Brief-McGurrin v. Cisco Systems, Inc.

          MEMORANDUM OPINION AND ORDER

          LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE

         On 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 in part.

         I. BACKGROUND

         Plaintiff's Second Amended Complaint^[1] 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, 49.)

         Following 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.)

         Plaintiff's 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).

         II. STANDARD OF REVIEW

         Under 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.” Id.

         A court 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).

         III. DISCUSSION

         Randstad, 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^[2] and Title VII; (ii) unlawful termination in violation of NCEEPA; and (iii) retaliation in violation of § 1981 and Title VII.

         A. Race Discrimination

         Title 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 (2007).

         A 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)).

         Although 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).

         Courts 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 ...