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Harris v. North Carolina Department of Transportation

United States District Court, E.D. North Carolina, Western Division

September 12, 2017



          LOUISE W. FLANAGAN United States District Judge.

         This 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.


         Plaintiff, 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 complaint.

         In the 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.

         On 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.


         The facts alleged in the complaint may be summarized as follows.

         Plaintiff 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).

         Around 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 selected.

         Plaintiff 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 reported them.

         White 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.

         Although 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 at night.

         Plaintiff 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.

         Plaintiff 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”), [2] 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.[3] This suit was filed on November 19, 2015.


         A. Standard of Review

         A 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 ...

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