United States District Court, D. South Carolina, Charleston Division
Order Filed: October 29, 2014
For Janik Oroujian, Plaintiff: Jarrel L Wigger, LEAD ATTORNEY, Wigger Law Firm, North Charleston, SC.
For Delfin Group USA LLC, Defendant: Charles Harmon Crawford, III, LEAD ATTORNEY, Greenberg Traurig, Atlanta, GA; Keshia A McCrary, LEAD ATTORNEY, PRO HAC VICE, Greenberg Traurig, Atlanta, GA.
PATRICK MICHAEL DUFFY, United States District Judge.
This matter is before the court upon the magistrate judge's recommendation that defendant's motion to dismiss be granted. The record includes the report and recommendation of the United States Magistrate Judge made in accordance with this Court's Order of Reference and 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C..
The Court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). No objections have been filed to the magistrate judge's report.
A review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. For the reasons articulated by the magistrate judge, it is ordered that defendant's motion to dismiss plaintiff's retaliation claim under Title VII and § 1981 as set forth in the First and Second Causes of Action is DENIED. Defendant's motion to dismiss the remaining causes of action is GRANTED, and those claims are dismissed.
ORDERED, that the magistrate judge's report and recommendation is adopted as the order of this Court.
AND IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
This action has been filed by the Plaintiff asserting civil rights claims against the Defendant Delfin Group USA, LLC. This case is one of nine (9) separate cases filed against this same Defendant, all of which have been assigned to the undersigned United States Magistrate Judge.
The Defendant has filed a motion to dismiss Plaintiff's Amended Complaint on the grounds that Plaintiff has failed to set forth sufficient factual matter to state any plausible claim for relief. Plaintiff has filed a memorandum in opposition to the Defendant's motion, to which the Defendant has filed a reply. Defendant's motion is now before the Court for disposition.
Allegations of the Amended Complaint
Plaintiff, a former employee of the Defendant, alleges that he is of Armenian nationality, and asserts federal claims in his Amended Complaint pursuant to Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981, as well as a state law contract claim. Plaintiff
alleges that on or about December 2011, he and the Defendant " entered into a contract" whereby the Defendant employed him to work for a " an indefinite term" . Plaintiff alleges that he worked in the Defendant's shipping department, and was " efficient and effective in his work" . Plaintiff further alleges that the Defendant had a handbook (attached to the Amended Complaint as Exhibit A) that " created a contract" between Plaintiff and the Defendant. Plaintiff specifically alleges that the handbook " uses mandatory language creating a contractual agreement between the Plaintiff and the Defendant for employment", and did not contain a disclaimer that met the requirements of S.C. Code Ann. § 41-1-110. Plaintiff then goes on to set forth specific language from the handbook wherein Defendant states that all employment decisions will be based on job related merit without regard to race or national origin, that harassment based on any prohibited conduct is also prohibited, and that any violation of this policy " will be subject to disciplinary action resulting in immediate termination of employment" .
Plaintiff further alleges that the handbook has " mandatory language" setting forth various work rules and prohibitions, and quotes language from the handbook setting forth rules with regard to clothing, absences, solicitations, doctor visits, comp time, use of company property and equipment, and use of company software and computer equipment. Finally, Plaintiff quotes language from the handbook which provides that the Defendant " will not tolerate retaliation against any employee for making a complaint" regarding prohibited conduct. Plaintiff alleges that the " contract indicated he would be paid for working", and that he " performed his contractual obligations and despite the fact he was discriminated against" .
Plaintiff also alleges that John Gordon is the Defendant's President and " alter-ego" of the Defendant, and that during his period of employment Gordon " demeaned" him " with a number of racial comments", which Plaintiff alleges were " severe, pervasive and happened almost daily" . Plaintiff further alleges that Gordon demonstrated a pattern of discriminatory treatment toward Armenians " by making disparaging remarks, reassigning Armenians to menial tasks, and laying them off in disproportionate numbers" . Plaintiff alleges he complained to Human Resources about Gordon's racial comments, following which Gordon not only continued his racial comments towards the Plaintiff and other Armenians, but " made a pointed effort to continue his racial comments and began having the Plaintiff's supervisors issue him pretextural write-ups" . Plaintiff further alleges that Gordon tried to have him sign a letter stating that he would not like a raise, but that Plaintiff refused to sign the letter and complained to the Defendant's manager (someone named Marcus) about Gordon's discriminatory conduct. Plaintiff alleges that during this period of time Gordon was also making racial comments to others regarding Armenians, " set in place motions to have Armenians terminated", and that due to Plaintiff's complaints of discrimination he was retaliated against and was " constantly subjected to poor treatment, which created a hostile work environment" . Plaintiff alleges that he was discriminated against on the basis of his color, race and national origin (Armenian), and in retaliation for his reporting of discrimination, with the Defendant ultimately wrongfully terminating him on or about December 26, 2012.
In his First Cause of Action, Plaintiff alleges that he was retaliated against and terminated based on his nationality, race and color in violation of Title VII of the Civil Rights Act. Plaintiff also alleges that
he was subjected to a hostile work environment in violation of Title VII. Plaintiff alleges that his nationality, race and color were determining factors in the retaliation and disparate treatment he received, and that but for his nationality, race and color, he would not have been terminated.
In his Second Cause of Action, Plaintiff alleges that he was retaliated against and terminated based on his nationality, race and color in violation of 42 U.S.C. § 1981. Plaintiff also asserts a claim under § 1981 against the Defendant for " allowing a hostile work ...