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Rush v. Kenneth Rust Enterprises

United States District Court, E.D. North Carolina, Southern Division

February 6, 2015

THOMAS J. RUSH, Plaintiff,
v.
KENNETH RUST ENTERPRISES, d/b/a McDonalds, DOUGLAS HUMPRIES, MICHELLE NOBLES-EVANS, and ADAM LEWIS, Defendants.

ORDER AND MEMORANDUM AND RECOMMENDATION.

JULIE RICHARDS JOHNSTON, District Judge.

This matter is before the court on Plaintiffs application to proceed in forma pauperis under 28 U.S.C. § 1915, which permits an indigent litigant to commence suit in federal court without paying administration costs associated with such proceedings. [DE-l]. Plaintiffhas demonstrated appropriate evidence of inability to pay the required court costs, and the application is allowed. However, after reviewing the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), it is recommended that any Equal Pay Act claim be dismissed, that Defendants Douglas Humpries, Michelle Nobles-Evans, and Adam Lewis be dismissed, and that Plaintiffs Title VII and Age Discrimination Employment Act claim, to the extent asserted, against Defendant Kenneth Rust Enterprises, d/b/a McDonalds be allowed to proceed at this time.

I. STANDARD OF REVIEW

After allowing an application to proceed in forma pauperis, the court must still review the allegations of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B), and shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are so nutty, ' delusional, ' or wholly fanciful' as to be simply unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.

In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiffs allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word frivolous' is inherently elastic and not susceptible to categorical definition.... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).

Alternatively, in order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

II. ANALYSIS

Plaintiff alleges claims against his former employer Kenneth Rust Enterprises, d/b/a McDonalds, a district supervisor Douglas Humpries, and two store managers Michelle Nobles-Evans and Adam Lewis. [DE-1-2] at 1, 3. Plaintiff alleges that he was discriminated against on the basis of his race and age, wrongfully denied a promotion and equal pay, and ultimately terminated. Id. at 2-4. Plaintiff seeks back pay, id. at 5, and $18 million in damages, [DE-1-1] at 3. Plaintiff asserts that his claims are pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). However, Plaintiff may also seek to assert claims under the Equal Pay Act of 1963 ("Equal Pay Act") and the Age Discrimination in Employment Act ("ADEA").[1] Plaintiff filed a charge with the Equal Employment Opportunity Commission and received a right to sue letter on October 31, 2014. [DE-1-3].

Plaintiffs claims under Title VII, and any ADEA claim to the extent asserted, against Defendants Humpries, Noble-Evans, and Lewis, must be dismissed because these Defendants are supervisors. "It is well settled... that supervisors are not liable in their individual capacities under either Title VII or the ADEA." Darden v. Cumberland Cmty. Action Program, Inc., No. 5:13-CV-311-F, 2013 WL 5494080, at *2 (E.D. N.C. Oct. 2, 2013) (unpublished) (citing Lissau v. S. FoodServs., Inc., 159 F.3d 177, 181 (4th Cir.1998) ("[Supervisors are not liable in their individual capacities for Title VII violations."); McNeal v. Montgomery Cnty., Md., 307 F.Appx. 766, 775 n.6 (4th Cir. 2009) ("[O]nly an employer, not an individual employee, may be held liable under the A.D. EA.")).

To the extent Plaintiff attempts to assert a claim under the Equal Pay Act, it must be dismissed for failure to state a claim. "The Equal Pay Act provides that employers cannot pay employees of opposite sexes disparate pay for equal work." Ramirez-Rodriguez v. Wal-Mart Stores E., L.P., No. 5:12-CV-585, 2013 WL 3356566, at *2 (E.D. N.C. July 3, 2013) (unpublished) (citing 29 U.S.C. § 206(d)). "To establish a prima facie case under the Equal Pay Act, Plaintiff must demonstrate that he received lower pay than a female employee performing substantially equal work under similar conditions." Id. (citing Strag v. Bd. ofTrustees, 55 F.3d 943, 948 (4th Cir. 1995)). Plaintiff alleges that a male counterpart received raises while Plaintiff did not. [DE-1-1] at 2. This allegation is insufficient to state a claim under the Equal Pay Act.

Accordingly, it is recommended that any Equal Pay Act claim be dismissed, that Defendants Douglas Humpries, Michelle Nobles-Evans, and Adam Lewis be dismissed, and that Plaintiffs Title VII and any ADEA claim against Defendant Kenneth Rust Enterprises, d/b/a McDonalds be allowed to proceed at this time.

III. CONCLUSION

Fore the reasons stated herein, it is ORDERED that Plaintiffs application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that any Equal Pay Act claim be DISMISSED, that Defendants Douglas Humpries, Michelle Nobles-Evans, and Adam Lewis be DISMISSED, and that Plaintiffs Title VII and any ADEA claim against Defendant Kenneth Rust Enterprises, d/b/a McDonalds be ALLOWED TO PROCEED at this time.

SO ORDERED AND SUBMITTED.

NOTICE

Attached to this notice is a memorandum and recommendation of a United States Magistrate Judge in this action that has been entered on the records of this court pursuant to 28 U.S.C. §636(b)(1)(c), Fed.R.Civ.P. 72(b)(2)-(3), and Local Civil Rule 72.4(b), EDNC. Rule 72(b) provides as follows:

(2) Objections. Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy. Unless the district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient.
(3) Resolving Objections . The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions.

You are hereby notified that unless written objections are timely filed in accordance with this rule, you will have waived the right to further consideration of these issues by the district judge, and an appropriate order based on the memorandum and recommendation will be entered. Furthermore, failure to file timely objections to the findings and recommendation set forth by the magistrate judge may result in a waiver of the right to appeal from a judgment of this court based on such findings and recommendations. See Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).


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