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Parker v. Owens

United States District Court, W.D. North Carolina, Charlotte Division

February 12, 2018

ANTHONY PARKER, Plaintiff,
v.
SHAWN OWENS, Defendant.

          MEMORANDUM AND RECOMMENDATION AND ORDER

          DAVID S. CAYER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant's “Motion to Dismiss” (document #6) and “Memorandum in Support …” (document #7) filed December 22, 2017.

         On January 4, 2018, the Court entered an “Order” “[i]n accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) … advis[ing] Plaintiff, who is proceeding pro se, that he has a right to respond to Defendant's Motion. The Court also advise[d] Plaintiff that failure to respond may result in Defendant being granted the relief he seeks, that is, the DISMISSAL OF THE COMPLAINT WITH PREJUDICE.” Document #8 (emphasis in original).

         The Court “allow[ed] until February 4, 2018 [for Plaintiff] to respond to Defendant's ‘Motion to Dismiss' …” with three days for mailing. Id. That same day, the Clerk's office mailed a copy of the Order to Plaintiff.

         On January 9, 2018, Plaintiff responded with a document captioned “Objection to Roseboro Order …” in which he challenged removal of this matter from state court. Document #9. Plaintiff has not responded to the Motion to Dismiss.

         This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and this Motion is now ripe for the Court's consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendant's Motion to Dismiss be granted, as discussed below.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Accepting the factual allegations of the Complaint as true, this is an action alleging unlawful employment discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et. seq. (“Title VII”) and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et. seq. (“ADEA”). Plaintiff brings this action against his former supervisor Shawn Owens.

         On November 30, 2017, Plaintiff filed his Complaint in Mecklenburg County Superior Court alleging Title VII and ADEA claims, as well as state law claims pursuant to the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422 et seq. (“NCEEPA”), the North Carolina Retaliatory Employment Discrimination Act, § 95-241, (“REDA”), and a common law claim for libel/defamation.

         On December 14, 2017, Defendant removed the matter to this Court. Removal was proper based upon federal question jurisdiction. 28 U.S.C. § 1331 (district courts have subject matter jurisdiction in every civil action that "arises under the Constitution, laws, or treaties of the United States”); Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 606-07 (4th Cir. 2002) (internal citations omitted).

         On December 22, 2017, Defendant moved to dismiss arguing that he has no liability under Title VII, the ADEA or the NCEEPA.

         II. DISCUSSION

         A. Stand ...


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