United States District Court, D. South Carolina, Spartanburg Division
Wesley O. Terrill, Plaintiff,
Limestone College and President Walt Griffin, Defendants.
Timothy M. Cain, United States District Judge
matter is before the court on a partial motion to dismiss
filed by Defendants Limestone College and Limestone's
President, Walt Griffin. (ECF No. 5). Defendants seek to have
Plaintiff's racial discrimination and retaliation claims
dismissed on the basis of res judicata. Id.
Plaintiff filed a response opposing the motion (ECF No. 14),
and Defendants filed a reply to that response (ECF No. 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.), this motion was referred to a magistrate judge for
review. The magistrate judge reviewed the record and issued a
Report and Recommendation (the “Report”)
recommending that the Defendants' partial motion to
dismiss be granted and that only the Plaintiff's claim
for violation of the Family Medical Leave Act (FMLA) should
remain pending before this court. (ECF No. 19). Plaintiff
filed objections to the Report (ECF No. 20), and the
Defendants filed a Response to those objections (ECF No. 22).
recommendations set forth in the Report have no presumptive
weight, and this court remains responsible for making a final
determination in this matter. See Matthews 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 a specific objection is made, and the court
may accept, reject, 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).
August 2011, Plaintiff, an African American male, began
working as an Assistant Director for the Extended Campus
Classroom (“ECC”) and as an Academic Advisor and
Site Representative for Limestone College. (ECF No. 1 at 2).
Additionally, since 2003, Plaintiff has served as a Course
Instructor in Defendants' program called “Call Me
Mister.” Id. On March 30, 2017, Plaintiff was
given notice that his employment with Defendants was
terminated, effective April 3, 2017. (ECF No. 1 at 4).
December 21, 2016, Plaintiff filed his first lawsuit in state
court (hereinafter “Terrill I”) against
these same Defendants, alleging breach of his employment
contract, breach of employment contract with fraudulent
intent, and retaliation, all of which allegedly arose out of
Plaintiff's employment with Limestone College. (ECF No.
5-1). Plaintiff alleged the following in his breach of
contract claim: (1) that Defendants breached their contract
with Plaintiff by allowing Area Coordinators to receive
higher compensation than Plaintiff despite their lower
ranking in the company; (2) that Defendants breached their
contract with Plaintiff by reducing Plaintiff's job
duties; and (3) that Defendants breached their contract with
Plaintiff by advocating for and allowing other employees to
maintain their positions and salaries while Plaintiff's
job duties and salary decreased. (ECF No. 5-1 at 6-7).
Additionally, Plaintiff alleged the same facts in his claim
for breach of contract with fraudulent intent, but he further
alleged that to his detriment he had relied on
Defendants' promises regarding compensation and on the
employment contract's provisions. (ECF No. 5-1 at 8).
Plaintiff alleged the following in regards to his retaliation
claim in Terrill I: (1) that Plaintiff's
supervisors participated in a common design through concerted
efforts to retaliate against Plaintiff for Plaintiff's
unintentional failure to disclose when the ECC vehicle trade
had gone through; (2) that these supervisors eliminated and
reduced Plaintiff's job duties, which negatively affected
his earnings; (3) that one of the supervisors retaliated
against Plaintiff when she failed to consider him for exempt
status under the Fair Labor Standards Act while advocating
for exempt status and raises on behalf of others in the
company; (4) that one supervisor retaliated against Plaintiff
when Plaintiff's company vehicle was taken away and given
to someone else; and (5) that these two supervisors knowingly
and willfully isolated and harassed Plaintiff in order to
diminish his job opportunities, which made Plaintiff unable
to generate supplemental income. (ECF No. 5-1 at 9).
March 15, 2017, Plaintiff stipulated to the dismissal of
Terrill I with prejudice pursuant to South Carolina
Rule of Civil Procedure 41. (ECF No. 14 at 2). Following his
termination from Limestone College, Plaintiff filed this
lawsuit (hereinafter “Terrill II”)
against Defendants on April 12, 2017, alleging race
discrimination and retaliation in violation of 42 U.S.C.
§ 1981, and wrongful termination in violation of the
Family and Medical Leave Act (“FMLA”). (EFC No.
1). On May 8, 2017, Defendants filed a motion to dismiss the
racial discrimination and retaliation claims. (ECF No. 5).
The Plaintiff responded on June 27, 2017 (ECF No. 14), and
Defendants replied on July 5, 2017 (ECF No. 16). The motion
was referred to a magistrate judge, and he issued a Report
recommending the motion to dismiss in part be granted. (ECF
No. 19). Plaintiff made two timely objections. (ECF No. 20).
Defendants timely replied to these objections. (ECF No. 22).
This court overrules these objections for the reasons below.
Applicable Law and Analysis
considering a 12(b)(6) motion to dismiss, the court must
accept as true the facts alleged in the complaint and view
them in a light most favorable to the plaintiff.
Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.
1999). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Although “a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
” a pleading that merely offers “labels and
conclusions, ” or “a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Likewise, “a
complaint [will not] suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancements.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557).
because Plaintiff's state court action for breach of
contract was adjudicated under South Carolina law, the law of
South Carolina controls the determination of whether res
judicata bars the Plaintiff's present claim. See
Kremer v. Chem. Const. Corp., 456 U.S. 461, 466-67(1982)
(stating that the law “requires federal courts to give
the same preclusive effect to state court judgments that
those judgments would be given in the courts of the State
from which the judgment emerged”); Marrese v. Am.
Acad. of Orthopaedic Surgeon, 470 U.S. 373, 380 (1985)
(stating that the law “directs a federal court to refer
to the preclusion law of the State in which the judgment was
rendered.”). Under South Carolina law, in order to
establish that res judicata applies, a defendant must show
(1) that the prior judgment was final, valid, and on the
merits; (2) that the parties are identical in both cases; and
(3) that the second case involves “matter properly
included in the first action.” Wilson v. Charleston
Cty. Sch. Dist., 419 S.C. 442, 450, 798 S.E.2d 449, 453
(Ct. App. 2017) (internal citations omitted). Furthermore, if
a defendant establishes all three elements, not only is the
plaintiff barred from raising issues that were adjudicated in
the prior suit, but the plaintiff is also barred from raising
“any issues which might have been raised in the former
suit.” Id. at 450, 798 S.E.2d at 453. In
determining whether a claim might have or should have been
brought in a prior suit, South Carolina courts look at four
factors: (1) if subject matter is the same in both cases, (2)
if the first and second cases involve the same primary right
held by the plaintiff and one primary wrong committed by the
defendant, (3) if there is the same evidence in both cases,
or (4) if the claims arise out of the same transaction or
occurrence that is the subject matter of the prior action.
Judy v. Judy, 393 S.C. 160, 176, 712 S.E.2d 408, 416
n.7 (2011) (quoting James F. Flanagan, South Carolina
Civil Procedure 649-50 (2d ed. 1996)). However, South
Carolina courts have continuously held that “[r]es
judicata bars subsequent actions by the same parties when the
claims arise out of the same transaction or occurrence that
was the subject of a prior action between those
parties.” Id. at 172, 712 S.E.2d at 414
(citing Plum Creek Dev. Co. v. City of Conway, 334
S.C. 30, 34 (1999)).
concedes that the same parties are involved in both
Terrill I and Terrill II. (ECF No. 20 at
4). However, Plaintiff objects to the magistrate judge's
determinations that Terrill I was a final
adjudication on the merits and that Terrill I and
Terrill II arise out of the same transaction or
occurrence. (ECF No. 20 at 20). Essentially, Plaintiff
contends that res judicata does not apply because elements
(1) and (3) are not met. However, this court has determined
that all elements of res judicata are met and that res
judicata bars the non FMLA claims in Terrill II.
Non-FMLA claims in Terrill II should have been
brought in Terrill I
objects to the magistrate judge's determination that
Terrill I and Terrill II arose from the
same transaction or occurrence, and that, therefore, the
claims in Terrill II should have been brought in
Terrill I. (ECF No. 20 at 4). Plaintiff alleges that
the causes of action in the two cases depend on
“entirely different factual allegations and
occurrences” and that Terrill II is based on
facts that had not yet occurred at the time of the
Terrill I dismissal. (ECF No. 20 at 7). Plaintiff
lists five “new” facts that he contends occurred
after the conclusion of Terrill I: (a) that
“Defendants' agent, Hudson [a white female] failed
to communicate with Plaintiff concerning pertinent
information for Plaintiff to complete his job duties, ”
(b) that “Plaintiff was excluded from necessary calls
that were essential to his job, ” (c) that
“Plaintiff['s] income was reduced and his
supplemental income was taken away from him while Caucasian
workers did not have their income reduced or lose their
supplemental income, ” (d) that “Plaintiff was
mandated to tak[e] his lunch break at a designated time while
his Caucasian co-workers were not required ...