Reese v. Bank et al
ORDER adopting the 41 Report and Recommendation as modified by the 46 Supplemental Report and Recommendation and granting the Defendants' 29 motion to dismiss as to Reese's claims for defamation, civil conspir acy, intentional infliction of emotional distress, violation of the Equal Pay Act, violation of the Americans with Disabilities Act, and all claims against Dr. Robert Bank, Mr. John Magill, Ms. Maria Marin, Ms. Denise Morgan, Ms. Vicki Brown, and Ms. Eleanor Odom. It is further ordered that the Defendants' 29 motion to dismiss is denied as to Reese's TItle VII claim against the South Carolina Department of Mental Health. Signed by Honorable Joseph F. Anderson, Jr. on 11/21/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Harry Eugene Reese, Sr.,
C/A No. 3:16-3491-JFA-PJG
Dr. Robert Bank; Mr. John Magill; Ms. Maria
Marin; Ms. Denise Morgan; Ms. Vicki Brown;
Ms. Eleanor Odom; South Carolina
Department of Mental Health,
The pro se plaintiff, Harry Eugene Reese, Sr., (“Reese”), filed this action pursuant to Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; and the Equal Pay Act of 1963, 29 U.S.C.
§ 206(d). He also asserts state law claims of defamation, civil conspiracy, and intentional infliction
of emotion distress. The defendants include his former employer, the South Carolina Department
of Mental Health (“DMH”), and individual employees thereof (collectively “Defendants”). In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), the case was
referred to the Magistrate Judge. Thereafter, Defendants filed a motion to dismiss the pro se
complaint filed by Reese. (ECF No. 29).
The Magistrate Judge assigned to this action 1 prepared a thorough Report and
Recommendation (“Report”) and opines that Defendant’s motion to dismiss should be granted in
part and denied in part. (ECF No. 41). 2 The Report sets forth, in detail, the relevant facts and
standards of law on this matter, and this Court incorporates those facts and standards without a
recitation. Defendants filed objections to the Report on September 12, 2017, (ECF No. 44), and
Reese has not filed any objections to the Report nor has replied to the objections by Defendants.
Objections to the Report were due September 12, 2017 and a reply to Defendants objections were
due September 26, 2017. Both deadlines have passed. Thus, this matter is ripe for review.
The court is charged with making a de novo determination of those portions of the Report
to which specific objections are 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. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct
a de novo review of the specific portions of the Magistrate Judge’s Report to which an objection
is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. &
Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(d) (D.S.C.). 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 and
Recommendation 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. See 28 U.S.C. § 636(b)(1).
The Magistrate Judge also filed a supplemental report and recommendation (ECF 46) where the
Magistrate addressed a claim that had been inadvertently overlooked in the Magistrate’s Report.
When referring to the Report this court includes the Supplemental Report and Recommendation
unless otherwise specified.
Report of the Magistrate, this Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Here, Defendants object to the Magistrate Judge’s recommendation that Defendants’
Motion to Dismiss be denied as to Reese’s Title VII claim. (ECF No. 44 p. 2) 3. Neither Reese nor
Defendants objected to the Magistrate Judge’s recommendation that Reese’s claims for
defamation, civil conspiracy, intentional infliction of emotional distress, violation of the Equal Pay
Act, violation of the ADA, and all claims against the Individual Defendants should be dismissed.
After a thorough review of those claims, this Court agrees with the Magistrate Judge and adopts
the Magistrate’s recommendation as to the above stated claims. Because there were no objections
to those claims this Court is not required to give an explanation for adopting the Magistrate Judge’s
recommendation. See Camby, 718 F2d. at 199.
A. Title VII Claim
Defendants specifically object to the Magistrate’s finding that “because Reese appears to
assert that he is entitled to equitable tolling based on apparent misinformation he received from
the Clerk of Court’s office, the court should not resolve the issue of timeliness on a motion to
dismiss.” (ECF No. 41 p. 4). First, Defendants argue that Reese’s Complaint does not state facts
that support the application of equitable tolling. Second, Defendants argue that Reese’s alleged
reliance on an unidentified Clerk’s Office employee is not an extraordinary circumstance and does
not support a finding of equitable tolling.
Defendants also object to the initial Report to the extent that it also denied the motion to
dismiss as to the ADA Claim. However, in the Magistrate’s Supplemental Report and
Recommendation the Magistrate agrees with the Defendants and recommends dismissal of the
ADA claim. (ECF No. 46 p. 1). Therefore, this Court will not address Defendants’ objection to
the ADA claim because its objection is no longer relevant.
After a complainant files a charge with the Equal Employment Opportunity Commission
(“EEOC”), Title VIII requires the EEOC to “notify the person aggrieved and within ninety days
after the giving of such notice a civil action may be brought against the respondent.” 42 U.S.C. §
2000e-5(f)(1). “The 90-day filing requirement is ‘not a jurisdictional prerequisite to suit in federal
court, but a requirement that, like a statue of limitations, is subject to waiver, estoppel, and
equitable tolling.’” Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed. Appx. 314, 321 (4th
Cir. 2011) (citing Laber v. Harvey, 438 F.2d 404, 429 n. 25 (4th Cir. 2006)). Here, Reese’s
Complaint alleges that he received the right-to-sue notice on July 26, 2016. (ECF No. 1 p. 12).
Thus, the 90-day period ended on October 24, 2016. Reese filed his Complaint with this Court on
October 26, 2016, two days after the 90-day period had ended.
Defendants argue that Reese has not stated facts in his Complaint which would warrant
equitable tolling. The Fourth Circuit has held:
[A] motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests
the sufficiency of the complaint, generally cannot reach the merits of an affirmative
defense, such as the defense that the plaintiff’s claim is time-barred. But in the
relatively rare circumstances where facts sufficient to rule on an affirmative defense
are alleged in the complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). Here, the Magistrate Judge found
that Reese asserted that he is entitled to equitable tolling based on apparent misinformation he
received from the Clerk of Court’s office. The Magistrate subsequently held that Reese’s
Complaint is insufficient on its face to resolve the Defendants affirmative defense that the
plaintiff’s claim should be time-barred. However, the Magistrate did not deny Defendants’ claim
of untimeliness with prejudice, just recommended denial as to this motion to dismiss. This Court
agrees with the Magistrate’s recommendation. The facts alleged in the complaint are not sufficient
to rule on the timeliness defense.
The Defendants also argue that reliance on the Clerk’s Office employee does not warrant
equitable tolling and therefore the claim is time-barred and should be dismissed. Defendants argue
that the Magistrate’s reliance on Parmaei v. Jackson, 378 F. App’x 331, 332 (4th Cir. 2010) for
the proposition that a district court’s clerk error may warrant equitable tolling is misplaced.
Defendants argue the facts are distinguishable because in Parmaei the defendant “had made every
effort to timely file his petition but was impeded by circumstances outside of his control” and here
Reese did not. (ECF NO. 44 p. 7). However, it is not clear from Reese’s complaint the extent to
which Parmaei may or may not be distinguishable from this case. Timeliness is an affirmative
defense under Fed. R. Civ. P. 8(c) and this Court cannot reach the merits of affirmative defense on
a motion to dismiss where the complaint, on its face, is insufficient to resolve the affirmative
defense. Therefore, the Court agrees with the Magistrate’s recommendation that Defendants’
motion to dismiss be denied as to Reese’s Title VII claim against DMH without prejudice to raise
the issue of timeliness on a more fully developed record.
After carefully reviewing the applicable laws, the record in this case, as well as the Report,
this court finds the Magistrate Judge’s recommendation fairly and accurately summarizes the facts
and applies the correct principles of law. Accordingly, the Court ADOPTS the Report and
Recommendation (ECF No. 41) 4 and DENIES Defendants’ motion to dismiss as to Reese’s Title
VII claim against the South Carolina Department of Mental Health and GRANTS Defendants’
The Court adopts the Report as modified by the Supplemental Report and Recommendation.
motion as to Reese’s claims for defamation, civil conspiracy, intentional infliction of emotional
distress, violation of the Equal Pay Act, violation of the Americans Disability Act, and all claims
against Dr. Robert Bank, Mr. John Magill, Ms. Maria Marin, Ms. Denise Morgan, Ms. Vicki
Brown, and Ms. Eleanor Odom. Therefore, the clerk shall return this file to the Magistrate Judge.
IT IS SO ORDERED.
November 21, 2017
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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