United States District Court, Eastern District of North Carolina, Western Division
W. Earl Brit Senior U.S. District Judge
This matter comes before the court on defendants Eagle Systems and Services, Inc.’s (“Eagle”) and Data Solutions & Technology (DST), Inc.’s (“DST”) motions to dismiss. (DE ## 10, 18.) Plaintiff filed a response to each motion, (DE ## 16, 20), to which defendants replied, (DE ## 17, 22).
Plaintiff Sharel Farmer (“plaintiff”) commenced this action on 15 July 2014, alleging retaliation under the False Claims Act, breach of non-delegable duty, negligence, and civil conspiracy by the defendants. (Compl., DE # 1.) Plaintiff amended his complaint the following day, asserting the same claims. (Am. Compl., DE # 4.)
Defendants are federal contractors that jointly operate an army supply warehouse in Fort Bragg, North Carolina. (Am. Compl., DE # 4, ¶ 4.) Plaintiff worked as an order filler in the warehouse and was jointly employed by defendants. (Id. ¶ 5.) On or about 2 August 2012, plaintiff witnessed Eagle and DST employees Keith Armstrong (“Armstrong”) and Angela Calloway (“Calloway”) steal night vision goggles from the warehouse and distribute them to another person for personal use. (Id. ¶¶ 8, 10.) The goggles “were federal government property that had been entrusted to the defendants to manage and distribute in accordance with federal law, rules, regulations, and contracts.” (Id. ¶ 8.) Armstrong was a warehouse supervisor and Calloway was a stock clerk. (Id. ¶ 10.)
Roy Fischel (“Fischel”), a project manager for Eagle, required plaintiff to file a written statement describing the theft. (Id. ¶¶ 9-10.) Immediately after plaintiff provided the report, Fischel disclosed the details of the report and the identity of plaintiff to Armstrong and DST. (Id. ¶ 11.) Plaintiff’s supervisors and co-workers responded swiftly to his allegation of theft with “numerous incidents of retaliation, ridicule, threats, intimidation and harassment.” (Id. ¶ 12.)
The day following his report, Armstrong moved plaintiff’s workstation from its place among the workstations of other employees to an isolated position in the entrance walkway. (Id. ¶ 13.) Several times each day, “Armstrong would come into plaintiff’s work area and stare at [him] in a threatening manner for minutes . . . .” (Id. ¶ 14.) Plaintiff felt unsafe in this working environment, so he reported the harassment to human resources and requested that he be moved to a work area with a different supervisor. (Id.)
On or about the third week of August 2012, plaintiff was moved to a work area under the supervision of DST operations manager Larry Bullock (“Bullock”), a friend of Armstrong’s. (Id. ¶¶ 15-16.) Bullock “verbally chastised plaintiff” for reporting the theft, told plaintiff he would be watching him, forced plaintiff to work in an isolated location, and repeatedly stared at plaintiff in a threatening manner. (Id. ¶¶ 16-17.) Additionally, Bullock issued plaintiff over ten frivolous disciplinary write-ups, all of which McAlpine,  a project director, dismissed. (Id. ¶¶ 19-20.) Plaintiff requested a copy of the write-ups from McAlpine, who responded, “I can tell that you think you are smart, college boy. I don’t have a copy and if I did I wouldn’t give them to you, [sic] I know what you [sic] trying to do.” (Id. ¶ 28.) Randall Hyde (“Hyde”), also a DST supervisor, threatened to have plaintiff’s car towed from the defendants’ parking lot for no apparent reason. (Id. ¶ 18.)
Plaintiff reported the harassment to McAlpine, but his working environment remained hostile. (Id. ¶¶ 19-35.) Bullock continued to harass plaintiff by publicly accusing him of drug use, sending plaintiff home for refusing to “pick up trash all day in below freezing weather, ” and issuing baseless disciplinary write-ups. (Id. ¶¶ 20-27.) Plaintiff reported the continuing harassment to Eagle human resources managers Liz Day and Mary Connelly, who, rather than stopping the harassment, “condoned, maintained and ratified [it].” (Id. ¶ 29.)
Further, while plaintiff was on pre-approved vacation leave on 5 April 2013, he “started getting phone calls from work stating that he was supposed to be at work.” (Id. ¶ 30.) Upon returning to work the following Monday, a human resources employee told plaintiff that he should have been at work on 5 April 2013, and stated that her office would “find something to stick on [him] and put in [his] file.” (Id. ¶ 31.)
Plaintiff again voiced his concerns to McAlpine, who insinuated that plaintiff had brought the harassment upon himself. (Id. ¶ 33.) The harassment continued unabated, with Bullock and Hyde maintaining plaintiff’s working space in an isolated area and frequently staring at plaintiff in such an aggressive manner that plaintiff feared for his safety. (Id. ¶ 34.) The daily stress, depression, humiliation, and embarrassment “became so unbearable that plaintiff was constructively discharged from his employment on [15 April 2013].” (Id. ¶ 35.).
II. STANDARD OF REVIEW
Defendants move to dismiss plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This rule permits a court to dismiss an action for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While fraud claims under the False Claims Act (“FCA” or “Act”) are subject to a higher pleading standard under Rule 9(b), Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783-84 (4th Cir. 1999), claims brought under the anti-retaliation provision of the Act need only meet Rule 8's pleading standard in order to survive a 12(b)(6) motion, United States ex rel. Elms v. Accenture, LLP, 341 F. App’x 869, 873 (4th Cir. 2009) (unpublished).
A 12(b)(6) motion should only be granted if “it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, a complaint that proffers only “a formulaic recitation of the elements of a cause of action” with no “further factual enhancement” is insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007). To survive dismissal, a party must come forward with “enough facts to state a claim to relief that is plausible on its face.” Id. at 548. The plausibility standard is met “when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The court must accept as true all ...