Washington v. The Boeing Co.

• Docket Number: Civil Action 2:20-cv-01144-RMG-MGB
• Decision Date: 20 November 2020
• Parties: Joel Washington, Plaintiff, v. The Boeing Company, Defendant.
• Court: U.S. District Court — District of South Carolina

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Joel Washington, Plaintiff, v. The Boeing Company, Defendant.

Civil Action No. 2:20-cv-01144-RMG-MGB

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

November 20, 2020

ORDER AND REPORT AND RECOMMENDATION

MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

Plaintiff filed this action alleging race discrimination, hostile work environment and retaliation in violation of 42 U.S.C. § 1981, breach of contract, breach of contract accompanied by a fraudulent act, and promissory estoppel. This matter is before the Court upon Defendant's Partial Motion and Memorandum to Dismiss Plaintiff's Second Amended Complaint and to Strike. (Dkt. No. 37.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned grants Defendant's motion to strike, and recommends that the Court grant in part and deny in part Defendant's motion to dismiss.

BACKGROUND

Plaintiff along with co-Plaintiffs Kevin Austin, Donta Alston, and Jonathan Bennett, initially filed a complaint against Defendant on September 24, 2019, alleging race discrimination, hostile work environment and retaliation in violation of 42 U.S.C. § 1981, breach of contract breach of contract accompanied by a fraudulent act, and promissory estoppel.0F^[1] (Dkt. No. 2.) On November 8, 2019 Defendant filed its initial motion to dismiss. (Dkt. No. 5.)^[2] On March 24, 2020, this Court ordered that the claims be severed into four separate actions, noting that each Plaintiff should file an amended complaint. (Dkt. No. 1.) Plaintiff filed his Amended Complaint on May 5, 2020. (Dkt. No. 6.) Defendant then filed a Partial Motion to Dismiss Plaintiff's Amended Complaint and Supporting Memorandum on May 19, 2020. (Dkt. No. 7.) On June 22, 2020, Defendant also filed a Motion to Strike Plaintiff's Sur Reply. (Dkt. No. 15.)

On August 11, 2020, the undersigned issued an Order and Report and Recommendation recommending that the Court grant in part and deny in part Defendant's Partial Motion to Dismiss (Dkt. No. 7) without prejudice, and ordering that Defendant's Motion to Strike Plaintiff's Sur Reply (Dkt. No. 15) be granted. (Dkt. No. 28.) In response, Plaintiff filed a Motion to Amend/Correct his Amended Complaint. (Dkt. No. 32.) Plaintiff's motion was granted (Dkt. No. 33) on September 2, 2020 and he filed his Second Amended Complaint (Dkt. No. 36) on September 11, 2020. In light of the filing of Plaintiff's Second Amended Complaint (Dkt. No. 36), the Court declined to adopt the undersigned's Report and Recommendation (Dkt. No. 28) and denied Defendant's Partial Motion to Dismiss (Dkt. No. 38) without prejudice as moot.

Defendant then filed this Partial Motion and Memorandum to Dismiss Plaintiff's Second Amended Complaint and to Strike. (Dkt. No. 37.) Plaintiff filed his Response in Opposition to Defendant's Motion (Dkt. No. 41) on October 9, 2020 and Defendant filed its Reply to Plaintiff's Response in Opposition (Dkt. No. 42) on October 13, 2020. As such, the motions before the Court have been fully briefed and are ripe for disposition.

DISCUSSION

Defendant asserts that Plaintiff's claims for breach of contract breach of contract accompanied by a fraudulent act, retaliation, and hostile work environment should be dismissed based on Plaintiff's failure to state claims upon which relief may be granted. (Dkt. No. 37 at 1.) Defendant also asks the Court strike all references to “Title VII” and “South Carolina Human Affairs Law” in Plaintiff's Second Amended Complaint, arguing that “[although Defendant] assumes they are merely a scrivener's error, their inclusion is improper because Plaintiff failed to administratively exhaust these claims.” (Id. at 2, 21.) For the reasons set forth below, the undersigned grants Defendant's motion to strike, and recommends that the Court grant in part and deny in part Defendant's motion to dismiss.

I. Partial Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).

A. Breach of Contract

Defendant first seeks to dismiss Plaintiff's breach of contract claim, arguing that Plaintiff “still fails to establish the existence of an enforceable contract between Boeing and Plaintiff that altered the status of his at-will employment.” (Dkt. No. 37 at 4-5.) On the other hand, Plaintiff asserts that he “has adequately pled that [Plaintiff] has an enforceable contract with Boeing” because “[t]he language provided in Defendant's EEO Policy clearly states that it covers ‘all terms and conditions of employment' and that it prohibits ‘retaliation against a person who has made a complaint.'” (Dkt. No. 41 at 3, 5.)

To establish a breach of contract claim, Plaintiff must show that he entered into a contract with Defendant. The elements required to establish a contract are an offer, acceptance, and valuable consideration. Roberts v. Gaskins, 327 S.C. 478, 486 S.E.2d 771, 773 (1997) (citing Carolina Amusement Co., Inc. v. Connecticut Nat'l Life Ins., Co., 313 S.C. 215, 437 S.E.2d 122 (1993)). In the employment context, “[f]or a contract to be created, the employee must be aware of promises . . ., must have relied on (and continued work in reliance on) those promises, and the promises must restrict the right to discharge.” Lawrence v. Westinghouse Savannah River Co., Inc., No. 1:03-cv-484-27, 2005 WL 3968031, at *14 (D.S.C. Mar. 31, 2005); see also Storms v. Goodyear Tire & Rubber Co., 775 F.Supp. 862, 867 (D.S.C. 1991) (finding language in the agreement insufficient to form a contract when it is “not couched in mandatory terms and does not contain language that specifically limits the employer's right to demote or terminate [plaintiff] without cause”).

In South Carolina, there is a presumption of at-will employment. Prescott v. Farmer's Tel. Co-Op., Inc., 335 S.C. 330, 516 S.E.2d 923, 927, n.8 (1999). Thus, “in order to survive a Rule 12 motion to dismiss on a claim for breach of contract of employment, a [p]laintiff must ‘plead sufficient factual allegations to establish the existence of an employment contract beyond the at-will relationship.'” Perrine v. G4S Secure Solutions (USA), Inc., No. 2:11-cv-1210-RMG, 2011 WL 3563110, at *1 (D.S.C. Aug. 9, 2011) (quoting Amason v. P.K. Management, LLC, No. 3:10-cv-1752-JFA, 2011 WL 1100169, at *6 (D.S.C. Mar. 23, 2011)). In other words, a complaint for breach of contract of employment must “set forth sufficient factual allegations . . . to state a facially plausible claim that the [p]arties entered into a contract with terms of employment that limited the duration of the relationship or the right of termination or both.” Weaver v. John Lucas Tree Expert Co., No. 2:13-cv-01698-PMD, 2013 WL 5587854, at *6 (D.S.C. Oct. 10, 2013). In some instances, an employer may alter an employee's at-will status through mandatory language in a handbook. See Grant v. Mount Vernon Mills, Inc., 370 S.C. 138, 634 S.E.2d 15, 20 (S.C. Ct. App. 2006).

Here, Plaintiff claims that Defendant's employee handbook contains such mandatory language. (Dkt. No. 36 at 4-5.) Specifically, Plaintiff alleges that Defendant's Equal Employment Opportunity (“EEO”) policy and Code of Conduct “altered the at-will relationship between the Plaintiff and Defendant.” (Id. at 5.) Plaintiff's Second Amended Complaint states:

25. Defendant publishes and maintains an Employee Handbook which definitely assures employees of their right to report harassment and bullying, and an anti-retaliation clause.

26. Defendant further states, in its Employee Handbook, that it is an Equal Opportunity employer, and declares in its Equal Employment Opportunity (“EEO”) Policy, that there will be no discrimination as to race, color, gender, age, religion, disability, national origin, or veteran's status. Further, the EEO Policy states that “this nondiscrimination policy applies to applicants as well as

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