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Sam-Kabba v. G4S Secure Solutions (USA) Inc.

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

March 1, 2019




         This matter comes before the court on defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (DE 19). Plaintiff responded in opposition, and the time for reply has passed. In this posture, the issues raised are ripe for ruling. For the following reasons, the motion is denied.


         Plaintiff filed a complaint in Wake County Superior Court, on April 4, 2018. asserting employment discrimination claims against defendant, his former employer. Defendant removed to this court, and plaintiff filed an amended complaint on August 7, 2018. Plaintiff asserts a claim for retaliation and discrimination on the basis of national origin, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2OOOe, et seq. ("Title VII"), and a state law claim for wrongful termination. Plaintiff seeks compensatory damages, front pay, reasonable attorney's fees and costs, and trial by jury.

         Defendant filed the instant motion to dismiss on August 8, 2018, asserting that plaintiff failed to exhaust administrative remedies and is barred by the doctrine of res judicata. In support of the motion, defendant relies upon the following documents: 1) plaintiffs Equal Employment Opportunity Commission ("EEOC") charge of discrimination; and 2) state court documents in a case commenced by plaintiff on December 21, 2016 (the "December 2016 action"). Plaintiff responded in opposition on September 25, 2018, relying upon additional documents filed in the instant case in Wake County Superior Court. Defendant did not file a reply.


         The facts alleged in the complaint[1] may be summarized as follows. Plaintiff is an "African-American male citizen whose national origin is Sierra Leonean, and, a citizen and resident of Raleigh, Wake County, North Carolina." (Compl. ¶ 1). Defendant is a Florida corporation in the business of providing "security services." (Id. ¶ 2). Defendant hired plaintiff as a Security Officer in or around October 2010, and plaintiff received above average performance appraisals for five years.

         "On or around July, 2014, [p]laintiff was apprised that a new position of Shift Supervisor would be filled from the then existing security staff located in Morrisville, North Carolina." (Id. ¶ 11). "Plaintiff inquired of his Site Supervisor, Tyron Bullock (American), as to the process for applying for the new position." (Id. ¶ 12). According to plaintiff, "Bullock intentionally provided [p]laintiff an incorrect link to the website from which to apply online." (Id. ¶ 13). "Despite being given an incorrect link, [p]laintiff timely applied for the position he knew he was qualified for." (Id. ¶ 14). Bullock interviewed plaintiff for the position on or around July 17, 2015. In or around mid-August, 2015, "[p]laintiff learned that the Shift Supervisor's position had been filled by a lesser qualified American co-worker." (Id. ¶ 16). "On or around August 13, 2015, [p]laintiff inquired of Bullock about the position he believed he was wrongfully and illegally denied." (Id. ¶ 17). "As a result of questioning Bullock about the denied promotion, Bullock verbally insulted [p]laintiff" (Id. ¶ 18). "That same day, [p]laintiff contacted Michael Fulks, General Manager, and reported his confrontation with Bullock." (Id. ¶ 19). "On or around August 19, 2015, [p]laintiff received an email from Bullock informing him of a meeting with Fulks on August 20, 2015." (Id. ¶ 20). According to plaintiff, "the email was not intended for [p]laintiff, but inadvertently sent to [p]laintiff as it also contained Bullock's communication to Fulks regarding [plaintiff s] requested meeting with him." (Id. ¶ 21). "In the email, Bullock avers to Fulks, 'I have no earthly idea why he wants to see you. He is really becoming a cancer, sorry to put it that way. I advise you to listen very carefully so you can understand him. Good Luck!'" (Id. ¶ 22).

         "On or around August 24, 2015, [p]laintiff inquired of Bullock about the email." (Id. ¶ 23). "Plaintiff informed Bullock that he believed the email was received by him inadvertently and that he believed that telling the General Manager, Fulks, that he was hard to understand was discriminatory." (Id. ¶ 23). According to plaintiff, "Bullock responded by insulting Plaintiff due to his accent." (Id. ¶ 24). Plaintiff thereafter reported the same to Fulks, and Fulks scheduled a meeting with plaintiff. (Id. ¶¶ 25-26). "Plaintiff also complained about his treatment by use of the company's 'hotline' phone number." (Id. ¶ 27).

         On August 25, 2015, Plaintiff met with Fulks and other managers. According to plaintiff, "during the meeting, [p]laintiff was never given any opportunity to explain why he felt discriminated against and the need for a meeting." (Id. ¶ 29). Plaintiff "was informed by Fulks that 'at the request of the client,' he must be removed from the site." (Id. ¶30). "Plaintiff was informed he'd be moved to a site twenty-five minutes away, with a decrease in pay of $1.50 per hour." (Id. ¶ 31). "Plaintiff thereafter contacted [defendant's] corporate office regarding his proposed removal and demotion." (Id. ¶32).

         On or around October 15, 2015, plaintiff filed a "Charge of Discrimination" with the EEOC. On or around August 15, 2017, the EEOC issued a "Determination" that there was reasonable cause to believe that the denial of the promotion to Shift Supervisor and subsequent removal from the company violated Title VII. On or around December 15, 2017, the EEOC issued a "Right-To-Sue letter" to plaintiff.


         A. Standard of Review

         A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams v. Bain. 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant raises a "facial challenge[] to standing that do[es] not dispute the jurisdictional facts alleged in the complaint," the court accepts "the facts of the complaint as true as [the court] would in context of a Rule 12(b)(6) challenge." Kenny v. Wilson. 885 F.3d 280, 287 (4th Cir. 2Ol8).When a defendant challenges the factual predicate of subject matter jurisdiction, a court "is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & ...

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