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Wolff v. Bee Healthy Medical Weight Loss Clinic

United States District Court, D. South Carolina

August 15, 2018

Kristy Michelle Wolff, FNP-C, ADN, BSN, MSN, APRN, Plaintiff,
v.
Bee Healthy Medical Weight Loss Clinic; Julie, Coordinator; and Valinda Mims, Defendants.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         In this 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”)[1] 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.).

         This 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.

         I. Standard on Motion to Dismiss

         To 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).

         II. Analysis

         A. Claims Against Individual Defendants

         The 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.

         Additionally, 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).

         Although Plaintiff's briefing includes references to negligence claims [ECF No. 51 at 3-4], such allegations are not contained in her complaint.[2]Thus, Plaintiff's claims against Individual Defendants are subject to dismissal.

         B. Service of Process

         Defendants 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 mail.

         Counsel 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 ...


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