United States District Court, M.D. North Carolina
LARRY B. FLEMING and MARK W. HARRIS Plaintiffs,
NORFOLK SOUTHERN CORPORATION and NORFOLK SOUTHERN RAILWAY, COMPANY, Defendants.
Loretta C. Biggs United States District Judge.
Larry M. Fleming (“Mr. Fleming”) and Mark W.
Harris (“Mr. Harris”), initiated this action
against Defendants, Norfolk Southern Corporation and Norfolk
Southern Railway Company, alleging retaliation in violation
of 42 U.S.C. § 2000e et seq. (“Title
VII”). Before the Court is Defendants' Motion to
Dismiss pursuant to Rule 12(b)(6). For the reasons set forth
below, the Court will grant Defendants' motion.
to the Complaint, Mr. Harris, who is Caucasian, was employed
by Defendants as a conductor from May 2011 until his
termination on July 7, 2016. (ECF No. ¶ 4.) Mr. Fleming,
who is also Caucasian, was employed by Defendants as a
brakeman from October 2006 until he was terminated on July 7,
2016. (Id. ¶ 3.) During his employment, Mr.
Fleming filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC Charge”)
for race discrimination which included claims against Ben
Fennell, an African-American Division Superintendent employed
by Defendants. (Id. at 1; id. ¶
14, 2016, Plaintiffs, along with RJ Johnson (“Mr.
Johnson”), an African-American locomotive engineer,
were working as part of a three-person crew during “a
regular freight run” on train P05P214. (Id.
¶¶ 11, 25.) Defendants claimed that a
“possible violation of [their] operating and safety
rules” had been committed by the three-person crew on
June 14, 2016. (Id. ¶¶ 13-14.) A formal
investigation hearing was held on June 21, 2016, even though
such an investigation was “very unique.”
(Id. ¶ 16.) Following the conclusion of the
investigation, Mr. Fennell ordered the termination of Mr.
Harris, Mr. Fleming, and Mr. Johnson. (Id.
¶¶ 17, 22.) The Complaint alleges that Mr. Fennell
“referenced [Mr.] Fleming's 2015 charge of
discrimination when he subsequently . . . discharged the
Plaintiffs.” (Id. at 2.) Then, in December,
2016, Mr. Fennell “allowed the one African[-]American
crew member[, ] Mr. RJ Johnson (now deceased)[, ] to return
to work while denying this same leniency to the remaining two
Caucasian crew members, namely Plaintiffs Fleming and
Harris.” (Id. ¶ 25.)
December 9, 2016, Plaintiffs Fleming and Harris each filed an
EEOC Charge claiming retaliatory discrimination against
Defendants. (Id. ¶ 9.) Plaintiffs commenced the
instant lawsuit within ninety days of receiving their
respective Notice of Right to Sue letters from the EEOC.
(Id. ¶ 10.) Defendants have moved to dismiss
“the claims asserted by Mr. Harris in their
entirety” pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (ECF No. 7 at 1.)
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure “challenges the legal sufficiency of a
complaint, ” Francis v. Giacomelli, 588 F.3d
186, 192 (4th Cir. 2009); “it 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).
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 may fail to state a claim upon which
relief can be granted in two ways: first, by failing to state
a valid legal cause of action, i.e., a cognizable
claim, see Holloway v. Pagan River Dockside Seafood,
Inc., 669 F.3d 448, 452 (4th Cir. 2012); or second, by
failing to allege sufficient facts to support a legal cause
of action, see Painter's Mill Grille, LLC v.
Brown, 716 F.3d 342, 350 (4th Cir. 2013). In evaluating
whether a claim is stated, “a 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 conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement[, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Title VII of the Civil Rights Act of 1964, it is unlawful for
an employer “to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's
race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Title VII also prohibits an
employer from retaliating against an employee because he has
opposed an unlawful employment practice, “or because he
has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under
this subchapter.” 42 U.S.C. § 2000e-3(a). The
purpose of Title VII's anti-retaliation provision is to
preserve “unfettered access to statutory remedial
mechanisms” for employees who fear reprisal.
Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).
An employer, therefore, violates Title VII by taking an
adverse employment action against an employee based on an
employee's exercise of his rights under Title VII.
order to state a prima facie case of retaliation under Title
VII, Plaintiff must allege: “(1) engagement in a
protected activity; (2) adverse employment action; and (3) a
causal link between the protected activity and the [adverse]
employment action.” Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
aff'd sub nom. Coleman v. Court of Appeals of
Md., 566 U.S. 30 (2012). To satisfy the first element, a
plaintiff may “use the protected activity of a closely
related individual.” McCowen v. Vill. of Lincoln
Heights, No. 1:13cv0520 (WOB-KKL), 2014 WL 7227841, at
*6 (S.D. Ohio Dec. 17, 2014) (citing Thompson v. N. Am.
Stainless, LP, 562 U.S 170 (2011)), aff'd,
624 Fed.Appx. 380 (6th Cir. 2015). Here, Mr. Harris does not
allege that he personally engaged in protected activity.
Rather, relying on Thompson, Mr. Harris alleges
associational retaliation based on the protected activity of
his co-worker, Mr. Fleming, who filed an EEOC Charge against
Defendants in 2015. (ECF No. 1 at 1; id.
¶¶ 26-27.) Specifically, Mr. Harris alleges that he
“was discharged because he was within the protected
zone of interest with [Mr.] Fleming” in violation of
Title VII. (ECF No. 1 ¶¶ 26-27; ECF No. 11 at 7.)
Title VII, a “person claiming to be aggrieved”
may file suit. 42 U.S.C. § 2000e-5(f)(1). In
Thompson, the Supreme Court recognized that an
employee may pursue a Title VII retaliation claim based on
retaliation suffered in response to the protected activity of
a third party. See Thompson, 562 U.S. at 175-78. In
that case, the plaintiff and his fiancée were both
employed by the same employer. Id. at 172. Three
weeks after the plaintiff's employer was notified that
the plaintiff's fiancée filed an EEOC Charge
alleging sex discrimination, the plaintiff was terminated.
Id. There, the Supreme Court held “that the
term ‘aggrieved' in Title VII . . . enabl[es] suit
by any plaintiff with an interest arguably [sought] to be
protected by the statute, . . . while excluding plaintiffs
who might technically be injured in an Article III sense but
whose interests are unrelated to the statutory prohibitions
in Title VII.” Id. at 178 (second alteration
in original) (internal quotation marks and citation omitted).
The Court found that the plaintiff was a “person
aggrieved” within the meaning of Title VII because he
was employed by the same employer as the original EEOC
claimant and causing him injury was the employer's
intended means of harming the claimant (his fiancée).
Id. Thus, the plaintiff was within the “zone
of interests” sought to be protected by Title VII.
Id. Critical to the Court's analysis in
Thompson was the nature of the relationship between
that plaintiff and the party who engaged in the protected
activity. While the Supreme Court “decline[d] to
identify a fixed class of relationships for which third-party
[retaliatory acts] are unlawful, ” it explained that
“firing a close family member will almost always”
give rise to a violation of Title VII's anti-retaliation
provision, while “reprisal on a mere acquaintance will
almost never do so.” Id. at 175.
these principles to the instant action, the Court finds that
Mr. Harris is not an “aggrieved” person within
the meaning of Title VII, and therefore, he is not within the
zone of interests “sought to be protected by the
statutory provision.” Id. at 177-78. Here, Mr.
Harris, in his response brief, characterizes the relationship
between himself and Mr. Fleming as co-workers who were
“closely affiliated.” (ECF No. 11 at 18.) Mr.
Harris further argues that he and Mr. Fleming were
“members of the small crew entrusted with this freight
train, who belong to the same national union, the same local
union division, [who] report to the same manager, who were
tried together by Defendant[s] in one joint hearing, and who
both received disparate discipline in retaliation for
Plaintiff Fleming[‘s] protected activity.”
(Id. at 16.) Though Mr. Harris characterizes his
relationship with Mr. Fleming in this manner, such
characterization does not appear in the Complaint. At this
stage of the proceedings, the Court must examine the
sufficiency of the Complaint. See Giacomelli, 588
F.3d at 192. In so doing, there are no allegations in the
Complaint to show that the relationship between Mr. Harris
and Mr. Fleming was anything more than that of co-workers.
The only allegation in the Complaint with respect to the
relationship between Mr. Harris and Mr. Fleming is that they
served as crew members on train P05P214. (ECF No. 1 ¶
11.) Nothing about this allegation-or any other allegation in
the Complaint-permits the reasonable inference that, like the
plaintiff in Thompson, the relationship between Mr.
Harris and Mr. Fleming was such that Mr. Harris was
terminated to hurt and/or punish Mr. Fleming. See
Thompson, 562 U.S. at 178 (concluding that
“[h]urting [the plaintiff] was the unlawful act by
which the employer punished [his fiancée]”).
See Mackall v. Colvin, No. ELH-12-1153, 2015 WL
412922, at *24 (D. Md. Jan. 29, 2015) (explaining that the
plaintiff's associational retaliation claim fails, in
part, because the plaintiff “does not allege any facts
to establish that she and [a third-party who engaged in
protected activity] were anything more than ‘mere
acquaintances' or co-workers” of the same race and
who shared “the same chain of supervisors”);
Gibbs v. Norfolk So. Ry. Co., No. 3:14-cv-587-DJH,
2015 WL 4273208, at *5 (W.D. Ky. July 14, ...