United States District Court, E.D. North Carolina, Western Division
W. FLANGAN UNITED STATE DISTRICT JUDGE.
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.
OF THE CASE
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.
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
facts alleged in the complaint 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.
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).
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).
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."
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
Standard of Review
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 & ...