Taylor v. Cummins Atlantic, Inc., Civ. A. No. 3:92-1850-19BD.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Citation852 F. Supp. 1279
Decision Date01 March 1994
Docket NumberCiv. A. No. 3:92-1850-19BD.
PartiesRobert H. TAYLOR, Plaintiff, v. CUMMINS ATLANTIC, INC., Defendant.

852 F. Supp. 1279

Robert H. TAYLOR, Plaintiff,
v.
CUMMINS ATLANTIC, INC., Defendant.

Civ. A. No. 3:92-1850-19BD.

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

March 1, 1994.


852 F. Supp. 1280
COPYRIGHT MATERIAL OMITTED
852 F. Supp. 1281
Paul H. Infinger, Beaufort, and Herbert W. Louthian, Louthian and Louthian, Columbia, for plaintiff

George Daniel Ellzey, Columbia, and Mason Gardner Alexander, Jr., Ogletree, Deakins, Nash, Smoak & Stewart, Columbia, for defendant.

ORDER

SHEDD, District Judge.

Defendant discharged plaintiff from employment for the stated reason of poor work performance. As a result, plaintiff filed this lawsuit alleging causes of action for breach of contract, nonpayment of wages in violation of the South Carolina Wage Payment Act (S.C.Code Ann. §§ 41-10-10 to -110), age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") (29 U.S.C. §§ 621-34) and the South Carolina Human Affairs Law ("SCHAL") (S.C.Code Ann. §§ 1-13-10 to -110), fraud, and intentional infliction of emotional distress. This matter is now before the Court on defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. After carefully reviewing the

852 F. Supp. 1282
record and the controlling legal principles, the Court concludes that the motion should be granted for the reasons set forth below

I

Summary judgment is not "a disfavored procedural shortcut, but rather it is an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). Summary judgment "provides a procedure with which to bypass a trial when the fact resolution process of trial would prove to be of no use in the disposition of the case." Mitchell v. Data General Corp., 12 F.3d 1310, 1315 (4th Cir.1993). When the moving party properly supports its motion showing that it is entitled to judgment as a matter of law, the party opposing the motion must present "affirmative evidence" to establish a genuine dispute of material fact which is necessary to defeat the summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257-58, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986). In reviewing a motion for summary judgment, the Court is required to view any permissible inferences to be drawn from the underlying facts in the light most favorable to the non-moving party. Moore v. Winebrenner, 927 F.2d 1312, 1313 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 97, 116 L.Ed.2d 68 (1991). If, after viewing the evidence in the light most favorable to the non-moving party, the Court finds that the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to its case, and on which it will bear the burden of proof at trial, the Court must grant summary judgment against that party. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 883-84, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990). "In short, the summary judgment procedure allows the court to forecast the proof at trial to determine whether consequential facts are in dispute, and if not, to resolve the case without a trial." Mitchell, 12 F.3d at 1316.

II

Initially, the Court will consider plaintiff's claim for nonpayment of wages under the South Carolina Wage Payment Act, which requires an employer to pay all wages due to a separated employee within forty-eight hours of the time of separation or the next regular payday (not to exceed thirty days), S.C.Code Ann. § 41-10-50; and which creates a civil action for violation of the Act. See S.C.Code Ann. § 41-10-80(C). In support of its motion on this claim, defendant has submitted an affidavit of its company Controller, Terry Fisher, in which Mr. Fisher states that defendant has fully paid plaintiff all commissions to which he was entitled. During discovery, plaintiff failed to identify which commissions had not been paid and, in his opposition to the motion, plaintiff has failed to come forward with any evidence regarding this claim.1 Based on the record which has been presented, the Court concludes that defendant is entitled to summary judgment on this claim.

III

The Court next turns to plaintiff's intentional infliction of emotional distress claim, which defendant argues, inter alia, is precluded by the South Carolina Workers' Compensation Act. Defendant cites Dickert v. Metropolitan Life Insurance Company, 428 S.E.2d 700 (S.C.1993), in which the South Carolina Supreme Court reaffirmed the principle that "an employee's action against a company for intentional infliction of emotional distress ... is within the scope of the Workers' Compensation Act since it arises from personal injury." Id. at 701. The Dickert court noted that "it is only when the tortfeasor/co-employee is the `alter

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ego' of the employer that liability falls outside the scope of the Act." Id. With these principles in mind, the Dickert court "declined to extend the definition of alter ego to supervisory employees such as office manager and held that only `dominant corporate owners and officers' may constitute alter egos." Id.

In light of Dickert, the Court concludes that plaintiff's claim for outrage must fail. Plaintiff has made no showing that the alleged outrageous conduct was committed by a "dominant corporate owner" of defendant. Indeed, plaintiff has not responded to this particular argument in its memoranda in opposition to the motion but, instead, has merely argued that defendant's actions are outrageous. Because plaintiff has failed to set forth facts to remove this case from the holding of Dickert, defendant is entitled to summary judgment on this claim.

IV

The Court will next consider plaintiff's claim of age discrimination under the ADEA and the SCHAL,2 which do not require an employer "to adopt a life of economic altruism and thereby immunize protected class members from discharge or demotion despite their poor performance," Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1287 (4th Cir.1985); but, instead, preclude an employer from treating employees less favorably because of age. Id. In order to establish a claim under these statutes, "a plaintiff must prove, with reasonable probability, that but for the age of the plaintiff, the adverse employment decision would not have been made. Age must have been a determining factor in the employment decision." Mitchell, 12 F.3d at 1314. A plaintiff may prove that age was a determining factor in the adverse employment decision under ordinary standards of proof or under a proof scheme judicially created for use in Title VII cases and subsequently adapted for use in ADEA cases. E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir.1992).3

A.

In applying ordinary standards of proof, plaintiff must establish the following elements in order to prevail: (1) he is age 40 or older, (2) he was discharged, and (3) the circumstances surrounding his discharge indicate that his age was a determining factor in the sense that but for defendant's motive to discriminate against him because of his age, he would not have been discharged. Clay Printing Co., 955 F.2d at 940-41. Under this scheme of proof, plaintiff may prove his case by introducing direct evidence of discrimination, which typically consists of statements made by the employer which specifically link the discharge to her age, see Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir.), cert. denied, 472 U.S. 1021, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985); or by introducing indirect evidence of discrimination, which typically includes, but is not limited to, "`proof of his general qualifications, from which the inference of age discrimination may rationally be drawn independently of any age presumption.'" Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir.1991) (citation omitted). To prevail on a claim of age discrimination based on indirect evidence requires proof that it is "more probable than not" that age discrimination is the reason for the discharge. Id.

Plaintiff argues that he has presented both direct and indirect evidence of age discrimination. Specifically, plaintiff

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points to affidavits from several former employees who claim that defendant discriminatorily terminated them. The Court has reviewed these affidavits and find that they contain nothing more than conclusory allegations that defendant terminated them because of their age, among other reasons. Therefore, these affidavits are not probative of plaintiff's claim of age discrimination.4 In addition, plaintiff points to a change in defendant's commission schedule as being proof that defendant terminated him because of his age. However, plaintiff's wholly speculative theory concerning this commission change simply does not support his claim of age discrimination either factually or legally. In short, to the extent that plaintiff attempts to prove his case using ordinary standards of proof, the Court concludes that his claim of age discrimination must fail as a matter of law

B.

Plaintiff also argues that he can prove his claim of age discrimination under the Title VII scheme of proof, which first requires him to establish a prima facie case of age discrimination by showing that (1) he is age 40 or older, (2) he was discharged, (3) at the time of the discharge he was performing his job at a level that met defendant's legitimate expectations, and (4) following his discharge, he was replaced by someone of comparable qualifications under the age of forty. Mitchell, 12 F.3d at 1315. The Court concludes that plaintiff has failed to establish a prima facie case because the evidence presented by defendant, and not refuted by plaintiff, is that following his termination, plaintiff was replaced by two employees, both of whom are...

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28 practice notes
  • Moss v. City of Abbeville, Civil Action No. 8:09-cv-01859-PBH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 15 Julio 2010
    ...actually received or relied upon. At least one decision of this district court has implied as much. See Taylor v. Cummins Atlantic, 852 F.Supp. 1279 (D.S.C.1994). In Taylor, the district court affirmed that for a breach of contract on an employment handbook, all of the elements of a contrac......
  • Ferguson v. Waffle House, Inc., Civil Action No. 9:12–1740–SB.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 7 Mayo 2014
    ...the Defendant's breach of one or more of the contractual terms, and damages resulting from the breach. Taylor v. Cummins Atlantic, Inc., 852 F.Supp. 1279, 1286 (D.S.C.1994), citing Fuller v. Eastern Fire & Cas. Ins. Co., 240 S.C. 75, 124 S.E.2d 602, 610 (1962). With respect to employment, h......
  • Ferguson v. Waffle House, Inc., Civil Action No. 9:12–1740–SB.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 8 Mayo 2014
    ...the Defendant's breach of one or more of the contractual terms, and damages resulting from the breach. Taylor v. Cummins Atlantic, Inc., 852 F.Supp. 1279, 1286 (D.S.C.1994), citing Fuller v. Eastern Fire & Cas. Ins. Co., 240 S.C. 75, 124 S.E.2d 602, 610 (1962). With respect to employment, h......
  • Gleaton v. Monumental Life Ins. Co., C.A. No. 2:09-cv-01667-MBS.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 28 Enero 2010
    ...unable to locate any cases granting dismissal of a SCHAL claim on the ground asserted in this case. See generally Taylor v. Cummins, 852 F.Supp. 1279, 1283 n. 2 (D.S.C.1994) [Dismissing both ADEA and SCHAL claims at summary judgment]; Smith v. Prudential Financial Servs., Inc., 739 F.Supp. ......
  • Request a trial to view additional results
28 cases
  • Moss v. City of Abbeville, Civil Action No. 8:09-cv-01859-PBH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 15 Julio 2010
    ...actually received or relied upon. At least one decision of this district court has implied as much. See Taylor v. Cummins Atlantic, 852 F.Supp. 1279 (D.S.C.1994). In Taylor, the district court affirmed that for a breach of contract on an employment handbook, all of the elements of a contrac......
  • Ferguson v. Waffle House, Inc., Civil Action No. 9:12–1740–SB.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 7 Mayo 2014
    ...the Defendant's breach of one or more of the contractual terms, and damages resulting from the breach. Taylor v. Cummins Atlantic, Inc., 852 F.Supp. 1279, 1286 (D.S.C.1994), citing Fuller v. Eastern Fire & Cas. Ins. Co., 240 S.C. 75, 124 S.E.2d 602, 610 (1962). With respect to employment, h......
  • Ferguson v. Waffle House, Inc., Civil Action No. 9:12–1740–SB.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 8 Mayo 2014
    ...the Defendant's breach of one or more of the contractual terms, and damages resulting from the breach. Taylor v. Cummins Atlantic, Inc., 852 F.Supp. 1279, 1286 (D.S.C.1994), citing Fuller v. Eastern Fire & Cas. Ins. Co., 240 S.C. 75, 124 S.E.2d 602, 610 (1962). With respect to employment, h......
  • Gleaton v. Monumental Life Ins. Co., C.A. No. 2:09-cv-01667-MBS.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 28 Enero 2010
    ...unable to locate any cases granting dismissal of a SCHAL claim on the ground asserted in this case. See generally Taylor v. Cummins, 852 F.Supp. 1279, 1283 n. 2 (D.S.C.1994) [Dismissing both ADEA and SCHAL claims at summary judgment]; Smith v. Prudential Financial Servs., Inc., 739 F.Supp. ......
  • Request a trial to view additional results

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