Williams v. Cash Am.

Reggie Mandell Williams, Plaintiff, v. Cash America and Roger Iverson, Defendants.

Civil Action No. 6:18-405-TMC-KFM

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

October 17, 2018

REPORT OF MAGISTRATE JUDGE

This matter is before the court on the defendants' motion to dismiss for failure to state a claim or, in the alternative, to compel arbitration (doc. 30). 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.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

I. PROCEDURAL HISTORY

The plaintiff filed a charge of discrimination against defendant Cash America on July 9, 2017 (doc. 1-1 at 4-5). The South Carolina Human Affairs Commission ("SCHAC") investigated the charge, issued a finding of no cause, and sent a notice of right to sue to the plaintiff on January 17, 2018 (doc. 1-4). The Equal Employment Opportunity Commission ("EEOC") adopted the findings of the SCHAC and issued a notice of right to sue to the plaintiff on February 16, 2018 (doc. 1-2).

The plaintiff, who is proceeding pro se, filed his initial complaint in this court on February 12, 2018, alleging he was "denied promotion three times" (doc. 1). He has since filed two additional complaints in order to bring the complaint into proper form (docs. 1-1, 1-3). In his most recent complaint, he alleges that he was terminated from employment and denied promotion three times because of his race and color in violation of Title VII of the Civil Rights Act of 1964, as amended (doc. 1-3 at 4-5). He names as defendants Cash America; Brain Brook, whom he identifies as "Region Manager"; and Roger Iverson, whom he identifies as "Market Manager" (doc. 1-3 at 2).

On May 9, 2018, defendants Cash America and Iverson filed a motion to dismiss for failure to state a claim or, in the alternative, to compel arbitration (doc. 30).¹ On May 10, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion dismiss and summary judgment procedures and the possible consequences if he failed to respond adequately to defendants' motion (doc. 32). When the plaintiff failed to file a timely response to the motion to dismiss, the undersigned issued an order on June 18, 2018, giving the plaintiff through July 9, 2018, to file a response to the motion to dismiss. On June 21, 2018, the plaintiff came to the office of the Clerk of Court and informed the Clerk that he intended for a document he filed on May 22, 2019, to be his response in opposition to the motion to dismiss (doc. 49). On June 28, 2018, the plaintiff filed a second response in opposition to the motion to dismiss (doc. 50). On July 5, 2018, the defendants filed a reply (doc. 53), and on July 23, 2018, the plaintiff filed a sur-reply (doc. 54).

II. APPLICABLE LAW AND ANALYSIS

A. Motion to Dismiss

1. Time-Barred Claims

The plaintiff's discrimination claims are alleged pursuant to Title VII (doc. 1-1 at 3), which requires that a claimant file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act or acts, or, if the alleged discrimination occurred in a "deferral state", within 300 days from the alleged discriminatory act or acts if the claimant initially institutes proceedings with the appropriate state agency. See 42 U.S.C. § 2000e-5(e). A claimant may in some circumstances include claims beyond this 300-dayperiod where the defendant's conduct is deemed to be a "continuing violation." However, under the applicable caselaw, separate and distinct acts of discrimination, as are alleged by the plaintiff here, are not considered as part of a "continuing violation." See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (finding that "discrete acts such as termination [and] failure to promote, . . . are easy to identify. Each incident of discrimination . . . constitutes a separate actionable 'unlawful employment practice,'" and prior discrete discriminatory acts that occurred prior to the 300-day time limit "are untimely filed and no longer actionable").

South Carolina is a deferral state, and the SCHAC is the appropriate state agency for purposes of initiating state proceedings. As set out above, the plaintiff filed a charge of discrimination against defendant Cash America on July 9, 2017 (doc. 1-1 at 4-5), the SCHAC issued a finding of no cause and sent a notice of right to sue to the plaintiff on January 17, 2018 (doc. 1-4), and the EEOC adopted the findings of the SCHAC and issued a notice of right to sue to the plaintiff on February 16, 2018 (doc. 1-2).

In the complaint received by the Clerk of Court on February 27, 2018, the plaintiff asserts that the allegedly discriminatory acts occurred in May 2015 (doc. 1-1 at 4). In the plaintiff's complaint that was submitted to the Clerk of Court on March 23, 2018, however, he alleges that the discriminatory conduct occurred on July 7, 2017 (doc. 1-3 at 4). The plaintiff offers no explanation for this alteration in date from May 2015 to July 2017. Nonetheless, the plaintiff's allegations related to any alleged discriminatory conduct that occurred more than 300 days prior to the filing of the administrative charge on July 9, 2017, should be dismissed as untimely.

2. Individual Liability Under Title VII

As set out above, the plaintiff has named as a defendant in this action Roger Iverson, whom he identifies as "Market Manager" (doc. 1-3 at 2). 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 F. App'x 366, 368 (4th Cir. 2010) ( "Title VII . . . [does] not provide forcauses of action against defendants in their individual capacities."). Consistent with Lissau, this court has reiterated that an individual supervisor is not liable under Title VII. See, e.g., Kelly v. QVC, C.A. No. 4:17-cv-2858-RBH-KDW, 2018 WL 2057392, at *2 (D.S.C. May 3, 2018) ("Plaintiff cannot maintain claims against Defendants . . . because they are individual employees of Defendant QVC, Plaintiff's employer."); Johnson v. Recleim LLC, C.A. No. 1:17-3317-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."), R&R adopted by 2018 WL 3222745 (D.S.C. July 2, 2018).

The plaintiff cannot cure the defects in his claims against defendant Iverson by mere amendment. See Goode v. Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619, 623 (4th Cir. 2015); see, e.g., Kelly, 2018 WL 2057392, at *3 n.6 (declining to automatically give plaintiff leave to amend complaint again individual defendants under Title VII as amendment would be futile) (citations omitted). Accordingly, the court declines to automatically give the plaintiff leave to amend and recommends that defendant Iverson's motion to dismiss be granted and that all claims against him be dismissed with prejudice. See Wolff v. Bee Healthy Medical Weight Loss Clinic, C.A. No. 3:17-cv-3339-CMC-SVH, 2018 WL 4691193, at *2 (D.S.C. Oct. 1, 2018) (dismissing Title VII claims against individual defendants with prejudice); Jefferies v. UNC Reg. Physicians Pediatrics, 320 F. Supp.3d 757, 760-62 (M.D.N.C. 2018) (granting defendant supervisor's motion to dismiss Title VII claims against him with prejudice pursuant to Lissau).

3. Failure to State a Claim

The defendants further argue that the plaintiff's complaint fails to state a claim upon which relief can be granted against defendant Cash America, and thus it should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). "The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F. Supp. 3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requiresonly a " 'short and plain statement of the claim showing 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.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "[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 Twombly, 550 U.S. at 555, 569). "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 quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).

As this court has recognized, "bare assertions devoid of further factual enhancement fail to constitute well-pleaded facts for Rule 12(b)(6) purposes." Alford v. Wang, Inc., 11 F. Supp.3d 584, 586 (D.S.C. 2014) (citation omitted). While a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), "courts may look to the requirements of a prima facie case as a guide in assessing the plausibility of plaintiff's claim for relief." Craft v. Fairfax Cty. Gov't, C.A. No. 1:16cv86 (JCC/MSN), 2016 WL 1643433, at...