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Lindblad v. J&L Services, Inc.

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

January 30, 2019

RAQUEL LINDBLAD and TYRESHIA BRANTLEY, as an individual and on behalf of all others similarly situated, Plaintiffs,
v.
J&L SERVICES, INC., JOEL PELLICI, JR., RICK KAKALL, CARLO HAMADE, and McDONALD'S CORP., Defendant.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This is an employment discrimination and retaliation case. Plaintiffs bring claims pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1981, as well as state law claims for wrongful termination and negligent/reckless supervision and retention. Presently before the court are two motions: Defendants J&L Services, Inc., Joel Pellici, Jr., Rick Jakall, and Carlo Hamade's partial Motion to Dismiss (ECF No. 18) and McDonald's Corp.'s[1] Motion to Dismiss (ECF No. 37). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.

         II. FACTUAL ALLEGATIONS

         Plaintiff Lindblad, a white female, was a store manager at a McDonald's franchise owned by Defendant J&L Services, Inc., which is owned by Defendant Joel Pellici. Compl. ¶¶ 1, 29. One of her responsibilities as store manager was to hire employees. Compl. ¶ 29. Though she sought to hire qualified employees for available positions regardless of their race, her superiors-Defendant Rick Jakall, Area Supervisor for Pellici, and Defendant Carlo Hamade, Director of Operations for Pellici -prohibited her from considering applications submitted by applicants with “black sounding” names or names that suggested a non-Caucasian race or ethnicity in order to comply with “Defendants' policy” related to “demographics” and keeping restaurants “in balance.” Compl. ¶¶ 30-33. Lindblad questioned Defendants about this “policy” because she believed the “policy” to be “illegal” since it prohibited her from hiring “person[s] of color.” Compl. ¶ 39. Thereafter, Lindblad was subjected to reprimands for making hiring decisions based on qualifications as opposed to race, forced to work extended shifts and on pre-approved days off, forced to work when she was sick, not paid for sick leave for which she was previously compensated, and written up for conduct that did not violate any stated policies or procedures. Compl. ¶ 42. As a result, Plaintiff alleges that she began to suffer emotional distress to the point where she had no choice but to resign. Compl. ¶ 49. Lindblad filed an EEOC charge on or about November 22, 2018. Lindblad received a Notice of Right to Sue on or about March 30, 2018. Compl. ¶ 14.

         Brantley applied for employment with Defendants but her application was disregarded on the basis that her name was deemed “black” or “minority.” Compl. ¶ 1. Brantley filed an EEOC charge on or about March 15, 2018. Brantley received a Notice of Right to Sue on or about March 30, 2018. Compl. ¶ 15.

         III. STANDARD OF REVIEW

         Defendants seek dismissal of Lindblad's claims against them pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

         Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:

[T]he pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
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.” 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.

Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003).

         Defendant McDonald's Corp. also seeks dismissal of Plaintiffs' Title VII claims pursuant to Rule 12(b)(1), Fed.R.Civ.P. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiffs' burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991).

         IV. DISCUSSION

         A. Defendants J&L Services, Inc., Joel Pellici, Jr., Rick Jakall, and Carlo Hamade's partial Motion to Dismiss

         These Defendants seek to dismiss Lindblad's claims against them for hostile work environment in violation of Title VII (a portion of Count One), wrongful termination in violation of South Carolina public policy (Count Two), negligent/reckless supervision and retention (Counts Three and Four), and discrimination and hostile work environment in violation of 42 U.S.C. § 1981 (Counts Five and Six). In addition, Defendants Pellici, Jackall, and Hamade move this Court to dismiss all of Lindblad's claims asserted against them under Title VII.[2] Defendants argue that Lindblad does not allege that she suffered any discrimination or a hostile work environment because of any of her protected traits under Title VII. They argue that Lindblad's state law claims are duplicative of her Title VII and § 1981 claims and, thus, are subject to dismissal. Finally they argue that Plaintiff's Title VII claims against the individual defendants are barred because Title VII does not impose individual liability.

         1. Title VII and § 1981 Claims

         As an initial matter, Lindblad asserts in her reply that she does not intend to assert any Title VII claims against the individual defendants and, to the extent such claims are reflected in the complaint, they are withdrawn.

         In her first, fifth, and sixth causes of action, Plaintiff asserts that J&L Services violated Title VII and § 1981 by subjecting her to a hostile work environment and retaliation because she was exposed to systematic and pervasive discriminatory hiring practices based on race and ethnicity that Defendants demanded she follow as a condition of her employment. When she expressed her concerns about the discriminatory hiring practices she was subjected to intimidating, threatening, and unwelcome conduct intended to force her to impose and enforce the discriminatory practices.

         Title VII makes it “an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). In addition, Title VII makes it an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added).

         Similarly, 42 U.S.C. § 1981 protects the equal right of “[a]ll persons within the jurisdiction of the United States” to “make and enforce contracts” without respect to race and defines “make and enforce contracts” to “includ[e] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Further, § 1981 allows a “complaint of retaliation against a person who has complained about violation of another person's contract-related right.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008).

         Defendants argue that Lindblad's Title VII and § 1981 claims are appropriately pleaded in the retaliation context, which Lindblad has asserted, rather than in the context of discrimination or hostile work environment because Lindblad alleges that Defendants took adverse action against her because of her resistence to what she believed to be discriminatory hiring practices, and not because of any protected class, i.e., her race, color, religion, sex, or national origin. Defendants point to Childress v. City of Richmond, 134 F.3d 1205, 1208 (4th Cir. 1998) for support. In Childress, the Fourth Circuit, in an equally divided, per curiam en banc decision, affirmed a District Court ruling that white male police officers did not have standing to bring an action for discrimination against female and black officers by the officers' supervisor. As Judge Luttig explained in his concurrence:

[I]n order to qualify as a “person aggrieved” authorized to bring a Title VII action, a plaintiff must be a member of the class of direct victims of conduct prohibited by Title VII, that is, the plaintiff must assert his own statutory rights and allege that he, not someone else, has been “discriminate[d] against ... with respect to his compensation, terms, conditions, or privileges of employment, because of [his] race, color, religion, sex, or national origin.” It follows that, because the white male plaintiffs in the present case assert only the rights of third-parties to be free from race or sex-based discrimination in the workplace, they have not stated a cause of action under Title VII.

Id. at 1209. The facts in Childress are distinguishable from those here. In Childress, white male officers alleged that their immediate supervisor, also a white male, made a number of disparaging remarks to and about female and black members of the police force, some in the presence of the black and female officers, and others made only in the presence of the white officers. Childress v. City of Richmond, Va., 120 F.3d 476, 478 (4th Cir. 1997), reh'g en banc granted, opinion vacated (Sept. 24, 1997), on reh'g en banc, 134 F.3d 1205 (4th Cir. 1998). The plaintiffs in Childress alleged that they suffered a hostile work environment based on their observations of their supervisor's disparaging comments towards members of a protected class. Here, Lindblad alleges that she was forced to participate in Defendants' discriminatory hiring practices.

         Defendants also cite to Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1180 (7th Cir. 1998), which is more akin to the facts here. There, a white female sued her employer for race and sex discrimination, arguing that the company, an employment agency, engaged in discriminatory practices by searching for white candidates for placement with certain companies. The Seventh Circuit rejected her Title VII claims, holding that she was not the target of discrimination and noting “it is hard to see how [the plaintiff's theory] could be reconciled with the ...


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