United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendant's motion to
dismiss for failure to state a claim pursuant to Federal
Rules of Civil Procedure 12(b)(6). (DE 13). On its own
initiative, the court also considers whether it has subject
matter jurisdiction over certain claims pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(h)(3). For the
reasons that follow, defendant's motion is granted.
OF THE CASE
a former lieutenant in defendant's police department,
initiated this action on November 28, 2018. Plaintiff alleges
discrimination and retaliation on the basis of race and sex,
in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, 42 U.S.C. § 2000e
et seq., and disability discrimination and
retaliation in violation of the Americans with Disability Act
of 1990 (“ADA”), as amended, 42 U.S.C. §
12101, et seq. Defendant filed the instant motion to
dismiss plaintiff's entire complaint. In opposition,
plaintiff relies upon a newspaper article from the Wilson
Times discussing her termination.
was hired by defendant in 2014, and she served as the only
African-American female officer in defendant's police
department. (Compl. ¶ 9). In June 2017, plaintiff was
diagnosed with an unspecified disability, but continuously
and consistently performed all her duties for defendant
despite her disability. (Id. ¶ 10).
John Hunt (“Hunt”) became chief of police,
plaintiff received different treatment than white male police
officers. (Id. ¶ 13). Hunt stripped plaintiff
of her supervisory and administrative duties. (Id.
¶ 14). Sergeant Hinson (“Hinson”), a white
male, was later promoted in July 2017 to second in command,
the position plaintiff formerly held. (Id. ¶
18). Hinson was paid higher wages than when plaintiff served
as second in command. (Id. ¶ 18). He referred
to plaintiff as “bitch” without repercussion.
(Id. ¶¶ 15). No. white employees in the
police department would communicate, coordinate or work with
plaintiff. (Id. ¶¶ 16-17).
assigned police vehicle was taken away because it was
allegedly needed for second shift, but the male officers
assigned to second shift already had vehicles assigned to
them. (Id. ¶ 19). After plaintiff turned her
vehicle in and it was used by other male officers, plaintiff
was disciplined for failing to maintain the vehicle.
(Id. ¶ 20). In addition plaintiff was required
to submit to a medical fitness for duty evaluation, although
her conduct, attendance, and performance did not give rise to
the need for such evaluation. (Id. ¶ 21;
see EEOC Charge (DE 7-1) at 1).
passed her fitness for duty test. (EEOC Charge (DE 7-1) at
was placed on administrative leave on or around September 8,
2017. (Compl. ¶ 23). Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”) based upon the discriminatory
practices of defendant on or about September 11, 2017.
(Id. ¶ 24). Defendant terminated plaintiff on
or about January 11, 2018, allegedly for failing to take
evidence to the SBI crime lab on time in May 2017.
(Id. ¶ 25; EEOC Charge (DE 7-1) at 1).
Plaintiff then filed a second charge of discrimination with
the EEOC, which she asserts is the basis of the present
action. (Compl. ¶ 26; EEOC Charge (DE 7-1) at 1; Right
to Sue Letter (DE 7-2) at 1).
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). When the factual predicate of subject
matter jurisdiction is challenged, 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 party seeking to invoke the court's subject
matter jurisdiction “must set forth specific facts
beyond the pleadings to show that a genuine issue of material
fact exists.” Id.
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 ...