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Simmons v. Ingles Markets, Inc.

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

November 2, 2019

GEORGE MURRAY SIMMONS, II, Plaintiff,
v.
INGLES MARKETS, INC.; GREG HUGHES, and JEFF LNU, Defendants.

          MEMORANDUM AND RECOMMENDATION

          W. CARLETON METCALF UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant Greg Hughes' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 25), which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). Having carefully considered the parties' arguments, the record, and applicable authority, the undersigned respectfully recommends that the Motion be granted.

         I. Relevant Procedural History

         Plaintiff George Murray Simmons, II filed his Complaint on February 4, 2019. (Doc. 1).

         Defendant Greg Hughes (“Hughes”) filed a Motion to Dismiss the Complaint and a supporting brief on April 8, 2019. (Docs. 8, 9).

         Plaintiff responded on April 22, 2019. (Docs. 17, 18).

         Hughes replied on April 29, 2019. (Doc. 21). The same day, Plaintiff filed an “Amended Complaint.” (Doc. 22).[1]

         Hughes then filed his Motion to Dismiss the Amended Complaint and a supporting brief. (Docs. 25, 26). Plaintiff responded and Hughes replied. (Docs. 28, 30, 31).

         II. Factual Background

         Drawing all reasonable inferences in Plaintiff's favor, he appears to allege as follows:

         Plaintiff was hired as a “night stocker” by Ingles Markets, Incorporated. (“Ingles”) in or around April of 2018. EEOC Charge (Doc. 26-1) at 2.[2]

         On May 5, 2018, Plaintiff and a co-worker complained to Ingles that an employee was harassing newly hired employees. The complaint prompted an investigation by Ingles. The employee engaged in the alleged harassment was the father of the store's night manager, “Jeff”.[3] Pl.'s Compl. (Doc. 1) at 4.

         In retaliation for the filing of the complaint, Jeff threatened Plaintiff with “write ups” and eventually moved Plaintiff to work in an aisle of the store that required Plaintiff to perform tasks Jeff knew Plaintiff was unable to accomplish due to his physical disability. Id.

         On May 23, 2018, Jeff “wrote [Plaintiff] up” for failing to meet an “undocumented written quota.” After Plaintiff requested an accommodation and was placed on modified duties, Jeff changed established procedures to ensure that Plaintiff was delayed in completing his ...


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