McKernan v. Hayes

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This 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.^[1] 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.

         STATEMENT OF THE CASE

         Plaintiff, 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 § 116-41.18.

         Plaintiff 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.

         On 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.^[2]

         On July 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.

         On 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 sufficed.”)).

         STATEMENT OF THE FACTS

         Except 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).

         Plaintiff 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.

         More 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.).^[3] 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).

         In 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)

         Regarding 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).

         Additionally, 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. at 17).

         Plaintiff alleges at some point his son was subjected to an inappropriate telephone interview, ^[4]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).

         After 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. (Id.).

         Defendant 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).

         DISCUSSION

         A. Standard of Review

         A 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.

         Federal 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.”).

         “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).

         Courts 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).

         B. Analysis

         As 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.^[5]

         1. Plaintiff's Motion to Strike (DE 57)

         Plaintiff 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.

         In this 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.^[6]

         2. Defendants' Motion to Dismiss (DE 53)

         a. Title VII and ADEA Claims

         Plaintiff 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 discrimination.

         i. Claims Outside Scope of EEOC Charge

         Under 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 ...