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Sibert v. Raycom Media Inc.

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

March 19, 2018

William D. Sibert, Plaintiff,
v.
Raycom Media, Inc.; Adam Cannavo and Lyle Schulze, Defendants.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Factual and procedural background

         A. Prior Action

         This is Plaintiff's second case in this court related to events surrounding his leaving his employment at WIS-TV.[1] 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.)).

         B. The instant litigation

         On 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.

         Taken from the Complaint and accepted as true for purposes of this Report, Plaintiff alleges the following potentially relevant facts:

         Plaintiff's 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         II. Legal standard

         Defendants 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.

         “A 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. 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 . . .

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).

         As the 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. 2006).

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 complaint's allegations).

         III. Analysis

         A. ADA and ADEA claims: the “employer” issue

         Unquestionably, 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).

         Plaintiff 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. Mem. 7.

         In 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 original).[2]

         Based 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.

         In 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. Mem. 9-13.

         On 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 2-7.

         1. What may be considered?

         The undersigned finds much of the argument and exhibits proffered to be outside the scope of its consideration at this Rule 12(b)(6) stage.[3] 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.

         Although 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 motion-to-dismiss stage.

         Further, 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.

         The 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.

         Liberally 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.[4]

         At 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 ...


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