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Boyd v. Johnson Food Service LLC

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

March 8, 2019

Valerie M. Boyd, Plaintiff,
v.
Johnson Food Services, LLC; Trinity Foods, Inc. d/b/a Military Food & Beverage, Preston Wider, III, and Tim Zimmerman, Defendants.

          ORDER AND OPINION

         Plaintiff Valerie M. Boyd filed this action pro se against Defendants Johnson Food Services, LLC (“JFS”), Trinity Foods, Inc. d/b/a Military Food & Beverage (“MFB”), Preston Wider, III, and Tim Zimmerman alleging that she was subjected to gender discrimination, race discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000e-17. (ECF No. 1.)

         This matter is before the court on the following motions: (1) JFS and Wider's Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, Motion for Summary Judgment pursuant to Rule 56 (ECF No. 22); (2) Wider's Motion to Dismiss pursuant to Rule 12(b)(5) (ECF No. 22); (3) MFB's Motion to Dismiss pursuant to Rules 12(b)(5) and 12(b)(6) (ECF No. 31); (4) Zimmerman's Motion to Dismiss pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) (ECF No. 33); and (5) Plaintiff's First Motion to Amend the Complaint pursuant to Rule 15 (ECF No. 41). In accordance with 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), the matter was referred to United States Magistrate Judge Shiva V. Hodges for pretrial handling. On August 24, 2018, the Magistrate Judge issued a Report and Recommendation in which she recommended that the court grant Plaintiff's Motion to Amend, grant Zimmerman's Motion to Dismiss, and deny as moot the Motions to Dismiss or Motion for Summary Judgment of the remaining Defendants. (ECF No. 47 at 4.) MFB filed Objections to the Magistrate Judge's Report and Recommendation, which are presently before the court. (ECF No. 48.) For the reasons set forth below, the court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Amend, GRANTS Zimmerman's Motion to Dismiss, GRANTS IN PART AND DENIES IN PART MFB's Motion to Dismiss, and DENIES AS MOOT JFS and Wider's Motions to Dismiss or Motion for Summary Judgment.

         I. RELEVANT BACKGROUND TO PENDING MOTIONS

         The facts of this matter are discussed in the Report and Recommendation. (ECF No. 47.) The court concludes, upon its own careful review of the record, that the Magistrate Judge's factual summation is accurate and incorporates it by reference. The court will only reference herein additional facts viewed in the light most favorable to Plaintiff that are pertinent to the analysis of her claims.

         Plaintiff is an African-American woman whose “appearance is more characteristic of a man” and she “does not conform to gender stereotypes and norms about women.” (ECF No. 46-2 at 3 ¶¶ 10, 14.) Plaintiff asserts that “[b]oth JFS and MFB are federal contractors who provide food service to the soldiers at Fort Jackson.” (ECF No. 46 at 1-2.) At the time of her termination, Plaintiff alleges that she had been employed by JFS over twenty-five (25) years and MFB over fourteen (14) years. (ECF No. 46-2 at 3 ¶¶ 15, 16.) Plaintiff contends that she “worked both jobs simultaneously” for many years. (ECF No. 46 at 2.)

         Plaintiff alleges that her employment problems began when Wider was promoted to the position of assistant manager to the project manager at JFS. (ECF No. 46-2 at 4 ¶ 26.) Plaintiff alleges that Wider disliked Plaintiff “because of her sexual orientation and her nonconformance with normal gender roles.” (Id. ¶ 28.) Plaintiff further alleges that on September 15, 2015, Wider terminated her employment for a minor policy violation. (Id. at 5 ¶ 35.) After Wider terminated her, Plaintiff contends that he engaged in a malicious campaign of harassment against her while she was still employed at MFB. (Id. ¶ 39.) Thereafter, Plaintiff contends that MFB and JFS eventually retaliated against her “by revoking her privileges to be on base and terminating her from MFB.” (ECF No. 46 at 2.)

         On or about April 21, 2017, Plaintiff filed a Charge of Discrimination (the “Charge”) with the United States Equal Employment Opportunity Commission (“EEOC”). (ECF No. 1 at 5.) After receiving notice of the right to sue from the EEOC as to the Charge on September 19, 2017 (see ECF No. 1-1 at 1), Plaintiff filed an action pro se in this court on December 19, 2017, alleging claims for gender discrimination, race discrimination, and retaliation in violation of Title VII. (ECF No. 1 at 3-12.) As a result of having issued Plaintiff the Summons on January 24, 2018 (see ECF No. 14), the Magistrate Judge entered an Order on April 24, 2018, placing Plaintiff “on notice that unless good cause is shown to the court by May 8, 2018, for her failure to effect service of the summons and complaint on defendants, plaintiff's action will be recommended for dismissal without prejudice.” (ECF No. 18 at 1.) On May 8, 2018, the court received a letter from Plaintiff stating that she was unaware of the service requirement and informing the court that each Defendant had been served.[1] (ECF No. 20; see also ECF Nos. 21, 21-1.)

         On May 21, 2018, JFS and Wider jointly filed a Rule 12(b)(6) Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (ECF No. 22.) In addition, Wider asserted he was entitled to dismissal of the matter pursuant to Rule 12(b)(5). (ECF No. 22.) On May 23, 2018, MFB and Zimmerman separately filed Motions to Dismiss pursuant to Rules 12(b)(5) and 12(b)(6). (ECF Nos. 31, 33.) Zimmerman also asserted he was entitled to dismissal of the matter pursuant to Rule 12(b)(1).

         After she was able to procure counsel, Plaintiff filed a Motion to Amend the Complaint on July 23, 2018, to which MFB, JFS, and Wider filed Memorandums of Law in Opposition on August 6, 2018. (ECF Nos. 41, 42, 43.) As an attachment to her Motion, Plaintiff submitted a proposed first amended complaint alleging Title VII claims for harassment, hostile work environment, and retaliation in addition to a state tort claim for intentional infliction of emotional distress. (ECF No. 41-1.) On August 24, 2018, Plaintiff submitted a Reply in Opposition to Defendants' Memorandums in Opposition to Plaintiff's First Motion to Amend the Complaint that included a revised draft amended complaint adding additional facts, a specific Title VII claim for discrimination, and another state tort claim for tortious interference with contract. (ECF Nos. 46, 46-2.)

         Upon her review of the aforementioned Motions, the Magistrate Judge issued her Report and Recommendation on August 24, 2018, recommending that the court grant Plaintiff's Motion to Amend (ECF No. 41), grant Zimmerman's Motion to Dismiss (ECF No. 33), and deny as moot the Motions by the remaining Defendants (ECF Nos. 22, 31). (ECF No. 47.) On September 7, 2018, MFB filed Objections to the Report and Recommendation. (ECF No. 48.) Plaintiff filed a Memorandum to Accept the Magistrate Judge's Report and Recommendation to Grant Plaintiff's Motion to Amend the Complaint on September 21, 2018. (ECF No. 50.)

         II. JURISDICTION

         This court has jurisdiction over Plaintiff's Title VII claims via 28 U.S.C. § 1331, as the claims arise under a law of the United States, and also via 42 U.S.C. § 2000e-5(f)(3), which empowers district courts to hear claims “brought under” Title VII.

         III. LEGAL STANDARD

         A. The Magistrate Judge's Report and Recommendation

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court reviews de novo only those portions of a magistrate judge's report and recommendation to which specific objections are filed, and reviews those portions which are not objected to - including those portions to which only “general and conclusory” objections have been made - for clear error. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. ...


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