United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on defendant's motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
(DE 31). The issues raised are ripe for ruling. For the
following reasons, the court grants in part and denies in
part defendant's motion to dismiss as set forth herein.
proceeding pro s e, commenced this action against
defendant and former defendant supervisory employees at
plaintiff's place of employment, the North Carolina
Department of Transportation, on November 19, 2015, asserting
claims for race discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e, et seq. (“Title
VII”) and claims for age discrimination in violation of
the Federal Age Discrimination and Employment Act of 1967, 29
U.S.C.§§ 621, et seq.
(“ADEA”). On September 26, 2016, the court
dismissed former defendant supervisory employees and granted
plaintiff leave to file an amended complaint on or before
October 24, 2016. Thereafter counsel entered appearance on
behalf of plaintiff and timely filed plaintiff's amended
amended complaint, plaintiff proceeds only against defendant,
having abandoned any claims against individual former
defendants. Plaintiff asserts a claim for failure to promote
under Title VII. Plaintiff also asserts claims for disparate
treatment and hostile work environment under both Title VII
and the ADEA. Plaintiff seeks compensatory damages for pain
and suffering, declaratory judgment, and injunctive relief.
January 25, 2017, defendant filed the instant motion to
dismiss, asserting that plaintiff's claims must be
dismissed because they are outside the scope of
plaintiff's previously filed charges with the EEOC, are
untimely, or fail to state a claim for which relief can be
granted. Plaintiff responded in opposition to the instant
motion on February 24, 2017. Defendant filed no reply.
facts alleged in the complaint may be summarized as follows.
is a black male employed by defendant beginning in 1983.
Allegedly, plaintiff has been called “nigger”
“throughout his career” and had racial slurs
directed at him from coworkers, with management not taking
corrective action even though these incidents have been
reported. (Am. Compl. ¶ 16).
2003, plaintiff began performing the duties of transportation
II supervisor but was not promoted to that position until two
years later, receiving less pay than the previous white
supervisor. Additionally, plaintiff was denied promotion in
2015 when his supervisor, Greg Garwin, transportation
supervisor III, retired. Allegedly, if previous policy and
practices had been followed, plaintiff would have been
selected, but a younger white male, Ron Garret, a
transportation technician with no supervisory experience, was
has had numerous difficulties in his role as a supervisor
working for defendant. As the only black supervisor who works
in his department at his location in Durham, North Carolina,
plaintiff's subordinates allegedly refuse to take
directives from a black supervisor or an older supervisor. In
response, defendant allegedly added another supervisor who is
white to plaintiff's department. When plaintiff and
management had to discipline plaintiff's subordinates,
management did nothing to show that the following behaviors
of plaintiff's subordinates were inappropriate: not
reporting to work on time, leaving early, not working while
on a job site, refusing to take directions at a job site, or
sleeping in the office. Additionally, white subordinates who
refused to perform work plaintiff had directed them to
accomplish would suffer no consequences when plaintiff
supervisors allegedly are treated more favorably than
plaintiff. Plaintiff's supervisor does not speak to
plaintiff directly and sends messages to plaintiff about work
that needs to be accomplished. Unlike plaintiff, white
supervisors have state-issued cell phones and are allowed to
drive state vehicles home, meaning it is not necessary for
them to drive first to the work facility in Durham and then
to the highway work site, and white supervisors are not
required to work nights, weekends, and holidays to
accommodate contractors who work odd hours. Unlike other
supervisors who are white, plaintiff is constantly criticized
for work not being done, even though his workers are often
sent to another division to do work, and plaintiff receives
assignments and job orders at the last minute with little
time to prepare and properly staff the assignment. Plaintiff
is authorized only two crew members although his work load
and assignments are more substantial than that given to other
supervisors. Unlike other supervisors who are white,
plaintiff's workspace lacked air conditioning for several
hot summers, but plaintiff's complaints about this issue
were not resolved until the department moved into a new
building in 2016.
plaintiff has worked for the state of North Carolina for 32
years, plaintiff allegedly has to perform work that younger
similarly-situated members of management have not been
required to perform. A younger supervisor who has the same
performance expectations as plaintiff is not required to do
field and office work, only office work, unlike plaintiff who
allegedly has to work both in the office and in the field and
repeatedly has been asked when he is going to retire from his
position, he has been referred to as an “old man”
by managers and coworkers, and has been subject to continuing
harassing comments due to his age, including a coworker
coming to him with a tape measure and stating “I'm
measuring you for your coffin/grave.” (Am. Compl.
¶ 21-22). No action was taken against this coworker.
Allegedly, plaintiff's working conditions have been made
difficult in the hopes that he will retire.
filed two administrative charges, one alleging race-based
discrimination and one alleging age-based discrimination,
with the Equal Employment Opportunity Commission
(“EEOC”) and the North Carolina Office of
Administrative Hearings (“NCOAH”),  on March 31,
2015. The EEOC had 180 days to conduct an investigation and
either bring suit or issue a right to sue letter. Plaintiff
became “entitled” to the right to sue letter on
or about September 30, 2015. This suit was filed on November
Standard of Review
motion to dismiss under Rule 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 v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). A complaint
states a claim if it contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Asking for plausible grounds . . . does not impose a
probability requirement at the pleading stage; it simply
calls for enough fact to raise a reasonable expectation that
discovery will reveal [the] evidence” required to prove
the claim. Twombly, 550 U.S. at 556. In evaluating
the complaint, “[the] court accepts all well-pled facts
as true and construes these facts in the light most favorable
to the plaintiff, ” but does not consider “legal