Jones v. Karnick Inc

Filing 26

ORDER finding as moot 8 Motion to Dismiss for Failure to State a Claim; granting 16 Motion to Dismiss; granting 24 Report and Recommendations. Signed by Honorable Henry M Herlong, Jr on 1/3/2012.(pbri, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION

James Jones,
Plaintiff,
vs.
Karnick, Inc. d/b/a
McDonalds,
Defendant.

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C.A. No. 8:11-1554-HMH-JDA

OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02 of the District of South Carolina.1 James Jones (“Jones”) alleges racial and
gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). In
addition, Jones alleges an age discrimination claim under the Age Discrimination in
Employment Act (“ADEA”). Further, Jones alleges a defamation claim and a claim for
violation of the South Carolina Payment of Wages Act. The Defendant moves to dismiss Jones’
claims alleged in his Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim for relief. In her Report and Recommendation,
Magistrate Judge Austin recommends granting the Defendant’s motion and declining to exercise
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The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District 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 and Recommendation to which specific objection is made. The court may accept,
reject, or modify, in whole or in part, the recommendation made by the magistrate judge or
recommit it with instructions. 28 U.S.C. § 636(b)(1).
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supplemental jurisdiction over the state law claim. Jones filed objections to the Report and
Recommendation. For the reasons stated below and after a de novo review, the court grants the
Defendant’s motion to dismiss.
I. FACTUAL BACKGROUND
According to the amended complaint, Jones, an African American male, was employed
by the Defendant as a shift manager beginning on June 5, 2008, at one of the Defendant’s
Anderson County locations. (Am. Compl. ¶ 7.) Jones was transferred to another Anderson
County store three months later. (Id. ¶ 8.) Further, on August 26, 2009, one of the Defendant’s
shift leaders, allegedly said to Jones in the presence of others that “We have been trying to fire
you for a long time, we just don’t have a reason yet. We know of you stealing money, but we
just can’t prove it.” (Id. ¶ 23.) In addition, on September 14, 2009, Ada Medina, an area
manager, allegedly accused Jones of not testing the meat in the mornings based on a report from
another employee and further stated that she believed the other employee rather than Jones
because she was white. (Id. ¶¶ 32-36.) Jones was allegedly terminated on September 15, 2009,
and replaced by a “pretty[,] young[,] [C]aucasi[a]n female” that was younger than 40 years old.
(Id. ¶¶ 9, 42.) Jones was 54 years old at the time of his termination. Further, Jones alleges that a
manager of the Defendant clocked him in and out for breaks and failed to pay him wages for this
time which he is entitled to under the South Carolina Payment of Wages Act. (Am. Compl. ¶
18.)

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II. THE REPORT AND RECOMMENDATION
Magistrate Judge Austin recommends granting the Defendant’s motion to dismiss (1) on
the ADEA claim because Jones has failed to allege that the Defendant met the twenty employee
requirement to be an employer covered under the ADEA; and (2) on the Title VII gender and
racial discrimination claims because Jones had failed to allege a prima facie case of
discrimination in that the amended complaint is devoid of any factual allegations that Jones was
performing his job duties at a level that met the employer’s legitimate expectations or that race
or gender motivated the decision to terminate Jones. (Report & Recommendation, generally.)
III. JONES’ OBJECTIONS
Jones specifically objects to the magistrate judge’s Report and Recommendation,
arguing that he has sufficiently alleged the twenty employee requirement to state a claim of age
discrimination under the ADEA and that he was meeting his employer’s legitimate expectations
at the time of his termination to allege a prima facie case of racial and gender discrimination
under Title VII. (Objections, generally.)
IV. LEGAL DISCUSSION
A. Motion to Dismiss Standard
When presented with a Rule 12(b)(6) motion to dismiss, the court must restrict its
inquiry to the sufficiency of the complaint rather than “resolve contests surrounding the facts,
the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To withstand a Rule 12(b)(6) motion, “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, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks
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omitted). Under this plausibility standard, the court should “assume th[e] veracity” of well-pled
factual allegations “and then determine whether they plausibly give rise to an entitlement to
relief.” Id. at 1950.
B. Title VII–Racial Discrimination
Jones alleges that the Defendant terminated him because of his race and gender in
violation of Title VII. Jones objects that the Report and Recommendation “erroneously finds
that [he] adequately failed to plead a prima facie case of discrimination [under] Title VII.”
(Objections 2.) In Swierkiewicz v. Sorema N.A., the Supreme Court held that a plaintiff is not
required to allege facts to establish “a prima facie case under McDonnell Douglas . . . in order to
survive a motion to dismiss.” 534 U.S. 506, 511 (2002). Thus, the Supreme Court found that
“the ordinary rules for assessing the sufficiency of a complaint apply” in a Title VII case, and
“under a notice pleading system, it is not appropriate to require a plaintiff to plead facts
establishing a prima facie case because the McDonnell Douglas framework does not apply in
every employment discrimination case.” Id. The Fourth Circuit “has not . . . interpreted
Swierkiewicz as removing the burden of a plaintiff to allege facts sufficient to state all the
elements of [a plaintiff’s] claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765
(4th Cir. 2003) (finding that Bass “failed to allege facts sufficient to support at least the second
and third elements of her hostile work environment”). In Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002), the Fourth Circuit held that “the Supreme Court’s holding in
Swierkiewicz v. Sorema did not alter the basic pleading requirement that a plaintiff set forth
facts sufficient to allege each element of his claim.” See also Iodice v. United States, 289 F.3d
270, 281 (4th Cir. 2002). “By continuing to apply a heightened pleading standard after

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Swierkiewicz, the Fourth Circuit is at odds with the Supreme Court’s clear pronouncement that
all elements of a prima facie case need not be supported with factual pleadings in order to
survive a motion to dismiss.” Cockerham v. Stokes County Bd. of Educ., 302 F. Supp. 2d 490,
495 (M.D.N.C. 2004). However, the court is “bound to follow the Fourth Circuit’s
interpretation of Swierkiewicz.” Id.; Signal v. Gonzales, 430 F. Supp. 2d 528, 538 n.3 (D.S.C.
2006). Thus, in order to survive a motion to dismiss, Jones must sufficiently allege a prima
facie case of gender or race discrimination as described in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-805 (1973).2
To demonstrate the prima facie case of sex or age discrimination under the pretext
framework, the plaintiff must show that (1) []he is a member of a protected class;
(2) []he suffered adverse employment action; (3) []he was performing h[is] job
duties at a level that met h[is] employer’s legitimate expectations at the time of the
adverse employment action; and (4) the position remained open or was filled by
similarly qualified applicants outside the protected class.
Hill, 354 F.3d at 285.
“Title VII prohibits discrimination based only on certain enumerated factors . . .” such as
race. Archuleta v. Colorado Dept. of Insts., Div. of Youth Servs., 936 F.2d 483, 487 (10th Cir.
1991). “Title VII does not ensure that employees will always be treated fairly or that they will
be discharged only for meritorious reasons. Although the dismissal of an employee without
cause may contribute to an inference of unlawful discrimination, it does not require such a
finding.” Id.

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There are two methods of proving a discrimination claim under Title VII:
(1) establishing discrimination through direct or circumstantial evidence that the protected trait
motivated the employer’s adverse employment decision, or (2) establishing discrimination under
the McDonnell Douglas framework. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 284-85 (4th Cir. 2004); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.
2004) (applying Hill to racial discrimination Title VII claim).
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The magistrate judge found that Jones had failed to allege the third element of a prima
facie case that he had met his employer’s legitimate expectations. (Report & Recommendation
10.) Jones alleges that the following allegation in his amended complaint supports the inference
that he was performing his job at a satisfactory level: “On or about August 26, 2009, Salina, one
of Defendant’s shift leaders, in the presence of Plaintiff and others told Plaintiff ‘We have been
trying to fire you for a long time, we just don’t have a reason yet. We know of you stealing
money, but we just can’t prove it.’” (Am. Compl. ¶ 23.) Jones continues that “[i]f Defendant
did not have a reason to terminate plaintiff, then obviously he was performing his job [] at a
level to meet his employer’s legitimate expectations.” (Objections 6.) The only inference that
can be drawn from this allegation is that the Defendant believed Jones was stealing but would
not terminate him without cause. The amended complaint is devoid of any factual allegations
that Jones was performing his job at a level that met the Defendant’s legitimate expectations at
the time of his termination on September 15, 2009. “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft, 129 S. Ct. at 1949 (internal quotation marks omitted). Based upon the
foregoing, this court finds that Jones has failed to plausibly allege the third element of a prima
facie case of race or gender discrimination.
Further, as the magistrate judge noted, the amended complaint is devoid of any factual
allegations suggesting that race or gender motivated the decision to terminate Jones. See Lee v.
Lacy, Civil Action No. 7:07CV00488, 2008 WL 410127 at *3 (W.D. Va. Feb. 12, 2008)
(unpublished) (dismissing case because plaintiff alleged “no facts that any of the defendants’
actions were motivated by discrimination based on his race, sex or religion, or that defendants
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treated other employees differently because of their race, sex or religion”). The amended
complaint merely alleges that Jones was replaced by a pretty, young, Caucasian woman and that
Ada Medina, an area manager, stated that she believed a Caucasian, female employee rather than
Jones because Jones was black. (Am. Compl. ¶¶ 36, 42.) Jones’ reference to one incident in
which the inference could be drawn that Ada Medina found Jones to be less credible because he
was African American fails to plausibly state a claim that Jones’ termination was because of his
race or gender. This incident arose when another employee claimed that Jones was not testing
his meat in the morning. (Id. ¶ 33.) Allegedly, Ada Medina indicated that she believed the other
employee rather than Jones because she was Caucasian. (Id. ¶ 36.) There is no allegation
connecting this statement in any way with Jones’ termination the next day.
Further, Jones’ argument that Leo Medina, a “controlling member” of the Defendant, at
some point came into the store and yelled that “All you m___ f_____s are lazy!” supports the
factual inference that “Medina was complaining that black people are lazy” fails as this
statement was race neutral. (Id. ¶¶ 11-16.); (Objections 6.) Based on the foregoing, Jones’ Title
VII claims are dismissed.
C. ADEA
Jones alleges that the Report and Recommendation “erroneously finds that the Plaintiff
failed to adequately plead the numerosity requirements of 29 U.S.C. § 623(a)(1).” (Objections
2.) To be covered under the ADEA, the Defendant must be an employer as that term is defined
in the Act. Under the ADEA, “[t]he term ‘employer’ means a person engaged in an industry
affecting commerce who has twenty or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar year.” 29 U.S.C. § 630(b).
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Citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002), Jones argues that “[a]
civil rights plaintiff need not plead facts that constitute a prima facie case under the framework
of McDonnell Douglas in order to survive a Motion to Dismiss.” (Objections 3.) In
Swierkiewicz, the Supreme Court held that a plaintiff was not required to plead facts that would
constitute a prima facie case under McDonnell Douglas because it imposed a heightened
pleading requirement for a Title VII claim as a plaintiff can state a claim for relief under Title
VII without meeting those requirements. In contrast, the employee numerosity requirement is
essential to every ADEA case as it is in every Title VII case. Arbaugh v. Y & H Corp., 546 U.S.
500, 516 (2006) (holding “that the threshold number of employees for application of Title VII is
an element of a plaintiff’s claim for relief, not a jurisdictional issue”); Morrow v. Keystone
Builders Resource Group, Inc., Civil Action No. 2:08-4119-CWH, 2010 WL 3672354, at *6
(D.S.C. Sept. 15, 2010) (unpublished) (“[T]he McDonnell Douglas standard is an evidentiary
standard, not a pleading requirement. It does not apply in every employment discrimination
case. The McDonnell Douglas prima facie case requirements are flexible; they are ‘not
necessarily applicable in every respect to differing factual situations.’” (internal citations
omitted)).
The employee numerosity requirement . . . is an essential element of every
employment discrimination claim under Title VII. Thus, requiring a plaintiff to
make such an allegation does not impose a heightened pleading requirement and is
consistent with Fed.R.Civ.P. 8(a)(2)’s prescription that ‘a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.’”
Id. Jones alleges in his amended complaint that the Defendant “employ[s] more than 15
employees.” (Am. Compl. ¶ 5.) Jones argues that “the allegation that Defendant employ[]s

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more than 15 employees factually infers factually [sic] at least 20 employees.” (Objections 4.)
The court disagrees. The employee numerosity requirement is an element of a plaintiff’s ADEA
claim that must be pled. Jones has failed to allege that the Defendant has at least 20 employees,
an essential element of his claim. Therefore, this claim is dismissed for failure to state a claim.
Based on the foregoing, the court adopts Magistrate Judge Austin’s Report and
Recommendation and grants the Defendant’s motion to dismiss the amended complaint for
failure to state a claim for relief. Further, the court declines to exercise supplemental
jurisdiction over Jones’ state claims.
It is therefore
ORDERED that the Defendant’s motion to dismiss the amended complaint, docket
number 16, is granted and the court declines to exercise supplemental jurisdiction over Jones’
state law claims. It is further
ORDERED that the Defendant’s motion to dismiss the original complaint, docket
number 8, is dismissed as moot.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
January 3, 2012

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