Jacobs v. S.C. Dep't of Mental Health

Glen Jacobs, Plaintiff, v. South Carolina Department of Mental Health;Donna McLane; Shawna Martin-Lyle, Defendants.

C/A No. 3:20-543-JMC-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

August 25, 2020

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Glen Jacobs filed this action alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and state tort claims of civil conspiracy and wrongful termination in the Richland County Court of Common Pleas. The defendants removed the action to this court. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's partial motion to dismiss Jacobs's Amended Complaint. (ECF No. 26.) Jacobs filed a response in opposition to the motion (ECF No. 38), and the defendants filed a reply (ECF No. 39). Having reviewed the record presented and the applicable law, the court concludes the defendants' motion should be granted, but also that Jacobs should be given leave to amend the Amended Complaint.

BACKGROUND

The following allegations are taken as true for purposes of resolving the defendant's motion to dismiss. Jacobs was employed as a human services specialist at the G. Werber Bryan Psychiatric Hospital of the South Carolina Department of Mental Health ("the Department"). Jacobs worked for the Department from 1984 until his termination in August 2017. On April 12, 2016, Jacobs was injured on the job and, as a result, was unable to work or could only perform light duty as authorized by his treating physician. In August 2017, the Department was notified that Jacobs could perform his job with certain modifications authorized by his treating physician. However, the Department's Director of Nursing, Defendant Donna McLane, would not allow Jacobs to return to work. Also, McLane and Defendant Shawna Martin-Lyle, the Department's DIS Employee Relations Manager, determined that Jacobs was unable to perform the essential functions of his job and terminated Jacob's employment.

Neither McLane nor Martin-Lyle engaged in the ADA's interactive process to determine whether Jacobs could perform the essential functions of his job, and neither party took any steps to provide an accommodation to Jacobs so that he could perform his job. However, McLane and Martin-Lyle asserted to Jacobs during his termination that they did engage in the interactive process. McLane and Martin-Lyle also falsely represented to the South Carolina Human Affairs Commission that they engaged in the interactive process with Jacobs. The defendants' actions injured Jacobs, including lost income due to his termination.

DISCUSSION

A. Applicable Standards

To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. 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. UnitedStates, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. 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 "may also consider documents attached to the complaint, see Fed. R. Civ. P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic." Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).

B. The Defendants' Motion

1. Civil Conspiracy

The defendants argue Jacobs fails to state a civil conspiracy claim upon which relief can be granted for three reasons. First, they argue that Jacobs's assertion that McLane and Martin-Lyle were acting in the scope of their employment is conclusory. Second, they argue the civil conspiracy claim is barred by the discretionary immunity exception to the South Carolina TortClaims Act, S.C. Code Ann. §§ 15-78-10 et seq. ("the Act"). And third, the defendants argue that Jacobs fails to plead facts supporting the special damages element of a civil conspiracy claim.

Initially, the court must resolve a question not directly addressed by the parties—against whom does Jacob raise this civil conspiracy claim? The Amended Complaint does not expressly state whether the claim is brought against the individual defendants in their personal capacities, the Department, or both. And the parties' briefing on the defendants' motion to dismiss provides little clarity. However, the court construes the Amended Complaint as asserting both personal capacity claims against the individual defendants and a claim against the Department because both parties argue in support and opposition to bases for dismissal that are unique to either the individual defendants in their personal capacities or the Department. Therefore, the court must separately analyze the bases for dismissal based on the defendant against which the claim is raised.

a. Discretionary Immunity

Jacobs does not expressly bring this action pursuant to the South Carolina Tort Claims Act. However, the Act is the exclusive remedy for any tort committed by an employee of a governmental entity. S.C. Code Ann. § 15-78-70 ("This chapter constitutes the exclusive remedy for any tort committed by an employee of a governmental entity. An employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor except as expressly provided for in subsection (b)."). The Act further provides that, even if the employee is named in the action brought under the Act, the agency or political subdivision for which the employee was acting must be substituted as the party defendant. S.C. Code Ann. § 15-78-70(c).

The South Carolina Tort Claims Act also provides that the State, its agencies, political subdivisions, and other governmental entities are "liable for their torts in the same manner and tothe same extent as a private individual under like circumstances," subject to certain limitations and exemptions provided in the Act. S.C. Code Ann. § 15-78-40. "The governmental entity asserting the Act as an affirmative defense bears the burden of establishing a limitation upon liability or an exception to the waiver of immunity." Hawkins v. City of Greenville, 594 S.E.2d 557, 563 (S.C. Ct. App. 2004). The State of South Carolina has not waived its immunity from suit in state court for claims that are exceptions to its liability under the Act. Thus, the Department's voluntary removal of this case to federal court has not, in this instance, effected a waiver of the State's immunity from suit for these claims. See Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005) (holding that the State did not waive sovereign immunity by voluntarily removing the action to federal court for resolution of the immunity question); see also S.C. Code Ann. § 15-78-20(e); cf. Lapides v. Bd. of Regents, 535 U.S. 613, 622 (2002) (holding that a State that voluntarily invokes the jurisdiction of the federal court waives immunity for claims in which it has consented to suit in its own courts).

Here, the Department argues that Jacobs's civil conspiracy claim is barred by the discretionary immunity exception to the South Carolina Tort Claims Act.¹ The court disagrees.

The Act provides, that a "governmental entity is not liable for a loss resulting from: . . . the exercise of discretion or judgment by the governmental entity or employee or the performance or failure to perform any act or service which is in the discretion or judgment of the governmental entity or employee[.]" S.C. Code Ann. § 15-78-60(5). "To establish discretionary immunity, thegovernmental entity must prove that the governmental employees, faced with alternatives, actually weighed competing considerations and made a conscious choice. Furthermore, the governmental entity must show that in weighing the competing considerations and alternatives, it utilized accepted professional standards appropriate to resolve the issue before them." Stephens v. CSX Transp., Inc., 781 S.E.2d 534, 543-44 (S.C. 2015) (quoting Pike v. S.C. Dep't of Transp., 540 S.E.2d 87, 90 (S.C. 2000)). The burden is on the governmental entity to show that the immunity applies. See Pike, 540 S.E.2d at 91 ("We hold that when a governmental entity asserts the affirmative defense of discretionary immunity under the Tort Claims Act, the burden of proof is on the governmental entity and this burden is one of persuasion by a preponderance of the evidence.").

Here, the court finds that the Department has failed at this time to carry its burden of showing that discretionary immunity applies. Initially, the court notes that because this issue was raised in a motion to dismiss, the court must take the allegations asserted in the Amended Complaint as true, and the Department fails to...