United States District Court, D. South Carolina
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Kevin F. McDonald, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Karen Jenkins
(“Jenkins”) alleges that Georgia-Pacific Wood
Products, LLC (“Defendant”) breached her
employment contract, breached her employment contract with
fraudulent intent, and engaged in racially discriminatory
practices in violation of 42 U.S.C. § 1981. (Compl.
generally, ECF No. 1.) Defendant filed a motion for partial
judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure for the two breach of
contract claims. (Def. Mot. J. Pleadings, ECF No. 15.)
Magistrate Judge McDonald recommends granting Defendant's
motion. (R&R, ECF No. 20.)
filed objections to the Report and Recommendation on
September 18, 2019. (Objs., ECF No. 21.) First, Jenkins
argues that the magistrate judge improperly considered
Defendant's code of conduct attached to Defendant's
motion for partial judgment on the pleadings and improperly
recommended the motion be granted without reviewing the other
policies at issue. (Id. at 8-9, ECF No. 21.) Second,
Jenkins objects to the magistrate judge's conclusion that
there was no specific allegation of fraud separate and apart
from the contractual breach itself. (Id. at 9-10,
ECF No. 21.) On October 2, 2019, Defendant filed a reply.
(Reply, ECF No. 23.) This matter is now ripe for review.
Discussion of the Law
the pleadings are closed - but early enough not to delay
trial - a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). Courts should only
grant motions for judgment on the pleadings “if, after
accepting all well-pleaded allegations in the plaintiff's
complaint as true and drawing all reasonable factual
inferences from those facts in the plaintiff's favor, it
appears certain that the plaintiff cannot prove any set of
facts in support of his claim entitling him to relief.”
Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th
Cir. 2014) (internal quotation marks and citation omitted).
Rule 12(c) motion tests only the sufficiency of the complaint
.” Id. The complaint must contain “a
short plain statement of the claim showing that the pleader
is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Additionally, the facts alleged must be enough to
“state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Although the court must accept all of the
complaint's allegations as true, this tenet “is
inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. (citation omitted).
on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.” Fed.R.Civ.P. 12(d). However, under Rule 12(b)(6)
and 12(c) motions, courts may review “the pleadings,
exhibits attached thereto, documents referred to in the
complaint that are central to the plaintiff's claims, and
other materials in addition to the complaint if such
materials are public records or are otherwise appropriate for
the taking of judicial notice.” In re MI Windows
and Doors, Inc. Prods. Liab. Litig., Nos. 2:12-mn-00001,
2:12-cv-02269-DCN, 2013 WL 3207423, at *2 (D.S.C. June 24,
2013) (unpublished) (internal quotation marks and citations
omitted). Thus, courts may consider documents “attached
to the motion to dismiss, so long as they are integral to the
complaint and authentic.” Phillips v. Pitt Cty.
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)
contends that her employment contract, which she claims
altered her employment at-will status, consists of
Defendant's code of conduct and several other policies.
(Compl. ¶¶ 10, 17-18, 20-21, ECF No. 1.) Jenkins
did not attach copies of the code of conduct or the other
policies to her complaint. However, Defendant attached copies
of three versions of the code of conduct, which it alleged
were the only versions governing during Jenkins'
employment, to its motion for partial judgment on the
pleadings. (Def. Mot. J. Pleadings Attach. (2013, 2014, and
2015 codes of conduct), ECF Nos. 15-1, 15-2, 15-3.)
Jenkins indicated that the magistrate judge should consider
Defendant's attached copies of the code of conduct.
(Resp. Opp'n Mot. J. Pleadings 2, ECF No. 16.) However,
upon the magistrate judge recommending that the code of
conduct was not a contract, Jenkins argued that the
magistrate judge improperly reviewed the attachments because
Jenkins did not concede the attachments' authenticity.
(Objs. 8-9, ECF No. 21.) At oral argument, Jenkins'
counsel clarified this authenticity challenge and asserted
that he was attempting to argue that the copies of the code
of conduct attached to Defendant's motion may not have
been all of the applicable versions governing during
oral argument, Defendant filed a motion to supplement the
record on October 22, 2019 and attached a copy of the 2018
code of conduct, which was omitted as an attachment to
Defendant's motion. (Mot. Suppl. R., ECF No. 32.) Jenkins
filed a response on October 31, 2019. (Resp. Opp'n Mot.
Suppl. R., ECF No. 34.) On November 5, 2019, Defendant filed
a reply. (Reply, ECF No. 37.)
an abundance of caution, the court is constrained to deny
Defendant's motion for partial judgment on the pleadings
at this stage of the proceedings. The court is precluded from
considering matters outside of the pleadings without
converting this matter to a motion for summary judgment, and
the court declines to convert this motion. Additionally, in
the complaint, Jenkins alleges that several of
Defendant's policies formed an employment contract that
altered her employment at-will status and described those
policies by their subject-matter. (Compl. ¶¶ 17-18,
21, ECF No. 1.) The court finds that Jenkins has stated a
plausible claim for relief on her breach of contract claim.
respect to Jenkins' claim for breach of contract
accompanied by a fraudulent act, in various stages of
litigation, courts have found that giving pretextual reasons
for a termination was sufficient to find an independent
fraudulent act. See, e.g., Parker v.
Nat'l Honorary Beta Club, 815 S.E.2d 769, 772 (S.C.
Ct. App. 2018) (finding that deceiving someone as to the
reasons why she was fired was sufficient to support a jury
finding of a fraudulent act); Conner v. City of Forest
Acres, 560 S.E.2d 606, 612 (S.C. 2002) (holding that an
employer providing pretextual reasons for a termination, when
the employer knew that the reasons were false and did not
justify termination for cause, was sufficient to create a
genuine issue of material fact as to whether there was a
fraudulent act). Jenkins has pled an arbitrary and pretextual
denial of a timely performance review and a bad faith
termination. (Compl. ¶¶ 28, 30, ECF No. 1.) Jenkins
has supported these allegations with contentions of bullying
and racial discrimination. (Id. ¶¶ 12-16,
21, ECF No. 1.) Thus, the court finds the complaint to be
that Defendant's motion to supplement the record, docket