Abdissa v. Merck Corporate

Filing 38

ORDER granting 21 Motion to Dismiss for Failure to State a Claim; denying 36 Motion to Disqualify Judge. Signed by District Judge Terrence W. Boyle on 1/5/2017. Certified copy sent to Temesgen Teshome Abdissa via US Mail to 6806 Horseback Ln., Raleigh, NC 27610. (Stouch, L.)

' "•"'""""1""1----------------------···IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-393-BO
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TEMESGEN TESHOME ABDISSA,
Plaintiff,

v.
MERCK CORPORATE,
Defendant.

ORDER

This matter comes before the Court on defendant's motion to dismiss for lack of
jurisdiction under Federal Rule of Civil Procedure 12(b)(l) and failure to state a claim upon
which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), [DE 21], and
plaintiffs motion for disqualification of Judge Terrence W. Boyle and re-hearing by another
judge, [DE 36]. For the reasons discussed below, defendant's motion is granted and plaintiffs
motion is denied.
BACKGROUND
Plaintiff identifies as an Ethiopian male and United States citizen. He has a Master of
Science (MS) degree, and was employed by Spectraforce Technologies, Inc., as a contractor in
June 2013. Through Spectraforce, plaintiff was assigned to work for defendant at its Durham,
North Carolina, site. Plaintiff states that he was discharged from this position in June 2014.
Consequently, plaintiff filed the instant suit pro se alleging claims of discrimination based on
place of origin, defamation, and retaliation.
Plaintiff alleges several forms of discrimination. He claims other workers were trained
and employed in multiple subdivisions of the department while he remained in the same
subdivision, despite being the only one with an advanced degree. Plaintiff also claims
mistreatment by his peers. The crux of plaintiffs claims, however, seems to have been
precipitated by the death of his father in Ethiopia. Following this event, plaintiff traveled to

Ethiopia to see his siblings. He attempted to obtain Family and Medical Leave Act (FMLA)
leave without pay for the trip, but his supervisor, LaDonna Joseph, did not permit it. Plaintiff
believes Joseph saw the leave as an opportunity to exclude plaintiff because of his national
origin.
Plaintiff alleges several problems upon his return from Ethiopia. First, Joseph informed
him upon his return that his new supervisors said he could not return to work; plaintiff claims
this was a lie. Second, his manager at the employment agency also informed him he could not
return to work without providing other feedback. Third, plaintiff claims his other former
manager, Matt Connolly, falsely told him that law enforcement had come looking for plaintiff.
Fourth, plaintiff claims the employment agency would not refer him for jobs with defendant
because defendant had instructed them not to. Fifth, plaintiff believes he did not receive another
job after the person interviewing him spoke to Joseph. Sixth, plaintiff contacted his former
corporate learning specialist, Pat Smith, who referred plaintiff to another hiring manager in
another department. That hiring manager never contacted plaintiff. When plaintiff asked Smith
why that might be, Smith responded that maybe the new hiring manager had spoken to Joseph,
and plaintiff believes that this led to discrimination because of his national origin. Seventh, his
application for permanent employment with defendant was rejected despite passing an online
assessment test. Finally, plaintiff states he has applied for thousands of jobs and interviewed for
more than one hundred jobs since September 2014 and has received no job offers, which he
believes is due to defendant.
DISCUSSION
An entity can be held liable in a Title VII action only if it is an "employer" of the
complainant. It is undisputed that plaintiff was employed by Spectraforce Technologies as a

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contractor and assigned to work for defendant on a temporary basis. The Fourth Circuit has
determined that two parties can be considered joint employers and that therefore both can be
found liable under Title VII, provided they "share or co-determine those matters governing the
essential terms and conditions of employment." Butler v. Drive Auto. Indus. ofAm., 793 F.3d
404, 408 (4th Cir. 2015) (quoting Bristol v. Bd. ofCnty. Comm 'rs, 312 F.3d 1213, 1218 (10th
Cir.2002) (en bane)). "The basis for the finding that two companies are 'joint employers' is that
'one employer while contracting in good faith with an otherwise independent company, has
retained for itself sufficient control of the terms and conditions of employment of the employees
who are employed by the other employer."' Id. (quoting Torres-Negron v. Merck & Co., 488
F.3d 34, 40 n. 6 (1st Cir.2007)). While plaintiff's complaint did not clearly articulate the scope of
his working relationship with defendant vis a vis Spectraforce, the Court, giving plaintiff's prose
complaint the liberal reading it is due, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), the
Court finds that plaintiff has pied facts sufficient to find that defendant was his employer for
purposes of Title VII.

I.

Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(l)
Federal Rule of Civil Procedure 12(b)(l) authorizes dismissal of a claim for lack of

subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion. Evans v. B.F Perkins Co., 166 F.3d 642,
647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district 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.R Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

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Title VII of the Civil Rights Act of 1964 governs employment discrimination. "Before a
Title VII plaintiff can bring a formal suit, he must file an administrative charge with the Equal
Employment Opportunity Commission (EEOC)" and "[t]his charge frames the scope of future
litigation." Chacko v. Patuxent Inst., 429 F .3d 505, 506 (4th Cir. 2005). Indeed, "[o]nly those
discrimination claims stated in the initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of the original complaint may be
maintained in a subsequent Title VII lawsuit." Evans v. Technologies Applications & Serv. Co.,
80 F.3d 954, 963 (4th Cir. 1996); see also Harrison v. SC. Dep't of Mental Health, 2015 U.S.
App. LEXIS 11656, *19 (4th Cir. S.C. 2015) (characterizing these standards as construing EEOC
charges liberally). Specifically, "a plaintiff fails to exhaust his administrative remedies where, as
here, his administrative charges reference different time frames, actors, and discriminatory
conduct than the central factual allegations in his formal suit." Chacko, 429 F .3d at 506.
Here, plaintiff's EEOC charge contained a fairly narrow complaint which, in its entirety,
read:
On or about May 10th, 2015, I submitted my resume through Pat Smith, Learning
Specialist of Merck for a Production Technician position. On or about May 20th, 2015, I
contacted Ms. Smith and asked her for an update on my resume. I received a response
from Ms. Smith on May 20th, 2015 that she had forwarded my resume to Scott Scoury,
Manager. However, Mr. Scoury did not respond because "maybe" Mr. Scoury contacted
my former managers and received negative information. I believe I was discriminated
against on the basis of my National Origin, Ethiopian, in violation of Title VII of the
Civil Rights Act of 1964 as amended.
[DE 22-1]. 1 This charge was filed June 19, 2015.

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The Court may consider plaintiff's EEOC Charge, which is referenced in the Amended
Complaint, even though it was not among the attachments to the Amended Complaint filed by
plaintiff. See Williams v. US., 50 F. 3d 299, 304 (4th Cir. 1995) ("In ruling on a Rule 12(b)(l)
motion, the court may consider exhibits outside the pleadings."). See also Tellabs, Inc. v. Makar
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (in deciding a 12(b)(6) motion, the Court may

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While a prose litigant's pleadings are to be liberally construed, Gordon, 574 F.2d at
1151, the Court's jurisdiction is clearly delineated and a plaintiff's failure to exhaust his
administrative remedies on a Title VII claim deprives this Court of jurisdiction over the claim.

Jones v. Calvert Group, Ltd., 551F.3d297, 300 (4th Cir. 2009). Plaintiff's EEOC complaint
alleges just one act of discriminatory treatment, occurring solely with the month of May, 2015,
related to his application for employment with defendant for a Production Technician position.
Plaintiff's complaint, on the other hand, pleads discriminatory treatment from conduct that began
as early as June 2013, continued through at least February, 2016, and resulted in a wide range of
injuries. Plaintiff in his complaint alleges a number of wrongs, including lack of training or
rotation opportunities, failure to hire onto a permanent position, and "bad comments" made
about him which negatively affected thousands of other employment applications. Because the
complaint alleged injuries that were not raised before the EEOC, the Court finds that plaintiff
failed to exhaust his administrative remedies for each of his claims except for his claim alleging
discrimination when defendant did not hire him for permanent employment. Therefore, giving
plaintiff's EEOC administrative charge and complaint their due construction, the Court has
jurisdiction to review only his claim that he was discriminated against when defendant failed to
hire him to a permanent position.
II.

Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)
Having found that an employment relationship exists and that the Court has jurisdiction

over plaintiff's claim for discriminatory treatment in failing to hire him for a permanent position,
the Court turns to defendant's motion made under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

consider, in addition to the complaint, documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice).

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A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts
pied "allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged," and mere recitals of the elements of a cause of action supported by
conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint
must be dismissed if the factual allegations do not nudge the plaintiffs claims "across the line
from conceivable to plausible." Twombly, 550 U.S. at 570. Although the Court must construe the
complaint of a pro se plaintiff liberally, such a complaint must still allege "facts sufficient to
state all the elements ofh[is] claim" in order to survive a motion to dismiss. Bass v. E.l DuPont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
Under Title VII, it is unlawful for an employer "to fail or refuse to hire or to discharge
any individual, or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment because of such individual's ...
national origin" or "to limit, segregated, or classify [] employees or applicants for employment in
any way which would deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual's ... national origin." 42
U.S.C. § 2000e-2(a).
To establish a case of disparate treatment as to failure to hire, plaintiff must demonstrate
that (1) he is a member of a protected class; (2) his employer had an open position for which he

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applied or sought to apply; (3) he was qualified for the position; and (4) he was rejected for the
position under circumstances giving rise to an inference of unlawful discrimination. Evans v.

Technologies Applications & Serv. Co., 80 F.3d 954, 959-60 (4th Cir. 1996) (citing Texas Dep 't
ofCmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Carter v. Ball, 33 F.3d 450, 458 (4th Cir.
1994); McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir. 1991)).
Here, because of the Court's mandate to construe plaintiffs prose complaint liberally,
the Court interprets plaintiffs complaint to include a failure to hire claim before plaintiff left for
Africa (which plaintiff terms a failure to "change to permanent") as well as a failure to hire claim
upon his return from Africa. The Court will first address the failure to change to permanent
claim. [DE 14, p. 3]. In this instance, plaintiffs claim fails in multiple ways. First, plaintiff has
not demonstrated that there was an open position. Second, plaintiff has not demonstrated that he
applied or sought to apply to a permanent position; the best the Court can discern from the
complaint is that plaintiff wanted a permanent position. There is nothing in the complaint
demonstrating he actually sought a permanent position in any active way. Finally, plaintiff has
not demonstrated that he was qualified for any open position that may have existed. Plaintiff
states he was the only employee with a higher degree but does not indicate if such level of
education was necessary. Moreover, plaintiff does not demonstrate relevant background or
experience in the field that would otherwise qualify him. For all these reasons, plaintiffs claim
of discriminatory failure to hire initially must fail.
The Court now considers what it interprets as plaintiffs claim of discriminatory failure to
hire upon his return from Africa. [DE 14, pp. 4-5]. First, the Court questions whether plaintiff
has demonstrated that there were any open positions. Plaintiff states he applied and even
interviewed with defendant, but nowhere does he state that there were actually any open

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positions available, including his prior position. Second, nowhere does plaintiff demonstrate that
he was qualified for these positions that may or may not have been open. The fact that plaintiff
was assigned to the defendant as a contractor does not demonstrate he was qualified for some
permanent position, and nor does the fact that he interviewed with or was in contact with
managers demonstrate that there was an open position for which he was qualified. Without more,
the Court is unable to even assess the circumstances under which plaintiff was interviewed and
whether his failure to receive a position was the result of discrimination. Plaintiffs conclusory
allegations cannot turn the routine process of being interviewed but not hired into an act of
discrimination actionable under federal law without more facts that would indicate any sort of
discriminatory motive on the part of defendant.
For these reasons, plaintiff has not sufficiently pied all of the necessary elements to
support a claim of discriminatory treatment in applying for a permanent position with defendant
either before or after his trip to Africa. Accordingly, even giving plaintiffs complaint the liberal
reading it is due, the Court cannot find that plaintiff has stated a claim upon which relief can be
granted as to discriminatory failure to hire, and the claim must be dismissed.
Finally, plaintiff submitted a motion for disqualification of the Honorable Terrence W.
Boyle and for a re-hearing by another judge. [DE 36]. Plaintiff argues that the Honorable
Terrence W. Boyle is biased against him because Judge Boyle allegedly decided the case based
on plaintiffs "English speaking ability." Id. In support of this claim, plaintiff argues that Judge
Boyle stated "How long we deal with?" during the hearing and did not give plaintiff a chance to
use an interpreter. Id.
28 U.S.C. § 455(a) requires a federal judge to "disqualify himself in any proceeding in
which his impartiality might reasonably be questioned." "Timeliness is an essential element" of

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motions for recusal pursuant to 28 U.S.C. § 455(a). United States v. Owens, 902 F.2d 1154, 1155
(1990). Plaintiffs motion was filed 88 days after the September 1, 2016 hearing in which the
alleged offending conduct took place. Plaintiffs motion is therefore untimely as it was not raised
"at the earliest moment after knowledge of the facts" giving rise to the claim of bias. Id at 1156.
Moreover, judicial remarks made during the course of trial that are critical or even hostile to the
parties do not support a bias or partiality challenge unless such remarks derive from an
extrajudicial source and reveal such a "deep-seated favoritism or antagonism that would make
fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994). "Not establishing
bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even
anger ... ."Id The comment "How long we deal with?" cannot reasonably be construed as
evidencing deep-seated favoritism or antagonism, and plaintiffs claim is therefore also without
merit.
CONCLUSION
For all the reasons above, defendant's motion to dismiss is GRANTED. [DE 21].
Plaintiffs motion for disqualification of Judge Terrence W. Boyle and re-hearing by another
judge is DENIED. [DE 36]. The clerk is DIRECTED to close the case.

SO ORDERED, this rday of January, 2017.

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UNITED STATES DISTRICT JUDGE

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