Opinion
Civil Action 4:21-cv-0754-SAL-TER
09-30-2021
DWANE HEYWARD, Plaintiff, v. CARETEAM PLUS, INC. and JOHANNA HAYNES, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This case arises from Plaintiff's employment with and subsequent termination from Defendant Careteam Plus, Inc. She alleges causes of action for race discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1981, retaliation and hostile work environment in violation of Title VII, wrongful termination in violation of public policy, slander against Defendant Johanna Haynes, and negligent supervision. Presently before the court is Defendants' Motion to Dismiss (ECF No. 5) Plaintiff's causes of action for hostile work environment, wrongful termination, slander, and negligent supervision. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
Plaintiff includes additional facts in her Reply that are not alleged in the Complaint. However, because the matter is presently before the Court on a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the undersigned considers only the facts alleged in the Complaint.
Plaintiff is an African-American female. Compl. ¶ 23 (ECF No. 1-1). Plaintiff began working for Defendant Careteam Plus on August 9, 2018, as a Prevention Coordinator. Compl. ¶ 26. Plaintiff was responsible for conducting and facilitating STI education and prevention and coordinating HIV testing, recruitment, and outreach activities per South Carolina Department of Health and Environment Control (SCDHEC) guidelines. Compl. ¶ 26. On October 29, 2018, Plaintiff received an evaluation rating her performance as meets or exceeds in all categories. Compl. ¶ 31. In December of 2018, Plaintiff arranged for SCDHEC to come to the Conway office to conduct training with the Prevention staff, and in January of 2019, Plaintiff provided Prevention staff with additional training. Compl. ¶¶ 32-33. In February of 2019, one of the two Prevention Specialists in Plaintiff's office was terminated from employment. Compl. ¶ 34. On April 10, 2019, Plaintiff received another evaluation rating her performance as meets or exceeds in all categories. Compl. ¶ 35.
On April 11, 2019, Plaintiff became aware of an issue with HCV testing that controls were not being conducted. Compl. ¶ 36. She suspended all testing and informed Defendant Johanna Haynes, CEO of Careteam Plus, Inc., that a corrective action report needed to be filed with SCDHEC. Compl. ¶ 36. Haynes refused to correct the report in violation of the policies and procedures of the State. Compl. ¶ 36.
In May of 2019, Haynes asked Plaintiff is she had contacted bar owners to conduct testing in local gay bars. Compl. ¶ 37. Plaintiff informed Haynes that the bars could not provide secure locations to deliver test results, and federal and state laws, manufacturer protocols, and Careteam Plus's policies and procedures required a secure location to deliver test results. Compl. ¶ 37. Therefore, it was determined that testing would not be conducted in bars. Compl. ¶ 37.
In June of 2019, a new Prevention Specialist was hired for a new Georgetown office, and SCDHEC came to the Conway office to provide training. Compl. ¶¶ 38-39. On July 29, 2019, Plaintiff was required to terminate another Prevention Specialist, which again decreased the number of Prevention Specialists to one. Compl. ¶ 40. The termination delayed the opening of the Georgetown office because a Prevention Specialist was needed in the Conway office for walk-ins. Compl. ¶ 40. On August 5, 2019, Plaintiff was required to terminate the remaining Prevention Specialist. Compl. ¶ 41. On August 13, 2019, Haynes again asked Plaintiff why there was no testing in local gay bars, and Plaintiff again informed Haynes why testing could not be performed by law in the local gay bars. Compl. ¶ 42.
From August 5, 2019, until September 9, 2019, Plaintiff was the only person working to do prevention and was performing the job responsibilities of four individuals. Compl. ¶ 43. Between September 9, 2019, through November 15, 2019, new staff was hired, but they were not fully trained by SCDHEC until November 15, 2019. Compl. ¶ 44. On October 10, 2019, Haynes again asked Plaintiff about testing in local gay bars in front of the newly hired Prevention Specialists. Compl. ¶ 45. Plaintiff again informed Haynes why such testing could not be conducted. Compl. ¶ 45. Plaintiff alleges that Haynes' questioning of Plaintiff in front of her staff undermined Plaintiff's authority and “instituted a hostile work environment” for Plaintiff. Compl. ¶ 45.
On October 19, 2019, a prevention meeting was held regarding the process of opening the Georgetown Office. Compl. ¶ 46. Plaintiff informed management that there was no one currently working in that office full time because of the lack of personnel and because the newly hired Prevention Specialists had not yet completed their training. Compl. ¶ 46. Plaintiff informed management that she was working in the Georgetown office a few days a week. Compl. ¶ 46.
On October 28, 2019, Haynes again asked Plaintiff why there was no testing in local gay bars, and Plaintiff again explained that it could not be done without violating state and federal laws. Compl. ¶ 48. Because of Plaintiff's refusal to violate the law and the manufacturers' recommendations, she was subjected to a hostile work environment and termination. Compl. ¶ 49.
Also on October 28, 2019, Plaintiff contacted Human Resources and informed the Director that she was being harassed by Haynes. Compl. ¶ 50. Plaintiff specifically informed the Human Resources Director that Haynes was spreading lies and gossip and creating and cultivating a toxic and racially hostile work environment. Compl. ¶ 50. On October 31, 2019, the Human Resources Director informed Plaintiff that she was not blowing off Plaintiff but that she had been sick and had not had an opportunity to investigate Plaintiff's complaints. Compl. ¶ 51. Plaintiff reiterated that she felt she was being discriminated against and harassed based on her race. Compl. ¶ 51.
On November 18 and 19, 2019, Plaintiff made formal complaints regarding discrimination and reported the false allegations of Haynes. Plaintiff was informed that her supervisor would be Kim Sinkway. Compl. ¶ 52. During the meeting Plaintiff stated that Haynes lies and is very disrespectful. Compl. ¶ 54. Following the meeting Plaintiff sent several emails to Haynes seeking direction on items to be handled and making sure that Haynes was included in the loop regarding prevention even though Plaintiff now had a direct supervisor. Compl. ¶ 55. Haynes did not respond to Plaintiff's emails, and no one addressed Plaintiff's complaint of false allegations by Haynes at any time. Compl. ¶ 55.
On December 2, 2019, Plaintiff had a meeting with Kiasha Stinson, Kim Sinkway, and Armondo Alford, and was informed that her new supervisor was Stinson. Compl. ¶ 56. On December 9, 2019, Plaintiff had a meeting to discuss the opening of the Georgetown office and to address the validity of the actual testing that would take place and verify with SCDHEC that the lab was being properly run. Compl. ¶ 57. Plaintiff requested signage so the community would know that the office in Georgetown was open. Compl. ¶ 58. Plaintiff was told that the Georgetown office needed to maintain anonymity. Compl. ¶ 58. Plaintiff had additional meetings on December 11, 2019, to discuss setting up and scheduling for the Georgetown office, and to schedule official SCDHEC training for December 18, 2019. Management was concerned that the new Prevention Specialists wold be required to travel from Conway to Georgetown. Compl. ¶ 59. Plaintiff informed management that she would be in Georgetown on December 16, 2019, to finish setting up the office. Compl. ¶ 60.
On December 16, 2019, Plaintiff contacted the EEOC and notified the Human Resources Director that she was filing a complaint with the EEOC. Compl. ¶ 61. During a meeting that day, Plaintiff asked the others present if they saw the discrimination and harassment by Haynes. Compl. ¶ 62. Sinkway and Stinson stated that they did not see anything and failed to address any of Plaintiff's concerns regarding discrimination and harassment. Compl. ¶ 62.
Plaintiff alleges that because she refused to commit illegal actions, Haynes developed false statements regarding Plaintiff's performance. Compl. ¶ 64. As a result, on December 18, 2019, Plaintiff received a warning regarding her performance. Compl. ¶ 65. She was informed that she was being insubordinate. Compl. ¶ 65.
On January 5, 2020, Plaintiff provided a time line of events regarding formal harassment to “the Defendant.” In the letter, she specifically addressed the issues with Haynes' malicious and retaliatory behaviors and her continued perpetration of ten different lies regarding Plaintiff. Compl. ¶ 68. On January 8, 2020, Plaintiff was placed on administrative leave so that an investigation could be conducted by Haynes. Compl. ¶ 69.
On January 9, 2020, Plaintiff sent a formal complaint to the Board regarding the harassment and retaliatory practices she was suffering. She also informed the Board that she had filed a complaint with the EEOC. Compl. ¶ 70.
A meeting was scheduled with Plaintiff, Kim Sinkway, the Human Resources Director, and Haynes for January 30, 2020, at 5:00 pm. However, Plaintiff emailed them earlier that day to inform them and several board members that neither she nor her attorney felt it was safe for her to meet with individuals she had specifically named in her complaint after normal working hours. She informed them that she would not be at the meeting scheduled for 5:00 p.m. and requested to reschedule the meeting during normal work hours and with other, non-partial individuals present. Compl. ¶ 74. On January 31, 2020, Plaintiff's employment was terminated, though she did not receive the letter of termination until February 3, 2020. Compl. ¶¶ 76-77. The letter of termination indicated that Plaintiff would receive health insurance and benefits through February 28, 2020. Compl. ¶ 79. However, Defendant canceled Plaintiff's health insurance and benefits on February 5, 2020. Compl. ¶ 80.
III. STANDARD OF REVIEW
Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003).
IV. DISCUSSION
A. Hostile Work Environment
Defendants move to dismiss Plaintiff's third cause of action alleging a hostile work environment in violation of Title VII. Under Title VII, it is unlawful for an employer “to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “Because ‘an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.'” Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (quoting EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001)). Plaintiff must allege that she suffered from harassment that was (1) unwelcome, (2) based on a protected status, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to the employer. EEOC v. C. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). Defendants argue that Plaintiff has failed to allege sufficient acts of harassment that were based on her race and were so severe or pervasive as to alter the conditions of her employment.
Plaintiff appears to allege that she began to suffer harassment in April of 2019, after she reported an issue with HCV testing and informed Haynes that a corrective action report needed to be filed with DHEC. However, Haynes refused to correct the report. Thereafter, in May, Haynes asked Plaintiff if she had contacted local bar owners about conducting testing in local gay bars. Plaintiff explained to Haynes why it could not be done. In July of 2019, Plaintiff was required to terminate a Prevention Specialist, and was required to terminate the last Prevention Specialist in August of 2019, leaving her with no support staff. New support staff was hired between September and November of 2019, but none of them were fully trained until November. In addition, Haynes asked Plaintiff the same question regarding testing in bars on three additional occasions-in August of 2019, and twice in October of 2019. After Haynes asked Plaintiff about testing in bars on October 28, 2019, Plaintiff contacted Human Resources to report that she was being harassed by Haynes. She specifically informed the Human Resources Director that Haynes was spreading lies and gossip and creating and cultivating a toxic and racially hostile work environment. However, Plaintiff has not set forth in the Complaint what lies and gossip Haynes was spreading, how the work environment was toxic or how race played a factor in any treatment received from Haynes. Plaintiff alleges that she reiterated her complaints that she was being discriminated against and harassed because of her race on October 31, 2019, and again on November 18-19, 2019. She alleges that she reported “the false allegations of Johanna Haynes, ” Compl. ¶ 52, but again does not allege what the false allegations were or how race played a factor. On December 16, 2019, Plaintiff contacted the EEOC and notified the Human Resources Director that she was filing a complaint with the EEOC. Plaintiff alleges that thereafter, on December 18, 2019, she received a warning regarding her performance. She alleges that because she refused to commit illegal actions, Haynes developed false statements regarding Plaintiff's performance. She does not set forth what the false statements were. Further, she specifically alleges that Haynes developed the false statements because Plaintiff would not perform illegal acts, not because of Plaintiff's race. Although Plaintiff references “the 10 different lies that were told by Haynes, ” Compl. ¶ 68, she does not set forth what those lies were. This is the extent of the factual allegations regarding Plaintiff's treatment by Haynes and her work environment.
In her response, Plaintiff states her hostile work environment claim as presented in the complaint “continues through to [paragraph] 36 when the Plaintiff began to be treated differently and hostilely by her supervisor.” Pl. Resp. p. 13. In paragraph 36, Plaintiff alleges that she reported an issue to Haynes.
In her response to Defendants' motion, Plaintiff relies on other allegations in her complaint to show that she has sufficiently alleged a cause of action for hostile work environment. Plaintiff points to the allegations she set forth in her EEOC complaint, which she incorporated into the complaint in this action. Those allegations provide that Plaintiff “reported discrimination, harassment, and hostile work environment, ” and received a written warning regarding her behavior following her report, that she was “treated different based on [her] race and [her] complaints, ” she was “later terminated, ” and “other individuals who were not in [her] protected category were treated more favorably and not terminated for committing the same alleged acts or worse acts.” Compl. ¶ 16. However, these allegations are simply recitations of the elements of a claim, “devoid of any further factual enhancement.” Iqbal, 556 U.S. at 678 (internal citation omitted). The only facts in the case regarding Plaintiff's treatment during her employment are that Haynes asked her on several occasions about conducting testing in local bars, even though she informed Haynes that it violated federal and state laws and other protocols, she was left without any support staff for approximately one month, and Haynes told unknown lies about Plaintiff after Plaintiff refused to commit illegal actions.
While Plaintiff specifically alleges that the treatment she received from Haynes began after she first reported an issue with HCV testing and when she refused to engage in illegal actions, she provides no specific allegations that her treatment was because of her race, other than her conclusory allegations that Haynes created a racially hostile work environment. There are no allegations that Haynes ever used any racial slurs or epithets or that she mentioned or referenced Plaintiff's race at any time. See Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998) (allegations of ill treatment at the hands of supervisors insufficient to make out hostile work environment claim where supervisor “never made any derogatory comments about [plaintiff's] race or age, and nothing about his conduct suggests it was based on these factors”); Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007) (“general[ized] statements of dissimilar treatment” insufficient to show discrimination based on race). The facts in the complaint are insufficient to allege that any harassment Plaintiff received was because of her race.
Further, harassment is severe or pervasive only if the workplace is “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 316 (4th Cir. 2008) (internal quotation marks omitted). Rude treatment, callous behavior, and a routine difference of opinion and personality conflict do not suffice to state a hostile work environment claim. Id. at 315-16. The allegations in this case indicate increased questioning by Haynes regarding Plaintiff's decisions, i.e., her decision not to conduct testing in bars, insufficient staffing, one poor performance review, and one written warning. These allegations are insufficient to allege severe or pervasive harassment. See Bullard v. Univ. of N. Carolina at Pembroke, No. 7:06-CV-169-F, 2007 WL 9718791, at *4 (E.D. N.C. Aug. 15, 2007) (“The court finds that Bullard's allegations regarding his increased workload, insufficient staff assistance, inadequate security or other measures to accommodate construction, one false performance evaluation and harassment by a supervisor regarding Bullard's decisions insufficient to state the third element of his hostile work environment claim.”); Baqir v. Principi, No. CIV.1:02 CV 179, 2004 WL 3314942, at *9 (W.D. N.C. Sept. 3, 2004), aff'd, 434 F.3d 733 (4th Cir. 2006) (holding allegations that “several doctors made false statements about [the plaintiff's] medical skills” were insufficient to meet the severe or pervasive requirement for a hostile work environment claim); Ofoche v. Apogee Medical Group, Virginia, P.C., 815 Fed.Appx. 690, 693 (4th Cir. 2020) (holding allegations of a heavy patient load and critiques of the plaintiff's communication skills were insufficient to reach the requisite level of severe or pervasive harassment to allege a claim of a hostile work environment); Oglesby v. Ford Motor Co., No. CIV.A. 2:04CV768, 2005 WL 1993434, at *7 (E.D. Va. Aug. 16, 2005) (holding that weekly and even daily questioning of the plaintiff regarding mistakes in his work performance insufficient to meet the severe or pervasive standard); Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761 (4th Cir.), cert. denied, 540 U.S. 940 (2003) (“Even viewed in the light most favorable to Bass, the facts she alleges merely tell a store of a workplace dispute regarding her reassignment and some perhaps callous behavior by her supervisors. They do not describe the type of severe or pervasive gender, race, or age based activity necessary to state a claim of hostile work environment.”). As stated above, to prevail on a hostile work environment claim, a plaintiff must establish that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The Fourth Circuit has “recognized that plaintiffs must clear a high bar in order to satisfy the severe or pervasive test.” Sunbelt Rentals, Inc., 521 F.3d at 315. The factual allegations in this case are insufficient to meet that bar. Nevertheless, even if Plaintiff has alleged sufficient facts to show that she suffered severe or pervasive harassment, as discussed above, she has failed to sufficiently allege that any such harassment was based on her race. Therefore, she fails to state a claim for a hostile work environment under Title VII and her third cause of action should be dismissed.
As discussed below, Plaintiff alleges that conducting testing in bars as Haynes expected her to do was against the law and policy. However, Plaintiff fails to allege any more specifics or identify what law or policy would be violated.
B. Wrongful Termination in Violation of Public Policy
Defendants also move to dismiss Plaintiff's fourth cause of action for wrongful termination in violation of public policy. As set forth above, Plaintiff alleges that Haynes frequently asked her why she was not conducting testing in local gay bars and Plaintiff informed her each time that she was not able to do so under Federal and State laws. Plaintiff alleges that “Defendant wrongfully terminated her in violation of public policy when it terminated her because she refused to participate in bar testing in violation of Federal and State Law, State Law procedures, Defendant's policies and procedures.” Compl. ¶ 145. Defendants argue that this claim is subject to dismissal because Plaintiff has failed to identify any law that Defendants demanded she violate nor does she allege that her termination itself violated any law.
Generally speaking, South Carolina law allows an employer to discharge an employee without incurring liability for good reason, no reason, or bad reason. Culler v. Blue Ridge Elec. Coop., 309 S.C. 243, 245, 422 S.E.2d 91, 92 (1992). However, the South Carolina Supreme Court has recognized a “public policy” exception to this doctrine. Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 225, 337 S.E.2d 213, 216 (1985). In Ludwick, the court held that an employee has a tort cause of action for wrongful discharge where there is a retaliatory discharge of the at-will employee in violation of a clear mandate of public policy. Id. The public policy exception clearly applies in cases where the employer either (1) requires the employee to violate the law, or (2) the reason for the employee's termination is itself a violation of criminal law. Lawson v. South Carolina Dep't of Corrections, 340 S.C. 346, 350, 532 S.E.2d 259, 260 (2000). However, “[w]hile the public policy exception applies to situations where an employer requires an employee to violate the law or the reason for the termination itself is a violation of criminal law, the public policy exception is not limited to these situations.” Barron v. Labor Finders of S.C., 393 S.C. 609, 614, 713 S.E.2d 634, 636-37 (2011). Thus, “an at-will employee may have a cause of action for wrongful termination even if the discharge itself did not violate criminal law or the employer did not require the employee to violate the law.” Id. at 614-15, 713 S.E.2d at 637. Nevertheless, the public policy exception “has not yet been extended beyond [these two situations].” McNeil v. S.C. Dep't of Corr., 404 S.C. 186, 192, 743 S.E.2d 843, 846 (Ct.App.2013); see also Taghivand v. Rite Aid Corp., 411 S.C. 240, 243, 768 S.E.2d 385, 387 (2015) (“While we have made clear that the exception is not limited to these situations, we have specifically recognized no others.” (internal quotation marks omitted)).
Other than her conclusory allegations that Defendant “terminated her because she refused to participate in bar testing in violation of Federal and State Law, State Law procedures, Defendant's policies and procedures, ” Compl. ¶ 145, Plaintiff fails to identify any law that Defendant required her to violate nor does she allege that her termination itself violated any criminal law. Plaintiff points to paragraphs 36-37 and 53, which state:
36. On April 11, 2019, there was an issue with HVC testing. Controls were not being conducted. The Plaintiff immediately suspended all testing and informed Haynes that a corrective action report needed to be filed with DHEC. Haynes refused to correct the report in violation of the policies and procedures of the State. The action of Haynes was a failure to follow the law, policies, and procedures of the State.
37. In May 2019, the Plaintiff was asked by Haynes if she had contacted bar owners to conduct testing in local gay bars. At that time, the Plaintiff informed Haynes that the bar owners could not provide secure locations to deliver the test results. Based on those concerns it was determined that testing would not be conducted in bars. That failure to provide test results in a secure location was a violation of Federal and State Law, violation of State, manufacturer's protocols, and Defendant's policies and procedures. ...
53. Throughout the Plaintiff's employment she has reiterated the fact that requests by Haynes to conduct testing in local gay bars is in violation of the law, manufacturer's protocols, State and Federal Law.Compl. ¶¶ 36-37, 53. These allegations generally reference state and federal laws, policies, procedures, and protocols, but do not identify them. “Simply stated, a litigant must allege more than a general statement that her discharge violated public policy. The complaint must set forth specific allegations that would enable the court to determine what public policy was violated.” McNeil, 404 S.C. at 193. Plaintiff's allegations are insufficient to enable this court to determine what public policy was violated. Even if it was this court's responsibility to determine the laws at issue the violation of which give rise to a public policy violation, based on the allegations in the complaint, it would have to go on a wild goose chase to try to do so. Therefore, dismissal of Plaintiff's fourth cause of action for wrongful discharge in violation of public policy is appropriate.
C. Slander
Plaintiff's fifth cause of action is one for slander against Haynes. Slander is a form of defamation. Parrish v. Allison, 376 S.C. 308, 656 S.E.2d 382, 388 (S.C. Ct. App. 2007). “Libel is the publication of defamatory material by written or printed words, ” while slander is “spoken defamation.” Id. “The tort of defamation allows a plaintiff to recover for injury to his or her reputation as the result of the defendant's communications to others of a false message about the plaintiff.” Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 484, 514 S.E.2d 126, 133 (1999) (citation omitted). The essential elements of a claim for defamation under South Carolina law are: 1) a false and defamatory statement; 2) unprivileged publication to a third party by defendant; 3) fault on the part of the defendant publisher; and 4) actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Erickson v. Jones Street Publishers, LLC, 368 S.C. 444, 455, 629 S.E.2d 653, 664 (2006).
With respect to the fourth element, defamation that is actionable irrespective of special harm is defamation per se, which includes defamatory statements regarding 1) the commission of a crime, 2) contraction of a loathsome disease, 3) adultery, 4) unchastity, or 5) unfitness in one's business or profession. Fountain v. First Reliance Bank, 398 S.C. 434, 442, 730 S.E.2d 305, 309 (S.C.2012) (citing Goodwin v. Kennedy, 347 S.C. 30, 36, 552 S.E.2d 319, 322-23 (S.C.Ct.App.2001)).
Plaintiff alleges the following factual allegations regarding slander:
64. That since the Plaintiff refused to commit illegal actions the Defendant, Johanna Haynes developed false statements regarding the Plaintiff's performance. ...
71. That Johanna Haynes made false statements regarding the Plaintiff in order to place her in a false light and terminate the Plaintiff's employment. ...
78. That Kim Sinkway repeated the false information that was set forth by Johanna Haynes. That the false information provided by Johanna Haynes in order to facilitate the termination of the Plaintiff was not privileged. The
statements were made by Johanna Haynes in retaliation for the Plaintiff's accusations of race discrimination and Haynes creating a hostile work environment. ...
152. The Defendant published false statements regarding the Plaintiff's work performance and issues regarding violations of policy.
153. The purpose of the termination of the Plaintiff was in retaliation for her refusal to violate the law.
154. That the false statements were intentionally made by the Defendant, in order to have the Plaintiff terminated from her employment and damage her reputation.
155. That the Defendant has continued the publication of the false narrative regarding the Plaintiff in order to damage the reputation of the Plaintiff and to ruin the Plaintiff's reputation in the community. ...
157. That the Plaintiff is entitled to damages from the Defendants in the amount of actual, compensatory, consequential and punitive damages for their unlawful actions of slandering her name.Compl. ¶¶ 64, 71, 78, 152-55, 157. Plaintiff's allegations regarding slander are vague. She does not specifically allege what the false statements were other than they were about her work performance. Though the court can reasonably infer that Haynes was falsely stating that Plaintiff was not performing testing in local bars as she should have been, “generally referring to ... work performance” is insufficient to meet the first element of a slander cause of action. Hamada v. Boeing Co., No. CV 2:19-2777-DCN-BM, 2020 WL 2559806, at *4 (D.S.C. Mar. 30, 2020), report and recommendation adopted, No. 2:19-CV-02777-DCN-BM, 2020 WL 2557029 (D.S.C. May 20, 2020); McNeil, 404 S.C. at 195, 743 S.E.2d at 848 (finding that plaintiff's allegations did not support an action for defamation where plaintiff “did not set forth with any specificity what the alleged false statements were”).
In addition, Plaintiff fails to identify to whom the false statements were made. Based upon the allegations in the complaint, the court can infer that the false statements were made to others in Plaintiff's workplace. However, this is still insufficient for notice pleading. See Colleton v. Charleston Water Sys., 225 F.Supp.3d 362, 369 (D.S.C. 2016) (holding that even if reasonable inference could be made that the alleged false statements were made in the workplace and overheard by one or more employees, the allegations were still insufficient for notice pleading). “Defendants cannot be expected to defend against an allegation that [Haynes] defamed Plaintiff by making a statement heard by unknown persons at an unknown place at an unknown time.” Id.; see also Hamada, 2020 WL 2559806, at *4 (dismissing a cause of action for slander where the complaint did not plead “with particularity the second element of defamation, that the communications at issue were made to a third party”). Because Plaintiff has failed to sufficiently plead an allegation for slander, dismissal is appropriate.
D. Negligent Supervision
Plaintiff also alleges that Defendant Careteam Plus, Inc. “failed and refused to properly supervise Johanna Haynes” and “permitted [her] to harass and subject the Plaintiff to a hostile work environment in violation of the law.” Compl. ¶¶ 161, 163. With respect to damages, Plaintiff alleges that
[a]s a result of Defendant's actions, Plaintiff has suffered irreparable injuries, including but not limited to loss of pay, benefits and other economic losses, emotional pain and suffering, mental anguish, humiliation, embarrassment, personal indignity, and other intangible injuries for all of which she should be compensated.Compl. ¶ 91.
Defendants argue that Plaintiff's negligent supervision claim is barred by the exclusivity provision of the South Carolina Workers' Compensation Act and Plaintiff was at all times an at-will employee, and an at-will employee cannot bring a negligence claim against an employer. The South Carolina Workers' Compensation Act provides that “[t]he rights and remedies granted by [the Workers Compensation Act] ... shall exclude all other rights and remedies of such employee ... as against his employer, at common law or otherwise, on account of [personal] injury, loss of service or death.” S.C.Code Ann. § 42-1-540. The Act is the exclusive remedy against an employer for an employee's work-related accident or injury. Fuller v. Blanchard, 595 S.E.2d 831, 834 (S.C. Ct. App. 2004). The exclusivity provision of the Act “precludes an employee from maintaining a tort action against an employer where the employee sustains a work-related injury.” Edens v. Bellini, 597 S.E.2d 863, 867 (S.C. Ct. App. 2004) (citing Tatum v. Med. Univ. of S.C., 552 S.E.2d 18 (S.C. 2001)).
Plaintiff argues that her negligent supervision claim falls outside the workers' compensation exclusivity provision because it applies only when a plaintiff alleges personal injury as a result of the defendant's actions and not injury to reputation. See Hand v. SunTrust Bank, Inc., No. 6:11-cv-0501-JMC, 2012 WL 3834859, *2 (D.S.C. Sept. 4, 2012) (holding that the plaintiff's claim for negligent misrepresentation was not barred by the SCWCA's exclusivity provision because the plaintiff had not alleged that she had suffered any damages as a result of a personal injury). However, as set forth above, Plaintiff alleges that she suffered “emotional pain and suffering, mental anguish, humiliation, embarrassment, [and] personal indignity” as a result of Defendants' actions. When the allegations include only stress and mental injuries unaccompanied by physical injury, the court has to take the additional step of determining whether the mental injuries resulted from “any event or series of events . . . taken in an extraordinary and unusual manner.” See Kerr v. Hammond Sch., No. 3:17-3109-JFA-KFM, 2018 WL 3132409, at *2 (D.S.C. Feb. 22, 2018), R&R adopted, 2018 WL 1737090 (D.S.C. Apr. 11, 2018) (citing S.C. Code Ann. § 42-1-160(C)). Courts in South Carolina have made clear that alleging that a condition of employment is “extraordinary and unusual” within the meaning of the Act is not a difficult hurdle to overcome. See Id. (finding that the plaintiff's allegations that supervisor unnecessarily confronted and accused her of lying were sufficient to constitute an extraordinary and unusual condition of employment for SCWCA preemption) (citing Powell v. Vulcan Materials Co., 384 S.E.2d 725, 727 (S.C. 1989) (holding that a single confrontation between an employee and supervisor wherein the supervisor called the employee a liar and accused the employee of poor performance was sufficient to constitute an extraordinary condition of employment and bring an alleged mental injury under the scope of the Act); Stokes v. First Nat. Bank, 410 S.E.2d 248, 250 (S.C. 1991) (holding that an increased workload was sufficient to constitute an unusual and extraordinary condition of employment under the Act)). Here, Plaintiff alleges that Defendant CareTeam Plus, Inc. was negligent in supervising Haynes and allowed her to subject Plaintiff to discrimination, harassment, discipline, and termination. These allegations are in line with those that South Carolina courts have found sufficient to constitute events taken in an extraordinary and unusual manner. Therefore, Plaintiff's sixth cause of action for negligent supervision claim is barred by the SCWCA exclusivity provision and dismissal is proper.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants' Motion to Dismiss (ECF No. 5) be granted and Plaintiff's causes of action for hostile work environment, wrongful termination, slander, and negligent supervision be dismissed.