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Velasquez v. Sonoco Display & Packaging, LLC

United States District Court, M.D. North Carolina

April 11, 2018



          Joi Elizabeth Peake United States Magistrate Judge.

         This matter comes before the Court on a Motion to Dismiss Second Amended Complaint [Doc. #33] by Defendant Debbie's Staffing Services, Inc. (“Debbie's Staffing”). In this action, Plaintiff Junior Alex Velasquez (“Plaintiff”) brings five claims for relief against Debbie's Staffing and Defendant Sonoco Display & Packaging, LLC (“Sonoco”) as alleged joint employers: (1) a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) based on alleged racial and national origin discrimination, (2) a claim under Title VII for retaliation, (3) a claim under 42 U.S.C. § 1981 on the basis of race, (4) a claim for violation of the Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen. Stat. § 95-241, based on alleged retaliation for complaining about matters covered by the Occupational Safety and Health Act of North Carolina, and (5) a claim for wrongful discharge based upon a violation of REDA, or alternatively, the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1, et seq.


         Plaintiff is a Hispanic male born in El Salvador, now a Lawful Permanent Resident of the United States. He alleges that in 2014, he began work as a forklift driver for Sonoco at Sonoco's locations in Rural Hall, North Carolina and Winston-Salem, North Carolina. (Compl. [Doc. #19] ¶¶ 1, 26, 28.) According to the Second Amended Complaint (“Complaint”), Debbie's Staffing provides temporary staffing services to Sonoco, and had on-site offices and employees at the Sonoco locations to handle staffing for Sonoco. Plaintiff alleges that Debbie's Staffing issued his paychecks, and that both Debbie's Staffing and Sonoco employees supervised him and had the right to terminate his employment. (Id. ¶¶ 15, 31-32.)

         Plaintiff alleges that he performed all assignments, never received write-ups, and was given several raises until he was terminated in October 2016. (Id. ¶¶ 35, 36, 134.) According to the Complaint, a Sonoco supervisor began making derogatory comments on account of Plaintiff's race and national origin shortly after Defendant began working at Sonoco. (Id. ¶¶ 12, 41.) Plaintiff alleges that he was called a variety of derogatory names and comments based upon his race or national origin, including: “Rodriguez, ” “an illegal immigrant, ” “El Taco Loco, ” “Bin Laden, ” “Terrorist, ” “Julio Iglesias, ” “Jalapeno, ” and “wetback, ” and comments including, “This is America. Why do we hire immigrants?, ” “Speak English, ” and “Go back across the border.” (Id. ¶¶ 41-45, 51, 52, 57, 58, 61.) Plaintiff alleges that these comments were made by Sonoco employees and reported to Sonoco's supervisors, managers and lead men[1], identified as white males, who took no action to stop the comments. (Id. ¶¶ 12, 41, 47-61, 63-66, 68-72.) The Complaint alleges that Plaintiff sent an email on April 16, 2016, complaining to Sonoco “that minorities were being discriminated against in the way they were treated at work, ” but that Sonoco failed to take action to stop the harassment. (Id. ¶¶ 71, 72.)

         As to matters pertaining to worker safety, Plaintiff made several complaints about various safety issues related to the forklifts. (Id. ¶¶ 73-75, 77-81, 83-85.) Plaintiff alleges that on April 17, 2016, he submitted a written request to Sonoco for a meeting about safety rules and the need for such rules to apply to both Sonoco employees and Debbie's Staffing employees. (Id. ¶¶ 86-87.) Plaintiff next contends that during a Sonoco staff meeting in the late summer of 2016, he complained to a Sonoco manager about the lack of ventilation in the warehouse, “that there were dangerous, hot and dusty conditions, ” and inquired if “they could have the doors at least halfway open so that more air would circulate and it would not be hazardous to the workers.” (Id. ¶¶ 94-100.) According to Plaintiff, a Sonoco manager responded by telling him, “[i]f you don't like it, go find another job.” (Id. ¶ 103.) The Complaint alleges Plaintiff advised a Sonoco lead man that “he was going to report the issue to the Department of Labor, ” and further alleges his belief that Sonoco corporate policy required his complaint to be reported up the chain of command. (Id. ¶¶ 105, 106.) According to Plaintiff, “it became generally known in the workplace” that he made a complaint to the Department of Labor because he told a Sonoco lead man he was going to complain, and further told a co-worker that he had made a complaint. (Id. ¶ 114.) Plaintiff contends that his complaint to the Department of Labor was via tweet he sent as follows: “@USDOOL one question, is it okay for a workplace to be sealed close in time like summer over a 100 degrees with not [sic] ventilation.” (Id. ¶ 110) (alteration in original). Plaintiff alleges that after his complaint to the Department of Labor, the warehouse doors were left open with screens. Plaintiff alleges that the on-site supervisors for Debbie's Staffing were aware of his complaint and that “management personnel at Debbie's Staffing also commented to Plaintiff when the doors were opened” and “told Plaintiff that the doors were now opened because of him.” (Id. ¶¶ 116, 118-119.)

         According to the Complaint, “[o]n or about October 20, 2016, [a Sonoco supervisor] told Plaintiff that Lead Man Bullins [a Sonoco lead man] was going to fire Plaintiff, ” a statement that was later confirmed by another Sonoco supervisor telling Plaintiff that Lead Man Bullins had “decided to terminate Plaintiff.” (Id. ¶¶ 126-129.) The next day, Plaintiff questioned a Debbie's Staffing' onsite supervisor at Sonoco, Julicia Thomas, about his employment status, and “Supervisor Thomas looked on her computer and said she received an e-mail from Lead Man Roger Bullins saying that Plaintiff was being terminated.” (Id. ¶ 132.) According to the Complaint, the Debbie's Staffing supervisor expressed her disagreement with the decision but nevertheless “took Plaintiff's [Sonoco] badge and indicated to him that he was terminated.” (Id. ¶¶ 30, 130-133.) According to the Complaint, Plaintiff advised Julicia Thomas that he wanted to file a complaint of racial/ethnic harassment. He was directed to the Debbie's Staffing's offices downtown. The following day, he went to the downtown location and spoke to a Debbie's Staffing senior manager. The Debbie's Staffing senior manager told Plaintiff that he would discuss Plaintiff's complaint with a Sonoco manager. (Id. ¶¶ 135-137.) A few days later, Plaintiff was called into a meeting with a Debbie's Staffing vice-president who asked questions about the alleged “discrimination and harassment” at Sonoco. The Debbie's Staffing vice-president advised Plaintiff that a report would be sent to Sonoco's Human Resources department and that Debbie's Staffing managers would report back to him on what Sonoco advised. (Id. ¶¶ 138-39.) Shortly thereafter, a Debbie's Staffing vice-president contacted Plaintiff and told him that, according to Sonoco, he was terminated because he had “interrupted [a Sonoco Supervisor] during a meeting.” (Id. ¶ 142.) Plaintiff alleges that this was the meeting in the late summer of 2016 during which he complained of the closed warehouse doors creating a safety concern. (Id. ¶ 142.) Plaintiff contends that despite his protests, Debbie's Staffing upheld the termination decision.

         Plaintiff filed an EEOC charge against Sonoco and Debbie's Staffing. In Sonoco's response to the EEOC charge, Sonoco alleged that “Sonoco played no role in the decision to terminate Plaintiff.” (Id. ¶ 145.) According to the Complaint, Sonoco specifically took the position that “the decision to terminate Mr. Velasquez' assignment was made by Debbie's Staffing, and Sonoco had no input in the decision.” (Id. ¶ 146.)

         Plaintiff contends that Sonoco and Debbie's Staffing discriminated against him by creating a hostile work environment and terminating him because of his race and/or national origin, and retaliated against him by terminating him for complaining about the discrimination and for reporting work safety issues at Sonoco. (Id. ¶¶ 148-149, 151-204.)

         Defendant Sonoco filed an Answer, and this case proceeded to discovery, with a deadline for the close of discovery of October 1, 2018. Defendant Debbie's Staffing did not file an Answer, but instead filed a Motion to Dismiss, contending that all of Plaintiff's claims relate to actions by Sonoco employees, and that Plaintiff failed to state any claim against Debbie's Staffing. However, discovery was not stayed, and discovery is currently proceeding as to both Defendants. For the reasons set out below, the Court concludes that the issues raised by Debbie's Staffing are best resolved on a more complete record after discovery, rather than on the present motion to dismiss. Therefore, the Court will recommend that the motion to dismiss be denied, without prejudice to further consideration of these issues on dispositive motions after the completion of discovery.


         A. Standard for Motion to Dismiss

         The Supreme Court has held 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, 510, 515 (2002). Instead, that “the ordinary rules for assessing the sufficiency of a complaint apply.” Id. Under the ordinary rules that now apply, a plaintiff fails to state a claim on which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) when the complaint does not “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Woods v. City of Greensboro, 885 F.3d 639 (4th Cir. 2017). “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 ...

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