United States District Court, E.D. North Carolina, Eastern Division
DR. JAMES MCKERNAN, Professor, Plaintiff,
GRANT B. HAYES, Dean, College of Education; EAST CAROLINA UNIVERSITY; DONNA PAYNE, Vice Chancellor, Legal Affairs East Carolina University; CECIL STATON, Chancellor, East Carolina University; RON MITCHELSON, Provost; DR. LINDA PATRIARCA, Professor - Department of Special Education, Foundations and Reading; MARYLYN SHEERER, Former Dean and Provost; CHARLES COBLE, Former Dean of Education East Carolina University; HENRY PEEL, Former Interim Dean; DR. GREGORY ALAN HASTINGS; and LAKESHA ALSTON FORBES, Director, Office of University & Equity, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on pro se plaintiff's
amended complaint, (DE 20), which the court construes as a
motion to amend, where plaintiff is precluded from filing an
amended pleading as a matter of course. It also comes
before the court on defendants' motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1),
12(b)(2), and 12(b)(6). (DE 53). Defendants' motion,
vigorously opposed by plaintiff, is the subject of a separate
motion to strike. (DE 57). The issues raised are ripe for
ruling. For the reasons that follow, where plaintiff's
motion to strike must fail, and his attempted amendments are
futile, the court grants defendants' motion to dismiss.
OF THE CASE
a professor at East Carolina University (“ECU”),
commenced this employment discrimination action on February
16, 2018, against defendant Grant B. Hayes
(“Hayes”), dean of ECU's College of
Education, asserting claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et s e q
., (“Title VII”); the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq.,
(“ADEA”); and the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq.,
(“ADA”); Vietnam Era Veterans' Readjustment
Assistance Act, 38 U.S.C. § 4211, et s e q .,
(“VEVRAA”); and North Carolina General Statute
moved for summary judgment on March 20, 2018, arguing
defendant Hayes failed to respond to complaint within 21 days
and that plaintiff did not consent to an extension of time
for defendant to so do. However, defendant Hayes had already
moved for extension of time to file answer, informing the
court that plaintiff did not consent, which motion was
granted on March 9, 2018. The court denied plaintiff's
motion for summary judgment on April 30, 2018.
April 23, 2019, defendant Hayes filed motion to dismiss,
arguing the above statutes provide for no individual
liability, plaintiff failed to exhaust administrative
remedies, plaintiff's claims are time-barred, and
plaintiff failed to state a claim. On June 22, 2018,
plaintiff filed amended complaint and his response to the
motion to dismiss, 1) providing additional facts to those
found in plaintiff's complaint, 2) alleging a violation
of the Due Process Clause to the United States Constitution,
and 3) adding defendants ECU, Donna Payne, Cecil Staton, Ron
Mitchelson, Marylyn Sheerer (“Sheerer”), Charles
Coble (“Coble”), Henry Peel (“Peel”),
Dr. Gregory Alan Hastings (“Hastings”), Linda
Patriarca (“Patriarca”), and Lakesha Alston
Forbes. All individual defendants are current or former
employees of defendant ECU.
3, 2018, defendant Hayes, the only defendant served by this
date, filed motion to dismiss plaintiff's amended
complaint, addressing filings made by plaintiff on both June
22, 2018, and July 3, 2018. (See DE 24 at 2).
Thereafter, remaining defendants were served. The instant
motion to dismiss, joined in by all defendants including
defendant Hayes, followed on September 5, 2018. On that same
day, the court held the instant motion to dismiss mooted
previous motions to dismiss in that all defendants had now
appeared, all were represented by the same counsel, and all
joined the instant motion to dismiss.
September 24, 2018, plaintiff filed response in opposition to
defendants' motion to dismiss. Plaintiff also filed the
instant motion to strike defendants' motion to dismiss as
being repetitive. (See DE 57 at 2; see also
DE 62 at 1-2 (“Defendant's counsel has three times
used the exact same claims when once would have
OF THE FACTS
as indicated otherwise, the following is a summary of the
alleged facts as found in plaintiff's most recently filed
amended complaint. (See DE 22-10).
is 72 years old, a combat veteran of the Vietnam War, and has
been disabled and physically handicapped with ambulatory
dysfunction in walking since 2008. Additionally, plaintiff is
an American and holds Irish citizenship and an Irish/European
Union Passport. Plaintiff alleges generally that in the early
1990s, he was appointed to the Lora Wilson King Distinguished
Professorship and Endowed Chair of Education (“King
Chair”) at ECU. Thereafter, he was wrongfully
terminated from the position and failed to resecure it, even
though he applied for the position four more times, the
latest application occurring on January 15, 2017 (“2017
search”). He complains that he has not been afforded
preference in hiring on the basis of his membership in
multiple protected groups and that he has been subjected to a
hostile work environment for 26 years.
specifically, plaintiff alleges following appointment to the
King Chair with permanent tenure in 1991 or 1992, plaintiff
never resigned from the position voluntarily. Following a
year's leave of absence approved without pay, plaintiff
attempted to resume the King Chair but was not allowed in
that “administrators at the College of Education
believed and assumed that Plaintiff was not going to
return.” (DE 22-10 at 19-20). Instead, he could only
return to defendant ECU as a “teaching
professor.” (Id.). Upon his return, plaintiff
“found his computer, library of personal books and
documents and other personal property removed”
(regarding which defendant Coble “feigned having no
knowledge”), and promised funding revoked.
(Id. at 21).
1994, plaintiff submitted a grievance, which the ECU
grievance committee heard. (Id. at 20; see
also DE 1-2 at 6). Plaintiff alleges that the ECU
grievance committee found that plaintiff had been wrongfully
removed from the King Chair, but that the chancellor and
board of governors would not return him to the position. (DE
22-10 at 20; see also DE 1-2 at 6). Plaintiff
alleges he appealed the grievance committee decision via
“Administrative Review” to a court in Beaufort
County, North Carolina, wherein the judge granted relief in
favor of defendant ECU in 1995. (DE 22-10 at 20)
the 2017 search, plaintiff's application was denied, and
plaintiff alleges this denial and the one before were both
due to discrimination based on age. Plaintiff states the
successful candidate was 34, black, and lacked
plaintiff's qualifications and experience. The candidate
was offered the position and declined. Plaintiff states
defendant Hayes, who supervises plaintiff, is the
administrator charged with hiring and promotions and that
defendant Hayes's “decision in the final 2017
Search is profoundly connected to these claims made by
Plaintiff.” (Id. at 23). Plaintiff alleges
that he “holds suspicion” that this candidate
“was unfairly favored” by a black dean and that
the office of equity and diversity at defendant ECU is
“directed and staffed by black personnel.”
(Id. at 24-25). Plaintiff alleges “reverse
discrimination.” (Id. at 25).
plaintiff complains he has endured a “hostile work
environment” the past 26 years while employed by
defendant ECU. Plaintiff also alleges he has filed nine
grievances as a result of “continuing
discrimination” arising out of his employment, eight of
which have been found in plaintiff's favor. (Id.
alleges at some point his son was subjected to an
inappropriate telephone interview, a transcript of which was
placed in plaintiff's personnel file, thereafter purged
in 2002. Plaintiff additionally alleges defendant Hastings
multiple times verbally assaulted plaintiff, calling him
“a damn joke” and stating “here you are and
you are overpaid.” (Id. at 21).
defendant Coble left ECU, defendant Sheerer, also now a
former dean, “removed Professor McKernan from the
Grievance Award office given him by the Chancellor saying it
was ‘too large' for Plaintiff, ” placing
plaintiff “in a windowless dark internal office - a
sort of locker storage space for janitors.”
(Id. at 22). Defendant Sheerer additionally declined
to allow plaintiff to attend a faculty workshop, though he
permitted all other eligible personnel to attend. Plaintiff
alleges defendant Sheerer did not address plaintiff's
concerns and defendant Peel, a former interim dean,
“refused to accept mediation, ” resulting in
plaintiff's grievances not being addressed.
Patriarca, an ECU professor, singled plaintiff out, denying
him his rightful allowance to pay for transportation and
accommodation at an international conference, held annually
in Ireland, in the 2010 - 2012 period. Plaintiff alleges, in
grievance hearing concerning this issue, defendant Patriarca
stated “it wouldn't look right to be traveling
abroad in time of recession.” (Id. at 24).
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. 2018). 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). The nonmoving party in such case “must set forth
specific facts beyond the pleadings to show that a genuine
issue of material fact exists.” Id.
Rule of Civil Procedure 12(b)(2) allows for dismissal of a
claim for lack of personal jurisdiction. “When a
district court considers a question of personal jurisdiction
based on the contents of a complaint and supporting
affidavits, the plaintiff has the burden of making a prima
facie showing in support of its assertion of
jurisdiction.” Universal Leather, LLC v. Koro AR,
S.A., 773 F.3d 553, 558 (4th Cir. 2014). At this stage,
the court “must construe all relevant pleading
allegations in the light most favorable to plaintiff, assume
credibility, and draw the most favorable inferences for the
existence of jurisdiction.” Combs v. Bakker,
886 F.2d 673, 676 (4th Cir. 1989); see Mylan Labs., Inc.
v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.
1993)(“[T]he district court must draw all reasonable
inferences arising from the proof, and resolve all factual
disputes, in the plaintiff's favor.”).
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).
must liberally construe pro s e complaints, and
“a pro s e complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, courts
“cannot ignore a clear failure to allege facts”
that set forth a cognizable claim. Johnson v. BAC Home
Loan Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C.
2011). “The ‘special judicial solicitude'
with which a district court should view such pro se
complaints does not transform the court into an advocate.
Only those questions which are squarely presented to a court
may properly be addressed.” Weller v. Dep't of
Soc. Servs. for the City of Baltimore, 901 F.2d 387, 391
(4th Cir. 1990).
stated above, plaintiff brings claims pursuant to Title VII,
ADEA, ADA, VEVRAA, and North Carolina General Statute §
116-41.18 as well asserting a Due Process claim. Plaintiff
has also asserted “additional claims” in
opposition to defendants' motion to dismiss.
(See DE 58). The court will address first
plaintiff's motion to strike and then defendants'
motion to dismiss, addressing in that context each of
plaintiff's claims in turn.
Plaintiff's Motion to Strike (DE 57)
moves the court to strike defendants' motion to dismiss,
pursuant to Federal Rules of Civil Procedure 12(f) and
12(g)(2). (See DE 57, DE 62). Rule 12(f) allows the
court on its own or upon motion to strike from a pleading
redundant matter. Rule 12(g)(2) provides generally that when
a party makes a motion under Rule 12, that party must not
make another motion under Rule 12 raising a defense or
objection that was available to the party but omitted from
its earlier motion.
case, plaintiff filed complaint, to which defendant Hayes
filed motion to dismiss. Thereafter, plaintiff filed amended
complaint out of time, to which defendant Hays filed timely
motion to dismiss plaintiff's amended complaint.
Thereafter, plaintiff served remaining defendants, and in
response, defendants filed instant motion to dismiss
plaintiff's amended complaint, which the court
specifically allowed in order entered September 5, 2018.
Plaintiff's motion is denied.
Defendants' Motion to Dismiss (DE 53)
Title VII and ADEA Claims
has asserted claims based on national origin, age, and race
discrimination under Title VII and the ADEA for the
following: failure to promote, unlawful termination,
retaliation, and hostile work environment. The court will
first address claims barred as being outside the scope of
plaintiff's EEOC charge and as untimely. The court will
then address plaintiff's remaining claims under Title VII
and the ADEA for failure to promote based on age and race
Claims Outside Scope of EEOC Charge
Title VII and the ADEA, plaintiff must exhaust his
administrative remedies by first filing a charge with the
EEOC, and the “scope of the plaintiff's right to
file a federal lawsuit is determined by the charge's
contents.” Jones v. Calvert Grp., Ltd., 551
F.3d 297, 300 (4th Cir. 2009). “[A] failure by the
plaintiff to exhaust administrative remedies concerning a
Title VII claim deprives the federal courts of subject matter