United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR.UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's
Motion to Dismiss and memorandum in support, (Doc. Nos. 4,
5); Plaintiff's Memorandum in Opposition to
Defendant's Motion to Dismiss, (Doc. No. 7);
Defendant's Reply in Support of Its Motion to Dismiss,
(Doc. No. 9); Magistrate Judge David S. Cayer's
Memorandum and Recommendation and Order
(“MR&O”) recommending that this Court grant
Defendant's Motion to Dismiss, (Doc. No. 10);
Plaintiff's Objection to the MR&O, (Doc. No. 11);
Plaintiff's Memorandum on Judicial Misconduct, (Doc. No.
12); Defendant's Response to Plaintiff's Objection to
the MR&O, (Doc. No. 13); and Plaintiff's Amended
Objection, to the MR&O, (Doc. No. 14).
Lee Hall (“Plaintiff”), a 55-year old male, has
been employed by Bank of America, N.A. in varying capacities
since December 30, 2004. (Doc. No. 1 at ¶¶ 6, 21,
25-26) (hereinafter “Compl.”). He alleges that he
was discriminated against from “Q3-2013 to March 22,
2016” due to his sex. (Id. at ¶¶ 7,
11). Specifically, he asserts that Bank of America
Corporation (“Defendant”) failed to promote
Plaintiff, denied Plaintiff equal pay and work, and
retaliated against Plaintiff when Plaintiff raised violations
of federal guidelines for predictive modeling. (Id.
at ¶ 10).
claims he attempted to file charges with the Equal Employment
Opportunity Commission (“EEOC”) on April 11,
2016, “but the disability inflicted by Defense hindered
completion of this filing” until August 19, 2016.
(Id. at ¶ 8). Upon filing his complaint with
the EEOC, Plaintiff received a Notice of Right to Sue.
(Id. at ¶ 9). Plaintiff states that he is
currently out on long-term disability for recurrent major
depression. (Id. at ¶ 12).
to long-term disability, Plaintiff applied for and began
short-term disability on March 23, 2016, because he was
“suffering from a ‘nervous breakdown'”
due to his supervisor's discrimination. (Id. at
¶¶ 52-53). Plaintiff alleges that his Bank of
America supervisor, Jaime Ramos (“Ramos”), failed
to promote him in the third quarter of 2013, in August 2014,
and in November 2015. (Id. at ¶¶ 31-43).
Meanwhile, “Ramos hires and promotes female employees
exclusively while ruthlessly attacking any perceived male
rivals.” (Id. at ¶ 30).
October 17, 2016, Plaintiff filed his pro se Complaint
asserting claims against Defendant for (1) failure to promote
based on gender under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e
et seq.; (2) violations of the Equal Pay Act of 1963
(“EPA”), 29 U.S.C. §§ 201 et seq.; (3)
harassing him and sabotaging his career in violation of the
Consumer Financial Protection Act (“CFPA”), 12
U.S.C. §§ 5567 et seq.; (4) failure to
promote under the North Carolina Equal Employment Practices
Act (“NCEEPA”), N.C. Gen. Stat. §§
143-422.2 et seq.; and (5) retaliation under the North
Carolina Retaliatory Employment Discrimination Act
(“REDA”), N.C. Gen. Stat. §§ 95-240
November 7, 2016, Defendant filed its Motion to Dismiss,
(Doc. No. 6), in which it argued that Plaintiff failed to
exhaust his administrative remedies pursuant to Title VII,
the Consumer Financial Protection Act (“CFPA”),
and Retaliatory Employment Discrimination Act Claim
(“REDA”), and otherwise failed to state plausible
claims for relief under the NCEEPA, the EPA, and CFPA. On
November 11, 2016, Plaintiff filed an opposition to
Defendant's Motion to Dismiss, (Doc. No. 7), to which
Defendant filed a reply, (Doc. No. 9), on November 21, 2016.
On January 12, 2017, the Magistrate Judge issued an MR&O
recommending that the Defendant's Motion to Dismiss be
granted and staying the case pending resolution of
Defendant's Motion to Dismiss. (Doc. No. 10). On January
18, 2017, Plaintiff filed an Objection to the MR&O, (Doc.
No. 11), as well as a Memorandum on Judicial Misconduct,
(Doc. No. 12). On February 1, 2017, Defendant filed a Reply
to Plaintiff's Objection to the MR&O. (Doc. No. 13).
And finally, on February 15, 2017, Plaintiff filed an Amended
Objection to his original Objection to the MR&O. (Doc.
No. 14). Defendant's Motion to Dismiss is ripe for
STANDARD OF REVIEW
district court may assign dispositive pretrial matters,
including motions to dismiss, to a magistrate judge for
“proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) and (B). The Federal Magistrate
Act provides that “a district court shall make a de
novo determination of those portions of the report or
specific proposed findings or recommendations to which
objection is made.” Id. at §
636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983). De novo review is not
required by the statute when an objecting party makes only
general or conclusory objections that do not direct the court
to a specific error in the magistrate judge's
recommendations. Orpiano v. Johnson, 687 F.2d 44
(4th Cir. 1982). Further, the statute does not on its face
require any review at all of issues that are not the subject
of an objection. Thomas v. Arn, 474 U.S. 140, 149
(1985); Camby, 178 F.2d at 200. Nonetheless, a district judge
is responsible for the final determination and outcome of the
case, and, accordingly, this Court has conducted a careful
review of the Magistrate Judge's M&R and all related
standard of review for a motion to dismiss 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). A motion to dismiss under
Rule 12(b)(1) seeks to dismiss a complaint for lack of
subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). 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). “The subject matter
jurisdiction of federal courts is limited and the federal
courts may exercise only that jurisdiction which Congress has
prescribed.” Chris v. Tenet, 221 F.3d 648, 655
(4th Cir. 2000) (citing Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994)). Subject matter
jurisdiction is so limited that federal “[c]ourts have
an independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.”
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)
(internal citations omitted). “No party can waive the
defect, or consent to [subject matter] jurisdiction. No court
can ignore the defect; rather a court, noticing the defect,
must raise the matter on its own.” Wisconsin
Dep't of Corr. v. Schacht, 524 U.S. 381, 389 (1998)
(internal citations omitted).
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, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Facial plausibility means allegations that allow the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. “Threadbare
recitals for the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
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,
but rather, the statement need only “‘give the
defendant fair notice of what the … claim is and the
grounds upon which it rests.'” Twombly,
550 U.S. at 545 (quoting Copperweld Corp. v. Independence
Tube Corp., 467 U.S. 752, 775 (1984)). Additionally,
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).
Nonetheless, a court is not bound to accept as true legal
conclusions couched as factual allegations. Papasan v.
Allain, 478 U.S. 265, 286 (1986). Courts cannot weigh
the facts or assess the evidence at this stage, but a
complaint entirely devoid of any facts supporting a given
claim cannot proceed. Potomac Conference Corp. of
Seventh-Day Adventists v. Takoma Academy Alumni Ass'n,
Inc., 2 F.Supp.3d 758, 767-68 (D. Md. 2014).
Furthermore, 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).
Court is mindful of the latitude extended to the pleadings of
pro se litigants. See Haines v. Kerner, 404 U.S.
519, 520 (1972) (holding that a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers). Nonetheless,
courts cannot act as the pro se plaintiff's advocate or
develop claims which the plaintiff failed to raise clearly on
the face of his complaint. Gordon v. Leeke, 574 F.2d
1147, 1152 (4th Cir. 1978) (recognizing that district courts
are not expected to assume the role of advocate for the pro
se plaintiff). As a result, even a pro se plaintiff's
claim for relief “requires more than labels and
conclusions.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Like plaintiffs who are represented by
counsel, a pro se plaintiff must still “allege facts
sufficient to state all the elements of [a] claim.”
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