Gray v. American Homepatient Inc

Filing 19

ORDER adopting Report and Recommendations re 11 Report and Recommendation; granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim; granting 5 Motion to Strike. Signed by Honorable David C Norton on 3/3/2015.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ELIZABETH GRAY,
Plaintiff,
vs.
AMERICAN HOMEPATIENT, INC.,
Defendant.

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No. 2:14-cv-01207-DCN

ORDER

This matter is before the court on Magistrate Judge Bristow Marchant’s Report
and Recommendation (“R&R”) that this court grant in part and deny in part defendant
American HomePatient, Inc.’s motion to dismiss and grant its motion to strike. Plaintiff
Elizabeth Gray (“Gray”) filed objections to the R&R. For the reasons set forth below, the
court adopts the R&R, grants in part and denies in part defendant’s motion to dismiss,
and grants defendant’s motion to strike.
I. BACKGROUND
This case arises out of alleged discriminatory employment practices by defendant
American HomePatient, Inc. Gray alleges that she was hired by American HomePatient
in or around July 2007. Compl. ¶ 8. In or around 2011, Gray’s minor daughter was the
victim of sexual molestation and criminal charges were brought against the perpetrator.
Id. ¶ 16. Gray alleges that as a result, she was called to court numerous times and had to
meet with the solicitor, victim advocates, guardian ad litems, and other court personnel.
Id. ¶ 17. Gray contends that despite these absences from work, her performance met and
exceeded American HomePatient’s expectations. Id. ¶ 18.

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Gray alleges that she was under a great deal of stress during this time and was
diagnosed with uncontrolled high blood pressure and an anxiety disorder. Id. ¶ 19. Due
to these conditions, she missed some work in 2013, for which she applied for leave
pursuant to the Family Medical Leave Act (“FMLA”). Id. ¶ 20. American HomePatient
allegedly denied her FMLA leave request and instead issued “a letter in lieu of
suspension on April 19, 2011 in response to her having to be out of work for court and
medical conditions.” Id. ¶¶ 21-22. Gray also alleges that her supervisors, Kelly Bratz
and Tina Brown, communicated with her by text message in “an extremely harassing
manner while [Gray] was attending a doctor’s appointment requesting information about
her appointment.” Id. ¶ 23.
Gray claims that she supplied American HomePatient with copies of subpoenas
and letters from the solicitor, victim advocates, and others regarding her required court
appointments, as well as doctors’ notes for time missed due to illness. Id. ¶¶ 24, 26.
Despite receiving valid excuses for her absences, Gray alleges that American
HomePatient continued to harass her about being out of work. Id. ¶¶ 25, 27. American
HomePatient finally terminated Gray in December 2013. Id. ¶ 28.
On April 1, 2014, Gray filed the instant action, alleging the following causes of
action against American HomePatient: (1) violation of public policy; (2) violation of the
FMLA; and (3) breach of contract. Gray seeks a variety relief, including compensatory
and punitive damages. On May 21, 2014, American HomePatient filed a motion to
dismiss all of Gray’s claims and a motion to strike various requested relief. Gray
responded on June 9, 2014 and American HomePatient filed a reply on June 19, 2014.
The magistrate judge issued the R&R on October 24, 2014, recommending that the court

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grant in part and deny in part the motion to dismiss and grant the motion to strike. Gray
objected to the R&R on November 20, 20141 and American HomePatient filed a response
on December 8, 2014. This matter has been fully briefed and is ripe for the court’s
review.
II. STANDARD OF REVIEW
A.

Objections to R&R

This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In absence of a
timely filed objection to a magistrate judge’s R&R, this court need not conduct a de novo
review, but instead must “only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s
note). The recommendation of the magistrate judge carries no presumptive weight, and
the responsibility to make a final determination rests with this court. Mathews v. Weber,
423 U.S. 261, 270-71 (1976). This court may accept, reject, or modify the report of the
magistrate judge, in whole or in part, or may recommit the matter to him with instructions
for further consideration. 28 U.S.C. § 636(b)(1).

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In her objections, Gray moves the court to allow her to amend her complaint
pursuant to Federal Rule of Civil Procedure 15 and attaches an amended complaint. The
amended complaint provides more detail regarding her claim for violation of public
policy. The court grants her motion to amend.
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B.

Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for
“failure to state a claim upon which relief can be granted.” When considering a Rule
12(b)(6) motion to dismiss, the court must accept the plaintiff’s factual allegations as true
and draw all reasonable inferences in the plaintiff’s favor. See E.I. du Pont de Nemours
& Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss, the
court’s task is limited to determining whether the complaint states a “plausible claim for
relief.” Id. at 679. Although Rule 8(a)(2) requires only a “short and plain statement of
the claim showing that the pleader is entitled to relief,” “a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). “Facts pled that are ‘merely consistent with’ liability are not
sufficient.” A Soc’y Without a Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011)
(quoting Iqbal, 556 U.S. at 678).
III. DISCUSSION
As an initial matter, Gray does not object to the magistrate judge’s
recommendation that this court dismiss her claim for breach of contract and strike her
request for punitive damages and treble damages under the FMLA. Moreover, American
HomePatient does not object to the magistrate judge’s recommendation that the court
deny its motion to dismiss with regard to Gray’s claim for violation of the FMLA.

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Because the court finds no clear error on the face of the record, the court adopts the R&R
as it relates to these issues and: (1) grants American HomePatient’s motion to dismiss
with regard to Gray’s breach of contract claim; (2) denies American HomePatient’s
motion dismiss with regard to Gray’s FMLA claim; and (3) grants American
HomePatient’s motion to strike various requests for relief.
Gray objects to the R&R on only one ground, arguing that the magistrate judge
erred in dismissing her claim for violation of public policy. Pl.’s Objections 3.
Under South Carolina law, absent the creation of a specific contract of
employment, employment is presumed to be at-will. Mathis v. Brown & Brown of S.C.,
Inc., 698 S.E.2d 773, 778 (S.C. 2010). An at-will employee may generally be terminated
at any time for any reason or for no reason, with or without cause. Id. However, under
the “public policy exception” to the at-will employment doctrine, “an at-will employee
has a cause of action in tort for wrongful termination where there is a retaliatory
termination of the at-will employee in violation of a clear mandate of public policy.”
Barron v. Labor Finders of S.C., 713 S.E.2d 634, 637 (S.C. 2011) (citing Ludwick v. This
Minute of Carolina, Inc., 337 S.E.2d 213 (S.C. 1985)).
“The determination of what constitutes public policy is a question of law for the
courts to decide.” Id. at 638. The public policy exception “clearly applies” in cases
where either: (1) the employer requires the employee to violate the law, or (2) the reason
for the employee’s termination itself is a violation of criminal law. Id. at 637 (citations
omitted). However, the South Carolina Supreme Court has emphasized that “the public
policy exception is not limited to these situations and that “an at-will employee may have
a cause of action for wrongful termination even if the discharge itself did not violate

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criminal law or the employer did not require the employee to violate the law.” Id.
(emphasis added). Besides acknowledging that the cause for action may exist outside of
the two clearly established contexts, the South Carolina Supreme Court has provided
little guidance regarding other situations in which the public policy exception may be
applicable.
Additionally, “[t]he public policy exception does not . . . extend to situations
where the employee has an existing statutory remedy for wrongful termination.” Id.; see
also Stiles v. Am. Gen. Life Ins. Co., 516 S.E.2d 449, 452 (S.C. 1999) (Toal, J.,
concurring) (“[The public policy] exception is not designed to overlap an employee’s
statutory or contractual rights to challenge a discharge, but rather to provide a remedy for
a clear violation of public policy where no other reasonable means of redress exists.”).
In her original complaint, Gray did not allege any particular public policy that
American HomePatient violated by terminating her. Because of this, the magistrate judge
correctly recommended that her complaint be dismissed. R&R 6; see McNeil v. S.C.
Dep’t of Corr., 743 S.E.2d 843, 847 (S.C. Ct. App. 2013) (holding that “a litigant must
allege more than a general statement that her discharge violated public policy”). In her
amended complaint, Gray contends that
[i]t is a violation of the Public Policy in South Carolina to dismiss an
employee because the employee assists with court directives, meets with
court personnel at designated times, meets with victims advocates, meets
with therapists, meets with expert witnesses, and takes the minor child and
victim to said appointments as directed by the courts all in an effort to
assist in the prosecution of a child molester.
Am. Compl. ¶ 23.

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As noted by the R&R, to the extent that Gray asserts that American HomePatient
terminated her for complying with a subpoena, South Carolina law provides a statutory
remedy. South Carolina Code § 41-1-70 provides that
any employer who dismisses or demotes an employee because the
employee complies with a valid subpoena to testify in a court proceeding
or administrative proceeding or to serve on a jury of any court is subject to
a civil action in the circuit court for damages caused by the dismissal or
demotion.
Therefore, Gray’s cause of action fails as a matter of law to the extent it overlaps with
state statutory law. See Frazier v. Target Corp., No. 2:09-cv- 01625, 2009 WL 3459221,
at *3 (D.S.C. Oct. 27, 2009) (dismissing the plaintiff’s public policy termination claim
because she could seek statutory relief under S.C. Code § 41-1-70).
Gray also asserts that she was dismissed for participating in a number of
seemingly voluntary activities related to various court proceedings, including meeting
with victims’ advocates, therapists, and expert witnesses. Am. Compl. ¶ 23. For a
termination to be actionable, it must be “in violation of a clear mandate of public policy.”
Barron, 713 S.E.2d at 638 (emphasis added); cf. Ludwick, 337 S.E.2d at 216 (finding that
the public policy of South Carolina was “manifestly reflected” in a particular statute
(emphasis added)). “The primary source of the declaration of public policy of the state is
the General Assembly; the courts assume this prerogative only in the absence of
legislative declaration.” Barron, 713 S.E.2d at 638 (quoting Citizens’ Bank v. Heyward,
133 S.E. 709, 713 (S.C. 1925)); see also Greene v. Quest Diagnostics Clinical Labs., Inc.,
No. 2:05-cv-0811, 2006 WL 2864102, at *8 (D.S.C. June 19, 2006) (“[T]he South
Carolina Supreme Court has only been willing to recognize as a public policy ‘mandate’
something tantamount to a judicial or legislative declaration of public policy.”). The
South Carolina Supreme Court has held that “for purposes of juridical application it may
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be regarded as well settled that a state has no public policy, properly cognizable by the
courts, which is not derived or derivable by clear implication from the established law of
the state, as found in its Constitution, statutes, and judicial decisions.” Batchelor v. Am.
Health Ins. Co., 107 S.E.2d 36, 38 (S.C. 1959).
It is reasonable to require public policy to be expressed by the General Assembly
or the judiciary. Without such a requirement, “any employee could circumvent the
employment at-will doctrine by merely asserting a termination was retaliatory in
violation of a clear mandate of public policy and contend it was a novel issue in this
state.” McNeil, 743 S.E.2d at 847. Indeed, if a plaintiff could maintain a cause of action
for violation of public policy by simply alleging that a retaliatory termination violated
South Carolina’s public policy, there would be a substantial risk that the public policy
exception would swallow the general rule allowing an employer to terminate an at-will
employee at any time and for any reason.
Other courts in this district have held that a plaintiff’s failure to identify the
source of a clear mandate of public policy warrants dismissal. See Riley v. S. Care, Inc.,
No. 3:13-cv-00357, 2013 WL 1809788, at *6 (D.S.C. Apr. 29, 2013) (“Plaintiff does not
direct the court to any other source of a clear mandate of public policy. Under these
circumstances, the court finds that Plaintiff's claim for wrongful termination in violation
of public policy fails as a matter of law.”); Smalley v. Fast Fare, Inc., No. 8:88-cv-21853, 1988 WL 220237, at *2 (D.S.C. Dec. 22, 1988) (“[I]n the absence of an appropriate
declaration by the South Carolina courts or the General Assembly, the Plaintiff has failed
to establish any public policy of South Carolina allegedly violated by the Defendant.”);
see also Washington v. Perdue Farms, Inc., No. 4:07-cv-3552, 2009 WL 386926, at *12

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(D.S.C. Feb. 13, 2009) (“The Plaintiff did not cite any case law to support her theory that
‘requesting to see the doctor’ is a public policy of South Carolina.”).
Here, Gray does not direct the court to any source of a clear mandate of public
policy regarding voluntary activities associated with the prosecution of a crime.
Although the court recognizes that wrongful termination is not limited to situations where
an employee was terminated for refusing to violate the law or where the termination was
itself a violation of criminal law, Gray has failed to state a claim for wrongful termination
in violation of public policy.
IV. CONCLUSION
Based on the foregoing, the court ADOPTS the magistrate judge’s R&R,
GRANTS defendant’s motion to dismiss as to plaintiff’s claims for breach of contract
and violation of public policy, DENIES defendant’s motion to dismiss as to plaintiff’s
claim for violation of the FMLA, and GRANTS defendant’s motion to strike.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 3, 2015
Charleston, South Carolina

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