Odom v. CVS Caremark Corporation et al

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION adopting as modified herein 36 Report and Recommendation, granting 27 Motion to Dismiss for Failure to State a Claim. (Amended Complaint due by 2/17/2015) Signed by Honorable Mary G Lewis on 1/30/2015. (cbru, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
James D. Odom,

) Civil Action No.: 3:14-456-MGL-SVH
)
Plaintiff, )
)
ORDER AND OPINION
vs.
)
)
CVS Caremark Corp., CVS Rx Services,
)
Inc., and South Carolina CVS Pharmacy,
)
LLC,
)
)
Defendants. )
____________________________________ )
In this action, Plaintiff James Odom (“Plaintiff”) sues his former employer CVS Rx Services,
Inc., and its related entities CVS Caremark Corporation and CVS Caremark Pharmacy, LLC
(“Defendants”) based on his termination from employment. Defendants filed a motion to dismiss
Plaintiff’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on August 15,
2014. (ECF No. 27.) 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 recommending that this
Court grant Defendants’ motion to dismiss, with leave for Plaintiff to file an amended complaint as
to his gender discrimination claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. (“Title VII”), and age discrimination claims in violation of the Age Discrimination
in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”). (ECF No. 36.) Plaintiff and Defendants
filed respective objections to the Report and Recommendation on January 5, 2015 (ECF Nos. 37 &
39) and Defendants filed a reply on January 23, 2015. (ECF No. 40.) For the reasons set forth
below, this Court adopts the Report and Recommendation of the Magistrate Judge as modified and
grants Defendants’ Motion to Dismiss with leave for Plaintiff to amend as to certain claims.

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). Parties are allowed to make a written objection to a Magistrate Judge’s report
within fourteen days after being served a copy of the Report and Recommendation. 28 U.S.C. §
636(b)(1). 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 gender and age discrimination
claims without prejudice and with leave to file a second amended complaint to clarify the proper
comparator, dismissal with prejudice of Plaintiff’s wrongful termination in violation of public policy
claims, and dismissal with prejudice of Plaintiff’s defamation, negligence, and intentional infliction
of emotional distress claims. (ECF No. 36.) Plaintiff filed objections, claiming the Magistrate Judge
erred in finding Plaintiff’s gender and age discrimination, wrongful termination, defamation, and
intentional infliction of emotional distress claims should be dismissed. Defendants objected to the
portion of the Magistrate Judge’s analysis concerning a younger female co-worker as a comparator.
Having reviewed the objections, this Court agrees with the course of action recommended
by the Magistrate Judge concerning Plaintiff’s age and gender discrimination causes of action.
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These claims, set forth as the first and second causes of action of the amended complaint, are
dismissed without prejudice. Plaintiff is granted leave to file a second amended complaint to clarify
the proper comparator needed to state a prima facie case of gender/age discrimination. This Court
does not read the Report and Recommendation to be a statement pronouncing that a younger, female
co-worker is necessarily a proper comparator. Such assessments and judgments are reserved until
such time as Plaintiff has amended his complaint and the parties have briefed the issue of whether
Plaintiff and the comparator are “similarly situated” in accordance with Fourth Circuit law.
The Court also agrees, in significant part, with the Magistrate Judge’s treatment of Plaintiff’s
third and fourth causes of action concerning Plaintiff’s termination. In these claims, Plaintiff seeks
to invoke the “public policy” exception to South Carolina employment at-will doctrine. See Epps
v. Clarendon Co., 304 S.C. 424, 426, 405 S.E.2d 386, 387 (S.C.1991). Plaintiff does not allege that
Defendants asked him to violate the law or allege that the reason for the termination itself is a
violation of criminal law, instead Plaintiff argues that he was terminated because he complied with
DHEC regulations which was a clear violation of public policy. Alternatively, Plaintiff argues that
terminating him for an alleged HIPAA violation when he did not in fact violate HIPAA, is a clear
violation of public policy. (ECF No. 37 at 6-7.)
Although Plaintiff alleges he was discriminated and retaliated against, as stated, it was not
because of the violation of any clearly mandated “public policy” as defined by the South Carolina
Courts. The public policy exception for the discharge of an at-will employee encompasses only
“public rights,” not “private” or “personal” rights. See McNeil v. South Carolina Dep’t of Corr., 404
S.C. 186, 193, 743 S.E.2d 843 (S.C. Ct. App. 2013). As the Magistrate Judge correctly concluded,
there are no allegations in Plaintiff’s complaint to support Plaintiff’s public policy claims under
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South Carolina law. As such, Plaintiff’s claims fail to state legally viable public policy causes of
action and are therefore dismissed. Plaintiff’s fourth cause of action concerning the purported
HIPAA violation is dismissed with prejudice as a matter of law. As stated by the Magistrate Judge,
Plaintiff’s argument is unavailing and unsupported by any legal basis. See Roberts v. Intown Suites,
No. 11-2213, 2012 WL 5074324, *3 (D.S.C., Oct. 18, 2012), aff’d, 512 Fed. Appx. 364 (4th Cir.,
Feb. 28, 2013) (termination for “false and fraudulent grounds…was based on an alleged violation
of [plaintiff’s] personal rights” and thus did not violate public policy). The Court, however,
dismisses Plaintiff’s third cause of action, in which he claims he was terminated because he
cooperated with DHEC, without prejudice and with leave to amend in order to state sufficient
supporting facts.
Finally, the Court has reviewed and considered Plaintiff’s objections as to the Magistrate
Judge’s findings on his defamation and intentional infliction of emotional distress claims. This
Court is strongly inclined to agree with the Magistrate Judge’s assessment of these claims, but
because the Court is already granting Plaintiff leave to amend his complaint with respect to three
other causes of action, Plaintiff may use this opportunity to once again amend his complaint to
address the noted deficiencies in his defamation and IIED claims. Thus, these claims are dismissed
without prejudice. Re-pleading the same insufficient allegations and failing to adequately address
the matters outlined above may result in dismissal of the claims with prejudice.
CONCLUSION
The Court has carefully reviewed the objections made by Plaintiff and Defendants and has
conducted the required review. After considering the motion, the record, and the Report and
Recommendation, the Court ADOPTS the Report and Recommendation as modified herein and
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hereby GRANTS Defendants’ Motion to Dismiss. (ECF No. 27.)

It is therefore ordered that

Plaintiff’s First and Second Causes of Action are DISMISSED WITHOUT PREJUDICE. Although
Plaintiff has already filed an amended complaint, Plaintiff may be able to adequately plead his Public
Policy Discharge (DHEC investigation), defamation, and intentional infliction1 claims if given
another opportunity.

Therefore, Plaintiff’s Third, Fifth, and Seventh Causes of Action are

DISMISSED WITHOUT PREJUDICE. The remaining claims, to include Plaintiff’s Fourth and
Sixth Causes of Action, are DISMISSED WITH PREJUDICE because even if given another
opportunity, Plaintiff cannot adequately plead these claims under the circumstances presented in this
case, and granting leave to amend these claims would be futile. See In re PEC Solutions, Inc. Sec.
Litig., 418 F.3d 379, 391 (4th Cir.2005) (“Leave to amend need not be given when amendment
would be futile.”). To the extent Plaintiff’s claims are dismissed without prejudice, Plaintiff is
granted leave to file an amended complaint within fifteen days from the date of this Order. Any
amended complaint shall not assert any claim dismissed herein with prejudice. If Plaintiff does not
timely file an amended complaint, the entire matter may be dismissed with prejudice.
IT IS SO ORDERED.
s/ Mary G. Lewis
United States District Judge
Columbia, South Carolina
January 30, 2015
1

Plaintiff did not state any specific objection to the recommended dismissal of his
negligence claim. This claim is therefore dismissed with prejudice for the reasons stated by the
Magistrate Judge. Plaintiff has not plausibly alleged that he was anything other than an at-will
employee. Thus, he cannot state a claim for negligence because South Carolina does not
generally recognize a cause of action for wrongful termination of an at-will employee. See
Campbell v. International Paper Co., No. 3:12–cv–03042–JFA, 2013 WL 1874850 (D.S.C. May
3, 2013).
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