Huckelba v. Deering et al
ORDER granting 18 Motion to Dismiss for Lack of Jurisdiction, Motion to Dismiss for Failure to State a Claim: The court DISMISSES with prejudice Diane Deering and Thomas Deering as defendants. The court DISMISSES plaintiff's sex-discrimination claim for lack of subject-matter jurisdiction. The court DISMISSES without prejudice plaintiff's retaliation clailn for failure to state a claim upon which relief can be granted. Signed by Chief Judge James C. Dever III on 10/17/2016. Filed copy mailed to the pro se plaintiff. (Jenkins, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
ANNA LAURA HUCKELBA,
DIANE DEERING, THOMAS DEERING, )
and TLC AUTOWASH AND FAST LUBE, )
On June 22, 2016, Anna Laura Huckelba ("Huckelba" or "plaintiff") filed a pro se
complaint against her former employer TLC Autowash of Fayetteville, Inc. 1 and its two owners,
Diane Deering and Thomas Deering, alleging sex discrimination and retaliation under Title VII of
theCivilRightsActof1964,42 U.S.C. §§ 2000e-2000e-17. SeeCompl. [D.E. 6, 6-1]. On August
10, 2016, Diane Deering, Thomas Deering, and TLC Autowash of Fayetteville, Inc. ("TLC")
(collectively, "defendants") moved to dismiss Huckelba's complaint [D.E. 18]. See Fed. R. Civ.
P. 12(b)(1), (6). OnAugust29, 2016, Huckelbarespondedinopposition [D.E. 21]. On September
8, 2016, defendants replied [D.E. 22]. On September 23,2016, Huckelba filed a "rebuttal" [D.E.
23]. As explained below, the court grants defendants' motion to dismiss.
First, defendants move to dismiss Huckelba' s sex-discrimination claim for lack of subjectmatter jurisdiction. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests
Huckelba erroneously identified TLC Autowash ofFayetteville, Inc. as TLC Autowash and
Fast Lube. See [D.E. 1-2]; cf. [D.E. 18] 1. The court uses the correct name.
subject-matter jurisdiction, which is ''the court's statutory or constitutional power to adjudicate the
case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted); see
Holloway v. Pagan River Dockside Seafood. Inc., 669 F.3d 448, 453 (4th Cir. 2012). "[T]he party
invoking federal jurisdiction bears the burden of establishing its existence." Steel Co., 523 U.S. at
104; see, ~' Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Richmond.
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In
considering a motion to dismiss for lack of subject-matter jurisdiction, the court may consider
evidence outside the pleadings without converting the motion into one for summary judgment. See,
945 F.2d at 768.
Before filing suit under Title VII, a plaintiff must file a charge of discrimination with the
EEOC and exhaust her administrative remedies.
Sydnor v. Fairfax Cty.. 681 F.3d. 591,
593 (4th Cir. 2012); Jones v. Calvert Gr;p .• Ltd., 551 F.3d 297, 300 (4th Cir. 2009); Chacko v.
Patuxentlnst., 429 F.3d 505,509-13 (4th Cir. 2005); Miles v. Dell. Inc., 429 F.3d480, 491-92 (4th
Cir. 2005); Bryant v. Bell Atl. Md.. Inc., 288 F.3d 124, 132-33 (4th Cir. 2002); Sloop v. Mem'l
MissionHosp .. Inc., 198 F.3d 147, 148-50 (4th Cir. 1999); Dennis v. Cty. ofFairfax, 55 F.3d 151,
156-57 (4th Cir. 1995). If a plaintiff fails to exhaust administrative remedies with the EEOC, the
court lacks subject-matter jurisdiction over the Title VII claim.
Jones, 551 F.3d at 300.
On October 21, 2014, Huckelba filed a sex-discrimination charge with the EEOC. See
[D.E. 24] 2. On June 26, 2015, Huckelba withdrew her EEOC charge and did-not obtain a right to
sue notice. See Compl. [D.E. 6-1 ]~ 13. Because she voluntarily withdrew her EEOC charge and
failed to obtain a right to sue notice concerning her sex-discrimination claim, Huckelba failed to
exhaust her administrative remedies, and this court lacks subject-matter jurisdiction "over her sexdiscriminationclaim. See,~' Jones, 551 F.3dat300; Khaderv. Aspill, 1 F.3d 968,971 (lOth Cir.
1993); Davis v. N.C. Dep'tofCorrections, 48 F.3d 134, 137-38 (4th Cir. 1995); Smeltzerv. Potter,
No. 3:10-CV-178, 2010 WL 4818542, at *3 (W.D.N.C. Nov. 22, 2010) (unpublished). Thus, the
court grants defendants' motion to dismiss Huckelba' s sex-discrimination claim for lack of subjectmatter jurisdiction.
In opposition, Huckelba cites a second EEOC charge she filed on December 6, 2015. See
[D.E. 24-1] 2. In her second EEOC charge, Huckelba alleged that TLC terminated her employment
on October 23, 2015, in retaliation for her first EEOC charge. See id. The EEOC charge form
contained a field describing the alleged discrimination. Huckelba checked the retaliation box but
not the sex-discrimination box. ld. On March 14, 2016, the EEOC found no violation and issued
a right to sue notice. See [D.E. 3]. Although Huckelba did not check the sex-discrimination box
on her EEOC charge form, she asserts that an unidentifi~d woman at the EEOC told her that the
second EEOC charge would include sex discrimination. See [D.E. 23]. Thus, Huckelba argues that
this court should construe her second EEOC charge to allege sex discrimination. See id.
The court rejects Huckelba's argument. The scope of Huckelba's right to file a federal
lawsuit is determined by the EEOC charge's content, not by statements of an EEOC employee. See,
~'Balas v. Huntington Ingalls Indus .. Inc., 711
F.3d401, 406--09 (4th Cir. 2013); Jones, 551 F.3d
at 300. Huckelba's second EEOC charge did not allege sex discrimination. See [D.E. 24-1] 2.
Rather, Huckelba alleged only retaliation. See id. Thus, the court lacks subject-matter jurisdiction
over Huckelba's sex-discrimination claim. Balas, 711 F.3d at 406--09; Jones, 551 F.3d at 300;
Chacko, 429 F.3d at 509; Miles, 429 F.3d at 491-92; Sloop, 198 F.3d at 148-50.
Next, defendants move to dismiss Huckelba' s retaliation claim against the Deerings and
TLC for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187,
190 (4th Cir. 2010), affd, 132 S. Ct. 1327 (2012); Giarratano v. Johnso!l, 521 F.3d 298,302 (4th
Cir. 2008). In evaluating a complaint, the court "accepts all well-pled facts as true" but need not
accept a complaint's "bare assertions devoid of further factual enhancement" nor a complaint's
conclusions oflaw. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,255 (4th
Cir. 2009). "The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quotation
When evaluating a motion to dismiss under Ru1e 12(b)(6), a court considers the pleadings
and any materials "attached or incorporated into the complaint." E.l. duPont de Nemours Co. v.
Kolon Indus., 637 F.3d 435, 448 (4th Cir. 2011); Fed. R. Civ. P. 10(c); Thompson v. Greene, 427
F .3d 263, 268 (4th Cir. 2005). In considering a motion to dismiss under Ru1e 12(b)(6), a court may
take judicial notice ofan EEOC charge and right to sue notice incorporated into a complaint without
converting the motion to dismiss into a motion for summary judgment. See, ~' Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d
176, 180 (4th Cir. 2009); Sec'y of State for Defence v. Trimble Nav. Ltd., 484 F.3d 700,705 (4th
Cir. 2007). Thus, the court considers Huckelba' s complaint, her two EEOC charges, and her right
to sue notice.
The standards used to evaluate the sufficiency of a pleading is flexible,
"and a pro se
complaint, however, inartfully pleaded, must be held to less stringent standard than formal pleading
drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,94 (2007) (per curiam) (quotation omitted).
Erickso!1, however, does not ''undermine [the] requirement that a pleading contain 'more than labels
and conclusion,"' Giarratano, 521 F.3d at 304 n.5 (quoting Twombly, 550 U.S. at 555); see Iqbal,
556U.S. at677-83; Colem~ 626F.3dat 190; NemetChevrolet. Ltd., 591 F.3dat255-56; Francis
v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Although a court must liberally construe a pro se plaintiffs allegations, it "cannot ignore
a clear failure to allege facts" that set forth a cognizable claim. Johnson v. BAC Home Loans
Servicing. LP, 867 F. Supp. 2d 766, 776 (E.D.N.C. 2011); see Giarratano, 521 F.3d at 304 n.5.
"The special judicial solicitude with which a district court should view ... pro se complaints does
not transform the court into an advocate. Only those questions which are squarely presented to a
court may properly be addressed." Weller v. Dep't of Soc: Servs., 901 F.2d 387, 391 (4th Cir.
1990) (quotation omitted). Every party-prose or otherwise-must comply with the Federal Rules
of Civil Procedure. See Iqbal, 556 U.S. at 678; Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S.
147, 152 (1984) (per curiam).
Huckelba's complaint contains no direct evidenc~ of retaliation. Instead, she relies on the
McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,800--06
(1973); see also St. Mazy's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Tex. Dep't ofCmty.
Affairsv. Burdine,450U.S. 248,252-55 (1981); Balas, 711 F.3dat410; Holland v. Wash. Homes.
Inc., 487 F.3d 208, 218 (4th Cir. 2007); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 190 (4th
Cir. 2001); Holley v. N.C. Dep't of Admin., 846 F. Supp. 2d 416, 441 (E.D.N.C. 2012). To
establish a prima facie case of retaliation under Title Vii, a plaintiff must show that (1) she engaged
in protected activity; (2) her employer took action against her that a reasonable employee would find
materially adverse; and (3) the employer took the materially adverse employment action because
of the protected activity. Balas, 711 F.3d at 410; Holland, 487 F.3d at 218; Bryant v. Aiken Reg'l
Med. Ctrs.. Inc., 333 F.3d 536,543 (4th Cir. 2003); see Univ. ofTex. Sw. Med. Ctr. v. Nassar, 133
S. Ct. 2517, 2524-33 (2013); Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67-70 (2006).
An adverse employment action includes "[a] discriminatory act that adversely affect[s] the terms,
conditions, or benefits ofthe plaintiffs employment." Holland, 487 F .3d at 219 (quotation omitted)
(alteration in original); see Burlington N. & Santa Fe Ry., 548 U.S. at 68-70; Balas, 711 F.3d at
To survive a motion to dismiss, a Title VII plaintiffmust plausibly allege her statutory claim
(though not a prima facie case). See McCleary-Evans v. Md. Dep't ofTransp .. State Highway
Admin., 780 F.3d 582, 585-88 (4th Cir. 2015), cert. denied, 136 S. Ct. 1162 (2016). As for
causation, the Fourth Circuit has held that
[:fjor status-based discrimination claims, the employee must "show that the motive
to discriminate was one of the employer's motives, even if the employer also had
other, lawful motives that were causative in the employer's decision." Univ. of
Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,2523 (2013). Retaliation claims, by
contrast, require the employee to show ''that retaliation was a but-for cause of a
challenged adverse employment action." [Fosterv. Univ. ofMd.-E. Shore, 787 F.3d
243,252 (4thCir. 2015)]; see Nassar, 133 S. Ct. at2533 ("Title VII retaliation claims
must be proved according to traditional principles of but-for causation, not the
lessened causation test stated in§ 2000e-2(m) ....").
Guessous v. Fairview Prop. Investments. LLC, 828 F.3d 208, 216-17 (4th Cir. 2016) (parallel
citations omitted). Thus, to state a Title VII retaliation claim, a plaintiffmust plausibly allege a butfor causal connection between plaintiffs protected activity and the alleged retaliation. See id.
Naked allegations of a causal connection between plaintiffs protected activity and the alleged
retaliation do not state a plausible Title VII claim. See McCleary-Evans, 780 F.3d at 585-88.
As for Huckelba' s Title VII claims against Diane Deering and Thomas Deering, Huckelba
fails to state a claim upon which relief can be granted.
Lissau v. S. Food Serv.. Inc., 159
F.3d 177, 180-81 (4th Cir. 1998). Diane Deering and Thomas Deering are co-owners ofTLC, but
were not Huckelba's employer. Id.
They were her supervisors and cannot be liable "in their
individual capacities for Title VII violations." Id. at 181. Thus, the court grants their motion to
dismiss and dismisses them as defendants. See id.
As for Huckelba' s retaliation claim against TLC, Huckelba' s complaint does not plausibly
allege but-for causation. According to Huckelba, on October 21, 2014, she filed her first EEOC
charge alleging sex discrimination concerning her non-promotion to store manager. See Compl.
13; [D.E.24]2. OnMay28,2015, TLC(throughThomasDeeringandDianeDeering)promoted
Huckelba to store manager. See Compl.
13. After being promoted, Huckelba withdrew her
EEOC charge on June 26, 2015. See id. In October 2015, Thomas Deering reprimanded Huckelba
for having an unclean car wash tunnel. See id. ~ 14. On October 13, 2015, Huckelba complained
to Thomas Deering about her monthly bonus being $44 short, and Thomas Deering promptly told
her that the company would add the $44 to her next paycheck. Id. On October 23, 2015, Thomas
Deering discharged Huckelba from her employment with TLC. See [D.E. 6] ~ 7; Compl. ~ 15. On
December 6, 2015, Huckelba filed her second EEOC charge. See [D.E. 24-1] 2.
Huckelba does not state a plausible Title VII retaliation claim for at least two reasons. First,
the four-month lapse in time between Huckelba' s protected activity of filing and maintaining an
EEOC charge from October 21,2014, through June 26,2015, and the adverse employment action
of October 23, 2015, defeats any plausible inference of but-for causation. See,
School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam); Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (a "lengthy time lapse" between
protected activity and adverse employment action negates any inference of causation); cf. King v.
Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003) (a two-month time lapse between protected activity
and adverse employment action is sufficient to show the causation element of a prime facie case of
retaliation). Second, the same-actor inference defeats any plausible inference of but-for causation
between Huckelba's protected activity and her termination. Here, TLC (through Thomas Deering
and Diane Deering) promoted Huckelba to store manger after she filed her first EEOC charge and
while her EEOC charge concerning not being promoted to store manager was pending. See Compl.
13. An employer who knowingly promotes a worker who engaged in protected activity "seldom
will be [a] credible target for charges ofpretextual firing." Proud v. Stone, 945 F.2d 796, 798 (4th
Cir. 1991); seeTaylorv. Va. Union Univ., 193 F.3d219, 231 (4th Cir. 1999)(en banc)(discussing
same-actor inference), abrogated in part on other grounds .by Desert Palace, Inc. v. Cos:m, 539 U.S.
90 (2003); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (same);
Tyndall v. Nat'l Educ. Ctrs.. Inc., 31 F.3d 209,214-15 (4th Cir. 1994)(same). Thus, Huckelba fails
to plausibly allege a Title vn retaliation claim.
In sum, the court GRANTS defendants' motion to dismiss [D.E. 18].
DISMISSES with prejudice Diane Deering and Thomas Deering as defendants.
DISMISSES plaintiffs sex-discrimination claim for lack of subject-matter jurisdiction. The court
DISMISSES without prejudice plaintiffs retaliation clailn for failure to state a claim upon which
relief can be granted.
SO ORDERED. This j_J_ day of October 2016.
Chief United States District Judge
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