United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
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. (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).
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.
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.
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.
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.
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).
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.”).
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). 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).
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.
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
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.
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.
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.
MOTION TO STRIKE
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).
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,
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
in light most favorable to Plaintiff, the evidence shows the
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.)
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.
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.)
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.)
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)
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.)
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.)
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. ¶ 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