Opinion
C/A 4:22-cv-181-RBH-KDW
07-25-2022
Luvenia Wilson, Plaintiff, v. GE Precision Healthcare, LLC, 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 Amended Complaint, ECF No. 7, includes federal-law-based causes of action brought pursuant to Title VII, the Americans with Disabilities Act (“ADA”), and the Family Medical Leave Act (“FMLA”); and state-law-based causes of action for breach of contract and promissory estoppel. Compl., ECF N. 7. Pending is the Partial Motion to Dismiss filed by Defendant GE Precision Healthcare, LLC (“GE” or “Defendant”), in which it seeks Rule 12(b)(6) dismissal of the state-law-based causes of action. ECF No. 11. Having considered Defendant's Motion and Memorandum; Plaintiff's opposition, ECF No. 17; Defendant's Reply, ECF No. 19; and applicable law, the undersigned recommends Defendant's Partial Motion to Dismiss be denied.
I. Background
Taken from the Amended Complaint and accepted as true for purposes of this Report, Plaintiff alleges the following facts that potentially are relevant to the pending motion:
On July 17, 2017, Defendant hired Plaintiff, a Black female, as a Production Associate; she worked in a subassembly area and was responsible for winding switches for MRI machines. Am. Compl. ¶¶ 7, 9, ECF No. 7. “As a part of her job, Plaintiff was allowed two weeks of vacation, which included sick leave.” Id. ¶ 10. Plaintiff became sick with a sinus infection in October 2020 and, on October 12, 2020, she called her supervisor to take leave as a result of her sinus infection. Id. ¶¶ 11, 12. Plaintiff provided Defendant with a doctor's excuse and followed all proper procedure for notifying Defendant of her need to take leave. Id. ¶¶ 13, 14. Plaintiff was out of work through October 15, 2020; on October 19, 2020, the next day for which she had been scheduled to work, Plaintiff returned to work and performed her job duties without issue. Id. ¶¶ 15-17.
Defendant uses a “‘point' system in which employees who have attendance violations or other violations accrue points. When an employee reaches nine points, an employee is terminated.” Am. Compl. ¶ 19. During her shift on October 19, 2020 Plaintiff was called to meet with Katie Thomas, Defendant's Assistant Human Resources (“HR”) Manager. Thomas is a white female. Id. ¶ 18. Thomas advised Plaintiff that she had only one point remaining before termination. Thomas stated Plaintiff had accrued a point for each day that she was out-October 12, 13, 14, and 15 of 2020. Id. ¶¶ 20-21. Plaintiff “stated that this was improper as [she] had followed the Defendant's policy for using her leave time.” Id. ¶ 22. On October 26, 2020, Plaintiff met with Aubrey Calhoun, one of her supervisors. Calhoun is a white male. Am. Compl. ¶ 23. Calhoun stated that, having resolved the issues relating to Plaintiff's use of leave time on October 12, 13, 14, and 15, 2020, Plaintiff would have three points remaining before termination. Id. ¶ 24. Calhoun stated that in December 2020, Plaintiff would have four points remaining before termination, because a point accumulated in December 2019 would drop off of her record. Id. ¶ 25.
Calhoun had Plaintiff sign a written level two corrective action form (“Level 2 Form”), which purportedly shows Plaintiff's point totals through October 26, 2020. Am. Compl. ¶ 27.The level two corrective action form alleges that Plaintiff received two points on October 12, 2020, and another two points on October 13, 2020, for “Absent Full Day Called in After Shift Start.” Id. ¶¶ 28, 29. The level two corrective action form did not provide for any points accrued on October 14 and 15, 2020. Id. ¶ 30. Calhoun, Thomas, and Plaintiff all signed and dated the Level 2 Form on October 26, 2020. Id. ¶ 26, 31. Plaintiff's coworker, Tammy Austin, heard the conversation between Calhoun and Plaintiff regarding the points remaining as indicated on the Level 2 Form. She also saw the form being signed. Id. ¶ 34. Calhoun refused to provide Plaintiff a copy of the Level 2 Form. Id. ¶ 35.
The Amended Complaint references the Level 2 Form, but does not attach it. Defendant has attached a copy of the Form (as well as the Cover Page and the Attendance Policy portions of the GE Healthcare-Florence Associate Handbook) to its Motion to Dismiss. Oct. 26, 2020 Level 2 Corrective Action Form, ECF No. 11-2 (copy of actual Level 2 Corrective Action Form (“Level 2 Form”); ECF No. 11-3 (Handbook excerpts). In opposing the Motion Plaintiff argues the documents provided by Defendant should not be considered at this Rule-12 stage. Pl. Mem. 6-8. What may (or may not) be considered at this stage of the proceedings is discussed within.
Plaintiff alleges the Level 2 Form and Calhoun's verbal representations to Plaintiff created binding contracts between Plaintiff and Defendant as to the points accrued through October 26, 2020. Am. Compl. ¶¶ 32, 33. Plaintiff alleges Defendant breached such contracts; she also alleges Defendant made an unambiguous promise as to the number of points, and Plaintiff relied on that promise to her detriment. See Am. Compl. ¶¶ 109-122.
On November 19, 2020, the Assistant HR Manager summoned Plaintiff to her office, advised Plaintiff she had zero points remaining before termination, and told Plaintiff she needed to see Denise Bethay, a Black female who is Defendant's Personnel Manager. Am. Compl. ¶¶ 36-37. On November 20, 2020 Plaintiff met with Bethay; Dan Matsey, a white male who is Defendant's Department Manager; and Brooks Bennet, a white male who is Defendant's Plan Team Leader. Id. ¶ 38. Plaintiff was provided with a termination notice during this meeting. The termination notice indicated Plaintiff had been put on notice as of October 26, 2021 [sic] of attendance issues. Am. Compl. ¶¶ 39-40. Plaintiff's termination notice stated that she lost additional points following October 26, 2020; however, Plaintiff avers she had not committed any attendance or other violations since October 26, 2020. Id. ¶¶ 41, 42. Plaintiff was advised that her request for FMLA leave during the period of October 12 through 15, 2020 had been denied based on her alleged failure to provide documentation. Id. ¶¶ 39-44. Plaintiff avers she “provided all necessary documentation from her medical provider and otherwise followed all FMLA procedure.” Id. ¶ 45. Plaintiff's termination notice indicated that she had been “retroactively awarded additional points for the days of October 14 and 15 due to the denial of FMLA leave.” Id. ¶ 46.
Plaintiff was provided a Level 4 Corrective Action Form (“Level 4 Form”), which detailed the points allegedly accrued in the preceding 12 months. Am. Compl. ¶ 47. The Level 4 Form reflects that one point was accrued for each day of October 14 and 15, 2020 due to “Absent Full Day Called In.” Id. ¶ 48. Had the points for October 14 and 15, 2020 not been accrued, Plaintiff would not have reached a total of nine points, which is the minimum amount at which an employee may be terminated under Defendant policy. Id. ¶¶ 50-51. The Level 4 Form also reflects that three points were accrued for October 12, 2020, due to “Absent Full Day No Call In.” Id. ¶ 52. Plaintiff alleges this breaches the prior agreement reached on October 26, 2021 [sic], when Defendant had agreed that Plaintiff received two points for “Absent Full Day Called In After Shift Start.” Id. ¶ 53. Had the amount of points accrued for October 12, 2020, not been increased from two to three Plaintiff would not have reached a total of nine points. Id. ¶ 54.
The current record does not include a copy of the Level 4 Form.
II. Legal standard
Defendant moves to dismiss both of Plaintiff's state-law-based causes of action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing Plaintiff has not and cannot set forth viable breach-of-contract or promissory-estoppel causes of action in this employment-based litigation. “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).
III. Analysis
A. What may be considered?
In support of its Motion to Dismiss, Defendant has submitted two documents: (1) a copy of the October 26, 2020 Disciplinary Procedure, Attendance Policy - Unexcused Absences, Level 2 Corrective Action Form (the Level 2 Form), ECF No. 11-2; and (2) what appears to be the cover page and pages 19 through 26 of 45 pages of Revision 09 of a GE Healthcare -Florence Associate Handbook, with pages 19-26 being the “Attendance Policy” portion of the Handbook, ECF No. 11-3. The parties disagree as to whether these documents may be considered by the court at this motion-to-dismiss stage.
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” when [plaintiff] “do[es] not challenge [their] authenticity.” Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999).
As noted by United States District Court Judge J. Michelle Childs,
The Fourth Circuit has explained that
“[t]he rationale underlying this exception is that the primary problem raised by looking to documents outside the complaint-lack of notice to the plaintiff-is dissipated where plaintiff has actual notice and has relied upon these documents in framing the complaint. What the rule seeks to prevent is the situation in which a plaintiff is able to maintain a claim of fraud by extracting an isolated statement from a document and placing it in the complaint, even though if the statement were examined in the full context of the document, it would be clear that the statement was not fraudulent.”
Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (internal quotation marks, brackets, and ellipsis omitted) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)); see also Pension Benefits Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3rd Cir. 1993) (“[A] court may properly consider a concededly authentic document upon which the complaint is based when the defendant attaches such a document to its motion to dismiss. . . . Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document.”).United States v. Savannah River Nuclear Solutions, LLC, No. 1:16-cv-00825-JMC, 2016 WL 7104823, at *6 (D.S.C. Dec. 6, 2016).
Defendant argues the proffered documents may be considered herein because they are “‘integral to and explicitly relied on in the complaint.'” Def. Mem. 2-3, 6, nn. 2-3, ECF No. 11-1 (quoting E.I. duPont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011), and citing additional cases). Defendant further acknowledges that, for documents attached to a motion to dismiss to be considered they must be “authentic.” Def. Mem. 3 n.3 (quoting Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011)). Defendant notes that Plaintiff references the Level 2 Form numerous times in her Amended Complaint and avers that the Form itself creates a binding contract between the parties. Def. Reply 3, ECF No. 19 (referring to Am. Compl.). Further, Defendant argues the Handbook, which includes the Attendance Policy, also may be considered because the Amended Complaint refers to Defendant's policies and procedures, particularly the Attendance Policy, throughout her pleading, and the Level 2 Form itself references the Handbook and the Attendance Policy. Id. at 3-4.
In seeking to exclude the Level 2 Form and the Handbook at this juncture, Plaintiff never addresses the exceptions noted above-that documents integral to the pleading and whose authenticity have not been called into question-appropriately may be considered at the Rule 12(b)(6) stage before full discovery has taken place. Rather, Plaintiff's argument generally focuses on the “four corners rule,” in which a court considering a Rule 12(b)(6) motion considers only the complaint and documents attached to it. Pl. Mem. 7 (quoting CACI Intern., Inc. v. St. Paul Fire and Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009) and other cases). She submits the documents may not be considered because they were not attached to the complaint and “have not been authenticated or subjected to foundational discovery.” Pl. Mem. 7 (citing Bellotte v. Edwards, 388 Fed.Appx. 334, 337 (4th Cir. 2010)). Plaintiff does not specifically question the authenticity of the Level 2 Form or the Handbook/Policy provided by Defendant.
As Plaintiff has not called the documents' authenticity into question and does not dispute that they are integral to her claims, the undersigned is of the opinion that they may be considered herein. Plaintiff's Amended Complaint often cites the Level 2 Form-indeed, it is the focus of her state-law-based claims. See Am. Compl. ¶¶ 26-35, 109-122. While Plaintiff does not specifically focus on the terms of the Handbook, much of her claim concerns her termination in alleged violation of the attendance policy as well as referring to other policies. See, e.g., id. ¶¶ 19, 22, 51, 56-57. Further, as noted by Defendant, the very cases cited by Plaintiff in opposing consideration of the documents go onto discuss the exception that permits a court to consider documents provided in a motion to dismiss so long as the documents are integral and not challenged as inauthentic. See Reply 2-3; Bellotte, 388 Fed.Appx. at 337 (quoting CACI Intern., Inc. and noting documents attached by defendant may be considered under these circumstances). Accordingly, in considering Defendant's Motion to Dismiss the court may look to the provided Level 2 Form and the Handbook/Policy excerpt).
The undersigned also notes Plaintiff's argument that the documents ought not be considered because discovery has not taken place and the “contract [allegedly created by the Form 2] is only written in part.” Pl. Mem. 7. In other words, Plaintiff submits the documents presented by Defendant ought not be considered herein because she should be permitted to present additional evidence not necessarily encompassed by the two attached documents themselves. This is a separate argument and does not require exclusion of the proffered documents at this time.
B. The attached documents
1. Level 2 Form
The Level 2 Corrective Action indicates it is for “Level 2 Absenteeism: 5.0-6.5 [points].” Level 2 Form, ECF No. 11-2. It lists “Dates of Unexcused Absences (with points as charged)” as 2 points each for October 12 and October 13, 2020 (FLO Absent Full Day Called in After Shift Start”), 1 point each for April 27, 2020 (“Unexcused Absence”) and December 19, 2019 (Absent Full Day Called In Before Shift).” Id. Following the list of unexcused absences, the Level 2 Form includes a “Communication to Associate,” which was signed on October 26, 2020, by Calhoun, Plaintiff's Manager. The “Communication” provides:
As an employee of GE Healthcare in Florence, SC, you are expected to follow the Attendance Policy as outlined in your Employee Handbook. As of today, you are in violation of this policy and a warning is being issued. Further violations of this policy may result in disciplinary action up to, and including[,] termination of employment. If you have any questions, please review your handbook or meet with your manager or Human Resources for clarification.Level 2 Form. Following that Communication, Plaintiff signed and dated the Level 2 Form, indicating, “I hereby acknowledge that I have received and reviewed this Disciplinary Communication. Also, I am aware of the Attendance Policy, it has been explained to me and I have a copy.” Id. Plaintiff signed the form on October 26, 2020, as well. Finally, the Level 2 Form includes the October 26, 2020 signature of Katie Thomas to show the Form was “Reviewed by Human Resources.” Id.
2. Handbook Cover and Attendance Policy
The other exhibit includes what appears to be the cover of the Associate Handbook released April 1, 2016, and the Attendance Policy (pages 19 through 26 of 45). ECF No. 11-3. The Cover Page, ECF No. 11-3 at 1, includes the following disclaimer:
THIS HANDBOOK DOES NOT CREATE AN EXPRESS OR IMPLIED CONTRACT OF EMPLOYMENT OR CREATE ANY CONTRACTUAL RIGHTS.
Before using this document, consult HR to ensure it is the most current revision. ECF No. 11-3 at 1 (underlining, italicization, and case in original). The Attendance Policy details the point system used for various types of absences and provides in part that “generally, GEHC-F will follow progressive corrective action to help improve the situation. The intent of corrective action is to confirm understanding of the attendance policy, identify ways to prevent future absences and to correct the attendance situation. ECF No. 11-3 at 5. Applicable to Plaintiff's situation, the Handbook indicates that “[g]enerally, GEHC-F will administer [certain] corrective action steps,” to include four levels of corrective action. Id. at 6.
C. Breach of contract claim
Plaintiff bases her breach of contract claim on the Level 2 Form and on supervisor Calhoun's verbal representations, averring both created a “binding contract between Plaintiff and Defendant as to the points accrued through October 26, 2020.” Am. Compl. ¶¶ 32, 33. Both parties implicitly acknowledge that Plaintiff's state-law-based claims are governed by South Carolina law. Under South Carolina law, a plaintiff states a breach of contract by pleading the following elements: (1) the existence of a contract; (2) its breach; and (3) damages caused by the breach. Fuller v. E. Fire & Cas. Ins. Co., 124 S.E.2d 602, 610 (S.C. 1962). As this court has noted (and both parties generally acknowledge), “an at-will employee may be terminated at any time for any reason or for no reason, with or without cause, subject to narrow exceptions and prohibitions against illegal discrimination.” Acosta v. Hilton Worldwide, No. 4:15-CV-00495-RBH, 2015 WL 5231730, at *3 (D.S.C. Sept. 8, 2015) (citing Stiles v. Am. Gen. Life Ins. Co., 516 S.E.2d 449, 450 (S.C. 1999); Grant v. Mount Vernon Mills, Inc., 634 S.E.2d 15, 19 (S.C. Ct. App. 2006)).
One such exception may exist when the at-will status of an employee is altered by the terms of an employee handbook that is not disclaimed pursuant to statute. See Hessenthaler v. Tri-Cnty. Sister Help, Inc., 616 S.E.2d 694, 697 (S.C. 2005); S.C. Code. Ann. § 41-1-110.
Here, Defendant seeks dismissal of the breach of contract claim, arguing that Plaintiff is an at-will employee and “the fact of an employment relationship alone does not form a contract.” Def. Mem. 5 (citing Mathis v. Brown & Brown of S.C., Inc., 698 S.E.2d 773, 778 (S.C. 2010) and Hessenthaler, 616 S.E.2d at 697). Defendant argues “there is simply no precedent or logic to support [] a claim” that the Level 2 Form itself is a contract between the parties. Def. Mem. 5. Rather, looking to the language of the Level 2 Form, Defendant submits Plaintiff acknowledged she had received a copy of the “Disciplinary Communication” and that she is “aware of the Attendance Policy,” that it has been explained, and that she has a copy of the Attendance Policy. Def. Mem. 5-6. Defendant then shifts to an examination of the Attendance Policy itself, arguing first that it does not and cannot create a binding promise on Plaintiff because the Handbook in which the Policy is located contains a conspicuous disclaimer as required by South Carolina Code Ann. § 41-1-110. Def. Mem. 6.
Defendant goes on to argue that, even if the Level 2 Form were somehow considered to be a contract between the parties, Plaintiff had not alleged any sort of breach of that contract based on the language of the Form itself that “‘[f]urther violations of this policy may result in disciplinary action up to, and including termination of employment.'” Def. Mem. 7 (quoting Level 2 Form). Defendant submits that, because the Level 2 Form does not “state that the points set forth as of October 26, 2020 [the date the Level 2 Form was signed by Plaintiff, her supervisor, and HR] are the only ones accrued by Plaintiff to date, or that Defendant cannot add attendance points for absences that occurred before the issuance of the corrective action form upon a subsequent determination that those absences were unexcused.” Def. Mem. 7.
Plaintiff responds that Defendant's argument that she “seeks to change her status from an at-will employee to a contract employee[,] misconstrues [her] position in this case.” Pl. Mem. 8. Plaintiff explains that she has not pleaded that the Handbook/Attendance Policy creates a “contract for definite employment[.]” Id. Rather, Plaintiff submits that the “contract as executed was a specific agreement that occurred within, or at least parallel to, the at-will employment relationship, between the employer and employee.” Id.
Reiterating her point that she is not relying on the Handbook to create a contract of employment for a definite term, Plaintiff takes issue with the “position [Defendant's argument] must necessarily take” as one that “employers can never be held bound to any agreement they make with an at-will employee.” Pl. Mem. 8 (emphases in original). Plaintiff argues that South Carolina law does not support such a strident position. Pl. Mem. 8 (citing Parker v. Nat'l Honorary Beta Club, 815 S.E.2d 769 (S.C. Ct. App. 2018)). Plaintiff points to portions of her Amended Complaint in which she alleged an initial disagreement with Defendant as to the number of attendance points she had through October 26, 2020, and that the October 26, 2020 Level 2 Form represents “an agreement, a compromise between the two parties, that created and agreed upon amount of attendance points that were accumulated through October 26, 2020.” Pl. Mem. 9 (citing Am. Compl. ¶¶ 22-33).
Regarding Defendant's alternative argument that she has not adequately pleaded a breach of any contract considered to have been formed by the Level 2 Form, Plaintiff takes issue with Defendant's interpretation of the language of the Level 2 Form itself. Pl. Mem. 9. Plaintiff submits a reasonable interpretation of the Level 2 Form language regarding “[further] violations” is that any violations of the Attendance Policy that take place after October 26, 2020, could result in a change of the number of attendance “points” and “result in disciplinary action up to, and including termination of employment.” Id. Plaintiff submits it “defies logic” that points for pre-October 26, 2020 absences could be added to the agreed-upon October 26, 2020 total of seven points. Id. at 10. Plaintiff submits she is entitled to discovery. Id.
On reply, Defendant does not address Plaintiff's argument based in part on Parker, 815 S.E.2d 769, that Defendant's position would mean an employer could never be bound by any sort of agreement it made with an at-will employee. Rather, Defendant argues there can be no contract because there is no “meeting of the minds” as to the intent for the Level 2 Form to be a contract. Reply 5-6 (citing Vessell v. DPS Assocs. of Charleston, Inc., 148 F.3d 407, 410 (4th Cir. 1998)). Defendant argues the plain language of the Level 2 Form makes it clear it is “simply a communication regarding disciplinary action” and lacks language of any agreement, meaning it cannot be a contract. Id. at 6. Defendant also argues there could be no oral communication that would modify any written agreement that may exist. Id. at 7. Defendant again reiterates its argument that, because Plaintiff is an at-will employee and its Handbook expressly disclaims the existence of a contract, one cannot exist. Reply 8. Finally, Defendant again submits there was no breach of any contract that may have been found to have existed because it was within its rights and terms to increase Plaintiff's attendance points based on “further violations,” which could include violations that predated the Level 2 Form's October 26, 2020 date. Id.
Having considered the arguments of the parties, the undersigned recommends Defendant's Motion to Dismiss the breach of contract claim be denied. Based solely on the facts as alleged by Plaintiff and the documents provided by Defendant, it appears plausible that Plaintiff could pursue a breach-of-contract action akin to the one at least implicitly acknowledged in Parker v. National Honorary Beta Club, 815 S.E.2d 769. In that case, the South Carolina Court of Appeals upheld the denial of a motion for judgment notwithstanding the verdict (JNOV) or for new trial after a jury-rendered verdict for the plaintiff-employee's breach of contract claims. Id. at 770. Plaintiff-employee in that case was an at-will employee. At a meeting before the employer's internal affairs committee (IAC), she was asked questions regarding a recent meeting she had had with her supervisor (who was not at the IAC meeting). Id. A member of that committee told her she could not be fired for responding to the questions. Id. She responded to the IAC's questions. The following week, the employee's supervisor met with her and indicated that he “understood [the plaintiff-employee] had been negative with the IAC,” and fired her at the close of that meeting. Id. The jury found for Plaintiff as to breach of contract and other actions, and “the jury's verdict carried with it an implicit finding that [employer's] promise to [employee] that she could not be fired for answering the IAC's questions altered her at-will employment, creating a contract that was breached when [supervisor] fired her for that very reason.” Id. at 770-71. That portion of the jury's verdict was not the subject of the appellate decision. In any event, the unappealed recognition of a breach of contract based on a promise that led to termination of an at-will employee provides some legal authority for Plaintiff's bringing a breach of contract case in this matter. In other words, Parker provides some authority for an employee, under certain conditions, to claim a contract for a specific purpose has been breached, even if the employee is, and otherwise remains, an at-will employee. Defendant has provided no case law contrary to the principle that-separate and apart from an admittedly at-will employment relationship-an employer and employee may enter into specific agreements that may relate to the employee's treatment as to a specific situation. In Parker, the employee was promised she would not be terminated if she answered the committee's questions. When she was terminated for that specific reason she presented a viable breach of contract claim. Here, Plaintiff concedes that, generally, she could be terminated for any reason or for no reason. However, as relates to her attendance, she alleges she negotiated a deal (a promise) that Defendant considered her to have six attendance points as of October 26, 2020. When Defendant retroactively changed the number of attendance points for earlier dates, and then terminated Plaintiff as a result of the increased points added from October, Defendant arguably breached its agreement.
Regarding Defendant's position that there could be no contract because Defendant did not intend that the Form 2 be considered a binding agreement, the court notes that the case cited by Defendant regarding whether the parties intended formation of a contract was decided at the directed-verdict stage, not at the motion-to-dismiss stage. Vessell, 148 F.3d at 410.
This recommended finding is specific to the facts as pleaded in this matter and does not in any manner suggest that employee's breach-of-contract actions against employers ought always pass Rule 12(b)(6) muster. Further, to the extent Defendant calls intent into question and claims there was no meeting of the minds, Reply 5, generally questions of intent are factintensive inquiries that merit full discovery.
In making this recommendation, the undersigned acknowledges Defendant's focus on the Handbook and terms of the Attendance Policy itself in support of its arguments that no contract exists. However, Plaintiff submits it is not attempting to make this case fit into the line of cases considering whether employee handbooks and specific mandatory policies therein may alter the at-will employer-employee relationship. See Pl. Mem. 8. Accordingly, analysis in this vein seems unnecessary. However, to the extent the Handbook is considered, the court cannot find that, based on the documents before it at this juncture, that the disclaimer on the cover page satisfies all of the statutory requirements for being found to be sufficient as a matter of law. S.C. Code Ann. § 41-1-110 (“For purposes of this section, a disclaimer in a handbook or other personnel manual must be in underlined capital letters on the first page of the document and signed by the employee.”). Although the documents submitted do satisfy the type-face requirements: that any disclaimer be underlined and in all capital letters-the statute includes a third requirement: that a handbook disclaimer be signed by Plaintiff. Id. While discovery could bear out the existence of such a signed document exists, its absence prevents the court from finding any promise altering the at-will relationship has been disclaimed as a matter of law.
The undersigned further notes that, if considering the language of the Attendance Policy itself, the Policy indicates, “In the event that an associate develops attendance problems, generally GEHC-F will follow progressive correction action to help improve the situation. The intent of corrective action is to confirm understanding of the attendance policy, identify ways to prevent future absences and to correct the attendance situation.” Attendance Policy at page 22 of 45, ECF No. 11-3 at 5. On the next page the Policy indicates Defendant “will administer the following corrective action steps” and lists those steps. Id. at 23 of 45. In its description of what is to be included in a Level 2 warning, the Policy indicates that for Level 2 Absenteeism the “Written warning will state the number of points left before termination.” Id. A plausible interpretation of the Level 2 Form's Listing of the points charged against Plaintiff as of October 26, 2020, then, is that it is showing the points “left before termination.” See generally McClurkin v. Champion Lab'ys, Inc., No. 0:11-CV-02401-CMC, 2011 WL 5402970 (D.S.C. Nov. 8, 2011) (analyzing employer's attendance policy, which included point system, and denying Rule 12(b)(6) motion to dismiss breach of contract claim).
At bottom, the undersigned is of the opinion that Plaintiff has set out a plausible breach of contract claim. It is far from certain that such a claim can survive a motion for summary judgment. In any event, as discovery is now proceeding as to the federal claims, the court recommends the Rule 12(b)(6) motion be denied as to the breach of contract claim.
D. Promissory estoppel claim
Defendant also seeks Rule 12(b)(6) dismissal of Plaintiff's claim of promissory estoppel. South Carolina law sets out the elements of such a claim as follows:
(1) the presence of a promise unambiguous in its terms, (2) reasonable reliance upon the promise by the party to whom the promise is made, (3) the reliance is expected and foreseeable by the party who makes the promise, and (4) the party to whom the promise is made must sustain injury in reliance on the promise.Thomerson v. DeVito, 844 S.E.2d 378, 383 (S.C. 2020).
Plaintiff's Amended Complaint also seeks recovery under the equitable doctrine of promissory estoppel based on Defendant's “unambiguous promise” of October 26, 2020 that Plaintiff had “only accumulated a total of four attendance points for the period of October 12 through October 15, 2020.” Am. Compl. ¶ 118. Plaintiff avers she reasonably relied on such promise, the reliance was “expected and foreseeable,” that Defendant's failure to abide by that promise when terminating Plaintiff after finding additional points had been accrued for that period caused damage to Plaintiff. See id. ¶¶ 117-122.
Defendant submits the promissory estoppel claim should be dismissed as a matter of law because Plaintiff, an at-will employee, cannot base such a claim upon “promises of continued employment.” Def. Mem. 8 (citing Power v. Lear Siegler Services, Inc., 2:98-2752-18, 1999 WL 33229187, at *5 (D.S.C. Dec. 13, 1999)). In Power, the court found an employer's “vague assurance of job security” that the employee would have a job “as long as there was work” would not support a promissory estoppel claim after the employee was discharged. 1999 WL 33229187, at *5. Defendant also submits any reliance on a “promise of continued employment” would be unreasonable as a matter of law. Def. Mem. 8 (quoting White v. Roche Biomedical Labs, Inc., 807 F.Supp. 1212, 1219-20 (D.S.C. 1992)). Further, Defendant argues, Plaintiff has not alleged she took (or refrained from taking) action based on the alleged promises. Id.
In response, Plaintiff argues her Amended Complaint does contain allegations that satisfy the requisite elements of a promissory estoppel cause of action. She again points out that, unlike some cases cited by Defendant, she is not alleging she received a promise of continued employment. Pl. Mem. 11-12. Rather, Plaintiff again indicates that the promise on which she bases her claim is that Defendant negotiated with her and came to an agreement that Plaintiff had “accumulated a specific number of attendance points through October 26, 2020, which could not cause her to be terminated because the points were not in an amount sufficient to trigger termination under Defendant's policy.” Pl. Mem. 12 (citing Am. Compl. ¶¶ 19-33). Plaintiff further notes that she pleaded detrimental reliance on the promise “by continuing to provide her services, by not resigning, and sacrificing time in which she could have been searching for employment elsewhere.” Id. (citing Am. Compl. ¶ 121). Further, Plaintiff notes the negotiated nature of the points reflected on the October 26, 2020 Level 2 Form, asserting she “sacrificed her pursuit of having a lesser amount of attendance points reflected on her record, which she believed to be the rightful case under Defendant's policy.” Id. (citing Am. Compl. ¶ 22).
On balance, considering the language of the Amended Complaint and the documents provided by Defendant, the undersigned is of the opinion that it would be premature to dismiss the promissory estoppel claim before the parties have had the opportunity to do discovery. See generally T-Zone Health, Inc. v. SouthStar Cap., LLC, No. 2:21-CV-01555-DCN, 2021 WL 4925959, at *4 (D.S.C. Oct. 21, 2021) (denying motion to dismiss promissory estoppel claim in non-employment context, finding it appropriate to permit discovery to move forward). The court notes that several cases on which Defendant relies, including Power, 1999 WL 33229187, and White, 807 F.Supp. 1212, were not decided until after discovery had been completed. In recommending the promissory estoppel claim proceed to discovery, the court takes note that the promise alleged by Plaintiff is not one for continued employment; rather, construed in the light most favorable to the non-moving Plaintiff, it is a promise that Defendant would consider Plaintiff to have a specific number of attendance points as of October 26, 2020, and that Plaintiff reasonably relied on that promise to her detriment. Plaintiff has sufficiently alleged the elements of promissory estoppel. It is far from clear that discovery will bear out the forecast of evidence sufficient to survive summary judgment as to this claim. As with the breach of contract claim, the undersigned is of the opinion that, because discovery is ongoing as to the federal claims it is appropriate in this instance to permit discovery as to the promissory estoppel claim as well.
In a footnote, Defendant also submits Plaintiff cannot pursue a claim of promissory estoppel “where that party claims to be bound by a contract.” Reply at 9 n.6 (citing Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 599 (4th Cir. 2004)). However, the Volvo court noted that “equitable relief is precluded under a theory of promissory estoppel if the estoppel claim is in direct conflict with a specific contract term.” 386 F.3d at 599. Here, Plaintiff's equitable claim regarding a promise by Defendant is not in “direct conflict” with the alleged contractual term. In fact, Plaintiff is making alternative arguments as to the same alleged promises, which she is permitted to do at this juncture.
IV. Conclusion and recommendation
For the reasons set forth above, it is recommended that Defendant's Partial Motion to Dismiss, ECF No. 11, be denied.
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.”