United States District Court, D. South Carolina, Columbia Division
Dawn E. Wise, Plaintiff,
INVISTA s.à.r.l., Defendant.
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge
Dawn E. Wise (“Plaintiff”) brings this action
pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000(e)
et seq.; and the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621 et
seq., alleging gender discrimination and age
discrimination against Defendant INVISTA s.à.r.l.
(“Defendant”). ECF No. 5. Plaintiff also asserts a
state law claim for defamation. Id. In accordance
with 28 U.S.C. § 636(b) and Local Civil Rule 73.02
(B)(2), D.S.C., this matter was referred to United States
Magistrate Judge Thomas E. Rogers, III.
AND PROCEDURAL HOSTORY
who is a fifty-four year old female, was hired by Defendant
as a procurement manager on February 13, 2006. ECF No. 5 at
¶ 6-7. For several years during Plaintiff's
employment, Andrew Cunningham, Director of Procurement, was
the Business Procurement Leader of Performance over a
division Plaintiff reported to. Id. at ¶ 8.
Plaintiff received at least one negative performance review
during the time that she reported to that division.
Id. ¶ 9. In 2013, due to reorganization of
divisions, Plaintiff no longer reported to the division
Cunningham led. Id. ¶ 10. It was during that
time that Plaintiff's performance reviews improved.
December 2015, Cunningham returned to supervision as the
Business Procurement Leader of Performance Solutions for
Defendant. Id. ¶ 11. Upon his return,
Cunningham changed the roles, responsibilities, and
expectations for Plaintiff's position, despite not being
Plaintiff's direct supervisor. Id. ¶ 12. On
or around the day of Cunningham's return, Plaintiff's
supervisor, Brendan Duffy, gave Plaintiff a performance
evaluation placing Plaintiff on a performance improvement
plan. Id. ¶ 13. Plaintiff informed Duffy that
she did not agree with the performance evaluation.
Id. Plaintiff also informed the Plant Manager, Juan
Flores, and Human Resources Manager, Billy Buchanan, that she
felt her performance evaluation was inaccurate. Id.
¶ 14-15. Cunningham, Duffy, and Buchanan later informed
Plaintiff that she would be placed on a development plan
instead of a performance improvement plan. Id.
the time Plaintiff was on the development plan, she alleges
that she was expected to perform additional duties and
perform jobs that were previously performed by employees who
had left INVISTA. Id. at ¶ 17. According to
Plaintiff, younger male employees were not asked to take on
additional roles and responsibilities for their positions.
Id. ¶ 18. Furthermore, no younger male
employees were placed on development plans when the roles and
responsibilities for their positions were altered.
was informed in late September 2016 that she would be
terminated from her position effective November 4, 2016, and
that she would be able to apply for other positions within
Koch Industries. Id. at ¶ 20. In November
2016, plaintiff applied for a position as a materials manager
within Koch Industries, but was not offered the position.
Id. at ¶ 29. Plaintiff believes she was
qualified for the position, but that a lesser qualified,
younger male was hired instead. Id.
alleges that prior to, and after, the end of Plaintiff's
employment with Defendant, Defendant's employees and
representatives accused Plaintiff of failing to meet new and
additional roles and responsibilities for the procurement
manager position. Id. at ¶ 19. According to
Plaintiff, those allegations were made to Plaintiff's
former co-workers, employees, and members of the general
public. Id. She believes the statements were known
to be false, and were maliciously published by Defendant.
Id. at ¶ 35.
April 20, 2017, Plaintiff filed suit in the Court of Common
Pleas in Kershaw County, South Carolina. Defendant removed
the case to this court on May 21, 2017. ECF No. 1. Plaintiff
filed an amended complaint on May 26, 2017. ECF No. 5. On May
31, 2017, Defendant filed its Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), ECF No. 6, to which
Plaintiff filed a Response in Opposition on June 13, 2017.
ECF No. 7. Defendant filed a reply on June 20, 2017. ECF No.
August 31, 2017, the Magistrate Judge prepared a Report and
Recommendation (“Report”) and recommended that
Defendant's Motion to Dismiss be granted in part and
denied in part. ECF No. 11. Defendant filed a partial
objection to the Report on September 14, 2017, ECF No. 12, to
which Plaintiff filed her reply on September 28, 2017. ECF
Motion to Dismiss
seeks dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6). ECF No. 6. A Rule12 (b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted
tests the legal sufficiency of a complaint. Schatz v.
Rosenberg, 943 F.2d 455, 489 (4th Cir. 1991). While the
complaint need not be minutely detailed, it must provide
enough factual details to put the opposing party on fair
notice of the claim and the grounds upon which it rests.
Bell Atl. Corp. v. Twombly, 550 U.S 544, 555 (2007)
(citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).
order to withstand a motion to dismiss, a complaint must
contain factual content that allows the court to reasonably
infer the defendant is liable for the alleged misconduct.
Ashcroft v. Iqbal, 556 U.S 662, 678 (2009).
“Facts that are ‘merely consistent with'
liability do not establish a plausible claim to
relief.” United States ex rel. Nathan v. Takeda
Pharms. N. Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013)
(quoting Ashcroft, 556 U.S. at 678). The court must
accept the allegations in the complaint as true, and all
reasonable factual inferences must be drawn in favor of the
party opposing the motion. Id. at 679. If the court
determines that those factual allegations can
“plausibly give rise to an entitlement to relief,
” dismissal is not warranted. Id. To determine
plausibility, a court is to “draw on its judicial
experience and common sense.” Id. “But
where the ...