Pierce v. Office Depot Inc

Filing 38

ORDER ADOPTING 28 REPORT AND RECOMMENDATION re 23 Motion to Dismiss, Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction, filed by Office Depot Inc. Defendant Office Depot, Inc.' ;s Partial Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 23) is granted and Plaintiff's age discrimination claims concerning the 2010 Reassignment and November 2011 Failure to Promote are dismissed. Signed by Honorable Mary G Lewis on 11/18/2014. (abuc) Modified to edit text on 11/18/2014 (abuc).

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Robert M. Pierce, Jr.,

) Civil Action No.: 0:13-cv-3601-MGL
)
Plaintiff, )
)
)
vs.
ORDER AND OPINION
)
Office Depot, Inc.,
)
)
Defendant. )
_________________________________
Plaintiff Robert M. Pierce, Jr. (“Plaintiff”) filed this action against his former employer,
Office Depot, Inc. (“Defendant”), alleging claims for violation of the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”), breach of employment contract/wrongful
discharge, and breach of contract accompanied by a fraudulent act. Defendant filed a partial motion
to dismiss on April 8, 2014 seeking dismissal of the portions of Plaintiff’s ADEA claim concerning
alleged adverse employment actions in January 2010 and November 2011 on the basis that they are
time barred. Defendant also seeks dismissal of both breach of contract claims for failure to state a
claim as a matter of law. Plaintiff filed his response on April 25, 2014 (ECF No. 25) and Defendant
filed a reply on May 5, 2014 (ECF No. 26). In accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Judge Shiva V.
Hodges for consideration.

The Magistrate Judge has prepared a thorough Report and

Recommendation and recommends that Defendant’s motion be granted. (ECF No. 28.)
STANDARD OF REVIEW
The Report and Recommendation sets forth in detail the relevant facts and standards of law
on this matter, and the Court incorporates such without a recitation. The Magistrate Judge makes
only a recommendation to this Court. The recommendation has no presumptive weight. The

responsibility for making a final determination remains with this Court. Mathews v. Weber, 423
U.S. 261, 270 (1976). The Court is charged with making a de novo determination of any portions
of the Report and Recommendation to which a specific objection is made. The Court may accept,
reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
DISCUSSION
The Magistrate Judge recommends dismissal of Plaintiff’s age discrimination claims
concerning a 2010 reassignment and a November 2011 failure to promote because Plaintiff’s April
2013 Equal Opportunity Commission (“EEOC”) charge of discrimination was untimely as to each
of these claims. (ECF No. 28 at 9.) The Magistrate Judge also recommends dismissal of Plaintiff’s
breach of contract/wrongful discharge and breach of contract accompanied by a fraudulent act
claims because Plaintiff failed to overcome the presumption of at-will employment and to provide
sufficient factual support for his breach of contract allegations. (ECF No. 28 at 9-16.) Following
the Magistrate Judge’s recommendation, the only remaining claims would be Plaintiff’s age
discrimination claims concerning the 2012 Failure to Promote and August 2012 Termination.
Plaintiff filed objections to the Report and Recommendation disagreeing with the Magistrate
Judge’s assessment of his age discrimination and breach of contract claims. (ECF No. 32.) Plaintiff
argues that Plaintiff’s January 2010 and November 2011 claims should not be dismissed as time
barred because their discriminatory nature was not apparent until the occurrence of another
discriminatory event. (ECF No. 32 at 5.) Plaintiff also disagrees with the Magistrate Judge’s
finding that the“Performance Improvement Process” (“PIP”) and a corresponding 60-day
improvement plan did not alter the employment-at-will status. Instead, Plaintiff maintains that the

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PIP created a contractual obligation on the defendant. (ECF No. 32 at 7.)
In light of the standards set forth above, the Court has reviewed, de novo, the Report,
Plaintiff’s objections, and Defendant’s reply. Plaintiff’s objections relate to his disagreement with
the proposed disposition of his case and are little more than restatements of arguments and facts
previously considered by the Magistrate Judge. The Magistrate Judge fully analyzed the
circumstances of Plaintiff’s 2010 reassignment and November 2011 failure to promote claims. The
Magistrate Judge correctly determined that these incidents were each discrete discriminatory acts
within the meaning of the Supreme Court’s ruling in National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002) and its progeny. Accordingly, the “continuing violation” doctrine Plaintiff
seeks to invoke does not apply to these acts to save these otherwise untimely claims. See Holland
v. Washington Homes, Inc., 487 F.3d 208 (4th Cir. 2007) (“Plaintiff cannot benefit from the
continuing violations theory because he has alleged discrete violations...we along with other courts
have declined to extend the limitations periods for discrete acts of discrimination merely because
the plaintiff asserts that such discrete acts occurred as part of a policy of discrimination.”(internal
citations and quotation marks omitted)).
The Magistrate Judge also fully considered Plaintiff’s argument that the PIP process
established a contract that changed the at-will employment status. It is clear that the Magistrate
Judge carefully considered the plain language of the PIP and its disclaimers, incorporated into
Plaintiff’s amended complaint, to conclude that the PIP did not contain mandatory language
sufficient to alter the presumption in South Carolina of an at-will employee relationship. Plaintiff
continues to argue that the PIP mandated continued employment during the employment
improvement time period but in actuality, the PIP provides just the opposite in expressly stating that

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“designation of a PIP period is not a guarantee of employment for the specified period of time.”
(ECF No. 20-4 at 1) (Emphasis added). The Court finds no error in the Magistrate Judge’s
consideration and agrees with her conclusion as Plaintiff has not set forth sufficient factual
allegations to establish a plausible claim for breach of contract and that an employment contract
beyond the at-will relationship existed. See Perrine v. G4S Secure Solutions (USA), Inc., No. 2:111210-RMG, 2011 WL 3563110, at *2 (D.S.C. 2011) (“[I]n order to survive a Rule 12 motion to
dismiss on a claim for breach of a contract of employment, a Plaintiff must “plead sufficient factual
allegations to establish the existence of an employment contract beyond the at-will relationship.”
(internal quotations and citations omitted)). Plaintiff’s objection is without merit and his claims for
breach of contract and breach of contract accompanied by a fraudulent act must be dismissed.
CONCLUSION
After a thorough review of the Report and Recommendation, Plaintiff’s objections,
Defendant’s reply, the record, and the applicable law, the Court adopts the Magistrate Judge’s
Report and Recommendation and incorporates it herein by reference. Therefore, it is ORDERED
that Defendant Office Depot, Inc.’s Partial Motion to Dismiss Plaintiff’s Amended Complaint (ECF
No. 23) is GRANTED and Plaintiff’s age discrimination claims concerning the 2010 Reassignment
and November 2011 Failure to Promote are hereby DISMISSED. This action is recommitted to the
Magistrate Judge for further pretrial handling.
IT IS SO ORDERED.
s/ Mary G. Lewis
United States District Judge

Spartanburg, South Carolina
November 18, 2014

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