United States District Court, D. South Carolina, Charleston Division
OPINION AND ORDER
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE.
John Gentry (“Plaintiff”) brought the within
action against Defendant Bioverativ U.S. LLC
(“Defendant”) in the Court of Common Pleas for
Berkeley County, South Carolina. The action was removed to
this court on March 22, 2019. Plaintiff claims Defendant
wrongfully terminated his employment in violation of public
policy. Plaintiff also alleges the termination gives rise to
a violation of the South Carolina Payment of Wages Act as
well as claims of promissory estoppel, conversion, and
matter is before the court on Defendant's motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
filed on March 29, 2019. ECF No. 5. Plaintiff filed an
opposition to Defendant's motion on April 18, 2019, ECF
No. 10, to which Defendant filed a reply on April 25, 2019,
ECF No. 11. The court exercises subject matter jurisdiction
pursuant to 28 U.S.C. § 1332.
began his employment with Defendant's predecessor,
Biogen, on September 3, 2013, as the company's hemophilia
account executive. ECF No. 1-1 at ¶¶ 7, 9.
Defendant is a company that specializes in the development
and sale of pharmaceutical products to treat hemophilia and
other blood disorders, ECF No. 5-1 at 1, and was formed from
Biogen's hemophilia division in February 2017, ECF No.
1-1 at ¶ 8. In early January 2018, Plaintiff learned
that Sanofi Genzyme had purchased or was planning to purchase
Defendant for approximately $11.6 billion. Id. at
¶¶ 2, 12, 13.
February 22, 2018, Plaintiff received a telephone call from
Jim Snider, Defendant's vice president of sales. ECF No.
1-1 at ¶¶ 11, 15. Mr. Snider told Plaintiff that a
physician had complained that Plaintiff had “sent a
link to a press release, letting everyone know about the
publishing of a study for an off-label use of a product sold
by Plaintiff's former employer.” Id. at
¶ 17. Mr. Snider told Plaintiff that “by sending
the link, Plaintiff's act constituted the promotion of
off-label use of the medicine, ” a compliance
violation, and informed Plaintiff that he was fired as a
result. Id. at ¶¶ 11, 15, 20. Plaintiff
was terminated February 22, 2018, two weeks prior to the
anticipated Sanofi Genzyme acquisition of Defendant.
Id. at ¶ 11.
asserts that Titles 33 and 35 of the South Carolina Code
require business entities to “engage in mergers and
acquisitions in such a manner that a shareholder and employee
with stake in a company is entitled a complete transfer of
rights upon merger and acquisition.” ECF No. 1-1 at
¶ 37. He alleges that with the acquisition he would have
received substantial “stock rights, ” and that as
a result of his termination “he suffered significant
stock and value losses”; he was “also denied
payment for his 2017 Fourth Quarter performance
commissions/bonus in excess of $10, 000.” Id.
at ¶¶ 29, 34. Plaintiff asserts that he “had
a clean employment record” and “no compliance
violations.” Id. at ¶¶ 21, 22. He
alleges that “Defendant itself released and
disseminated the same information, ” which was set
forth in the public press release, and that “Defendant
falsely accused Plaintiff of promoting off-label use of
medicine as pretextual grounds to terminate Plaintiff's
employment.” Id. at ¶ 25.
moves to dismiss the entire complaint under Rule 12(b)(6). A
Rule 12(b)(6) motion to dismiss for failure to state a claim
upon which relief can be granted tests the legal sufficiency
of a complaint. Schatz v. Rosenberg, 943 F.2d 455,
489 (4th Cir. 1991). While the complaint need not be minutely
detailed, it must provide enough factual details to put the
opposing party on fair notice of the claim and the grounds
upon which it rests. Bell Atl. Corp. v. Twombly, 550
U.S 544, 555 (2007) (citing Conley v. Gibson, 355
U.S. 41, 47 (1957)). Additionally, a complaint must contain
factual content that allows the court to reasonably infer the
defendant is liable for the alleged misconduct. Ashcroft
v. Iqbal, 556 U.S 662, 678 (2009) (“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.”).
“Facts that are ‘merely consistent with'
liability do not establish a plausible claim to
relief.” United States ex rel. Nathan v. Takeda
Pharms. N. Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013)
(quoting Iqbal, 556 U.S. at 678). See 5 C.
Wright & A. Miller, Federal Practice and Procedure §
1216, pp. 235-236 (3d ed. 2004) (“[T]he pleading must
contain something more . . . than . . . a statement of facts
that merely creates a suspicion [of] a legally cognizable
right of action”).
court must accept the allegations in the complaint as true
and draw all reasonable factual inferences in favor of the
party opposing the motion. Iqbal, 556 U.S. at 679.
However, the court will not accept “legal conclusions
couched as facts or unwarranted inferences, unreasonable
conclusions, or arguments.” Nathan, 707 F.3d
at 455 (quoting Wag More Dogs, LLC v. Cozart, 680
F.3d 359, 365 (4th Cir. 2012)). To determine plausibility, a
court is to “draw on its judicial experience and common
sense”; and if the court determines that the factual
allegations can “plausibly give rise to an entitlement
to relief, ” dismissal is not warranted.
Iqbal, 556 U.S. at 679. “But where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief.'” Id.
(citing Fed.R.Civ.P. 8(a)(2)).
Wrongful Discharge in Violation of Public Policy
argues that Plaintiff's first cause of action should be
dismissed because Plaintiff “fails to identify a clear
mandate of public policy that Bioverativ violated by
terminating his employment.” ECF No. 5-1 at 4.
Defendant asserts that South Carolina is a state committed to
at-will employment, the narrow exception to which is
available only when the discharge of an employee violates a
clear mandate of public policy. Defendant contends that
“[w]hile Plaintiff vaguely alleges that Titles 33 and
35 of the South Carolina Code protect shareholders and
employees, Plaintiff fails to identify any provision that
protects employees from termination prior to an
acquisition.” Id. at 7. Defendant further
contends that no such provision exists and that
“Plaintiff's vague reference to general code
sections” falls short of “satisfying his
obligation to identify a clear mandate of public policy that
Defendant violated.” Id.
response, Plaintiff asserts that he has sufficiently pleaded
a cause of action because he alleges that Defendant
“terminated his employment so as to avoid paying him
stock options he would be due after the acquisition was
finalized.” ECF No. 10 at 5-6. Moreover, Plaintiff
asserts, the issue he raises is novel in this state and
“thus, deserving of further development of
facts.” Id. at 6.
reply, Defendant reasserts that “no provision in the
South Carolina Code prohibits employers from terminating
employees prior to a merger or acquisition.” ECF No. 11
at 3. Defendant also argues that to the extent Plaintiff
contends the issue is novel and therefore should not be
decided at the pleadings stage, the court determines what
constitutes public policy as a matter of law. Id. at
Carolina has a strong policy favoring at-will employment.
Taghivand v. Rite Aid Corp., 768 S.E.2d 385, 386
(S.C. 2015) (citation omitted). Therefore, “absent a
contractual provision to the contrary, an employee may be
terminated at any time for any reason or no reason, with or
without cause.” Id. (citing Barron v.
Labor Finders of S.C., 713 S.E.2d 634, 636 (S.C. 2011)).
However, “[w]here the retaliatory discharge of an
at-will employee constitutes violation of a clear mandate of
public policy, a cause of action in tort for wrongful
discharge arises.” Lawson v. South Carolina Dept.
of Corrections, 532 S.E.2d 259, 350 (S.C. 2000) (quoting
Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d
213, 216 (S.C. 1985)). South Carolina courts have expressly
recognized two examples of when the exception applies: (1)
“when an employer requires an employee to violate the
law”; or (2) “the reason for the employee's
termination was itself a violation of criminal law.”
Id. (citation omitted). In answering a question
certified to it by the District of South Carolina, the South
Carolina Supreme Court explained in 2015 that although the
public policy exception “is not limited” to the
above two examples, the court has “specifically
recognized no others.” Taghivand, 768 S.E.2d
at 387 (citation omitted). The Taghivand court
further instructed that “[t]he primary source of the
declaration of the public policy of the state is the General
Assembly; the courts assume this prerogative only in the
absence of legislative declaration.” Id.
(quoting Citizens' Bank v. Heyward, 133 S.E.
709, 713 (S.C. 1925)).
Taghivand, the court examined the statutory and
common law authorities governing obstruction of justice,
which the plaintiff asserted established a basis for a public
policy exception to protect the good faith reporting of
suspected crime. The court declined to extrapolate from those
authorities a “broad public policy favoring the
reporting of crimes, ” noting that “the plain
language of the statute does not support [the
plaintiff's] assertions.” 768 S.E.2d at 387.
Plaintiff argues in response to the motion to dismiss that
Taghivand is inapposite because the case involved an
employee who was terminated after he reported his suspicion
of shoplifting to the police. ECF No. 10 at 6. While the
circumstances of Plaintiff's termination are certainly
different, the guidance set forth in Taghivand is
clear and easily applied here.
essence, Plaintiff urges the court to recognize as public
policy the need to protect employees from termination on the
eve of acquisition when the employee stands to realize a
financial gain as a result of the acquisition. See
ECF No. 10 at 5-6. However, Plaintiff does not cite the court
to specific statutory authority setting forth the
legislature's intent to offer that sort of protection.
Plaintiff contends that Titles 33 and 35 of the South
Carolina Code require employers like Defendant “to
engage in mergers and acquisitions in such a manner that a
shareholder and employee with stake in a company is entitled
a complete transfer of rights upon merger and
acquisition.” ECF No. 10 at 6. Title 33 of the South
Carolina Code is titled Corporations, Partnerships and
Associations and contains 35 chapters; Title 35 is titled
Securities and contains six chapters. As a practical matter,
without a citation to the statute(s) Plaintiff relies on, the
court cannot examine the statutory language Plaintiff
contends gives rise to the public policy that Defendant
allegedly violated. Furthermore, other courts have found that
a general, imprecise reference to a body of statutory
authority is insufficient to support this type of claim.
See Holt v. ARES Security Corporation, No.
7:17-cv-03173-AMQ, 2018 WL 2461992, at *2 (D.S.C. Jun. 1,
2018) (“In order to allege a violation of a clear
mandate of public policy, a plaintiff must identify and state
a source of a clear mandate of public policy, or ‘set
forth specific allegations that would enable the court to
determine what public policy was violated'”)
(citations omitted). See also McNeil v. South Carolina
Dep't of Corrections, 743 S.E.2d 843, 847 (S.C. App.
2013) (explaining that “a litigant must allege more
than a general statement that her discharge violated public
policy, ” and specifying that “[t]he complaint
must set forth specific allegations that would enable the
court to determine what public policy was violated.”).
event, the duty set forth in Titles 33 and 35, as articulated
by Plaintiff, does not reflect the public policy he asserts
as the basis for his claim. Plaintiff does not allege that he
was an employee or shareholder at the time of the
acquisition. Nor does Plaintiff allege that Defendant
prevented him as a shareholder or as an employee from a
complete transfer of his rights at the time he was
terminated. Rather, Plaintiff alleges that he was
“entitled” to receive “significant stock
rights” as of the date of the acquisition; that is,
Plaintiff owned fewer stocks on the date of his termination
than he would have owned had he remained in Defendant's
employ at the time of the acquisition. ECF No. 1-1 at
¶¶ 26-29. Indeed, Plaintiff asserts in his response
that Defendant fired him “so as to avoid paying him
stock options he would be due after the acquisition was
finalized.” ECF No. 10 at 5-6. Even relying on
Plaintiff's interpretation of the statutory authority,
there is no indication that the legislature has created
public policy to protect employees from termination resulting
from the employer's cost/benefit analysis on the eve of a
merger or acquisition. Nor has Plaintiff directed the court
to controlling (or persuasive) case law to any such effect.
Nor has Plaintiff persuaded the court that the matter of
interest herein at issue is so firmly rooted in the mores of
this state that the court should recognize it as public
policy in the absence of any clear guidance from the state
Plaintiff asserts that he raises a novel issue with this
claim and even if the court finds no clear statutory
authority for recognizing public policy, the matter is
“deserving of further development of facts.” ECF
No. 10 at 6. In two instances, South Carolina courts have
held that dismissal of a claim for wrongful discharge in
violation of public policy was not appropriate due to a
case's procedural posture, and that the court should
allow the parties to further develop the facts of the case in
light of the novel issues presented. Garner v. Morrison
Knudsen Corp., 456 S.E.2d 907, 909-10 (S.C. 1995);
Keiger v. Citgo, Coastal Petroleum, Inc., 482 S.E.2d
792 (S.C. App. 1997). However, the court determines what
constitutes public policy as a matter of law,
Barron, 713 S.E.2d at 638, and the facts surrounding
Plaintiff's termination here bear no resemblance to the
sensitive concerns at issue in either Garner or
Keiger. See Garner, 456 S.E.2d at 909-10
(holding dismissal of action for wrongful discharge in
violation of public policy for failure to state a claim
inappropriate where employee alleged termination in
retaliation for reporting and testifying about radioactive
contamination and unsafe working conditions at nuclear
facility); Keiger, 482 S.E.2d at 794 (similarly
holding that dismissal of action for wrongful discharge in
violation of public policy for failure to state a claim was
inappropriate in light of the novel issue presented of
whether “an employer's retaliatory discharge of an
employee who threatens to invoke her rights under the Payment
of Wages Act is a violation of a clear mandate of public
policy.”). See also McNeil, 743 S.E.2d at 847
(distinguishing Garner on the basis that “the
existence of radioactive contamination and unsafe working
conditions is a matter of public interest and public
policy”; and distinguishing Keiger on the
basis that “a violation of the Payment of Wages Act is
a violation of a clear mandate of public policy, and the
employee specifically alleged her termination was in
retaliation for reporting her ...