United States District Court, M.D. North Carolina
CONNIE DEAN BELCHER, Plaintiff: NORMAN B. SMITH, SMITH JAMES
ROWLETT & COHEN, GREENSBORO, NC.
W.C. ENGLISH INC., Defendant: SANDRA WOODS MITTERLING, LEAD
ATTORNEY, RAGSDALE LIGGETT, PLLC, RALEIGH, NC.
OPINION AND ORDER
C. Biggs, United States District Judge.
Connie Dean Belcher (" Mr. Belcher" ) brings this
action against Defendant W.C. English Inc. (" WCE"
), alleging constructive discharge based on age, in violation
of the Age Discrimination in Employment Act of 1967 ("
ADEA" ), 29 U.S.C. § § 621-34 (2012). Before
the Court are WCE's Motion for Judgment on the Pleadings
(ECF No. 16) and Motion for Summary Judgment (ECF No. 27);
and Mr. Belcher's Motion for Extension of Time within
Which to File a Response to Motion for Judgment on the
Pleadings (ECF No. 23), along with his three motions related
to the filing of an Amended Complaint: (1) Plaintiff's
Motion that His Amended Complaint Be Substituted for His
Original Complaint (ECF No. 19); (2) Plaintiff's
Motion for Extension of Time within Which to File a Motion to
Substitute Amended Complaint for Original Complaint (ECF No.
23); and (3) Plaintiff's Motion for Amendment to Order
Approving Joint Rule 26(f) Report for Extension of Time for
Amending Complaint (ECF No. 23). For the reasons below,
the Court denies each of Mr. Belcher's motions and grants
summary judgment in favor of WCE.
moved for judgment on the pleadings and for summary judgment,
both of which require the Court to view the facts in the
light most favorable to the non-moving party. See Volvo
Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d
581, 587 n.3 (4th Cir. 2004) (judgment on the pleadings);
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003) (summary judgment). The facts in the light most
favorable to Mr. Belcher are as follows:
April 2012, WCE, a construction company, hired Mr. Belcher as
a single-axle truck driver for a highway and bridge
construction project. (Def.'s Mem. 2, ECF No. 28; Dowdy
Aff. ¶ 4, ECF No. 28-1.) Mr. Belcher was sixty-four
years old at the time (Compl. at 2-3, ECF No. 2), had
extensive experience driving heavy trucks, and held a
commercial driver's license (Def.'s Admissions ¶
4, ECF No. 29-1). Prior to hiring Mr. Belcher, WCE informed
him that the project site had no company-owned dump trucks
available at the time. (Garbee Aff. ¶ 6, ECF No. 28-2.)
Mr. Belcher nonetheless accepted the job, and while waiting
for a dump truck to become available, he was assigned to
manual labor tasks, which included digging ditches,
installing silt fences, and performing sediment control.
(Belcher Dep. 16:19-21, 25:8-10, ECF No. 28-3; Garbee Aff.
¶ 8, ECF No. 28-2.) The physical labor, along with the
intense summer heat and lack of available ice water, was
difficult for him to handle. (Pl.'s Opp'n 3, ECF No.
29.) He repeatedly asked his supervisor when a dump truck
would become available (Garbee Aff. ¶ 14, ECF No. 28-2),
and his supervisor repeatedly assured him that a truck would
arrive the following week. (See Belcher Dep. 90:13-15, ECF
No. 28-3.) In August 2012, after four months of performing
manual labor tasks, Mr. Belcher quit his job. (Dowdy Aff.
¶ 17, ECF No. 28-1; Belcher Dep. 51:1, ECF No. 28-3.) He
then filed a charge of discrimination with the Equal
Employment Opportunity Commission (" EEOC" ), which
issued a final agency decision finding no discrimination and
informing Mr. Belcher of his right to file suit in federal
court. (EEOC Dismissal, ECF No. 2-1.)
2014, Mr. Belcher filed this lawsuit, pro se,
alleging that he " had to qui[t]" his job at WCE
when the working conditions " got to be to[o] much"
and he " couldn't do it anymore" at sixty-four
years old. (See Compl. 2-3, ECF No. 2.) After filing the
Complaint, and after WCE filed its Answer, Mr. Belcher
retained counsel. The parties then filed a Joint Rule 26(f)
Report, proposing a deadline of September 30, 2014, for
" [a]ll motions for leave to amend the pleadings."
¶ 6(a), ECF No. 14.) The Court entered a scheduling
order that set September 30th as the due date for amended
pleadings. Neither party sought leave to amend the pleadings
by the deadline. On October 8, 2014, WCE filed a Motion for
Judgment on the Pleadings. Nearly one month later, on
November 5, 2014, Mr. Belcher filed an Amended Complaint and
a response in opposition to WCE's Motion for Judgment on
the Pleadings, although the deadline for responding to
WCE's motion had expired two days previously. (ECF No. 16
(setting response deadline for November 3, 2014); Pl.'s
Mem. 5-6, ECF No. 24.) On March 2, 2015, after the close of
discovery, WCE filed a Motion for Summary Judgment, which
includes a request for attorney's fees and costs.
PLAINTIFF'S MOTIONS RELATED TO AMENDED COMPLAINT
preliminary matter, the Court must decide whether to allow
Mr. Belcher's Amended Complaint. In addition to filing
his Amended Complaint on November 5, 2014, Mr. Belcher filed
a Motion that His Amended Complaint Be Substituted for His
Original Complaint on that same date. This was more than one
month after the September 30th deadline set in the scheduling
order for amending the pleadings. Mr. Belcher did not obtain
leave of court or consent of the opposing party to file his
Amended Complaint (Def.'s Obj'n ¶ 16, ECF No.
21), as required by Rule 15(a)(2) of the Federal Rules of
Civil Procedure. WCE objected to both the Amended Complaint
and to Mr. Belcher's Motion that His Amended Complaint Be
Substituted for His Original Complaint. (ECF No. 21.) In
response, Mr. Belcher filed two additional motions: (1) a
Motion for Amendment to Order Approving Joint Rule 26(f)
Report for Extension of Time for Amending
Complaint and (2) a Motion for Extension of Time
within Which to File a Motion to Substitute Amended Complaint
for Original Complaint. (ECF No. 23.)
as in this case, a court has entered a scheduling order
setting a deadline for amending the pleadings--and that
deadline has passed--the party seeking to amend its pleading
must clear two hurdles. First, the party must demonstrate
" good cause" under Rule 16(b)(4) of the Federal
Rules of Civil Procedure to modify the scheduling order. See
Nourison Rug Corp. v. Parvizian,535 F.3d 295, 298
(4th Cir. 2008). Second, the party must obtain either leave
of court or consent of the opposing party under Rule 15(a)(2)
to amend the pleading. See Cook v. Howard, 484
Fed.Appx. 805, 814-15 (4th Cir. 2012) (per curiam). Though
none of the motions ...