El-Reedy v. Abacus Tech. Corp.

• Decision Date: 07 August 2017
• Docket Number: C/A No.: 2:17–cv–0444 DCN
• Citation: 273 F.Supp.3d 596
• Court: U.S. District Court — District of South Carolina
• Parties: Amal EL–REEDY, Plaintiff, v. ABACUS TECHNOLOGY CORPORATION; and Salient CRGT, Inc., Defendants.

273 F.Supp.3d 596

Amal EL–REEDY, Plaintiff,

v.ABACUS TECHNOLOGY CORPORATION; and Salient CRGT, Inc., Defendants.

C/A No.: 2:17–cv–0444 DCN

United States District Court, D. South Carolina, Charleston Division.

Signed August 7, 2017

Ashley Long Falls, Joseph Scott Falls, Falls Legal, Charleston, SC, for Plaintiff.

Cara Y. Crotty, Constangy Brooks Smith and Prophete, Matthew Stanley Brown, Littler Mendelson, Columbia, SC, for Defendants.

ORDER

David C. Norton, United States District Judge

The above referenced case is before this court upon the magistrate judge's recommendation that defendant Salient's motion to dismiss plaintiff's cause of action for constructive discharge be denied.

This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208, 104 S.Ct. 2395, 81 L.Ed.2d 352 (1984).¹ No objections have been filed to the magistrate judge's report and recommendation .

A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge's report and recommendation is AFFIRMED , and defendant Salient's motion to dismiss plaintiff's cause of action for constructive discharge is DENIED.

AND IT IS SO ORDERED .

Bristow Marchant, United States Magistrate Judge

REPORT AND RECOMMENDATION

This action has been filed by the Plaintiff, who contends that she is a former employee of both Defendants (collectively referred to as "Defendants")¹ , asserting claims for hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., on the basis of race, national origin, religion and color (First and Third Causes of Action); harassment/hostile work environment and retaliation in violation of 42 U.S.C. § 1981 on the basis of race (Second and Fourth Causes of Action), and constructive discharge (Fifth Cause of Action).

The Defendant Salient CRGT, Inc. ("Salient") filed a partial motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., on March 30, 2017. Plaintiff filed a memorandum in opposition to Salient's motion on April 27, 2017. Salient's motion is now before the Court for disposition.²

Plaintiff's Allegations

Plaintiff alleges that she is a fifty year old United States citizen who was born in Egypt, that she is a member of the "Arabic" race and is of Arabic/Egyptian descent, that she speaks Arabic and is fluent in English, that her religion is Islam, and that she identifies as a Muslim. See Complaint, ¶¶ 9–12. Plaintiff alleges that after Salient was awarded a contract through the United States Government to provide training services for Royal Saudi Naval Forces ("RSNF") in Charleston, South Carolina, it sought bids from subcontractor companies to fulfil certain requirements under the RSNF contract. See Complaint, ¶¶ 13–14. After Defendant Abacus Technology Corporation ("Abacus") was awarded a bid from Salient, which included funding for one full-time Administrative Assistant employee, it ultimately hired Plaintiff for the position on or about August 3, 2015, and informed Salient of the hire. See Complaint, ¶¶ 15 & 17. During her employment, Abacus was responsible for Plaintiff's compensation and benefits, processed payroll for the Plaintiff, and maintained workers compensation insurance coverage for her. See Complaint, ¶¶ 19–20.

Plaintiff alleges that she was the only Abacus employee at the work site and that Salient furnished her with all equipment and tools, including her computer. See Complaint, ¶ 22. Plaintiff alleges there were no Abacus managers or supervisors at the site, and that her day-to-day duties were directed and supervised by Salient Management, including her day-to-day work schedule, the details of her work assignments, her job performance, and job training. See Complaint, ¶¶ 23–24, 26, 29. Salient also had the authority to promote, demote, and discipline the Plaintiff. See Complaint, ¶ 32.

Plaintiff alleges that she was harassed on the basis of her race, national origin, religion and color throughout her entire employment, and that such actions culminated in her resignation on December 30, 2015. See Complaint, ¶ 37.

Discussion

Salient argues in its motion that Plaintiff's Fifth Cause of Action for constructive discharge should be dismissed pursuant to Rules 12(b)(1) and 12 (b)(6), Fed.R.Civ.P., because 1) Plaintiff failed to exhaust her administrative remedies, and 2) Plaintiff has failed to set forth sufficient factual allegations to state a claim on which relief can be granted.

With regard to Salient's challenge to the Court's subject matter jurisdiction under Rule 12(b)(1), failure to exhaust administrative remedies deprives a court of subject matter jurisdiction of a Title VII claim. Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4^th Cir. 2009). The Plaintiff bears the burden of proving, by a preponderance of the evidence, the existence of subject matter jurisdiction. Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4^th Cir. 2015). A test of subject matter jurisdiction can be based on a facial or factual challenge. Kerns v. United States, 585 F.3d 187, 192 (4^th Cir. 2009). Here, Salient makes a factual challenge by asserting that Plaintiff failed to exhaust her administrative remedies.

In considering a factual challenge, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F.3d at 192. In that circumstance, the court "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't Of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004) ; see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347–48 (4th Cir. 2009) ("Unless 'the jurisdictional facts are intertwined with the facts central to the merits of the dispute,' the district court may ... resolve the jurisdictional facts in dispute by considering evidence ... such as affidavits.") (Citation omitted). But, where the jurisdictional allegations are inextricably intertwined with the facts central to the merits of the claim, the usual "presumption of truthfulness" should attach to the factual allegations of the complaint, and the court "should then afford the plaintiff the procedural safeguards—such as discovery—that would apply were the plaintiff facing a direct attack on the merits." Kerns, 585 F.3d at 193.

Class Produce Grp., LLC v. Harleysville Worcester Ins. Co., No. 16-3431, 2017 WL 2377105, at *7 (D. Md. May 31, 2017).

When considering a Rule 12 (b)(6) motion to dismiss for failure to state a claim, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. The motion can be granted only if the party opposing the motion has failed to set forth sufficient factual matters to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable."

Vogt v. Greenmarine Holding, LLC, 318 F.Supp.2d 136, 144 (S.D.N.Y. 2004).

Pursuant to these standards, and for the reasons set forth hereinbelow, Salient's motion should be denied at this time.

I.

As noted, in her pleading Plaintiff alleges in her Fifth Cause of Action that she was constructively discharged because the Defendants' calculated effort pressured and/or forced her into resignation through the imposition of hostile and unreasonably harsh conditions. See Complaint, ¶ 107. Plaintiff asserts this claim under Title VII, § 1981, and (apparently) the South Carolina Human Affairs Law (SCHAL), S.C. Code Ann. § 1–13–30, et. seq.See Complaint, ¶¶ 5–7, 85–87, 100, 105.

Salient asserts that Plaintiff's constructive discharge claim is subject to dismissal because she did not exhaust her administrative remedies with respect to any such claim prior to filing this lawsuit. However, with regard to Plaintiff's § 1981 claim, there is no exhaustion requirement. See Doe v. Virginia Dep't of State Police, 713 F.3d 745, 774 n. 6 (4^th Cir. 2013) (citing Lilly v. Harris–Teeter Supermarket, 720 F.2d 326, 334 (4^th Cir. 1983) [recognizing previously settled rule that, as to discrimination "claims brought under 42 U.S.C. § 1981, exhaustion of EEOC remedies is not a prerequisite to filing suit"] ); see also Hale v. Bd. of Trustees of S. Illinois Univ. Sch. of Med., 219 F.Supp.3d 860, 868 (C.D.Ill. 2016) [finding it was immaterial as whether the § 1981 claims were contained in the charge of discrimination since § 1981 does not require exhaustion]; Caetio v. Spirit Coach, LLC, 992 F.Supp.2d 1199, 1209 (N.D.Ala. 2014) ["There are no administrative prerequisites to the maintenance of a § 1981 claim"]. Therefore, Plaintiff's claim for constructive discharge in violation of § 1981 is not barred by any failure by her to exhaust her administrative remedies.

As for Plaintiff's claim under Title VII, as correctly noted by the...