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Belcher v. W.C. English, Inc.

United States District Court, M.D. North Carolina

July 27, 2015

CONNIE DEAN BELCHER, Plaintiff,
v.
W.C. ENGLISH INC., Defendant

Page 545

          For CONNIE DEAN BELCHER, Plaintiff: NORMAN B. SMITH, SMITH JAMES ROWLETT & COHEN, GREENSBORO, NC.

         For W.C. ENGLISH INC., Defendant: SANDRA WOODS MITTERLING, LEAD ATTORNEY, RAGSDALE LIGGETT, PLLC, RALEIGH, NC.

Page 546

         MEMORANDUM OPINION AND ORDER

         Loretta C. Biggs, United States District Judge.

         Plaintiff 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

Page 547

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).[1] For the reasons below, the Court denies each of Mr. Belcher's motions and grants summary judgment in favor of WCE.

         I. BACKGROUND

         WCE has 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:

         In 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.)

         In May 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." (Joint Report

Page 548

¶ 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.

         II. PLAINTIFF'S MOTIONS RELATED TO AMENDED COMPLAINT

         As a 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[2] and (2) a Motion for Extension of Time within Which to File a Motion to Substitute Amended Complaint for Original Complaint. (ECF No. 23.)

         Where, 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 ...


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