Johnson v. Builders FirstSource Se. Grp.

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Frank L. Johnson, Plaintiff, v. Builders Firstsource Southeast Group, LLC, Defendant.

C. A. No. 3:21-2612-JMC-PJG

United States District Court, D. South Carolina, Columbia Division

July 14, 2022

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE

Plaintiff Frank L. Johnson filed this employment case alleging violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; and a state law claim of defamation against his former employer, Builders Firstsource Southeast Group LLC. 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 motion for summary judgment. (ECF No. 29.) The plaintiff filed a response in opposition (ECF No. 41), and the defendant replied (ECF No. 43). Having reviewed the parties' submissions and the applicable law, the court finds that the defendant's motion should be granted.

BACKGROUND

The following facts are either undisputed or are viewed in the light most favorable to the plaintiff, to the extent they find support in the record. The defendant is in the business of building and delivering roof trusses. During the relevant time, the plaintiff was employed as a dispatcher, supervising the delivery drivers. This case arises from the plaintiff's disciplinary termination for purportedly retaliating against an employee, Calvin Fulmore, who reported the plaintiff for disclosing Fulmore's private health information. Early in the pandemic, Fulmore complained to Office Manager Sharlene Herbert that the plaintiff disclosed to other workers that Fulmore tested positive for COVID.^[1] The plaintiff denied the allegation, but after an investigation, the defendant issued him a written warning for violating company policy. Herbert informed Fulmore that his complaint had been addressed.

When Fulmore returned to work after his quarantine period, the plaintiff, who was responsible for assigning vehicles to drivers, required Fulmore to drive an older model truck rather than the newer, better model he had been driving before his illness. Fulmore again complained, asserting that the plaintiff retaliated against him for his prior complaint about disclosing his COVID diagnosis. The defendant again investigated Fulmore's complaint, found it to be justified, and terminated the plaintiff's employment for violating the company's policy against retaliation.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322.

B. Plaintiff's Claims

As an initial matter, the plaintiff concedes that his Title VII claim should be dismissed and seeks remand of his defamation claim to state court. (Pl.'s Mem. Opp'n Summ. J. at n.1 & 8, ECF No. 41 at 1, 8); see also 28 U.S.C. § 1367(c). In reply, the defendant argues that the court should not remand the defamation claim and requests that judgment be entered in its favor on both claims. See Fed.R.Civ.P. 41(a)(2) (permitting dismissal of an action at the plaintiff's request on terms that the court considers proper) & 41(b) (providing that if a plaintiff fails to prosecute, a defendant may move to dismiss the action or any claim, and that the dismissal generally acts as an adjudication on the merits).

The court agrees with the defendant and recommends that judgment should be granted as to both claims. The plaintiff has effectually abandoned his Title VII claim, presenting no argument to counter the defendant's well-supported motion as to this claim. Pursuant to Rule 41(a)(2) and Rule 41(b), the court finds that dismissal with prejudice and entry of judgment for the defendant is therefore appropriate. See Hobbs v. Kroger Co., 175 F.3d 1014 (4th Cir. 1999) (providing that a district court considering dismissal with prejudice under Rule 41(a)(2) should consider any relevant factors, including, but not limited to: (1) the opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for a dismissal; and (4) the present stage of the litigation, such as whether a dispositive motion is pending).

Moreover, the court should retain jurisdiction over the state law claim because the plaintiff's allegations of defamation lack the requisite specificity, as explained below. In any event, his defamation claim is plainly unsupported by the record. See Funderburk v. S.C. Elec. & Gas Co., 406 F.Supp.3d 527, 534 n.6 (D.S.C. 2019) (retaining supplemental jurisdiction over state law claims that involved “settled principles” and were “not novel or complex”), affd sub nom. Funderburk v. CSX Transportation, Inc., 834 Fed.Appx. 807 (4th Cir. 2021); Hall v. Greystar Mgmt. Servs., L.P., 179 F.Supp.3d 534, 538 (D. Md. 2016) (retaining state law claims after dismissal of the federal claims in part because the state law claims involved the application of “straightforward . . . hornbook tort law” and an “uncomplicated fact pattern,” as opposed to “questions of first impression of unsettled, policy-laden matters” better left to Maryland courts).

Under South Carolina law, the elements of defamation are: “(1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Fountain v. First Reliance Bank, 730 S.E.2d 305, 309 (S.C. 2012) (quoting Erickson v. Jones St. Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006)).

The plaintiff's Complaint does not identify the speaker of the alleged defamatory statements, what the statements were, or when and to whom they were made. Many courts have recognized that defamation claims should be dismissed or are appropriate for summary judgment when these necessary details are lacking. See, e.g., Doe v. Cannon, C/A No. 2:16-cv-530-RMG, 2017 WL 591121 (D.S.C. Feb. 14, 2017) (dismissing a defamation claim that did not specifically allege “time, place, medium, and listener” of the alleged defamatory statements); Sigler v. Black River Elec. Coop., C/A No. 3:20-2203-JMC-SVH, 2020 WL 9209285 (D.S.C. Jul. 24, 2020) (report and recommendation), adopted by 2021 WL 856879 (D.S.C. Mar 8, 2021) (dismissing a defamation claim because it lacked the necessary specificity); see also Davis v. New Penn Fin., LLC, C/A No. 6:18-3342-TMC-KDW, 2021 WL 3410790, at *16 (D.S.C. May 25, 2021) (report and recommendation), adopted by 2021 WL 3088059 (D.S.C. July 22, 2021) (finding summary judgment was appropriate where the allegations of defamatory statements were so lacking in detail that they did not constitute actionable defamation).

To the extent the plaintiff relies upon a statement by Sharlene Herbert to Fulmore that the plaintiff was “written up,” this statement, if made, does not support his claim. The truth of the statement-that the plaintiff was disciplined-is undisputed, so it cannot be defamatory. While the plaintiff seeks an inference that Herbert must have made a statement defaming the plaintiff to Fulmore, he identifies no evidence supporting such conjecture, and Herbert expressly denied such. (See Herbert Decl. ¶ 9, ECF No. 29-2 at 4) (“The only communication that I had with any employee regarding this disciplinary action was to tell Fulmore that this complaint had been addressed.”); Barber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992) (holding that speculative testimony is not sufficient to create a genuine issue of material fact.) Similarly, to the extent the plaintiff separately argues that simply acknowledging that he had been written up was itself defamatory, he offers no support for that proposition. (Cf. Def.'s Reply at 8-9, ECF No. 8-9) (discussing the law and defense of qualified privilege).

The plaintiff also seeks to extrapolate the existence of a defamatory statement from General Manager Jerry McCabe's testimony that email communications may have been circulated about the plaintiff's termination. (See Pl.'s Mem. Opp'n Summ. J. at 11, ECF No. 41 at 11). However, read in context, McCabe's...