United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOE L. WEBSTER, Magistrate Judge.
This matter is before the Court on Defendants Winston-Salem Police Department ("WSPD"), Sgt. Tony Perkins, Police Chief Scott Cunningham, and Investigator Cliff Cranford's Motion to Dismiss. (Docket Entry 14.) Also before the Court is a motion to dismiss claims against Defendants Perkins, Cunningham, and Cranford in their individual capacities (Docket Entry 8) and Plaintiff William Ray Fisher's Motion to Amend the Complaint. (Docket Entry 23.) All matters are ripe for disposition. For the reasons that follow, the Court recommends that Defendants' motions to dismiss be granted and Plaintiff's motion to amend be denied.
Plaintiff, a fifty-six year old man, applied to be a police officer with the City of Winston-Salem in August 2009. (Compl. ¶ III, Docket Entry 1.) Plaintiff alleges that his application was "blocked" as a result of age discrimination. ( Id. ) Specifically, Plaintiff alleges that "younger and less qualified applicants" with "no police experience" were accepted, while his "twenty plus years" of law enforcement experience were "belittled" by Defendant Sgt. Tony Perkins. ( Id. ) Consequently, Plaintiff was denied a spot in the WSPD Basic Law Enforcement Training ("BLET") Recruitment Class. ( Id. ) Plaintiff subsequently filed a Charge of Discrimination under the Age Discrimination in Employment Act ("ADEA") with the Equal Employment Opportunity Commission, which issued a Determination on February 9, 2012 and a Notice of Suit Rights on May 21, 2012. (EEOC Determination, Ex. 2, Docket Entry 1-2 and Notice of Suit Rights, Ex. 1, Docket Entry 1-1.) Plaintiff filed a pro se lawsuit on August 14, 2012, in which he named as Defendants the WSPD and, in their individual capacities, Cunningham, Cranford, and Perkins. (Compl. ¶ II.) Plaintiff did not include the City of Winston-Salem as a defendant and now seeks to amend the original complaint to name the City of Winston-Salem as a defendant. (Pl.'s Mot. to Am., Docket Entry 23.)
Defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) on October 5, 2012. (Docket Entry 14.) Defendants assert that "Plaintiff has not sufficiently alleged he was qualified to participate as a Winston-Salem Police recruit" or that "he was denied entry into a recruit class due to his age." ( Id. at 2.) Defendants also request this court dismiss the Plaintiff's Complaint pursuant to Rules 12(b)(2), (4), and (5), as WSPD is not a legal entity or person over which this Court has jurisdiction or that is capable of receiving a summons, and Plaintiff failed to serve the City of Winston-Salem in accordance with Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4(j)(5) of the North Carolina Rules of Civil Procedure. ( Id. at 1.)
Defendants Perkins, Cunningham and Cranford filed a motion to dismiss in their individual capacities on September 21, 2012 pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). (Docket Entry 8.) These defendants argue that they should be dismissed from this lawsuit because individual employees cannot be held liable under the ADEA and because they were not listed as respondents in the Plaintiff's EEOC charge. (Defs.' Br. at 2-3, Docket Entry 9.) In his motion to amend, Plaintiff seeks to amend the original complaint to name the City of Winston-Salem as a defendant. (Pl.'s Mot. to Am., Docket Entry 23.) Defendants oppose the amendment, asserting futility where Plaintiff's amended complaint restates the same facts alleged in the original Complaint and will not withstand a motion to dismiss. ( See Docket Entries 24 and 25.)
A. Standard of Review
Rule 15(a) of the Federal Rules of Civil Procedure provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). It further states that "[t]he court should freely give leave when justice so requires." Id. Granting a motion to amend a complaint is within the discretion of the Court, "but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion." Foman v. Davis, 371 U.S. 178, 182 (1962). The Fourth Circuit has stated that "[a] district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile." Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010). An amended complaint is futile if it cannot withstand a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6); therefore, the Court may deny the motion. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995) (addition of negligence claim futile because case would not survive motion to dismiss). Thus, the Court will determine if Plaintiffs amended complaint, which solely adds another named defendant, can withstand a motion to dismiss.
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A complaint that does not "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face'" must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct." Id. ; see also Simmons & United Mork & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (internal quotation omitted) ("On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face."). The test does not require the complaint to have "detailed factual allegations, '... [but rather] plead sufficient facts to allow a court, drawing on judicial experience and common sense, ' to infer more than the mere possibility of misconduct.'" Newt Chevrolet, Ltd. v. Consumera airs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678-79.) Pro se complaints are to be liberally construed in assessing sufficiency under the Federal Rules of Civil Procedure. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this liberal construction, "generosity is not a fantasy, " and the court is not expected to plead a plaintiff's claim for him. Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998). "Liberal construction is particularly appropriate when a pro se complaint raises civil rights issues." Moody-Williams v. LipoScience, 953 F.Supp.2d 677, 680 (E.D. N.C. 2013) (emphasis in original); see also Brown v. NC. Dept. of Corr., 612 F.3d 720, 722 (4th Cir. 2010).
A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with the pleading requirements of the ADEA. The ADEA forbids an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In Hazen Paper Co. v. Biggins, the Supreme Court explained that where a plaintiff claims age-related "disparate treatment" (i.e. intentional discrimination "because of age"), the plaintiff must prove that age "actually motivated the employer's decision." 507 U.S. 604, 610 (1993); see also Kentucky Retirement Systems v. EEOC, 554 U.S. 135, 141 (2008). The court in Hazen Paper also noted that "[t]he employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment" because of age, or "the employer may have been motivated by [age] on an ad hoc, informal basis." Hazen Paper, 507 U.S. at 610. Nonetheless, a plaintiff alleging disparate treatment cannot succeed unless the employee's age "actually played a role in that process and had a determinative influence on the outcome." Id. (emphasis added).
Here, Plaintiff alleges that the discrimination against him was "deliberate and intentional, " as Defendant Perkins "blocked" his employment with the police department by moving "younger and less qualified" applicants before him. (Compl. ¶ III.) Similarly, Plaintiff states that Defendant Cranford rated him "on a lower level" and judged him "less qualified" than younger applicants who had no police or college experience. Id.
These statements however, amount to mere "legal conclusions" that fail to satisfy the Tivombly-Iqbal standard of federal pleading. nimbly, 550 U.S. at 555. Plaintiff proffers no information in the Complaint as to how the WSPD makes its determinations, rendering it impossible for a court to determine whether or not he has alleged that he was qualified. Indeed, Plaintiff only submitted the WSPD's recruiting unit's scale rating system as an attachment to his response to Defendants' motion to dismiss. (Pl.'s Resp. at 12-13, Docket Entry 17.) This document is outside the pleadings and is not appropriate for consideration on the pending Rule 12(b)(6) motion. Curington v. UMG Recordings, Inc., 1:10-CV-890, 2011 WL ...