Abdissa v. UNC Chapel Hill

Filing 30

ORDER denying 25 Motion to Amend; denying 26 Motion for Extension of Time to File Response; denying as moot 27 Motion to Stay; denying 29 Motion to Disqualify Judge; granting 21 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Terrence W. Boyle on 1/5/2017. Certified copy sent to Temesgen Teshome Abdissa via US Mail 6806 Horseback Ln., Raleigh, NC 27610. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-394-BO
TEMESGEN TESHOME ABDISSA,
Plaintiff,

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)
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v.
UNC CHAPEL HILL,
Defendant.

ORDER

This matter comes before the Court on defendant's motion to dismiss [DE 21], plaintiffs
motions to amend summons and amended complaint [DE 25], plaintiffs motion for extension of
time [DE 26], plaintiffs motion for disqualification of Judge Terrence W. Boyle and re-hearing
by another judge, [DE 29], and defendant's motion to stay discovery [DE 27]. The motions are
ripe for adjudication. For the reasons discussed below, defendant's motion to dismiss is
GRANTED and the other motions are DENIED.
BACKGROUND
In viewing the facts asserted in the Amended Complaint as true for the purpose of
defendant's motion to dismiss, plaintiff alleges the following:
Plaintiff is an Ethiopian male who is a United States citizen and resident of Wake
County, North Carolina. He graduated from North Carolina Central University with Master of
Science degree in pharmaceutical sciences. In November or December 2014, plaintiff applied for
a Research Technician position with defendant. The position required a high school
diploma/GED and one year of related experience, and plaintiff claims that he was overqualified
for the position based on his master's degree, training and experience. Plaintiff interviewed with
Dr. Raluca Dumitru in December 2014. Although plaintiff thought the interview went well,
another candidate who plaintiff believed was less qualified and from another "race and place,''
was selected for the position. [DE 14, p. 3].

Dr. Dumitru contacted Plaintiff in January 2015 and asked ifhe was still interested in the
position. Plaintiff was interviewed a second time by Dr. Dumitru and offered the job. On
February 3, 2015, he was trained by Dr. Dumitru for one hour. He believes Dr. Dumitru treated
him unfairly.
On February 6, 2015, prior to the next training session, Dr. Dumitru informed Plaintiff
that she did not want to continue his training because "she can't believe in [him]." [DE 14, p. 3].
Plaintiff believes that during his hour of training he didn't make any mistakes or errors "even
though [he] was unfairly treated because [he is] a well-educated and fully trained person and
over qualified for the position." Plaintiff believes Dr. Dumitru terminated him because of the
"Stereo-types/Assumptions about the abilities/performances of [his] race which is black and
Ethiopian/African origin." Id.
DISCUSSION
Defendant first objects to this Court's jurisdiction over it personally, arguing that
plaintiff's process and attempted service were flawed such that this case should be dismissed
under the Rules of Civil Procedure and for lack of personal jurisdiction. When service of process
gives the defendant actual notice of the pending action, the courts may generally construe the
rules of service liberally to effectuate service and uphold the jurisdiction of the court. Karlsson v.
Rabinowitz, 318 F.2d 666, 668 (4th Cir.1963); Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc.,
733 F.2d 1087, 1089 (4th Cir.1984). When there is actual notice, failure to strictly comply with
the rules may not invalidate the service of process, but the plain requirements for effecting
service may not be ignored when flawed service engenders confusion on the part of the
defendant. Armco, 733 F.2d at 1089. Here, considering defendant's actual notice of the action,
defendant's evident lack of confusion regarding the nature of the suit, and plaintiff's prose

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status, the Court finds that plaintiffs failure to address his certified complaint to the proper
individual within the university does not invalidate service in this case. The Court upholds
jurisdiction over this case and the parties before it.
Plaintiff sought in his complaint relief from suffering due to discrimination and
retaliation. "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). To the extent plaintiff raises a
separate retaliation claim against defendant, this claim is barred due to his failure to raise this
claim before the EEOC and exhaust the administrative remedies available to him.
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
pled "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

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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 of h[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). Similarly, a court need not accept as true
a plaintiffs "unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore
Mkts. v. JD. Assocs. Ltd, 213 F.3d 175, 180 (4th Cir. 2000). A trial court is "not bound to accept
as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.
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, plaintiff must show that ( 1) he is a member of
a protected class; (2) he has satisfactory job performance; (3) he was subjected to an adverse
employment action, such as termination; and (4) similarly-situated employees outside his class
received more favorable treatment. See Texas Dep 't of Cmty. Affairs v. Burdine, 450 U.S. 248,
254 (1981); Hoyle v. Freightliner, LLC, 650 F.3d 321, 336-37 (4th Cir. 2011).
Plaintiffs complaint fails to raise a reasonable inference of discriminatory treatment.
First, the bare fact that he was initially rejected for the position and that someone else from
another "race and place" was hired does not support his claim. Plaintiff proffers no facts
suggesting that he was initially rejected for the position under circumstances giving rise to an

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inference of discrimination. Moreover, as Plaintiff was ultimately offered and given the position
by the same decision-maker, he has no basis to complain about another, unidentified candidate
being selected in the interim. Plaintiff, though he claims he was unfairly treated by Dr. Dumitru,
does not describe in any way how he was unfairly treated. Without knowing what sort of
treatment plaintiff was subjected to, the Court is unable to determine whether such treatment
gives rise to an inference of discrimination. Thus, this claim of unfair treatment as well does not
support his claim of discriminatory treatment or give rise to an inference that his termination was
due to discriminatory motives. Finally, plaintiff alleges that his termination was caused by
"[s]tereotypes/[a]ssumptions" about his race, but he proffers no facts to support his assertion,
such as allegations that similarly situated employees outside his class received more favorable
treatment. Plaintiffs amended complaint is conclusory and lacks sufficient factual development
of his claims. The absence of any such factual allegations is fatal to his Title VII claim.
For these reasons, plaintiff has not sufficiently pled all of the necessary elements to
support a claim of discriminatory discharge. 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,
and his complaint must be dismissed.
Plaintiff sought leave to amend his complaint in order to add the correct individual for
effectuating service. [DE 25]. The decision to allow leave to amend a pleading rests within the
discretion of the trial court and should be freely given "when justice so requires." Fed. R. Civ. P.
15(a)(2). Leave to amend should be denied only when the amendment would be prejudicial to the
opposing party, when there has been bad faith on the part of the moving party, or when the
amendment would be futile. Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). In this case,

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because the Court has already determined that any service defects were cured by actual notice,
the amendment here would serve no purpose and would thus be futile.
Plaintiff also sought an extension of time to file a response. [DE 26]. A party seeking an
extension of time must show good cause. See Local Civil Rule 6.1, EDNC. Plaintiff has given no
explanation as to why he could not reply to defendant's motion to dismiss within the deadline set
by the rules, other than to state that he needed more time in order to correctly effectuate service.
It has been more than three months since plaintiff filed his motion for an extension of time, but

he still has not filed a response to defendant's motion to dismiss. Plaintiff has provided no
justification for his delay in filing a response, thus failing to demonstrate excusable neglect
warranting an extension. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("[W]e have
never suggested that procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel.").
Finally, plaintiff submitted a motion for disqualification of the Honorable Terrence W.
Boyle and for a re-hearing by another judge. [DE 29]. Plaintiff argues that Judge Boyle is biased
against him "for the reasons that the said judge is biased against the Plaintiff in the previous
case." Id. Plaintiff is apparently referring to his case against Merck & Co., Inc., in which plaintiff
filed a similar motion for disqualification alleging that Judge Boyle decided that case based on
plaintiffs "English speaking ability." See Abdissa v. Merck Corporate, No. 5:15-CV-393-BO at
DE 36 (E.D.N.C. 2016). 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). Plaintiff's motion was filed 88 days after the September 1, 2016 hearing in which the
alleged offending conduct took place. Plaintiff's 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 plaintiff's claim is therefore also without
merit.
CONCLUSION
For all the reasons above, defendant's motion to dismiss is GRANTED. [DE 21].
Plaintiff's motions amend summons and amended complaint [DE 25], motion for extension of
time [DE 26], and motion for disqualification of Judge Terrence W. Boyle and re-hearing by
another judge [DE 29] are DENIED. Defendant's motion to STAY discovery is DENIED as
moot. [DE 27]. The clerk is DIRECTED to close the case.

SO ORDERED, this

...S- day of January, 2017.

~4J.iS~

TRRENCEW:BOYLE

UNITED STATES DISTRICT JUDG

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