Morgan v. Suite 12 Inc

Filing 30

ORDER adopting 23 Report and Recommendation. This matter is REMANDED to the South Carolina Court of Common Pleas in Greenville County. Signed by Honorable Mary Geiger Lewis on 5/26/2016.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
LYNN J. MORGAN,
Plaintiff,
vs.
SUITE 12, INC. n/k/a THE INSTORE
GROUP, LLC,
Defendant.

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CIVIL ACTION NO. 6:15-04652-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND REMANDING THIS MATTER TO THE SOUTH CAROLINA
COURT OF COMMON PLEAS IN GREENVILLE COUNTY
This case was filed as an employment discrimination action. The matter is before the Court
for review of the Report and Recommendation (Report) of the United States Magistrate Judge
suggesting that it be remanded to the South Carolina Court of Common Pleas in Greenville County.
The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District
of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (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 with instructions. 28 U.S.C. § 636(b)(1). The Court need not conduct a de

novo review, however, “when a party makes general and conclusory objections that do not direct
the [C]ourt to a specific error in the [Magistrate Judge’s] proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b). Thus, the Court will
address each specific objection to the Report in turn. As provided above, however, the Court need
not—and will not—address any of Defendant’s arguments that fail to point the Court to alleged
specific errors that the Magistrate Judge made in the Report.
The Magistrate Judge filed the Report on April 13, 2016, Defendant* filed its objections to
the Report on May 2, 2016, and Plaintiff filed her reply on May 18, 2016. The Court has reviewed
the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.
Defendant raises several objections to the Magistrate Judge’s Report. However, Defendant
has largely left the Court with the chore of teasing the objections out of Defendant’s submissions.
Having completed that task, the Court will now address the objections it has uncovered.
Defendant initially objects to the Magistrate Judge’s suggestion that the Court has no subject
matter jurisdiction over Plaintiff’s wrongful discharge and sexual harassment causes of action. ECF
No. 24 at 2; ECF No. 25 at 1-2. Defendant contends that Plaintiff has apparently conceded that her
wrongful discharge and sexual harassment claims were brought under federal law, namely the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(b)(5), and Title VII of the Civil Rights
Act of 1964 (Title VII), 42 U.S.C. § 2000e, respectively. ECF No. 24 at 2; ECF No. 25 at 1-2.
Defendant further propounds that Plaintiff’s wrongful discharge and sexual harassment claims exist

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Plaintiff filed this action naming one defendant. However, The InStore Group, LLC and Suite 12, Inc.
have made clear that they are separate and distinct entities. See ECF Nos. 8, 9, 23. As the Magistrate Judge treated
the entities as a single defendant, and both entities make the same arguments in their submissions, the Court will
treat them as a single defendant as well.

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only under federal law, and therefore this Court has original jurisdiction over those claims. ECF No.
25 at 2-3.
However, the Magistrate Judge properly recommended that this matter be remanded to state
court. As noted in the Report, Plaintiff’s “Complaint does not cite any federal statute, nor mention
any federal common law cause of action.” ECF No. 23 at 4. As observed already, Defendant
asseverates, however, that Plaintiff’s wrongful discharge and sexual harassment claims can exist
only under federal law, and therefore Plaintiff does not have a claim under state law with respect to
these two causes of action. ECF No. 25 at 2-3 (citing Lawson v. S.C. Dep’t of Corrections, 532
S.E.2d 259, 261 (S.C. 2000) (ruling that a plaintiff cannot bring a South Carolina common law claim
for “wrongful discharge” where the alleged discharge is in violation of a substantive right created
by statute); White v. Benedict Coll., 344 S.E.2d 147, 148 (S.C. 1986) (holding that South Carolina
does not recognize a common law cause of action for sexual harassment)).
Nevertheless, Defendant’s contentions are fundamentally misguided. The cases Defendant
cites are inapposite. Although South Carolina does not recognize common law causes of action for
sexual harassment or for wrongful discharge where the alleged discharge is in violation of a
substantive statutory right, as Defendant well knows, South Carolina provides a statutory remedy
for both Plaintiff’s sexual harassment and wrongful discharge claims in the South Carolina Human
Affairs Law (SCHAL), S.C. Code Ann. § 1-13-20. The SCHAL states that “the practice of
discrimination against an individual because of race, religion, color, sex, age, national origin, or
disability . . . is unlawful and in conflict with the ideals of South Carolina and the nation.” Id.
Moreover, the statute provides that “[i]t is an unlawful employment practice for an employer . . . to
fail or refuse to hire, bar, discharge from employment or otherwise discriminate against an

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individual with respect to the individual’s compensation or terms, conditions, or privileges of
employment because of the individual’s race, religion, color, sex, age, national origin, or disability.”
Id. § 1-13-80(A)(1). Importantly, the SCHAL not only outlaws sexual discrimination, which
includes sexual harassment, in the workplace but also specifically prohibits employers from
retaliating against employees who complain of or oppose sex discrimination. Id. § 1-13-80(F).
In Plaintiff’s Complaint, she alleges that Defendant wrongfully discharged her while she was
suffering from a serious medical condition, namely a stroke. ECF No. 1-1 ¶¶ 8-12. Her allegations
under this wrongful discharge cause of action seek a remedy for Defendant’s purported
discrimination against her based on her disability, and Defendant interprets the Complaint to allege
disability discrimination as well. ECF No. 24 at 2; ECF No. 25 at 1-2 (contending that the conduct
alleged in the Complaint violates the ADA). Plaintiff thus raises a cognizable claim under the
SCHAL by alleging that Defendant discriminated against her based on her disability. See S.C. Code
Ann. § 1-13-80.
Likewise, Plaintiff explicitly asserts a claim of sexual harassment against Defendant. ECF
No. 1-1 ¶¶ 33-35. As noted above, the SCHAL outlaws sexual discrimination, which encompasses
sexual harassment. Plaintiff’s sexual harassment claim is therefore cognizable under the SCHAL
as well. See S.C. Code Ann. § 1-13-80.
For this Court to have federal question jurisdiction over this case, a right or immunity created
by the Constitution or laws of the United States must be an essential element of Plaintiff’s claims.
See Gully v. First Nat’l Bank, 299 U.S. 109, 112-13 (1936). The “well-pleaded complaint rule”
requires for the exercise of federal jurisdiction based upon 28 U.S.C. § 1331 when a federal question
is presented on the face of the plaintiff’s well-pleaded complaint. Harless v. CSX Hotels, Inc., 389

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F.3d 444, 450 (4th Cir. 2004) (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004)).
Further, the plaintiff is the master of the complaint and may avoid federal jurisdiction by exclusively
relying upon state law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
Here, as explained in the Report, Plaintiff’s “Complaint does not cite any federal statute, nor
mention any federal common law cause of action.” ECF No. 23 at 4. Plaintiff raises eight causes
of action in her Complaint, each of which is cognizable under state law. ECF No. 1-1. Moreover,
Plaintiff insists that her Complaint raises “[n]o federal question nor any federal statute,” thus
expressing her intent to pursue her remedies under South Carolina law. ECF No. 28 at 1.
Because Plaintiff’s wrongful discharge and sexual harassment causes of action are
cognizable under the SCHAL, S.C. Code Ann. § 1-13-80, the Court holds that the face of Plaintiff’s
Complaint does not present a federal question, and the Court consequently does not have subject
matter jurisdiction over the case. As observed above, Plaintiff is the master of her Complaint, and
she may avoid federal jurisdiction by exclusively relying upon state law, which she has chosen to
do here. See Caterpillar, Inc., 482 U.S. at 392. Thus, the Court will overrule Defendant’s
objections.
The Court would be remiss if it neglected to draw attention to counsel for Defendant’s
inexplicable failure to address Plaintiff’s wrongful discharge and sexual harassment claims in light
of the SCHAL. Simply put, counsel’s lack of candor toward this Court is troubling. See Rule 407,
SCACR, Rules of Prof’l Conduct, Rule 3.3 (providing that “[a] lawyer shall not knowingly . . . fail
to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing counsel”).

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After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court overrules Defendant’s objections, adopts the Report, and incorporates it
herein. Therefore, it is the judgment of this Court that this matter is REMANDED to the South
Carolina Court of Common Pleas in Greenville County.
IT IS SO ORDERED.
Signed this 26th day of May, 2016, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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