Todd v. South State Bank et al

Filing 32

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim;.; finding as moot 24 Motion for Extension of Time. Signed by Honorable Richard M Gergel on 10/22/2015.(cwhi, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
1u\5 Del
CHARLESTON DIVISION
Prissy Todd,

22 p 2: 10

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Plaintiff,

Civil Action No.: 2: 15-cv-0708-RMG

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v.

South State Bank, f/kJa South Carolina
Bank and Trust, flkJai First Federal Bank
and South State Corporation, f/kJa
SCBT Financial Corporation, flkJa
First Financial Holdings, Inc.,

ORDER

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Defendants.

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This matter comes before the court on the Report and Recommendation (R & R) of the
Magistrate Judge. (Dkt. No. 21). For the reasons below, this Court adopts the R & R.
I. Background

In 2001, Defendant First Federal Bank hired Plaintiff Prissy Todd to work as a teller. In
2004 Todd moved to the human resources department, and in 2005, she began working in the
accounting department as a Payroll Account Assistant III. In 2009, Plaintiff suffered a stroke
which she attributed, at least in part, to the stress of the job.
Plaintiff was subsequently diagnosed with depression and anxiety shortly thereafter and
was placed on medication. She took Family and Medical Leave Act leave three times in 2009
and 2010.
In 2013, First Federal Bank merged with South Carolina Bank and Trust to form South
State Bank. When merger plans were announced, Plaintiff s anxiety and depression became
aggravated and she was again prescribed medication for her impairments. After the merger,

Plaintiff worked in the same job position, albeit in the human resources department rather than
the accounting department.
Plaintiff alleges that her perfonnance evaluations were "always above average," and that
she never received any fonnal discipline during her employment. (Dkt. No. 23 at 5). Plaintiff
also states that although there were three other individuals who perfonned some of the same
duties that she did, they did so on "a much lower level." Id. She also alleges that South State
advised her that it "had no intention in terminating [her] employment." Id. When Plaintiff asked
if her position was pennanent, she was informed that "nothing was pennanent," but there were
no plans to tenninate her. Id.
In July 2013, South State began the process of converting First Federal employees to
South State employees.

This created a substantial amount of work for Plaintiff and the

department in which she worked. During this time period, she alleges that she walked around the
office and assisted other employees in a "finn and assertive" manner. Her supervisor told her to
stop walking around the office. Id. at 6.
In September 2013, Plaintiff sent an email that her supervisor found to be inappropriate.
The supervisor allegedly told her that "the company needed [Plaintiff[; that [Plaintiff] knew
more about payroll than anyone else in the company; but that [Plaintiff needed to be careful
about what she said." (Dkt. No. 23 at 6). The supervisor then instructed Plaintiff to retract the
email.
On October 2, 2013, South State infonned Plaintiff that her position had been eliminated
and that she was terminated. The three employees who perfonned similar work to her were
retained. Plaintifflater learned that South State employees including Deborah Nelson, the Senior
Human Resources Associate, had told other employees-verbally and via text messages-that

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Plaintiff was fired because she was "crazy, unstable and out of control." (Dkt. No. 23 at 7). And
Plaintiff later learned that South State was making efforts to hire a replacement for Plaintiff.
Plaintiff filed this action asserting claims under the Americans with Disabilities Act
("ADA"), as well as state law claims for slander per se, breach of contract, and breach of
contract accompanied by a fraudulent act. (Dkt. No.1). Defendant filed a Rule l2(b)(6) motion
to dismiss Plaintiffs state law causes of action on March 19, 2015. (Dkt. No.6). And the
Magistrate Judge issued an R & R recommending that this court grant Defendants motion to
dismiss with respect to the breach of contract and breach of contract accompanied by a
fraudulent act claims, and deny Defendant's motion with respect to the slander per se cause of
action.
II. Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R & R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
III. Discussion

Defendant filed a Rule 12(b)(6) motion to dismiss Plaintiffs state law claims. Rule
l2(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if the
complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal
sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of

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the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the
allegations constitute 'a short and plain statement of the claim showing that the pleader is
entitled to relief.'"

Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)

(quotation marks and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to
"assume the truth of all facts alleged in the complaint and the existence of any fact that can be
proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a
light most favorable to the non-moving party, it "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments." Id.
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face." Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although the requirement of plausibility does not impose a probability requirement at this stage,
the complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the
pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.
This Court now addresses each of Plaintiff s state law claims in turn.
A. Defamation Claim

"The tort of defamation allows a plaintiff to recover for injury to her reputation as the
result of the defendant's communication to others of a false message about the plaintiff."
Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497,501 (S.C. 1998). Slander is spoken
defamation, and libel is written defamation. Id. Although Plaintiff styles her first cause of

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action as "slander per se," she pleads facts alleging both slander and libel in her amended
complaint.
To prevail in a defamation action, a plaintiff must establish that "there was (1) a false and
defamatory statement by the defendant concerning the plaintiff; (2) an unprivileged
communication; (3) fault on the defendant's part in publishing the statement; and (4) either
actionability of the statement irrespective of special harm or the existence of special harm to the
plaintiff caused by the publication." Parrish v. Allison, 656 S.E.2d 382, 388 (S.C. Ct. App.
2007).
The term of defamation per se has led to some confusion in South Carolina because it can
refer to two different things. See Holtzscheiter, 506 S.E.2d at 502 n.s. A communication is
defamatory per se if the defamatory meaning is obvious on the face of the statement. Id. at 501.
If the plaintiff must introduce extrinsic facts to prove a defamatory meaning, it is defamation per
quod.

Id.

In addition to being defamatory per se or per quod, the statement will also be

actionable per se or not actionable per se. Id. at 502. "If the defamation is actionable per se, the
law presumes the defendant acted with common law malice and that the plaintiff suffered general
damages. If the defamation is not actionable per se, then the plaintiff must plead and prove
common law actual malice and special damages." Parrish, 656 S.E.2d at 389.
Defendant's objections argue that the complained of comments "were not defamatory but
instead were legally protected opinions and/or figurative, exaggerated hyperbole." (Dkt. No. 27
at 5).

To support this assertion, Defendant cites several authorities from outside of South

Carolina (while noting that the South Carolina appellate courts have never ruled that such words
were defamatory). These authorities are unpersuasive, and the Court instead looks to a case from
the Supreme Court of South Carolina for guidance.

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In Capps v. Watts, the Supreme Court of South Carolina held that the words "paranoid
sonofabitch" were words of abuse and scurrility and that such words, on their face, are not, as a
general rule, considered defamatory." 246 S.E.2d 606, 609 (S.c. 1978). It went on to hold,
however, that they could be defamatory per quod because they were "susceptible of a libelous
construction." Id. In other words, a jury could infer that there was defamatory meaning behind
those words.
This Court agrees with the Magistrate Judge's analysis and reasoning regarding
Plaintiffs defamation claim. This Court finds that under South Carolina law, calling someone
"crazy," "unstable," or "out of control" is not defamatory per se. But pursuant to Capps, those
terms could be defamatory per quod. Because Plaintiff plausibly pleads the remaining three
elements of a defamation cause of action, this Court denies Defendant's Rule 12 motion to
dismiss.
B. Breach ofContract

The Magistrate Judge recommended dismissing Plaintiff's breach of contract claim
because she failed to set forth factual allegations sufficient to give rise to a plausible claim that
she had an employment contract with the Defendant. This Court agrees with the Magistrate
Judges' thoughtful and well-reasoned analysis and dismisses this claim. The court also notes
that Plaintiff s allegation that Defendant was "making efforts to hire another person into
plaintiff's position" undercuts the importance of her allegation that Defendant failed to follow its
policies regarding layoffs and reductions in force. (Dkt. No. 23 at 7). Even if Defendant's
policies were binding in layoff and reduction-in-force situations, Plaintiff's allegation that
Defendant sought to replace her suggests that neither a layoff nor a reduction in force happened
here. As allege, the facts suggest that Defendant simply terminated Plaintiff.

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C. Breach ofContract Accompanied by Fraudulent Act
The Magistrate Judge applied sound law and reasoning in concluding that a claim
involving breach of contract accompanied by fraudulent act should be dismissed in the absence
of a contract. The Court dismisses this claim.
IV. Conclusion

For the aforementioned reasons, this court ADOPTS the Magistrate Judge's R & R (with
modifications) as the order of this court, GRANTS Defendants' motion to dismiss in part, and
DENIES Defendant's motion to dismiss in part (Dkt. No .. The Court also DENIES the parties'

consent motion for an extension of time to file objections to the R & R (Dkt. No. 24) as moot.
AND IT IS SO ORDERED.

ruChM~r$;f

United States District Court Judge

October 1<,2015
Charleston, South Carolina

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