United States District Court, W.D. North Carolina, Statesville Division
LISA C. BALLENTINE, Plaintiff,
THREE T TOWING, LLC, Defendant.
MEMORANDUM AND RECOMMENDATION
S. CAYER UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant's
“Motion to Dismiss for Lack of Subject Matter
Jurisdiction, ” Doc. 4, and the parties' associated
briefs and exhibits, Docs. 5, 10 and 15.
matter was referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) on January 31, 2018,
and the Motion is now ripe for consideration.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendant's Motion to Dismiss be denied, as
PROCEDURAL AND FACTUAL BACKGROUND
the facts of the Complaint as true, Defendant Three T Towing
operates a vehicle towing service in Iredell County and the
surrounding area. Plaintiff was hired as a bookkeeper and
accountant in December 2015. She was later promoted to
Director of Operations. Plaintiff alleges that she was
subjected to sex discrimination, sexual harassment,
retaliation and wrongful termination in violation of Title
VII of the Civil Rights Act of 1964, as amended (“Title
December 19, 2016, Plaintiff filed charges with the Equal
Employment Opportunity Commission (“EEOC”)
alleging discrimination based upon on sex and retaliation.
See Doc. 1, Ex. 1. She alleged that the
discrimination took place at the earliest on May 24, 2016 and
at the latest on June 21, 2016, the date of her termination.
She did not check the box for continuing action. On the same
date as the filing, the EEOC issued its Dismissal and Notice
of Rights letter stating “[y]our charge was not timely
filed with EEOC; in other words, you waited too long after
the date(s) of the alleged discrimination to file your
charge.” Doc. 1, Ex. 2.
March 17, 2017, Plaintiff filed her Complaint against
Defendant alleging sexual harassment, sex discrimination and
retaliation in violation of Title VII. She also brings state
law claims for unpaid wages and overtime compensation
pursuant to N.C. Gen. Stat. § 95-25.1 et seq., breach of
contract, intentional infliction of emotional distress and
negligent supervision and retention. Doc. 1. On April 11,
2017, Defendant filed this Motion to Dismiss, Doc. 4.
Defendant argues that Plaintiff's Title VII claims should
be dismissed pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) because Defendant has employed fewer
than fifteen people at all times relevant to this action and
does not qualify as an employer under Title VII.
STANDARD OF REVIEW
to Rule 12(b)(1), a claim may be dismissed for lack of
subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The
existence of subject matter jurisdiction is a threshold issue
the court must address before considering the merits of a
case. Jones v. Am. Postal Workers Union, 192 F.3d
417, 422 (4th Cir. 1999). The plaintiff has the burden of
proving that subject matter jurisdiction exists.
Richmond, Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991).
reviewing a Rule 12(b)(6) motion, “the court should
accept as true all well-pleaded allegations and should view
the complaint in a light most favorable to the
plaintiff.” Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563. A
complaint attacked by a Rule 12(b)(6) motion to dismiss will
survive if it contains enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, the Supreme Court articulated a two-step
process for determining whether a complaint meets this
plausibility standard. First, the court identifies
allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth. Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555) (allegation that government officials adopted
challenged policy “because of” its adverse
effects on protected group was conclusory and not assumed to
be true). Although the pleading requirements stated in
“Rule 8 [of the Federal Rules of Civil Procedure]
mark a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era ... it
does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Id. at
to the extent there are well-pleaded factual allegations, the
court should assume their truth and then determine whether
they plausibly give rise to an entitlement to relief.
Id. at 679. “Determining whether a complaint
contains sufficient facts to state a plausible claim for
relief “will ... be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. “Where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief, '” and therefore
should be dismissed. Id. (quoting Fed.R.Civ.P.
sufficiency of the factual allegations aside, “Rule
12(b)(6) authorizes a court to dismiss a claim on the basis
of a dispositive issue of law.” Sons of Confederate
Veterans v. City of Lexington, 722 F.3d 224, 228 (4th
Cir. 2013) (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)). Where “it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations, a claim must be
dismissed.” Neitzke v. Williams, 490 U.S. at
328; see also Stratton v. Mecklenburg Cnty. Dept. of Soc.
Servs., 521 Fed.Appx. 278, 293 (4th Cir. 2013)). The