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Starnes v. Veeder-Root

United States District Court, M.D. North Carolina

March 7, 2017



          OSTEEN, JR., District Judge

         Presently before this court is a Motion to Dismiss or in the Alternative Motion for Summary Judgment filed by Defendant Gilbarco Veeder-Root (“Gilbarco”). (Doc. 15).) Pro se Plaintiff De'Andre Starnes (“Plaintiff”) opposes the motion, (Docs. 21, 22, 23, 24), and Defendant has filed a reply (Doc. 25). Plaintiff has filed a surreply.[1] (Doc. 30.) Plaintiff has also filed a Motion to Strike Defendant's Joint Affidavit (Doc. 26), which was filed as an attachment to Defendant's motion to dismiss (Doc. 15-1).

         Plaintiff seeks leave to file a Third Amended Complaint and add Teamsters Union, Local 391 (“Teamsters Union”) as a party defendant. (Doc. 27.) In seeking to amend, Plaintiff restates the Second Amended Complaint in its entirety, proposes to file against Teamsters Union the same hybrid § 301/fair representation claim that is pending against Gilbarco, and seeks to add a claim as to both Defendants under 42 U.S.C. §§ 1985 and 1986. (Doc. 27-1.) Defendant has in turn responded in opposition to Plaintiff's motion for leave to amend, claiming that allowing Plaintiff leave to amend his complaint will not cure any defects, will be futile, and was made with undue delay. (Doc. 29.)

         These matters are now ripe for adjudication. The procedural posture of this case, that is, with a pending motion to dismiss as well as a motion to amend that is objected to on the ground of futility, somewhat complicates this matter. The motion to dismiss encompasses similar issues to those raised in the objection to the motion to amend. In the interests of justice, judicial economy, and in an effort to address the issues in a coherent manner, this court finds that it is appropriate to address the motion to dismiss and the motion to amend in this Memorandum Opinion and Order.

         For the reasons stated herein, this court finds Plaintiff's pending claims deficient and that such deficiencies are not resolved by the proposed amendment. This court finds that re-pleading the deficient hybrid claim to include Teamsters Union would be futile and will therefore deny Plaintiff's request for leave to amend as to those claims. Further, this court finds Plaintiff's additional claims under §§ 1985 and 1986 are deficient and that allowing the motion to amend as to these claims would also be futile. Therefore, this court will deny Plaintiff's request for leave to amend, grant Defendant's motion to dismiss or in the alternative motion for summary judgment, and will deny Plaintiff's motion to strike.


         Pursuant to Fed.R.Civ.P. 12(d), courts have discretion to convert a Rule 12(b)(6) motion into one for summary judgment. Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 996 (4th Cir. 1997). A motion to dismiss pursuant to Rule 12(b)(6) is not converted into a motion for summary judgment by the mere submission or service of extraneous materials. Id. (considering issue in context of voluntary dismissal under Federal Rule of Civil Procedure 41(a)). However, if on a Rule 12(b)(6) motion, “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). If the court opts to convert the motion, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); see Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (stating the opposing party has the right to file counter affidavits or pursue reasonable discovery). Generally, parties are on notice of a potential Rule 12(d) conversion if they are aware that materials outside the pleadings are before the court. Gay, 761 F.2d at 177.

         Here, both parties were on notice of the potential conversion. Gilbarco's motion was one for summary judgment in the alternative (Doc. 15), and Gilbarco submitted a joint affidavit and various exhibits in support of its motion (Docs. 15-1 through 15-19). Plaintiff's responsive pleadings to Gilbarco's motion was captioned as an opposition to the motion to dismiss or in the alternative the motion for summary judgment (Docs. 23, 24), and Plaintiff likewise submitted material outside the pleadings, including a counter affidavit (Doc.24-2).[2]

         Under similar circumstances, the Fourth Circuit concluded that on the basis of the plaintiff's own actions it appeared that the plaintiff had actual notice that the motion could be disposed of as one for summary judgment. Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998) (“The district court, while it clearly has an obligation to notify parties regarding any court-instituted changes in the pending proceedings, does not have an obligation to notify the parties of the obvious.”). This is particularly true when plaintiffs and defendants refer to exhibits and affidavits in support of their arguments, as is the case here. See Tsai v. Md. Aviation, 306 F. App'x 1, 3-5 (4th Cir. 2008) (unpublished per curiam) (finding case before it distinguishable from Finley Lines and facts in accord with Laughlin) (“[The plaintiff] cannot plausibly argue that he lacked notice that [the defendant] was moving for summary judgment, given that he acknowledged as much in the title of his responsive pleading and even put additional evidence before the court of his own volition.”).

         Plaintiff has not objected to Gilbarco's motion in the alternative and has referenced it in his own pleadings and submitted a counter affidavit in support of his response. Nor has Plaintiff sought relief under Fed.R.Civ.P. 56(d).[3] As a result, this court finds the issues before the court may be decided based upon the pleadings and affidavits submitted. See Bullock v. United States, 176 F.Supp.3d 517, 522-23 (M.D. N.C. 2016).

         Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates that no genuine issue of material fact exists, thus entitling the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of initially demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the moving party has met that burden, then the nonmoving party must persuade the court that a genuine issue remains for trial. This requires “more than simply show[ing] that there is some metaphysical doubt as to the material facts”; the “nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted) (quoting Fed.R.Civ.P. 56(e)). In considering a motion for summary judgment, the court is not to weigh the evidence, but rather must determine whether there is a genuine dispute as to a material issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

         Nonetheless, the court must ensure that the facts it considers can be “presented in a form that would be admissible in evidence” and that any affidavits or evidence used to support or oppose a motion are “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” See Fed.R.Civ.P. 56(c)(2), (4).

         The court must view the facts in the light most favorable to the nonmoving party, drawing inferences favorable to that party if such inferences are reasonable. Anderson, 477 U.S. at 255. However, there must be more than a factual dispute, the fact in question must be material, and the dispute must be genuine. Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 248. A dispute is only “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         When a party is proceeding pro se, that party's filings are “to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). However, the principles calling for this “special judicial solicitude” in viewing pro se filings “does not transform the court into an advocate.” United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (internal quotation marks and citation omitted); see also Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). If the non-movant fails to meet his burden, summary judgment must be granted. Celotex, 477 U.S. at 322.


         As an initial matter, Plaintiff filed a motion to strike (Doc. 26) Defendant's joint affidavit of Brad Brown and Katelyn McGahey, which was filed in support of Defendant's motion to dismiss or alternatively for summary judgment (Doc. 15-1). Plaintiff alleges in his motion to strike that Defendant's joint affidavit “does not adhere to Federal guidelines” pursuant to 28 U.S.C. § 1746. (Doc. 26 at 1.) Section 1746 states that:

Wherever . . . any matter is required or permitted to be supported . . . by the sworn . . . affidavit, in writing of the person making the same . . ., such matter may, with like force and effect, be supported . . . by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated . . . .

28 U.S.C. § 1746. Rule 56(c) of the Federal Rules of Civil Procedure provides that a party asserting that there is no genuine dispute as to any material fact must support the assertion by “citing to particular parts of materials in the record, including . . . affidavits or declarations.” Fed.R.Civ.P. 56(c)(1)(A). “An affidavit is a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath.” Lumoa v. Potter, 351 F.Supp.2d 426, 430 (M.D. N.C. 2004) (internal quotation marks omitted). An affidavit for purposes of summary judgment must also “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         Here, Defendant presented an affidavit sworn to by both Katelyn McGahey (“Ms. McGahey”) and Brad Brown (“Mr. Brown”) before a notary public, asserting that the facts are “true of my own knowledge.” (Def.'s Mot. to Dismiss or in the Alternative Mot. for Summ. J. (“Def.'s Mot.”), Attach. 1 (“Joint Aff.”) (Doc. 15-1) at 17, 18.)[4] Because it appears that the Joint Affidavit is based on the affiants' personal knowledge and the affiants affirmed the truth of their statements under oath before a notary public, this court will deny Plaintiff's motion to strike (Doc. 26).


         Viewed in light most favorable to Plaintiff, the evidence shows the following:

         Plaintiff was an hourly employee at Gilbarco. (Joint Aff. (Doc. 15-1) ¶ 8.) Teamsters Union had an agreement (“Labor Contract”) with Gilbarco, and Plaintiff was subject to the terms of that Labor Contract. (Id. ¶ 7, 8.) Teamsters Union was the collective bargaining agent for Plaintiff, although Plaintiff elected not to pay member dues. (Id. ¶ 8.)

         Gilbarco had an attendance policy in effect during Plaintiff's employment. (Id. ¶ 9.) The attendance policy tracked unexcused absences of Gilbarco employees and defined the corresponding discipline. (Second Am. Compl. (“Second Am. Compl.”), Ex. A (“Attendance Policy”) (Doc. 8-1).) Unexcused absences were tracked on a point system, whereby each day of absence resulted in one point or occurrence, and tardiness or leaving work early resulted in a half point. (Id. ¶ 4.2.) After an employee accumulated nine occurrence points, he could be terminated. (Id. ¶ 5.4.6.) Gilbarco also had a call-in system requiring employees to call in at least one hour before the start of their shift to notify Gilbarco of a planned absence and the reason for the absence. (Id. ¶ 6.1.)

         Per policy, each day of an unexcused absence counted as a separate occurrence unless there was an illness or injury causing an absence of three or more consecutive days and the employee presented a verifiable doctor's certification showing diagnosis from the first day of absence, treatment by the third day, and certification that the employee could return to work (known as an “Absent 3”). (Id. ¶ 4.2.2; Joint Aff. (Doc. 15-1) ¶ 15.) Employees could also use three vacation addendum days per calendar year to avoid having an absence count as a point. (Second Am. Compl., Ex. A (Doc. 8-1) ¶ 6.5.) Other vacation days could be applied to absences, but it would not result in an absence being excused or elimination of an occurrence point. (Id.)

         On Plaintiff's first day of employment, he signed an acknowledgment that he received a copy of Gilbarco's Attendance Policy, call-in system, and the Labor Contract. (Joint Aff. (Doc. 15-1) ¶ 24.)

         On January 29, 2015, Plaintiff was issued his first written warning for his accrual of 3.5 points pursuant to the Attendance Policy. (Id. ¶ 27.) On February 23, 2015, Plaintiff received a one-day suspension, which was carried out on February 24, 2015, for his accumulation of 7.5 points pursuant to the Attendance Policy. (Id. ¶ 28.) Plaintiff alleges that at that time he inquired about the use of vacation days to reduce his point total and that in response, Mr. Brown applied Plaintiff's vacation hours to another day when he was absent. (Second Am. Compl. (Doc. 8) ¶ III.1.) Mr. Brown applied the vacation day immediately. (Pl.'s Am. Mem. in Supp. of Opp'n to Def.'s Mot. to Dismiss (“Pl.'s Br.”) (Doc. 24) at 2.) Although February 24, 2015, was a suspension day, it erroneously appears as an unexcused absence on Plaintiff's termination letter. (Pl.'s Br., Response to Joint Aff. (“Pl.'s Aff.”) (Doc. 24-2) ¶ 37B.)

         Following the one-day suspension, Plaintiff called in sick on February 25, 26, and 27; called in a vacation day on March 2; and called on March 3 to report that he would be out until March 9. (Joint Aff. (Doc. 15-1) ¶ 30.) On March 3, 2015, Plaintiff sent an email to Ms. McGahey stating that “I have been out of work since 2/25/15 due to unanticipated medical reason's [sic] and won't return until 3/9/15.” (Pl.'s Br., Ex. A (Doc. 24-1) at 2.) Plaintiff alleges he was out from February 24, 2015 to March 8, 2015, because of medical advice. (Second Am. Compl. (Doc. 8) ¶ III.2.) On March 9, 2015, Plaintiff returned to work. (Joint Aff. (Doc. 15-1) ¶ 31.)

         On March 10, 2015, Plaintiff, Ms. McGahey, Mr. Brown, and Wayne Snow (“Mr. Snow”), the shop steward or union representative, had a meeting regarding Plaintiff's accumulation of occurrence points and additional discipline pursuant to the Attendance Policy. (Id. ¶ 32.) During the March 10, 2015 meeting, Plaintiff was issued the following discipline: a second written warning for the accumulation of 5.5 points; a final written warning for the accumulation of 6.5 points; a one-day suspension for the accumulation of 7.5 points; and a three-day suspension for the accumulation of 8.5 points. (Id. ¶ 33.)

         It was also determined at this meeting that Plaintiff was erroneously assessed one occurrence point for an absence on February 10, 2015, when in fact Plaintiff was present at work that day. (Id. ΒΆ 37A.) Plaintiff alleges that Ms. McGahey and Mr. Brown refused to correct this error and purported to substitute the February 27, 2015 absence for this point. (Pl.'s Br. (Doc. 24) at 9.) The February 10 date was struck through on the March 10, 2015 one-day suspension notice and the March 10, 2015 three-day suspension notice; the February 27 absence was written in on the ...

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