United States District Court, D. South Carolina, Charleston Division
Frederick R. Fortner Plaintiff,
College of Charleston, Warren Wurscher, and John A. Cordray, Defendants.
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Report and Recommendation
("R. & R, ") of the Magistrate Judge
recommending that the Court grant Defendants College of
Charleston and John A. Cordray's motion for partial
dismissal. This Court adopts the R. & R. as the order of
the court and dismisses all claims against the College of
Charleston and John A. Cordray.
R. Fortner ("Plaintiff) filed this action in November
2015. (Dkt. No. 1.) In February 2016, Plaintiff filed an
amended complaint alleging that he was the victim of
discrimination, was subjected to a hostile work environment,
and was denied a promotion in retaliation for his complaints
about the hostile work environment. (Dkt. No. 13.) The
amended complaint contained 1) hostile work environment
claims against all defendants under 42 U.S.C. § 1981 and
42 U.S.C. § 1983; 2) race discrimination claims against
all defendants under 42 U.S.C. § 1981 and 42 U.S.C.
§ 1983; and 3) retaliation claims against the College of
Charleston under Title VII, 42 U.S.C. § 1981 and 42
U.S.C. § 1983.
March 2016, Defendants College of Charleston and John A.
Cordray filed a motion for partial dismissal based on the
doctrine of sovereign immunity and Rule 12(b)(6). (Dkt. No.
17.) Plaintiff filed a response to the motion to dismiss in
April 2016, and Defendants filed a reply shortly thereafter.
(Dkt. Nos. 22, 27.) On January 19, 2017, the Magistrate Judge
held a telephone conference with the parties about
Defendants' motion to dismiss. (Dkt. No. 34.) The
Magistrate Judge issued an R. & R. the next day
recommending that this Court grant Defendants' motion for
partial dismissal. (Dkt. No. 35.) Plaintiff filed his
objections to the R. & R. on January 27, 2017, and
Defendants College of Charleston and John A. Cordray filed a
reply on February 3, 2017. (Dkt. Nos. 36, 37.)
Court adopts the facts as outlined in the R. & R. (Dkt.
No. 35 at 1-3) so summarizes the most relevant ones only
briefly here. Plaintiff, a black male, was hired by the
College of Charleston in 2008 as a Utilities Plant Operator.
Defendant Warren Wurscher, the Plant Manager, was Plaintiffs
immediate supervisor. Defendant John A. Cordray was the
Director of the Physical Plant and Director of Engineering.
Defendant Cordray was Defendant Wurscher's supervisor.
alleges that in 2011 Defendant Wurscher began to make
racially inappropriate remarks in his presence, including use
of the n-word and, on one occasion, the statement that
"a black man can't do his job." Plaintiff also
alleges that he witnessed Defendant Wurscher draw an
inappropriate picture of an African American electrician
during working hours. In October 2013, Plaintiff submitted a
hostile work environment complaint to the Director of
Engineering (Defendant Cordray) and the Office of Human
Relations and Minority Affairs at the College of Charleston;
no action was taken. Plaintiff, who had received positive
performance reviews in each of 2010, 2011, and 2013, received
a performance evaluation on January 11, 2015 that was poorer
than he expected. He reported to the College of Charleston
his belief that his lower evaluation was given in direct
retaliation for his hostile work environment complaints. The
College of Charleston did not take any action.
applied for a promotion to Trades Specialist IV in late 2014
or early 2015. Plaintiff alleges that Defendant Wurscher
sabotaged his interview and that the position was given to a
white male with less experience and less licensure. Plaintiff
submitted a formal complaint to the College of Charleston
alleging discrimination and retaliation which he says the
College failed to address.
Rule 12(b)(6), a "complaint must be dismissed if it does
not allege 'enough facts to state a claim to relief that
is plausible on its face.'" Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). On a motion to dismiss, this Court must "take
all of the factual allegations in the complaint as
true." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "However, while the court must draw all
reasonable inferences in favor of the plaintiff, it need not
accept legal conclusions, "unwarranted inferences,
unreasonable conclusions or arguments." Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 253 (4th Cir. 2009) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999);
Giarratano, 521 F.3d at 298).
has conceded that he is not pursuing claims against the
College of Charleston under 42 U.S.C. §§ 1981 and
1983. (Dkt. No. 35 at 4; Dkt. No. 22 at 10.) For this reason,
the Court will dismiss all claims against the College of
has alleged that Defendant Cordray is liable under 42 U.S.C.
§§ 1981 and 1983 for creating a hostile work
environment and racial discrimination. This Court finds that
the Magistrate Judge has provided a thorough explanation as
to why each of Plaintiffs claims against John A. Cordray
should be dismissed. Plaintiff has not stated a claim against
Defendant Cordray in his individual capacity because he has
not sufficiently alleged that Defendant Cordray personally
contributed to a hostile work environment or personally
discriminated against Plaintiff. Plaintiff has likewise
failed to state a claim against Defendant Cordray in his
supervisory capacity because he has ...