Opinion
Civil Action 2:22-cv-3096-RMG-TER
07-11-2023
WALTER MOORE, Plaintiff, v. PEGASUS STEEL, LLC, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This action arises from Plaintiff's employment with Defendant. Plaintiff originally filed this action in the Court of Common Pleas, Horry County, South Carolina. Plaintiff alleges causes of action for race discrimination and retaliation 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. Presently before the Court is Defendant's Motion to Dismiss (ECF No. 6) all causes of action based on Plaintiff's failure to allege facts sufficient to state a claim for relief. Plaintiff filed a Response (ECF No. 8), and Defendant filed a Reply (ECF No. 9). 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.
II. FACTUAL ALLEGATIONS
Plaintiff, an African American male, began working for Defendant in 2017 as a Welder/Fabricator. Compl. ¶ 10. Plaintiff alleges that on October 8, 2020, he was subjected to racial discrimination by his supervisor, Mike Cavanaugh, and Defendant's Human Resources Director, Porsha Sisk, when he was written up for forgetting to preheat material before using it. Compl. ¶ 12. Plaintiff alleges that forgetting to heat up material is a common mistake on the job, and Caucasian coworkers frequently forgot to heat up material but were not disciplined for it. Compl. ¶ 13. However, Plaintiff was suspended one week without pay and lost his certification, which meant he would be making $1.00 less per hour. Compl. ¶ 14. To regain his $1.00 per hour pay, Plaintiff would be required to retake the certification class and test after 90 days. Compl. ¶ 14. Plaintiff reported to Cavanaugh and Sisk that he did not agree with the suspension, loss of certification, and reduction in pay but was told if he did not sign the disciplinary forms he would be terminated. Compl. ¶ 15. Plaintiff alleges Defendant retaliated against him by reducing his pay, suspending him, and revoking his certification when other, similarly situated Caucasian employees were only presented with a warning and were not suspended nor received a reduction in pay. Compl. ¶ 16.
On another occasion, Plaintiff asked if he could work overtime, and Cavanaugh told him he could not work overtime and that “they” already make too much money anyway. Compl. ¶ 17. Plaintiff asked to whom Cavanaugh was referring and Cavanaugh told Plaintiff “colored people.” Compl. ¶ 17. However, Cavanaugh let a white coworker get overtime even though he had not yet been employed for ninety days, which is the requirement to be allowed to work overtime. Compl. ¶ 17.
Plaintiff alleges that these circumstances give rise to claims for race discrimination and retaliation. Compl. ¶¶ 20-29.
III. STANDARD OF REVIEW
Defendant moves to dismiss Plaintiff's causes of action 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
Defendant argues that Plaintiff's factual allegations are insufficient to give rise to claims for race discrimination or retaliation. With respect to Plaintiff's allegation that he was denied overtime because of his race, Defendant argues that Plaintiff fails to plead facts sufficient to show that the denial of overtime is an adverse employment action. Title VII makes it unlawful for an employer to discriminate against an employee with respect to compensation, terms, conditions or privileges of employment on the basis of a protected trait like race. 42 U.S.C. § 2000e-2(a). Section 1981 prohibits race discrimination in the making and enforcement of contracts. 42 U.S.C. § 1981. To state a prima facie case for disparate treatment based on race in violation of Title VII or § 1981, Plaintiff must show “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citation omitted), aff'd, 566 U.S. 30 (2012); Gairola v. Com. of Va. Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985) (noting the standards applicable to suits under Title VII are also applicable to suits brought under Section 1981); Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (evaluating Section 1981 racial discrimination claim and a Title VII racial discrimination claim under the same prima facie case framework). A Title VII plaintiff need not satisfy all of the prima facie elements set forth above to survive a motion to dismiss. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002) (“The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement.”). “Although a plaintiff need not plead a prima facie case at this stage, reference to the elements of a claim is helpful to assess whether the plaintiff has stated a plausible claim.” Allgaier v. Microbiologics, Inc., No. 1:22-CV-01900-ELH, 2023 WL 2837336, at *7-8 (D. Md. Apr. 7, 2023) (citing Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761,765 (4th Cir. 2003); Young v. Giant Food Stores, LLC, 108 F.Supp.3d 301, 314 (2015); Cloud v. Brennan, 436 F.Supp.3d 1290, 1300-01 (N.D. Cal. 2020) (“When a plaintiff does not plead a prima facie case, courts still look to the elements of the prima facie case ‘to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'”)).
For the purposes of a Title VII discrimination claim, an “adverse employment action” is one that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321,337 (4th Cir. 2011) (internal quotation marks omitted). In other words, Plaintiff must show that the action “adversely affect[ed] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation marks omitted). To qualify as an adverse employment action, the harm alleged must “work a ‘significant' detriment” on a plaintiff. Adams v. Ann Arundel Cty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015).
Although courts have held that a denial of overtime pay can be an adverse employment action in certain circumstances, the facts alleged in the present action are insufficient to state a discrimination claim. “A denial of overtime pay or compensation for extra work can constitute an adverse employment action if it could impact pay in a significant or material way and thus affect the terms and conditions of employment.” Hwang v. Becerra, No. CV TDC-20-1025, 2022 WL 3577734, at *9 (D. Md. Aug. 19, 2022) (citing Formella v. Brennan, 817 F.3d 503, 511 (7th Cir. 2016) (holding that the denial of overtime or premium pay that was a “significant and expected” part of an employee's compensation may constitute an adverse employment action)). In Hwang, the plaintiff alleged that he worked three hours of overtime pay without compensation. Id. The court held that “three hours of uncompensated overtime [was] not significant enough to alter Hwang's terms and conditions of employment.” Id. Here, Plaintiff does not allege that he was denied pay for overtime worked but that he was denied the opportunity to work overtime on one occasion. This denial of the opportunity to work overtime on one occasion is insufficient to allege an adverse employment action that impacted his pay in a significant or material way. See, e.g., Williams v. Aluminum Co. of America, 457 F.Supp.2d 596, 611 (M.D. N.C. 2006) (holding that plaintiff had not suffered an adverse employment action where he was denied overtime on only one occasion and plaintiff did not contend that he was entitled to the overtime shift); compare Camacho v. Colvin, No. 13-cv-1303-JKB, 2014 WL 2772314, at *6 n.6 (D.Md. June 17, 2014) (holding that the court could draw the reasonable inference that the denial of overtime work constituted an adverse employment action where the plaintiff alleged he requested and was denied overtime approximately two times per month, white female employees were granted overtime at least once per month, and comparator received approximately $60,000 in overtime pay). Thus, Plaintiff's discrimination claim with respect to the denial of overtime is subject to dismissal.
Defendant also argues that Plaintiff fails to plausibly allege that he was disciplined based on his race because he fails to allege sufficient facts of other employees outside his protected class who were treated more fairly. Plaintiff alleges that Defendant suspended him for one week without pay and revoked his weld certificate for 90 days, which thereby decreased his hourly wage by $1.00 for 90 days, for “mishandling a product.” Compl. ¶¶ 12, 14. Plaintiff alleges that his Caucasian coworkers were not disciplined or only received a warning for the same violation. Compl. ¶¶ 13, 16. To establish a discriminatory discipline claim, Plaintiff must demonstrate that (1) he is a member of a protected class under Title VII; (2) the prohibited conduct in which he engaged was comparable in seriousness to misconduct of employees outside the protected class; and (3) he suffered more severe discipline for his misconduct as compared to those employees outside the protected class. Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Plaintiff alleges only generally that “Caucasian coworkers frequently forgot to heat up material and are not disciplined for it” and that “other similarly situated Caucasian employees were only presented with a warning and were not suspended nor received a reduction in pay.” Compl. ¶¶ 13, 16. Plaintiff does not name the Caucasian employees who forgot to heat up material, provide the job titles of the employees, or provide any other information from which the court could draw an inference that such employees are actually similarly situated to Plaintiff. Plaintiff's allegation that “similarly situated Caucasian employees” were treated differently is a conclusory allegation void of any factual support. See Lee v. Stegall, Inc., No. 7:21-cv-528, 2022 WL 3971042, at *6 (W.D. Va. Aug. 31, 2022) (dismissing Title VII discrimination claim where plaintiff “failed to identify a sufficiently similar comparator to give rise to an inference of discrimination on the basis of race”). As such, it is insufficient to allow the court to draw a reasonable inference of discrimination based on race. Therefore, dismissal is appropriate.
Finally, Defendant argues that Plaintiff's retaliation claim is subject to dismissal as well for Plaintiff's failure to allege facts sufficient to show a causal connection between Plaintiff's alleged protected activity and the adverse action. A prima facie case of retaliation requires that: (1) Plaintiff engaged in protected activity; (2) his employer took an adverse action against him; and (3) a causal relationship existed between Plaintiff's protected activity and his employer's adverse action. See Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 217 (4th Cir. 2016).
With respect to his retaliation claim. Plaintiff alleges that he reported to Cavanaugh and Sisk that he did not agree with the suspension, loss of certification, and reduction in pay but was told if he did not sign the disciplinary forms he would be terminated. Compl. ¶ 15. Plaintiff alleges Defendant retaliated against him by reducing his pay, suspending him, and revoking his certification when other, similarly situated Caucasian employees were only presented with a warning and were not suspended nor received a reduction in pay. Compl. ¶ 16. To adequately allege a causal connection, Plaintiff must plausibly plead that his protected activity was the “but-for” cause of the materially adverse employment action. Univ. Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). The only complaint that Plaintiff specifically alleges is his report to Cavanaugh and Sisk that he “did not agree” with the suspension, loss of certification, and the loss of $1.00 per hour for 90 days. He then alleges that Defendant retaliated against him by reducing his pay, suspending him, and revoking his certification, the same discipline about which he initially complained. Because the discipline occurred before Plaintiff's complaint, it cannot be the but-for cause of the discipline. See Carr v. United States, No. 5:21-CV-245-D, 2023 WL 3635625, at *7 (E.D. N.C. May 24, 2023) (“Because General Gabbert decided to reassign Carr before Carr engaged in her protected activity on April 1, 2016, it is impossible that Carr's protected activity was the but-for cause of her reassignment.”) (citing Conrad v. CSX Transp., Inc., 824 F.3d 103, 108 (4th Cir. 2016)).
The court notes that Plaintiff does not allege that he told Cavanaugh or Sisk that he was being subjected to this discipline because of his race. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (“Employees engage in protected oppositional activity when, inter alia, they complain to their superiors about suspected violations of Title VII.”).
Plaintiff also generally alleges that Defendant “retaliat[ed] against Plaintiff due to his race and in retaliation for filing reports of the discrimination.” Compl. ¶ 22(b). However, this “naked assertion” devoid of “further factual enhancement,” Iqbal, 556 U.S. at 678, is insufficient to give rise to a plausible retaliation cause of action. Thus, dismissal of Plaintiff's retaliation claim is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion to Dismiss (ECF No. 6) be granted. However, Plaintiff may cure the deficiencies in his complaint by providing further factual information. The undersigned therefore recommends that Plaintiff be given the opportunity to amend his complaint. To the extent the District Judge agrees, the undersigned recommends that Plaintiff be ordered to file an amended complaint within ten days of the Court's final disposition of the present motion.