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Rodeia v. Biltmore Forest Country Club, Inc.

United States District Court, W.D. North Carolina, Asheville Division

May 29, 2018

CARLOS RODEIA, Plaintiff,
v.
BILTMORE FOREST COUNTRY CLUB INC., Defendant.

          MEMORANDUM & RECOMMENDATION

          DENNIS L. HOWELL UNITED STATES MAGISTRATE JUDGE.

         Before the Court are Defendant's Motions to Dismiss. [# 19, # 21]. On January 8, 2018, Defendant filed a Notice of Removal and included a copy of the summons and original complaint. [# 1 Ex. # 1, # 2]. On April 6, 2018, Plaintiff filed his Amended Complaint alleging age discrimination and retaliation, in violation of 29 U.S.C. § 621, et seq.; wrongful discharge, in violation of N.C. Gen. Stat. 143-422.2; intentional infliction of emotional distress; and negligent infliction of emotional distress. [# 18]. On April 20, 2018, Defendant filed both Motions to Dismiss. [# 19, # 21]. The District Court referred the motions to this Court. Accordingly, Defendant's motions are now before this Court for a Memorandum and Recommendation to the District Court. The Court will recommend that the District Court grant both of Defendant's Motions to Dismiss.

         I. Factual Background

         Plaintiff is Carolos Rodeia, a 61-year-old male of Portuguese descent who has been diagnosed with depression, anxiety, and “alcohol use disorder.” [Am. Compl. ¶¶ 3, 5]. Plaintiff is a resident of Buncombe County, North Carolina. [Id. at ¶ 3]. Defendant is Biltmore Forest Country Club, Inc. (BFCC), a corporation headquartered in Asheville, North Carolina. [Id. at ¶ 4].

         Beginning in October 2002, Defendant employed Plaintiff as a server and manager in its Men's Grill. [Id. at ¶ 6]. For many years Plaintiff was an excellent employee with little exception. [Id. at ¶ 7]. In early 2015, Defendant hired Hunter Cosgrove, a Caucasian male in his late twenties. [Id. at ¶ 8]. Cosgrove worked as a locker room supervisor. [Am. Compl. ¶ 8]. Cosgrove harassed, belittled, and treated Plaintiff in a “discriminatory manner.” [Id. at ¶ 9]. Plaintiff reported Cosgrove to his supervisor John Rector and to Defendant's Human Resources (HR). [Id. at ¶ 10]. HR took no corrective action. [Id.]. Throughout 2015, Cosgrove's behavior continued. [Id. at ¶ 11].

         In December 2015, HR reprimanded Plaintiff for “behavior that his Caucasian and younger colleagues also engaged in yet escaped punishment.” [Id. at ¶ 12]. Additionally, Plaintiff was given extra work and denied any support; Plaintiff's Caucasian and younger colleagues were not treated this way. [Am. Compl. ¶ 13].

         In February 2016, Defendant gave Cosgrove supervisory authority over Randy Smith. [Id. at ¶ 14]. Previously, Smith would assist Plaintiff when Plaintiff was overworked and understaffed. [Id.]. Once Cosgrove began supervising Smith, Cosgrove “intentionally and maliciously” prevented Smith from assisting Plaintiff. [Am. Compl. ¶ 15]. In May 2016, Plaintiff's work-related stress and anxiety began to interfere with his sleeping and eating habits. [Id. at ¶ 16].

         On July 18, 2016, a coworker of Plaintiff berated Plaintiff for duplicating work. [Id. at ¶ 17]. General manager Calvin J. Bolling Jr. witnessed the event. [Id. at ¶ 18]. Bolling high-fived the coworker, which Plaintiff states gave “tacit approval of [the coworker's] inappropriate conduct toward Plaintiff.” [Id.]. Bolling did not defuse the situation. [Id.]. Bolling did not treat Plaintiff's Caucasian and younger colleagues this way. [Am. Compl. ¶ 18].

         On July 25, 2016, Plaintiff received treatment for his workplace anxiety. [Id. at ¶ 19]. Plaintiff was prescribed medication. [Id.]. From July 29 to August 6, 2016, Plaintiff took a vacation in an attempt to assuage his anxiety. [Id. at ¶ 20]. Upon returning, Plaintiff found his work situation unchanged. [Id.]. On August 20, 2016, Plaintiff succumbed to pressure and intentionally cut himself at work. [Id. at ¶ 21]. Plaintiff states he cut himself due to his “anxiety, depression, and stress due to the continued discrimination.” [Am. Compl. ¶ 21]. The injury did not require surgery or stitches. [Id. at ¶ 22].

         Following the injury, Plaintiff was treated at Mission Hospital Copestone for anxiety, depression, and related issues for 11 days. [Id. at ¶ 23]. Then, Plaintiff attended four sessions of an employee assistance counseling program. [Id.]. While in residence at Mission Hospital Copestone, Dr. Gerry Travis, president of the Board of BFCC, visited Plaintiff. [Id. at ¶ 24]. Plaintiff had not requested Travis visit him. [Id. at ¶ 25]. Plaintiff overheard Travis discussing Plaintiff's medical condition with the attending physician, including Plaintiff's anxiety, depression, and alcohol abuse disorder. [Am. Compl. ¶ 26]. Travis had no legitimate purpose for visiting Plaintiff and asking about Plaintiff's medical conditions. [Id.].

         On September 7, 2016, Plaintiff returned to work and again found his work situation remained unchanged. [Id. at ¶ 27]. Hunter Cosgrove continued to “discriminate against” Plaintiff. [Id.]. Defendant did not discuss or offer a reasonable accommodation to Plaintiff. [Id. ¶ 28]. Plaintiff states that at a minimum Defendant could have removed Cosgrove and Plaintiff from each other's work environment. [Id. ¶ 29].

         On January 4, 2017, Plaintiff received a negative performance review. [Am. Compl. ¶ 30]. It was the first negative review in Plaintiff's fourteen years working for Defendant. [Id.]. Plaintiff states he acknowledged the review only because he did not fully understand it due to his limited English ability. [Id. at ¶ 31]. After taking the review home to analyze it with his wife, Plaintiff wrote a rebuttal and submitted it to his supervisor. [Id.].

         On March 10, 2017, Cosgrove harassed Plaintiff about how to do his job. [Id. at ¶ 32]. Plaintiff asked Cosgrove to leave several times. [Id.]. Cosgrove refused. [Am. Compl. ¶ 32]. This precipitated a verbal confrontation. [Id.]. Immediately thereafter, Cosgrove reported the incident to general manager Bolling. [Id. at ¶ 33]. Plaintiff was suspended and ultimately terminated. [Id.]. Cosgrove was neither suspended nor terminated. [Id.]. Plaintiff alleges that Defendant has now turned to targeting other older employees. [Id. at ¶ 34].

         On June 15, 2017, Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC). [Am. Compl. ¶ 35]. Plaintiff attached a copy of the charge and incorporated it into the Amended Complaint as Exhibit 1. [# 18 Ex. 1]. On September 6, 2017, the EEOC issued Plaintiff a Right to Sue letter. [Am. Compl. ¶ 36].

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(1).

         A motion to dismiss based on Federal Rule of Civil Procedure 12(b)(1) addresses whether the court has subject-matter jurisdiction to hear the dispute. Fed.R.Civ.P. 12(b)(1). Where a defendant contends a complaint fails to allege facts upon which the court can base subject matter jurisdiction, the court, like ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), assumes as true the factual allegations in the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If the defendant further contends that the jurisdictional allegations contained in the complaint are false, the court may go beyond the allegations of the complaint and conduct an evidentiary hearing in order to determine if there are facts to support the court's exercise of jurisdiction over the dispute. Id. The burden of establishing subject matter jurisdiction on a motion to dismiss rests with the party asserting jurisdiction. Id.; Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).

         Federal Rule of Civil Procedure 12(b)(6).

         The central issue for resolving a Rule 12(b)(6) motion is whether the claims state a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009). In considering a defendant's motion, the Court accepts the allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588 F.3d at 190-92. Although the Court accepts well-pled facts as true, it is not required to accept “legal conclusions, elements of a cause of ...


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