United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Carlton Tilley, Jr., Senior United States District Judge.
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.
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).
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.)
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].) 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).
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
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, ...