Everett v. Redmon

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 19). The issues raised have been fully briefed by the parties, and in this posture are ripe for decision. For the following reasons, defendants' motion is granted in part and denied as moot in remaining part.

         STATEMENT OF THE CASE

         This action, commenced on May 29, 2018, concerns plaintiff's termination of employment from the Housing Authority of the City of Wilmington, North Carolina (“Housing Authority”). Plaintiff asserts federal claims against defendants under 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiff also raises state common law claims for negligent supervision, defamation, and intentional infliction of emotional distress. Plaintiff amended his complaint on June 25, 2018. On August 17, 2018, plaintiff voluntarily dismissed defendant Leasha Johnson (“Johnson”) from this action without prejudice.^[1] Defendants Katrina Redmon (“Redmon”) and Matt Scaparro (“Scaparro”) timely filed the instant motion to dismiss plaintiff's entire complaint.

         STATEMENT OF FACTS

         The facts alleged in the complaint^[2] may be summarized as follows. Plaintiff worked as the lead maintenance mechanic at Houston Moore, a property managed by the Housing Authority. (Compl. ¶¶ 15-16). On Wednesday, November 18, 2015, William Vereen (“Vereen”), a contractor with a firm called Top Notch Cleaning Services (“Top Notch”), asked plaintiff to accompany him to 1618 South 15th Street to look at some damaged floor tiles. (Id. ¶ 17). Plaintiff met Vereen at the property. (Id.). Vereen showed plaintiff several loose floor tiles in the bathroom and asked plaintiff if the glue beneath the floor tiles was asbestos. (Id.). Plaintiff told Vereen to contact Johnson, and escorted Vereen to Johnson's office . (Id. ¶¶ 17, 18).

         Shortly thereafter, Johnson called plaintiff. (Id. ¶ 18). Johnson directed him to return to the unit and see if there was asbestos on the floor. (Id.). Plaintiff asked Johnson if Vereen was still in her office, and Johnson said yes. (Id.). Johnson did not tell plaintiff that she placed the call on speaker phone, and Vereen heard plaintiff tell Johnson that he believed asbestos was beneath the floor tiles. (Id.). Vereen accused plaintiff of failing to inform him that asbestos was being used in the units. (Id.).

         The following day, plaintiff met with defendant Scaparro, Johnson, and Vernice Hamilton (“Hamilton”), the Housing Authority's director of human resources. (Id. ¶ 19). Defendant Scaparro and Johnson allegedly made inconsistent accusations regarding plaintiff's conduct, including 1) that plaintiff told Vereen that the material beneath the floor tile was asbestos, 2) that plaintiff should have told Vereen he did not know if it was asbestos, and 3) that plaintiff knew there was asbestos beneath the floor tiles and failed to tell Vereen asbestos was present. (Id.). Defendant Scaparro stated that, going forward, maintenance personnel should respond to a contractor's question concerning presence of any asbestos by saying that they do not know. (Id. ¶ 20). Afterwards, Johnson directed plaintiff to assist with abatement of asbestos beneath the floors without providing him protective gear. (Id. ¶ 21).

         On November 23, 2015, plaintiff was called to a meeting with Johnson and defendant Scaparro. (Id. ¶ 22). Defendant Scaparro informed plaintiff that he was sending plaintiff home pending investigation of the incident on November 18, 2015. (Id.). Later that same day, defendant Scaparro informed plaintiff the Housing Authority was terminating plaintiff employment for a willful “violation” of material facts regarding the possibility of asbestos located at Houston Moore. (Id. ¶¶ 22, 23).

         Since becoming chief executive officer (“CEO”) of the Housing Authority, Redmon has allegedly fired or forced out at least 28 employees. (Id. ¶ 24). Approximately 17 out of 28 employees were African-American. (Id.). Plaintiff alleges that such a percentage is disproportionate when compared to the presence of African-Americans in the general population of New Hanover county. (Id.). Plaintiff also generally alleges that several African-American former employees have accused the Housing Authority of discrimination. (Id. ¶ 27).

         COURT'S DISCUSSION

         A. Standard of Review “To 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).

         B. Analysis

         The court takes up each of plaintiff's federal claims, followed by plaintiff's state law claims.

         1. 42 U.S.C. § 1983

         “Under 42 U.S.C. § 1983, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159-60 n.3 (4th Cir. 1997) (en banc) (citing 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988)). Plaintiff points to four different sources of federal rights: the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.^[3] The court first considers plaintiff's equal protection and dues process claims under the Fourteenth Amendment. The court then addresses plaintiff's First, ...