United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE
January 16, 2018, Plaintiff initiated this employment
discrimination and wrongful termination action in Superior
Court of Durham County, North Carolina, against Defendant
Cisco Systems, Inc. (“Cisco”) and Defendants
Randstad North America, Inc., Randstad US, LLC, and Randstad
Professionals US, LLC (collectively “Randstad”).
(ECF No. 1-1 at 2, 4, 17-19.) Defendants removed the case to
this Court on February 23, 2018 on the basis of federal
question and supplemental jurisdiction. (ECF No. 1
¶¶ 7-8.) Before the Court is Randstad's motion
for judgment on the pleadings. (ECF No. 23.) For the reasons
stated below, this motion will be granted in part and denied
Second Amended Complaint alleges that Defendants unlawfully
discriminated against her because of her race, that they
retaliated against her, and that she was terminated in
violation of North Carolina public policy. (ECF No. 31
¶¶ 62-94.) Plaintiff, an African American female,
is a recruitment professional, specializing in the
recruitment and employment of minority candidates.
(Id. at 1; ECF No. 31 ¶31.) Randstad is a
temporary staffing agency, through which Plaintiff was
employed at Cisco from June 2010 to January 2015.
(Id. ¶¶ 3, 16-17, 49.) Throughout
Plaintiff's assignment at Cisco, she alleges that she
“identif[ied] systemic problems with Cisco's
minority recruitment efforts, ” and brought those to
the attention of her supervisors. (Id. ¶¶
24, 30.) According to Plaintiff, after she refused her
supervisor's request to “disposition” all her
remaining minority candidates, thereby removing them from
candidacy for employment, and refused to “cover up the
. . . data” related to such action, she was terminated
from her position at Cisco. (Id. ¶¶ 46-47,
Plaintiff's termination from Cisco, Plaintiff's
supervisor at Randstad, Amy Laymon, stated that Randstad
“would assist Plaintiff in finding employment, either
at Cisco or elsewhere, in addition to investigating the
circumstances under which Plaintiff was terminated.”
(Id. ¶¶ 16, 53.) In March 2015, a Randstad
Human Resources (“HR”) representative, Lori
Sargent, interviewed Plaintiff regarding her Complaint
against Cisco. (Id. ¶ 58.) At the end of their
interview, Plaintiff alleges that “Ms. Sargent informed
Plaintiff that if she contacted an attorney or the Equal
Employment Opportunity Commission, Plaintiff would no longer
be able to communicate with Randstad HR or work with Randstad
in any capacity.” (Id.)
Second Amended Complaint includes five causes of action:
claims of disparate treatment (Claim 1) and retaliation
(Claim 2) in violation of 42 U.S.C. § 1981
(“§ 1981”); claims of disparate treatment
(Claim 4) and retaliation (Claim 5) in violation of 42 U.S.C.
§ 2000e et seq. (“Title VII”); and
a claim of wrongful discharge in violation of North Carolina
public policy (Claim 3), pursuant to the North Carolina Equal
Employment Practices Act (“NCEEPA”). (ECF No. 31
¶¶ 62-94.) Randstad has filed an Answer, (ECF No.
39), and now moves for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c), (ECF No. 23).
STANDARD OF REVIEW
Rule 12(c) of the Federal Rules of Civil Procedure,
“[a]fter the pleadings are closed--but early enough not
to delay trial--a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). Such a motion is
generally analyzed “under the same standards as a
motion to dismiss under Rule 12(b)(6).” Occupy
Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013).
Like a Rule 12(b)(6) motion, “[a] Rule 12(c) motion
tests only the sufficiency of the complaint and does not
resolve the merits of the plaintiff's claims or any
disputes of fact.” Drager v. PLIVA USA, Inc.,
741 F.3d 470, 474 (4th Cir. 2014). Unlike a Rule 12(b)(6)
motion to dismiss, however, the Court, when deciding a motion
for judgment on the pleadings, may consider the Answer.
Alexander v. City of Greensboro, 801 F.Supp.2d 429,
433 (M.D. N.C. 2011). The factual allegations contained in
the Answer “are taken as true only where and to the
extent they have not been denied or do not conflict with the
complaint.” Jadoff v. Gleason, 140 F.R.D. 330,
331 (M.D. N.C. 1991). Because the plaintiff is not required
to reply to the Answer, “all allegations in the
[A]nswer are deemed denied.” Id. at 332. The
defendant cannot therefore “rely on allegations of fact
contained only in the [A]nswer, including affirmative
defenses, which contradict Plaintiffs' complaint.”
should grant a motion for judgment on the pleadings
“only . . . if, after accepting all well-pleaded
allegations in the plaintiff's complaint as true and
drawing all reasonable factual inferences from those facts in
the plaintiff's favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
in its motion for judgment on the pleadings, argues that
“Plaintiff fails to state a plausible cause of action [
] against Randstad under Section 1981, Title VII, or North
Carolina state law.” (ECF No. 23 at 3.) The Court will
now address Plaintiff's claims against Randstad: (i) race
discrimination in violation of § 1981 and Title VII;
(ii) unlawful termination in violation of NCEEPA; and (iii)
retaliation in violation of § 1981 and Title VII.
VII prohibits an employer from “discharg[ing] any
individual, or otherwise . . . discriminat[ing] against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race.” 42 U.S.C. § 2000e-2(a)(1).
To prove a prima facie case of discrimination under Title
VII, a plaintiff must show: “(1) membership in a
protected class; (2) satisfactory job performance; (3)
adverse employment action; and (4) different treatment from
similarly situated employees outside the protected
class.” Coleman v. Md. Ct. of Appeals, 626
F.3d 187, 190 (4th Cir. 2010), aff'd sub nom. Coleman
v. Court of Appeals of Md., 566 U.S. 30 (2012). An
adverse employment action “constitutes a significant
change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change
in benefits.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998). Although a plaintiff
does not have to specifically plead every element of a prima
facie case of discrimination in her complaint,
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511
(2002), she must still plead “enough facts to state a
claim to relief that is plausible on its face, ”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
staffing agency, such as Randstad, may be held liable for
employment discrimination in violation of Title VII by
directly discriminating against an employee through their own
actions, or by failing to take “corrective
action” to remedy discrimination by a co-employer about
which they knew or should have known. See Butler v. Drive
Auto. Indus. of Am., Inc., 793 F.3d 404, 410 (4th Cir.
2015) (explaining joint employer doctrine); Williams v.
Grimes Aerospace Co., 988 F.Supp. 925, 937-38 (D.S.C.
1997) (“[W]hen an employee claims discrimination
against two joint employers, she must show that [each]
defendant knew or should have known of the discriminatory
conduct and that it failed to take those corrective measures
within its control.” (second alteration in original)
(internal quotation marks omitted)).
the Fourth Circuit has not addressed a joint employer's
liability for discriminatory conduct by a co-employer, many
district courts within this circuit, in addition to courts in
other circuits, have addressed the issue. See Velasquez
v. Sonoco Display & Packaging, LLC, No. 1:17CV865,
2018 WL 1773128, at *3-*4 (M.D. N.C. Apr. 11, 2018),
report and recommendation adopted, 2018 WL 2016506
(M.D. N.C. Apr. 30, 2018); Crump v. United States
Dep't of Navy, Civ. A. No. 2:13cv707, 2016 WL
901262, at *1-2 (E.D. Va. Mar. 3, 2016); Williams,
988 F.Supp. at 937-38; see also Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 228-29 (5th Cir.
2015); Whitaker v. Milwaukee Cty., Wis., 772 F.3d
802, 812 (7th Cir. 2014); Lima v. Addeco, 634
F.Supp.2d 394, 400-01 (S.D.N.Y. 2009), aff'd sub nom.
Lima v. Adecco and/or Platform Learning, Inc., 375
Fed.Appx. 54 (2d Cir. 2010). To hold an employer liable for
conduct by a joint employer, a plaintiff must show that the
defendant “knew or should have known of [a
co-employer's] discriminatory conduct and that it failed
to take . . . corrective action within its control.”
Williams, 988 F.Supp. at 937 (internal quotation
marks omitted). The EEOC's enforcement guidance on this
issue gives examples of some types of corrective measures a
temporary employment agency may take to remedy discrimination
that it knows about:
Corrective measures may include, but are not limited to: 1)
ensuring that the client is aware of the alleged misconduct;
2) asserting the firm's commitment to protect its workers
from unlawful harassment and other forms of prohibited
discrimination; 3) insisting that prompt investigative and
corrective measures be undertaken; and 4) affording the
worker an opportunity, if (s)he so desires, to take a
different job assignment at the same rate of pay.
Equal Employment Opportunity Commission, EEOC Notice No.
915.002, Enforcement Guidance: Application of EEO Laws to
Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, 1997 WL 33159161, at *11 (Dec. 3,
1997) [hereinafter “EEOC Enforcement Guidance”];
see also Signore v. Bank of Am., N.A., Civ. A. No.
2:12cv539, 2013 WL 6622905, at *6 (E.D. Va. Dec. 13, 2013)
(quoting EEOC Enforcement Guidance).
have generally denied dispositive motions where it is clear
that the staffing agency knew or should have known about the
discrimination before or at the time of the termination.
See Velasquez, 2018 WL 1773128, at *4 (denying
motion to dismiss when plaintiff complained of discrimination
in the meeting when he was terminated from his placement);
Byorick v. CAS, Inc., 114 F.Supp.3d 1123, 1127-28
(D. Col. 2015) (denying staffing agency's motion to
dismiss when plaintiff “expressed her concern”
multiple times “about possible retaliatory
actions”); Signore, 2013 WL ...