United States District Court, D. South Carolina, Charleston Division
RICHARD MARK GERGEL, District Judge.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending that the Court grant
Defendant Charleston Water System's ("CWS")
motion to dismiss (Dkt. No. 28) and Defendants' motion to
dismiss (Dkt. No. 45). For the below reasons, the Court
adopts the Report and Recommendation in part, denies
Defendant CWS's motion to dismiss (Dkt. No. 28) as moot,
grants Defendants' motion to dismiss (Dkt. No. 45) in
part and denies it in part, dismisses Defendants Cliff Brown,
Allan Clum (name misspelled as Allen in the case caption),
Jim Meeks, and Dana Ambrose from this action, and recommits
this matter to the Magistrate Judge for further proceedings.
employed Plaintiff Abraham Colleton as a truck driver from
June 2002 to January 15, 2015. (R. & R. 2, Feb. 29, 2016,
Dkt. No. 52.) Plaintiff alleges that on January 14, 2015,
Defendants Cliff Brown, Plaintiff's supervisor, Allan
Clum, the CWS plant manager, instructed him not to stop for
any reason, including restroom breaks, while operating a CWS
truck. ( Id. ) The following day, Plaintiff
"stopped for an emergency restroom stop... after
defecating in his underwear" at a Shell gasoline station
when Defendant Dana Ambrose, the CWS plant secretary, saw his
truck parked at the station and sent a photograph of it to
Mr. Clum. (2d Am. Compl. ¶¶ 24-29, Nov. 25, 2015, Dkt. No.
39.) Plaintiff avers that Mr. Clum and Mr. Brown then
retrieved the CWS truck Plaintiff had been driving while he
was still using the restroom, leaving him stranded, and that
they fired him later that day. ( Id. ¶ 30.)
Plaintiff alleges that Mr. Clum and Mr. Brown often directed
racial slurs at him, that the "no restroom stops"
policy was enforced against him but not against white truck
drivers, and that he was terminated in retaliation for
participation in an activity protected under Title VII of the
Civil Rights Act of 1964 ("Title VII"). (
Id. ¶¶ 19, 38-42, 48.)
filing a discrimination charge with the U.S. Equal Employment
Opportunity Commission ("EEOC") and receiving a
"right to sue" letter, Plaintiff filed the present
action pro se. (R. & R. 3.) Shortly thereafter,
counsel for Plaintiff appeared and filed an amended
complaint. ( Id. ) The amended complaint asserted
two Title VII claims: race discrimination and retaliation. (
Id. ) It also asserted state-law claims of
defamation and negligent supervision. (Am. Compl. ¶¶ 43-55.)
CWS, the only Defendant at that time, filed responsive
pleadings and a motion to dismiss all claims except for the
claim of Title VII race discrimination.
briefing completed on the motion to dismiss, Plaintiff filed
a second amended complaint, which added the individual
Defendants. (R. & R. 3.) It is unclear which causes of action
are asserted against which individual Defendants, except that
there appear to be no claims against Defendant Jim Meeks at
all, who is never mentioned in the second amended
complaint's factual allegations or asserted causes of
action. ( See generally 2d Am. Compl.) CWS and the
individual Defendants filed responsive pleadings to the
second amended complaint and a motion to dismiss. (
Id. ) Plaintiff filed no response to the second
motion to dismiss. On February 29, 2016, the Magistrate Judge
recommended that Defendants' motions for dismissal be
granted. Plaintiff filed no objections to the Report and
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation, " see Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the
recommendation of the Magistrate Judge, Camby v.
Davis, 718 F.2d 198 (4th Cir. 1983).
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses, ... Our inquiry then
is limited to whether the allegations constitute a short and
plain statement of the claim showing that the pleader is
entitled to relief.'" Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation
marks and citation omitted). In a Rule 12(b)(6) motion, the
Court is obligated to "assume the truth of all facts
alleged in the complaint and the existence of any fact that
can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, while the Court must accept the facts in a light
most favorable to the non-moving party, it "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
before the Court are two motions to dismiss: CWS's motion
to dismiss the first amended complaint (Dkt. No. 28) and all
Defendants' motion to dismiss the second amended
complaint (Dkt. No. 45). Since the first amended complaint
has been superseded by the second amended complaint, and
since all arguments in the memorandum in support of CWS's
motion to dismiss the first amended complaint are adopted by
reference in the memorandum in support of Defendants'
motion to dismiss the second amended complaint, the Court
denies CWS's motion to dismiss the first amended
complaint as moot. Defendants' motion to dismiss the
second amended complaint, which includes arguments
incorporated from CWS's motion to dismiss, is granted in
part and denied in part as provided below.
Claims Against Individual Defendants
never responded to the motion to dismiss the second amended
complaint, or to the Report and Recommendation recommending
that the motion be granted. The Magistrate Judge assumed that
Plaintiff meant for his arguments in response to the motion
to dismiss the first amended complaint to apply to the motion
to dismiss the second amended complaint as to Defendant CWS
(whose arguments were simply adopted by reference from
previous motion). However, that response did not address any
arguments specific to the individual Defendants, as they were
not then parties to this action. Thus, Plaintiff has never
responded to the individual Defendants. The Magistrate Judge
recommends dismissal of the individual Defendants from this
action because Plaintiff has declined to challenge their
arguments in favor of dismissal. (R. & R. 5-6.) With a
partial exception regarding the defamation claim against Mr.
Clum, the Court agrees that the individual Defendants should
be dismissed from this action.
Plaintiff's claims against the individual Defendants are
fatally defective on their face. Individual employees are not
proper defendants for Title VII claims, Lissau v. S. Food
Serv., Inc., 159 F.3d 177, 178 (4th Cir. 1998), or for a
negligent supervision claim, see Degenhart v. Knights of
Columbus, 420 S.E.2d 495, 496 (S.C. 1992) (regarding
employees acting outside the scope of their duties);
Restatement (Second) of Agency § 213 (1958) (regarding
employees acting within the scope of their duties). Only the
defamation claim can plausibly name individual Defendants.
Plaintiff alleges that he was defamed when Mr. Clum described
him as an "incompetent nigga" and asked, "when
are you going to retire." (2d Am. Compl. ¶ 48.)
"In order to prove defamation, the plaintiff must show
(1) a false and defamatory statement was made; (2) the
unprivileged publication was made to a third party; (3) the
publisher was at fault; and (4) either actionability of the
statement irrespective of special harm or the existence of
special harm caused by the publication." Erickson v.
Jones St. Publishers, L.L.C., 629 S.E.2d 653, 664 (S.C.
2006). Defendants deny that Mr. Clum made that statement.
(Answer ¶ 50, Dec. 8, 2015, Dkt. No. 46.) But for purposes of
a motion to dismiss, the Court assumes the truth of the
allegation and in moving for dismissal Defendants argue that
the defamatory comments complained of would be protected by a
qualified privilege because they concerned Plaintiff's
job performance and occurred between a manager and a
supervisor "in good faith and in the usual course of
business." (Mem. Mot. Dismiss 5, Dec. 8, 2015, Dkt. 45-1
(quoting Murray v. Holman, 542 S.E.2d 743, 749 (S.C.
Ct. App. 2001)).) "A communication made in good faith on
any subject matter in which the person communicating has an
interest or duty is qualifiedly privileged if made to a
person with a corresponding interest or duty even though it
contains matter which, without this privilege, would be
actionable." Murray, 542 S.E.2d at 749.
claim of privilege goes to the publication
element-"unprivileged publication"-and to
actionability element. The alleged statement
"incompetent nigga" is defamatory per se
-but that only means no extrinsic evidence is required to
prove the defamatory nature of the statement. SeeHoltzscheiter v. Thomson Newspapers, Inc., 506
S.E.2d 497, 501 (S.C. 1998). Statements are not actionable
per se simply because they are defamatory per
se. In South Carolina, slander (Plaintiff does not
allege written publication) is actionable per se
"only if it charges the plaintiff with one of five types
of acts or characteristics: (1) commission of a crime of
moral turpitude; (2) contraction of a loathsome disease; (3)
adultery; (4) unchastity; or (5) unfitness in one's
business or profession." Id. at 502. Plaintiff
alleges that the statement charges "unfitness in
one's business or profession" and therefore is
actionable per se. Certainly, it does charge that,
but Defendants counter that, as Plaintiff's supervisors,