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Bean v. Trident Marketing

United States District Court, M.D. North Carolina

May 3, 2019



          N. Carlton Tilley, Jr., Senior United States District Judge.

         Plaintiff Jeremy Lee Bean (“Bean”) filed the instant action against Trident Marketing (“Trident”), alleging retaliation and wrongful termination in violation of “the Civil Rights Act”. (Compl. [Doc. #2]; Civil Cover Sheet [Doc. #3].) This matter is before the Court on Trident's Motion to Dismiss for Failure to State a Claim [Doc. #8]. For the reasons explained below, Trident's Motion to Dismiss is GRANTED.


         Bean, acting pro se, makes three factual allegations in his Complaint. First, he alleges he was “told numerous times by the sales manager and assistant sales manager, how I needed to be replaced by a nice looking girl with a bubbly attitude and big boobs.” (Compl., Statement of Claim, #1.) Second, Bean alleges the assistant sales manager “would sit at home and call my personal cell phone while I was at work, then text and email me. keeping me at work with harassment over stuff I had already done, ” causing him to stay longer than the “sixteen to twenty hours” he had already worked. (Id. #2.) Finally, Bean alleges that “[w]hen supervisors were informed of the harassment I was fired, instead of them following the company Handbook.” (Id. #3.) Bean does not state in his Complaint what law he believes Trident violated, (see generally id.); however, in the Civil Cover Sheet filed concurrently with his Complaint, he writes that he is bringing the action under the Civil Rights Act of 1964, (Civil Cover Sheet).

         Trident argues that even if the Complaint is liberally construed to account for Bean's status as a pro se plaintiff, his Complaint contains only conclusory allegations without a legal basis and no facts are alleged concerning Plaintiff's race, color, national origin, religion or sex. (Def.'s Br. in Supp. of Mot. to Dismiss (“Trident's Brief”) [Doc. #9] at 5.) Furthermore, Trident argues that even if the Court infers “legal theory” that is not expressly stated in the Complaint, Bean fails to establish a prima facie case of either retaliation or wrongful termination under Title VII of the Civil Rights Act. (Id. at 6-9.)

         Bean untimely responded to Trident's motion, urging the Court to “dismiss” the motion. (See Pl.'s Resp. in Opp. Re: Mot. to Dismiss for Failure to State a Claim (“Bean's Response”) [Doc #13].)[1] Per Local Rule of Civil Procedure 7.3(k), “[t]he failure to file a brief or response within the time specified in this rule shall constitute a waiver of the right thereafter to file such brief or response, except upon a showing of excusable neglect.” The rule further states, “[i]f a respondent fails to file a response within the time required by this rule, the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice.” L.R. Civ. P. 7.3(k).

         In his response, Bean makes no argument to support excusable neglect, (see generally Bean's Resp.), but in consideration of his status as a pro se plaintiff, the Court will consider Bean's untimely response in analyzing Trident's motion. See Catharine W. v. Sch. Bd. of City of Va. Beach, No. 2:17CV645, 2018 WL 4474688, at *5 n.5 (E.D. Va. Sept. 4, 2018) (“In deference to Mr. El-Amin's pro se status, the Court will consider Mr. El-Amin's untimely Reply in its analysis of his motion.”)

         In his response, Bean argues that his allegations show Trident's “total disregard for federal law Title VII of the Civil Rights Act, ” that in Trident's handbook “it states anyone who harasses anyone else will be fired there is zero tolerance, yet after the complaint and over a year later they are still employed, ” and that “the emphasized harassment was overlooked by Trident Marketing.” (Bean's Resp. at 1.) Additionally, Bean provides information entitled “Facts in the Case” where he states:

1. I am a male. Though on page 8 of the request for dismissal I'm referred to as a female where in the rest of the request I'm referred to as a male.
2. Adverse Employment. I was fired.
3. Work performance, I trained the person that was to replace me, which was a female (who was fired due to her age “to old to do this job”) stole sheets that I developed and four fifths of the companies admin use them. To prove doing my job good enough.
4. Being called by an assistant sales manager to discuss work matters that caused him to work longer hours each day, referenced top of page 8. It happened once, when the job was already completed yet continued his rant.
5. There is a witness for all of this.

(Id. at 2.) Any new facts alleged in Bean's Response cannot be considered because “a plaintiff cannot through the use of motion briefs amend the complaint.” Jeffries v. Wal-Mart Stores East, LP, No. GJH-15-473, 2016 WL 430479, at *4 (D. Md. Feb. 3, 2016) (internal quotations omitted) (citing Zachair Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D. Md. 1997)); see also E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (noting that in deciding a Rule 12(b)(6) motion, the district court may consider the complaint and any attached or incorporated documents, but going beyond those documents converts the motion into one for summary judgment, ...

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