United States District Court, D. South Carolina, Spartanburg Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on a motion to dismiss filed by
Defendants Katherine O'Neill, Jim Hipp, and Kim Mary
Danner (collectively, “the Moving Defendants”).
[Doc. 11.] Plaintiff alleges race discrimination and
retaliation claims pursuant to Title VII of the Civil Rights
Act of 1964, as amended (“Title VII”). Pursuant
to the provisions of 28 U.S.C. § 636 (b)(1)(A) and Local
Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in
employment discrimination cases are referred to a United
States Magistrate Judge for consideration.
filed this action ion August 31, 2017. [Doc. 1.] On November
6, 2017, the Moving Defendants filed a motion to dismiss.
[Doc. 11.] The same day, the Court filed an Order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
advising Plaintiff of the summary judgment/dismissal
procedure and of the possible consequences if he failed to
adequately respond to the motion. [Doc. 15.] Plaintiff filed
a response in opposition on January 3, 2018. [Doc. 24.]
Accordingly, the motion to dismiss is ripe for review.
Plaintiff alleges that he is employed by Defendant
Spartanburg County. [Doc. 1 at 3.] On May 8, 2015, Plaintiff
was not allowed to order cell phones even though his white
male co-worker was allowed to order cell phones without any
cell phone experience. [Id. at 5.] Plaintiff
contends that he was threatened with disciplinary action on
December 22, 2015, for suggesting to a white male with 30
years of technology experience that he use new technology.
[Id.] On February 10, 2016, Plaintiff completed an
intake questionnaire with the United States Equal Employment
Opportunity Commission (“EEOC”), asserting that
his employer, Spartanburg County, had discriminated against
him on the basis of race. [Id.; Doc. 1-1 at 3-6.]
Plaintiff contends that he was subsequently retaliated
against when he was moved to a new office in March 2016 and
when he was given a bad evaluation. [Doc. 1 at 5, 7.] The
EEOC issued a Dismissal and Notice of Rights on June 12, 2017
[Doc. 1-1 at 1; see Id. at 2], and Plaintiff filed
this action on August 31, 2017, asserting race discrimination
and retaliation in violation of Title VII [Doc. 1].
Construction of Pro Se Complaint
brought this action pro se, which requires the Court to
liberally construe his pleadings. Estelle, 429 U.S.
97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam); Loe v. Armistead, 582 F.2d
1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to
a less stringent standard than those drafted by attorneys.
Haines, 404 U.S. at 520. Even under this less
stringent standard, however, a pro se complaint is still
subject to summary dismissal. Id. at 520-21. The
mandated liberal construction means that only if the court
can reasonably read the pleadings to state a valid claim on
which the complainant could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the complainant's legal
arguments for him. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court “conjure up
questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
claim should be dismissed if it fails to state a claim upon
which relief can be granted. 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). Further, for purposes of a Rule 12(b)(6) motion, a
court may rely on only the complaint's allegations and
those documents attached as exhibits or incorporated by
reference. See Simons v. Montgomery Cty. Police
Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters
outside the pleadings are presented to and not excluded by
the court, the motion is treated as one for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure.
respect to well-pleaded allegations, the United States
Supreme Court explained the interplay between Rule 8(a) and
Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” in order to
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's
obligation to provide the “grounds” of his
“entitle[ment] to relief” requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
550 U.S. 544, 555 (2007) (footnote and citations omitted);
see also 5 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1216,
at 235-36 (3d ed. 2004) (“[T]he pleading must contain
something more . . . than a bare averment that the pleader
wants compensation and is entitled to it or a statement of
facts that merely creates a suspicion that the pleader might
have a legally cognizable right of action.”).
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard reflects the threshold requirement of
Rule 8(a)(2)-the pleader must plead sufficient facts to show
he is entitled to relief, not merely facts consistent with
the defendant's liability. Twombly, 550 U.S. at
557 (quoting Fed.R.Civ.P. 8(a)(2)); see also Iqbal,
556 U.S. at 678 (“Where a complaint pleads facts that
are ‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to
relief.”'” (quoting Twombly, 550
U.S. at 557)). Accordingly, the ...