Opinion
Civil Action 6:23-cv-2104-JDA-KFM
03-12-2024
Pamela Staton, Plaintiff, v. O'Reilly Automotive Store, Inc. a/k/a O'Reilly Auto Parts, Ben Sambrano, and Paul Weathers, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the motion for judgment on the pleadings by defendant Ben Sambrano (doc. 27), the partial motion for judgment on the pleadingsby defendants O'Reilly Automotive Store, Inc. a/k/a O'Reilly Auto Parts (“O'Reilly”) and Paul Weathers (doc. 33), and the motion for an extension of time to file a motion to amend the amended complaint by plaintiff Pamela Staton (doc. 40). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in employment discrimination cases and submit findings and recommendations to the district court.
Defendants O'Reilly and Weathers style their motion as a partial motion to dismiss but state that the motion is made pursuant to Federal Rule of Civil Procedure 12(c), which is the rule applicable to motions for judgment on the pleadings (see docs. 33, 33-1). Rule 12(h)(2) provides that the defense of failure to state a claim upon which relief can be granted as set forth in Rule 12(b)(6) may be raised by motion for judgment on the pleadings. Fed.R.Civ.P. 12(h)(2). As discussed below, the pleadings in this case were closed at the time of the motion. Accordingly, the undersigned will construe O'Reilly and Weather's motion as a partial motion for judgment on the pleadings and refer to it as such herein. See Burbach Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401,405 (4th Cir. 2002). “However, the distinction is one without a difference, as . . . the same standard [applies] for Rule 12(c) motions as for motions made pursuant to Rule 12(b)(6).” Id. at 405406.
The motion for extension of time to file a second amended complaint is a non-dispositive motion and thus normally would be ruled upon by the undersigned magistrate judge. However, the undersigned has included the motion in this report and recommendation as the pending motions are interrelated.
I. BACKGROUND
This employment action was removed from state court on May 17, 2023, based on federal question jurisdiction (doc. 1). The plaintiff filed an amended complaint in this court on June 23, 2023, with the consent of all parties, in order to correctly identify defendant O'Reilly and the residence of defendant Sambrano (docs. 16, 17). In the amended complaint, the plaintiff states that she was employed by O'Reilly at its store in T ravelers Rest, South Carolina, at all times relevant to the events described in the amended complaint (doc. 17, amend. comp. ¶ 8). During the relevant time, Sambrano was the plaintiff's manager, and Weathers was her district manager. The plaintiff alleges that she experienced sexual harassment by Sambrano and unidentified customers, which she reported to Weathers (id. ¶¶ 7-29). The amended complaint alleges five causes of action (id. ¶¶ 30-61). Although the amended complaint fails to identify which causes of action are alleged against which defendants, generally referring to “each defendant” (doc. 17, amend. comp. ¶¶ 31-33), “some or all of the defendants” (id. ¶ 37), or just “the defendants” (id. ¶¶ 34-35, 38, 40-43, 45-49, 51-56), the plaintiff appears to assert the following causes of action against all three defendants: negligence and gross negligence; violation of the South Carolina Payment of Wages Act (“SCPWA”); violation of the South Carolina Human Affairs Law (“SCHAL”); and gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) (id. ¶¶ 30-56). The plaintiff asserts the fifth cause of action for negligent hiring, supervision, and retention against defendant O'Reilly only (id. ¶¶ 57-61).
Defendants O'Reilly and Weathers filed their answer to the amended complaint on July 5, 2023 (doc. 24), and defendant Sambrano filed his answer to the amended complaint on July 7, 2023 (doc. 25). Defendant Sambrano filed a motion for judgment on the pleadings on September 8, 2023 (doc. 27), to which the plaintiff filed a response in opposition (doc. 34), and Sambrano filed a reply (doc. 37). On October 2, 2023, defendants O'Reilly and Weathers filed a partial motion for judgment on the pleadings (doc. 33), to which the plaintiff filed a response in opposition (doc. 39), and O'Reilly and Weathers filed a reply (do. 42). On October 16, 2023, the plaintiff filed a motion for extension of time to file a motion to amend the complaint (doc. 40), to which the defendants filed responses in opposition (docs. 44, 45), and the plaintiff filed replies (docs. 47, 48). Accordingly, the motions are ripe for consideration.
II. FACTUAL ALLEGATIONS IN AMENDED COMPLAINT
The plaintiff has worked for defendant O'Reilly at its Travelers Rest store for nearly sixteen years, and, for substantial periods of time during those sixteen years, she has been the only female employee at the store (doc. 17, amend. comp. ¶ 8). The plaintiff alleges that shortly after O'Reilly hired Sambrano as the manager of the store in June or July 2021, Sambrano began to make romantic advances toward her while she was an employee under his direct supervision (id. ¶ 9). She alleges that he asked her out for dinner, showed her memes and photographs of a vulgar and sexual nature, and regularly texted her both during and after work hours about matters that were unrelated to their employment (id. ¶ 10). The plaintiff alleges that she promptly reported this inappropriate behavior to her district manager, Weathers, who told her that Sambrano was “just trying to fit in as a new manager,” instructed the plaintiff not to contact Human Resources, and told the plaintiff that he would handle the situation (id. ¶ 11). The plaintiff further alleges that she also experienced sexual harassment from customers that she reported to Weathers and Sambrano, who did nothing to stop the harassment (id. ¶¶ 12-14).
The plaintiff contends that as a result of the foregoing, she began to suffer from severe anxiety, for which she required medical treatment (doc. 17, amend. comp. ¶ 15). She took time off pursuant to the Family Medical Leave Act (“FMLA”) beginning on September 7, 2021, and, on September 14, 2021, the plaintiff received a letter informing her that she was required to return to work on September 21,2021, and that the company would determine that she resigned if she did not return to work by September 28, 2021 (id. ¶ 16). The plaintiff alleges that on September 21,2021, Weathers visited the store, directed her to follow him outside, and then coerced her into completing and signing a form (id. ¶ 17).
The plaintiff alleges that during the time that she was out of work, she lost wages for both her scheduled hours and the guaranteed additional five hours per week that she usually works and for which she receives overtime pay (doc. 17, amend. comp. ¶ 18). She also contends that she lost the opportunity to earn additional commission bonuses from the products that she would have sold during that time (id.). She claims she initially was not compensated for the time that she was forced to take off to deal with the medical effects of this incident, but Human Resources later compensated her for the time off, which was taken as sick leave (id. ¶ 19). However, she alleges that due to the delay in receiving compensation, she was unable to pay multiple bills in a timely manner, resulting in further damages (id.).
III. APPLICABLE LAW AND ANALYSIS
A. Defendants' Motions for Judgment on the Pleadings
1. Applicable Standard
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “A motion for judgment on the pleadings is intended to test the legal sufficiency of the complaint and will operate to dispose of claims where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noted facts.” Billioni v. Bryant, C. A. No. 0:14-cv-3060-JMC, 2015 WL 4928999, at *1 (D.S.C. Aug. 18, 2015) (citations and internal quotations omitted). “[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' Trust Co. v. IRS, 361 Fed.Appx. 527, 529 (4th Cir. 2010) (citation omitted). The “key difference” between a Rule 12(b)(6) motion and a Rule 12(c) motion is “that on a 12(c) motion, the court is to consider the answer as well as the complaint.” Cont' Cleaning Serv. v. United Parcel Serv., Inc., C. A. No. 1:98-1056, 1999 WL 1939249, at *1 (M.D. N.C. Apr. 13, 1999) (citation and internal quotations omitted).
“In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). Further,
Granting a Rule 12(c) motion . . . is not tantamount to a dismissal with prejudice. Accurso v. Infra-Red Servs., Inc., 23 F.Supp.3d 494, 501 n.7 (E.D. Pa. 2014). “[Dismissal of claims upon a motion or judgment on the pleadings can be with prejudice, if amendment would be futile, but there is certainly no categorical rule that judgment on the pleadings is per se with prejudice.” Id. at 501 (emphasis in original).Lyons v. PNC Bank, N.A., 618 F.Supp.3d 238, 241 (D. Md. 2022).
2. When Pleadings Closed
In response to the defendants' motions for judgment on the pleadings, the plaintiff does not address the defendants' legal arguments as to the individual causes of action, but she instead argues that the motions should be denied as they are “premature” because the pleadings were not closed when the motions were filed as required by Rule 12(c) (doc. 34 at 1-3; doc. 39 at 1-3). See Fed.R.Civ.P. 12(c) (“After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.”). Specifically, the plaintiff contends - with no citation to authority - that the pleadings were still open at the time of the filing of the motions because the scheduling order entered in this case provides that the deadline for amendment of pleadings was October 18, 2023 (doc. 34 at 2; doc. 39 at 2). The plaintiff argues that she intends to move the court to allow her to file a second amended complaint in order to identify which causes of action apply to each defendant, and she states that she needs responses to discovery she has served on the defendants in order to determine if other causes of action are appropriate against any defendant (doc. 34 at 2-3; doc. 39 at 2-3).
The pleadings in this case were closed at the time of the filing of the motions for judgment on the pleadings, as all three defendants had previously filed their answers to the amended complaint (see docs. 24, 25). Burbach Broad. Co. of Del., 278 F.3d at 405 (“Because Elkins' answer had been filed, the pleadings were closed at the time of the motion.”); Haughie v. Wexford Health Sources, Inc., C. A. No. CV ELH-18-3963, 2020 WL 1158568, at *4 (D. Md. Mar. 9, 2020) (“Numerous cases indicate that a Rule 12(c) motion is premature if filed before all defendants have answered the suit.” (citations omitted)); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Civ. § 1367 (3d ed.) (“Rule 7(a) provides that the pleadings are closed upon the filing of a complaint and an answer (absent a court-ordered reply), unless a counterclaim, crossclaim, or third-party claim is interposed, in which event the filing of an answer to a counterclaim, crossclaim answer, or third-party answer normally will mark the close of the pleadings.”).
Moreover, as noted, the plaintiff has cited no authority supporting her argument that the court's scheduling order alters the time at which the pleadings close for the purpose of filing a Rule 12(c) motion for judgment on the pleadings, and the cases cited by the defendants in their replies specifically hold otherwise (doc. 37 at 1-2; doc. 42 at 2). See Maniaci v. Georgetown Univ., 510 F.Supp.2d 50, 60 (D.D.C. 2007) (holding “the pleadings were in fact ‘closed' such that a Rule 12(c) motion could be appropriately filed and considered by the Court when Defendants filed their Answer - not when Plaintiff's court-imposed deadline to file a motion for leave to amend his complaint had passed”) (citing Fed.R.Civ.P. 7(a)); Nortel Networks Ltd. v. Kyocera Wireless Corp., C. A. No. 3:02-cv-0032-D, 2002 WL 31114077, at *1 n.1 (N.D. Tex., Sept. 20, 2002) (rejecting plaintiff's argument that the Rule 12(c) motion was premature and holding that the pleadings were closed upon the filing of an answer and “the fact that under the court's scheduling order there is still time for a party to move for leave to amend does not affect this reasoning”).
Furthermore, even if the motions were found to be premature, the “[c]ourt may nevertheless construe a premature Rule 12(c) motion for judgment on the pleadings instead as a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Mabutol v. Fed. Home Loan Mortg. Corp., C. A. No. 2:12-cv-406, 2013 WL 1287709, at *1 (E.D. Va. Mar. 25, 2013) (citations omitted) (further noting the “practical importance of this procedural distinction is minimal, as the applicable standard of review is the same in any event” (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999)).
Based upon the foregoing, the undersigned recommends that the district court find that the defendants' motions for judgment on the pleadings are not premature and proceed to consideration of the motions.
3. Causes of Action
a. Negligence/Gross Negligence and Negligent Hiring, Supervision, and Retention
In the first cause of action, the plaintiff alleges negligence/gross negligence against “each defendant” (doc. 17, amend comp. ¶¶ 30-35). Defendant Sambrano argues that the plaintiff's negligence/gross negligence claim against him is barred by the exclusivity provision of the South Carolina Workers' Compensation Act (“SCWCA”) (doc. 27-1 at 3-4). Defendants O'Reilly and Weathers argue likewise in their motion (doc. 33-1 at 3-4). In the fifth cause of action, the plaintiff alleges a claim against defendant O'Reilly for negligent hiring, supervision, and retention (doc. 17, amend. comp. ¶¶ 57-61). O'Reilly argues that this cause of action is also barred by the SCWCA's exclusivity provision. As noted above, in her responses to the defendants' motions, the plaintiff does not address the defendants' arguments as to each cause of action and instead simply argues that the defendants' motions are premature.
The plaintiff alleges that “each defendant” breached duties to her in some or all of the following ways: inconveniencing, harassing, and threatening her; causing her unjustified and unnecessary expense and stress; making unwanted sexual advances toward her; sending inappropriate and/or sexual communications to her; failing to take reasonable measures to ensure that employees under their management and control did not harass her; and failing to take reasonable measures to ensure that customers did not harass her (doc. 17, amend comp. ¶ 33). She further alleges that she has suffered the following damages as a result of the defendants' negligence/gross negligence: embarrassment and humiliation, medical expenses, out-of-pockets expenses, emotional and psychological damages, inconvenience, and loss of enjoyment of life (id. ¶ 34).
The plaintiff alleges that defendant O'Reilly breached its duties to adequately supervise and hire employees by failing to ensure that employees complied with department procedures regarding incidents such as those described by the plaintiff; “failing to warn the plaintiff and others of the defendants' (including their employees') dangerous propensities toward others”; failing to adequately investigate the conduct of the defendants toward the plaintiff; failing to appropriately interview candidates or require that candidates be qualified before hiring them; failing to require sufficient education and training before hiring employees; and failing to properly screen applicants, perform appropriate background checks, check references, and perform sufficient and formal interviews (doc. 17, amend. comp. ¶ 59). She alleges that as a result of O'Reilly's negligent and grossly negligent acts and omissions, she has suffered the following damages: medical expenses, physical injury, mental pain and anguish, pain and suffering, out-of-pocket expenses, and loss of enjoyment of life (id. ¶ 60).
The undersigned agrees with the defendants that the first and fifth causes of action are barred by the SCWCA's exclusivity provision. The exclusivity provision states, in relevant part:
The rights and remedies granted by [the SCWCA] to an employee when he and his employer have accepted the provisions of this title, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee . . . as against his employer, at common law or otherwise, on account of such injury, loss of service or death.S.C. Code Ann. § 42-1-540. The SCWCA defines “personal injury” as “injury by accident arising out of and in the course of employment.” Id. at § 42-1-160(A).
In South Carolina, courts have held the SCWCA provides the exclusive remedy against an employer for an employee who sustains injuries arising out of her employment. E.g., Sabb v. S.C. State Univ., 567 S.E.2d 231,234 (S.C. 2002). Both federal and state courts have held an employee's negligence claims against an employer and/or co-employees are barred by the SCWCA. See Muller v. Westinghouse Elec. Co., C. A. No. 3:20-cv-1094-SAL-KDW, 2022 WL 17345480, at *19 (D.S.C. Oct. 28, 2022) (finding plaintiff's negligence claim alleging she suffered injuries after reporting “horse play” about which her employer did nothing was barred by the SCWCA's exclusivity provision and should be dismissed), R&R adopted as modified by 2022 WL 17343484 (D.S.C. Nov. 30, 2022); Williams v. Windstream Servs., LLC, C. A. No. 6:18-cv-3049-DCC-JDA, 2019 WL 3066653, at *6 (D.S.C. Feb. 12, 2019) (holding plaintiff's negligence claim against employer for alleged failure to intervene in and investigate his harassment claims was barred by the SCWCA's exclusivity provision and should be dismissed); Addison v. CMHHomes, Inc., 47 F.Supp.3d 404, 429 (D.S.C. 2014) (dismissing plaintiff's negligence/gross negligence claims against his employer based on SCWCA exclusivity); Brown v. IQor U.S. Inc., C. A. No. 2:14-cv-2638-PMD-MGB, 2015 WL 1351491, at *4 (D.S.C. Mar. 24, 2015) (holding that plaintiff's negligent hiring, training, and supervision claims were barred by SCWCA exclusivity); Dickert v. Metro. Life Ins. Co., 428 S.E.2d 700, 701 (S.C. 1993) (holding SCWCA exclusivity barred claims against co-employees/supervisors who were alleged to have negligently injured another employee while in the scope of employment).
Furthermore, the Supreme Court of South Carolina has stated:
The only exceptions to the exclusivity provision are: (1) where the injury results from the act of a subcontractor who is not the injured person's direct employer; (2) where the injury is not accidental but rather results from the intentional act of the employer or its alter ego; (3) where the tort is slander and the injury is to reputation; or (4) where the Act specifically excludes certain occupations.Cason v. Duke Energy Corp., 560 S.E.2d 89, 893 n.2 (S.C. 2002) (internal citations omitted). See Kerr v. HammondSch., C. A. No. 3:17-cv-3109-JFA-KFM, 2018 WL 3132409, at *2 (D.S.C. Feb. 22, 2018) (finding the exceptions did not apply and recommending motion to dismiss negligent supervision claim based on SCWCA exclusivity provision be granted), R&R adopted by 2018 WL 1737090 (D.S.C. Apr. 11,2018). The exceptions to the SCWCA's exclusivity provision do not apply here.
Based upon the foregoing, the first cause of action for negligence/gross negligence and the fifth cause of action for negligent hiring, supervision, and retention are barred by the SCWCA's exclusivity provision and should be dismissed.
Defendant O'Reilly further argues that the fifth cause of action for negligent hiring, supervision, and retention should be dismissed because employers do not owe at-will employees a duty of care under a negligence theory (doc. 33-1 at 7) (citing Dukes v. Town of Kingstree, C. A. No. 4:21-cv-1483-SAL, 2021 WL 4859940 (D.S.C. Oct. 19, 2021)). Because the undersigned recommends dismissal based on the SCWCA's exclusivity provision, this additional argument will not be addressed.
b. SCPWA
In the second cause of action, the plaintiff alleges violation of the SCPWA against “some or all of the defendants” (doc. 17, amend. comp. ¶¶ 36-43). The defendants argue that the claim fails because: 1) the amended complaint does not identify “wages” covered by the statute, and (2) defendants Sambrano and Weathers were not the plaintiff's “employer,” and thus they cannot be held individually liable for the plaintiff's SCPWA claim (doc. 27-1 at 5-7; doc. 33-1 at 5). The undersigned agrees.
The plaintiff alleges that “some or all of the defendants” were her employer as defined in the SCPWA and she has not been paid all wages due within the time required by the SCPWA (doc. 17, amend. comp. ¶¶ 37-39) (citing S.C. Code Ann. §§ 41-10-10(1), 41-10-50). However, in the factual allegations in the amended complaint, the plaintiff alleges that “[d]uring the time that she was out of work, [she] lost wages for both her scheduled hours and the guaranteed additional five hours a week that she usually works and for which she receives overtime pay,” and she “lost the opportunity to earn additional commission bonuses from the products that she would have sold during that time” (id. ¶ 18).
As argued by the defendants, the plaintiff's SCPWA claim is subject to dismissal because the amended complaint fails to identify compensation that was wrongfully withheld. The purpose of the SCPWA is “to protect employees from the unjustified and willful retention of wages by the employer.” Rice v. Multimedia, Inc, 456 S.E.2d 381, 383 (S.C. 1995). The statute defines “wages” as:
all amounts at which labor rendered is recompensed, whether the amount is fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the amount and includes vacation, holiday, and sick leave payments which are due to an employee under any employer policy or employment contract. Funds placed in pension plans or profit sharing plans are not wages subject to this chapter.S.C. Code Ann. § 41-10-10(2). As noted above, the plaintiff's SCPWA claim is based on her allegation that she “lost wages” during the “time that she was out of work” and that she “lost the opportunity to earn additional commission bonuses from the products that she would have sold during that time” (doc. 17, amend. comp. ¶ 18). The Supreme Court of South Carolina has held the SCPWA does not apply to compensation an employee “lost the opportunity to earn”:
The past tense of the word “rendered” suggests services provided in the past. The word “recompensed” too suggests that payment is for labor already completed. See Webster's Third New Int'l Dictionary 1897 (2002) (defining “recompensed” in part, as “an equivalent or a return for something done, suffered, or given”). Other sections of the [SCPWA] speak of acts done in the past. See, e.g., SC Code Ann. §§ 41-10-40(D) (“Every employer in the State shall pay all wages due at the time and place designated....”); 41-10-50 (“When an employer separates an employee from the payroll ... the employer shall pay all wages due....”); 41-10-80(C) (“In case of any failure to pay wages due to an employee....”). The word “due” means “owed or owing as a debt” and, as wages are defined by the Act as amounts paid for labor rendered, no wages can be due for future services. See Webster's Third New Int'l Dictionary 699 (2002). Based on the plain language of the statutes in the [SCPWA], the Act does not apply to prospective wages. See Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (“Where the statute's language is plain and unambiguous and conveys a clear and definite meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning.”).Mathis v. Brown & Brown of S.C., 698 S.E.2d 773, 783 (S.C. 2010). The amended complaint does not plead facts alleging O'Reilly - or any other defendant - failed to pay the plaintiff for services she provided in the past or for labor she already completed. Accordingly, the amended complaint fails to state a claim for violation of the SCPWA against the defendants.
Further, as argued by defendants Sambrano and Weathers (doc. 27-1 at 6-7; doc. 33-1 at 5), the plaintiff's SCPWA claim also fails because the amended complaint does not plead any facts that would establish either Sambrano or Weathers was her “employer” under the statute. The SCPWA defines an “employer” as “every person, firm, partnership, association, corporation, receiver, or other officer of a court of this State, the State or any political subdivision thereof, and any agent or officer of the above classes employing any person in this State.” S.C. Code Ann. § 41-10-10(1). South Carolina courts have held that individuals who knowingly permit their corporation to violate the SCPWA may be liable. Wired Fox Techs., Inc. v. Estep, C. A. No. 6:15-cv-331-BHH, 2017 WL 1135288, at *19 (D.S.C. Mar. 27, 2017) (noting “[t]he statute was ‘intended to impose individual liability on agents and officers of a corporation who knowingly permit their corporation to violate the Act'” (quoting Dumas v. InfoSafe Corp., 463 S.E.2d 641, 645 (S.C. Ct. App. 1995))); Allen v. Pinnacle Healthcare Sys., LLC, 715 S.E.2d 362, 364-65 (S.C. Ct. App. 2011)(citing Dumas, 463 S.E.2d at 645).
The amended complaint fails to plead facts sufficient to raise a claim that is plausible on its face regarding the individual liability of either Sambrano or Weathers. The plaintiff has failed to plead any facts from which it could be reasonably inferred that either Sambrano or Weathers was an agent, officer, or played any role in the operations of O'Reilly, much less that either of them knowingly permitted O'Reilly to violate the SCPWA. Accordingly, the SCPWA claim against Sambrano and Weathers should be dismissed for this additional reason.
c. SCHAL
In the third cause of action, the plaintiff alleges violation of the SCHAL against “the defendants” (doc. 17, amend comp. ¶¶ 44-49). The defendants argue that this claim fails because: 1) it is barred by the statute of limitations, and (2) defendants Sambrano and Weathers cannot be held individually liable under the SCHAL (doc. 27-1 at 7-9; doc. 33-1 at 6). The undersigned agrees.
The plaintiff alleges that the defendants engaged in intentional discrimination in their treatment of her on the basis of her sex, including treating the plaintiff differently than male employees, favoring male employees over her, and allowing both customers and employees to sexually harass her (doc. 17, amend comp. ¶¶ 44-49). In her factual allegations, the plaintiff alleges the defendants violated the SCHAL based on actions that occurred between June and September 2021 (id. ¶¶ 9-17). On February 27, 2023, the plaintiff's charge of discrimination against O'Reilly was dismissed and a notice of right to sue was issued by the South Carolina Human Affairs Commission (doc. 27-2; see also doc. 17, amend. comp. ¶). Porchea v. Google, Inc., C. A. No. 2:15-cv-2783-RMG-BM, 2015 WL 7444373, at *3 n.4 (D.S.C. Nov. 3, 2015) (noting that the court may consider a plaintiff's discrimination charge and dismissal/right to sue notice without converting Rule 12 motion to motion for summary judgment (citations omitted)), R&R adopted by 2015 WL 7454517 (D.S.C. Nov. 23, 2015).
The SCHAL provides the following statute of limitations: “The action must be brought within one year from the date of the violation alleged, or within one hundred twenty days from the date the complainant's charge is dismissed, whichever occurs earlier, except that this period may be extended by written consent of the respondent.” S.C. Code Ann. § 1-13-90(d)(6). Accordingly, the earliest date for purposes of calculating the statute of limitations is one year from the date of the violation alleged - or by September 2022. The plaintiff did not file her complaint initiating the state court action, which was later removed to this court, until April 11,2023, well over a year after the date of the alleged violations (see doc. 1-1). Accordingly, the SCHAL cause of action is barred by the statute of limitations and should be dismissed.
As the plaintiff's charge of discrimination was dismissed on February 27, 2023, 120 days from that date would be June 27, 2023. Thus, the September 2022 deadline would be the earlier date referenced in the statute.
Furthermore, to the extent the plaintiff is pursuing the SCHAL cause of action against defendants Sambrano and Weather, it should be dismissed for an additional reason. As with the Title VII cause of action that will be discussed below, the SCHAL does not provide for individual liability for co-employees or supervisors. See S.C. Code Ann. § 1-13-100 (“Nothing in this chapter may be construed to create a cause of action against a person not covered by Title VII . . . if the cause of action arises from discrimination on the basis of . . . sex . . . .”); Logan v. Rolling Green Village, C. A. No. 6:23-cv-1800-TMC, 2024 WL 227814, at *4 (D.S.C. Jan. 22, 2024) (stating that “neither Title VII nor the SCHAL provide for causes of action against defendants in their individual capacities” (citations omitted)); Dickey v. Staples, C. A. No. 3:13-cv-2842-MGL, 2014 WL 3867875, at *4 (D.S.C. Aug. 6, 2014) (finding “[b]ecause Individual Defendants cannot be held liable under Title VII, they cannot be held liable under SCHAL” (citations omitted)); Orr v. Clyburn, 290 S.E.2d 804, 806 (S.C. 1982) (recognizing that the SCHAL follows the substantive structure of Title VII and that cases interpreting the provisions of Title VII, which are essentially identical to the SCHAL, are to be given persuasive if not controlling authority). Accordingly, the SCHAL cause of action against defendants Sambrano and Weathers should be dismissed for this additional reason.
d. Title VII
In the fourth cause of action, the plaintiff alleges gender discrimination in violation of Title VII against “the defendants” (doc. 17, amend comp. ¶¶ 50-56). To the extent the plaintiff is pursuing this claim against defendants Sambrano and Weathers, it is subject to dismissal because co-employees and supervisors are not liable in their individual capacities for violations of Title VII. Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180 (4th Cir. 1998). See also Jones v. Sternheimer, 387 Fed.Appx. 366, 368 (4th Cir. 2010) (“Title VII . . . [does] not provide for causes of action against defendants in their individual capacities.”). This court has reiterated that an individual supervisor is not liable under Title VII. See Johnson v. Recleim LLC, C. A. No. 1:17-cv-3317-DCC-PJG, 2018 WL 3235602, at *1 (D.S.C. Jan. 24, 2018) (“Because the individual defendants named in the Complaint . . . are not 'employers' under Title VII, they should be dismissed from this action for Plaintiff's failure to state a claim against them upon which relief can be granted.” (citation omitted)), R&R adopted by 2018 WL 3222745 (D.S.C. July 2, 2018); Claiborne v. City of Greenville, C. A. No. 6:16-cv-2910-TMC-KFM, 2016 WL 6638083, at *2 (D.S.C. Oct. 5, 2016) (“It is well-established that Title VII does not impose individual liability on supervisory employees.” (citation omitted)), R&R adopted by 2016 WL 6627943 (D.S.C. Nov. 9, 2016). Accordingly, the plaintiff's Title VII claim against Sambrano and Weathers should be dismissed.
B. Plaintiff's Motion for Extension of Time to File Second Amended Complaint
In her motion for extension of time to file a motion to amend the amended complaint, which was filed on October 16, 2023, the plaintiff requests that the current deadline for amendment of pleadings be extended until thirty days after the defendants fully respond to her discovery requests (doc. 40 at 1). The plaintiff states in the motion that she served interrogatories and requests for production on the defendants on August 22, 2023, and she notes that responses were due by September 21, 2023 (id. at 2). She states that defendant Sambrano “chose not to respond to the plaintiff's requests and instead filed a motion to stay . . . on the day that his responses were due” (id.). On February 2, 2024, the undersigned granted defendant Sambrano's motion to stay the deadlines in the amended scheduling order until the resolution of his motion for judgment on the pleadings (doc. 50). The plaintiff further states that defendants O'Reilly and Weathers “responded to the plaintiff's requests on October 5, 2023, two weeks after their responses were due” (doc. 40 at 2). The plaintiff contends that she intentionally served discovery requests with enough time to allow for nearly thirty days to review the defendants' responses before the deadline to file a motion to amend the pleadings, and the defendants' failure to timely respond to her requests has prevented her from having time to review the defendants' responses and determine what information to include in a second amended complaint (id.).
In response to the plaintiff's motion, defendants O'Reilly and Weathers note that on September 8, 2023, their counsel requested a two-week extension to respond to the plaintiff's discovery requests, which was granted by the plaintiff's counsel, who did not express any concern that the brief extension would require any amendment of the deadline to amend pleadings (doc. 44 at 2; doc. 44-1, email indicating consent). Thus, defendants O'Reilly and Weathers argue that they did not delay in responding to the plaintiff's discovery but instead responded within the agreed upon extension between counsel (doc. 44 at 3). Further, defendants O'Reilly and Weathers note that the plaintiff still had nearly two weeks remaining between the date of their production and the deadline for amendment of pleadings, and she has presented no justification for why the information they provided in discovery could not be reviewed in that period of time (id. at 4).
In response to the plaintiff's motion, defendant Sambrano argues that as pleadings are closed, his motion for judgment on the pleadings should be granted because the plaintiff's claims against him either do not exist or are barred, as argued in his motion for judgment on the pleadings (doc. 45 at 1). Defendant Sambrano argues that the plaintiff effectively conceded the arguments supporting dismissal as she presented no substantive response to his motion (id.).
Defendant Sambrano further notes that he filed a motion to stay pursuant to Local Civil Rule 16.00(C) (D.S.C.) pending a ruling on the motion for judgment on the pleadings as there is no viable claim against him to warrant discovery. He argues that the Federal Rules of Civil Procedure do not permit discovery in the absence of a viable claim. The undersigned agrees. See Fed.R.Civ.P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . ..”); Fed.R.Civ.P. 26(b)(1) advisory committee's note to 2000 amendment (noting that Rule 26(b)(1) “signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings”).
As noted above, defendant Sambrano's motion to stay was recently granted (doc. 50).
Further, as argued by the defendants, the plaintiff's attempt to use discovery as a fishing expedition for a viable claim against them is also contrary to the Federal Rules of Civil Procedure and should be rejected (doc. 44 at 3; doc. 45 at 2). See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (Federal Rule of Civil Procedure 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”); Johnson v. Clark, C. A. No. 16-cv-225-S, 2018 WL 11475893, at *3 (D. Wyo. Jul. 19, 2018) (stating,“in short, a plaintiff must first bring a cause of action with a factual basis . . . a plaintiff is not permitted to assert a cause of action lacking the requisite factual basis and then proceed to engage in discovery to find such a factual basis” (citation omitted)); Husketh v. Sevier Cty, Tenn., C. A. No. 3:15-cv-0412; 2017 WL 1058262, at *2 (E.D. Tenn. Mar. 20, 2017) (rejecting plaintiff's motion to stay ruling on defendant's motion to dismiss pending completion of discovery as “[c]ourts do not permit a ‘fishing expedition' in which the nonmovant simply hopes to uncover some evidence that may help his case” (citation omitted)); Bussey v. Phillips, 419 F.Supp.2d 569, 591-92 (S.D.N.Y. 2006) (stating that “to the extent that [plaintiff] is arguing that additional discovery would allow him to amend his complaint to state a viable claim, the Court is similarly unpersuaded . . . [d]iscovery is not intended to be a fishing expedition.” (citation and internal quotations omitted)).
Based upon the foregoing, the undersigned recommends that the district court deny the plaintiff's motion for extension of time to file a motion to amend the amended complaint.
IV. CONCLUSION AND RECOMMENDATION
WHEREFORE, based upon the foregoing, the undersigned recommends that the motion for judgment on the pleadings by defendant Sambrano (doc. 27) and the partial motion for judgment on the pleadings by defendants O'Reilly and Weathers (doc. 33) be GRANTED and the motion for extension of time to file a motion to amend the amended complaint by the plaintiff (doc. 40) be DENIED. As the defects in the plaintiff's amended complaint do not stem solely from a lack of factual support but are also the result of the legal deficiency of her causes of action, further amendment of the amended complaint would be futile. Accordingly, the undersigned recommends that dismissal of the abovediscussed causes of action be with prejudice. Should the district court adopt this recommendation, the only remaining cause of action in the amended complaint will be for Title VII gender discrimination (fourth cause of action) against defendant O'Reilly (doc. 17, amend. comp. ¶¶ 50-56).
IT IS SO RECOMMENDED. Furthermore, The current scheduling order has been stayed by the undersigned until the pending motions are resolved (see docs. 50, 52, 55). Within seven days of the district court's ruling on the pending motions, the parties are ordered to jointly submit a proposed amended scheduling order for the undersigned's consideration.
IT IS SO ORDERED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).