Gallman-Derienzo v. Webster UniversityGallman-Derienzo v. Webster University
I. Procedural background
Plaintiffs original 142-paragraph Complaint, filed in state court and removed to this court, seemed to include claims of discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
II. Factual background
The following facts are taken from the Amended Complaint and are construed in the light most favorable to Plaintiff, the nonmoving party.4 Plaintiff, a 59-year-old African-American female, was hired by Defendant as the Regional Director for South Carolina Extended Campuses in 2013. Am. Compl. ¶¶ 33, 35. Plaintiff alleged her employment performance was exemplary, listing her overall ratings for her evaluations in 2015 through 2021. Id. ¶ 36. Plaintiff alleges that, as a result of Defendants decision to changes its structure she was demoted to Director of the Charleston Campus on August 24, 2018. Id. ¶ 37. Although advised at the time the August 24, 2018 position-change had nothing to do with her performance and the demotion would be in
Plaintiff submits the allegations that Plaintiff was unwilling to train others was used as a smoke screen to demote the Plaintiff and promote a Caucasian. Am. Compl. ¶ 42. Many of Plaintiffs allegations appear to relate to Beth Vivaldi, a younger Caucasian female whom Defendant transferred on August 30, 2018, to become the Regional Director of South Carolina Extended Campuses. Having been placed in Plaintiffs former position, Vivaldi became Plaintiffs supervisor. Am. Compl. ¶¶ 43-44.
Plaintiffs pleading includes the following examples of accusations Vivaldi allegedly made against her in 2018 and 2019. These allegations are found in subparts (a) through (n) of paragraph 51:
- In November 2018 Vivaldi accused Plaintiff of failing to produce reports and perform assignments and falsely accused the Plaintiff of having ill will towards administration and the university.
- In January 2019 Plaintiff alleges the following about Vivaldi:
- Vivaldi used a group email to accuse Plaintiff of failing to respond to her questions. Plaintiff indicates she had responded.
- Vivaldi regularly called out the Plaintiff in group emails but did not do so to others.
- Vivaldi instructed Plaintiff to miss a meeting to attend other meetings; she did not instruct other Directors in this manner.
- Vivaldi attempted to undermine Plaintiff by instructing clerical support to perform certain aspects of Plaintiffs job. Vivaldi did not attempt to undermine the authority of any other directors in this way.
- In February 2019 Plaintiff alleges the following:
- Vivaldi accused Plaintiff of instructing employees to use their personal credit cards without investigation.
- Vivaldi failed to conduct investigations relating to accusations with the Plaintiff.
- Vivaldi properly investigate[d] allegations against other directors, yet refused to permit Plaintiff to present a defense.
- Vivaldi treated the Plaintiff differently based on her race and her age.
- Vivaldi falsely accused the Plaintiff of failing to comply with a directive[,] and failing to provide information that Plaintiff did not possess.
In March 2019 Vivaldi was pushing directors to get their numbers up. The Plaintiffs campus was without a recruiter for over a year at this time. Also in March 2019, Vivaldi presented a draft of a negative evaluation for Plaintiff. After Plaintiff protested Vivaldi changed the evaluation to a meets evaluation.5 - In April 2019, Vivaldi requested IT-related information from Plaintiff; Plaintiff promptly responded. In response, Vivaldi sent questions back to Plaintiff insinuating Plaintiff was not doing her job. Vivaldi instructed Plaintiff to revert documents back to the original format because she could not operate them. Vivaldi did not make similar inquiries or send similar instructions to directors at other locations.
- In an October 16, 2019 email to Plaintiff, Vivaldi stated to Plaintiff that she was glad they had gotten past any thought of ill-intent. On October 16, 2019, Vivaldi informed Plaintiff in an email that she [was] a stunning looking woman and that always helps. . .lol. Plaintiff indicated no other employees were subjected to commentary such as this insinuating that the Plaintiff was successful because of her looks rather than her intelligence and hard work.
- On March 26, 2020, Vivaldi accused the Plaintiff and her campus of operating in isolation. No such accusation was made to other directors or their campuses.
Am. Compl. ¶ 51. Plaintiff indicates she challenged each and every accusation of Vivaldi listed above, noted none of these accusations were formalized into discipline in 2018 and 2019, and indicated Vivaldi did not subject other directors to such allegations. Plaintiff alleges Vivaldi singled out the Plaintiff based on her race and age. Id. ¶¶ 52-54.
Plaintiff indicates that on May 2, 2019, because of Defendants failure to respond to her inquiries regarding her demotion she requested a full investigation into the matter with a restoration of her reputation from Human Resources at Webster University. Am. Compl. ¶ 56. On May 6, 2019, Plaintiff continued to seek evidence of the reasons for her demotion but did not receive any such information. Id. ¶ 57.6
On May 7, 2019, Plaintiff received a draft negative evaluation from Vivaldi. Am. Compl. ¶ 58. Plaintiff avers that evaluation contained some false allegations and that no other directors were subjected to the defamation that Vivaldi presented in the Plaintiffs evaluation. Id. ¶ 59.
Plaintiffs pleading continues, On May 19, 2019, the Plaintiff contacted Douglas Rau in Human Resources (HR), concerning Vivaldis constant pressure. The Plaintiff specifically stated that the actions of Vivaldi could be retaliation. Am. Compl. ¶ 61. In a somewhat confusing sentence Plaintiff indicates, On May 28, 2019, Human Resources [sic] the Plaintiffs concerns were not addressed. The Defendant further never established the evidence as to why she was demoted. Am. Compl. ¶ 62 (it is unclear what Plaintiff avers took place on May 28, 2019).
Plaintiff avers that after the complaints regarding retaliation and investigation to [HR] the Plaintiffs issues with Vivaldi seemed to alleviate temporarily[,] and she continued her duties and responsibilities throughout 2019. Am. Compl. ¶¶ 63, 64. Plaintiff indicates she received accolades for her performance in the fall of 2019. Id. ¶ 65.
In January 2020, however, Plaintiff says the accolades ended and Plaintiff went back to being treated differently. Am. Compl. ¶ 66. On January 21, 2020, Vivaldi allegedly made several disrespectful references in several emails that were derogatory and unprofessional to the Plaintiff. Am. Compl. ¶ 67. Plaintiff continued by stating Vivaldi had referred to her as a Gal. The Plaintiff felt the terms [sic] was racist. Id. Further, Vivaldi failed to maintain professionalism. Id.
Vivaldi again began questioning Plaintiffs performance. Plaintiff characterized this as bullying and harassment as Vivaldi did not question other directors like she questioned the Plaintiff. Am. Compl. ¶ 68; see also id. ¶ 70 (averring Vivaldi was treating Plaintiff differently
Plaintiff then includes many paragraphs concerning operational changes and issues that began in March 2020 during the COVID-19 pandemic. See Am. Compl. ¶¶ 71-100. Included in this section of the pleading are various allegations related to the working relationship between Vivaldi and another employee, Laura McMaster (race and age unidentified), whom Plaintiff identified as Core Faculty at Charleston Campus. Id. ¶ 75; see id. ¶¶ 84-91. Plaintiff also notes that, on July 2, 2020, McMaster sent an email to Vivaldi requesting that they reach for a higher professionalism and ethical space and eliminate the bullying, harassment, [] and retaliation. Id. ¶ 97.
In June 2020 Vivaldi gave Plaintiff an evaluation that included an overall meets expectations. Am. Compl. ¶ 94. Vivaldi characterized Plaintiff as demonstrating positive oversight and leadership [] at the Charleston Campus. Id. ¶ 95.
Plaintiff developed the Charleston Transition plan that indicated, as of June 26, 2020, students and staffs work would continue to be remote. Am. Compl. ¶ 96. Plaintiff also indicates that, on July 24, 2020, she edited Vivaldis transition plan. Id. ¶ 98.
Plaintiff avers that Vivaldi and Defendant did not accept Plaintiffs recommendation in replacing Robin Wiggs-Sneed, who apparently was someone who had worked with Plaintiff. Rather, Plaintiff alleges Vivaldi was undermining Plaintiff by choosing someone named Green, whose job in Columbia had been displaced. Am. Compl. ¶¶ 101-04. Plaintiff indicated Greens qualifications were not the same as Robin[] Wiggs-Sneed but the plaintiff was happy to
Plaintiff then indicates she addressed her concerns regarding her position with Sherriel Byrd and the fact that the Plaintiff was being taken advantage of and treated badly by Vivaldi. Am. Compl. ¶ 106 (no specific date given; no information regarding who Byrd is).
Plaintiff avers that, as of January 5, 2021, she had still not received her replacement for Wiggs-Sneed and it was affecting the effectiveness of the Charleston Campus. Am. Compl. ¶ 107.
On January 14, 2021, Plaintiff avers Defendant Webster or Dr. Outten, Vivaldis supervisor determined there would be no salary increase because they were strapped for cash[.] Am. Compl. ¶ 108 (not specifying whether the lack of a salary-increase applied to specific persons or to all persons).
On January 15, 2021, Plaintiff states she and the Columbia Director were accused [by Vivaldi] of leaving other campuses out of the loop and for discussing things amongst themselves and failing to include others. Am. Compl. ¶ 109. Plaintiff informed Vivaldis accusations bordered on conspiracy thinking and that the conversation was just a consequence of another conversation regarding student enrollment. Id. ¶ 109(a) (not indicating specifically to whom Plaintiff made her comments). Vivaldi accused Plaintiff of being absurd. Plaintiff responded that it was no more absurd than Vivaldis accusation. Id. ¶ 109(b), (c).
On January 15, 2021, Plaintiff filed a complaint with Defendants HR Department in which she complained about Vivaldis actions over the last year and her actions toward herself and Dr. McMaster. Am. Compl. ¶ 110.8
- An October 16, 2019 email in which Vivaldi characterized Plaintiff as very articulate and a stunning looking woman and that always helps. Plaintiff characterized these as sexist, misogynistic remarks. Id. (although the attachment indicates the emails are also included as attachments, they are not included as part of the Amended Complaint).
- A January 21, 2020 email in which Vivaldi was inappropriately casual with Plaintiff, calling her Gal and suggesting they have a drink together. Id. Plaintiff indicates the entire content and context of this email was too familiar, void of boundaries, and inappropriate. Id. (email not attached).
Plaintiffs internal complaint concluded, I strongly believe these comments shed light on [Vivaldis] racial and gender biases and prejudices and foreshadow the intense dynamic that currently exist [sic] between [Vivaldi] and her subordinates of color, and women, who resist or reject subjugating to those preconceived biases and prejudices. Id.
Plaintiff indicates that Jacquetta Green was offered the position of Representative at the Charleston Metropolitan. Am. Compl. ¶ 111. In response to Vivaldis January 20, 2021 congratulations to Plaintiff on her selection, (apparently referring to Green), Plaintiff protested the transfer as it was not a selection, and she found it important to be accurate that
On February 1, 2021, Vivaldi accused the plaintiff of failing to follow a directive. Am. Compl. ¶ 113. Plaintiff indicates she had provided the information to Vivaldi by email. Id. ¶ 114. Plaintiff states she was fearful of Vivaldi at this time due to her pending complaint and the issues that Vivaldi had with Dr. McMaster. Id. ¶ 115.
On February 2, 2021 Vivaldi sent a series of emails to her direct reports concerning working with the Technical Colleges and undergraduates which was a requirement of the Plaintiffs position. Am. Compl. ¶ 116. Plaintiff avers Vivaldi was interfering with the Plaintiffs ability to perform her position and causing it to appear to Plaintiffs subordinates that Plaintiff was not performing all of her job duties. Plaintiff indicates Vivaldi was not treating other directors and their subordinates to these emails. Id. ¶ 117. Plaintiff avers Vivaldis actions interfering with her performance was a direct result of Plaintiffs complaints to HR regarding differential treatment based on race and age. Id. ¶ 118.
On February 3, 2021 emails were sent to Vivaldi (apparently by Plaintiff, although that is unclear) concerning the CHAR campus focus on graduate rather than undergraduate matters[.] Am. Compl. ¶ 119. Vivaldi responded to those emails the same day, indicating the CHAR team was to AGGRESSIVELY make those connections to the respective Tech College Administrators, and provide constant collaboration for all transfer or college events that they may have scheduled in the coming year. Id. ¶ 120.
Plaintiff avers these continued actions of Vivaldi were an intentional action to create non-discriminatory reasons to discipline the Plaintiff later in retaliation for her complaints with [HR]. Am. Compl. ¶ 121.
On February 8, 2021, Plaintiff was advised HR needed to speak with her and a meeting had been scheduled for February 10, 2021. Am. Compl. ¶ 127. The meeting with HR actually took place on February 12, 2021. Id. ¶ 128. Plaintiff indicates that she addressed her concerns that were first raised January 15, 2021. Id. ¶ 129. During the February 12, 2021 meeting Plaintiff informed HRs Tonja Kirby that she felt she was being treated differently and that she was being discriminated against based on her race and age. Id. ¶ 130. Plaintiff provided several documents to HR in support of her complaints of discrimination. Id. ¶ 131.9 Plaintiff indicates Kirby advised Plaintiff she needed to file a formal complaint of discrimination; Kirby provided Plaintiff with the form to file. Id. ¶ 132. Plaintiff stated Kirbys only response to the Plaintiffs concerns was that it was not based on race and/or age but that they were two strong willed/minded women. Id. ¶ 133. Kirby told Plaintiff it would be in her best interests to work things out. Id. ¶ 134. Plaintiff indicated she took this instruction as a failure to support her in her complaints and refusal to investigate by Kirby. Id. ¶ 135. Plaintiff characterizes HRs
On February 15, 2021 Plaintiff submitted a formal complaint through the Webster Human Resources Incident Report Form regarding Vivaldi creating a hostile work environment and discriminating against the Plaintiff. Am. Compl. ¶ 138.10
After Kirby received Plaintiffs complaint on February 12 and 15, 2021, Kirby advised Plaintiff that she was a danger to the university and the university needed to minimize its risks. Am. Compl. ¶ 139. Kirby accused Plaintiff of not working, and said the University could not pay people who did not work. Kirby also accused Plaintiff of creating a hostile work environment. Id. Plaintiff avers that neither of these accusations had ever been made to Plaintiff before and they were intentionally false and presented in order to create a non-discriminatory articulated reason for the Plaintiffs termination. Id. Plaintiff indicates the alleged actions by Kirby and Vivaldi never occurred. Id. (not specifying what alleged actions).
Plaintiff avers she was subjected to a retaliatory hostile work environment in retaliation for her complaints. Am. Compl. ¶ 140. Plaintiff indicates that, on February 17, 2021, Plaintiff was told she had to send Access Request Approvals to Vivaldi each day. Plaintiff indicates other employees were not so required and the requirement was to treat the Plaintiff differently for her complaints, create a hostile work environment and was also in retaliation. Id. ¶ 141.
On February 18, 2021, Plaintiff emailed Kirby indicating she wanted to change her HR complaint form to include other discriminatory acts; however, Plaintiff was not able to access the document. Am. Compl. ¶ 142. Also on February 18, 2021, Kirby advised Plaintiff that HR was putting her case on hold until there was an open investigator. Id. ¶ 143. Plaintiff characterizes
On February 23, 2021 Plaintiff and Kirby had another Zoom meeting in which Kirby advised she had lost her prior notes and made several negative performance-related allegations against Plaintiff. Am. Compl. ¶¶ 145-46. Plaintiff characterizes Kirbys actions as further discriminatory, retaliatory, and perpetuating a hostile work environment. Id. ¶ 147.
On February 25, 2021, Plaintiff alleges Vivaldi interfered with Plaintiffs position by sending an email to FDTC (FDTC not defined; possibly Florence Darlington Technical College). This had been an action Plaintiff had been instructed to do and was in the process of doing. Am. Compl. ¶¶ 150-51. Plaintiff avers this was intentional and done to make it appear Plaintiff was failing to perform her job. She claimed this was part of a retaliatory hostile work environment and had not happened to other directors. Id. ¶¶ 153-53.
On March 1, 2021, Plaintiff was advised by telephone that she had been placed on administrative leave for Defendant to investigate a complaint made against her. Am. Compl. ¶ 154. Plaintiff characterizes her being placed on leave as retaliation for her complaints about Vivaldi; further, Plaintiff indicates the act was discrimination, harassment of others and herself, hostile work environment and retaliation. Id. Vivaldi, a Caucasian, was not suspended. Id. ¶ 155-56. Defendant did not investigate Plaintiffs January 2021 complaint. Id. ¶ 157.
On March 2, 2021, Outten (previously referenced as Vivaldis superior) sent an email to Plaintiffs staff advising them that Plaintiff was on administrative leave and they should report directly to Vivaldi. Am. Compl. ¶ 158.11
On March 15, 2021, Defendant issued an Outcome Report regarding the investigation of the 7 different alleged claims against the Plaintiff. Am. Compl. ¶ 161.12 Plaintiff notes the Outcome Report also briefly mentioned her complaint of discrimination, hostile work environment and unprofessional behavior by Vivaldi in one short paragraph, indicating Defendant had conducted a separate investigation and found no wrongdoing. Id.
Plaintiff was terminated on March 15, 2021, due to violations of policies. Am. Compl. ¶ 163. Plaintiff alleges the reasons were pretextual and not arrived at based on a thorough investigation. Id. ¶¶ 164-65.
On March 23, 2021, Plaintiff attempted to invoke her right to a grievance[,] but Defendant denied her request. Am. Compl. ¶ 167. Plaintiff submitted a rebuttal to the Report anyway. Id.; see also ECF No. 21-2 at 9-21 (Plaintiffs rebuttal). Plaintiffs pleading includes a summary of her rebuttal. Am. Compl. ¶ 167(a) through (f). Plaintiff asserts the actions [presumably, the actions attributed to her in the Report] had been committed not by Plaintiff but by Sarah Hull, whom Plaintiff alleges was the harasser in the department. Id. ¶ 167(a). Plaintiff includes details of concerns regarding Hulls behavior. Plaintiff indicated that, after complaints about Hull Plaintiff had sent her home. After Hull admitted to her actions, Hull resigned but
Plaintiff submits she was discriminated against based on her race, age, retaliation for her complaints and hostile work environment in violation of the law and of Defendants policies and procedures. Am. Compl. ¶ 170. Plaintiff alleges she was replaced by a Caucasian Male. Am. Compl. ¶ 175. She avers she was treated differently based on her race and Caucasian coworkers were treated more favorably. Id. ¶¶ 182-83.
Plaintiff submitted a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) on March 26, 2021. Am. Compl. ¶¶ 17-18 (listing particulars of Charge); EEOC Charge, ECF No. 21-1 at 1-3.13 The EEOC issued a Notice of Right to Sue dated February 27, 2023, id. at 4; Plaintiff filed her Complaint in the Charleston County Court of Common Pleas on April 27, 2023. It was removed to this court on June 5, 2023. ECF No. 1. The Amended Complaint was filed November 1, 2023.
III. Defendants request for dismissal pursuant to Federal Rule of Civil Procedure 41(b)
In addition to seeking dismissal pursuant to
To be sure, the court shares Defendants apparent frustration with Plaintiffs failure specifically to comply with portions of the October 17, 2023 Order. Nonetheless, the
IV. Defendants Motion to Dismiss pursuant to Rule 8 and Rule 12(b)(6)
A. Standard of Review
Defendant seeks dismissal, arguing Plaintiff has not complied with
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. While a complaint attacked by aRule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .
550 U.S. 544, 555 (2007) (internal citations omitted); see also 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
B. Analysis
As an initial matter, the court shares Defendants frustration with Plaintiffs Amended Complaint in that it does not heed instructions provided in the courts October 17, 2023 Order. In particular, Plaintiffs failure to set out separate causes of action and the elements to support each makes analysis of the pleading more difficult. As the court stated in October 2023,
[] Plaintiffs allegations and causes of action should contain factual allegations that set forth plausible claims for relief. In pleading her separate causes of action Plaintiff should keep in mind the proof necessary to establish each cause of action. While the legal requirements of each cause of action need not be reiterated at this juncture, the court notes the discussion at the hearing that Plaintiff must adequately plead specific facts that relate to claimed alleged wrong and tie them to conduct protected by the applicable statutes. Plaintiff is particularly reminded that any claim brought pursuant to
42 U.S.C. § 1981 requires that Plaintiff plausibly plead facts from which it could be determined Plaintiff would not have suffered discrimination but for her race. E.g., Comcast v. Nat‘l Ass‘n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020). In other words, as discussed at the hearing, Plaintiff is to set out separate causes of action in which she explains what relief is sought and on what grounds.
Order 5-6, ECF No. 19 (emphasis added). In the italicized language the undersigned was advising Plaintiff that the court did not need to reiterate the legal requirements of each of Plaintiffs causes of action in its October 2023 Order. Plaintiff now cites that language to suggest
Nonetheless, as noted above, judicial economy militates that the court consider the relative merits of the Amended Complaint in light of Defendants
1. Rule 12(b)(6) in the context of employment discrimination and retaliation claims
Absent direct evidence of discrimination or retaliation, the McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973), burden-shifting analysis is appropriate in considering Plaintiffs claims. In this scheme, a plaintiff must first establish a prima facie claim of relief. See generally Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) ([T]he McDonnell Douglas framework, developed for Title VII, has been used to evaluate race discrimination claims under [§ 1981 as well].). Under this scheme, once a plaintiff has established a prima facie case the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory or nonretaliatory reason for its action. Then the burden shifts back to the plaintiff to demonstrate that reason was merely
2. Race-based discrimination claims under Title VII and Section 198117
Defendant argues
Defendant submits Plaintiff’s January 15, 2021 report to HR, found as ex. B to the Amended Complaint, does not reference any adverse action that took place based on racial discrimination. Def. Mem. 5. Defendant points out that the adverse action, her termination, took place after her reporting of alleged race discrimination and is more appropriately examined in connection with her race-based retaliation claims (whose substantive dismissal are not sought in the instant motion). Def. Mem. 5-6.18
Defendant submits the internal complaint attached as Exhibit B to the Amended Complaint does not include any claim that Plaintiff was subjected to an adverse employment action or treated differently based on her race. Defendant notes the allegations “certainly allege that there were disagreements or interpersonal issues between Plaintiff and Dr. Vivaldi, they do not allege unlawful discrimination.” Def. Mem. 7.
Rather, Plaintiff’s complaint to HR claims that her supervisor made a “sexist, misogynistic remark.” ECF No. 21-2 at 3 (indicating Plaintiff had been subjected to discrimination by “harasser” Beth Vivaldi; and the “synopsis details the unwarranted, unwelcomed, unprofessional, inappropriate, micro-aggressive, discriminatory, and misogynistic statements”). Id. Plaintiff references several emails she had received from Vivaldi in October
Construed liberally in Plaintiff’s favor, however, the January 15, 2021 complaint does not complain of specific adverse actions that Plaintiff submits took place because of her race. The undersigned agrees with Defendant that Plaintiff has not set out claims of adverse employment actions that took place that were based on her race. In addition to the claims in the January 2021 internal complaint, Plaintiff’s Amended Complaint’s discrimination claim references how Plaintiff was placed on administrative suspension after making the complaint, which she describes as including a complaint to HR about discrimination. Am. Compl. ¶ 202. Plaintiff further submits she was “discriminated against” in “serious and tangible ways when [Defendant] failed to treat her the same as other directors, subjected her to drastically different terms and conditions in her employment, and terminated her employment.” Id. ¶ 204.
Plaintiff has not tied her allegedly discriminatory treatment to her race, nor has she set out with any clarity what evidence she has to make a plausible claim of that nature. Instead, Plaintiff alleges that she was suspended, and subsequently terminated, claiming both are adverse
Plaintiff’s more general allegations of disparate treatment based on race are not supported by her pleadings. As noted by Defendant, Plaintiff’s pleading includes numerous allegations of issues between her and Vivaldi, including various accusations Vivaldi made about Plaintiff or her work product. E.g. Am. Compl. ¶ 50. While Plaintiff avers in conclusory fashion that Vivaldi “treated the Plaintiff differently based on her race and age,” id. ¶ 50(f)(ii), Plaintiff never provides factual allegations to support that conclusory allegation. Rather, virtually all of the laundry list of “issues” between Vivaldi and Plaintiff relate to disagreements or interpersonal issues. None of them is pinned to any allegation of unlawful discrimination. The United States Supreme Court has made clear that a plaintiff must do more than make conclusory statements to state a claim. See Iqbal, 556 U.S. at 667–68; Twombly, 550 U.S. at 555. As the result, the undersigned is of the opinion that Defendant’s Motion to Dismiss Plaintiff’s allegations of race-based discrimination (as opposed to retaliation) should be granted.
This recommendation applies both to Plaintiff’s race-based discrimination claims brought pursuant to
Plaintiff’s opposition to the Motion to Dismiss does not point to allegations that convince the court otherwise. Plaintiff merely submits that she was terminated, which is “the ultimate adverse employment action.” Pl. Mem. 11. As noted above, the dismissal relates only to the race-based termination claim. Plaintiff’s pleading ties her termination to her complaint to HR, making it more appropriately part of her retaliation claim. Further, Plaintiff pays short-shrift to the very precise but-for causation pleading-based requirement set out in Comcast and explained to her on several occasions. “Despite the Defendant’s application of the ‘but for’ standard, the Plaintiff’s complaint should survive a Motion to Dismiss due to the fact that pleadings are to [be] generously construe[d] in accordance with case law.” Pl. Mem. 11 (citing Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015)). Goode does counsel courts to liberally permit amendment in appropriate situations. Plaintiff has already been given an opportunity to amend. Further, and importantly, Comcast, decided several years later, was plain in explaining that but-for causation must be pleaded. Comcast, 140 S. Ct. at 1019 (“To prevail [under
3. Hostile work environment
At the hearing Plaintiff’s counsel had advised the court that Plaintiff’s only hostile work environment claim was one for a retaliatory hostile work environment. Nonetheless, Plaintiff’s Third Cause of Action in her Amended Complaint is a claim for “Retaliatory Hostile Work Environment and Hostile Work Environment in Violation of
Defendant seeks dismissal of Plaintiff’s claims of a race-based hostile work environment. Def. Mem. 7-8.19 A prima facie discriminatory hostile work environment claim requires a plaintiff to show “(1) unwelcome conduct; (2) based on the plaintiff’s sex [or race]; (3) sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and create an abusive work environment; and (4) that is imputable to the employer.” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 117 (4th Cir. 2021). To determine whether conduct was sufficiently severe or pervasive to alter the employee’s terms and conditions of employment and create an abusive working environment based on a protected characteristic, the court examines the allegations both subjectively and objectively. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993). First, the employee must subjectively consider the conduct to be sufficiently severe or pervasive as to alter her conditions of employment. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001) (per curiam); Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc). Second, a court views the conduct from the perspective of a reasonable person in the
employee’s position to determine whether it is objectively severe or pervasive. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82 (1998); Boyer-Liberto, 786 F.3d at 277.
Similar to its challenges to Plaintiff’s discrimination claims, Defendant argues Plaintiff has not set out sufficient facts to plausibly link any hostile treatment Plaintiff claims to have suffered to her race. Defendant also submits that Plaintiff’s allegations do not rise to the level of objectively being considered “sufficiently severe or pervasive to alter the conditions of employment.” The undersigned agrees. While Plaintiff has alleged what she believed to be unfair treatment by Vivaldi, she has offered no facts to support her claim that the unwelcome conduct was related to race. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 282 (4th Cir. 2000) (“Law does not blindly ascribe to race all personal conflicts between individuals of different races. To do so would turn the workplace into a litigious cauldron of racial suspicion. Instead, legally sufficient evidence is required to transform an ordinary conflict . . . into an actionable claim of discrimination.”). In addition, while Plaintiff has pleaded she believed the use of the word “gal” in a January 2020 email had racial connotations, “[t]he term gal is a race-neutral term.” Equal Emp. Opportunity Comm‘n v. Vill. at Hamilton Pointe LLC, No. 3:17-CV-00147-RLY-MPB, 2020 WL 13568924, at *32 (S.D. Ind. Sept. 29, 2020), aff‘d, No. 22-2806, 2024 WL 2074326 (7th Cir. May 9, 2024). Further, a one-time use of that term objectively would not be sufficient to show “severe or pervasive” conduct.
Nothing in Plaintiff’s opposition to the Motion to Dismiss changes this recommendation. Plaintiff generally argues that her Amended Complaint and the internal complaint to HR revealed that “Vivaldi was subjecting the Plaintiff to a workplace that was inflicting ridicule and insult with intimidation thrown in for good measure. The work environment was severe and pervasive.” Pl. Mem. 13 (citing no cases or specific portions of the Amended Complaint in
Plaintiff has not set out a plausible cause of action for a race-based hostile work environment claim under
4. ADEA claims
At the hearing the court understood Plaintiff’s counsel to state that Plaintiff was no longer pursuing any age-based claim under the
In response, Plaintiff’s counsel clarifies that she advised the court “there was not a claim for Age Discrimination based on questioning by the Court. The Plaintiff’s attorney did not state there was not a retaliation claim under the Age Discrimination in Employment Act.” Pl. Mem. 1. Plaintiff briefly responds substantively to Defendant’s challenge only by arguing as follows:
As set forth in the Order by the Court, the Plaintiff is not required to present every single fact regarding her case but to establish the basis for each claim which the
Plaintiff did so. The Defendant has failed to present a valid reason why the Plaintiff’s claims should be dismissed.
Pl. Mem. 14. Earlier in her responsive memorandum Plaintiff submits, “[a]s set forth in the complaint the Plaintiff did complain to Human Resources on January 15, 2021, regarding race and age treatment by Vivaldi.20” [Plaintiff’s footnote 20 is a citation to “ECF No 1., State Court Documents, Complaint, Paragraph 45”]. Id. at 13. Other than the general citation to her original Complaint Plaintiff offers no discussion of facts she pleaded in support of her claim that she engaged in activity protected by the
Plaintiff is correct that she need not set out “every single fact regarding her case.” However, Plaintiff is required to set out facts that provide a basis for the elements of each pleaded claim. In the case of an age-based retaliation claim, Plaintiff can set out a plausible claim by alleging facts to show her prima facie case: (1) she engaged in protected activity; (2) an adverse employment action was taken against her; and (3) there was a causal link between the protected activity and the adverse action. Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc).
Here, the undersigned agrees with Defendant that Plaintiff’s
Here, Plaintiff’s January 2021 internal complaint to HR did oppose practices Plaintiff alleged were discriminatory. Importantly, however, nothing in the internal complaint (or elsewhere in Plaintiff’s pleading) indicates she was opposing anything related to age-based discrimination.
The court notes that Plaintiff also avers that she submitted a formal complaint to HR on February 15, 2021. Am. Compl. ¶ 138 (“On February 15, 2021, the Plaintiff submitted a formal complaint through the Webster Human Resources Incident Report Form regarding Vivaldi creating a hostile work environment and discriminating against the Plaintiff.”). Further, Plaintiff references an oral communication to HR’s Kirby that took place on February 12, 2021, in which Plaintiff advised that she “felt that she was being treated differently and that she was being discriminated against based on her race and age.” Am. Compl. ¶ 130. However, Plaintiff’s pleading includes no further information about the substance of these February complaints, nor does she in any manner set out the substance of any age-related complaints. More is required.
Plaintiff’s failure to plead facts supporting a plausible claim of an age-based protected activity is fatal to any claim of
5. Timeliness issue
Rather than offer any detailed response as to Defendant’s argument regarding exhaustion or timeliness, Plaintiff merely submits that, because Plaintiff has also brought race-related claims pursuant to
The undersigned agrees with Defendant that Plaintiff has failed to exhaust her administrative remedies as to any
IV. Conclusion and recommendation
For the reasons discussed above, the undersigned recommends Defendant’s Motion to Dismiss be denied as to the request to dismiss pursuant to
IT IS SO RECOMMENDED.
June 5, 2024 Kaymani D. West
Florence, South Carolina United States Magistrate Judge
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”