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Gill v. Coca Cola Bottling Co. Consolidated

United States District Court, W.D. North Carolina, Charlotte Division

September 16, 2019

TIMOTHY S. GILL, Plaintiff,


          Max O. Cogburn Jr. United States District Judge

         THIS 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).


         Pro se 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.[1] 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.

         On May 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 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).

         Plaintiff 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.[2] (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.).

         Plaintiff 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. (Id.).

         Plaintiff 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 eliminated. (Id.).

         Plaintiff 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. (Id.).


         Defendants 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.

         Federal 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. 544, ...

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