United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
C. KEESLER UNITED STATES MAGISTRATE JUDGE
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
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.
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).
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.
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.
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).
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,
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
“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
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).
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).
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.
pending motion to dismiss is now ripe for review and a
recommendation to the Honorable Max O. Cogburn, Jr.
STANDARD OF REVIEW
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).
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
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
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(quoting Twombly, 550 U.S. at 555-56).
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).
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).
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.
Timeliness of Amended Complaint
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).
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.
Count 1 - Civil rights Act of 1964, Title VII
Failure to Hire / Harassment
first claim, liberally construed, suggests claims under Title
VII for discrimination based on race, age, failure to hire,