United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on Defendant's Motion to
Dismiss Plaintiff's Complaint or, in the Alternative,
Motion to Strike Portions of Plaintiff's Complaint (Doc.
No. 10); Plaintiff's Motion for Summary Judgment (Doc.
No. 21); and Defendant's Motion for Summary Judgment
(Doc. No. 22). Defendant argues in both its Motion to Dismiss
and Motion for Summary Judgment that the case should be
dismissed for lack of subject matter jurisdiction. (Doc. No.
10 at 1; Doc. No. 22 at 1). After careful review of the
entire record, and for the reasons stated below, the Court
dismisses this case for lack of subject matter jurisdiction.
PLAINTIFF'S INITIAL FILINGS
initial matter, the Court notes that due to clerical error, a
portion of Plaintiff's initial filings were docketed
under a sealed ex parte document, rather than Plaintiff's
complaint. Specifically, the clerk's office inadvertently
filed a hand-written statement identified as
“Supporting Facts” to the sealed document (Doc.
No. 2, pp. 6-10), when, instead, it should have been filed as
an attachment to Plaintiff's complaint. (Doc. No. 1:
Complaint). Nonetheless, the Court finds this error did not
prejudice Defendant. First, Plaintiff raised many of the same
factual allegations in his responsive pleadings, such as
Plaintiff's Response to Defendant's Motion to
Dismiss, filed on October 27, 2016. (Doc. No. 17). Second,
Plaintiff notified Defendant that the portion of his
complaint was missing from Defendant's copy during the
Plaintiff's deposition on March 3, 2017. (Doc. No. 26, p.
28). Finally and most significantly, Defendant's copy of
Plaintiff's WDNC-EEOC Complaint Form instructions note
that claimants may attach additional sheets to assert
supporting facts and, indeed, Plaintiff noted in a
parenthetical in the appropriate section that
“Supporting Facts [are] Attached.” (Doc. No. 1:
Complaint at 4). Defendant never raised this issue with the
Court now respectfully directs the Clerk of Court to refile
the Plaintiff's “Supporting Facts” (Doc. No.
2, pp. 6-10) under Plaintiff's Complaint, labeled as
“Doc. No. 1-2: Supporting Facts” and this Order
will heretofore refer to that document under that label.
Harold Boyd, Jr. (“Plaintiff”) brought this
action, pro se, asserting causes of action pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e
against Defendant Miller Pipeline Corp.
(“Defendant”). (Doc. No. 1: Complaint).
action arose after Defendant terminated Plaintiff's
at-will employment following two months of service.
Plaintiff, an African-American male, applied to be a
“Laborer” with company A&B Trenching
(“A&B”) on May 2, 2015. (Doc. No. 22-4). On
May 6, 2015, Miller Pipeline, a gas and water pipeline
installation and maintenance company, purchased A&B, at
which time all A&B employees became Miller employees.
(Doc. No. 22-2 at 2-3). Plaintiff received a voicemail from
A&B (now Miller Pipeline) on May 7, 2016, informing him
that he had been hired. (Doc. No. 26 at 27). Once the
purchase of A&B was finalized, Miller Pipeline began
“incorporating” A&B employees into Miller
Pipeline. (Doc. No. 22-2 at 3).
“short time, ” Defendant discovered Plaintiff had
not been subjected to a background check when he was hired,
which was conducted on all Miller employees following an
offer of employment. (Doc. No. 22-2 at 3). Plaintiff
authorized a background check from his job site on June 15,
2015, which was completed on June 26, 2015. (Doc. No. 22-2 at
4). The background check revealed Plaintiff had been
convicted of the following crimes: three counts for Assault
on a Female, Disorderly Conduct, two counts of Use/Possession
of Drug Paraphernalia, Domestic Criminal Trespass, Carrying a
Concealed Weapon, two counts of Trafficking Schedule I and II
drugs, and several traffic violations. (Doc. No. 22-7).
Defendant's hiring policies prohibit hiring persons with
certain drug violations and violent felonies. (Doc. No. 22-2
at 11-14). Plaintiff was escorted off of his jobsite on June
29, 2015. (Doc. No. 1-2: Supporting Facts ¶ 3).
Defendant sent Plaintiff an Adverse Action Letter on June 30,
2015, informing him Defendant was “unable to further
consider [him] for employment.” (Doc. No. 22 at 17).
filed a charge of racial discrimination with the Equal
Employment Opportunity Commission (“EEOC”)
against Miller Pipeline on July 1, 2015. In the charge, under
the section labeled “Discrimination Based On, ”
Plaintiff checked the box “Race.” The charge
asserts the following “particulars:”
I. I[, Plaintiff, ] applied for the position of Laborer in
May 2015, with the above named employer. I disclosed my
arrest/conviction record to the company. On June 29, 205, I
was notified that I would not be hired.
II. On June 29, 2015, I was notified that I would not be
hired due to my arrest/conviction record.
III. I believe I have been discriminated against due to my
race, Black, in violation of Title VII of the Civil Rights
Act of 1964, as amended.
(Doc. No. 1-1 at 1). In his Response to Defendant's
Motion to Dismiss, Plaintiff alleges that he had several
communications with the EEOC while filing his charge. (Doc.
No. 17). Here, Plaintiff argues the EEOC intake counselor,
Ms. Hattie Murphy, directed him to file a charge for
disparate impact race discrimination. (Doc. No. 17 at 1-2).
Plaintiff also contends he told the EEOC investigator, Mr.
Phillppe G. Feisenhardt, that only African Americans were
subject to Defendant's computer testing policy.
Id. at 5. Plaintiff then contended that Mr.
Feisenhardt inquired into Plaintiff's criminal record and
determined his termination was due to his criminal record and
the nature of his crimes and Defendant's inability to
supervise him while working. Id.
EEOC closed Plaintiff's file on February 29, 2016, after
determining it was unable to conclude the information
obtained in its investigation established a violation of 42
U.S.C. §2000e. (Doc. No. 1-1 at 2). On February 29,
2016, Plaintiff was mailed notice of his right to sue based
on the claim he filed with the EEOC. Id. On May 26,
2016, Plaintiff filed this action with the Court, alleging
Defendant Miller Pipeline and Defendant Candace S.
Walker terminated his employment because of his
race. (Doc. No. 1: Complaint). Plaintiff's complaint
asserts one charge of disparate impact race discrimination,
id., and ...