United States District Court, D. South Carolina, Columbia Division
William D. Sibert, Plaintiff,
Raycom Media, Inc.; Adam Cannavo and Lyle Schulze, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.
employment-related matter is before the court for issuance of
a Report and Recommendation (“Report”) pursuant
to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.). Pending is the Motion to Dismiss filed by
Defendants Raycom Media, Inc. (“Raycom”); Adam
Cannavo; and Lyle Schulze (“Defendants”). ECF No.
4. Having considered Defendants' Motion and Memorandum;
Plaintiff's opposition, ECF No. 6; Defendants' Reply,
ECF No. 10; and applicable law, the undersigned recommends
Defendants' Motion to Dismiss be granted in part and
denied in part.
Factual and procedural background
Plaintiff's second case in this court related to events
surrounding his leaving his employment at
WIS-TV. On May 12, 2017, Plaintiff filed a
complaint against the same Defendants in the Court of Common
Pleas in the Fifth Judicial Circuit, Richland County, South
Carolina, which alleged a single claim for intentional
infliction of emotional distress (“IIED”).
Defendants removed the matter to this court on June 13, 2017,
where it received the civil action number 3:17-cv-01544-CMC
(“17-1544” or “Prior Action”).
See Prior Compl., ECF No. 1 in 17-1544.
Defendants moved to dismiss for failure to state a claim.
Plaintiff opposed the motion to dismiss and filed a motion to
remand. On August 29, 2017, Senior United States District
Judge Cameron McGowan Currie issued an Opinion and Order
granting Defendants' Motion to Dismiss and denying
Plaintiff's Motion for Remand. See Opinion and
Order on Plaintiff's Motion to Remand and Defendants'
Motion to Dismiss, ECF No. 22 in 17-1544 (Order and Opinion
hereinafter cited as Sibert v. Raycom Media, Inc.,
Civil Action No. 3:17-cv- 001544-CMC, 2017 WL 3721238 (Aug.
29, 2017 D.S.C.)).
November 15, 2017, Plaintiff filed his Complaint in this case
in the Richland County Court of Common Pleas. See
Compl., ECF No. 1-1. Defendants removed the matter to this
court on December 20, 2017. ECF No. 1. Plaintiff's
Complaint includes causes of action against Raycom for
discrimination and retaliation in violation of the Americans
with Disabilities Act, as amended, 42 U.S.C. § 12101,
et seq. (“ADA”) and age discrimination
in violation of the Age Discrimination in Employment Act, 29
U.S.C .§ 621, et seq. (“AEDA”).
Plaintiff's Complaint again includes a state-law claim
for IIED, although the IIED claim is now raised against
individual Defendants Schulze and Cannavo. Compl., ECF No.
1-1. Defendants move to dismiss all causes of action for
failure to state a claim. ECF No. 4.
from the Complaint and accepted as true for purposes of this
Report, Plaintiff alleges the following potentially relevant
Complaint indicates he “was employed by WIS-TV as
Senior Editor. WIS-TV is owned by the defendant, Raycom
Media, Inc.” Compl. ¶ 1. Plaintiff “has been
employed by WIS-TV for over thirty-eight years and has always
received excellent employment reviews for his work in the
production area of the station, particularly in his most
recent position of Senior Editor in which he specialized in
producing advertising and promotional programs.” Compl.
¶ 9. In 1998, Plaintiff was diagnosed with multiple
sclerosis (“MS”), “a long-term, disabling
disease which caused Plaintiff to adapt his lifestyle to less
strenuous activities, but not to the extent that it
interfered with his work performance at the television
station.” Id. ¶ 10. Plaintiff's
Complaint indicates that his “supervisors and managers
have understood and worked with him with his illness and have
minimally been required to reasonably accommodate him on
occasions.” Id. ¶ 11.
“Nevertheless, ” Plaintiff avers, “some
time after Raycom purchased WIS-TV, Plaintiff's managers
and supervisors became aware of his MS and began to
intentionally foster hardship for him designed to cause his
retirement and replacement at WIS-TV by a younger
individual[.]” Id. ¶ 13. Plaintiff
provides no time frame for when this “began, ”
nor does the Complaint indicate when Raycom purchased WIS-TV.
alleges that, “in November of 2016, his superiors,
including Lyle Schulze and Adam Cannavo, scheduled a meeting
with Plaintiff and Raycom representatives from Charlotte to
discuss differences in the station operations under the new
management and new management's impact on his
position.” Compl. ¶ 14. Although there were ample,
unutilized meeting rooms available near Plaintiff's work
station, and despite Plaintiff's request that the
location be changed, the meeting was scheduled at a
“distant point in the station complex requiring
Plaintiff to walk over 100 yards and go up and down a small
elevator to a conference room on the second floor.”
Id. ¶¶ 15, 17. Plaintiff avers that
Defendants Schulze and Cannavo “knew that such exercise
and activity could be endured by him, but would be extremely
painful because of his disease[, ]” and their denial of
Plaintiff's request to move the location was
“intentional.” Id. ¶¶ 16,
17. Therefore, Plaintiff was “ultimately unable to
attend [the meeting] and suffered severe emotional distress
and anxiety which caused him to miss an entire day of
work.” Id. ¶ 18.
alleges he then “began being harassed by Defendant
Schulze, Defendant Cannavo, and other employees of Defendant
Raycom.” Compl. ¶ 19. At some point (not specified
in the Complaint) Schulze told Plaintiff that his job
description was changing and that he would begin being
required to carry cameras and other equipment and would no
longer be permitted to rely on cameramen or others for
assistance in these duties. Id. ¶¶ 20-21.
Around March 15, 2017, Defendant Schulze “advised
Plaintiff that he would not be able to fulfill the
requirements of his new job description because of his
disability and directed Plaintiff to contact Raycom's
human resources department in Charlotte to apply for
accommodations.” Id. ¶ 26. Plaintiff
applied for reasonable accommodations, but was advised by
Defendant Cannavo that Raycom would not be able to
accommodate him. Plaintiff “was directed to apply for
and use FMLA, and also use his earned leave over the year to
make up any difference between FMLA payment and his current
salary.” Id. ¶ 28. Plaintiff avers he was
“constructively discharged due to his age and was
replaced by a younger, cheaper employee.” Id.
¶ 31. Plaintiff indicates Defendants Schulze and Cannavo
“altered his job duties for the sole purpose of forcing
him to retire.” Id. ¶ 67.
indicates he “appropriately filed charges with the
Equal Employment Opportunity Commission”
(“EEOC”) and received a right-to-sue letter prior
to filing this case. Compl. ¶ 6. No records related to
the EEOC charge or right-to-sue letter are a part of the
record in this matter.
move to dismiss each of Plaintiff's causes of action
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Defendant Raycom seeks dismissal of
Plaintiff's ADA and ADEA claims, arguing it was not
Plaintiff's “employer” for purposes of those
statutes. Defendants Schulze and Cannavo seek to dismiss the
IIED claim as a matter of law, arguing it is preempted by the
South Carolina Workers' Compensation Act
(“SCWCA”) and, even if not preempted, it fails to
state a claim for which relief might be plausible.
motion filed under Rule 12(b)(6) challenges the legal
sufficiency of a complaint.” Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court
measures the legal sufficiency by determining whether the
complaint meets the Rule 8 standards for a pleading.
Id. The Supreme Court considered the issue of
well-pleaded allegations, explaining the interplay between
Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v.
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 . . .
550 U.S. 544, 555 (2007) (internal citations omitted);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“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.” (citing Twombly, 550 U.S.
at 556)). When considering a motion to dismiss, the court
must accept as true all of the factual allegations contained
in the complaint.” Erickson v. Pardus, 551
U.S. 89, 94 (2007). The court is also to “‘draw
all reasonable inferences in favor of the
plaintiff.'” E.I. du Pont de Nemours & Co.
v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a
court must accept all facts alleged in the complaint
as true, this is inapplicable to legal conclusions, and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citation
omitted). While legal conclusions can provide the framework
of a complaint, factual allegations must support the
complaint for it to survive a motion to dismiss. Id.
at 679. Therefore, a pleading that provides only
“labels and conclusions” or “naked
assertion[s]” lacking “some further factual
enhancement” will not satisfy the requisite pleading
standard. Twombly, 550 U.S. At 555, 557. Further,
the court “need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments.”
E. Shore Mkts., Inc. v. J.D. Assocs., Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At
bottom, the court is mindful that a complaint “need
only give the defendant fair notice of what the claim is and
the grounds upon which it rests.” Coleman v. Md.
Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010)
(internal quotation marks omitted).
Fourth Circuit has explained,
In reviewing a Rule 12(b)(6) dismissal, we may properly take
judicial notice of matters of public record. Hall v.
Virginia, 385 F.3d 421, 424 (4th Cir. 2004) (noting it
was proper during Rule 12(b)(6) review to consider
“publicly available [statistics] on the official
redistricting website of the Virginia Division of Legislative
Services.”) (citing Papasan v. Allain, 478
U.S. 265, 268 n.1 (1986)) (“Although this case comes to
us on a motion to dismiss . . ., we are not precluded in our
review of the complaint from taking notice of items in the
public record ..... ”). We may also consider documents
attached to the complaint, see Fed.R.Civ.P. 10(c),
as well as those attached to the motion to dismiss, so long
as they are integral to the complaint and authentic. See
Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir.
Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009). However, if the court goes beyond these
documents in considering a Rule 12(b)(6) motion, the court is
considered to have converted the motion into one for summary
judgment. Fed.R.Civ.P. 12(b), 12(d), 56. “Such
conversion is not appropriate where the parties have not had
an opportunity for reasonable discovery.” E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 448-49 (4th Cir. 2011) (internal quotation and
citation omitted). Further, statements by counsel that raise
new facts constitute matters beyond the pleadings and cannot
be considered on a Rule 12(b)(6) motion. Id. at 449.
Additional statements by counsel that may not be considered
include not only those of the pleader's counsel but also
statements of defense counsel who is seeking dismissal.
Id. at 449 (citing Dolgaleva v. Va. Beach City
Pub. Sch., 364 Fed.Appx. 820, 825 (4th Cir. 2010), in
which district court erroneously dismissed complaint based on
defendant's statements in hearing that disputed
and ADEA claims: the “employer” issue
employment is a necessary element to assert a plausible claim
under the ADA and the ADEA. See 42 U.S.C.
§§ 12111(2), 12112(a) (ADA; “covered
entity” is prohibited from discriminating against a
qualified individual with a disability and a “covered
entity” is defined as “an employer, employment
agency, labor organization, or joint labor-management
committee”); 42 U.S.C. § 12111(4) (ADA;
“[t]he term ‘employee' means an individual
employed by an employer”); and the ADEA; see
29 U.S.C. § 623(a) (ADEA; “It shall be unlawful
for an employer - (1) to fail or refuse to hire or
to discharge any individual or otherwise discriminate against
any individual . . . because of such individual's
age”) (emphasis added).
brings his ADA and ADEA claims against Defendant Raycom. As
noted by Raycom, however, Plaintiff's Complaint indicates
he was “employed by WIS-TV.” Compl. ¶¶
1, 9. The first paragraph of Plaintiff's Complaint also
states that “WIS-TV is owned by the defendant, Raycom
Media, Inc.” Compl. ¶ 1. Defendant Raycom argues
Plaintiff has not stated an ADA or ADEA claim against it
because Raycom “did not employ Plaintiff.” Def.
seeking dismissal, Defendant argues the assertion that
Plaintiff “was employed by WIS-TV” is
“erroneous, ” and states that Plaintiff was
“employed by WIS, LLC, a Delaware limited liability
company with its principal place of business in Montgomery,
Alabama.” Def. Mem. 8. Defendant's Memorandum
continues, “WIS, LLC is the operating entity for
WIS-TV. All WIS-TV assets are owned, and all WIS-TV employees
are employed by WIS, LLC-not Defendant
Raycom.” Id. (emphasis in
on the statement of defense counsel in the memorandum,
Defendant Raycom submits that, because Plaintiff
“appears to have acknowledged that he was employed by
WIS, LLC in the pleadings and motions regarding the Initial
Complaint, ” Plaintiff “simply fails to allege
any facts to demonstrate he was employed by Raycom.”
Def. Mem. 8.
response, Plaintiff submits several attachments and several
pages of argument to support his argument that there was an
employer/employee relationship between him and Raycom. Pl.
Resp. 5-13 & ECF Nos. 6-1 (Press Release regarding
Liberty Corporation merger with Raycom Media), 6-2 and 6-3
(“Raycom Media Employee Handbook” and addendum
thereto for Former Liberty Employees), 6-4 (Marketing
Producer Job Description), 6-5 (Mar. 21, 2017 Letter from
Raycom Media Director of Human Resources, Defendant Adam
Cannavo regarding Plaintiff's request for
accommodations); 6-5 (Pl. Mar. 21, 2017 Raycom Media Paystub,
indicating Pl. is part of “Pay Group LWIS”). In
large measure, Plaintiff's legal argument focuses on case
law related to determining whether an employer/employee
relationship exists-including whether Defendant Raycom
exercised “control” over Plaintiff. Pl. Mem. 5-8.
Plaintiff also makes the alternate argument that “even
if WIS, LLC is found to employ Plaintiff in some way,
Defendant Raycom is liable as a joint employer.” Pl.
reply, Defendant Raycom argues that much of Plaintiff's
opposition to the Motion to Dismiss the ADA and ADEA
claims-particularly the joint-employer argument-need not be
considered because Plaintiff is not permitted effectively to
amend his Complaint through argument contained in response to
a motion. Defendant also refutes the substance of
Plaintiff's arguments regarding the employer issue. Reply
may be considered?
undersigned finds much of the argument and exhibits proffered
to be outside the scope of its consideration at this Rule
12(b)(6) stage. Rather, the court may consider only the
allegations as pleaded in the Complaint as well as any
documents as to which it can take judicial notice and any
documents attached to the Complaint or Motion that are
integral to the Complaint and whose authenticity is not at
issue. See, e.g., Kolon Indust., 637 F.3d at 440.
not specifically raised by Plaintiff, the undersigned notes
that Defendant Raycom's very premise on which it bases
this portion of its dismissal motion-that Raycom was not
Plaintiff's “employer” for ADA and ADEA
purposes-is itself outside the purview of the court's
consideration at this time. The undersigned does not doubt
that Raycom and its counsel are in a position to know what
entity it considered to have employed Plaintiff and others at
WIS-TV station in Columbia, South Carolina. Nonetheless, at
this time statements of Defendant through its counsel as to
what appears to be a multi-layered corporate structure will
not be accepted by the undersigned as dispositive at this
it appears that several of the documents provided by
Plaintiff ought not be considered at this juncture. The
Complaint itself, and documents that are part of the public
record or are incorporated by reference and that are integral
and authentic may be considered. With no analysis other than
general citation to two decisions from the Ninth Circuit
Court of Appeals, Plaintiff has attached six documents that
it suggests are “provided as judicial notice or are
incorporation (sic) by reference solely to show Raycom Media,
Inc. is the correct Defendant.” Pl. Mem. 6 n.1.
Plaintiff indicates his desire that the documents not be used
by the court to transform the motion to dismiss into one for
summary judgment. Id.
only document of which the court may take judicial notice
would be the press release concerning Liberty
Corporation's merger with Raycom Media, at least as to
the fact that such a press release was issued on January 31,
2006. ECF No. 6-1. Cf. In re Human Genome Sciences Inc.
Sec. Litig., 933 F.Supp.2d 751, 758 (D. Md. 2013)
(finding it appropriate to take judicial notice of press
release to establish the date of public notice rather than
the truth of the matter asserted). None of the other
documents proffered by Plaintiff would be subject to judicial
notice, making them appropriately considered only if integral
to the claims of the Complaint.
construing what documents might be considered to be
“integral” to the Complaint, it may be
appropriate to consider Plaintiff's job description, ECF
No. 6-4, and the March 21, 2017 letter to Plaintiff from
Defendant Cannavo, Director of Human Resources for Raycom
Media, ECF No. 6-5.
bottom, of course, the court's job here is to determine
whether the Complaint itself has “facial
plausibility” in that it includes pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Drawing all
reasonable inferences in Plaintiff's favor, the
undersigned is of the opinion that Plaintiff's ...