Colleton v. Charleston Water System (Lawyers Weekly No. 002-066-16, 17 pp.) (Richard Mark Gergel, J.) 2:15-cv-02321; D.S.C.
Holding: When the defendant-manager allegedly told a supervisor that plaintiff was an “incompetent nigga,” this was defamatory per se and could show actual malice; however, the complaint includes no allegations of time or place. Defendants cannot be expected to defend against an allegation that the manager defamed plaintiff by making a statement heard by unknown persons at an unknown place at an unknown time.
In addition, since physical harm likely is not required to state a claim for negligent supervision, the Workers’ Compensation Act’s exclusivity provision does not bar plaintiff’s claim of negligent supervision based on defamation.
The court dismisses the defamation claim against the manager without prejudice and with leave to amend the complaint to re-allege the claim. Otherwise, the claims against the individual defendants are dismissed because of plaintiff’s failure to argue against dismissal. Plaintiff also has leave to amend his complaint to re-allege his defamation and negligent supervision claims against the defendant-employer. Plaintiff’s Title VII retaliation claim against the employer is dismissed.
In his EEOC charge, plaintiff checked the boxes for race and age discrimination, but not retaliation. His narrative makes no claim of retaliation. Therefore, the court lacks subject matter jurisdiction over plaintiff’s Title VII retaliation claim against the employer.
Under South Carolina law, an employer is vicariously liable for any defamatory statements made by an agent acting within the scope of his employment. Although defendants deny that the manager made any such statement, in claiming qualified privilege, they appear to concede that, if the statement was made, it was made within the scope of the manager’s employment. Therefore, the court dismisses plaintiff’s defamation claim against the employer without prejudice and with leave to amend the complaint to re-allege the claim.
Because physical harm likely is not required to state a claim for negligent supervision, the South Carolina workers’ compensation law’s exclusivity provision, S.C. Code Ann. § 42-1-540, does not necessarily preempt plaintiff’s negligent supervision claim. Section 42-1-540 preempts claims regarding workplace physical injury, including physical injury resulting from negligent supervision. It also preempts emotional distress resulting from workplace physical injury and workplace intentional infliction of emotional distress. But it does not preempt workplace defamation claims.
However, the complaint makes only a formulaic recitation of the elements of a cause of action for negligent supervision of activities outside the scope of employment. The court dismisses the negligent supervision claim without prejudice and with leave to amend to re-allege the claim.
Motion granted in part and denied in part.