Hart v. Delhaize America Transportation LLC et al

Filing 36

ORDER denying 29 Motion to Amend; granting 11 Motion to Amend; granting 18 Motion to Dismiss for Lack of Jurisdiction; and granting 22 Motion to Dismiss for Failure to State a Claim. Signed by US District Judge Terrence W. Boyle on 10/1/2018. Copy sent via US Mail to Bobby Hart at 5121 Archer Rd., Hope Mills, NC 28348. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:18-CV-244-BO
BOBBY HART,
Plaintiff,
v.

DELHAIZE AMERICA TRANSPORTATION,
LLC, MED FAST URGENT CARE, DELHAIZE
AMERICA DISTRIBUTION CENTER NO. 4
FOOD LION, MIKE DICKEY, RICHARD
EASON, and JIM DALY,
Defendants.

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ORDER

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This matter comes before the Court on plaintiff's two pro se motions to amend his
complaint [DE 11, 29], defendant Med Fast Urgent Care's motion to dismiss [DE 22], and the
remaining defendants' partial motion to dismiss [DE 18]. All have been fully briefed and are ripe
for disposition. For the reasons discussed below, plaintiff's first motion to amend [DE 11] is
GRANTED, plaintiff's second motion to amend [DE 29] is DENIED, defendant Med Past's
motion to dismiss [DE 22] is GRANTED, and the remaining defendants' partial motion to dismiss
[DE 18] is GRANTED.
BACKGROUND
Plaintiff has been an employee of Delhaize America Transportation, LLC ("DAT") since
October 1999. [DE 7-1]. In December 2012 he took a leave of absence from his position due to
complications stemming from rectal cancer surgery. [DE 7, p. 6]. When he returned to work in
2013, he requested and received a work accommodation from DAT to limit his drivill"g time to ten
hours per day. Id. Plaintiff alleges that once in 2016 and "several times" in 2017, DAT did not

"honor this agreement," resulting in him driving more than ten hours in a day. Id. Plaintiff further
alleges that DAT fostered a hostile work environment "by allowing threats and verbal abuse to
continue against" him as someone covered by the Americans with Disabilities Act ("ADA"). Id.
He alleges that the threats and verbal abuse took place on July 22, 2017 and November 21, 2017.

Id. Plaintiff alleges that he complained to DAT's human resources department in July 2017 and
that, as a result, his "mileage dropped" and his number of daily trips was "cut." Id. Plaintiff claims
that this occurred over a period from July 2017 until February 2018 and that, due to the lesser
mileage and fewer daily trips, his pay was reduced. Id.
Additionally, plaintiff alleges that DAT keeps "unauthorized" health information about
plaintiff on its computer system. Id. He claims that after he asked DAT to remove this information,
DAT "retaliated" against him by suspending him from work and denying him the "due process
that's afforded to each employee accused ofwrokplace [sic] misconduct." Id. Plaintiff also alleges
that in November 2017, defendant Med Fast released his health information to DAT without his
authorization after he completed a Department of Transporation physical. Id. Again, when he
complained of this to DAT, they "retaliate[ed]" against him. Id.
In December 2017, plaintiff filed a charge of discrimination and retaliation in violation of
the ADA with the United States Equal Employment Opportunity Commission ("EEOC"). [DE 71]. The EEOC charge did not contain claims under Title VII or the Genetic Information
Nondiscrimination Act ("GINA"). In March 2018, the EEOC issued plaintiff a Notice of Right to
Sue Letter. [DE 7-2].
In June 2018, plaintiff filed suit against defendants DAT, Med Fast, and three individual
DAT employees: Mike Dickey, Richard Eason, and Jim Daly. [DE 7, 11]. Plaintiffs complaint
included claims under Title VII of the Civil Rights Act of 1964, the ADA, GINA, the Equal Pay

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Act ("EPA"), and the Health Insurance Portability Accountability Act ("HIP AA"). [DE 7]. Soon
after, plaintiff moved to amend his complaint to remove the individual defendants. [DE 11]. This
motion was unopposed. [DE 27].
Defendant DAT then moved to dismiss plaintiffs Title VII, GINA, EPA, and HIPAA
claims. [DE 18]. Not long after, defendant Med Fast moved to dismiss the only claim asserted
against it, plaintiffs HIP AA claim. [DE 22]. Plaintiff responded in opposition to both motions.
[DE 30]. Plaintiff also moved to amend his complaint a second time, this time to add additional
facts to his existing claims. [DE 29]. Defendants filed their opposition to this second motion to
amend. [DE 32, 35]. DISCUSSION
I. Plaintiffs first motion to amend his complaint is granted.
Federal Rule of Civil Procedure 15(a)(l) permits parties to amend their pleadings "once as
a matter of course" within twenty-one days of service. But, in "all other cases," parties can amend
their pleadings with either "the opposing party's written consent" or the court's permission, which
the court "should freely give when justice so requires." Fed. R. Civ. P. 15(a)(2). While plaintiffs
first motion to amend his complaint was not filed within twenty-one days of the filing of his
complaint, defendants DAT and DAT's individual employees provided their support for the
motion, and defendant Med Fast did not oppose it. In particular, plaintiff is seeking to voluntarily
dismiss his claims against DAT's individual employees because they are not properly subject to
suit on the claims asserted. Accordingly, plaintiffs unopposed motion to amend is granted and the
claims against Mr. Dickey, Mr. Eason, and Mr. Daly are dismissed.
II. Plaintiffs second motion to amend his complaint is denied.

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A plaintiff may amend his complaint for a second time with the permission of opposing
counsel or the court. Fed. R. Civ. P. 15(a)(2). Plaintiffs second motion to amend his complaint is
opposed by both of the remaining defendants, DAT and Med Fast. "The law is well settled that
leave to amend a pleading should be denied only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the moving party, or the amendment would
be futile." Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)(emphasis in original,
internal quotation marks and citation omitted). Here, with respect to each of plaintiffs claims for
which dismissal is sought-that is, his Title VII, GINA, EPA, and HIP AA claims, but not his ADA
claim-any amendment would be futile. The reasons for the futility of adding new facts to each of
these claims is discussed more fully below. Thus, plaintiffs second motion to amend is denied.
III. Defendant Med Fast's motion to dismiss is granted.
Defendant Med Fast has moved to dismiss plaintiffs HIPAA claims against it under
Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff has failed to state a claim upon
which relief can be granted. When considering 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 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 court can "draw the reasonable
inference that the defendant is liable for the misconduct alleged," as merely reciting the elements
of a cause of action with the support of conclusory statements does not suffice. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Generally, courts must liberally construe the claims of prose litigants.

United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012). But the court need not accept the
plaintiffs legal conclusions drawn from the facts, nor need it accept unwarranted inferences,

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umeasonable conclusions, or arguments. Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009).
Defendant Med Fast advances two principal arguments against plaintiffs HIPAA claims:
first, that HIP AA does not allow for a private right of action, and second, that plaintiff has not
alleged sufficient facts to demonstrate that Med Fast violated the law. Because this first argument
is fatal to plaintiffs claim, the Court need not consider the second argument. HIP AA does not
confer on prospective plaintiffs a private cause of action. See, e.g., Carpenter v. Phillips, 419 F.
App'x 658, 659 (7th Cir. 2011); see also Regan v. US. Dep 't of Veterans Affairs, 2012 WL
4866360 at *3 (E.D.N.C. July 25, 2012). The only claims that plaintiff has made against defendant
Med Fast arise under HIP AA, and as there is no private right of action created by HIP AA,
plaintiffs claims against defendant Med Fast must be dismissed.
IV. The remaining defendants' partial motion to dismiss is granted.
The remaining defendants-now, just DAT, after plaintiffs complaint is amended to
voluntarily dismiss the individual employees-have moved to dismiss four of plaintiffs claims
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can
be granted. The remaining defendants have also moved to dismiss certain claims under Federal
Rule of Civil Procedure 12(b)(l) for lack of subject-matter jurisdiction. In particular, they have
moved to dismiss plaintiffs Title VII, GINA, EPA, and HIPAA claims. Again, in confronting a
Rule 12(b)(6) motion, "the court should accept as true all well-pleaded allegations and should view
the complaint in a light most favorable to the plaintiff." Mylan, 7 F.3d at 1134. Even construing
plaintiffs prose complaint liberally under United States v. Wilson, 699 F.3d 789 (4th Cir. 2012),
it must still be facially plausible. Twombly, 550 U.S. at 570.

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First, plaintiffs HIPAA claims against DAT must be dismissed for the same reason his
HIP AA claims against Med Fast were dismissed. HIP AA does not confer a private right of action.

Carpenter, 419 F. App'x at 659; see also Barefoot v. Derry, 2011 WL 2746313, at *2 (E.D.N.C.
July 13, 2011) ("HIP AA does not provide for a private right of action"). Thus, plaintiff cannot
state a HIP AA claim upon which relief can be granted.
Second, plaintiffs EPA claim against DAT must be dismissed because plaintiff has failed
to allege sufficient facts to show that he was paid less than female employees as a result of his sex.
The Equal Pay Act provides that employers cannot pay employees of opposite sexes disparate pay
for equal work. 29 U.S.C. § 206(d). To establish an actionable claim under the EPA, the plaintiff
must show that he received lower pay than a female employee performing substantially the same
work under similar conditions. Stragv. Bd. a/Trustees, 55 F.3d 943, 948 (4th Cir. 1995). Plaintiff
has alleged only that his mileage "dropped" and the number of trips he made was "cut." [DE 7, p.
6]. He has not alleged that he was paid less on the basis of his gender. Thus, plaintiffs EPA claim
must be dismissed.
Defendant DAT has also moved to dismiss plaintiffs Title VII and GINA claims on the
basis that the Court lacks jurisdiction to hear those claims. A plaintiffs failure to exhaust
administrative remedies in an EEOC action prevents the federal courts from exercising subjectmatter jurisdiction over the claims not presented to the agency. Jones v. Calvert Group, Ltd., 551
F.3d 297, 300 (4th Cir. 2009). As a prerequisite to federal jurisdiction, the plaintiff must obtain,
or at least be entitled to, a notice of the right to sue from the EEOC. See Perdue v. Roy Stone

Transfer Corp., 690 F.2d 1091 (4th Cir. 1982). This applies both to Title VII and GINA claims.
See Jones, 551 F.3d at 300 (citing 42 U.S.C. § 2000e-5(f)(l) and 29 U.S.C. § 626(d)); see also
Moody-Williams v. LipoScience, 953 F. Supp. 2d 677, 681 (E.D.N.C. 2013) (granting motion to

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dismiss for plaintiffs failure to raise his GINA claims with the EEOC). Administrative charges
"frame[] the scope of future litigation." Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir.
2005). In fact, "[i]f the claims raised under Title VII exceed the scope of the EEOC charge and
any charges that would naturally have arisen from an investigation thereof, they are procedurally
barred." Chacko, 429 F.3d at 509 (internal citation and quotation marks omitted). To the extent
that plaintiff seeks to advance claims which were not contained in his EEOC charge and which
"would [not] naturally have arisen from an investigation thereof," those claims must be dismissed
for lack of jurisdiction. See id.
Both plaintiffs Title VII claim and his GINA claim must be dismissed for lack of
jurisdiction. Plaintiffs EEOC charge alleged discrimination and retaliation on the basis of his
disability in violation of the ADA. The EEOC charge did not include any claims based on either
Title VII or GINA. Plaintiff had the opportunity to mark the box beside "Genetic Information" on
the EEOC charge and did not do so. Plaintiffs written summation of his claim contains no
reference to any discrimination or retaliation on the basis of genetic information, race, color, sex,
religion, or national origin. Rather, plaintiffs claim arises solely from discrimination and
retaliation under the ADA. As plaintiff has failed to exhaust administrative remedies for his Title
VII and GINA claims, and as a result the Court lacks subject-matter jurisdiction over those claims,
plaintiffs Title VII and GINA claims must be dismissed.
In sum, plaintiffs Title VII, GINA, EPA, and HIPAA claims against defendants DAT and
Med Fast are all dismissed. Plaintiff may proceed with his ADA claim against defendant DAT.

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CONCLUSION
For the above reasons, plaintiffs first motion to amend [DE 11] is GRANTED, plaintiffs
second motion to amend [DE 29] is DENIED, defendant Med Past's motion to dismiss [DE 22] is
GRANTED, and the remaining defendants' partial motion to dismiss [DE 18] is GRANTED.

SO ORDERED, this_/_ day of October, 2018.

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