United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendant's motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
and 12(b)(6) (DE 24). Pursuant to 28 U.S.C. §
636(b)(1)(B), United States Magistrate Judge Robert B. Jones,
Jr., entered memorandum and recommendation
(“M&R”), (DE 30), wherein it is recommended
that the court grant the motion and dismiss plaintiff's
claims. Plaintiff filed objections to the M&R, and
defendant responded. In this posture, the issues raised are
ripe for ruling. For the reasons that follow, the court
adopts the M&R, except as set forth herein, and dismisses
plaintiff's claims without prejudice.
court incorporates herein by reference the background of this
case set forth in the M&R, while summarizing below key
procedural facts as pertinent to the court's discussion
herein. In plaintiff's amended complaint, plaintiff
asserts employment discrimination claims against defendant,
his former employer, for (1) age discrimination based upon
termination, (2) age discrimination based upon failure to
rehire, and (3) retaliation for unspecified conduct, in
violation of the Age Discrimination in Employment Act
(“ADEA”). Plaintiff seeks back pay,
reinstatement, punitive damages, jury trial, and such other
relief as may be appropriate.
seeks dismissal of plaintiff's claims of failure to
rehire and retaliation, for lack of subject matter
jurisdiction under Rule 12(b)(1), because plaintiff fails to
include any allegations related to these claims in his Equal
Employment Opportunity Commission (“EEOC”) charge
of discrimination. In support of dismissal, defendant relies
upon plaintiff's EEOC charge. Defendant seeks dismissal
of plaintiff's termination claim for failure to state a
claim under Rule 12(b)(6), because plaintiff failed to file
his EEOC charge within 180 days of the date plaintiff was
notified of his termination. In opposition to the motion to
dismiss, plaintiff relies upon his declaration.
M&R recommends dismissal without prejudice of
plaintiff's claims of failure to rehire and retaliation,
and it recommends dismissal with prejudice of plaintiff's
termination claim, on the grounds asserted by defendant.
Plaintiff filed objections on February 11, 2019. Defendant
responded on February 20, 2019.
Standard of Review
district court reviews de novo those portions of the M&R
to which specific objections are filed. 28 U.S.C. §
636(b). The court does not perform a de novo review where a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
motion to dismiss under Rule 12(b)(1) challenges the
court's subject matter jurisdiction. 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 & Potomac R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).
survive a motion to dismiss” under Rule 12(b)(6),
“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, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated,
“[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff, ” but does not consider “legal
conclusions, elements of a cause of action, . . . bare
assertions devoid of further factual enhancement[, ] . . .
unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
objections, plaintiff challenges the determination in the
M&R that plaintiff's termination claim is time barred
and not subject to equitable tolling. The M&R cogently
addressed the deficiencies in plaintiff's termination
claim. Accordingly, upon de novo review, the court adopts the
analysis in the M&R as to the basis for dismissal of this
claim. The court writes separately to address the