United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Abraham Colleton ("Colleton" or
"Plaintiff"), brings this action against his former
employer, Charleston Water System ("CWS"), and CWS
employees Cliff Brown, Allen Clum, Jim Meeks, and Dana
Ambrose ("Individual Defendants"). Against CWS,
Plaintiff brings claims of discrimination and retaliation due
to his race pursuant to Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. Â§Â§ 2000e, et
seq. He also brings state-law claims of defamation and
negligent supervision, as well as a cause of action for
"Discovery/Attorney's Fees, Suit Money, and
Cost." Second Am. Compl., ECF No. 39 ("SAC").
This matter is before the court pursuant to 28 U.S.C. Â§
636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report
and Recommendation on Defendants' Motion to Dismiss and
Renewed Motion to Dismiss. ECF Nos. 28, 45. The court has
considered Defendants' Motions and Memoranda; as well as
Plaintiff's response to Defendant's original Motion
to Dismiss, ECF No. 32, and Defendant CWS's Reply to that
opposition, ECF No. 34. Having reviewed the parties'
submissions and applicable law, the undersigned recommends
Defendants' Motions be granted, dismissing all
but the as-yet-unchallenged Title VII discrimination claim
against CWS and dismissing all claims against all Individual
was employed as a truck driver for CWS from June 2002 through
January 15, 2015. SAC Â¶Â¶ 6, 14, 30, 34. Plaintiff's SAC
focuses principally on events of January 14 and 15, 2015 that
culminated in his termination. See SAC Â¶Â¶ 15-34.
According to Plaintiff he was "forced into and subjected
to a surprise meeting with Defendant Clum and Defendant
Brown" at 6:00 a.m. on January 14, 2015. Plaintiff
states Clum advised him not to stop at McDonald's for
breakfast, at a truck stop, or at the "rest area on
break or go to the restroom [or] stop for any
reason'" while operating a CWS truck. SAC Â¶Â¶ 20-21
(quotation attributed to Clum). At around 10:30 a.m. that
same day, Plaintiff stopped to use the restroom at a
Hardee's, parking the truck in a "safe vacant
parking lot." Id. Â¶ 23. Plaintiff also made an
"emergency restroom stop" at a rest area that was
convenient and safe for trucks. Id. Â¶ 25.
January 15, 2015, Plaintiff states he was using the restroom
from "11:33 a.m. to 11:49 a.m." when CWS plant
secretary, Defendant Ambrose saw the CWS truck Plaintiff was
driving parked at a rest stop and sent a photograph of it to
Defendant Clum. Plaintiff avers Defendants Clum and Brown
then picked up the CWS truck Plaintiff had been driving while
Plaintiff was still using the restroom, leaving him stranded.
Id. Â¶Â¶ 26-29. Plaintiff avers Defendants Clum and
Brown fired him during a telephone call prior to his 2:04
p.m. arrival at the CWS facility that same day. Id.
Â¶ 30. Upon arrival at the facility, Plaintiff met with
Defendants Clum and Brown in a conference room, where he was
"subjected to a hostile and retaliatory meeting, "
and Defendant Clum was "obnoxious and frightening"
to Plaintiff, becoming "verbally violent and ma[king]
multiple attempts in provoking the Plaintiff to become
violent." Id. Â¶Â¶ 30-32. Defendant Clum
"again fired Plaintiff" and escorted him to his car
without permitting him to collect his personal items."
SAC Â¶ 34.
filing a Charge of Discrimination with the U.S. Equal
Employment Opportunity Commission ("EEOC") and
receiving a "right to sue" letter from the EEOC,
see ECF Nos. 28-2, 28-3, Plaintiff filed this action
pro se, ECF No. 1. Shortly thereafter, counsel appeared on
Plaintiff's behalf and, with leave of court, filed an
Amended Complaint. ECF Nos. 22, 23, 26. CWS, the only
Defendant at that time, filed responsive pleadings, including
a Motion to Dismiss. ECF Nos. 28, 29. After briefing was
completed as to that Motion to Dismiss, see ECF Nos.
32, 34, Plaintiff was permitted to file his SAC, which named
the Individual Defendants, ECF No. 39. CWS and the Individual
Defendants filed responsive pleadings to the SAC. ECF Nos.
45, 46. In their Renewed Motion to Dismiss Defendants seek
dismissal of all claims against the Individual Defendants and
reiterate the challenges to all claims against CWS other than
the Title VII discrimination claim. ECF No. 45. Plaintiff
filed no response to the Renewed Motion to Dismiss. To the
extent they are responsive, the court will consider
Plaintiff's arguments advanced against the initial Motion
Standard of review
move to dismiss Plaintiff's Title VII retaliation claim
pursuant to Federal Rule of Civil Procedure 12(b)(1),
alleging the court lacks jurisdiction because Plaintiff
failed to exhaust administrative remedies as to his
retaliation claim. A plaintiff always bears the burden of
demonstrating that subject matter jurisdiction properly
exists in federal court. See Evans v. B.F. Perkins Co., a
Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th
Cir. 1999). When a defendant challenges subject-matter
jurisdiction pursuant to a Rule 12(b)(1) motion to dismiss,
the court may regard the pleadings as mere evidence on the
issue and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.
Velasco v. Gov't of Indonesia, 370 F.3d 392, 398
(4th Cir. 2004) (citing cases).
also seek Rule 12(b)(6) dismissal of all of Plaintiff's
claims brought against the Individual Defendants and the
claims of defamation, negligent supervision, and
attorneys' fees brought against CWS. Fed.R.Civ.P.
12(b)(6). A plaintiff's complaint should set forth
"a short and plain statement... showing that the pleader
is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 8
"does not require detailed factual allegations, '
but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To show that the plaintiff is "entitled to
relief, " the complaint must provide "more than
labels and conclusions, " and "a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555.
motion to dismiss for failure to state a claim should not be
granted unless it appears certain that the plaintiff can
prove no set of facts that would support his claim and would
entitle him to relief. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss, the court should
"accept as true all well-pleaded allegations and should
view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). When ruling on a motion to
dismiss, the court "must accept as true all of the
factual allegations contained in the complaint."
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nonetheless, the court need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments."
E. Shore Mkts., Inc. v. J.D. Assocs., Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). The court
need not accept legal conclusions couched as factual
allegations, Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009), or "legal conclusions drawn from the
facts." Monroe v. City of Charlottesville, 579
F.3d 380, 385-86 (4th Cir. 2009) (internal quotation
the usual rule is that a court "may not consider any
documents that are outside of the complaint, or not expressly
incorporated therein, " Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), a
court may properly consider documents "attached
or incorporated into the complaint, " as well as
documents attached to the defendant's motion, "so
long as they are integral to the complaint and
authentic." Philips v. Pitt Cnty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see
also Anand v. Ocwen Loan Servicing, LLC, 754
F.3d 195, 198 (4th Cir. 2014); E.I. du Pont de Nemours &
Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.
Claims against all Individual Defendants
added Defendants Brown, Clum, Meeks, and Ambrose as
Defendants, identifying them all as "Truck Driver[s] and
employee[s], at the [CWS's] facility located in
Charleston, South Carolina." Id. Â¶Â¶ 7-10. The
Caption of the SAC indicates the Individual Defendants are
sued "Both Personally and Individually." Prior
iterations of Plaintiff's Complaint identified Defendant
Brown as Plaintiff's supervisor; Defendant Clum as the
plant manager (Compl. Â¶ 2); Defendant Ambrose as the plant
secretary (Am. Compl. Â¶ 21); and Defendant Meeks as having
been present at a January 2015 meeting (Compl. Â¶ 5).
move to dismiss the Individual Defendants from all claims.
Renewed Mot. 3. Plaintiff filed no response to
Defendant's Renewed Motion to Dismiss. The original
Motion to Dismiss concerned the Amended Complaint, in which
CWS was the sole Defendant. Accordingly, Plaintiff's
response to the original Motion does not address this portion
of Defendants' Renewed Motion in any manner. As Plaintiff
has declined to challenge Defendants' argument concerning
dismissal of all claims as to the Individual Defendants, he
has abandoned all claims against them. See
Ferdinand-Davenport v. Children's Guild, 742
F.Supp.2d 772, 777 (D. Md. 2010) (citation omitted).
Accordingly, it is recommended this portion of
Defendants' Renewed Motion be granted and
Defendants Brown, Clum, Meeks, and Ambrose be dismissed from
Claims against CWS
SAC contains two Title VII claims. Defendants do not
challenge the first cause of action for "Race
Discrimination in Violation of Title VII" at this time.
They argue the second cause of action for "Retaliation
in Violation of Title VII" should be dismissed for
failure to exhaust administrative remedies. ECF No. 28-1.
VII prohibits an employer from retaliating against an
employee for opposing unlawful discrimination or for
participating in Title VII processes. 42 U.S.C. Â§ 2000e-3(a).
Before filing suit under Title VII, however, "a
plaintiff must exhaust her administrative remedies by
bringing a charge with the EEOC." Smith v. First
Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000);
see also 42 U.S.C. Â§ 2000e-5(f)(1). Exhausting the
administrative remedies is a statutory prerequisite to
invoking the jurisdiction of this court. Jones v. Calvert
Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009)
("[A] failure by the plaintiff to exhaust administrative
remedies concerning a Title VII claim deprives the federal
courts of subject matter jurisdiction over the claim.").
Fourth Circuit Court of Appeals has considered the goals of
Congress in enacting the Title VII exhaustion requirement.
See Chacko v. Patuxent Inst., 429 F.3d 505,
510 (4th Cir. 2005). The court has explained that, rather
than "a formality to be rushed through so that an
individual can quickly file his subsequent lawsuit, "
Congress intended "the exhaustion requirement to serve
the primary purposes of notice and conciliation."
Id. By notifying an employer of the alleged
discrimination through the EEOC charge, the employer may
investigate and possibly resolve the alleged discriminatory
actions on its own. Id. For these and other reasons,
"the administrative process is an integral part of the
Title VII enforcement scheme." Id. Once a
plaintiff files an administrative charge, that charge
"plays a substantial role in focusing the formal
litigation it precedes." Chacko, 429 F.3d at
509; see also Bryant v. Bell Atl. Md.,
Inc., 288 F.3d 124, 132 (4th Cir. 2002) ("The EEOC
charge defines the scope of the plaintiff's right to
institute a civil suit.").
Amended Charge is dated January 20, 2015, and is completed on
an EEOC Form 5. ECF No. 28-2. The Form 5 Charge of
Discrimination requires claimants to "Check appropriate
box(es)" indicating the bases of their discrimination
claims. The charge form contains "check boxes" for
the following: race, color, sex, religion, national origin,
retaliation, age, disability, genetic information, and other.
The form also requires claimants to include the earliest and
latest dates on which the complained-of discrimination took
place. The claimant can also check a box for a
Amended Charge, Plaintiff checked the box indicating his
charge of discrimination was based upon race and age.
Id. Plaintiff did not check the box
indicating he suffered retaliation. He indicates the
discrimination took place on January 15, 2015 at the
"earliest" and "latest." He did not check
the "continuing action" box. Id. ...