Opinion
C. A. 4:22-cv-599-JD-KDW
10-03-2022
Cynthia McKever, Plaintiff, v. South Carolina Department of Disabilities and Special Needs, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
This employment-related matter is before the court for issuance of a Report and Recommendation (“Report”) pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Plaintiff's Complaint, ECF No. 1, includes two federal-law-based causes of action brought pursuant to the Family Medical Leave Act (“FMLA”)-one for interference with FMLA rights and one for retaliation for exercising such rights-and a state-law-based cause of action for intentional infliction of emotional distress (“IIED”). Compl., ECF No. 1. Defendant South Carolina Department of Disabilities and Special Needs (“SCDDSN”) responded to the Complaint by filing a Motion to Dismiss in which it seeks Rule 12(b)(6) dismissal of all causes of action. ECF No. 11. Having considered Defendant's Motion and Memorandum; Plaintiff's opposition, ECF No. 12; Defendant's Reply, ECF No. 13; and applicable law, the undersigned recommends Defendant's Motion to Dismiss be granted in part and denied in part as discussed herein.
I. Legal standard
Defendant moves to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing Plaintiff's FMLA-based causes of action are precluded from being considered herein and arguing Plaintiff has not and cannot set forth viable FMLA or IIED causes of action. “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.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). 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).
Although courts “generally do not consider extrinsic evidence when evaluating the sufficiency of a complaint,” in a motion under Rule 12(b)(6), there are exceptions: for example, courts “may properly consider documents attached to a . . . motion to dismiss ‘so long as they are integral to the complaint and authentic.'” Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014) (quoting Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). Thus the court may consider documents that are “integral to and explicitly relied on in the complaint [or motion to dismiss]” when [plaintiff] “do[es] not challenge [their] authenticity.” Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999). Courts may also take judicial notice of matters of public record. Id. Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
II. Background facts
Accepted as true for purposes of this Report, Plaintiff alleges the following facts that potentially are relevant to the pending motion:
Plaintiff was employed by Defendant from 1986 until her separation effective July 16, 2021. Her most recent position was as an HR Manager I. Compl. ¶¶ 4-5. Over the course of her employment Plaintiff has “established a record of FMLA coverage”; most recently Defendant approved Plaintiff's FMLA leave from April 29, 2019 to May 3, 2019 for care of her spouse; allowed Plaintiff's intermittent FMLA leave from May 2019 to January 2020; confirmed Plaintiff's request and eligibility for intermittent FMLA leave for spousal-care from December 20, 2019 to December 19, 2020; and Plaintiff took bereavement leave from February 12, 2020 to February 14, 2020. Compl. ¶ 7.
Plaintiff alleges Defendant “punished [her] and retaliated against [her] for exercising her leave rights, by issuing unreasonable demands that le[]d to discipline and termination.” Compl. ¶ 9; see also Compl. ¶ 10. Plaintiff was disciplined by Defendant in the form of an Employee Disciplinary Action Report in June 2019, following Plaintiff's FMLA leave from April 2019 to May 2019 and her intermittent leave that spanned from May 2019 to January 2020; Defendant disciplined Plaintiff on February 25, 2020, immediately upon her return to work after her spouse's death and subsequent to her being “at least FMLA eligible for intermittent leave from December 2019 to December 2020”; Defendant “continued heightened scrutiny of Plaintiff” and placed unreasonable demands on her, using a “history of discipline while Plaintiff was under FMLA coverage or FMLA eligible coverage” to terminate Plaintiff effective July 16, 2021, for “failing to ensure the proper processing of an HR claim.” Compl. ¶ 12.
Plaintiff alleges that, as a result of her “inability to work on command and demand within the unreasonable demands of her supervisor, Defendant punished Plaintiff in close proximity to her exercise of FMLA leave and FMLA eligible leave, by terminating Plaintiff for the negligent act of a subordinate.” Compl. ¶ 14. Plaintiff alleges she was treated differently from other employees who had not exercised FMLA rights. See Compl. ¶¶ 15, 18. Plaintiff alleges Defendant interfered with her FMLA rights in that Defendant's policies and practices “interfered with Plaintiff's FMLA rights to take FMLA leave without disciplinary action demotion and discharge.” Compl. ¶ 31; see Compl. ¶¶ 23-35. Plaintiff also alleges Defendant retaliated against her in response to her exercising her FMLA rights. See Compl. ¶¶ 20, 21, 36-40. Finally, Plaintiff asserts that Defendants' “constantly harassing [her] with unreasonable work demands and unwarranted discipline to the point of emotional distress and termination” while caring for a dying spouse amounted to IIED. Compl. ¶¶ 41-45.
Additionally, Defendant's Motion to Dismiss includes a copy of the January 13, 2022 Final Decision of the State Employee Grievance Committee (“Committee”) in Plaintiff's claim brought challenging her termination before that Committee. Final Decision (“Committee Decision”), ECF No. 11-2. Defendant argues the Committee Decision has the effect of precluding Plaintiff's litigation of her FMLA-based claims herein. As noted above, courts may consider documents that are attached to the Complaint or to the Motion to Dismiss so long as those documents are “integral” to the Complaint and whose authenticity are not questioned. E.g., Anand, 754 F.3d at 198. Here, neither party focuses in any detail on the legal issue of whether the Committee's Decision may be considered at this juncture. Although Plaintiff briefly argues that affirmative defenses generally ought not be considered at the motion-to-dismiss stage and that she was not required to anticipate defenses in her Complaint, Pl. Mem. 7, she does not question the authenticity of the Committee Decision. In fact, in opposing the motion to dismiss Plaintiff cites extensively to the Decision itself. Whether the Committee Decision is “integral” to Plaintiff's Complaint is less clear. Plaintiff does not reference the Committee Decision (or even the fact that she appealed her termination to the Committee) in her Complaint. Nonetheless, based on Plaintiff's detailed focus on the substance of the Committee Decision in opposing the merits of Defendant's preclusion claim, the undersigned is convinced that judicial economy makes it appropriate to move forward with considering the merits of the preclusion claim. Further, it is arguable that the court could take judicial notice of the Committee Decision. See generally, Wise v. S.C. Dept. Revenue, 3:18-cv-2161-MGL, ECF Nos. 6, 28 (D.S.C. Nov. 7, 2018) (granting Motion to Take Judicial Notice of final decision of State Employee Grievance Committee). The court, therefore, considers the Committee Decision in the context of Defendant's legal argument. This in no manner suggests the court automatically accepts all facts as set forth in the Decision as true.
In its January 13, 2022 Decision, the Committee upheld Plaintiff's termination. See Committee Decision 5, ECF No. 11-2. Plaintiff filed her Complaint in this court on February 25, 2022. ECF No. 1.
III. Analysis
A. Preclusion
Defendant first argues that res judicata requires dismissal of Plaintiff's FMLA causes of action (for interference and for retaliation). While both types of preclusion are sometimes referred to as “res judicata,” claim preclusion is typically also called res judicata; issue preclusion is also sometimes called collateral estoppel. The court recently explained these concepts in Cardenas v. Spinnaker Resorts, Inc., as follows:
The doctrine of res judicata embodies two distinct preclusion concepts: (1) claim preclusion; and (2) issue preclusion (or collateral estoppel). Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 376 n.1 (1985); Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). While claim preclusion refers to the preclusive effect of a judgment in foreclosing litigation of matters that should have been raised in an earlier suit, issue preclusion refers to the effect of a judgment in precluding the relitigation of particular matters that were actually litigated and decided. Briggs v. Newberry Cnty. Sch. Dist., 838 F.Supp. 232 (D.S.C. 1992). “Issue preclusion is more narrowly drawn and . . . operates to bar subsequent litigation of those legal and factual issues common to both actions that were ‘actually and necessarily determined by a court of competent jurisdiction in the first litigation.'” Orca Yachts, L.L.C. v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002).Cardenas v. Spinnaker Resorts, Inc., No. CV 9:18-761-BHH, 2019 WL 7761751, at *3 (D.S.C. Mar. 5, 2019), clarified on denial of reconsideration, No. CV 9:18-761-BHH, 2019 WL 7761707 (D.S.C. July 3, 2019). In determining the preclusive effect of an earlier proceeding on a new matter, federal courts apply the preclusion rules of the state that issued a judgment (here, South Carolina). Bennett v. Garner, 913 F.3d 436, 440 (4th Cir. 2019).
As correctly noted by Defendant, the prior action can include administrative proceedings. See Bennett v. S.C. Dep't of Corrs., 408 S.E.2d 230, 231 (S.C. 1991) (“This Court has repeatedly held that, under the doctrines of res judicata and collateral estoppel, the decision of an administrative tribunal precludes the relitigation of the issues addressed by that tribunal in a collateral action.”) (citation omitted). The court must analyze, then, whether Plaintiff's FMLA causes of action are precluded by the Committee Decision.
a. Claim preclusion/res judicata
Claim preclusion under South Carolina law has three elements: “(1) identity of the parties; (2) identity of the subject matter; and (3) adjudication of the issue in the former suit.” Plum Creek Dev. Co., Inc. v. City of Conway, 512 S.E.2d 106, 109 (S.C. 1999); see also Stone v. Roadway Exp., 627 S.E.2d 695, 697 (S.C. 2006) (listing the elements as “1) a final, valid judgment on the merits; 2) identity of parties; and 3) the second action must involve matters properly included in the first suit.”). Defendant argues that all elements are satisfied and claim preclusion prevents Plaintiff from litigating her FMLA claims in this court. Def. Mem. 5-7; Reply 1-3. Plaintiff disagrees, effectivelyarguing the subject matter is not identical and the federal FMLA interference and retaliation claims were not “properly included” in the Committee Decision. See generally Pl. Mem. 4-7.
Plaintiff's opposition somewhat conflates the arguments concerning claim and issue preclusion. While not endeavoring to make her legal arguments for her the undersigned has closely reviewed applicable case law in providing the recommendation as to all issues.
In determining whether there is an identity of subject matter for purposes of res judicata, South Carolina courts focus on the primary right and duty in each case. See Plum Creek Dev. Co. v. City of Conway, 491 S.E.2d 692, 694 (S.C. Ct. App. 1997) (defining the test as “whether the primary right and duty and the delict or wrong are the same in both actions”); aff'd as modified, 512 S.E.2d 106 (S.C. 1999). Here, Defendant categorizes the “primary right and duty” as Plaintiff's “right to continue being employed by the Department free from harassment and violations of the FMLA.” Def. Mem. 6.
The court is unpersuaded. The undersigned recommends denying Defendant's Motion on claim preclusion grounds because the “properly included”/“identity of subject matter” element is lacking. In making this recommendation, the undersigned finds the case of Wise v. South Carolina Department of Revenue, No. CV 3:18-2161-MGL-PJG, instructive. In considering whether the plaintiff's FMLA retaliation claim could have been “properly included” in the State Employee Grievance Committee proceeding, the Wise court found as follows:
As Wise argues, her FMLA claim could not have been “properly included” in her proceeding before the State Employee Grievance Committee, which had no jurisdiction or authority to adjudicate it. South Carolina courts focus on the primary right and duty in each case to determine if there is an identity of the subject matter for res judicata purposes. See Plum Creek Dev. Co. v. City of Conway, 491 S.E.2d 692, 694 (S.C. Ct. App. 1997). Here, the primary right Wise seeks to vindicate is her right to be free from interference in exercising her federal rights under the FMLA. The duty at issue is the defendant's obligation not to violate federal law regarding leave to care for family members. Contrarily, the primary right and duty at issue in the state grievance proceeding was the plaintiff's right not to be terminated from her state job in contravention of the standards provided in the State Employee Grievance Procedure Act. See S.C. Code Ann. §§ 8-17-330, et seq.
Wise v. S.C. Dep't of Revenue, No. CV 3:18-2161-MGL-PJG, 2018 WL 6731626, at *2 (D.S.C. Nov. 16, 2018) (bolded emphasis added) (footnote omitted), report and recommendation adopted, No. CV 3:18-02161-MGL-PJG, 2019 WL 275866 (D.S.C. Jan. 22, 2019). The Wise court found that, even if the Grievance Committee could consider arguments related to FMLA it “would not have rendered a decision on the merits as to an FMLA claim,” 2019 WL 275866, at *2.
In Wise, an employee of the South Carolina Department of Revenue (“DOR”) appealed her termination to the State Employee Grievance Committee pursuant to the same administrative procedure utilized by Plaintiff herein. DOR took the position that the Committee had the jurisdiction to consider the employee's FMLA claim but conceded the Committee would not have addressed the merits of an FMLA claim. See Wise, 2019 WL 275866, at *2.
This recommendation is made notwithstanding the Committee Decision's various mentions of the FMLA in considering Plaintiff's administrative appeal. See, e.g., Committee Decision ¶ 12 (noting Plaintiff's contention that she was not provided FMLA protection during the period of caring for her husband and in the period of bereavement); at page 5 (finding no credible evidence as to Plaintiff's claims of insensitive demands during her care for her husband and noting Plaintiff had received FMLA leave in April and May of 2019 and January 2020). The court notes Plaintiff's argument before the Committee that she was terminated because of her reporting a supervisor for the use of abusive language, as well. Committee Decision ¶ 12. The Committee upheld SCDDSN's decision to terminate Plaintiff. Nothing in the Decision suggests the Committee undertook an evaluation of whether Plaintiff was free from interference in exercising her federal rights under the FMLA or was retaliated against for exercising such rights.
Plaintiff's claims that her FMLA rights were interfered with and that she was retaliated against as a result of her exercise of FMLA rights do not share “identity of subject matter” with Plaintiff's administrative appeal of her termination. Defendant's Motion should be denied to the extent that it seeks dismissal of these claims based on principles of claim preclusion/res judicata.
b. Issue preclusion/collateral estoppel
Defendant also seeks dismissal of Plaintiff's FMLA causes of action based on the doctrine of collateral estoppel. Def. Mem. 7-8; Reply 3-4. “Collateral estoppel, also known as issue preclusion, prevents a party from relitigating an issue that was decided in a previous action, regardless of whether the claims in the first and subsequent lawsuits are the same.” Carolina Renewal, Inc. v. S.C. Dep't of Transp., 684 S.E.2d 779, 782 (S. C. Ct. App. 2009). “The party asserting collateral estoppel must demonstrate that the issue in the present lawsuit was: (1) actually litigated in the prior action; (2) directly determined in the prior action; and (3) necessary to support the prior judgment.” Id.
On page 8 of its memorandum, Defendant specifically points to the following portion of the Committee Decision as support for its issue preclusion argument:
The committee was not persuaded by Appellant's argument that other negligent actions and/or overpayments have occurred, and the supervisor was not disciplined for the negligence of their subordinate employee as no credible evidence supporting this assertion was presented. The Committee was likewise not persuaded by Appellant's contention that her termination was the result of her disclosure that she intended to report [employee] for using abusive language toward her or that she was subjected to a hostile work environment, unequal treatment, and harassment and insensitive work demands during the period of care of her husband and the period of bereavement after the loss of her husband. No credible evidence was presented to support this contention. Appellant further argues that she was not provided FMLA protection during her husband's illness. The record presented, however, indicates that Appellant used FMLA leave in April and May of 2019 in January of 2020.
...
Therefore, the Committee finds that DDSN's decision to terminate Appellant was appropriate and in accordance with its established policy guidelines.
Committee Decision 5. Defendant generally argues that these facts set out by the Committee are “regurgitated in the pending Complaint in similar form” and operate as a collateral-estoppel bar. Def. Mem. 8.
Plaintiff counters that her FMLA interference and retaliation claims were not “actually litigated,” nor were they “directly determined” in the Committee Decision. Pl. Mem. 5-7. Plaintiff notes the Decision does not include any findings or discussion of the precise elements she is required to establish to show violation of her FMLA rights. Additionally, Plaintiff properly submits that Defendant only “summarily” argues collateral estoppel should apply without pointing to specific factual findings that definitively analyze any elements of her FMLA claims or otherwise “decides the absence or existence” of same. Pl. Mem. 6.
To establish FMLA interference “an employee must [] demonstrate that (1) [she] is entitled to an FMLA benefit; (2) [her] employer interfered with the provision of that benefit; and (3) that interference caused harm.” Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). To state an FMLA retaliation claim, a plaintiff must establish that: (1) she engaged in a protected activity, (2) her employer took an adverse employment action against her, and (3) the adverse employment action was causally connected to the plaintiff's protected activity. Yashenko v. Harrah's N.C. Casino Co., 446 F.3d 541, 551 (4th Cir. 2006).
For Defendant to prevail on its collateral estoppel argument, it would need to tie specific facts that were actually and necessarily litigated and decided that specifically relate to the absence of Plaintiff's required proof or to delve further to demonstrate some legal defense potentially available to Defendant as to the FMLA claims. Defendant has not done so. Although the Committee generally referenced arguments related to Plaintiff's FMLA leave, among other arguments, its Decision found that “DDSN's decision to terminate Appellant was appropriate and in accordance with its established policy guidelines.” Committee Decision 5. This narrow determination does not indicate that Plaintiff had the opportunity to “actually and necessarily” litigate the FMLA-specific issues she raises in this court. See Harrelson v. S.C. Dep't of Motor Vehicles, No. CIVA 4:09CV360TLWTER, 2009 WL 2922997, at *3 (D.S.C. Sept. 1, 2009) (denying defendant's quest to utilize collateral estoppel to dismiss employee's civil conspiracy claim when Grievance Committee's decision was “very narrow” despite noting the Committee's decision included “dicta” regarding whether certain defendants had conspired against employee).
It is recommended that Defendant's Motion to Dismiss based on issue preclusion be denied at this juncture without prejudice to Defendant's raising a more focused, fact-specific argument after discovery has been completed.
B. Failure to state a claim
Next, Defendant argues Plaintiff's FMLA claims should be dismissed for failure to state a claim. Def. Mem. 9-10.
As to the FMLA interference claim, Defendant argues Rule 12(b)(6) dismissal is appropriate because Plaintiff has not established the second prong of her prima facie case-that her employer interfered with the provision of an FMLA benefit. Def. Mem. 9 (citing Boone v. Bd. of Governors of the Univ. of N.C., 858 Fed.Appx. 622 (4th Cir. 2021)). Defendant submits that, rather than demonstrating it interfered with providing FMLA, Plaintiff has noted that she received FMLA on several occasions. Compl. ¶¶ 7-8.
As to the retaliation claim, Defendant argues Plaintiff has not established the third prong of her prima facie case-showing a causal connection between her protected activity and an adverse action taken against her. Def. Mem. 10 (citing Boone, 858 Fed.Appx. 622)). Defendant argues Plaintiff instead has pleaded that the cause of her termination was her failing to ensure the proper processing of an HR claim. Id. (citing Compl. ¶ 12(d)). The court notes that paragraph 12 sets out various disciplinary actions to which Plaintiff was subjected (and that she contends relate to her exercise of her FMLA rights). In fact, paragraph 12(d) provides in full that “Defendant used a history of discipline while Plaintiff was under FMLA coverage or FMLA eligible coverage, to ultimately terminate Plaintiff effective July 16, 2021, for failing to ensure the proper processing of an HR claim.” Compl. ¶ 12(d). On its face, then, Plaintiff's Complaint alleges her termination was tied to her exercise of FMLA rights.
In response, Plaintiff first appropriately argues that, at the Rule 12(b)(6) stage, she is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Coleman, 626 F.3d at 190 (quoting Twombly, 550 U.S. at 555). See McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (finding district court improperly analyzed Rule 12(b)(6) challenge to Title VII termination claim using prima facie framework, but finding grant of motion appropriate for failure to meet “plausibility” standard). As the Fourth Circuit explained,
The Supreme Court has accordingly held that Rule 8(a)(2) requires that “a complaint . . . contain[ ] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'” in the sense that the complaint's factual allegations must allow a “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 emphasis added) (quoting Twombly, 550 U.S. at 570).McCleary-Evans, 780 F.3d at 585. Even so, absent direct evidence, “courts may look to the requirements of a prima facie case as a guide in assessing the plausibility of plaintiff's claim for relief. See Coleman, 636 F.3d at 190 (reciting elements of a prima facie case under McDonnell Douglas en route to affirming dismissal for failure to state a claim).” Craft v. Fairfax Cnty. Gov't, No. 1:16CV86 (JCC/MSN), 2016 WL 1643433, at *4 (E.D. Va. Apr. 26, 2016).
Here, the court is satisfied that Plaintiff has satisfied the facial plausibility standard as to her FMLA interference and retaliation claims. Plaintiff includes various time periods when she either took FMLA leave or requested she be found eligible. E.g., Compl. ¶ 7 (leave from April 29, 2019 to May 3 2019; intermittent leave allowed from May 2019 to January 2020; eligibility for intermittent leave from December 20, 2019 to December 19, 2020; and bereavement leave February 12 and 14, 2020). She then notes several incidents of discipline allegedly tied to various leave-periods. Compl. 12 (noting disciplinary action in June 2019 and February 25, 2020 that coincided with FMLA leave-periods). She also alleged “heightened scrutiny” of her work performance and alleged she was “punished” in close proximity to her exercise of FMLA leave by being terminated “for the negligent act of a subordinate.” Compl. ¶ 14. Plaintiff claims interference in that she “was given unreasonable performance standards and then disciplined and terminated for events and issues surrounding her need for FMLA protection which Defendant was aware of and had notice of.” Compl. ¶ 28. She alleges “Defendant's policies and practices regarding leave and discipline interfered with Plaintiff's FMLA rights because it interfered with Plaintiff's rights to take FMLA leave without disciplinary action demotion and discharge.” Compl. ¶ 31.
Whether Plaintiff's allegations will be borne out by discovery and will be supportable under FMLA law remains to be seen. At this juncture, though, Plaintiff has plausibly pleaded claims of FMLA interference and retaliation. Defendant's Motion to dismiss these claims for failure to state a claim should be denied.
C. IIED
Finally, Defendant seeks dismissal of Plaintiff's IIED claim because the South Carolina Tort Claims Act (“SCTCA”) specifically excludes coverage for IIED claims. Def. Mem. 11-13. As Defendant explains, the SCTCA governs all tort claims against governmental entities and is the exclusive civil remedy for torts committed by a governmental entity or its employees or agents. S.C. Code Ann § 15-78-70(b). The SCTCA provides that the State, its agencies, political subdivisions, and other governmental entities are “liable for their torts in the same manner and to the same extent as a private individual under like circumstances,” subject to certain limitations and exemptions. S.C. Code Ann. § 15-78-40. Here, Plaintiff is a former employee of the Department. The Department is a political subdivision as defined by the SCTCA, which is alleged by Plaintiff in her Complaint. Compl. ¶¶ 2-3. IIED however, is expressly excluded from losses covered under the SCTCA. Title 78, Section 30 of the SCTCA defines a loss as:
. . . bodily injury, disease, death, or damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death, pain and suffering, mental anguish, and any other element of actual damages recoverable in actions for negligence, but does not include the intentional infliction of emotional harm.
S.C. Code Ann. § 15-78-30(f) (emphasis added).
Here, Plaintiff's Third Cause of Action alleges that “Defendant through its officers, agents, and representatives, intentionally or indirectly, recklessly inflicted severe emotional distress upon Plaintiff.” Compl. ¶ 42. “The SCTCA specifically excludes claims for intentional infliction of emotional distress against a government entity and its employees and agents.” Arora v. James, C/A No. 5:14-cv-00018-JMC (D.S.C. March 6, 2015); see also S. Tucker v. Shelton, C/A No. 6:16-cv-313-TMC-KFM (D.S.C. November 20, 2017) (recommending that summary judgment be granted for the defendant governmental entity on the plaintiff's intentional infliction of emotional distress claim pursuant to S.C. Code Ann. § 15-78-30(f)); (“Claims of intentional infliction of emotional distress against a governmental entity, including an individual government employee in their official capacity, are barred by the South Carolina Tort Claims Act [...]”).
In her opposition Plaintiff offers no counter argument to the sound legal analysis provided by Defendant. She in no manner argues that the provisions cited by Defendant do not provide what Defendant claims they provide. Rather, somewhat inexplicably, Plaintiff briefly points to a different portion of the SCTCA that applies to losses “resulting from. . . responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any student, patient, prisoner, inmate, or client of any governmental entity[.]” S.C. Code Ann. § 15-78-60(25). That quoted section permits recovery in certain situations involving a “student, patient, prisoner, inmate, or client of any governmental entity” when “the responsibility or duty is exercised in a grossly negligent manner.” Id. Plaintiff indicates that “Defendants failed to properly supervise Plaintiff's supervisor in a way that was grossly negligent. Plaintiff's claim of IIED is valid.” Pl. Mem. 11.
By its very terms, Section 15-78-60(25) applies only to supervision of specific groups; those groups do not include employees of governmental entities. S.C. Code Ann. § 15-78-30(f) applies to Plaintiff's IIED claim, and plainly requires its dismissal. Plaintiff's indicating that the complained-of behavior involved “gross negligence” related to her supervision, Pl. Mem. 11, does nothing to change this. Further, Plaintiff has brought a claim for IIED; she has included no claim of gross negligence, nor has she pleaded facts that might support such a separate tort cause of action.
Defendant's Motion to Dismiss Plaintiff's IIED cause of action should be granted.
IV. Conclusion and recommendation
For the reasons set forth above, it is recommended that Defendant's Motion to Dismiss, ECF No. 11, be granted as to the IIED cause of action and denied as to the FMLA causes of action. If this Report is adopted the court will issue a scheduling order so that discovery may proceed as to the FMLA causes of action.
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.”