United States District Court, E.D. North Carolina, Western Division
Earl Britt Senior U.S. District Judge
matter is before the court on the motion to dismiss of
defendant William Willard Massengill, Jr. (DE # 10.)
Plaintiff Linda Eldridge has filed a response in opposition
to the motion. (DE # 12.) Defendant did not file a reply, and
the time within which to do so has expired. This matter is
ripe for disposition.
is an Aflac Insurance Agent in Johnston County, North
Carolina. (Compl., Attach., DE # 3-2, at 1.) From February of
2015, until February of 2016, she was Benson Area Medical
Center's (“BAMC”) Aflac Supplemental
Insurance Agent. (Id.; Compl., DE # 3, at 3.)
Plaintiff “was never an employee” of BAMC, but
was an “independent contractor.” (Compl., DE # 3,
at 3.) On or about 5 February 2016, defendant, as CEO of
BAMC, declined “to make a 2016 Aflac Supplemental
Insurance Contract” with plaintiff, and she was removed
as BAMC's agent. (Id.; Compl., Attach., DE #
3-2, at 1.) On 23 September 2016, she filed a complaint
pro se against defendant alleging that her removal
was discriminatory on the basis of race and gender.
(Id.) She further alleges that her removal was
“[r]etaliation for telling a prominent physician . . .
that CEO Massengill's behavior towards [her] felt
discriminatory.” (Id. at 4.)
January 2017, defendant filed a motion to dismiss the
complaint for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). Defendant contends that as
an independent contractor, plaintiff was not an employee of
BAMC, and, therefore, she cannot hold defendant or BAMC
liable under Title VII of the Civil Rights Act of 1964
(“Title VII”). Plaintiff filed a response on 21
February 2017, responding that her complaint was filed
pursuant to 42 U.S.C. § 1981, not Title VII.
filed his motion to dismiss pursuant to Rule 12(b)(6).
In a Rule 12(b)(6) context, the reviewing court must
determine whether the complaint alleges sufficient facts
“to raise a right to relief above the speculative
level” and “to state a claim to relief that is
plausible on its face.” This directive ordinarily
limits a court's review to the “well-pled facts in
the complaint[, which it must view] in the light most
favorable to the plaintiff.” While no absolute bar
exists, a motion to dismiss under Rule 12(b)(6) does not
typically resolve the applicability of defenses to a
Goldfarb v. Mayor & City Council of Baltimore,
791 F.3d 500, 508 (4th Cir. 2015) (citations omitted)
(alteration in original). Additionally, a pro se
complaint “is to be liberally construed, . . . and . .
. 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).
motion to dismiss rests solely on the fact that plaintiff was
not an employee, but an independent contractor, and as such,
plaintiff cannot state a claim under Title VII. (Def.'s
Mem. Dismiss, DE # 10-1, at 2.) Defendant is correct that
“[a]n entity can be held liable in a Title VII action
only if it is an ‘employer' of the
complainant.” Butler v. Drive Auto. Indus. of
Am., Inc., 793 F.3d 404, 408 (4th Cir. 2015).
However, while plaintiff filed her pro se complaint
using a standardized Title VII form, she indicated on the
face of the complaint that her intention was to file under 42
U.S.C. § 1981(b). (Compl., DE # 3, at 3; see
also Pl.'s Resp., DE # 12, at 1 (“As an
independent contractor, I filed my complaint under 42 U.S.
Code Section 1981 from the Civil Rights Act of 1866, not
Title VII.”).) While the Fourth Circuit has not
addressed the issue of whether or not an independent
contractor may bring a § 1981 claim, its sister courts
have held that “an independent contractor may bring a
cause of action under section 1981 for discrimination
occurring within the scope of the independent contractor
relationship.” Brown v. J. Kaz, Inc., 581 F.3d
175, 181 (3d Cir. 2009); see also Allstate Sweeping, LLC
v. Black, 706 F.3d 1261, 1265 (10th Cir. 2013);
Wortham v. Am. Family Ins. Grp., 385 F.3d 1139, 1141
(8th Cir. 2004); Danco, Inc. v. Wal-Mart Stores,
Inc., 178 F.3d 8, 13-14 (1st Cir. 1999); Proa v. NRT
Mid Atl., Inc., 618 F.Supp.2d 447, 461 (D. Md. 2009).
That plaintiff filed using the wrong form, while
simultaneously indicating her intention, will not be enough
to defeat her claims under § 1981.
statute provides that “[a]ll persons . . . shall have
the same right . . . to make and enforce contracts . . . as
is enjoyed by white citizens.” 42 U.S.C. §
1981(a). “Make and enforce contracts” has been
statutorily defined as “the making, performance,
modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions of the
contractual relationship.” 42 U.S.C. § 1981(b).
Section 1981 is specifically intended to “prohibit
racial discrimination in the making and enforcement of
private contracts.” Runyon v. McCrary, 427
U.S. 160, 168 (1976) (citations omitted). It has additionally
been interpreted to apply to “hostile environment
claims and claims for retaliatory actions taken against a
plaintiff who opposed such policies and practices.”
Proa, 618 F.Supp.2d at 461 (citing CBOCS West,
Inc. v. Humphries, 553 U.S. 442 (2008)).
as an independent contractor, has sufficiently alleged that
defendant has discriminated and retaliated against her to
state a claim under § 1981.