United States District Court, D. South Carolina, Spartanburg Division
Thomas R. Holt, Plaintiff,
ARES Security Corporation, and Benedict A. Eazzetta Defendants.
OPINION AND ORDER
Marvin Quattlebaum, Jr. United States District Judge.
matter is before the Court on the Partial Motion to Dismiss
of ARES Security Corporation and Benedict A. Eazzetta
(“Defendants”). (ECF No. 13.) Thomas R. Holt
(“Plaintiff”) filed and served a Complaint with a
thorough and detailed set of facts regarding the dispute that
forms the basis of this lawsuit. (ECF No. 1.) Plaintiff
alleged nine causes of action against Defendants. This Motion
pertains to two of those causes of action: Plaintiff's
eighth cause of action for violation of the South Carolina
Unfair Trade Practices Act (“SCUTPA”) and ninth
cause of action for wrongful discharge in violation of public
policy (“WDPP”). For the following reasons, the
Court grants Defendants' Partial Motion to Dismiss. (ECF
STANDARD OF REVIEW
to Dismiss for Failure to State a Claim
plaintiff's complaint should set forth “a short and
plain statement. . . showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.” Id. (quoting
Twombly, 550 U.S. at 556)). In considering a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
court “accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff . . . .” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009). However, a court “‘need not accept the
[plaintiff's] legal conclusions drawn from the facts,
' nor need it ‘accept as true unwarranted
inferences, unreasonable conclusions, or
arguments.'” Philips v. Pitt Cty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (quoting
Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th
Cir.2006)) (modification in original). A court should grant a
Rule 12(b)(6) motion if, “after accepting all
well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those
facts in the plaintiff's favor, it appears certain that
the plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
South Carolina Unfair Trade Practices Act
move to dismiss Plaintiff's claim under the South
Carolina Unfair Trade Practices Act, arguing that the SCUTPA
does not apply in the employer-employee context. (ECF No.
13-1 at 6.) In order to state a claim under SCUTPA, a
Plaintiff must establish that: (1) the defendant engaged in
an unlawful trade practice; (2) that the plaintiff suffered
actual, ascertainable damages as a result of the
defendant's use of the unlawful trade practice, and (3)
that the unlawful trade practice engaged in by the defendant
had an adverse impact on the public interest. S.C. Code
§ 39-5-140; Havird Oil Co. v. Marathon Oil Co.,
149 F.3d 283, 291 (4th Cir.1998). Decisions from this
District and from the South Carolina appellate courts have
consistently held that disputes arising between employers and
employees are private matters that fall outside the scope of
SCUTPA. Ramsey v. Vanguard Servs., Inc., No.
8:07-CV-00265-GRA, 2007 WL 904526 at *3 (D.S.C. 22, 2007)
(unpublished) (dismissing SCUTPA claim and noting that
“South Carolina law clearly establishes that issues
involving the employer/employee relationship fall outside the
scope” of the Act”); Uhlig LLC v.
Shirley, No. 6:08-CV-01208-JMC, 2011 WL 1119548, at *9
(D.S.C. Mar. 25, 2011) (unpublished) (holding that disputes
arising between employers and employees are private matters
that fall outside the scope of the SCUTPA); Miller v.
Fairfield Communities, Inc., 382 S.E.2d 16, 20 (S.C. Ct.
App. 1989) (affirming summary judgment on a SCUTPA claim
because an “employer employee relations
matter…is not covered” by the Act), cert.
dismissed, 397 S.E.2d 377 (S.C. 1990); Davenport v.
Island Ford, Lincoln Mercury, Inc., 465 S.E.2d 737, 740
(S.C. 1995) (stating that the employer-employee relationship
does not fall within the intended scope of the SCUPTA).
Plaintiff does not dispute that Defendants' alleged
violation of SCUTPA arose out of an employer-employee
context. Instead, Plaintiff argues that his employer-employee
relationship with Defendants is not determinative and that
his SCUPTA claim should not be dismissed since he has
adequately pled that the public interest is affected by
Defendants' alleged violation of the
SCUTPA. The Court disagrees. In his Memorandum in
Opposition to Partial Motion to Dismiss, Plaintiff cited a
number of cases for the proposition that pleading and
ultimately proving that alleged unfair and deceptive conduct
that impacts the public interest can support a SCUTPA claim.
(ECF No. 20 at 10.) The Court agrees with that position as a
general rule. However, none of the cases cited by Plaintiff
involved employment disputes. Based on Ramsey,
Miller and Davenport, it appears well
settled under South Carolina law that disputes between and
employers and employees are considered private matters that
fall outside the scope of the SCUTPA. Thus, even if all of
Plaintiff's allegations are accepted as true and all
reasonable factual inferences from those facts are construed
in favor of Plaintiff, Plaintiff still cannot prove facts
that would support relief under the SCUTPA. Accordingly,
Defendants' motion to dismiss Plaintiff's SCUTPA
claim is granted.
Wrongful Discharge in Violation of Public Policy
Defendants seek dismissal of Plaintiff's cause of action
for WDPP. In his Complaint, Plaintiff alleges that he was
wrongfully terminated when Defendant ARES terminated him in
retaliation of exposing certain misconduct of Defendants.
Defendants' motion asserts that Plaintiff is an at-will
employee and cannot assert a claim for wrongful termination
unless such termination violates South Carolina public
policy. Defendants assert that Plaintiff has not and cannot
plead any such public policy that Plaintiff's termination
first issue for the Court to address is whether Plaintiff was
an at-will employee. Plaintiff's Complaint alleges the
existence of an employment contract which is typically
inconsistent with at-will status. However, during the May 2,
2018, hearing on Defendants' motion, Plaintiff asserted
and Defendants agreed that, despite the existence of the
contract, Plaintiff was nonetheless at-will because the
contract was for an indefinite period of time. See Small
v. Springs Industries, Inc. 388 S.E.2d 808, 810 (S.C.
1990); Payne v. FMC Corp., No. 1:90-CV-882-6, 1991
WL 352415, at *4 (D.S.C. July 12, 1991) (unpublished).
an at-will employee may be terminated at any time for any or
for no reason, with or without cause. Mathis v. Brown
& Brown of S.C., Inc., 698 S.E.2d 773, 778 (S.C.
2010). However, under South Carolina law, an exception to an
employer's right to terminate an at-will employee with or
without cause can exist if such termination is a retaliatory
discharge that violates a clear mandate of public policy.
Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d
213 (S.C. 1985). The South Carolina Supreme Court has
expressly recognized at least two situations in which an
action for wrongful discharge in violation of public policy
can be maintained: (1) when an employer requires an employee
to violate a criminal law as a condition of maintaining
employment, see Id. at 214-216, and (2) when the act
of terminating an employee is itself in violation of a
criminal law. Culler v. Blue Ridge Elec. Coop.,
Inc., 422 S.E.2d 91, 92- 93 (S.C. 1992). A plaintiff who
fails to allege that (1) he was required to violate a
criminal law or (2) that his termination itself was in
violation of a criminal law, must establish that his
termination constitutes a violation of a clear mandate of
public policy. See Desmarais v. Sci. Research Corp.,
145 F.Supp.3d 595, 599 (D.S.C. 2015).
order to allege a violation of a clear mandate of public
policy, a plaintiff must identify and state a source of a
clear mandate of public policy, Id. at 599, or
“set forth specific allegations that would enable the
court to determine what public policy was violated.”
McNeil v. South Carolina Dept. of Corrections., 743
S.E.2d 843, 850 (S.C. Ct. App. 2013). Significantly, a clear
mandate of public policy is one that has been expressed by
the General Assembly or the Judiciary. Desmarais at
598. In McNeil, the Court explained that the
requirement of an expressed policy was to avoid circumstances
in which an “employee could circumvent the employment