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Clements v. Town of Sharpsburg

United States District Court, E.D. North Carolina, Western Division

May 6, 2019




         This 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.


         Plaintiff, 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.[1]


         Plaintiff 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).

         After 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).

         Plaintiff's 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).

         Plaintiff passed her fitness for duty test. (EEOC Charge (DE 7-1) at 1).

         Plaintiff 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).


         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). 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.

         “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 ...

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