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Salmon v. South Carolina Electric and Gas

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

May 4, 2015

Carl D. Salmon, Plaintiff,
South Carolina Electric and Gas, Defendant.


SHIVA V. HODGES, Magistrate Judge.

In this employment discrimination case, Carl D. Salmon ("Plaintiff") sues his former employer, South Carolina Electric and Gas ("Defendant"). Plaintiff brings causes of action for: (1) discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (2) retaliation under the ADEA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); and (3) defamation. [ECF No. 1-1 at 9-12]. This matter comes before the court on Defendant's motion to dismiss Plaintiff's retaliation claim. [ECF No. 5]. The motion having been fully briefed [ECF Nos. 9, 14], it is ripe for disposition.

All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Because the motion to dismiss is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court grant in part and deny in part Defendant's motion to dismiss.

I. Factual and Procedural Background

The heading of the second cause of action in Plaintiff's complaint states that it is for "Retaliation in Violation of Title VII and the ADEA." [ECF No. 1-1 at 10]. Defendant argues that Plaintiff's retaliation claim should be dismissed because: (1) the factual allegations of the complaint contain no allegations of protected activity under Title VII, and (2) Plaintiff has not exhausted a retaliation claim under the ADEA. [ECF No. 5 at 3-4]. Defendant attaches a copy of Plaintiff's charge of discrimination ("Charge") to its motion.[1] [ECF No. 5-1]. In the Charge, Plaintiff checked the boxes for age and retaliation and continuing action from November 20, 2013 to November 20, 2013. Id. Plaintiff wrote the following in the "Particulars" portion of the Charge:

I worked for the above employer from May 1981, most recently as a Senior Draftsman until I was terminated November 20, 2013. During my employment I was harassed and humiliated on a daily basis by my supervisor, Claude Portee. I was not allowed to take courses that similarly situated younger co-workers were allowed to take. I received disciplines for mistakes that younger employees who had the same issues did not receive write-ups for.
Portee encouraged older employees to retire and began hiring employees in their 20's. November 20, 2013 I was told by Portee he was not pleased with the quality of my work that "things were not working out" and I was discharged. I was replaced by a younger employee.
I believe I have been discriminated against because of my age 54, in violation of the Age Discrimination In Employment Act of 1967, as amended. I also believe I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964 in retaliation for making complaints to HR about my supervisor.


In his response to Defendant's motion, Plaintiff withdrew any claim of retaliation pursuant to Title VII. [ECF No. 9 at 4]. Plaintiff argues that the Charge properly identifies and exhausts his claim for retaliation in violation of the ADEA.

II. Discussion

A. Standards on Motion to Dismiss

Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction.[2] A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "a 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support" the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a ...

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