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Ballew v. United Parcel Service Inc.

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

August 20, 2018

GRE Ashley Ballew, Plaintiff,
v.
United Parcel Service Inc., Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant's motion to dismiss. [Doc. 14.] Plaintiff alleges gender discrimination claims pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) as well as a ratification claim. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

         Plaintiff filed this action on January 8, 2018 [Doc. 1], and filed an Amended Complaint on February 21, 2018 [Doc. 12]. On March 7, 2018, Defendant filed a motion to dismiss. [Doc. 14.] Plaintiff filed a response in opposition on March 21, 2018 [Doc. 17], and Defendant filed a reply on March 28, 2018 [Doc. 19]. Accordingly, the motion to dismiss is ripe for review.

         BACKGROUND [1]

         Plaintiff is a female who has been employed by Defendant for more than twenty years. [Doc. 12 ¶ 10.] She has worked primarily as a full-time driver at Defendant's Greenville facility for the past fourteen years. [Id.] She earned $36.00 per hour and worked sixty hours per week as a full-time driver. [Id. ¶ 12.]

         On September 26, 2016, while on leave under the Family and Medical Leave Act (“FMLA”), Plaintiff informed her local supervisor, Chris Rosenbury (“Rosenbury”), that she was ending her employment with Defendant. [Id. ¶ 11.] Subsequently, Plaintiff realized she had made a mistake and did not want to resign. [Id.] She notified Rosenbury and the district supervisor, Dejay Fayreau (“Fayreau”), that she did not want to resign, and she was rehired on October 5, 2016.[2] [Id.]

         Although Plaintiff was rehired, she was not rehired as a full-time driver; instead she was rehired in a part-time holiday help position, earning $11.00 per hour and working approximately four hours per day. [Id. ¶ 12.] Defendant refused to reinstate Plaintiff to the full-time driver position, despite Plaintiff's repeated requests to supervisors, including Rosenbury and Fayreau. [Id.] Instead, Plaintiff was then assigned to a regular temporary driver position, earning $24.00 per hour. [Id. ¶ 13.] Therefore, Plaintiff continued to make less than she would have if Defendant had reinstated her to the full-time driver position. [Id.] Plaintiff complained and objected, but Defendant failed to reinstate her to the full-time driver position she held before she ended her employment. [Id.]

         Plaintiff then discovered that, prior to Plaintiff's FMLA leave, two male employees-Tony Johnson (“Johnson”) and Rudy Krauss (“Krauss”)-who were full-time drivers at Defendant's Greenville facility, had resigned but were rehired two months later as full-time drivers, earning the same salary and working the same position they previously held. [Id. ¶ 14.] Plaintiff contends that she was treated differently and was not reinstated to the full-time driver position because she is female, a deliberate and intentional act of gender discrimination. [Id. ¶ 15.] Plaintiff has repeatedly raised the issue with Defendant, but has been ignored. [Id. ¶ 16.]

         Before filing this case, Plaintiff filed a charge of discrimination (“Charge”) with the Equal Employment Opportunity Commission (“EEOC”). [Id. ¶ 21.] On October 10, 2017, the EEOC issued a dismissal and notice of rights. [Id. ¶ 22; Doc. 12-1.] Subsequently, Plaintiff filed the instant action, asserting four causes of action: gender based discrimination under Title VII, failure to promote under Title VII, disparate pay under Title VII, and ratification. [Doc. 12 ¶¶ 18-44.]

         APPLICABLE LAW

         Motion to Dismiss Standard

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support her claim and entitle her to relief. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).

         With respect to well-pleaded allegations, the United States Supreme Court explained 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 ...

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