United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
This action was filed by the Plaintiff, pro se, alleging discrimination by the Defendant (her employer) based on her age, race, and a disability. The Defendant filed a motion to dismiss on October 5, 2015 pursuant to Rule 12, Fed.R.Civ.P., asserting that Plaintiff has failed to plead or allege exhaustion of administrative remedies, as well as that she has failed to set forth sufficient factual allegations to state a claim.
As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on October 8, 2015, advising Plaintiff of the importance of a dispositive motion and of the need for her to file an adequate response. Plaintiff was specifically advised that if she failed to respond adequately, the Defendant's motion may be granted, thereby ending her case. Plaintiff thereafter filed a response in opposition on December 22, 2015 (docketed as a motion to amend/correct complaint), to which the Defendant filed a reply memorandum on January 8, 2016.
Defendant's motion is now before the Court for disposition.
Allegations of the Complaint
Plaintiff alleges in her Complaint that she was injured on the job on August 24, 2010 when she fell down some stairs. Plaintiff alleges that at that time she was employed by the Defendant as a Patient Care Assistant.
Plaintiff alleges that as a result of this fall in August 2010, she underwent cervical spine surgery on March 28, 2013. Plaintiff further alleges that during that time she "was subjected to intimidation and disparate terms and conditions from Annelle Orr (white) the Branch Manager at the time". Plaintiff does not indicate in this paragraph of her Complaint the nature of the intimidation or disparate terms and conditions of employment to which she was being subjected. Complaint, ¶ 1. In any event, Plaintiff apparently remained out of work following her surgery, as she alleges that she was released by her surgeon (Brian Cuddy) to return to work on light duty status on July 28, 2013, at which time she accepted an offer for an office assistant position. Plaintiff alleges that Dr. Cuddy had restricted her from performing any repetitive tasks. Id., ¶ 2. Plaintiff thereafter returned to work on August 12, 2013, but alleges she was unable to perform the duties assigned to her of shredding and packing gloves due to the repetitive nature of this work and resulting pain in her neck and shoulders. Id., ¶ 3.
Plaintiff alleges that she complained to her branch manager, Lyn Small, as well as to Dr. Cuddy, who advised her to stay out of work until her follow-up appointment with him, which was scheduled for September 5, 2013. However, Plaintiff alleges that the Defendant's attorney (Brittney Lozanne) contacted Dr. Cuddy's assistant on August 16, 2013 and said Plaintiff was "playing games", as a result of which Dr. Cuddy removed all of Plaintiff's restrictions although he did continue her on part-time status until September 2, 2013. Id., ¶ ¶ 4-6.
Plaintiff alleges that she returned to work on August 22, 2013, but that shortly thereafter the Defendant brought in a "younger, white, non-disabled" employee (Jessica Staley) from "the field". Plaintiff complains that Staley performed telephone sedentary work assignments that Plaintiff could have been assigned to meet her light duty restrictions, and that Staley was also assigned an office space, while she [Plaintiff] was assigned the more physically demanding tasks of cleaning bathrooms, vacuuming, shredding, taking out trash, and washing dishes. Additionally, Plaintiff alleges that she was only allowed to use the kitchen area or copy room, and opines that the Defendant was attempting to force her to quit. Id., ¶ ¶ 7-8.
Plaintiff alleges that on August 27, 2013 she complained to her surgeon about increased pain, following which she was referred to a pain management doctor. However, Plaintiff alleges that the Defendant's workers compensation insurance rejected Dr. Cuddy's request for a referral after Lozanne said "passing [her] off to pain management" would not help Plaintiff reach maximum medical improvement. Id., ¶ 9.
Plaintiff alleges that on September 9, 2013 she complained to Barbara Crook (white), the Defendant's Quality Assurance Manager, about being assigned to the more physically demanding jobs, but that Crook told her that was all the Defendant had for her to do and that she was not being discriminated against. Plaintiff alleges that she was subsequently offered assignments in the field with patients on September 10, 2013, but that she could not accept any such cases until she had been cleared by DHEC to assure that she did not have tuberculosis. Plaintiff alleges that by the time she was cleared to work by DHEC on September 23, 2013, she had had another appointment with Dr. Cuddy, who had placed her back on restrictions and part-time status. Id., ¶ ¶ 10-12.
Plaintiff alleges that on September 23, 2013 she was "subjected to constant criticism and extremely hostile treatment" by Orr, who by that time was the Defendant's Customer Service Supervisor. Plaintiff alleges that when she complained to Branch Manager Lyn Small (white) about Orr and the pain she was experiencing from having to "shred all day", Small recommended that Plaintiff work "for an hour each day" or she could go home, although Small "recanted" after Plaintiff agreed to leave and Small had Plaintiff do a few faxes for her. Plaintiff further complains that even after Staley left around the end of November 2013, she was still not allowed to utilize the empty office space, and continued to be assigned to shredding duties, which intensified her pain. Id., ¶ ¶ 13-15.
Plaintiff alleges that on December 24, 2013, while Orr was out on vacation, Small asked her if she had tried finding other work. Small also told Plaintiff that she was resigning and that her last day was December 30, 2013, but that Plaintiff was "alright while she was still there". However, on December 31, 2013 (after Small had left), Plaintiff alleges that Orr attempted to reduce her hours and "frequently tried to get me out of the office, against my doctor's restrictions". Plaintiff alleges that she complained to the Defendant's Executive Director, Kathy Dzuirus (white), on January 23, 2014, but "got no response and no corrective actions was taken". Id., ¶ ¶ 16-18.
Plaintiff alleges that on January 30, 2014, the new Branch Manager, Tania Kerns (white), had her discard some boxes of brochures Orr had previously had Plaintiff pull from the filing cabinets, but that when Orr found out Plaintiff had discarded some new brochures she "became hostile towards me, ranting and raging" about how much the brochures had cost the company and telling Plaintiff to get them out of the trash. Plaintiff alleges that Kerns told Plaintiff she would assist her in getting the new brochures out of the trash, but Plaintiff alleges that Orr deliberately left new brochures unpackaged on top of the boxes of the discontinued brochures to "stir up confusion and to confront me in hopes that I would react to her hostilely so she could have fired me or I would quit". Id., ¶ ¶ 19-21.
Plaintiff alleges that after the new brochures were retrieved from the trash, she asked to meet with Kerns and the new Customer Service Supervisor, Jennifer Shelton (white). Plaintiff alleges that Kerns and Shelton told her that they had a letter from their attorney informing them that Plaintiff had been released from light duty, and they wanted her to work two cases in the field with patients, one being a blind male. Plaintiff alleges that she told them she was restricted to lifting ten pounds and about her concerns due to what had happened to her on May 31, 2012 when she was under light duty restrictions, but that she was nonetheless sent to a patient who, Plaintiff was advised, only needed her to encourage and sit with. However, Plaintiff alleges that this patient depended on Plaintiff to help her in and out of the shower, which worsened her symptoms due to the patient bearing her weight onto the Plaintiff. Id., ¶ ¶ 22-23.
Plaintiff alleges that she asked to see a copy of the letter from the attorney stating that she had been released from light duty as well as a copy of the cases she was being assigned so that she could submit them to her attorney and physician for review before accepting these cases, since all of her treating physicians had advised her not to work with patients with her restrictions. However, Plaintiff alleges that Orr interrupted the meeting by yelling into her ear "take it or leave it" and making "inflammatory statements", following which Plaintiff alleges she was denied the opportunity to speak. Plaintiff alleges that she complained about this conduct to the Defendant's Human Resource Manager, Craig White, on January 31, 2014, but "got no response". Plaintiff alleges that she was thereafter terminated ...