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Colleton v. Charleston Water System

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

March 25, 2016

Abraham Colleton, Plaintiff,
Charleston Water System, Cliff Brown, Allen Clum, Jim Meeks, and Dana Ambrose both personally and individually, Defendants.


          RICHARD MARK GERGEL, District Judge.

         This 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.

         I. Background

         CWS 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.)

         After 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.

         After 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 Recommendation.

         II. Legal Standard

         The 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).

         Rule 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.

         To 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.

         III. Analysis

         Currently 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.

         A. Claims Against Individual Defendants

         Plaintiff 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.

         Most of 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."[1] (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.

         Defendants' 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[2]) 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, they ...

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