Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fisher v. City of Winston-Salem

United States District Court, M.D. North Carolina

February 4, 2015



JAMES A. BEATY, Jr., District Judge.

This matter is before the Court on the Motion to Dismiss [Doc. #37] of Defendant City of Winston-Salem ("Defendant"). Plaintiff William Ray Fisher ("Plaintiff") filed his Amended Complaint [Doc. #32] on July 8, 2014, after this Court gave Plaintiff leave to cure various deficiencies in his Original Complaint. Defendant filed the present Motion to Dismiss the Amended Complaint on August 15, 2014. The Motion is fully briefed and ripe for adjudication. For the reasons discussed below, the Court will deny in part and grant in part Defendant's Motion to Dismiss.


Plaintiff applied for a police officer position with the Winston-Salem Police Department ("WSPD") in 2009, when he was 56 or 65[1] years old. He was not selected for the position, nor did he advance beyond preliminary application stages. Plaintiff alleged that the WSPD discriminated against him in the hiring process due to Plaintiff's age. Specifically, Plaintiff contended that the WSPD hired applicants who were less-qualified and younger than Plaintiff. In his Original Complaint [Doc. #1], Plaintiff asserted claims of age discrimination and retaliation in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. ยง 621, et seq. ("ADEA"). Plaintiff named the WSPD and multiple individual WSPD officers as defendants in his Original Complaint. Later, Plaintiff filed a Motion to Amend his Complaint [Doc. #23] to substitute the City of Winston-Salem as the proper Defendant in this case. Meanwhile, the individual defendants and the WSPD brought Motions to Dismiss [Docs. #8, #14]. In a March 28, 2014 Memorandum Opinion and Recommendation [Doc. #26], the Magistrate Judge recommended denying Plaintiff's motion and granting the then-named Defendants' motions.

In a June 27, 2014 Memorandum Opinion and Order [Doc. #31], this Court adopted in part the Magistrate Judge's recommendation. This Court granted in part Defendants' motions, but allowed Plaintiff an opportunity to file an Amended Complaint curing deficiencies noted by the Court. The Court granted Plaintiff's Motion to Amend his Original Complaint to name the City of Winston-Salem as a proper Defendant in this matter, and the Court further allowed Plaintiff an opportunity to correct certain shortcomings in the allegations of his Original Complaint. The Court highlighted specific allegations Plaintiff made in his Response [Doc. #17] to the WSPD's initial Motion to Dismiss which the Court viewed as being potentially beneficial to enabling Plaintiff's claims to survive a Rule 12(b)(6) Motion to Dismiss, but those specific details in Plaintiff's Response itself could not be considered in evaluating the sufficiency of Plaintiff's Original Complaint on a motion to dismiss.

Thus, the Court allowed Plaintiff to file an Amended Complaint containing information he supplied in his Response to the WSPD's initial motion to dismiss so as to cure the identified deficiencies of the Original Complaint. Plaintiff accordingly filed his Amended Complaint on July 8, 2014. On August 15, 2014, Defendant again moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.


In evaluating a motion to dismiss under Rule 12(b)(6), the Fourth Circuit instructs that "[w]e take the facts in the light most favorable to the plaintiff, ' but we need not accept the legal conclusions drawn from the facts.'" Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 776 (4th Cir. 2013) (quoting E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000)). "Legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts, " and a court does not consider "unwarranted inferences, unreasonable conclusions, or arguments" when evaluating the legal sufficiency of a complaint on a 12(b)(6) motion. Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009). Additionally, in reviewing a motion to dismiss, the Court may consider documents attached to the complaint, as long as those documents are integral to the complaint and authentic. Bala v. Va. Dept. of Conservation and Recreation, 532 F.App'x 332, 334 (4th Cir. 2013) (quoting Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

"[T]he complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). Such "facial plausibility" is satisfied when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of "entitlement to relief."'" Id . (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (citations omitted). Thus, dismissal of a complaint is proper where a plaintiff's factual allegations fail to "produce an inference of liability strong enough to nudge the plaintiff's claims across the line from conceivable to plausible.'" Nemet Chevrolet, 591 F.3d at 256 (quoting Iqbal, 556 U.S. at 683, 129 S.Ct. 1937).

When evaluating a pro se plaintiff's pleadings, a court should liberally construe the plaintiff's allegations and hold the pro se plaintiff "to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 2081 (2007) (internal quotations omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)). Nonetheless, the Court "may not be an advocate for a pro se plaintiff and must hold the complaint to certain minimal pleading standards." Hongan Lai v. Dep't of Justice, No. 5:13cv00033, 2013 WL 3923506, at *3 (W.D. Va. July 29, 2013) (citing Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985); Switzer v. Town of Stanley, No. 5:10cv00128, 2010 WL 4961912, at *2-3 (W.D. Va. Dec. 1, 2010); Holsey v. Collins, 90 F.R.D. 122, 128 (D.Md. 1981)).


In challenging Plaintiff's Amended Complaint, Defendant asserts that Plaintiff has failed to state a claim for (1) age discrimination, (2) retaliation, and (3) intentional infliction of emotional suffering. In assessing whether Plaintiff has sufficiently pled each of these claims, the Court takes particular note of its previous instructions to Plaintiff in filing an Amended Complaint.

A. Plaintiff's Discrimination Claim

In dismissing Plaintiff's Original Complaint, the Court highlighted Plaintiff's need to sufficiently allege the qualifications of the desired position and that he met those qualifications. In its present Motion to Dismiss, Defendant in essence argues that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.