Young v. Columbia Farms Inc

Filing 33

ORDER RULING ON REPORT AND RECOMMENDATION adopts 25 Report and Recommendation. 6 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Defendant's Motion is GRANTED as to Plaintiff's Title VII claims and DENIED as to the remainder of Plaintiff's claims. Signed by Honorable Donald C Coggins, Jr on 9/5/2018. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Kenneth N. Young,

)
)
Plaintiff,
)
)
v.
)
)
Columbia Farms, Inc., a division of
)
House of Raeford Farms, Inc.,
)
)
)
Defendant. )
________________________________ )

C/A No. 6:17-cv-01340-DCC

OPINION AND ORDER

This matter comes before the Court on Defendant’s Motion to Dismiss or in the
Alternative for Summary Judgment.

ECF No. 6.

Plaintiff filed a Response in

Opposition, and Defendant filed a Reply. ECF Nos. 13, 14. In accordance with 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred to
United States Magistrate Judge Jacquelyn D. Austin for pre-trial proceedings and a
Report and Recommendation (“Report”). On December 13, 2017, the Magistrate Judge
issued a Report recommending that the Motion to Dismiss be granted in part and
denied in part. ECF No. 25. Defendant filed objections to the Report. ECF No. 27.
LEGAL STANDARD
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of any portion of the Report
of the Magistrate Judge to which a specific objection is made. The Court may accept,
1

reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge
or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. §
636(b). The Court will review the Report 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 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.” (citation omitted)).
BACKGROUND
Plaintiff filed this case in the Court of Common Pleas for the County of
Greenville, South Carolina, alleging four causes of action: (1) race discrimination under
42 U.S.C. § 1981 (“Section 1981”) and Title VII of the Civil Rights Act of 1964 (“Title
VII”); (2) retaliation under Section 1981 and Title VII; (3) violation of the Age
Discrimination in Employment Act (“ADEA”); and (4) Employment Retirement Income
Security Act of 1974 (“ERISA”) discrimination.1

ECF No. 1-1. Plaintiff’s Complaint

alleges that he was employed by Defendant at a slaughter house and chicken
processing plant in Greenville County, South Carolina. Id. at 2–3. Plaintiff, an AfricanAmerican, was employed from February 13, 2013 to October 6, 2016. Id. at 3. Plaintiff
alleges that his supervisors regularly greeted him in the mornings with phrases that
included, “How ya doing, my Niggas?” Id. Plaintiff filed a complaint with the plant
manager, and, while the supervisor stopped using the phrase, tension remained. Id.
On or about September 30, 2016, Plaintiff was threatened by another employee
1

The Magistrate Judge further broke these claims down into more discrete parts in the
Report. ECF No. 25 at 3.
2

wielding a knife, and Plaintiff defended himself to avoid being stabbed. Id. Defendant
suspended Plaintiff for three days and then immediately terminated his employment
upon his return. Id. He was 61 years old at the time of his termination. Id.
Defendant filed a Notice of Removal.

ECF No. 1.

The Magistrate Judge

provides a thorough recitation of the facts of this case and the relevant legal standards
in her Report which the Court incorporates by reference.

The Magistrate Judge

recommends granting Defendant’s Motion as to Plaintiff’s Title VII claims2 and denying
Defendant’s Motion as to the remainder of Plaintiff’s claims. Defendant filed objections,
seeking dismissal or summary judgment as to each of Plaintiff’s claims.
DISCUSSION
Defendant raises four objections. First, Defendant contends Plaintiff’s allegations
are insufficient to plausibly state a Section 1981 claim. Second, Defendant contends
Plaintiff’s allegations are insufficient to plausibly state an ADEA claim. Third, Defendant
argues Plaintiff’s ERISA claim should be dismissed.

Finally, Defendant argues its

alternative Motion for Summary Judgment should be granted. The Court addresses
these in turn.
I.

Section 1981 Claims
The Magistrate Judge construed Plaintiff’s Complaint “as raising three separate

discrimination claims3 and two separate retaliation claims4 under [Section] 1981.” ECF
No. 25 at 9.

In light of that, the Report points out that Defendant’s Motion only

addresses Plaintiff’s hostile work environment claim.
2

Id.

Although Defendant

Plaintiff consented to dismissal of his Title VII claims. ECF No. 13 at 4.
Discrimination based on: (1) a hostile work environment; (2) Plaintiff’s suspension; and
(3) Plaintiff’s termination.
4
Retaliation based on: (1) Plaintiff’s suspension and (2) Plaintiff’s termination.
3

3

addressed the remainder of Plaintiff’s Section 1981 claims in its Reply, the Magistrate
Judge declined to consider those arguments “because Defendant cannot first raise
these arguments in a reply brief.” Id. at n.3 (citing Cavallo v. Star Enter., 100 F.3d
1150, 1152 (4th Cir. 1996)). Defendant first contends that its Motion addressed all of
Plaintiff’s Section 1981 claims.

The Court has reviewed Defendant’s Motion and

accompanying memorandum in support and agrees with the Magistrate Judge that the
Motion only seeks dismissal of Plaintiff’s hostile work environment claim. See ECF No.
6.
Turning to the hostile work environment claim, the Magistrate Judge
recommends finding that Plaintiff properly and plausibly alleged the required elements
of a hostile work environment claim: (1) harassment because of his race; (2) unwelcome
harassment; (3) harassment that was sufficiently severe or pervasive to create an
abusive working environment; and (4) some basis for imputing liability to the employer.
ECF No. 25 at 10 (citing Gilliam v. S.C. Dep’t of Juvenile Justice, 474 F.3d 134, 142
(4th Cir. 2007)).

Specifically, the Report recited Plaintiff’s allegation that he “was

repeatedly referred to as a ‘Nigga’ by his supervisor until he filed a complaint with upper
management. The relationship with his supervisor deteriorated from that time forward.”
Id.
Defendant contends that the Report misstates Plaintiff’s allegations. Defendant
points to a different paragraph of Plaintiff’s Complaint, which states “Plaintiff’s
supervisors, Mr. Wilson and Mr. Santos, would regularly greet Plaintiff in the mornings
with phrases that included, ‘How ya doing, my Niggas?’” ECF No. 1-1. Defendant
characterizes this as “a poor choice of words (plural) spoken generally by way of

4

greeting.” ECF No. 27 at 4. Therefore, Defendant contends that Plaintiff’s allegations
do not plausibly allege harassment that was sufficiently severe or pervasive to create an
abusive work environment. This objection is overruled.
First, the Report quotes directly from Paragraph 14 of Plaintiff’s Complaint, in
which Plaintiff alleges that he was repeatedly called a “Nigga” by his supervisors. Id.
An allegation of the repeated use of such racially offensive language certainly is
sufficient under the relevant motion to dismiss standard. See Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 185 (4th Cir. 2001) (“Far more than a mere offensive utterance,
the word nigger is pure anathema to African-Americans. ‘Perhaps no single act can
more quickly alter the conditions of employment and create an abusive working
environment than the use of an unambiguously racial epithet such as nigger by a
supervisor in the presence of his subordinates.’” (quoting Rodgers v. Western-Southern
Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)) (internal quotation marks omitted)).
Nonetheless, courts have also held that the single use of this word in a workplace
environment can constitute a hostile work environment. For example, in Ayissi-Etoh v.
Fannie Mae, the United States Court of Appeals for the District of Columbia Circuit
reversed a grant of summary judgment for the defendant on a hostile work environment
claim when a supervisor yelled, “Get out of my office nigger” after making a more
generally derogatory statement about the plaintiff’s potential as a “young black man.”
712 F.3d 572, 577 (D.C. Cir. 2013). Judge Kavanaugh, concurring, noted:
It may be difficult to fully catalogue the various verbal insults and epithets
that by themselves could create a hostile work environment. And there
may be close cases at the margins. But, in my view, being called the nword by a supervisor—as [Plaintiff] alleges happened to him—suffices by
itself to establish a racially hostile work environment. That epithet has
been labeled, variously, a term that sums up . . . all the bitter years of
5

insult and struggle in America, pure anathema to African-Americans, and
probably the most offensive word in English. . . . No other word in the
English language so powerfully or instantly calls to mind our country’s long
and brutal struggle to overcome racism and discrimination against AfricanAmericans.
Id. at 580 (Kavanaugh, J., concurring) (internal quotations and citations omitted).
In sum, Defendant’s characterization of Plaintiff’s supervisor’s use of an
incredibly offensive word as a “poor choice of words” is both legally and factually
indefensible,5 and Plaintiff has pled a plausible claim for hostile work environment.
II.

ADEA Claim
In its Motion, Defendant seeks dismissal of Plaintiff’s ADEA claim, contending

Plaintiff “alleges no facts suggesting age discrimination.”

ECF No. 6 at 2.

In the

supporting memorandum, Defendant merely contends that Plaintiff’s employment was
terminated for a legitimate, nondiscriminatory reason. ECF No. 6-1 at 9. The Report
noted, “[w]hether Plaintiff was terminated for a legitimate, nondiscriminatory reason,
however, is not a matter for the Court to consider on a motion to dismiss.” ECF No. 25
at 13. Now, changing positions, Defendant contends in its objections that Plaintiff’s
allegations are insufficient to plausibly state an ADEA claim, alleging Plaintiff’s
allegations about what he was told about the purpose of his termination were
contradictory and that there are no facts supporting allegations of disparate treatment.
We find no such contradiction in Plaintiff’s Complaint and hold Plaintiff’s
allegations are sufficient to plausibly state an ADEA claim. Plaintiff is a member of a
protected class and alleges that he was terminated because of his age. See ECF No.

5

Defendant also stated, “the misconduct alleged here—the use of racially insensitive
words in a greeting—is simply too trivial to ‘make a federal case’ over . . . .” ECF No. 61 at 6. Numerous Circuit Courts disagree, as does this Court.
6

1-1 at 3 (noting that Plaintiff was 61 when he was terminated), 7 (stating that
Defendant’s explanation for Plaintiff’s termination was because of his age and alleging
“Plaintiff was treated in a disparate manner in relation to younger employees”). The
Court holds that the factual allegations in Plaintiff’s Complaint plausibly give rise to an
ADEA claim. See Gonzelez v. Carestream Health, Inc., 520 F. App’x 8, 10 (2d Cir.
2013) (“Gonzalez’s complaint alleged that he is a 60-year old man with stellar
performance evaluations, who was terminated for pretextual reasons. When combined
with his allegation that Carestream maintained substantially younger workers, we find
that no further amplification was necessary to state a plausible claim of age
discrimination.”).
III.

ERISA Claim
As to Plaintiff’s ERISA discrimination claim, the Report recommends denying

Defendant’s Motion.

Defendant objects, contending that Plaintiff failed to allege

Defendant’s specific intent to interfere with Plaintiff’s pension rights. Yet, Defendant
acknowledges as true the Report’s finding that “Plaintiff’s Complaint alleges that Plaintiff
was 61 when he was terminated and that Defendant terminated him because of ‘his
impending eligibility for his pension.’” ECF No. 25 (quoting ECF No. 1-1 at 9); ECF No.
27 at 8. Defendant emphasizes the use of the word “because,” arguing “[t]he ‘because’
betrays a conclusion: the real only facts are age and timing.”

ECF No. 27 at 8.

Defendant’s objection is unclear, as the word “because” clearly and plausibly alleges
that Defendant took its adverse action against Plaintiff with the specific intent of
depriving him of his pension. Therefore, Defendant’s objection is overruled.

7

IV.

Summary Judgment
The Magistrate Judge declined to convert Defendant’s Motion to Dismiss to one

for summary judgment. ECF No. 25 n.2. The Report concluded that a motion for
summary judgment is premature because this case is in its infancy and discovery has
not yet been completed.

Defendant objects, contending that Federal Rule of Civil

Procedure 12(b)(6) requires the Court to evaluate a motion to dismiss that is
accompanied by evidence outside of the complaint as a motion for summary judgment.
ECF No. 8.

The Court overrules Defendant’s objection.

As the Magistrate Judge

properly noted, this case is, indeed, in its infancy. A scheduling order has not been
entered and discovery is not yet complete. Therefore, as Plaintiff points out in his
response, summary judgment is not proper at this time. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 n.5 (1986) (“[S]ummary judgment [must] be refused where the
nonmoving party has not had the opportunity to discover information that is essential to
his opposition.”).
CONCLUSION
For the foregoing reasons, the Defendant’s Motion to Dismiss, ECF No. 6, is
GRANTED IN PART and DENIED IN PART as set out in this Order. Specifically,
Defendant’s Motion is GRANTED as to Plaintiff’s Title VII claims and DENIED as to the
remainder of Plaintiff’s claims.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
September 5, 2018
Spartanburg, South Carolina
8