Fairley v. North Carolina Department of Transportation

Filing 9

ORDER finding as moot 4 Defendant's Motion to Dismiss; granting in part and denying in part 8 Defendant's Motion to Dismiss for Failure to State a Claim. Signed by US District Judge Terrence W. Boyle on 6/19/2013. Counsel should read entire Order for important information. (Fisher, M.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO.: 5:12-CV-760-BO

ANTHONY B. FAIRLEY,

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Plaintiff,
V.

NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION,
Defendant.

ORDER

This matter is before the Court on the defendant's motions to dismiss [DE 4 & 8]. The
defendant's first motion to dismiss alleged that it had not been properly served. The defendant's
second motion to dismiss alleged that the plaintiffs case should be dismissed for failure to state
a claim. In its second motion to dismiss, the defendant conceded that it had been served the
summons and a copy ofthe complaint on January 11,2013. As such, the first motion to dismiss
is DISMISSED as MOOT. The defendant's second motion to dismiss is GRANTED IN PART
and DENIED IN PART.

BACKGROUND
Plaintiff filed this complaint on November 21, 2012. The defendant has alleged
discrimination in violation of Title VII ofthe Civil Rights Act of 1964. Specifically, the plaintiff
alleged that he was forced to work under adverse conditions, that he was denied promotions, and
that he was finally terminated from his job and replaced by a "white male person with less
experience and less education." The plaintiff has filed fourteen charges of discrimination with
the Equal Employment Opportunity Commission (EEOC). Those charges are numbered as
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follows: (1) 433-2010-01259; (2) 433-2010-01725; (3) 433-2011-00260; (4) 433-2011-00994;
(5) 433-2011-01190; (6) 433-2011-02851; (7) 433-2011-03085; (8) 846-2009-15891; (9) 4332010-02926; (10) 433-2011-01429; (11) 433-2010-02202; (12) 433-2010-02190; (13) 433-201101116; and (14) 433-2011-02008. The defendant has filed a motion to dismiss alleging various
defects in the plaintiffs charges of discrimination and asking that the Court dismiss the
plaintiffs case for failure to state a claim upon which relief might be granted. After reviewing
the charges of discrimination, the Court grants the defendant's motion with respect to seven of
the charges of discrimination and denies the defendant's motion with respect to seven of the
charges of discrimination.

DISCUSSION
A court's ruling on a motion to dismiss addresses whether a claim for relief has been
stated. A complaint will survive a motion to dismiss only if it "states a plausible claim for relief'
supported by well-pleaded facts that permit the court "to infer more than the mere possibility of
misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Such facts must "state a claim that is
plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In order to state
a facially plausible claim, a plaintiff must do more than simply plead facts that are consisted with
defendant's liability or merely restate the elements of a cause of action. Iqbal, 556 U.S., at 678.
The facts pleaded by the plaintiff must allow the court to draw a reasonable inference that the
defendant is actually liable for the misconduct alleged. /d. In drawing such inferences, the court
should view the complaint in the light most favorable to the plaintiff and should accept wellpleaded allegations as true. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
However, the Court will not consider "bare assertions" that are not supported by well-pleaded
facts. Nemet Chevrolet, Ltd. v. consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

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Viewing this complaint in the light most favorable to the plaintiff, and accepting the wellpleaded facts as true, the Court finds that the plaintiffs allegations pertaining to seven of the
charges of discrimination included in his complaint do not state a claim upon which relief might
be granted. As such, it is proper to dismiss the plaintiffs claims arising from those charges of
discrimination as failing to state a claim pursuant to Rule 12(b)(6). The Court considers each of
the charges of discrimination in tum.
I.

CHARGE OF DISCRIMINATION NUMBERED 846-2009-15891.

The doctrines of claim preclusion and issue preclusion prohibit the litigation of a claim
that has previously been litigated in this court. See Lawlor v. Nat'l Screen Serv. Corp., 349 U.S.
322, 326 (1955). The above-referenced charge of discrimination was previously litigated in front
of United States District Judge Louise Flanagan. That matter was styled Anthony Fairley v. NC

Department ofTransportation, 5:09-CV-406-FL. In that case Judge Flanagan ultimately granted
summary judgment in favor of the defendant. As such, this claim is properly dismissed.
II.

CHARGE OF DISCRIMINATION NUMBERED 433-2010-02926.

42 U.S.C. § 2000e-5(f)(1) (2011) provides plaintiffs 90 days from the date they receive a
right to sue notice from the EEOC to file suit. Where the plaintiff does not adhere to this 90-day
time limit the court has no jurisdiction over his claims. See Alexander v. Gardner-Denver Co.,
415 U.S. 36,47 (1974). The EEOC issued a right to sue letter on March 16,2011. Because this
lawsuit was not filed until April 26, 2012 the plaintiff did not file within the 90-day time limit.
As such, the Court does not have jurisdiction over this claim and it is properly dismissed.
III.

CHARGE OF DISCRIMINATION NUMBERED 433-2011-01429.

The EEOC issued a right to sue letter on May 27, 2011. As stated above, a plaintiff has
90 days in which to file a lawsuit after receiving a right to sue notice from the EEOC. Because

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this lawsuit was not filed until April 26, 2012 the plaintiff did not file within the 90-day time
limit. As such, the Court does not have jurisdiction over this claim and it is properly dismissed.
IV.

CHARGES OF DISCRIMINATION NUMBERED 433-2010-022202; 433-2010002190; 433-2011-01116; 433-2011-02008.

A plaintiffs failure to exhaust his administrative remedies by presenting his claims to the
EEOC before filing a federal lawsuit deprives the federal district court of subject matter
jurisdiction over the claims not presented to the agency. See Davis v. North Carolina Dep 't of
Correction, 48 F.3d 134, 138--40 (4th Cir. 1995). Further, as a prerequisite to federal jurisdiction,
plaintiffs must obtain, or at least be entitled to, a notice of their right to sue from the EEOC. See
Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091 (4th Cir. 1982). The plaintiff did not file or
perfect charges of discrimination under these file numbers and neither received, nor was entitled
to receive a notice of his right to sue from the EEOC. As such, this Court lacks subject matter
jurisdiction to consider them and these claims are properly dismissed.
V.

THE REMAINING CHARGES OF DISCRIMINATION.

After reviewing the seven remaining charges of discrimination, the Court finds that the
defendant is not entitled to a dismissal of the plaintiffs claims arising from those charges.
Pursuant to the standard set forth in Iqbal and Twombly the plaintiff has at least presented a case
arising from these remaining charges that is facially plausible. As such, it is proper to deny the
defendant's motion to dismiss with respect to the claims arising from these seven charges of
discrimination.

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CONCLUSION

For the foregoing reasons, the defendant's first motion to dismiss is DISMISSED AS
MOOT. The defendant's second motion to dismiss is GRANTED IN PART and DENIED IN
PART.
SO ORDERED.
This the

J..!i day of June, 2013.
T RRENCE W. BOYLE
UNITED STATES DISTRICT JUD

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