Terrill v. Limestone College et al

Filing 29

ORDER RULING ON REPORT AND RECOMMENDATION 19 . Defendants partial motion to dismiss (ECF No. 5) is GRANTED, and only Plaintiffs FMLA cause of action shall remain pending before this court. Signed by Honorable Timothy M Cain on 10/31/2017. (kric, ) Modified on 10/31/2017 (kric, ).

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Wesley O. Terrill,
Plaintiff,
v.
Limestone College and
President Walt Griffin,
Defendants.
This

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C/A No. 7:17-00943-TMC
ORDER

is matter is before the court on a partial motion to dismiss filed by Defendants

Limestone College and Limestone’s President, Walt Griffin. (ECF No. 5). Defendants seek to
have Plaintiff’s racial discrimination and retaliation claims dismissed on the basis of res judicata.
Id. Plaintiff filed a response opposing the motion (ECF No. 14), and Defendants filed a reply to
that response (ECF No. 16). Pursuant to the provisions of Title 28, United States Code, Section
636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), this motion was referred to a
magistrate judge for review. The magistrate judge reviewed the record and issued a Report and
Recommendation (the “Report”) recommending that the Defendants’ partial motion to dismiss
be granted and that only the Plaintiff’s claim for violation of the Family Medical Leave Act
(FMLA) should remain pending before this court. (ECF No. 19). Plaintiff filed objections to the
Report (ECF No. 20), and the Defendants filed a Response to those objections (ECF No. 22).
The recommendations set forth in the Report have no presumptive weight, and this court
remains responsible for making a final determination in this matter. See Matthews v. Weber, 423
U.S. 261, 270–71 (1976). The court is charged with making a de novo determination of those
portions of the Report to which a specific objection is made, and the court may accept, reject,
modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter
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with instructions. 28 U.S.C. § 636(b)(1). However, the court need not conduct a de novo review
when a party makes only “general and conclusory objections that do not direct the court to a
specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the
magistrate judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
I. Background/Procedural History
In August 2011, Plaintiff, an African American male, began working as an Assistant
Director for the Extended Campus Classroom (“ECC”) and as an Academic Advisor and Site
Representative for Limestone College. (ECF No. 1 at 2). Additionally, since 2003, Plaintiff has
served as a Course Instructor in Defendants’ program called “Call Me Mister.” Id. On March 30,
2017, Plaintiff was given notice that his employment with Defendants was terminated, effective
April 3, 2017. (ECF No. 1 at 4).
On December 21, 2016, Plaintiff filed his first lawsuit in state court (hereinafter “Terrill
I”) against these same Defendants, alleging breach of his employment contract, breach of
employment contract with fraudulent intent, and retaliation, all of which allegedly arose out of
Plaintiff’s employment with Limestone College. (ECF No. 5-1). Plaintiff alleged the following in
his breach of contract claim: (1) that Defendants breached their contract with Plaintiff by
allowing Area Coordinators to receive higher compensation than Plaintiff despite their lower
ranking in the company; (2) that Defendants breached their contract with Plaintiff by reducing
Plaintiff’s job duties; and (3) that Defendants breached their contract with Plaintiff by advocating
for and allowing other employees to maintain their positions and salaries while Plaintiff’s job
duties and salary decreased. (ECF No. 5-1 at 6–7). Additionally, Plaintiff alleged the same facts
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in his claim for breach of contract with fraudulent intent, but he further alleged that to his
detriment he had relied on Defendants’ promises regarding compensation and on the
employment contract’s provisions. (ECF No. 5-1 at 8).
Finally, Plaintiff alleged the following in regards to his retaliation claim in Terrill I: (1)
that Plaintiff’s supervisors participated in a common design through concerted efforts to retaliate
against Plaintiff for Plaintiff’s unintentional failure to disclose when the ECC vehicle trade had
gone through; (2) that these supervisors eliminated and reduced Plaintiff’s job duties, which
negatively affected his earnings; (3) that one of the supervisors retaliated against Plaintiff when
she failed to consider him for exempt status under the Fair Labor Standards Act while advocating
for exempt status and raises on behalf of others in the company; (4) that one supervisor retaliated
against Plaintiff when Plaintiff’s company vehicle was taken away and given to someone else;
and (5) that these two supervisors knowingly and willfully isolated and harassed Plaintiff in
order to diminish his job opportunities, which made Plaintiff unable to generate supplemental
income. (ECF No. 5-1 at 9).
On March 15, 2017, Plaintiff stipulated to the dismissal of Terrill I with prejudice
pursuant to South Carolina Rule of Civil Procedure 41. (ECF No. 14 at 2). Following his
termination from Limestone College, Plaintiff filed this lawsuit (hereinafter “Terrill II”) against
Defendants on April 12, 2017, alleging race discrimination and retaliation in violation of 42
U.S.C. § 1981, and wrongful termination in violation of the Family and Medical Leave Act
(“FMLA”). (EFC No. 1). On May 8, 2017, Defendants filed a motion to dismiss the racial
discrimination and retaliation claims. (ECF No. 5). The Plaintiff responded on June 27, 2017
(ECF No. 14), and Defendants replied on July 5, 2017 (ECF No. 16). The motion was referred to
a magistrate judge, and he issued a Report recommending the motion to dismiss in part be
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granted. (ECF No. 19). Plaintiff made two timely objections. (ECF No. 20). Defendants timely
replied to these objections. (ECF No. 22). This court overrules these objections for the reasons
below.
II. Applicable Law and Analysis
When considering a 12(b)(6) motion to dismiss, the court must accept as true the facts
alleged in the complaint and view them in a light most favorable to the plaintiff. Ostrzenski v.
Seigel, 177 F.3d 245, 251 (4th Cir. 1999). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations,” a pleading that merely offers “labels and
conclusions,” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Likewise, “a complaint [will not] suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancements.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557).
Additionally, because Plaintiff’s state court action for breach of contract was adjudicated
under South Carolina law, the law of South Carolina controls the determination of whether res
judicata bars the Plaintiff’s present claim. See Kremer v. Chem. Const. Corp., 456 U.S. 461,
466–67(1982) (stating that the law “requires federal courts to give the same preclusive effect to
state court judgments that those judgments would be given in the courts of the State from which
the judgment emerged”); Marrese v. Am. Acad. of Orthopaedic Surgeon, 470 U.S. 373, 380
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(1985) (stating that the law “directs a federal court to refer to the preclusion law of the State in
which the judgment was rendered.”). Under South Carolina law, in order to establish that res
judicata applies, a defendant must show (1) that the prior judgment was final, valid, and on the
merits; (2) that the parties are identical in both cases; and (3) that the second case involves
“matter properly included in the first action.” Wilson v. Charleston Cty. Sch. Dist., 419 S.C. 442,
450, 798 S.E.2d 449, 453 (Ct. App. 2017) (internal citations omitted).

Furthermore, if a

defendant establishes all three elements, not only is the plaintiff barred from raising issues that
were adjudicated in the prior suit, but the plaintiff is also barred from raising “any issues which
might have been raised in the former suit.” Id. at 450, 798 S.E.2d at 453. In determining whether
a claim might have or should have been brought in a prior suit, South Carolina courts look at
four factors: (1) if subject matter is the same in both cases, (2) if the first and second cases
involve the same primary right held by the plaintiff and one primary wrong committed by the
defendant, (3) if there is the same evidence in both cases, or (4) if the claims arise out of the
same transaction or occurrence that is the subject matter of the prior action. Judy v. Judy, 393
S.C. 160, 176, 712 S.E.2d 408, 416 n.7 (2011) (quoting James F. Flanagan, South Carolina Civil
Procedure 649–50 (2d ed. 1996)). However, South Carolina courts have continuously held that
“[r]es judicata bars subsequent actions by the same parties when the claims arise out of the same
transaction or occurrence that was the subject of a prior action between those parties.” Id. at 172,
712 S.E.2d at 414 (citing Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30, 34 (1999)).
Plaintiff concedes that the same parties are involved in both Terrill I and Terrill II. (ECF
No. 20 at 4). However, Plaintiff objects to the magistrate judge’s determinations that Terrill I
was a final adjudication on the merits and that Terrill I and Terrill II arise out of the same
transaction or occurrence. (ECF No. 20 at 20). Essentially, Plaintiff contends that res judicata

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does not apply because elements (1) and (3) are not met. However, this court has determined that
all elements of res judicata are met and that res judicata bars the non FMLA claims in Terrill II.
A. Non-FMLA claims in Terrill II should have been brought in Terrill I
Plaintiff objects to the magistrate judge’s determination that Terrill I and Terrill II arose
from the same transaction or occurrence, and that, therefore, the claims in Terrill II should have
been brought in Terrill I. (ECF No. 20 at 4). Plaintiff alleges that the causes of action in the two
cases depend on “entirely different factual allegations and occurrences” and that Terrill II is
based on facts that had not yet occurred at the time of the Terrill I dismissal. (ECF No. 20 at 7).
Plaintiff lists five “new” facts that he contends occurred after the conclusion of Terrill I: (a) that
“Defendants’ agent, Hudson [a white female] failed to communicate with Plaintiff concerning
pertinent information for Plaintiff to complete his job duties,” (b) that “Plaintiff was excluded
from necessary calls that were essential to his job,” (c) that “Plaintiff[’s] income was reduced
and his supplemental income was taken away from him while Caucasian workers did not have
their income reduced or lose their supplemental income,” (d) that “Plaintiff was mandated to
tak[e] his lunch break at a designated time while his Caucasian co-workers were not required to
do the same,” and (e) that Plaintiff was terminated on April 3, 2017. (ECF No. 20 at 6).
However, with the exception of the termination, all of these facts were either directly stated in
the Terrill I Complaint (ECF No. 5-1) or they are directly related to a fact that was asserted in the
Terrill I Complaint.
For example, in paragraph sixteen of the Terrill I Complaint, Plaintiff alleged that “Ms.
Hudson’s anger . . . was immediately apparent as communication with Plaintiff significantly
deteriorated” and that she “excluded [Plaintiff] from conversations pertaining to ECC business.”
(ECF No. 5-1, ¶ 16). This correlates with “new” facts (a) and (b) above. Additionally, in

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paragraph twenty-three of the Terrill I Complaint, Plaintiff alleged that “Plaintiff was then
informed that he would no longer receive his base salary and supplemental income from CMM.”
Id. at ¶ 23. Similarly, the Terrill I Complaint goes on to allege that “Ms. Hudson played a role in
arbitrarily elevating the salaries of Plaintiff’s colleagues” and that these colleagues “receive[d]
higher compensation than Plaintiff when Plaintiff was clearly in a position of higher ranking.” Id.
at ¶ 29. Both of these factual allegations correspond to new factual allegation (c) above. While
the racial descriptions of the coworkers are missing in the Terrill I Complaint, these descriptions
would have been known at the time of the filing of the initial Terrill I Complaint. Furthermore,
while the Terrill I Complaint did not specifically address Plaintiff having to take his lunch break
at a designated time each day while his coworkers did not have to do so, it did state that Plaintiff
was no longer under exempt status, that his coworkers were given exempt status, and that as a
result of his non-exempt status he was forced to punch a time clock and stick to a “timekeeping
process.” (ECF No. 5-1 at ¶ 18, 22). Therefore, the only “new fact” that Plaintiff has listed that
was actually new in the Terrill II case is Plaintiff’s termination. However, in asserting wrongful
termination in Terrill II, Plaintiff specifically focuses on his FMLA claim, not on the racial
discrimination and retaliation claims at issue in this motion to dismiss. (ECF No. 1 at 7).
Still, Plaintiff alleges now that his current claims for racial discrimination and retaliation
were not ripe or ready for review at the time of Terrill I because of these “new” facts that
Plaintiff alleges occurred after Terrill I was dismissed. (ECF No. 20 at 7). However, in
comparing the two Complaints, it seems that Plaintiff’s potential claims for racial discrimination
and retaliation were ripe prior to the dismissal of Terrill I because he asserts nearly identical
facts and injuries in this action. While the Complaint in Terrill I did not list the races of Ms.
Hudson, the coworkers, or Plaintiff in the facts, the racial description of each key player in the

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facts of Terrill I would have been known at the time of the filing of that Complaint. Therefore,
this court cannot agree with Plaintiff that his racial discrimination claim was not ripe at the time
of Terrill I.
In fact, of the twenty-seven factual allegations in Terrill II, nineteen of them are either
identical or almost identical to the factual allegations set forth in Terrill I. (Compare ECF No. 1
and 5-1). The remaining factual allegations revolved around Plaintiff’s FMLA claims regarding
his allegedly wrongful termination. (ECF No. 5-1). Furthermore, the facts of both Terrill I and
Terrill II indicate that the same right – the terms and conditions of Plaintiff’s employment – has
been allegedly violated by essentially the same wrong – the changing of the terms and conditions
of Plaintiff’s employment. The only difference seems to be the alleged motivation for this wrong.
In applying South Carolina law to this very same issue, the Fourth Circuit concluded that
a subsequent claim for racial discrimination “clearly could have been raised” in the earlier State
court action for breach of contract in Allen v. Greenville County, 712 F.3d 934, 935 (4th Cir.
1983). There, the court concluded that the district court’s dismissal based on claim preclusion
was “plainly right” when the Plaintiff initially sued Greenville County for breach of contract,
which ended in a directed verdict for the defendant, then turned around and sued the county for
racial discrimination based on the same facts. Id.
Similarly, in 2007 another District of South Carolina court applied South Carolina
preclusion principles and concluded that the plaintiff’s federal case for violation of the Age
Discrimination and Employment Act (AEDA) was barred by plaintiff’s prior case for breach of
contract because the cases involved the same subject matter. Weston v. Margaret, No. 1:052518-RBH, 2007 WL 2750216 *6 (D.S.C. Sept. 20, 2007). The court reasoned that since “both
cases involve[d] the termination of the plaintiff from his employment with the defendants and the

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same underlying facts [were] alleged in both Complaints,” the same subject matter was at issue
in both cases. Id.

Additionally, the magistrate judge’s report, which the district court

incorporated, noted that “the breach of contract and alleged age discrimination occurred at the
same time period, involved the same actors, and allegedly caused the same resulting termination”
of the plaintiff’s employment. Id. at *6. Therefore, the court determined that “plaintiff could
have raised the AEDA claims in her state court lawsuit” and that, thus, res judicata applied. Id.
at *3.
In this case, Plaintiff’s breach of contract claims in Terrill I share the same underlying
facts with Plaintiff’s non-FMLA claims in Terrill II. The alleged race discrimination and
retaliation occurred at the same time as the alleged breach of contract, as shown by the
correlating facts to both claims. The claims involved the same actors. Finally, the breach of
contract and non-FMLA claims allegedly resulted in the same treatment of Plaintiff – changing
Plaintiff’s job duties, reducing Plaintiff’s pay, and excluding Plaintiff from opportunities his
other coworkers were receiving. Therefore, this court finds that the facts in Terrill I and Terrill II
were based on the same subject matter, and, therefore arose from the same transaction or
occurrence. Accordingly, Plaintiff could have alleged the racial discrimination and retaliation
claims from Terrill II in Terrill I had he chosen to. As such, Plaintiff’s racial discrimination and
retaliation claims are now barred by res judicata.
B. Finality of adjudication in Terrill I
Finally, Plaintiff’s claim that the determination in Terrill I was not a final adjudication is
misplaced. As the magistrate judge noted in the Report, Plaintiff seems to conflate the doctrines
of issue preclusion and claim preclusion. While “res judicata” as a term can encompass both
types of preclusion doctrines, modern courts are often referring only to claim preclusion when

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they refer to res judicata. See Catawba Indian Nation v. State, 407 S.C. 526, 537, 756 S.E.2d
900, 906 (2014). Additionally, it is clear in the Defendants’ motion to dismiss that claim
preclusion is at issue in this case, not issue preclusion. In fact, the doctrine of issue preclusion is
inapplicable when an argument turns on whether or not a party should have or could have
litigated a particular claim in a prior adjudication. Id. at 538, 756 S.E.2d at 907.
Plaintiff asserts that he does not believe that the issues of racial discrimination and
retaliation were litigated in Terrill I, and that, therefore, Terrill I is not a final adjudication of
those issues. (ECF No. 20 at 7). In arguing that res judicata does not apply, Plaintiff relies on
Surety Realty Corporation v. Ashmer, 249 S.C. 114, 119, 153 S.E.2d 125, 128 (1967), in stating
that “res judicata applies to those matters actually adjudicated in the former action.” (ECF No. 20
at 7). However, this is a misquotation of the case law. The case reads that “res judicata applies to
those issues actually adjudicated in the former action.” Surety Realty Corp., 249 S.C. at 119, 153
S.E.2d at 128 (emphasis added). Furthermore, a careful reading of this case demonstrates that
the opinion clearly focuses on issue preclusion, which is inapplicable to Plaintiff’s case.
Contrary to issue preclusion, which does require issues to actually be litigated in a prior
suit if they are to be barred in a subsequent suit, claim preclusion does not require actual prior
litigation of the claims in order for the bar to apply. See Catawba, 407 S.C. at 537, 756 S.E.2d at
906. Plaintiff stipulated to dismissal of Terrill I with prejudice (ECF No. 14 at 2), and this “acts
as an adjudication on the merits and therefore precludes subsequent litigation just as if the action
had been tried as a final adjudication.” Laughon v. O’Braitis, 360 S.C. 520, 527, 602 S.E.2d 108,
111 (S.C. Ct. App. 2004). Accordingly, since claim preclusion bars Plaintiff from pursuing
claims that were litigated or could have been litigated in the prior suit, the finality of the decision

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in Terrill I applies to both claims that were brought before the court and claims that should have
been brought before the court at that time. See Cawtaba, 407 S.C. at 538, 756 S.E.2d at 907.
Accordingly, Plaintiff’s non-FMLA claims should have been brought in Terrill I if
Plaintiff wished to raise the claims, and, therefore, the adjudication of Terrill I is final as to those
claims. Consequently, res judicata bars the racial discrimination and retaliation claims from this
suit.
III. Conclusion
After a thorough review of the Report and the entire record in this case, the court adopts the
magistrate judge’s Report (ECF No. 19). Accordingly, Defendants’ partial motion to dismiss (ECF No. 5)
is GRANTED, and only Plaintiff’s FMLA cause of action shall remain pending before this court.
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge

October 31, 2017
Anderson, South Carolina

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