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Walton v. North Carolina Department of Health and Human Services

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

September 13, 2017

CECELIA D. WALTON Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

          ORDER

          W. EARL BRITT SENIOR U.S. DISTRICT JUDGE

         This matter is before the court on the 8 May 2017 motion to dismiss filed by defendant North Carolina Department of Health and Human Services (“NCDHHS”). (DE # 15.) Plaintiff filed a response in opposition on 16 May 2017, in which she requests leave to amend her complaint should the court grant the motion to dismiss. (DE # 18.) NCDHHS did not file a reply brief, and the time within which to do so has expired. This matter is therefore ripe for disposition.

         I. BACKGROUND

         Plaintiff was laid off from her employment at NCDHHS on 30 June 2014. (Compl., DE # 5, at 4.) After being laid off, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Id.) Plaintiff was rehired in May 2015 as a trainee with Disability Determination Services (“DDS”), a division within NCDHHS. (Id.) In October 2015, the EEOC issued plaintiff a right to sue letter, notifying her that she had 90 days to file suit against NCDHHS for the alleged discriminatory conduct. (Id.)

         Plaintiff alleges that she was subjected to continuous harassment from her trainer, Robert Englander, after she was placed in the work unit at DDS. According to plaintiff, Englander discussed his penile cancer and penis during her daily training sessions, and his inappropriate comments were supported by her supervisor, Tim Wilson. (Id.) Plaintiff further alleges that Englander failed to properly train her and review her work. (Id.) On 19 January 2016, plaintiff complained about this treatment to an EEO officer within NCDHSS. (Id.) Plaintiff was fired nine days later on 28 January 2016. (Id.) According to plaintiff, her termination occurred soon after the initial 90-day period for her to file suit had expired. (Id.)

         On 7 March 2017, Magistrate Judge Robert T. Numbers, II granted plaintiff leave to proceed in forma pauperis and found plaintiff's complaint survived review under 28 U.S.C. § 1915e(2). (DE # 4.) Thereafter, plaintiff's complaint was filed. (DE # 5.) In her complaint, plaintiff alleges that she was discriminated against based on her age and sex, that she was subjected to a hostile work environment, and that NCDHHS retaliated against her for complaining about the discrimination. (Id. at 2-3.)

         II. STANDARD OF REVIEW

         NCDHHS moves to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def.'s Mem., DE # 16, at 1.) “To survive a motion to dismiss, a complaint must contain 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)). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the court is required to liberally construe pro se complaints, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the court “need not overlook a clear failing to provide factual enhancement in support of a particular claim that would cause the Court to conclude it is facially plausible, ” Joyner v. Poole, No. 4:14-CV-208-BO, 2015 WL 1179492, at *2 (E.D. N.C. Mar. 13, 2015) (citing Iqbal, 556 U.S. at 678).

         III. ANALYSIS

         A. Age and Sex Discrimination Claims

         Plaintiff first alleges that she was discriminated against based on her age and sex. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Additionally, under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1), it is “unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age.” The ADEA's age-based protections apply to individuals who are at least 40 years of age. 29 U.S.C. § 631.

         NCDHHS argues that plaintiff's age and sex discrimination claims must be dismissed because plaintiff has failed to plead sufficient facts to establish the elements of a prima facie case of discrimination under Title VII or the ADEA. (Def.'s Mem., DE # 16, at 4-5.) The Supreme Court has indicated that “an employment discrimination plaintiff need not plead a prima facie case of discrimination . . . to survive [a] motion to dismiss” because “[t]he prima facie case . . . is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 510 (2002). However, the Fourth Circuit Court of Appeals has emphasized that Swierkiewicz did not abrogate the requirement that the plaintiff allege “facts sufficient to state all the elements of her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003); see Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (explaining that Swierkiewicz does not nullify the heightened pleading requirements of Twombly and Iqbal).

         A plaintiff's prima facie case requires proof of the same elements for both sex discrimination under Title VII and age discrimination under the ADEA. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004). To demonstrate a prima facie case of sex or age discrimination, a plaintiff must show that: (1) she is a member of a protected class; (2) she suffered adverse employment action; (3) she was performing her job duties at a level that met her employer's legitimate expectations; and (4) “the adverse employment action occurred under circumstances raising an inference of unlawful discrimination.” Webster v. Rumsfeld, 156 F. App'x 571, 578 (4th Cir. 2005) (citing Hill, 354 F.3d at 285).

         In her complaint, plaintiff alleges that she was terminated, despite successfully completing classroom training, because she was both over 40 and a female. (Compl., DE # 5, at 4.) To demonstrate that her termination was based on her age and sex, plaintiff focuses on Englander's frequent comments about his anatomy during training sessions. (Id.) While these comments were likely unwelcome and uncomfortable for plaintiff, plaintiff has to failed to allege facts showing a “nexus . . . between the alleged discriminatory statements and . . . the employment decisions made by [the employer].” EEOC v. Clay Printing Co., 955 F.2d 936, 942 (4th Cir. 1992). Although plaintiff claims that Englander made unwelcome comments, and that Wilson supported these comments, she does not allege that the subject matter of these comments related in any way to her termination or that either Englander or Wilson were involved in her termination. See Green v. Fairfax Cty. Sch. Bd., 832 F.Supp. 1032, 1039 (E.D. Va. 1993) (concluding that gender-based comments made by plaintiff's manager to another employee were “not indicative of any intention by [the manager] to make any decision in any manner unfavorable to women generally or to [plaintiff] in particular”), aff'd 23 F.3d 400 (4th Cir. 1994); see also Johnson v. Angels, 125 F.Supp.3d 562, 567 (M.D. N.C. 2015) (dismissing ...


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