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Busha v. South Carolina Department of Mental Health

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

January 28, 2019

Teresa Busha, Plaintiff,
South Carolina Department of Mental Health, Defendant.



         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 South Carolina Department of Mental Health (“SCDMH” or “Defendant”). ECF No. 4. Having considered Defendant's Motion and Memorandum; Plaintiff's opposition, ECF No. 9; Defendant's Reply, ECF No. 10; and applicable law, the undersigned recommends Defendant's Motion to Dismiss be denied.

         I. Factual and procedural background

         A. Plaintiff's pending actions

         1. Busha I

         Plaintiff, Teresa Busha, has two cases pending before the court, both of which relate to her employment with Defendant. Plaintiff's first action, Busha v. SCDMH, C.A. No. 6:17-571-DCC, (“Busha I”), was removed to this court on March 1, 2017. ECF No. 1 in Busha I. In ruling on Defendant's Motion for Judgment on the Pleadings in that matter, the court dismissed Plaintiff's claims other than those for allegedly retaliatory acts in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. as applied through 28 C.F.R. Part 35 Section 504 (“Rehabilitation Act”), which took place on or after January 26, 2016. See ECF Nos. 35 and 29 in Busha I (Order adopting Report and Recommendation (R&R) that granted in part and denied in part Defendant's Motion for Judgment on the Pleadings). The alleged retaliatory acts at issue in Busha I took place in 2016.[1] Upon the close of discovery in Busha I, Defendant filed a Motion for Summary Judgment in which it seeks dismissal of the only claims pending in that case (Rehabilitation Act retaliation claims that took place on or after January 26, 2016). ECF No. 70 in Busha I (filed July 27, 2018). On January 24, 2019, the undersigned filed an R&R recommending Defendant's Motion for Summary Judgment be granted. ECF No. 83 in Busha I. Please see that R&R for further detail concerning Busha I.

         2. Busha II

         Plaintiff filed the instant action, “Busha II, ” in the Court of Common Pleas for Greenville County on August 3, 2018. Defendant removed Plaintiff's Complaint to this court on August 22, 2018. ECF Nos. 1, 1-1. Plaintiff's only cause of action in Busha II is for disability discrimination and retaliation under the Rehabilitation Act-specifically, her claim focuses on her termination, an adverse action that was not before the court in Busha I. Compl. ¶¶ 15-20. On August 28, 2018, Defendant filed the Motion to Dismiss now under consideration, arguing Busha II should be dismissed as untimely or because it is “contrary to the interests of judicial economy and efficiency, and prejudicial to SCDMH.” Def. Mem. 1.

         Taken from the Complaint and accepted as true for purposes of this Report, Plaintiff alleges the following facts potentially relevant to deciding Defendant's pending Motion to Dismiss:

         Plaintiff was employed by SCDMH for approximately six years as a Human Services Specialist I (“HSSI”). Compl. ¶ 4. Plaintiff outlines alleged disabilities, injuries, and requests for accommodation from 2015, and notes her January 2017 filing of Busha I. See Compl. ¶¶ 5-11.

         Plaintiff alleges that on June 16, 2017 she needed to leave work early, and “Defendant's agents demanded that her sick leave request be contemporaneously accompanied by a doctor's excuse.” Compl. ¶ 12. Three days later, “as a result of the intensified scrutiny, severe discrimination and retaliation Plaintiff was experiencing at the hands of Defendant's agents, Plaintiff made her first ever medication error[.]” Id. “Allegedly as a result thereof, ” Plaintiff avers:

[O]n June 26, 2017, Defendant notified Plaintiff that it intended to terminate Plaintiff's employment for this first offense error, subject to a meeting with Defendant's Center Director, Joe James.

Compl. ¶ 12. Plaintiff continues:

         Despite Plaintiff meeting with Mr. James' designee and proving how Plaintiff was never trained on the medication policy and how she was being treated differently, singled out, discriminated against and retaliated against, Defendant then terminated Plaintiff's employment on August 4, 2017, which was received by Plaintiff on August 8, 2017.

Compl. ¶ 13. Plaintiff indicates she has “exhausted all administrative remedies required relating to the termination of her employment by Defendant.” Compl. ¶ 14.

         II. Legal standard

         Defendant seeks Rule 12(b)(6) dismissal of Plaintiff's Rehabilitation Act claim of discrimination and retaliation, alleging it was not timely brought or that it should be dismissed in the interest of judicial economy and fairness. 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 that would support his claim and would entitle him to relief. Fed.R.Civ.P. 12(b)(6). 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). When ruling on 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). Nonetheless, 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). The court need not accept legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), or “legal conclusions drawn from the facts.” Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009) (internal quotation omitted).

         Typically, “a defense based on the statute of limitations must be raised by the defendant through an affirmative defense, see Fed. R. Civ. P. 8(c), and the burden of establishing the affirmative defense rests on the defendant.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). Courts generally do not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses” through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro,178 F.3d 231, 243 (4th Cir. 1999). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense ‘clearly appear [] on the face of the complaint.'” Goodman, 494 F.3d at 464 (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. Forst,4 F.3d 244, 250 (4th Cir. 1993) (emphasis added in Goodman); accord Pressley v. Tupperware Long Term Disability Plan,533 F.3d 334, 336 (4th Cir. ...

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