United States District Court, W.D. North Carolina, Charlotte Division
TIMOTHY S. GILL, Plaintiff,
COCA-COLA BOTTLING CO. CONSOLIDATED, Defendant.
Cogburn Jr. United States District Judge
MATTER comes before the Court on a motion to dismiss
filed by Defendant Coca-Cola Consolidated, Inc., pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure and Local Rule 7.1. (Doc. No. 9).
Plaintiff Timothy Gill has filed this employment
discrimination action against Defendant, alleging that he was
terminated from his employment on June 22, 2018, with
Defendant “because of [his] disability, age, and race,
” presumably in violation of his rights under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq.; the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 623 et seq.; and the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq. Plaintiff filed this action on
December 28, 2018, and he filed an Amended Complaint on
February 6, 2019, after this Court entered an order pointing
out deficiencies in Plaintiff's original Complaint.
24, 2019, Defendant filed the pending motion to dismiss the
Amended Complaint. (Doc. No. 9). Defendant contends that
Plaintiff's race and age claims must be dismissed for
lack of subject matter jurisdiction under Rule 12(b)(1) of
the Federal Rules of Civil Procedure because Plaintiff did
not allege these claims in his underlying EEOC Charge of
Discrimination and he therefore failed to exhaust his
administrative remedies. Defendant further contends that
Plaintiff's ADA claim should be dismissed for failure to
state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Plaintiff filed a response on June 18, 2019,
and Defendant filed a Reply on June 25, 2019. (Doc. No. 13,
14). This matter is therefore ripe for disposition.
PLAINTIFF'S FACTUAL ALLEGATIONS
alleges that he began his employment with Defendant as a
temporary employee on or about August 2, 2003. (Doc. No. 5 at
p. 1: Am. Compl.). In around 2014 or 2015, Plaintiff began
experiencing health issues, including heart failure, mental
health issues, and diabetes. (Id.). The diabetes
caused Plaintiff to develop sores on his left foot,
ultimately resulting in the amputation of the toes on his
left foot in 2015. (Id.). In around May 2017,
Plaintiff began experiencing holes and swelling in his right
foot due to the diabetes. (Id. at p. 3).
alleges that in September 2017 he was working in
Defendant's “Legacy Department, ” but he does
not identify his job title or duties. (Id.).
Plaintiff alleges that in early September 2017 he experienced
heart failure, necessitating a period of hospitalization and
leave. (Id.). Plaintiff alleges that when he
returned to work in late September 2017 he was offered a
position on the “CONA” team. (Id.).
Plaintiff alleges he was told he had to successfully complete
six months of training before he could receive a pay increase
associated with the new position. (Id.).
begin training for the new CONA position on October 2, 2017.
(Id.). Plaintiff alleges that he was training for
the new position while performing his other work with the
Legacy Department. (Id.). According to Plaintiff,
this obligated him to work twenty hours of overtime per week.
(Id.). Plaintiff alleges that he was having heart
palpitations and high blood pressure during this time.
(Id.). Plaintiff's heart specialist communicated
with Defendant regarding Plaintiff's condition, which
resulted in him no longer being required to work overtime.
participated in about four weeks of training for the CONA
position. (Id. at pp. 3-4). In early November 2017,
Plaintiff took leave under the Family and Medical Leave Act
because the wound in his right foot caused by diabetes was
not healing. (Id. at p. 4). Plaintiff remained out
of work from early November 2017 through the first week of
March 2018. (Id.). When he came back to work, he
returned to work in the Legacy Department, and he was told he
would need to complete a six-week training program and pass a
test to move into the CONA position. (Id.).
Employees who did not pass the test the first time would be
permitted an additional two-week period to study and then
re-take the test. (Id.). Plaintiff participated in
the six-week training program and took the test at the end of
that training, but he did not pass the test. (Id.).
Plaintiff was afforded the two-week period of additional
study and the opportunity to re-take the test, but he was
also notified that if he “did not pass the test after
two weeks then [he] would be severed from” employment
with Defendant. (Id. at p. 5). This notification
coincided with a May 25, 2018, letter notifying Plaintiff
that his position with the Legacy Department was being
alleges that he completed the first week of additional CONA
training, but he “did not finish the second week”
of additional training. (Id.). He alleges that,
instead, he “was pulled out from work by the wound care
doctor because [he] could not tolerate the pain any
longer.” (Id.). The Amended Complaint does not
indicate whether Plaintiff would return to work, or how long
he needed to be on leave. Plaintiff asserted in his EEOC
Charge that he was initially placed on leave on or about June
12, 2018, through June 20, 2018. (Doc. No. 1 at p. 7). On
June 19, 2018, Plaintiff notified Defendant that his
“doctor extended [his] medical leave for additional two
months.” (Id.). Plaintiff asserted in his EEOC
Charge that Defendant terminated Plaintiff's employment
three days later on June 22, 2018, with an explanation that
he was being terminated for not passing the CONA training.
STANDARD OF REVIEW
have moved for dismissal of Plaintiff's claims under Rule
12(b)(1) and Rule 12(b)(2) of the Federal Rules of Civil
Procedure. When determining the existence of subject matter
jurisdiction, the Court may look to evidence outside the
pleadings without converting a Rule 12(b)(1) motion to a
motion for summary judgment. See, e.g., Evans v.
B. F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
“When a defendant challenges subject matter
jurisdiction pursuant to Rule 12(b)(1), ‘the district
court is to regard the pleadings as mere evidence on the
issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment.'” Id. (citations omitted). The
plaintiff bears the burden of proving subject matter
jurisdiction exists. Id.
Rule of Civil Procedure 12(b)(6) provides that a motion may
be dismissed for failure to state a claim upon which relief
can be granted. A motion to dismiss pursuant to Rule 12(b)(6)
tests the sufficiency of the complaint without resolving
contests of fact or the merits of a claim. Republican
Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992), cert. denied, 510 U.S. 828 (1993). Thus, the
Rule 12(b)(6) inquiry is limited to determining if the
allegations constitute “a short and plain statement of
the claim showing the pleader is entitled to relief”
pursuant to Federal Rule of Civil Procedure 8(a)(2). To
survive a defendant's motion to dismiss, factual
allegations in the complaint must be sufficient to
“raise a right to relief above a speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.