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Wise v. Invista S.A.R.L.

United States District Court, D. South Carolina, Columbia Division

January 23, 2018

Dawn E. Wise, Plaintiff,
v.
INVISTA s.à.r.l., Defendant.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States District Judge

         Plaintiff 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”).[1] 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.

         FACTS AND PROCEDURAL HOSTORY

         Plaintiff, 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. Id.

         In 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. ¶ 16.

         During 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. Id.

         Plaintiff 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.[2] 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.

         Plaintiff 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.

         On 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.[3] 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. 9.

         On 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 No. 13.

         LEGAL STANDARDS

         A. Motion to Dismiss

         Defendant 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)).

         In 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 ...


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