scattershot accusations of unrelated constitutional violations to prove that ... [the municipal policy itself] was the moving force behind [his] deprivation.” See id.
Defendant attaches a document that purports to indicate the District Board is responsible for adopting policy and making hiring decisions based on recommendations from the superintendent. ECF No. 28 at 5 n.4. However, the policy attached is one from Richland County School District One and is inapplicable to this case.
Plaintiff's focus on the 2018 “Agreed Order of Unitary Status and Dismissal” entered between Defendant and the United States of America in a case originally brought in 1970 does not change the recommended ruling. Plaintiff submits that this Order sets out a “custom of discrimination so apparent that a case was previously filed against [Defendant] as late as 1995.” ECF No. 26 at 6. To the contrary, if anything the 2018 Agreed Order comes closer to establishing Defendant's continued agreement to a policy (or custom) of nondiscrimination. Relevant to faculty-hiring, the Order referenced a 1971 Revised Desegregation Plan, indicated Defendant's compliance with that Plan, and summarized its finding that Defendant “appears to recruit, hire, and assign faculty and staff in a non-discriminatory manner and teacher and staff assignments are not made on the basis of race.” Agreed Order 5, 6, ECF No. 28-2.
Plaintiff has not pleaded evidence of any official policy of discrimination or of discriminatory conduct that plausibly could be considered a “custom” that is attributable to Defendant. In fact, as pointed out by Defendant, Plaintiff's Complaint avers that Defendant had “facially neutral policies and procedures, ” but that they were applied in a discriminatory and retaliatory manner. Compl. ¶ 13. See generally, Robinson v. City of Columbia, No. 3:15-1398-CMC-PJG, 2015 WL 7769233, at *2-3 (D.S.C. Nov. 5, 2015) (recommending Rule 12(b)(6) dismissal because plaintiff's allegations did not show any discrimination pursuant to a policy; rather, they averred that certain individuals failed to follow or properly apply the policy for discriminatory reasons), report and recommendation adopted, No. 3:15-1398-CMC-PJG, 2015 WL 7776934 (D.S.C. Dec. 2, 2015).
The undersigned recommends granting Defendant's Motion to Dismiss Plaintiff's Section 1981 cause of action.
Although Plaintiff briefly asks that the court permit amendment to cure this shortcoming, he has provided no information as to any other policy or entrenched custom that he could add to cure the deficit. In fact, in his alternative request for leave to amend looks to already pleaded allegations as alleging the “customs of policies of the current administration in terms of racial equity[.]” ECF No. 26 at 6. Plaintiff goes on to suggest he could “specifically identify further the customs or practices and state “Defendant's execution of its hiring and promotion custom or practice inflicts injury on Plaintiff and other African American employees similarly situated and but for their race, African American employees would have been considered.'” Id. As noted above, though, merely demonstrating unlawful execution of a policy does not provide a plausible Section 1983/1981 violation. Amendment to cure this failure likely would be futile. When a proposed amendment to the complaint appears to be a futility, the district judge retains the discretion as to whether to permit amendment. Futility is apparent if the proposed amendment fails to state a claim under the applicable rules and accompanying standards: “[A] district court may deny leave if amending the complaint would be futile-that is, if the proposed amended complaint fails to satisfy the requirements of the federal rules.” Katyle v. Penn Nat. Gaming, Inc. 637 F.3d 462, 471 (4th Cir. 2011) (citing United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)).
Although Plaintiff technically would be able to cure the failure to cite specifically to Section 1983, the undersigned would not recommend dismissal on that issue alone. Rather, dismissal is recommended on Plaintiff's lack of a plausibly pleaded policy or custom that could trigger liability under Section 1981 (through Section 1983).
2. Comcast-based “but-for causation” challenge
Defendant also raises a Comcast-based challenge to the Section 1981 cause of action, arguing dismissal is appropriate because Plaintiff's Complaint includes allegations making it implausible that he has pleaded race to be a but-for cause of the alleged discrimination. ECF No. 9-1 at 3 (citing Comcast's holding that a plaintiff pursuing a Section 1981 claim is required to “initially plead and ultimately prove that, but for race, [he] would not have suffered the loss of a legally protected right.” Comcast Corp. 140 S.Ct. at 1019). Based on the above recommendation, the court need not focus on this portion of Defendant's challenge.
In response, Plaintiff does not specifically address Comcast. Rather, he submits his Complaint is sufficient pursuant to Rule 12(b)(6). Plaintiff argues that “[t]he ‘but-for' causation is clearly inferred in the complaint.” ECF No. 12 at 3-4. Plaintiff notes that he pleaded that he was intentionally discriminated against on account of his race and that “he applied for positions filled by less qualified Caucasian women.” Id. Although Plaintiff does not discuss Comcast, one of the cases he cites, Grant v. Atlas Rest. Grp., LLC, considered the Comcast requirement and found that plaintiff had adequately made allegations of an appropriate white comparator for the required but-for causation to be inferred at the Rule 12 stage. ECF No. 12 at 4 (citing Grant v. Atlas Rest. Grp., LLC, No. 20-cv-2226-GLR, 2021 U.S. Dist. LEXIS 126350, 2021 WL 2826771, at *3 (D. Md. July 7, 2021)). Plaintiff submits he has “placed Defendant on sufficient notice of Plaintiff's allegations of race discrimination and retaliation[, ]” claiming that is sufficient under Federal Rules of Civil Procedure 8 and 12. ECF No. 12 at 4. If the Complaint is deemed insufficient, Plaintiff seeks to amend “to specifically state ‘but for' his race he would have been considered for a position[.]'” ECF No. 12 at 5.
On Reply, Defendant points out that any attempt by Plaintiff to amend and add the “but-for” causation words would be futile because those words alone would not satisfy the but-for requirement of Comcast. See ECF No. 13 at 1-2 (“The ‘but for' standard for a § 1981 claim requires that the only reason for a discriminatory action is based on race.”). In his Sur-reply, Plaintiff looks to the requirement for demonstrating but-for cause in the Title VII retaliation context and submits he is not required to show that the “protected characteristic be the one and only cause of the adverse action[, ]” but that he “most prove that the protected characteristic was a but-for cause.” ECF No. 26 at 4 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (concerning Title VII's but-for standard in the retaliation context). Plaintiff further points out that the Complaint complains of several different incidents of discriminatory conduct, and that each may be considered on its own facts. At bottom, Plaintiff argues there can be more than one but-for cause and he is permitted to plead alternative causes of action. ECF No. 26 at 4.
As a practical matter, the undersigned is not convinced that Defendant's strict reading of Comcast is appropriate. Certainly, Section 1981 claims must be predicated only on race, and Plaintiff's reference to “African American male employees” and “discrimination in favor of all employees except African American Males ” Compl. ¶ ¶ 24, 27, in his Section 1981 claim makes the claim facially defective. That is not necessarily to say, however, that a plaintiff can never plead Title VII (or other similar) claims based on protected characteristics in addition to race alongside Section 1981 claims necessarily predicated on race alone. Duenez v. Tidewater Boats, LLC, No. CV 3:20-972-MGL-SVH, 2020 WL 5801029, at *2 (D.S.C. Sept. 28, 2020) (considering defendant's Comcast-based challenge to complaint that included language indicating race was a “motivating factor” for discriminatory act and permitting plaintiff's proffered amendment that removed such language, added allegations that race was but-for cause of treatment, and clarifying that plaintiff's Section 1981 claims were based solely on race discrimination and his Title VII claims were based on race and another protected characteristic). Here, Plaintiff's Complaint as currently drafted includes reference to race and gender in his Section 1981 claim. In the event the district judge analyzes this ground of the Motion discussed above, it is recommended that, to the extent Plaintiff can amend to plausibly plead any of the allegedly adverse employment actions would not have taken place but-for his race, he ought to be given permission to amend as to that point only. Again, of course, whether to permit focused amendment is within the district judge's discretion.
If amendment were to be permitted for any reason, the court notes that judicial economy suggests that the parties continue to pursue discovery as to both causes of action and that any additional challenges to the Section 1981 claim be presented to the court along with any other grounds for post-discovery dismissal.
IV. Conclusion and Recommendation
For the reasons set forth herein, it is recommended that Defendant's Partial Motion to Dismiss and Strike, ECF No. 9, be denied as to the request to strike certain “pattern and practice” allegations from the Complaint, and granted as to dismissal of the Section 1981 cause of action, subject to any amendment the district judge deems appropriate.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”