El-Reedy v. Abacus Technology Corp.

273 F. Supp. 3d 596
CourtDistrict Court, D. South Carolina
DecidedAugust 7, 2017
DocketC/A No.: 2:17-cv-0444 DCN
StatusPublished
Cited by5 cases

This text of 273 F. Supp. 3d 596 (El-Reedy v. Abacus Technology Corp.) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
El-Reedy v. Abacus Technology Corp., 273 F. Supp. 3d 596 (D.S.C. 2017).

Opinion

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.

[599]*599A 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 plaintiffs 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

Plaintiffs 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, 2016, and informed Salient of the hire. See Complaint, ¶¶ 15 <& 17. During her employment, Abacus was responsible for Plaintiffs 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 [600]*600Management, 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 Plaintiffs 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 (4th 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 (4th 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 (4th 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.

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Bluebook (online)
273 F. Supp. 3d 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/el-reedy-v-abacus-technology-corp-scd-2017.