United States District Court, D. South Carolina, Greenville Division
Timothy M. Cain United States District Judge
William James Glover, filed this action alleging
discrimination and retaliation in violation of the Age
Discrimination in Employment Act (“ADEA”);
discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, as amended; violation of the
Equal Pay Act (“EPA”); and state law claims for
conversion, fraud and deceit, negligent misrepresentation,
and ratification. (ECF No. 5 at 11-17). In accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C.,
this matter was referred to a magistrate judge for pretrial
handling. Before the court is the magistrate judge's
Report and Recommendation (“Report”) (ECF No.
22), issued January 12, 2017, recommending that the court
grant defendant United Parcel Service, Inc.'s
(“UPS”) motion to dismiss as to Counts 1 and 2
(ADEA), Count 4 (Title VII retaliation), Count 5 (EPA), and
Count 9 (ratification) of Glover's amended complaint (ECF
No. 5) and deny it in all other respects. Further, the Report
recommends that the court grant Glover's motion for leave
to file a second amended complaint as to Count 1 (Title VII
discrimination), Count 2 (Title VII failure to promote),
Count 3 (Title VII disparate pay), Count 6 (conversion),
Count 7 (fraud), and Count 8 (negligent misrepresentation) of
Glover's proposed second amended complaint (ECF No. 15-1)
and deny it as to Count 4 (Title VII retaliation) and Count 5
(Fair Pay Act) of Glover's proposed second amended
complaint (ECF No. 15-1). (ECF No. 22). On January 26, 2017,
UPS filed objections to the Report. (ECF No. 24). Glover did
not file objections to the Report. On February 9, 2017,
Glover filed a response to UPS's objections. (ECF No.
recommendations set forth in the Report have no presumptive
weight and the responsibility to make a final determination
in this matter remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (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 with instructions. 28 U.S.C. § 636(b)(1).
However, the court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
magistrate judge summarized the facts of this action in his
Report (ECF No. 22 at 1- 2). Briefly, in the amended
complaint, Glover, a forty-six-year-old African American
male, alleges that UPS, the company that employed him for
approximately twenty-six years, discriminated against him
based on his race. (ECF No. 5 at 3-8). He argues that he did
the work of a full time Reload Supervisor from December 2002
to January 2015, but was paid differently and given disparate
benefits from others performing the same work and that, in
January 2015, a white co-worker was officially promoted to
the full time Reload Supervisor position instead of Glover.
Id. As noted above, Plaintiff seeks relief pursuant
to the ADEA, Title VII, the EPA, and South Carolina state
filed a complaint against UPS on June 16, 2015 (ECF No. 1)
and amended his complaint as a matter of course on July 1,
2016 (ECF No. 5). On August 8, 2016, defendant UPS filed a
motion to dismiss for failure to state a claim. (ECF No. 9).
On September 23, 2016, Glover filed a motion for leave to
file a second amended complaint and filed the proposed second
amended complaint as an attachment. (ECF No. 15). On
September 26, 2016, Glover filed his response in opposition
to UPS's motion to dismiss. (ECF No. 16). UPS filed a
reply on October 6, 2016. (ECF No. 18). Before the court are
the magistrate judge's Report on UPS's motion to
dismiss Glover's claims (ECF No. 9) and Glover's
motion for leave to file a second amended complaint (ECF No.
15). On January 26, 2017, UPS filed objections to the Report.
(ECF No. 24). On February 9, 2017, Glover filed a response to
UPS's objections. (ECF No. 26).
Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss
for failure to state a claim should not be granted unless it
appears certain that the plaintiff can prove no set of facts
which would support her claim and entitle her to relief.
Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss,
the court should “accept as true all well-pleaded
allegations and should view the complaint in a light most
favorable to the plaintiff.” Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). However, the
court “need not accept the legal conclusions drawn from
the facts” nor “accept as true unwarranted
inferences, unreasonable conclusions, or arguments.”
Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir.2000). A
complaint “need only give the defendant fair notice of
what the claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (citations omitted). While “a plaintiff is not
required to plead facts that constitute a prima facie case in
order to survive a motion to dismiss . . ., factual
allegations must be enough to raise a right to relief above
the speculative level.” Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citations
plaintiff's complaint only needs to include “a
short and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “As
the Supreme Court has recognized, specific facts are not
necessary in a pleading, and a plaintiff need only give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Miller v. Carolinas
Healthcare System, 561 Fed. App'x 239 (4th Cir.
2014) (unpublished) (internal quotation marks and citations
omitted). “In evaluating a civil rights complaint for
failure to state a claim under Fed.R.Civ.P. 12(b)(6), ”
the court must be “especially solicitous of the wrongs
alleged. [The court] must not dismiss the complaint unless it
appears to a certainty that the plaintiff would not be
entitled to relief under any legal theory which might
plausibly be suggested by the facts alleged.”
Harrison v. U.S. Postal Serv., 840 F.2d 1149, 1152
(4th Cir. 1988) (internal citations omitted).
contends that the magistrate judge erred by recommending that
Glover be permitted to amend his complaint and by
recommending that Counts 1, 2, 3, 6, 7, and 8 of Glover's
proposed second amended complaint be permitted to proceed.
UPS addressed each count in a separate objection.
Discrimination under Title VII
first objection, UPS refers to Count 3 in Glover's
amended complaint and Count 1 in Glover's proposed second
amended complaint and requests “that the District Court
make a definitive ruling and dismiss any hostile work
environment harassment claim that Mr. Glover may be asserting
in this case.” (ECF No. 24 at 6).
appears to the court that Count 3 of Glover's amended
complaint (and, correspondingly, Count 1 of Glover's
proposed second amended complaint) is a generalized claim of
race discrimination while count 4 of his amended
complaint and counts 2, 3, and 4 of his proposed
second amended complaint allege specific instances of race
discrimination. (ECF No. 15-1 at 13-16). As stated by the
magistrate judge, the United States Supreme Court has held
“that an employment discrimination complaint need not
include [specific facts establishing a prima facie
case of discrimination under the McDonnell Douglas
framework] and instead must contain only ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief.'” Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508 (2002); see also Fed.
R. Civ. P. 8. Glover alleged that UPS discriminated against
him on the basis of his race by treating a white, similarly
situated co-worker more favorably than Glover under similar
circumstances. The magistrate judge recommended the Title VII
discrimination claim be allowed to proceed because Glover
“has alleged enough facts in the amended complaint to
state a race discrimination claim to relief that is plausible
on its face.” (ECF No. 22 at 7). The court agrees with
the magistrate judge's reasoning and finds that UPS's
motion to dismiss the Title VII race discrimination claim
(Claim 3 of the amended complaint) should be denied and
Glover should be permitted to bring such a claim in a second
objection notes that Glover's Title VII race
discrimination claim contains mention of a “hostile
work environment.” UPS requests for the court to
dismiss any hostile work environment claim that Glover may be
asserting in this case. However, the court declines to
preemptively rule on a hostile work environment claim not
explicitly made by Glover.
Failure to ...