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Seago v. Central Midlands Council of Government

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

January 9, 2017

Sharon L. Seago, Plaintiff
v.
Central Midlands Council of Government, And Benjamin Mauldin, in his official capacity, Defendants.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE, Senior United States District Judge

         Through this action, Plaintiff Sharon Seago (“Plaintiff”) seeks recovery from her former employer, Central Midlands Council of Government (“CMCOG”) and Benjamin Mauldin (“Mauldin”) (collectively “Defendants”), for alleged employment discrimination and retaliation pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., and for defamation against CMOG (third cause of action), violation of the South Carolina Whistleblower Act (fourth cause of action), defamation against Mauldin (fifth cause of action) and civil conspiracy against Mauldin (sixth cause of action). ECF. No. 1-3, Am. Compl. (as removed from state court). The matter is before the court on Defendants' Motion to Dismiss Plaintiff's third, fourth, fifth, and sixth causes of action and to dismiss Mauldin as a party, pursuant to Federal Rule of Civil Procedure 12(c). ECF No. 7.

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), (g), D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation (“Report”). On November 3, 2016, the Magistrate Judge issued a Report recommending that Defendants' motion to dismiss be denied. ECF No. 19. The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and the serious consequences if they failed to do so. On December 2, 2016, after being granted an extension of time in which to file objections, Defendants filed objections to the Report. ECF No. 23. This matter is now ripe for resolution.

         I. Standard

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, 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.'”) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         II. Discussion

         Defendants present several objections to the Report, arguing that the Magistrate Judge's findings regarding the Whistleblower Act and civil conspiracy claims were erroneous and those claims should be dismissed. The objections are discussed below in turn.

         a. Defamation claims

         According to Defendants' objections to the Report, the parties have resolved the motion as to the defamation claims: “Plaintiff will dismiss the defamation claim against Mr. Mauldin in his individual capacity and Defendants will withdraw the motion to dismiss Plaintiff's defamation claim against the CMCOG.” ECF No. 23. Therefore, the defamation claims will not be addressed further in this Order, as Defendants' motion as to the defamation claim against CMCOG has been withdrawn. Plaintiff may file a stipulation of dismissal as to the defamation claim against Mauldin.

         b. Whistleblower Claim against CMCOG

         In their motion to dismiss, Defendants argue that Plaintiff's claim under the South Carolina Whistleblower Act should be dismissed because Plaintiff failed to plead that she has exhausted all available administrative remedies and shown that previous proceedings have resulted in a finding that she would not have been disciplined but for her report of alleged wrongdoing. See S.C. Code § 8-27-30(A) (“No action may be brought under this chapter unless (1) the employee has exhausted all available grievance or other administrative remedies; and (2) any previous proceedings have resulted in a finding that the employee would not have been disciplined but for the reporting of alleged wrongdoing.”). The Magistrate Judge concluded that Plaintiff's Whistleblower Act claim should not be dismissed because Plaintiff is not required to plead the exhaustion requirement as set forth in the Act. ECF No. 19 at 6. CMCOG objects, arguing that the language of the Act and Federal Rules of Civil Procedure require Plaintiff to plead that she has satisfied the exhaustion requirement. ECF No. 23 at 4. The court has considered the record, the applicable law, the Report, and the objections de novo, and declines to adopt the Report's recommendation that the Whistleblower Act claim not be dismissed.

         Federal Rule of Civil Procedure 8(a)(2) “requires only a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” McCleary-Evans v. Maryland Dep't of Transp., 780 F.3d 582, 585 (4th Cir. 2005) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rule 9(c) requires a party to plead conditions precedent, at least in a general manner. Fed.R.Civ.P. 9(c). Plaintiff has failed to allege that she satisfied the exhaustion prerequisites in her Amended Complaint. The Whistleblower statute requires that “no action may be brought under this chapter unless” the statutory prerequisites are met. S.C. Code § 8-27-30(A).

         Plaintiff's failure to allege in her Amended Complaint that she has met the conditions precedent, or even that “grievance or other administrative remedies” were unavailable, means that she has failed to state a claim sufficient for relief under the Act.[1] See Jones v. Richland Cty., No. 3:16-0466, 2016 WL 5402862, at *2 (D.S.C. Sept. 28, 2016) (granting motion to dismiss Whistleblower Act claim where “Plaintiff has failed to meet the requirements of section 8-27-30(A) by not alleging or providing any facts” to satisfy the statutory prerequisites in the Act.); Giraldo v. City of Columbia, 47 F.Supp.3d 430, 434 (D.S.C. Sept. 18, 2014) (granting summary judgment when “Plaintiff failed to meet the prerequisite set forth in S.C. Code Ann. § 8-27-30(A) to bring a whistleblower action against the City.”); Burdine v. Greenville Technical College, No. 6:08-cv-03764, 2010 WL 5211544, at *13 (D.S.C. Dec. 16, 2010) (granting summary judgment when the plaintiff “failed to produce evidence establishing exhaustion of all available remedies, ” “failed to present evidence that any previous proceedings resulted in a finding that she would not have been disciplined but for the reporting of alleged wrongdoing as required by the Whistleblower Act, ” and therefore “failed to plead or produce any evidence of actionable retaliation.”).

         The Magistrate Judge noted that Defendants had “not identified any available grievance process or other administrative remedy available to [Plaintiff.]” ECF No. 19 at 7. However, because the exhaustion prerequisites are not an affirmative defense, but statutory requirements placed on Plaintiff, it was not Defendants' burden to plead available administrative remedies. The burden remains on Plaintiff to plead the requirements of the statute, which she has failed to do or even offer to do. See Burdine, 2010 WL 5211544, at *13 (“Plaintiff . . . has not satisfied the fundamental requirements necessary to bring a claim.”); Cf. Plyler v. U.S., 900 F.2d 41, 42 (4th Cir. 1990) (dismissing claim where statute stated that “an action ...


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