United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court on Defendants' Motion to
Dismiss, or in the alternative, For Summary Judgment (Doc.
No. 20). In accordance with Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), this Court issued Plaintiff,
who appears pro se, a notice informing him of his right to
respond and the burden he carries in doing so. (Doc. No. 23).
Plaintiff responded (Doc. No. 24), and Defendants replied
(Doc. No. 29). For the reasons below, Defendants' Motion
is GRANTED IN PART and DENIED IN PART.
is an employee of the Transportation Security Administration
(“TSA”) at Charlotte Douglas International
Airport (“CLT”). He allege his employer Defendant
Jeh Johnson, Secretary Department of Homeland Security
(“DHS”), as well as Defendants Mark Haught and
Kurt Jordan, two individuals employed by TSA, discriminated
against him in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 633a(a) et seq., by not selecting him
for two positions for which he applied. Plaintiff also
alleges a claim for hostile work environment based on gender
and age. Defendants have moved to dismiss all claims against
them, or in the alternative, for summary judgment.
Standard of Review
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim, a complaint
must contain 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 Atl.
Corp. v. Tomboy, 550 U.S. 554, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw a reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 663. While the
Court accepts plausible factual allegations in the complaint
as true and considers those facts in the light most favorable
to a plaintiff when ruling on a 12(b)(6) motion to dismiss, a
court “need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Eastern
Shore Mkt.'s Inc. v. J.D. Assoc.'s, LLP, 213
F.3d 175, 180 (4th Cir. 2000). A plaintiff alleging
employment discrimination need not “plead facts that
constitute a prima facie case in order to survive a motion to
dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S.
506, 510-15 (2002), but ‘[f]actual allegations must be
enough to raise a right of relief above the speculative
level.'” Coleman v. Md. Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010).
Claims against the Individual Defendants Mark Haught and Kurt
Haught and Jordan argue they, as individuals, are not
appropriate defendants in this action and seek dismissal of
Plaintiff's claims against them accordingly. “In
this circuit, individuals making personnel decisions of a
plainly delegable character are not personally liable under
the ADEA.” Stephens v. Kay Mgmt. Co., 907
F.Supp. 169, 171 (E.D. Va. 1995) (citing Birkbeck v.
Marvel Lighting Corp., 30 F.3d 507 (4th Cir.), cert.
denied, 513 U.S. 1058, 115 S.Ct. 666, 130 L.Ed.2d 600
(1994)). “Likewise, several district courts in this
circuit have applied the reasoning in Birkbeck to
Title VII to justify dismissal of individual defendants on
the ground that supervisory personnel cannot be held
individually liable under Title VII for the dismissal of an
employee.” Stephens, 907 F.Supp. at 172
(citing Lane v. David P. Jacobson & Co., Ltd.,
880 F.Supp. 1091, 1095-96 (E.D.Va. 1995) (“Although the
holding of the Fourth Circuit was not founded on the Title
VII language, the clear implication of the decision in
Birkbeck was that the Fourth Circuit does not
support individual liability for agents of employers under
Title VII.”) (collecting other cases)). Plaintiff has
not indicated any reason under applicable law or the facts
here why his claims against the individual Defendants should
proceed. Accordingly, that portion of the motion to dismiss
Defendants Haught and Jordan is granted, and the Court
dismisses Plaintiff's claims against them.
Claims against DHS
gravamen of the remainder of Defendant's Motion to
Dismiss centers on potential timeliness issues, as well as
factual issues that are more appropriately resolved following
discovery and at summary judgment. For example, the issue of
Plaintiff's potential withdrawal from consideration for
one of the positions at issue, as well as the allegations of
comments purporting to create a hostile work environment,
require fact specific inquiry outside the bounds of
Plaintiff's complaint here. The Court has reviewed
Plaintiff's detailed allegations against DHS and finds
the claims asserted against DHS in his complaint to be
plausible. Accordingly, the remainder of Defendant's
Motion to Dismiss relating to claims against DHS is DENIED
WITHOUT PREJUDICE for DHS to reassert those arguments, if
applicable, following discovery. The Court declines to
consider the alternative summary judgment arguments and
denies that portion of DHS's motion without prejudice to
reassert those contentions at the appropriate time.
THEREFORE ORDERED that Defendants' Motion to Dismiss Or,
In the Alternative, For Summary Judgment (Doc. No. 20) is
GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE to
DHS's ability to reassert its arguments at summary
judgment. Plaintiffs claims against Defendants Mark Haught
and Kurt Jordan are DISMISSED.
Clerk is respectfully directed to send Plaintiff the
appropriate forms concerning the Pro Se Settlement Assistance
Program (“PSAP”). If Plaintiff chooses to not opt
in to PSAP, the parties should promptly confer pursuant to
Federal Rule of Civil Procedure 26 and submit their