Bailey v. Five Star Quality Care Inc et al

Filing 53

ORDER RULING ON REPORT AND RECOMMENDATION adopting 38 Report and Recommendation, granting in part and denying in part Defendant Five Star's 22 MOTION to Dismiss Partial Motion to Dismiss Plaintiff's Amended C omplaint, granting as to Plaintiff's third cause of action and denying as to Plaintiff's fifth cause of action; granting Defendant Defino and Defendant Turner's 27 Motion to Dismiss for Failure to State a Claim; denying Defendan t Brook's 29 Motion to Dismiss for Failure to State a Claim (Dismiss Amended Complaint); denying Defendant Crolley's 13 Motion to Dismiss for Lack of Jurisdiction. Signed by the Honorable Joseph F. Anderson, Jr. on 03/06/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

Robert G. Bailey,

C/A No.: 0:13-cv-00196-JFA-PJG
Plaintiff,

v.

ORDER

Five Star Quality Care, Inc.; Nancy Brooks;
Derrick Defino; Kimberly Rice; Ted Turner;
and Danny Crolley,
Defendants.

I. Introduction
Plaintiff Robert G. Bailey (“Plaintiff”) brings the above-captioned case against his former
employer, Five Star Quality Care, Inc. (“Five Star”), management and various supervisors at
Five Star, and Danny Crolley—who is not an employee of Five Star. In his complaint, Plaintiff
asserts violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e,
as well as various state law claims. This matter is before the court on: Five Star’s partial motion
to dismiss (ECF No. 22); Defendants Defino’s and Turner’s motion to dismiss (ECF No. 27);
Defendant Crolley’s motion to dismiss (ECF No. 13); and Defendant Brooks’ motion to dismiss
(ECF No. 29).
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation wherein she recommends that the court: grant in part and deny in part Five

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight,
and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261
(1976). The court is charged with making a de novo determination of those portions of the Report to which specific
objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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Star’s motion; grant the motion of Defendants DeFino and Turner; deny the motion of Defendant
Crolley; and deny the motion of Defendant Brooks. The Report and Recommendation sets forth
the relevant facts and standards of law on this matter, and the court incorporates such herein by
reference in its entirety.
All parties were advised of their right to file objections to the Report and
Recommendation, which was entered on the docket on October 30, 2013. In the absence of
specific objections to the Report of the Magistrate Judge, this court is not required to give any
explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). After carefully reviewing the applicable laws, the record in this case, and the Report and
Recommendation, this court finds the Magistrate Judge’s recommendation fairly and accurately
summarizes the facts and applies the correct principles of law as to: Five Star’s partial motion to
dismiss (ECF No. 22); Defendant Defino’s and Turner’s motion to dismiss (ECF No. 27); and
Defendant Crolley’s motion to dismiss (ECF No. 13). Accordingly, the court adopts the Report
and Recommendation in its entirety as to those motions.
For the reasons explained below, the court also finds that the Magistrate Judge fairly and
accurately summarizes the facts and applies the correct principles of law as to Defendant Brooks’
motion (ECF No. 29), the only party to file objections to the Report and Recommendation. No
replies were filed.
II. Brooks’ Objections
Defendant Brooks objects to the Report and Recommendation on two grounds: (1)
Defendant Brooks’ conduct, as pleaded, was not sufficiently outrageous to constitute a cause of
action for intentional infliction of emotional distress; and (2) the defamation claim against
Brooks was not adequately pleaded.

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i. Intentional Infliction of Emotional Distress
Defendant Brooks argues that, as a matter of law, her conduct, as pleaded, did not rise to
the level of outrageousness required to succeed on an intentional infliction of emotional distress
claim. The court is aware that “the tort of intentional infliction of emotional distress requires an
unusually high degree of damning evidence,” but the court is convinced that the complaint in this
case successfully pleads extreme and outrageous conduct. Levine v. Walterboro City Police
Dep't, 2:05-2906-18, 2006 WL 2228993 (D.S.C. Aug. 3, 2006). Particularly damning is the
allegation that Defendant Brooks “grabb[ed] Plaintiff’s… phallus” in the workplace and without
his consent.

Therefore, the court will allow Plaintiff’s claim of intentional infliction of

emotional distress against Defendant Brooks to proceed.
ii. Defamation
Defendant Brooks argues that Plaintiff has failed to meet the pleading standard with
regard to his defamation claim against Defendant Brooks. The court disagrees. Defendant
Brooks correctly points to the sentence that most directly alleges Plaintiff’s defamation claim:
Brooks also repeatedly abused Plaintiff verbally in front of residents and
employees, calling him incompetent and voicing other slurs to him and about him.
ECF No 7, p. 5. Under South Carolina law, defamation, in the form of slander, is “actionable per
se … if it charges the plaintiff with … unfitness in one’s business or profession.” Holtzscheiter v.
Thomson Newspapers, Inc., 506 S.E.2d 497, 502 (S.C. 1998). Plaintiff’s complaint also alleges
that Defendant Brooks’ statements harmed Plaintiff’s “private and professional reputations as
well as [ ] his future earning power.” ECF No. 7, p. 9. While the allegations of the complaint do
not directly allege that Plaintiff is “unfit” professionally, the court finds that the allegations,
taken as a whole, state a plausible defamation claim against Defendant Brooks.

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III. Conclusion
The court grants Five Star’s partial motion to dismiss (ECF No. 22) as to Plaintiff’s third
cause of action only. The court denies Five Star’s partial motion to dismiss as to Plaintiff’s fifth
cause of action. The court grants the motion to dismiss of Defendant Defino and Defendant
Turner (ECF No. 27). The court denies Defendant Brooks’ motion to dismiss (ECF No. 29) in
its entirety. The court denies Defendant Crolley’s motion to dismiss (ECF No. 13) in its entirety.
The file shall be returned to the Magistrate Judge for further processing.

IT IS SO ORDERED.

March 6, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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