United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., UNITED STATES DISTRICT JUDGE
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.)
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.)
at least the 2005-2006 school year, Plaintiff has been the
sole drama faculty member at Hillside. (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. (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.)
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.)
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. ¶¶
STANDARD OF REVIEW
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).
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.
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
FILING REQUIREMENTS AND STATUTE OF
Timeliness of Plaintiff's Claims
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
Plaintiff's discrimination claim is based on
Defendant's denial of additional drama staff and extra
compensation, a series of discrete acts. 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
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. §
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.
Statute of Limitations
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.
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.”).
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.
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”).
it is not clear from the face of the Amended Complaint that
any specific comparators are time-barred.Defendant also
failed 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
EMPLOYMENT DISCRIMINATION UNDER TITLE VII AND §
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 ...