United States District Court, E.D. North Carolina, Western Division
NATHAN E. WILSON, Plaintiff,
DALY SEVEN, INC. doing business as The Holiday Inn, RDU, Defendant.
W. FLANAGAN United States District Judge.
matter is before the court on defendant's motion to
dismiss for lack of subject matter jurisdiction and motion
for judgment on the pleadings, pursuant to Federal Rule of
Civil Procedure 12(b)(1) and 12(c) (DE 36). Plaintiff filed
two responses in opposition. In this posture, the issues
raised are ripe for ruling. For the following reasons,
defendant's motion for judgment on the pleadings is
OF THE CASE
commenced this action pro se, on November 20, 2015, by motion
for leave to proceed in forma pauperis, with proposed
complaint asserting a claim of discrimination and discharge
based upon disability, pertaining to a period of alleged
employment with defendant between 2011 and 2013. The court
directed plaintiff to file a revised complaint before
completing frivolity review. Plaintiff filed a revised
complaint on July 6, 2016, which the court allowed to proceed
on frivolity review conducted April 6, 2017.
revised complaint, plaintiff asserts claims under the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and Title VII of the Civil
Rights act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e-5, based upon allegedly unlawful employment
practices on the basis of disability arising out of
plaintiff's alleged employment with defendant between
2011 and 2013. Plaintiff also asserts claims that defendant
“failed to forward fiduciary taxes collected from
paychecks, ” and “generally failed to acknowledge
[plaintiff's] employment” and failed to maintain
records, because of plaintiff's disability. (Rev. Compl.
(DE 15) at 1). Plaintiff seeks injunctive relief, back pay,
compensatory damages, and other relief in amounts to be
determined at trial.
answered and asserted affirmative defenses on May 25, 2017,
including defenses for lack of subject matter jurisdiction,
failure to state a claim, failure to exhaust administrative
remedies, and failure to file within applicable statute of
limitations. The court entered a case management order on
July 7, 2017, which set an October 6, 2017, deadline for
motions to dismiss, March 7, 2018, deadline for discovery,
and April 6, 2018, deadline for dispositive motions.
filed the instant motion to dismiss on October 6, 2017.
Defendant argues that plaintiff's claims based upon
alleged discrimination in employment between 2011 and 2013,
or related thereto, are barred for failure to exhaust
administrative remedies and failure to timely file an action;
and that plaintiff's claims concerning tax withholdings
are preempted by the Internal Revenue Code and fail for lack
of private right of action. Plaintiff responded on October
16, 2017, arguing that he should be entitled to further
discovery, and he responded on December 11, 2017, including
additional documents in support of his claims.
also filed motions to compel, motions for extensions of time
to complete discovery, and other documents relating to
discovery from January to March, 2018, and the court denied
as moot discovery motions in light of the pending motion to
dismiss. The court then stayed deadlines for discovery and
dispositive motions pending decision on the motion to
dismiss. Plaintiff filed on April 3, 2018, a motion to compel
OF ALLEGED FACTS
alleged facts pertinent to the instant motion may be
summarized as follows. In 2010, plaintiff was determined to
be permanently disabled due to symptoms of “various
neuro-degenerative disorders.” (Rev. Compl. ¶ 11).
On or about January 1, 2011, plaintiff applied for employment
at the Holiday Inn, RDU, and at that time plaintiff clearly
identified a history of permanent disability determination.
Plaintiff was hired and commenced employment for defendant at
the Holiday Inn, RDU, in January 2011, as a full-time van
driver. He worked full time from January 2011 to March 2013,
receiving compliments from guests and “achieving a
remarkable recovery.” (Id. ¶ 14). During
this time, plaintiff “complied with all ownership and
management requirements of employment.” (Id.).
January to March 2013, plaintiff “expressed
considerable concern about arbitrary adjustments in his work
schedule and various safety issues in violation of the
ADA.” (Id. ¶ 15). “These included
van maintenance, excessive fire control system failures,
guests' complaints concerning pool maintenance, water
pressure and sprinkler system failures resulting in frequent
random flooding of the public areas of the Holiday Inn,
last week of March 2013, plaintiff was
“suspended” due to “various vague
allegations of threatening behavior by [plaintiff] towards a
guest working for a major account.” (Id.
¶ 16). According to plaintiff, “[a]ll allegations
remain lacking anything remotely related to reality.”
(Id.). In April 2013, plaintiff provided information
to his employer “to clarify any concerns about various
vague allegations insinuated by management.”
(Id. ¶ 17). Plaintiff “offered to provide
and pay for a qualified polygraph exam to clarify anything
remotely related to reality from various vague insinuations
and allegations.” (Id. ¶ 18).
2013, plaintiff filed a “charge of
discrimination” with the United States Equal Employment
Opportunity Commission (“EEOC”). (Id.
¶ 19). That charge asserted discrimination based upon
retaliation and disability, described as follows:
I. During my employment with [defendant] I have been denied a
reasonable accommodation. On March 28, 2013, I was suspended.
On April 16, 2013, I was discharged. I had been employed with
the Holiday Inn/The Daly Seven since January, 2011. The