Opinion
Civil Action No. 8:18-cv-01876-HMH-JDA
03-29-2019
Sherry L. Quinn, Plaintiff, v. SC Department of Transportation, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Defendant's partial motion to dismiss. [Doc. 38.] Plaintiff alleges various discrimination and retaliation claims pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), the Americans with Disabilities Act ("ADA"), and the Equal Pay Act. [Doc. 1.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff brought suit pro se in this Court on July 9, 2018. [Doc. 1.] On January 31, 2019, Defendant filed a partial motion to dismiss. [Doc. 38.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal/summary judgment procedure and of the possible consequences if she failed to adequately respond to the motion. [Doc. 41.] Plaintiff filed a response opposing the partial motion to dismiss on March 20, 2019. [Doc. 50.] Defendant filed a reply on March 26, 2019. [Doc. 52.] Accordingly, Defendant's motion is ripe for review.
BACKGROUND
For purposes of the motion to dismiss, a Court must accept as true a plaintiff's well-pleaded allegations and may rely on the complaint and documents attached to the complaint as exhibits or incorporated by reference. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). Thus, the following Background is a summary of the allegations contained in the Complaint.
An employee of Defendant, Plaintiff "was subjected to intimidation" and "disparate terms and conditions" and was "denied equal wages from on or about September 1, 2010, through on or about May 12, 2017." [Doc. 1-1 at 2.] Plaintiff was "denied equal opportunities for career development, enrichment, and seminar/convention participation"; "evaluated unequally compared to the evaluations of similarly-situated employees"; "excluded from chain of command communications between managers/ subordinates (males)"; "denied promotions to positions for which [she was] qualified"; and "paid lower wages than other employees (male) in similar positions and male subordinates." [Id.] Defendant "has shown a pattern and practice of limiting the advancement opportunities of female employees and treating them less favorably than males." [Id.] Additionally, Plaintiff "was subjected to a hostile work environment by [her] male subordinates, one of whom threatened [her] with physical harm," and she was also subjected to a hostile work environment by her male supervisor. [Id.] She "complained to Human Resources (HR), but no corrective action was taken." [Id.] Then, while she was "on medical leave due to a severe injury, [her] disability income was incorrectly calculated based on [her] previous salary before the salary increase mandated by the state legislature, and [her] insurance premium contribution incorrectly included the premium for [her] long term disability insurance, both of which resulted in a decrease in [her] benefits." [Id.] Plaintiff "was subjected to such treatment because of [her] sex, medical condition, and in retaliation for [her] complaints of discrimination." [Id.]
Plaintiff "was denied a reasonable accommodation from February 14, 2017, through on or about May 12, 2017." [Id. at 3.] Plaintiff "was released by [her] doctor to return to work following medical leave related to [her] injury." [Id.] "However, [her] job description was amended while [she] was on leave to include duties that would prevent [her] from returning with [her] restrictions." [Id.] "In addition, [her] requests to transfer to a position where [she] would be able to work with [her] restrictions, or work from home, were denied." [Id.] "[O]ther employees (male) were allowed to work from home." [Id.] She "was denied a reasonable accommodation and the same opportunities afforded to male employees because of [her] medical condition [and] sex, and in retaliation for her complaints." [Id.]
Plaintiff "was discharged on or about May 12, 2017" and "not allowed to return to work and separated from service due to [Defendant's] rejection of [her] requests for reasonable accommodation." [Id.] Plaintiff's "employment was terminated because of [her] medical condition and in retaliation for [her] complaints." [Id.] She was "discriminated against based on [her] sex (female) [and] qualified disability, and in retaliation for engaging in [protected activities]." [Id.]
In August 2017, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission and the South Carolina Human Affairs Commission based on the allegations set out above. [Doc. 1-1 at 2-3.] Plaintiff received her Notice of Right to Sue and initiated the present action. [Docs. 1; 1-1 at 5]. Her Complaint demands reinstatement of employment as well as compensatory and punitive damages. [Doc. 1-5 at 5-6.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Rule 12(b)(1) Dismissal Standard
The Fourth Circuit has been "unclear on whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1)." Andrews v. Daw, 201 F.3d 521, 524 n.2 (4th Cir. 2000) (comparing Biggs v. Meadows, 66 F.3d 56, 58-59 (4th Cir. 1995), with Abril v. Va., 145 F.3d 182, 184 (4th Cir. 1998), and Republic of Paraguay v. Allen, 134 F.3d 622, 626 (4th Cir. 1998)). Because Defendant argues Eleventh Amendment immunity as a subject matter jurisdiction issue and the recent trend among courts within the Fourth Circuit is to consider sovereign immunity under Rule 12(b)(1), see Hutto v. S.C. Ret. Sys., 899 F. Supp. 2d 457, 466 (D.S.C. 2012) (citing Trantham v. Henry Cty. Sheriff's Office, 4:10-cv-00058, 2011 WL 863498 (W.D. Va. Mar. 10, 2011)), the Court considers Defendant's Eleventh Amendment immunity argument pursuant to Rule 12(b)(1).
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure examines whether the complaint fails to state facts upon which jurisdiction can be founded. Fed. R. Civ. P. 12(b)(1). Typically, it is the plaintiff's burden to prove jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). "However, where a party challenges the subject matter jurisdiction of the court on the grounds that the party is an arm of the state entitled to sovereign immunity, the burden of persuasion lies with the party asserting the immunity." Hutto v. S.C. Ret. Sys., 899 F. Supp. 2d 457, 466 (D.S.C. 2012) (citing Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237 (2d Cir. 2006)). The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: "'(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Judgment on the Pleadings Standard
Although Defendant filed its motion as a motion to dismiss under Rule 12(b)(6), the Court considers the motion under Rule 12(c). Generally, a Rule 12(b)(6) motion to dismiss should be filed before a responsive pleading is filed. However, Rule 12(h)(2) provides that the defense of failure to state a claim upon which relief can be granted may be raised by a motion under Rule 12(c). Fed. R. Civ. P. 12(h)(2). Accordingly, the Court considers the motion as a Rule 12(c) motion for judgment on the pleadings, raising the defense of failure to state a claim upon which relief can be granted. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Considering the motion as a Rule 12(c) motion has no practical effect because, as explained, a "motion for judgment on the pleadings is decided under the same standard as a motion to dismiss under Rule 12(b)(6)." Deutsche Bank Nat'l Trust Co. v. IRS, 361 F. App'x 527, 529 (4th Cir. 2010).
Rule 12(c) permits a party to move for judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial. . . . " Fed. R. Civ. P. 12(c). Where a Rule 12(b)(6) defense is raised by a Rule 12(c) motion for judgment on the pleadings, the motion under Rule 12(c) is reviewed under the same standards as a motion under Rule 12(b)(6). Rodriguez v. Finan, No. 2:15-cv-2317-BHH, 2016 WL 1258314, at *7 n.2 (D.S.C. Mar. 31, 2016) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999); see also Burbach Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "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). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained 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 on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 ("Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
Defendant argues that it is entitled as a matter of law to immunity under the Eleventh Amendment as to Plaintiff's claims asserted under Title I of the ADA and that Defendant is entitled to have the ADA claims dismissed on that basis. [Doc. 38-1 at 1-3.] The Court agrees.
Defendant's motion also seeks dismissal of Plaintiff's claims for punitive damages. [Doc. 38.] Because Plaintiff concedes that she cannot recover punitive damages [Doc. 50 at 5], Defendant's motion should be granted as to Plaintiff's claim for punitive damages. See also Blakney v. N.C. A&T State Univ., No. 1:17-cv-974, 2019 WL 1284006 (M.D.N.C. Mar. 20, 2019) ("Punitive damages are . . . not recoverable from a government agency under Title VII."); McInnis v. N.C. Dep't of Envt. & Nat. Res., 223 F. Supp. 2d 758, 763 (M.D.N.C. 2002) (holding punitive damages are not recoverable against a government agency in claim for employment discrimination under the ADA); Fosberg v. Pac. Nw. Bell Tel. Co., 623 F. Supp. 117, 126 (D. Or. 1985) (holding that "punitive damages are not recoverable under the [Equal Pay] Act").
"[A]n unconsenting State is immune from suits brought in federal courts by her own citizens." Edelman v. Jordan, 415 U.S. 651, 663 (1974). This immunity applies as well to state agencies. Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). "Therefore, absent abrogation of sovereign immunity or consent from [South Carolina, Plaintiff] cannot seek injunctive or monetary relief from" Defendant. McCray v. Md. Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014) (citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64 (2001)).
A claim asserted against a state agency "may survive the Eleventh Amendment bar in one of three recognized ways": (1) "Congress may abrogate state Eleventh Amendment immunity"; (2) "a state may waive its immunity"; or (3) "a plaintiff may seek prospective relief against state officials acting in violation of federal law under the principles set forth in Ex Parte Young," 209 U.S. 123 (1908). Pickering v. State Police, 59 F. Supp. 3d 742, 747 (E.D. Va. 2014). None of these circumstances applies here. First, "[s]overeign immunity has not been abrogated for . . . ADA Title I claims." McCray, 741 F.3d at 483 (citing Garrett, 531 U.S. at 374). Second, "South Carolina has not waived its Eleventh Amendment immunity for lawsuits in federal court." Doe v. Coastal Carolina Univ., No. 4:18-cv-00268-RBH, 2019 WL 142299, at *7 (D.S.C. Jan. 9, 2019). And third, Plaintiff has not sought relief against any state official, but rather has named a state agency as the lone Defendant. See Pickering, 59 F. Supp. 3d at 747.
Plaintiff argues that 28 C.F.R. § 35.178 provides that States do not have Eleventh Amendment immunity against ADA actions. [Doc. 50 at 3-4.] However, that regulation pertains only to Title II of the ADA, which addresses discrimination on the basis of disability in the delivery of "services, programs or activities of a public entity," not to Title I, which addresses employment. 42 U.S.C. § 12132. Moreover, the Fourth Circuit has held that "public employment discrimination claims may not be brought under Title II." Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 421 (4th Cir. 2015).
Plaintiff also argues that Defendant is in violation of South Carolina's Whistleblower Act, S.C. Code Ann. § 8-27-10 et seq. [Doc. 50 at 4-5.] But whether Defendant is in violation of this state law has no bearing on whether Defendant is entitled to dismissal of Plaintiff's ADA claims. And to the extent that Plaintiff is requesting to amend her Complaint to add such a state law claim, the Court notes that amendment would be futile because the Eleventh Amendment would bar the claim. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119-21 (1984) (holding that the Eleventh Amendment deprives federal courts of jurisdiction over state law claims against the States).
Accordingly, the Court concludes that Defendant is entitled to immunity as to Plaintiff's ADA claims and recommends that Defendant's motion to dismiss those claims be granted.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's partial motion to dismiss [Doc. 38] be GRANTED as to Plaintiff's claims under the ADA and as to her claim for punitive damages.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 29, 2019
Greenville, South Carolina