United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Enterprise Bank's
objections to United States Magistrate Judge Jacquelyn D.
Austin's report and recommendation (“R &
R”) (ECF Nos. 33 & 31). Defendants Enterprise and
David Johns moved to dismiss Plaintiff Mary
Wilson's claims for retaliation and intentional
infliction of emotional distress (“IIED”) (ECF
No. 12). The Magistrate Judge recommends denying
Defendants' motion with respect to Plaintiff's
retaliation and IIED claims against Enterprise, but granting
the motion with respect to her IIED claim against Johns. For
the reasons stated herein, the Court adopts the Magistrate
the parties have no objections, the Court, finding no clear
error, adopts the background set out in the R & R. The
Court briefly summarizes that factual and procedural
background as relevant.
worked as a teller at the Ehrhardt, South Carolina branch of
Enterprise Bank. She alleges that she was groped by Defendant
Bernard Dickerson, a fellow bank employee, on multiple
occasions during the summer of 2016. After Plaintiff reported
the alleged incidents, Dickerson was terminated. Despite his
termination, Dickerson was still allowed to enter the bank.
While Defendants argue that Dickerson was a bank customer and
that he was only allowed in areas open to all bank customers,
Plaintiff alleges that he was allowed in employee-only areas.
Plaintiff also alleges that after she reported the incidents,
she learned that she was not the first person to report an
accusation against Dickerson. When Plaintiff sought a
restraining order against Dickerson, Johns, the Senior Vice
President of the bank, and Cara Thomas, a bank supervisor,
testified to Dickerson's good character. Plaintiff then
filed this action against Enterprise for sex discrimination
and retaliation in violation of Title VII of the Civil Rights
Act. She also sued Enterprise, Johns, and Dickerson for IIED,
and she sued Dickerson for false imprisonment, assault, and
August 14, 2017, Defendants filed their motion to dismiss. On
January 9, the Magistrate Judge issued an R & R
recommending that the Court deny Defendants' motion with
respect to the retaliation claim and the IIED claim against
Enterprise, but grant the motion with respect to the IIED
claim against Johns. Enterprise filed objections on January
23, and Plaintiff replied on January 30. Accordingly, this
matter is now ripe for review.
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). Parties may make written objections to the R & R
within fourteen days after being served with a copy of it. 28
U.S.C. § 636(b)(1). This Court must conduct a de novo
review of any portion of the R & R to which a specific
objection is made, and it may accept, reject, or modify the
Magistrate Judge's findings and recommendations in whole
or in part. Id. Additionally, the Court may receive
more evidence or recommit the matter to the Magistrate Judge
with instructions. Id. A party's failure to
object is taken as the party's agreement with the
Magistrate Judge's conclusions. See Thomas v.
Arn, 474 U.S. 140 (1985). Absent a timely, specific
objection-or as to those portions of the R & R to which
no specific objection is made-this Court “must
‘only satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
was represented by counsel up until the day the R & R was
issued but is now proceeding pro se. Accordingly,
the Court reviews her reply under a less stringent standard
than that applied to attorneys. See Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978).
motion to dismiss pursuant Rule 12(b)(6) for failure to state
a claim “challenges the legal sufficiency” of a
pleading. Francis v. Giacomelli, 588 F.3d 186, 192
(4th Cir. 2009). To be legally sufficient, a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The “complaint must contain
sufficient factual matter, accepted as true, ” to allow
the court to reasonably infer that the “defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). The
pleading must demonstrate that the pleader's right to
relief is more than a mere possibility, but it need not rise
to the level of evincing a probability of success.
Id. Accordingly, “[d]etermining whether a
[pleading] states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679.
Retaliation Claim under Title VII
first objection is that the Magistrate Judge incorrectly
concluded that Plaintiff's retaliation claim sufficiently
alleges that she suffered a materially adverse employment
action. Title VII prohibits an employer from discriminating
against an employee because she has “opposed any
practice made an unlawful employment practice by this
subchapter” or “made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). This anti-retaliation provision
does not protect an employee from “those petty slights
or minor annoyances that often take place at work and that
all employees experience.” Burlington N. &
Santa Fe R.R. Co. v. White, 548 U.S. 53, 68 (2006).
However, it “seeks to prevent employer interference
with ‘unfettered access' to Title VII's
remedial mechanisms.” Id. (citing Robinson
v. Shell Oil Co., 519 U.S. 337, 346 (1997)). Thus, the
Supreme Court held that the anti-retaliation provision
protects employees from actions that a “reasonable
employee would have found . . . materially adverse.”
Id. The Court further clarified that an action is
materially adverse when “it might well have
‘dissuaded a reasonable worker from making or