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Wilson v. Daly Seven, Inc.

United States District Court, E.D. North Carolina, Western Division

April 16, 2018

NATHAN E. WILSON, Plaintiff,
v.
DALY SEVEN, INC. doing business as The Holiday Inn, RDU, Defendant.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This 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 granted.

         STATEMENT OF THE CASE

         Plaintiff 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.

         In his 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.

         Defendant 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.

         Defendant 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.[1]

         Plaintiff 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 production.

         STATEMENT OF ALLEGED FACTS

         The 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.).

         From 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, RDU.” (Id.).

         In the 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).

         In May 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 Holiday ...

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