Seago v. Central Midlands Council of Government et al
OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION declining to adopt 19 Report and Recommendation, granting in part 7 Motion to Dismiss for Failure to State a Claim, and re-referring to the Magistrate Judge for further pretrial proceedings. Signed by Honorable Cameron McGowan Currie on 1/9/2017. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Sharon L. Seago,
C/A. No. 3:16-cv-2548-CMC-PJG
Central Midlands Council of Government,
And Benjamin Mauldin, in his official
Opinion and Order
Through this action, Plaintiff Sharon Seago (“Plaintiff”) seeks recovery from her former
employer, Central Midlands Council of Government (“CMCOG”) and Benjamin Mauldin
(“Mauldin”) (collectively “Defendants”), for alleged employment discrimination and retaliation
pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., and for
defamation against CMOG (third cause of action), violation of the South Carolina Whistleblower
Act (fourth cause of action), defamation against Mauldin (fifth cause of action) and civil
conspiracy against Mauldin (sixth cause of action). ECF. No. 1-3, Am. Compl. (as removed from
state court). The matter is before the court on Defendants’ Motion to Dismiss Plaintiff’s third,
fourth, fifth, and sixth causes of action and to dismiss Mauldin as a party, pursuant to Federal Rule
of Civil Procedure 12(c). ECF No. 7.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), (g), D.S.C.,
this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings
and a Report and Recommendation (“Report”). On November 3, 2016, the Magistrate Judge
issued a Report recommending that Defendants’ motion to dismiss be denied. ECF No. 19. The
Magistrate Judge advised the parties of the procedures and requirements for filing objections to
the Report and the serious consequences if they failed to do so. On December 2, 2016, after being
granted an extension of time in which to file objections, Defendants filed objections to the Report.
ECF No. 23. This matter is now ripe for resolution.
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). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district 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.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
Defendants present several objections to the Report, arguing that the Magistrate Judge’s
findings regarding the Whistleblower Act and civil conspiracy claims were erroneous and those
claims should be dismissed. The objections are discussed below in turn.
a. Defamation claims
According to Defendants’ objections to the Report, the parties have resolved the motion as
to the defamation claims: “Plaintiff will dismiss the defamation claim against Mr. Mauldin in his
individual capacity and Defendants will withdraw the motion to dismiss Plaintiff’s defamation
claim against the CMCOG.” ECF No. 23. Therefore, the defamation claims will not be addressed
further in this Order, as Defendants’ motion as to the defamation claim against CMCOG has been
withdrawn. Plaintiff may file a stipulation of dismissal as to the defamation claim against Mauldin.
b. Whistleblower Claim against CMCOG
In their motion to dismiss, Defendants argue that Plaintiff’s claim under the South Carolina
Whistleblower Act should be dismissed because Plaintiff failed to plead that she has exhausted all
available administrative remedies and shown that previous proceedings have resulted in a finding
that she would not have been disciplined but for her report of alleged wrongdoing. See S.C. Code
§ 8-27-30(A) (“No action may be brought under this chapter unless (1) the employee has exhausted
all available grievance or other administrative remedies; and (2) any previous proceedings have
resulted in a finding that the employee would not have been disciplined but for the reporting of
alleged wrongdoing.”). The Magistrate Judge concluded that Plaintiff’s Whistleblower Act claim
should not be dismissed because Plaintiff is not required to plead the exhaustion requirement as
set forth in the Act. ECF No. 19 at 6. CMCOG objects, arguing that the language of the Act and
Federal Rules of Civil Procedure require Plaintiff to plead that she has satisfied the exhaustion
requirement. ECF No. 23 at 4. The court has considered the record, the applicable law, the Report,
and the objections de novo, and declines to adopt the Report’s recommendation that the
Whistleblower Act claim not be dismissed.
Federal Rule of Civil Procedure 8(a)(2) “requires only a short and plain statement of the
claim showing that the pleader is entitled to relief. . . .” McCleary-Evans v. Maryland Dep’t of
Transp., 780 F.3d 582, 585 (4th Cir. 2005) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Rule 9(c) requires a party to plead conditions precedent, at least in a general manner.
Fed. R. Civ. P. 9(c). Plaintiff has failed to allege that she satisfied the exhaustion prerequisites in
her Amended Complaint. The Whistleblower statute requires that “no action may be brought under
this chapter unless” the statutory prerequisites are met. S.C. Code § 8-27-30(A).
Plaintiff’s failure to allege in her Amended Complaint that she has met the conditions
precedent, or even that “grievance or other administrative remedies” were unavailable, means that
she has failed to state a claim sufficient for relief under the Act. 1 See Jones v. Richland Cty., No.
3:16-0466, 2016 WL 5402862, at *2 (D.S.C. Sept. 28, 2016) (granting motion to dismiss
Whistleblower Act claim where “Plaintiff has failed to meet the requirements of section 8-2730(A) by not alleging or providing any facts” to satisfy the statutory prerequisites in the Act.);
Giraldo v. City of Columbia, 47 F.Supp.3d 430, 434 (D.S.C. Sept. 18, 2014) (granting summary
judgment when “Plaintiff failed to meet the prerequisite set forth in S.C. Code Ann. § 8-27-30(A)
to bring a whistleblower action against the City.”); Burdine v. Greenville Technical College, No.
6:08-cv-03764, 2010 WL 5211544, at *13 (D.S.C. Dec. 16, 2010) (granting summary judgment
when the plaintiff “failed to produce evidence establishing exhaustion of all available remedies,”
“failed to present evidence that any previous proceedings resulted in a finding that she would not
have been disciplined but for the reporting of alleged wrongdoing as required by the Whistleblower
Act,” and therefore “failed to plead or produce any evidence of actionable retaliation.”).
The Magistrate Judge noted that Defendants had “not identified any available grievance
process or other administrative remedy available to [Plaintiff.]” ECF No. 19 at 7. However,
because the exhaustion prerequisites are not an affirmative defense, but statutory requirements
In Defendants’ objections to the Report, they note Plaintiff did avail herself of administrative
remedies before the CMCOG Executive Committee, which unanimously approved the termination
decision. Therefore, it appears Plaintiff cannot allege that “previous proceedings have resulted in
a finding that the employee would not have been disciplined but for the reporting of alleged
placed on Plaintiff, it was not Defendants’ burden to plead available administrative remedies. The
burden remains on Plaintiff to plead the requirements of the statute, which she has failed to do or
even offer to do. See Burdine, 2010 WL 5211544, at *13 (“Plaintiff . . . has not satisfied the
fundamental requirements necessary to bring a claim.”); Cf. Plyler v. U.S., 900 F.2d 41, 42 (4th
Cir. 1990) (dismissing claim where statute stated that “an action shall not be instituted . . .unless
the claimant shall have first presented the claim to the appropriate Federal agency . . .” and Plaintiff
failed to exhaust administrative remedies prior to filing suit).
Therefore, Plaintiff’s claim under the South Carolina Whistleblower Act is dismissed.
c. Civil Conspiracy Claim against Mauldin
Defendants argue that Plaintiff’s civil conspiracy claim against Mauldin should be
dismissed for several reasons: 1) Plaintiff was an at-will employee who may not maintain a civil
conspiracy against her employer for actions resulting in termination, 2) she failed to plead specific
acts taken by Mauldin in furtherance of the conspiracy, and 3) she failed to plead special damages.
ECF No. 7-1 at 10-11. The Report recommends Defendants’ motion to dismiss this claim be
denied, because the conspiracy was to “ruin Plaintiff’s professional reputation,” not merely to
terminate her employment; the Complaint alleges sufficient acts in furtherance of the conspiracy;
and Plaintiff pled special damages as a result of being ostracized and blacklisted. ECF No. 19 at
9-10. Defendants object, arguing the conspiracy claim is based on a conspiracy to terminate
Plaintiff’s employment, Mauldin engaged in conduct resulting in Plaintiff’s termination, and
Plaintiffs failed to distinguish her emotional distress damages related to her civil conspiracy claim
from those related to other claims.
As to the first issue, the court finds that Plaintiff is barred by the prohibition against civil
conspiracy actions for termination by an at-will employer. See Ross v. Life Ins. Co. of Virginia,
259 S.E.2d 814 (S.C. 1979) (“South Carolina has embraced the general rule that [at-will]
employment may be terminated at any time for any reason or for no reason at all. Therefore,
appellant’s allegations of conspiracy fail to state a cause of action.”); Angus v. Burroughs &
Chapin Co., 628 S.E.2d 261, 262 (S.C. 2006) (“[A]n at-will employee may not maintain a civil
conspiracy action against her employer.”); Faile v Lancaster Cty., No. 11-2206, 2013 WL 786447
(D.S.C. Mar. 1, 2013) (“[A] civil conspiracy claim by an at-will employee against an employer
arising out of the employee’s termination is barred. . . .”). While Plaintiff pled her civil conspiracy
claim in terms of ruination of her professional reputation via being ostracized and blacklisted in
the community, she was in fact terminated from her position at the direction of Maudlin, who is
the only defendant named in her civil conspiracy claim. She also incorporates the facts regarding
her termination into the civil conspiracy claim. Therefore, her civil conspiracy claim is grounded
in the actions that led to her termination and cannot survive under Ross and Angus. See Killian v.
City of Abbeville, No. 8:14-1078, 2015 WL 1011339, at *3-4 (D.S.C. Mar. 6, 2015); Faile, 2013
WL 786447, at *4-5.
Because Plaintiff’s civil conspiracy claim is barred, the court need not address whether
Mauldin acted in furtherance of the conspiracy or whether Plaintiff sufficiently pled special
damages. This claim is dismissed.
After reviewing the record of this matter, the applicable law, the Report and
Recommendation of the Magistrate Judge, and Defendants’ objections, the court declines to adopt
the Report and Recommendation of the Magistrate Judge.
Defendants’ partial motion to dismiss is granted: Plaintiff’s Whistleblower Act and civil
conspiracy claims are dismissed without prejudice. Because Plaintiff’s defamation claim against
Mauldin is to be dismissed by agreement of the parties, Mauldin can be dismissed as a defendant
when that stipulation of dismissal is filed. The matter shall proceed as to the ADEA claims and
defamation claim against CMCOG and is re-referred to the Magistrate Judge for further pretrial
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
January 9, 2017
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