United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge
matter is before the court on the defendant's motion to
dismiss for failure to state a claim (doc. 16). Pursuant to
the provisions of Title 28, United States Code, Section
636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.),
all pretrial matters in employment discrimination cases are
referred to a United States Magistrate Judge for
action was removed by the defendant from state court on
August 31, 2016, based upon federal question jurisdiction
(doc. 1). The defendant filed its first motion to dismiss
(doc. 6) on September 1, 2016. On December 14, 2016, that
motion was dismissed as moot as the plaintiff had been
granted leave to file an amended complaint (doc. 21).
However, the plaintiff did not actually file the amended
complaint (see docs. 11, 14). Nonetheless, on
November 10, 2016, the defendant filed a second motion to
dismiss, which is now before the court (doc. 16). On December
30, 2016, the plaintiff filed a response in opposition (doc.
25), and the defendant filed a reply on January 20, 2017
(doc. 30). As the instant motion to dismiss is directed at
the proposed amended complaint (see docs. 11-1,
11-2), on March 2, 2017, the undersigned directed the Clerk
of Court to file the proposed amended complaint as the
amended complaint so that the record before the court will be
complete (see doc. 32).
amended complaint, the plaintiff, a former employee of
defendant G4S Secure Solutions (USA) Inc.
(“G4S”), alleges claims for age discrimination,
retaliation, and hostile work environment in violation of the
Age Discrimination in Employment Act (“ADEA”)
(doc. 32 ¶¶ 26-38). In support of these claims, the
plaintiff alleges that, during an unspecified time period
through May 6, 2015, G4S employed him as a security
officer/guard at BASF Corporation in Seneca, South Carolina
(id. ¶ 3). In April 2015, the defendant hired
Amanda Nicks, whom the plaintiff alleges is in her mid to
late twenties, as a supervisor (id. ¶¶ 5,
6). The plaintiff claims that Ms. Nicks “immediately .
. . began altering [his] work schedule” and gave
“more favorable work schedules” to
“employees around her age” (id.
¶¶ 9, 14). In April 2015, Ms. Nicks changed the
schedule requiring the plaintiff to work on what had
previously been his day off. The plaintiff explained to Ms.
Nicks that he had a doctor's appointment scheduled at the
Veterans Affairs (“VA”) hospital, but she
responded that she was not concerned (id.
¶¶ 10-12). As a result of this scheduling change,
the plaintiff filed a complaint against Ms. Nicks through the
defendant's human resources department. He retained an
attorney, who sent a letter to the defendant regarding the
plaintiff's belief that he was being discriminated
against because of his age (id. ¶¶ 15-17).
plaintiff alleges that on May 6, 2015, after receiving the
letter from the attorney, Ms. Nicks “began
screaming” at him and demanded that he “leave the
premises and call a Regional Manager” before returning
to work. The Regional Manager allegedly told
the plaintiff that he would be contacted the following Monday
regarding placement at a different location, but the
plaintiff claims he did not receive that call (id.
plaintiff alleges that he filed a charge of discrimination
with the South Carolina Human Affairs Commission
(“SCHAC”) and the Equal Employment Opportunity
Commission (“EEOC”) on May 7, 2015 (id.
¶ 20). He alleges that he had a meeting with
the defendant and the SCHAC, and, during the meeting, the
defendant stated that he had been terminated from employment
(id. ¶ 21). He states that his notice of right
to sue was received on April 10, 2016, and that the
allegations in the complaint are within the scope of the
charge of discrimination filed with the SCHAC and the EEOC
(id. ¶¶ 23, 25). The plaintiff includes
the notices of right to sue from the EEOC and the SCHAC as an
exhibit to the amended complaint, but he does not include the
charge of discrimination (see doc. 32-1).
LAW AND ANALYSIS
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint.” Williams v. Preiss-Wal Pat III,
LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
Cir. 1999)). “[T]he facts alleged ‘must be enough
to raise a right to relief above the speculative level'
and must provide ‘enough facts to state a claim to
relief that is plausible on its face.'" Robinson
v. American Honda Motor Co., Inc., 551 F.3d 218, 222
(4th Cir. 2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 569 (2007)). “The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). When ruling on a Rule 12(b)(6) motion to
dismiss, “a judge must accept as true all of the
factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
court must liberally construe pro se complaints to
allow the development of a potentially meritorious case,
Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such
pro se complaints are held to a less stringent
standard than those drafted by attorneys. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
deciding whether a complaint will survive a motion to
dismiss, a court evaluates the complaint in its entirety, as
well as documents attached or incorporated into the
complaint.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
The court may consider such a document, even if it is not
attached to the complaint, if the document “was
integral to and explicitly relied on in the complaint,
” and there is no authenticity challenge. Id.
at 448 (quoting Phillips v. LCI Int'l, Inc., 190
F.3d 609, 618 (4th Cir. 1999)). See also Int'l
Ass'n of Machinists & Aerospace Workers v.
Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In
evaluating a motion to dismiss under Rule 12(b)(6), the Court
. . . may also ‘consider documents attached to . . .
the motion to dismiss, so long as they are integral to the
complaint and authentic.'”) (quoting Sec'y
of State for Def. v. Trimble Navigation Ltd., 484 F.3d
700, 705 (4th Cir. 2007)). Furthermore, the court may
consider a plaintiff's charge of discrimination in ruling
on a motion to dismiss. See Williams v. 1199 Seiu United
Healthcare Workers East, C.A. No. WMN-12-72, 2012 WL
2923164, at * 1 n.1 (D.Md. July 17, 2012) (“In the
employment context, a court may consider an EEOC charge and
other EEOC documentation [when considering a motion to
dismiss] because such documents are integral to the complaint
as Plaintiff necessarily relies on these documents to satisfy
the time limit requirements of the statutory scheme. . . .
The court's consideration of these documents does not
convert this into a motion for summary judgment.”)
of Administrative Remedies
defendant first argues that the plaintiff fails to meet his
factual burden of establishing that the allegations in the
amended complaint are consistent with the scope of his
administrative charge (doc. 16-1 at 3-4; doc. 30 at 3-4).
Only those discrimination claims stated in the initial
charge, those reasonably related to the original complaint,
and those developed by reasonable investigation of the
original complaint may be maintained in a subsequent lawsuit.
See Chacko v. Patuxent, 429 F.3d 505, 506 (4th
Cir.2005) (holding that a plaintiff fails to exhaust her
administrative remedies where her “administrative
charges reference different time frames, actors, and
discriminatory conduct than the central factual allegations
in [her] formal lawsuit”). “Allowing a complaint
to encompass allegations outside the ambit of the predicate
EEOC charge would circumscribe the EEOC's investigatory
and conciliatory role, as well as deprive the charged party
of notice of the charge, as surely as would an initial
failure to file a timely EEOC charge.” Williams v.
Little Rock Mun. Water Works, 21 F.3d 218, 273 (8th
Cir.1994) (internal quotation marks and citation omitted). In
determining whether the exhaustion requirement has been met
in any individual case, a court must endeavor to
“strike a balance between providing notice to employers
and the EEOC on the one hand and ensuring plaintiffs are not
tripped up over technicalities on the other.”
Sydnor v. Fairfax Cnty., Va. ., 681 F.3d 591, 594
(4th Cir. 2012).
noted above, the plaintiff did not attach a copy of his
administrative charge to the amended complaint. With regard
to the issue of exhaustion, the plaintiff makes only the
following conclusory statement in the factual background
portion of the amended complaint: “The allegations in
this Complaint are within the scope of the charge timely
filed by Plaintiff with the EEOC and the SCHAC” (doc.
32 ¶ 25). The plaintiff fails to supply any information
regarding the allegations contained in the charge. The
plaintiff argues that the notice of right to sue letters from
the EEOC and the SCHAC “set forth the fact that the
administrative investigation carried out was in regard to a
charge of ‘discrimination based on age and
disability' (Dkt. # 11-2 ¶ 3),
harassment/intimidation and retaliation” (doc. 25 at
3). The document referenced by the plaintiff is the exit
correspondence from the SCHAC that accompanied the notice of
right to sue. The letter states that the SCHAC determined
that there was insufficient proof to support the
plaintiff's contentions that he was subjected to unlawful
discrimination (doc. 32-1 at 3-4). The letter references the
plaintiff's allegations of age and disability