United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, UNITED STATES MAGISTRATE JUDGE
employment discrimination case, Kristy Michelle Wolff
(“Plaintiff”) is suing her former employer Bee
Healthy Medical Weight Loss Clinic (“Bee
Healthy”). She also names as defendants two of her
former coworkers, Julie Butcher
(“Butcher”) and Valinda Mims (“Mims”)
(“Individual Defendants”). Plaintiff alleges
discrimination and retaliation under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. (“Title VII”) and the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. § 12101,
et seq (“ADA”). All pretrial proceedings
in this case have been referred to the undersigned pursuant
to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local
Civ. Rule 73.02(B)(2)(g) (D.S.C.).
matter comes before the court on the following motions: (1)
Bee Healthy and Butcher's motion to dismiss [ECF No. 33];
(2) Mims' motion to dismiss [ECF No. 39]; (3) Bee Healthy
and Butcher's motion to strike [ECF No. 53]; and (4)
Mims' motion to join in the motion to strike [ECF No.
56]. Because Mims' motions incorporate Bee Healthy and
Butcher's arguments, the undersigned refers to them
collectively as “Defendants' motion” for ease
of reference. The motions having been briefed [ECF Nos. 37,
49-51, 54-55, and 57], they are ripe for disposition.
Standard on Motion to Dismiss
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
“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)). The court
is “not required to accept as true the legal
conclusions set forth in a plaintiff's complaint.”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999). Indeed, “[t]he presence of a few conclusory
legal terms does not insulate a complaint from dismissal
under Rule 12(b)(6) when the facts alleged in the complaint
cannot support” the legal conclusion. Young v. City
of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss,
a court may consider “documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.” Tellabs. Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007).
Claims Against Individual Defendants
Individual Defendants argue they are entitled to dismissal on
Plaintiff's Title VII and ADA claims. Title VII prohibits
discrimination by employers. See42 U.S.C §
2000e-2. Title VII defines “employer” as “a
person engaged in an industry affecting commerce who has
fifteen or more employees . . . and any agent of such
person.” 42 U.S.C. § 2000e(b). In construing the
definition of “employer” under Title VII, it is
well-established that Title VII does not impose individual
liability on supervisory employees. See Lissau v.
Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4th
Cir. 1998) (holding that supervisors cannot be found liable
in their individual capacity under Title VII because they do
not fit within the definition of an employer). Plaintiff does
not allege that the Individual Defendants were her employers
under Title VII.
because Title VII does not authorize a remedy against
individuals for violation of its provisions, and because
Congress has made the remedies available in Title VII
applicable to ADA actions, the ADA does not permit an action
against Individual Defendants for conduct protected by the
ADA. Baird ex rel. Baird v. Rose, 192 F.3d 462, 472
(4th Cir. 1999).
Plaintiff's briefing includes references to negligence
claims [ECF No. 51 at 3-4], such allegations are not
contained in her complaint.Thus, Plaintiff's claims
against Individual Defendants are subject to dismissal.
Service of Process
also move to dismiss Plaintiff's complaint based on
failure to properly perfect service of process on them. [ECF
No. 33]. Plaintiff has not properly served Bee Healthy
pursuant to Fed.R.Civ.P. 4. However, Rule 4(m) also states
that if the plaintiff shows good cause for the failure to
properly serve a defendant, the court should extend by an
appropriate amount the time for service. Here, Plaintiff
immediately attempted to serve Defendants upon being issued a
summons, although she ultimately did not perfect service
pursuant to Rule 4's requirements for service by mail, as
the service documents did not have an appropriate addressee
for Bee Healthy and the documents were not sent by certified
for Bee Healthy is directed to advise the court by August 29,
2018, via a short filing on the docket whether they are
authorized to accept service on behalf of Bee Healthy. If Bee
Healthy's counsel are not authorized to accept service,
the undersigned plans to extend Plaintiff's deadline for
accepting service of process. For the foregoing reasons, the
undersigned recommends that ...