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Tabb v. Board of Education of Durham Public Schools

United States District Court, M.D. North Carolina

February 19, 2019

WENDELL TABB, Plaintiff,



         Currently before this court is Defendant Board of Education of the Durham Public Schools' Motion to Dismiss Plaintiff Wendell Tabb's claims for employment discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, and retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203(a). (Doc. 18.) Defendant has filed a brief in support of its motion to dismiss, (Mem. of Law in Supp. of Mot. to Dismiss (“Def.'s Mem.”) (Doc. 19)); Plaintiff has responded, (Doc. 20); and Defendant has replied, (Doc. 21). For the reasons that follow, this court finds that Defendant's motion to dismiss should be granted in part and denied in part as set forth herein.


         The facts, construed in the light most favorable to Plaintiff, are as follows. Plaintiff has been employed at Hillside High School (“Hillside”) in Durham, North Carolina since 1987, first as a drama teacher and then as the Theater Director. (Amended Complaint (“Am. Compl.”) (Doc. 14) ¶¶ 24, 42.) As Theater Director, Plaintiff has produced numerous plays and won national recognition for his work with the Hillside drama department. (Id. ¶¶ 28, 32.)

         Plaintiff is compensated by Defendant according to a salary schedule for public school teachers and also receives a local teacher supplement “based upon years of experience and advanced degrees.” (Id. ¶¶ 33-34.) Plaintiff admits that both his base compensation and local teacher supplement are equivalent to those received by other similarly-qualified theater teachers in the district, and therefore does not dispute these parts of his compensation in this case. (Id. ¶¶ 35-36.) In addition to the local teacher supplement, which is determined by experience and education, Defendant also provides discretionary supplemental pay to teachers who work with students outside of traditional school hours. (Id. ¶¶ 37-40.) These supplements are based on the nature of the work. For example, there are separate supplements for: Theater Director work - directing and producing plays; Technical Theater Director (“Technical Director”) work - running lights and sets for plays; and for faculty members who coach athletic teams after school. (Id. ¶¶ 38-39.)

         Since at least the 2005-2006 school year, Plaintiff has been the sole drama faculty member at Hillside.[1] (Id. ¶ 42.) Three other high schools in the Durham school district, Riverside High School (“Riverside”), Durham School of the Arts (“DSA”), and Jordan High School (“Jordan”), each employed a Technical Director to assist a white Theater Director at some point since 2005-2006.[2] (Id. ¶¶ 76-101.) A Technical Director assists with “lighting, sound, sets and other technical duties necessary to stage high-quality theatre productions.” (Id. ¶ 42.) For example, since at least 2005, Riverside employed a Technical Director to assist Theater Director Key Strong. (Id. ¶ 76.) From the allegations in the Amended Complaint, it appears that Jordan employed a Technical Director to assist white Theater Director Artie Kline at some time between 2005 and 2017. (Id. ¶ 99.) Since 2005, DSA has continually employed two Theater Directors, one for the middle school and one for the high school, and a Technical Director. (Id. ¶ 90.) DSA currently employs four faculty in its drama department, having recently hired an additional teacher who receives a Theater Director supplement. (Id. ¶ 92.)

         Plaintiff performs the role of Technical Director in addition to his normal work directing and managing plays. (Id. ¶ 42.) Because of these additional responsibilities, Plaintiff consistently works large amounts of overtime. (Id. ¶ 43.) Defendant has also requested that Plaintiff work overtime without added pay to keep the Hillside theater open for special events and ceremonies. (Id. ¶ 130.) Plaintiff has asked Defendant for funding to hire a Technical Director, which Defendant has not provided. (Id. ¶ 45.) Plaintiff has also requested that Defendant pay him a Technical Director supplement and extra-duty pay for special event-related overtime, which Defendant has refused to do. (Id. ¶ 44-49.) Defendant did increase Plaintiff's base pay in October 2016 and provided Plaintiff with “an extra-duty pay form to compensate him for a non-theatre-related short-term task” sometime in 2017. (Id. ¶¶ 167-69.)

         Plaintiff's son, Emmanuel, suffers from congenital physical disabilities. (Id. ¶ 102.) Emmanuel attended the Durham Public Schools until at least April 2005, when a school therapist working with Emmanuel taped his mouth shut during class. (Id. ¶¶ 103-04.) In May 2006, Plaintiff and his wife sued the Durham Superintendent and Board of Education on behalf of their son for assault and intentional infliction of emotional distress, among other claims. (Id. ¶ 105.) The case received significant press attention and brought negative publicity to the Durham school system. (Id. ¶¶ 107-114.) The case settled in 2009 for $75, 000. (Id. ¶ 119.) Assistant Superintendent Thomas Crabtree, who was deposed in that lawsuit, later denied Plaintiff's repeated requests for a Technical Director and additional compensation. (Id. ¶¶ 115-17, 120.)


         “To 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)). In other words, the plaintiff must plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable” and must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556-57).

         When ruling on a motion to dismiss, this court must accept the complaint's factual allegations as true. Iqbal, 556 U.S. at 678. Further, “the complaint, including all reasonable inferences therefrom, [is] liberally construed in the plaintiff's favor.” Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004) (citation omitted). Despite this deferential standard, a court will not accept mere legal conclusions as true, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [will] not suffice.” Iqbal, 556 U.S. at 678.

         Employment discrimination complaints must meet the Twombly/Iqbal plausibility standard; however, the plaintiff is not required to make out a prima facie case or satisfy any heightened pleading requirements at the motion to dismiss stage. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McCleary- Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 584-85 (4th Cir. 2015). The plaintiff is, however, required to plead facts that permit the court to reasonably infer each element of the prima facie case, including less favorable treatment than similarly-situated employees outside of the protected class. McCleary-Evans, 780 F.3d at 585; see also Iqbal, 556 U.S. at 682-83 (plaintiff must plead facts supporting reasonable inference of discriminatory intent); Coleman, 626 F.3d at 191 (stating that a complaint must “assert facts establishing the plausibility” that plaintiff was terminated based on race). Once the plaintiff has made a plausible showing of each element, the claim will survive a motion to dismiss and the burden then shifts to the defendant to provide “some legitimate, nondiscriminatory reason” for the disparate treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).


         A. Timeliness of Plaintiff's Claims

         Plaintiff brings his employment discrimination claim in part under Title VII of the Civil Rights Act of 1964. The enforcement provisions of Title VII state that “[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 (2002) (stating that “a litigant has up to 180 or 300 days after the unlawful practice happened to file a charge with the EEOC, ” depending on whether the litigant also files their complaint with a state agency). “Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Morgan, 536 U.S. at 113. While Defendant does not contest the timeliness of Plaintiff's claims, this court will briefly examine whether Plaintiff has satisfied this threshold requirement.

         Here, Plaintiff's discrimination claim is based on Defendant's denial of additional drama staff and extra compensation, a series of discrete acts.[3] Plaintiff filed his Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on May 12, 2016. (Am. Compl. (Doc. 14) ¶ 165.) For the 300-day period to apply, Plaintiff must allege that he cross-filed a discrimination charge with a North Carolina state agency in addition to filing an EEOC charge. Compare Morgan, 536 U.S. at 114 (“Because Morgan first filed his charge with an appropriate state agency, only those acts that occurred 300 days before February 27, 1995, the day that Morgan filed his charge, are actionable.”) with Cravey v. Univ. of N.C. at Chapel Hill, 1:17CV1014, 2018 WL 4471732 at *1, *4 (M.D. N.C. Sept. 18, 2018) (slip op.) (stating that 180-day period applies where plaintiff filed only an EEOC charge). Because Plaintiff states only that he filed an EEOC charge, and does not mention a state agency filing, this court concludes that the relevant time period is 180 days.

         Plaintiff describes multiple requests for additional staffing and pay made to Defendant's administrators within the 180-day window immediately prior to his EEOC filing date. (See Am. Compl. (Doc. 14) ¶¶ 157-60.) Each refusal by Defendant within this time period is a discrete actionable event. Morgan, 536 U.S. at 114. Therefore, this court finds that Plaintiff's claims are timely filed pursuant to 42 U.S.C. § 2000e-5(e)(1).[4]

         As for Plaintiff's § 1981 claim, 42 U.S.C. § 1981 does not contain an independent statute of limitations. Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369, 371 (2004). However, 28 U.S.C. § 1658, passed in 1990 and enacted in 1991, specifies a four-year statute of limitations for any “civil action arising under an Act of Congress enacted after the date of the enactment of this section.” 28 U.S.C. § 1658. The Supreme Court has found that, because § 1981 was expanded by legislative action in 1991 to cover racial discrimination in any term or benefit of employment, the four-year federal statute of limitations applies to § 1981 race discrimination claims. R.R. Donnelly, 541 U.S. at 383-84. Plaintiff lists multiple denials of technical staffing, technical compensation and overtime in the four-year period prior to the date when Plaintiff filed his complaint in this matter (October 11, 2013 to October 11, 2017). (See Am. Compl. (Doc. 14) ¶¶ 151-60.) Therefore, Plaintiff's § 1981 claim is also timely.

         B. Statute of Limitations

         As described above, the applicable time limitation for Plaintiff's Title VII claim is 180 days and the statute of limitations for Plaintiff's § 1981 claim is four years prior to the filing date.

         For Title VII, the 180-day window “is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (footnote omitted). Because the 180-day limit is not a jurisdictional requirement, it follows that courts should not sua sponte dismiss those claims or pieces of claims that fall outside of the relevant time window, without action by the defendants contesting their timeliness. See id. at 398 (describing the holding in Mohasco Corp. v. Silver, 447 U.S. 807 (1980); observing that the Supreme Court did not dismiss plaintiff's untimely claims sua sponte, but rather assumed jurisdiction over all claims because the employer did not assert the affirmative defense). In a similar way, the § 1981 statute of limitations is an affirmative defense that must be raised by the defendant, either in the answer or in a motion to dismiss. Fed.R.Civ.P. 8(c)(1) (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including . . . statute of limitations.”); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653-54 (4th Cir. 2006) (“Where a defendant has failed to raise a statute of limitations defense by way of its answer, the defense is usually waived.”).

         Claims ordinarily are not dismissed due to statute of limitations at the motion to dismiss stage, unless “the facts necessary to conclude that plaintiff's claims are barred by the statute of limitations” are clearly set forth on the face of the complaint. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007); see also Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (stating that statute of limitations “defense may be raised under Rule 12(b)(6), but only if it clearly appears on the face of the complaint”) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).

         Plaintiff includes comparisons to other district high schools that are potentially outside of the relevant statutes of limitation. For example, Plaintiff refers to drama staffing prior to 2013 and, in certain places, fails to allege with specificity when critical hiring decisions or resignations occurred. (See, e.g., Am. Compl. (Doc. 14) ¶¶ 76-79 (describing drama department staffing at Riverside prior to 2012, which is outside the statutes of limitation for both Title VII and § 1981.)) At a later point in this case, it may become clear through discovery that certain or all of these events cannot form the central basis for Plaintiff's discrimination claim. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (stating that claims falling outside the statute of limitations “are barred, but a discriminatory allegation may still constitute relevant background evidence for valid claims”).

         However, it is not clear from the face of the Amended Complaint that any specific comparators are time-barred.[5]Defendant also failed[6] to raise statute of limitations as an affirmative defense in its motion to dismiss. (See generally Def.'s Mem. (Doc. 19).) While Defendant may still raise this defense in its answer, see Fed.R.Civ.P. 8(c)(1), this court will not presently dismiss sua sponte any claims (in whole or in part) as untimely. See, e.g., Eriline, 440 F.3d at 654 (“[T]he statute of limitations bears the hallmarks of our adversarial system of justice, a system in which the parties are obliged to present facts and legal arguments before a neutral and relatively passive decision-maker.”).


         Title VII and 42 U.S.C. § 1981 each prohibit employment discrimination on the basis of race. 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981. A race-based employment discrimination claim must assert that the plaintiff “belongs to a racial minority” and was either not hired, fired or suffered some adverse employment action due to his race. McDonnell Douglas, 411 U.S. at 802; see also Thompson v. Potomac ...

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