Smith v. Sam Carbis Solutions Group, LLC
ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Plaintiff's objections and adopts and incorporates the R & R (ECF No. 18 ) by reference.The Court GRANTS Defendant's partial motion to dismiss (ECF No. 5 ) and DISMISSES Plaintiff's third cause of action (intentional infliction of emotional distress) and fifth cause of action (wrongful discharge in violation of public policy) with prejudice. The Court recommits this case to the Magistrate Judge for further pretrial handling.IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 03/06/2017. (dsto, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Sam Carbis Solutions Group, LLC, )
Civil Action No.: 4:16-cv-02320-RBH-TER
Plaintiff Cynthia Smith filed this action against her former employer, Defendant Sam Carbis
Solutions Group, LLC, alleging she was terminated in violation of the Family Medical Leave Act1
(“FMLA”). See Complaint [ECF No. 1]. Defendant filed a partial motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) seeking dismissal of Plaintiff’s state law claims for intentional
infliction of emotional distress (“IIED”) and wrongful discharge in violation of public policy. See ECF
The matter is now before the Court for review of the Report and Recommendation (“R & R”)
of United States Magistrate Judge Thomas E. Rogers, III, made in accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(g) for the District of South Carolina. See R & R [ECF
No. 18]. The Magistrate Judge recommends that the Court grant Defendant’s partial motion to dismiss.
R & R at 1, 8. Plaintiff has filed timely objections to the R & R. See Pl.’s Objs. [ECF No. 22].
Defendant has filed a reply to Plaintiff’s objections. See ECF No. 24.
Review of the R & R
29 U.S.C. §§ 2601 through 2654.
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
When deciding a motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6), the
district court must accept all well-pleaded facts alleged in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
253 (4th Cir. 2009). A complaint must state a “‘plausible claim for relief’” to survive a 12(b)(6) motion
to dismiss. Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)). The court will not dismiss the plaintiff’s complaint so long as she provides adequate
detail about her claims to show she has a “more-than-conceivable chance of success on the merits.”
Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 550
U.S. at 563. A complaint will survive a motion to dismiss if it contains “enough facts to state a claim
to relief that is plausible on its face.” Id. at 570.
Plaintiff alleges she was subjected to a hostile work environment during her employment with
Defendant from September 2008 to June 2015. Compl. at ¶¶ 3-5. She alleges she went on medical
leave after suffering an emotional breakdown on May 19, 2015, initiated a workers’ compensation claim
on June 11, 2015, and was terminated on June 30, 2015. Id. at ¶¶ 4, 6, 10. She asserts five causes of
action: (1) FMLA interference, (2) FMLA retaliation, (3) IIED, (4) retaliatory discharge for filing a
workers’ compensation claim, and (5) wrongful discharge in violation of public policy. Id. at ¶¶ 12-41.
Defendant moves to dismiss Plaintiff’s state law claims for IIED and wrongful discharge. See
ECF No. 5. The Magistrate Judge recommends granting Defendant’s motion. R & R at 3-12. Plaintiff
objects to the Magistrate Judge’s recommendation. See Pl.’ Objs. at 3-6.
The Magistrate Judge recommends dismissing Plaintiff’s IIED claim because she fails to state
a plausible claim.3 R & R at 6-7.
The R & R contains a thorough summary of Plaintiff’s factual allegations and arguments opposing
Defendant’s motion to dismiss. See R & R at 1-3, 5-7, 9-10. The Court adopts and incorporates that summary by
reference and repeats Plaintiff’s allegations and arguments only to the extent necessary to address her objections.
As a threshold matter, the Magistrate Judge found Plaintiff alleged sufficient facts giving rise to an exception
to the exclusivity provision of the South Carolina W orkers’ Compensation Act, namely the alter ego exception. R
& R at 3-6 (finding it plausible that Shawn Mizell— Defendant’s chief operating officer— was an alter ego).
Defendant does not challenge this finding.
To state a claim for IIED, also known as the tort of outrage, the plaintiff must allege:
the defendant intentionally or recklessly inflicted severe
emotional distress, or was certain, or substantially certain, that
such distress would result from his conduct;
the conduct was so extreme and outrageous so as to exceed
all possible bounds of decency and must be regarded as
atrocious, and utterly intolerable in a civilized
the actions of the defendant caused [the] plaintiff’s emotional
the emotional distress suffered by the plaintiff was severe
such that no reasonable man could be expected to endure it.
Argoe v. Three Rivers Behavioral Health, L.L.C., 392 S.C. 462, 475, 710 S.E.2d 67, 74 (2011) (internal
quotation marks omitted) (emphasis added). The Magistrate Judge recommends finding Plaintiff has
not adequately pleaded the second element—extreme and outrageous conduct. R & R at 6.
In her objections, Plaintiff relies on the Fourth Circuit’s 2005 opinion in Hatfill v. New York
Times Co., 416 F.3d 320 (4th Cir. 2005), to support her argument that she has adequately pleaded
extreme and outrageous conduct. Pl.’s Objs. at 3-4. The Court finds Plaintiff’s reliance on Hatfill is
flawed for two reasons. First, Hatfill involved an IIED claim brought under Virginia—not South
Carolina—law. See 416 F.3d at 336. Second, and more significantly, Hatfill predates the current
Twombly/Iqbal pleading standard.4 See Fuller v. Aliff, 990 F. Supp. 2d 576, 581 (E.D. Va. 2013) (“[I]t
is true that federal pleading standards apply in a diversity case—but Hatfill was decided prior to Iqbal
In fact, Hatfill explicitly relies on the “no-set-of-facts” pleading standard set forth in Conley v. Gibson, 355
U.S. 41 (1957). See Hatfill, 416 F.3d at 329, 337. Plaintiff also cites the Conley pleading standard in her objections.
See Pl.’s Objs. at 3. The Supreme Court in “Twombly retired the Conley no-set-of-facts test” and specified “a
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 670 (quoting Twombly, 550 U.S. at 570). See also McCleary-Evans v. Md. DOT, 780 F.3d
582, 587 (4th Cir. 2015) (recognizing “the Twombly Court explicitly overruled the earlier standard articulated in
Conley v. Gibson”).
Regardless, the Court agrees with the Magistrate Judge that Plaintiff’s complaint fails to state
a plausible IIED claim. See generally McCleary-Evans, 780 F.3d at 585 (applying the Twombly/Iqbal
pleading standard and emphasizing a complaint must “contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face” (alteration and internal quotation marks omitted)).
Plaintiff alleges Shawn Mizell (Defendant’s chief operating officer) and Leslie Antici (Defendant’s
human resources representative) verbally abused, harassed, and intimidated her. Compl. at ¶ 5(b).
Plaintiff does not elaborate on the nature of the alleged verbal abuse, harassment, or intimidation.
These allegations, on their face, do not state a plausible claim that Mizell’s and Antici’s “conduct was
so extreme and outrageous so as to exceed all possible bounds of decency” such that it “must be
regarded as atrocious, and utterly intolerable in a civilized community.” Argoe, 392 S.C. at 475, 710
S.E.2d at 74; see, e.g., Callum v. CVS Health Corp., 137 F. Supp. 3d 817, 856-57 (D.S.C. 2015)
(finding the plaintiff failed to state a plausible IIED claim because the plaintiff’s allegations did “not
rise to the level of extreme and outrageous conduct necessary to state a claim for IIED”). Thus,
Plaintiff’s allegations do not satisfy the Twombly/Iqbal pleading standard requiring a complaint to
“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). Accordingly, the Court must
dismiss Plaintiff’s IIED claim.
Plaintiff asserts she “should be allowed to amend the complaint to cure any defects in lack of
specificity or to further explain Plaintiff’s basis for her IIED claim.” Pl.’s Objs. at 4. However, as
Defendant notes in its reply, the deadline for filing motions to amend pleadings was November 14,
2016, see Consent Am. Sch. Order [ECF No. 16] at ¶ 2, and Plaintiff has not attempted to show good
cause for modifying that deadline. Besides the cursory request in her objections (which were filed
December 2, 2016), Plaintiff has not filed a motion to amend, has not submitted an amended complaint,
and has not otherwise explained how she would amend her IIED claim to adequately plead extreme and
outrageous conduct. “[A]fter the deadlines provided by a scheduling order have passed, the good cause
standard [of Federal Rule of Civil Procedure 16(b)(4)] must be satisfied to justify leave to amend the
pleadings.” Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008); see Pure Fishing, Inc.
v. Normark Corp., No. 3:10-cv-02140-CMC, 2012 WL 3062683, at *1 (D.S.C. July 26, 2012) ([W]hen
the deadline for amendment has passed, the moving party must first demonstrate good cause under Rule
16(b) before the [C]ourt will consider whether an amendment is proper under Rule 15(a).”). “Rule
16(b)’s good cause standard emphasizes the diligence of the party seeking amendment.” RFT Mgmt.
Co., LLC v. Powell, 607 F. App’x 238, 242 (4th Cir. 2015). Here, Plaintiff has not demonstrated the
diligence required by Rule 16(b),5 and therefore has not shown good cause justifying modification of
the deadline for filing a motion to amend. The Court denies Plaintiff’s request for leave to amend the
Wrongful Discharge in Violation of Public Policy
The Magistrate Judge recommends dismissing Plaintiff’s wrongful discharge claim for two
reasons: (1) Plaintiff has a remedy for retaliatory discharge under the FMLA and has in fact pleaded
such a claim;6 and (2) Plaintiff has not alleged a clear mandate of public policy violated by her
termination. R & R at 8-12.
Plaintiff has only addressed Rule 15(a), see Pl.’s Objs. at 4, and has not addressed the threshold good cause
standard of Rule 16(b).
As previously mentioned, Plaintiff pleads an FMLA retaliation claim as her second cause of action. See
Compl. at ¶¶ 24-27.
Plaintiff objects to the Magistrate Judge’s finding that she has not alleged a clear mandate of
public policy violated by her termination. Pl.’s Objs. at 4-6. However, Plaintiff does not object to the
Magistrate Judge’s separate finding that she has a remedy for retaliatory discharge under the FMLA.
See R & R at 8-9. Plaintiff’s failure to specifically object to this proposed finding is sufficient grounds
for adopting the Magistrate Judge’s recommendation to dismiss the wrongful discharge claim. See
Diamond, 416 F.3d at 315-16 (stating a district court need only review the R & R for clear error in the
absence of specific written objections); Camby, 718 F.2d at 199-200 (stating that “[i]n the absence of
objection,” a district court need not give any explanation for adopting the magistrate judge’s
recommendation). Having found no clear error in the Magistrate Judge’s proposed finding that Plaintiff
has a remedy for retaliatory discharge under the FMLA (and that Plaintiff has in fact pleaded such a
claim), see R & R at 8-9, the Court will adopt this finding and dismiss Plaintiff’s state law claim for
The Court has thoroughly reviewed the entire record, including Plaintiff’s complaint, the R &
R, and Plaintiff’s objections. The Court has conducted a de novo review of those portions of the R &
Although the Court need not reach the Magistrate Judge’s additional finding that Plaintiff has not identified
a clear mandate of public policy violated by her termination, see R & R at 9-12, the Court notes it has nonetheless
reviewed this finding de novo in light of Plaintiff’s objection. Having done so, the Court agrees with and adopts the
Magistrate Judge’s finding. See Taghivand v. Rite Aid Corp., 411 S.C. 240, 248, 768 S.E.2d 385, 389 (2015) (stating
the South Carolina Supreme Court has invoked the public policy exception in only two instances and “recognized
no others”; emphasizing the need for judicial “restraint when undertaking the amorphous inquiry of what constitutes
public policy”; and concluding “the public policy of this state finds expression in [the S.C. Supreme Court’s]
longstanding adherence to at-will employment [and] any exception to this doctrine, which is itself firmly rooted in
the public policy of this state, should emanate from the General Assembly, and from [the S.C. Supreme Court] only
when the legislature has not spoken”); Garner v. Morrison Knudsen Corp., 318 S.C. 223, 226, 456 S.E.2d 907, 909
(1995) (stating novel issues involving the public policy exception “should not ordinarily be decided in ruling on a
12(b)(6) motion to dismiss”); Bradley v. U.S. Foods, Inc., No. 4:14-cv-01772-RBH, 2015 W L 5158731, at *29
(D.S.C. Sept. 2, 2015) (citing Taghivand and declining to accept the plaintiff’s argument that the public policy
exception should be expanded to encompass a claim that an employee was discharged for avoiding a hostile work
R to which Plaintiff specifically objects. For the reasons stated in this Order and in the R & R, the
Court overrules Plaintiff’s objections and adopts and incorporates the R & R [ECF No. 18] by reference.
The Court GRANTS Defendant’s partial motion to dismiss [ECF No. 5] and DISMISSES Plaintiff’s
third cause of action (intentional infliction of emotional distress) and fifth cause of action (wrongful
discharge in violation of public policy) with prejudice. The Court recommits this case to the Magistrate
Judge for further pretrial handling.
IT IS SO ORDERED.
Florence, South Carolina
March 6, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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