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Parker v. Thomas & Betts Corp.

United States District Court, W.D. North Carolina, Charlotte Division

September 7, 2017

ANTHONY PARKER, Plaintiff,
v.
THOMAS & BETTS CORPORATION, Defendant.

          MEMORANDUM AND RECOMMENDATION

          DAVID C. KEESLER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER IS BEFORE THE COURT on “Defendant's Motion To Dismiss Plaintiff's Amended Complaint” (Document No. 22). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b), and is now ripe for disposition. Having carefully considered the arguments, the record, and the applicable authority, the undersigned will respectfully recommend that the motion be granted in part and denied in part.

         I. BACKGROUND

         According to the Amended Complaint, Defendant Thomas & Betts Corporation (“Defendant”) interviewed Anthony Parker (“Plaintiff” or “Parker”) in July 2016 for the position of plant manager, but then offered him a lower position as a 1st shift supervisor. (Document No. 20, p.3). Defendant hired Plaintiff as a 1st shift supervisor on August 16, 2016. Id.

         In October 2016, Defendant hired a new white male plant manager who did not have a college degree. Id. Also in October 2016, Plaintiff contends that he twice reported harassing treatment by the 2nd shift supervisor of a same sex couple; and Plaintiff made an ethics complaint against the new plant manager and the 2nd shift supervisor for making “racial comments” during a meeting. (Document No. 20, p.4).

         Plaintiff further asserts that he was harassed when the plant manager falsely accused him of entering the women's bathroom on November 4, 2016, and that a co-worker, Barbra Holdren, made a “racial comment” on November 11, 2016. Id. Plaintiff contends that he was terminated on November 15, 2016, “supposedly for harassing Barbara Holdren (White Female, over 40) who was not in her assigned work area on November 11, 2016.” Id.

         Plaintiff filed a “Charge Of Discrimination” (the “Charge”) with the U.S. Equal Employment Opportunity Commission (the “EEOC”) on November 16, 2016, alleging discrimination based on race and age, and retaliation, that took place on November 15, 2016. (Document No. 20-1, p.32). Plaintiff acknowledges in the Charge the reason provided by Defendant for his discharge was “complaints from employees about my management style.” Id. The Charge further states that Plaintiff had objected to management issuing disciplinary action to a same-sex couple, but not similar discipline to a heterosexual couple for the same conduct. Id.

         The EEOC issued its “Dismissal And Notice Of Rights” on January 24, 2017, finding that it was unable to conclude that there had been a violation of the statutes, and informing Plaintiff he could file a lawsuit pursuant to Title VII within 90 days. (Document No. 20-1, p.31).

         Plaintiff, appearing pro se, initiated this lawsuit with the filing of a “Complaint” (Document No. 1) on January 31, 2017. Defendants filed a motion to dismiss on March 7, 2017; and then Plaintiff filed a timely motion to amend the complaint on March 21, 2017. (Document Nos. 9 and 14). “Plaintiffs' Motion For Summary Judgment” (Document No. 15) was also filed on March 21, 2017.

         On March 23, 2017, the undersigned issued an “Order And Recommendation” allowing Plaintiff's request to amend the Complaint by April 3, 2017, and recommending that the motion to dismiss be denied without prejudice. (Document No. 17).

         Plaintiff's “Amended “Complaint” (Document No. 20) was mailed by Plaintiff on March 31, 2017, and docketed by the Court on April 4, 2017. See (Document No. 20, p.16; Document No. 25-1, pp.10-12). Under the circumstances of this case, the Court will accept the Amended Complaint as timely filed.

         The Amended Complaint asserts that the nature of the action “is a civil rights action against the Defendant for denial of Plant Managers job, wrongful employment termination, and retaliation.” (Document No. 20, p.2). Specifically, Plaintiff asserts the following counts against Defendant: (1) violation of Title VII, Civil Rights Act of 1964; (2) age discrimination; (3) retaliation; (4) violation of “North Carolina Discrimination Law” pursuant to N.C. Gen.Stat. § 95-241; (5) violation of “Employment at Will Doctrine” pursuant to N.C. Gen.Stat. § 143-422.2; and (6) violation of “Thomas & Betts Corp., Company Policy.” (Document No. 20, pp.5-15).

         “Defendant's Motion To Dismiss Plaintiff's Amended Complaint” (Document No. 22) was filed on April 17, 2017. Defendant seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and (6). (Document No. 22). The Court issued a Roseboro Notice on April 18, 2017, advising Plaintiff that he had a right to respond to the pending motion, and that failure to file a timely and persuasive response would likely lead to dismissal of this lawsuit. (Document No. 24).

         Instead of filing a direct response to the pending motion, Plaintiff filed a “…Response To Roseboro Order…” (Document No. 25) and a “Motion To Strike Defendants Motion To Dismiss…” (Document No. 26) on April 25, 2017. The Court will liberally construe pro se Plaintiff's filings together as his response in opposition to the motion to dismiss. “Defendant's . . . Reply In Support of Thomas & Betts' Motion To Dismiss” (Document No. 27) was filed on May 2, 2017.

         The pending motion to dismiss is now ripe for review and a recommendation to the Honorable Max O. Cogburn, Jr.

         II. STANDARD OF REVIEW

         The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). When a defendant challenges subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), “the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, 945 F.2d at 768. The district court should grant the Rule 12(b)(1) motion to dismiss “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. See also, Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the “legal sufficiency of the complaint” but “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also, Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         The Supreme Court has also opined that

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not necessary; the statement need only “‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” In addition, when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.

Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56).

         “Although for the purposes of this motion to dismiss we must take all the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The court “should view the complaint in the light most favorable to the plaintiff.” Mylan Labs, Inc. v. Matkar, 7 F.3d 1130, 1134 (4th Cir. 1993).

         Although district courts must liberally construe pro se complaints, courts cannot act as the pro se plaintiff's advocate and cannot develop claims which the plaintiff failed to clearly raise on the face of her complaint. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). As a result, even a pro se plaintiff's basis for relief “requires more than labels and conclusions....” Twombly, 550 U.S. at 555. Like plaintiffs who are represented by counsel, a pro se plaintiff must still “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003). “In light of Twombly and Bass, conclusory statements with insufficient factual allegations, even when asserted by pro se plaintiffs, will simply not suffice.” Douglas v. U.S. Airways Grp., Inc., 3:10-CV-042-MOC, 2011 WL 1769747, at *3 (W.D. N.C. May 9, 2011).

         III. DISCUSSION

         Defendant Thomas & Betts Corporation contends that all of Plaintiff's claims should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and/or 12(b)(6). (Document No. 22). Unfortunately, Defendant's briefing does not follow the claims as presented in the Amended Complaint. Nevertheless, the undersigned will attempt to address the parties' main arguments for and against dismissal and organize the discussion as the claims are stated in the Amended Complaint.

         A. Timeliness of Amended Complaint

         Defendant first argues, before addressing any specific claims, that the Amended Complaint should be dismissed in its entirety because it was not timely filed by April 3, 2017. (Document No. 22-1, p.9). Plaintiff suggests that the Court should then reconsider and grant Defendants' first motion to dismiss the original Complaint. Id. However, the Court already ordered the filing of the Amended Complaint and recommended that the first motion to dismiss be denied. (Document No. 17). Moreover, certain claims and parties have already been dropped from this case based on Plaintiff's amendment. (Document No. 20).

         As noted above, the Court will accept pro se Plaintiff's Amended Complaint mailed on March 31, 2017, with an expected delivery date of April 3, 2017, and ultimately docketed on April 4, 2017 - as timely filed. See (Document No. 25-1, pp.10-11). Simply put, the undersigned finds that Defendant's first argument is inconsistent with the Court's view of efficient administration of justice and judicial economy in this case.

         B. Count 1 - Civil rights Act of 1964, Title VII

         1. Failure to Hire / Harassment

         Plaintiff's first claim, liberally construed, suggests claims under Title VII for discrimination based on race, age, failure to hire, ...


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