Coppage v. City of Raleigh

Filing 37

ORDER granting 27 Motion for Partial Dismissal of Amended Complaint. Proceeding in this case is Plaintiff's first claim for relief based on Defendant's conduct that occurred on or after June 23, 2019. Signed by Chief US District Judge Richard E. Myers II on 4/1/2021. (Waddell, K.)

IN THE UNITED STATES DISTRJCT COURT
FOR THE EASTERN DISTRJCT OF NORTH CAROLINA
WESTERN DIVISION
Case No. 5:20-CV-00135-M

KEVIN COPP AGE,
Plaintiff,
V.

CITY OF RALEIGH,
Defendant.

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ORDER

Before the court is Defendant's Motion for Partial Dismissal of Amended Complaint [DE
27]. Defendant seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for the Plaintiffs purported
failures to allege (in part) a timely discrimination claim and to plausibly allege a hostile work
environment claim in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). For the
reasons that follow, the motion is granted.

I.

Statement of Facts
The following are factual allegations (as opposed to statements of bare legal conclusions,

unwarranted deductions of fact, or unreasonable inferences) made by the Plaintiff in the operative
Amended Complaint (DE 24), which the court accepts as true pursuant to King v. Rubenstein, 825
F.3d 206,212 (4th Cir. 2016).
Defendant hired Plaintiff to work for the Raleigh Fire Department in May 1994. Since that
time, Plaintiff has received numerous commendations and awards; for example, in 2009, Plaintiff
was recognized as "Firefighter of the Year" by the American Legion, Raleigh Post 1. In addition,
Plaintiff has been promoted from firefighter to captain, then ultimately from captain to his current

position as a division chief, only the third African American to receive such promotion in the Fire
Department' s history. During his time as Captain, he also served as a Recruit Academy instructor
where he trained both new recruits and veteran firefighters. Since his last promotion in 2017,
Plaintiff has been the only African American Division Chief employed by the Defendant.
During this period, Plaintiff also earned his master' s degree in Crisis Management and
Disaster Management, and he is currently pursuing his doctorate in Executive Leadership and
Organizational Development. Plaintiff believes he has more relevant educational and professional
experience than any other Division Chief in the Fire Department.
In February 1963, the Fire Department hired its first African American firefighter, Larry
Gene Williams, who resigned three years later. The Fire Department' s second African American
firefighter, Welton Jones, was hired in March 1963 ; he was interviewed in 2007 during which he
stated, "[the Fire Department] kept hiring whites ... Then, when I would complain about it, they
would stick a black in every now and then ... There are stations in Raleigh right now where there
is not one black .. . I'm going to fight it all the way." At the time Mr. Jones gave his interview,
there were 549 employees in the Fire Department, 81 of which (14%) were minorities. Twelve
years later, on December 22, 2019, there were 621 employees in the Fire Department, 81 of which
were minorities.
In or about 2012, Plaintiff applied for the position of Training Academy Coordinator, but
then-Assistant Chief Brad Harvey hired a white male with less experience and fewer qualifications
than Plaintiff, and who Plaintiff had previously trained. Later that year, Plaintiff applied for the
position of Hazardous Material Coordinator, but Assistant Chief Harvey hired a white male with
less experience and fewer qualifications than Plaintiff, and who Plaintiff had previously trained.
In or about 2015 , Plaintiff communicated to his supervisors that he wanted to be considered for

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the position of Safety Officer with the Fire Department, but Assistant Chief Harvey (and others)
hired a white male with less experience and fewer qualifications than Plaintiff, and who Plaintiff
had previously trained. In or about 2017, Plaintiff communicated to his supervisors that he wanted
to be considered for the position of Division Chief of Training, but then-Chief John McGrath hired
a white male with less experience and fewer qualifications than Plaintiff, and who Plaintiff had
previously trained. Plaintiff believes that Harvey, in his role as Assistant Chief, did not promote
any African Americans when he had discretion to make any such decisions. Harvey retired from
the Fire Department in 2017. After Harvey ' s retirement, Plaintiff applied for and was promoted
to the division chief position.
On or about March 4, 2019, when Plaintiff was off duty, he was charged with "driving
under the influence" ("DUI"); he was eventually convicted of the charge on or about July 10, 2019.
On or about March 21 , 2019, the Fire Department' s Office of the Fire Chief published an
Administrative Directive titled, "Impaired Driving Offenses," which directed that " [a]n employee
. . . [who] is eligible for promotion on a concurrent promotional list will be ineligible for the current
promotion if charged and convicted with an impaired driving offense." While the Administrative
Directive was published with an effective date of March 1, 2019, the Office of the Fire Chief issued
two other policies on March 21 , 2019 that had effective dates of March 21 , 2019. Plaintiff believes
that the Office of the Fire Chief had never issued new policies with effective dates prior to the
publication date and that the purpose of backdating the "Impaired Driving Offenses"
Administrative Directive was to provide a racially neutral pretext for denying Plaintiff further
promotions. Plaintiff also believes that the Fire Department has promoted white firefighters who
have been subject to the March 2019 Administrative Directive.
In October 2019, Plaintiff communicated to his supervisors that he wanted to be considered

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for the role of Assistant Chief, which requires the following qualifications: (a) bachelor' s degree
or equivalent (applicants may substitute additional relevant experience for the required education);
(b) at least ten years of progressively responsible relevant experience (applicants may substitute
additional relevant education for the required experience); (c) knowledge of spreadsheet software
and word processing software; and (d) a regular driver's license (Hazmat operations preferred,
Firefighter II preferred, Instructor certification preferred, Inspector certification preferred).
Plaintiff met or exceeded all of the required qualifications to serve as Assistant Chief at the time
he sought the position but, citing Plaintiffs March 2019 DUI charge, Defendant did not promote
Plaintiff and, instead, promoted a white male, Ronny Mizell, to the position. Mr. Mizell had less
relevant educational experience, fewer relevant credentials, and less professional experience than
Plaintiff. Plaintiff believes that Mr. Mizell did not meet the requirements for the position as stated
in the job description.
In or about November 2019, Defendant rehired Brad Harvey to serve as the city's Interim
Fire Chief. On or about November 29, 2019, Plaintiff applied for the position of Division Chief
of Service, which required the following qualifications: (a) a bachelor' s degree in fire science or
directly related field, six years of fire service experience and two years of supervisory experience;
and (b) depending on assignment, some positions may require: a valid North Carolina Class C
Driver' s License with a satisfactory driving record and additional specialty 9 training and North
Carolina firefighting, emergency medicine, and/or hazardous materials response certifications.
Plaintiff met or exceeded all of the required qualifications to serve as a Division Chief of Service
at the time he sought the position. Citing Plaintiffs March 2019 DUI charge, Defendant did not
promote Plaintiff but, instead, Interim Chief Harvey hired a white male, Alan Wilson, who had
less experience and fewer qualifications than Plaintiff, and who Plaintiff had previously trained.

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Plaintiff believes that Mr. Wilson did not actually seek the position, but he was recruited by Harvey
to prevent the Plaintiff from securing the position.
Plaintiff believes his charge and conviction for driving under the influence has no effect on
his competency or ability to perform any of the jobs for which he has applied since March 2019.
On or about December 21, 2019, Plaintiff filed two grievances with Defendant, complaining of
discrimination in Defendant's promotions practice and specifically stating that Defendant's
retroactive application of its Impaired Driving Offenses Administrative Directive constituted
harassment and was a result of race discrimination.

Defendant has not responded to these

gnevances.
II.

Procedural History

Based on these allegations, Plaintiff asserts claims for race discrimination and for a hostile
work environment (or, "harassment"), both in violation of Title VII.

Compl. at

11 81-94.

Defendant seeks dismissal of a portion of Plaintiffs first claim, to the extent Plaintiff bases it on
conduct occurring before March 6, 2019, the date set forth in Plaintiffs charge of discrimination
filed with the Equal Employment Opportunity Commission ("EEOC"). Defendant also argues that
dismissal of Plaintiffs hostile work environment claim is proper to the extent Plaintiff relies on
conduct before March 6, 2019 and, otherwise, for Plaintiffs failure to state a plausible claim.
Plaintiff counters that his claims are not based on conduct alleged to have occurred before
March 6, 2019, and his hostile work environment claim is both plausible and viable, in that it falls
within the scope of his EEOC charge. Defendant replies that, under prevailing law, Plaintiff has
not exhausted his administrative remedies, as required, since the EEOC charge does not encompass
the hostile environment claim; in the alternative, Defendant contends the conduct Plaintiff alleges
for his harassment claim is not objectively severe or pervasive.

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III.

Legal Standards

When considering a Rule 12(b)(6) motion to dismiss, the court must accept as true all of
the well-pleaded factual allegations contained within the complaint and must draw all reasonable
inferences in the plaintiff's favor, Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017), but
any legal conclusions proffered by the plaintiff need not be accepted as true, Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) ("[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice."). The Iqbal Court made clear
that "Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading
regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions." Id. at 678-79.
To survive a Rule 12(b)( 6) motion, the plaintiff's well-pleaded factual allegations, accepted
as true, must "state a claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550
U.S . 544, 570 (2007). Twombly's plausibility standard requires that a plaintiff's well-pleaded
factual allegations "be enough to raise a right to relief above the speculative level," i.e., allege
"enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal
[conduct]." Id. at 555-56. A speculative claim resting upon conclusory allegations without
sufficient factual enhancement cannot survive a Rule 12(b)(6) challenge. Iqbal, 556 U.S. at 67879 ("where the well-pleaded facts do not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged--but it has not 'show[n]'-- 'that the pleader is entitled to
relief."' (quoting Fed. R. Civ. P. 8(a)(2)); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
("'naked assertions' of wrongdoing necessitate some ' factual enhancement' within the complaint
to cross 'the line between possibility and plausibility of entitlement to relief."' (quoting Twombly,

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550 U.S. at 557)).

IV.

Analysis
The court finds the Plaintiffs concession- that he does not base his first claim for relief

on conduct alleged to have occurred before March 6, 2019- resolves the portion of Defendant's
motion seeking partial dismissal of Claim One. The motion will be granted in that respect. 1 The
court will, therefore, proceed to determine whether Defendant demonstrates that dismissal of
Claim Two is proper.
A.

Did the Plaintiff Exhaust Administrative Remedies as Required for Claim Two?

Before a plaintiff may assert a Title VII claim in federal court, he must exhaust his
administrative remedies by filing a charge of discrimination with the EEOC. Hentosh v. Old

Dominion Univ., 767 F.3d 413 , 416 (4th Cir. 2014) (citation omitted). The Supreme Court has
recently determined that "Title VII ' s charge-filing requirement is a processing rule, albeit a
mandatory one," not a jurisdictional prerequisite. Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843 ,
1851 , 204 L. Ed. 2d 116 (2019) . Therefore, Defendant has properly raised this defense pursuant
to Rule 12(b)( 6) at this stage of the litigation.2
The allegations contained in an administrative charge of discrimination generally limit the
scope of any subsequent judicial complaint. Hentosh, 767 F.3d at 416 (citing King v. Seaboard

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To be clear, to the extent that Plaintiff alleges discrete acts of discrimination prior to June 23 ,
2019 (180th day prior to filing of charge of discrimination), any claim based on such acts is
dismissed as untimely. See Belton v. City of Charlotte , 175 F. App ' x 641 , 652 (4th Cir. 2006)
(citing 42 U.S.C. § 2000e- 5(e)(l)). This finding does not affect the court' s permissible
consideration of Plaintiffs alleged employment history for the present analysis. See Guessous v.
Fairview Prop. Invs., LLC, 828 F.3d 208, 222 (4th Cir. 2016).
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In addition, courts may "consider documents attached to the complaint, see Fed. R. Civ. P. lO(c),
as well as those attached to the motion to dismiss, so long as they are integral to the complaint and
authentic." Philips v. Pitt Cty. Mern 'l Hosp. , 572 F.3d 176, 180 (4th Cir. 2009). Here, the court
considers a copy of Plaintiffs charge of discrimination, which is attached to the operative pleading
and of which no party disputes its authenticity.
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Coast Line R.R. , 538 F.2d 581 , 583 (4th Cir. 1976) (stating that a subsequent civil suit "may
encompass only the ' discrimination stated in the [EEOC] charge itself or developed in the course
of a reasonable investigation of that charge'")); see also Smith v. First Union Nat '! Bank, 202 F.3 d
234,247 (4th Cir. 2000) ("A plaintiffs EEOC charge defines the scope of her subsequent right to
institute a civil suit.").

"Only those discrimination claims stated in the initial charge, those

reasonably related to the original [administrative] complaint, and those developed by reasonable
investigation of the original complaint may be maintained in a subsequent Title VII lawsuit."

Tonkin v. Shadow Mgmt. , Inc., 605 F. App 'x 194, 194 (quoting Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954,963 (4th Cir. 1996)); see also Bryant v. Bell At!. Maryland, Inc., 288 F.3d
124, 132 (4th Cir. 2002) (quoting Chisholm v. United States Postal Serv., 665 F .2d 482, 491 (4th
Cir. 1981)) ("An administrative charge of discrimination does not strictly limit a Title VII suit
which may follow; rather, the scope of the civil action is confined only by the scope of the
administrative investigation that can reasonably be expected to follow the charge of
discrimination.").
Plaintiffs charge of discrimination, a copy of which is attached to the Amended Complaint,
states in its "particulars" section: "Since on or around March 6, 2019, I believe I have been
harassed and discriminated against, because of my race, Black. I have inquired/expressed interest
in at least seven (7) positions, but I have been overlooked for advancement opportunities." DE 24
at 15 . Defendant argues that " [n ]othing in Plaintiffs Charge suggests that he was denied
promotions due to an invidious practice not to promote African Americans" and " [n]o hostile work
environment claim would naturally have arisen from the EEO's investigation of this Charge."
Plaintiff counters that Defendant was placed on notice of his harassment complaint, both by the
charge itself and by formal grievances Plaintiff filed with Defendant the day after he filed the

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charge of discrimination. Defendant replies that EEOC charges mentioning only discrete acts of
discrimination and charges that reference occurrences different than those alleged in subsequent
litigation are insufficient to support allegations of a hostile work environment.
The court finds Plaintiffs harassment claim exceeds the scope of his charge of
discrimination and, thus, Plaintiff has failed to exhaust the required administrative remedies for
his second claim for relief. The Fourth Circuit instructs that a hostile work environment prohibited
by Title VII exists " [w]hen the workplace is permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d
264, 277 (4th Cir. 2015) (quoting Harris v. Forklift Sys. , Inc., 510 U.S. 17, 21 (1993)). " [T]o
prevail on a Title VII claim that a workplace is racially hostile, ' a plaintiff must show that there is
(1) unwelcome conduct; (2) that is based on the plaintiffs . . . race; (3) which is sufficiently severe
or pervasive to alter the plaintiffs conditions of employment and to create an abusive work
environment; and (4) which is imputable to the employer."' Id. (quoting Okoli v. City ofBaltimore,
648 F.3d 216, 220 (4th Cir. 2011)).
In arguing the plausibility of his hostile work environment claim, Plaintiff asserts that his
claim is supported by allegations in the Amended Complaint demonstrating not only that he has
been repeatedly denied career advancement since 2012 while promotions were offered to less
qualified white employees, but also that other non-white firefighters have suffered the same
treatment as evidenced by the fact that "the percentage of minority employees in the Department
has declined over the last twelve years." Resp. at 7, DE 32.

Plaintiff also alleges that the

Administrative Directive related to "Impaired Driving Offenses" has been applied to deny him
promotions but has not been likewise applied to white employees. Am. Compl.

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,r 60.

Plaintiff's charge of discrimination lists only the discrete acts of failures to promote and
does not mention Defendant's treatment of other non-white firefighters, statistics concerning nonwhite employees in the Department, or the application of the Administrative Directive to Plaintiff
or any other employee. The Fourth Circuit has "held that the allegation of a discrete act or acts in
an administrative charge is insufficient when the plaintiff subsequently alleges a broader pattern
of misconduct." 3 Chacko v. Patuxent Inst. , 429 F.3d 505, 509 (4th Cir. 2005); see also Nat'! R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 , 115 (2002) ("Hostile [work] environment claims are

different in kind from discrete acts."). Allegations of discrete acts such as failures to promote,
demotions, or terminations are not allegations of a hostile work environment. Id. at 511 n.2.
Moreover, a reasonable investigation into Plaintiff's "expressed interest in at least seven (7)
positions" for which he had "been overlooked" could not be expected to lead to discovery of
failures by the Defendant to promote other non-white employees or of the application of the
Administrative Directive to Plaintiff but not white employees. See id. at 512. Finally, Plaintiff's
mention of "harassment" in the charge is itself insufficient since it is a "broad" term that may
"encompass a limitless number of other factual worlds." Id. The court must conclude that the

This court notes a subsequent opinion by the Fourth Circuit addressing whether discrete acts may
be considered for purposes of determining the timeliness of a hostile environment claim. See
Guessous, 828 F.3d at 223 ("the issue in this case is whether non-time-barred discrete acts can be
considered part of the ' series of separate acts that collectively' create a hostile work environment,
.. . thus rendering a hostile-environment claim timely under the continuing-violation doctrine.").
In Guessous, the court reversed a district court' s opinion rejecting a continuing violation argument
"because .. . discrete acts are separately actionable, [so] they cannot comprise part of a hostile
work environment claim." The Fourth Circuit concluded, "So long as the act is part of the pattern
of discriminatory treatment against the employee, then that act should be sufficient for purposes
of the continuing-violation doctrine, even if the act would otherwise qualify as a discrete act that
is independently actionable." Id. Because Guessous involved an analysis of a timeliness
(continuing violation) defense rather than a failure to exhaust defense, this court finds Guessous
distinguishable in analyzing the defense raised to Plaintiff's second claim for relief.
3

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factual allegations in the Amended Complaint are not reasonably related to the factual allegations
in the charge of discrimination and, therefore, the Plaintiffs hostile work environment claim has
exceeded the scope of the EEOC charge. As such, Plaintiff fails to state a plausible second claim
for relief having failed to exhaust required administrative remedies.
B.

Does the Plaintiff State a Plausible Claim for Hostile Work Environment?

Defendant argues that, even if Plaintiff had sufficiently exhausted administrative remedies,
he has failed to allege plausibly that Defendant's conduct was objectively severe or pervasive as
necessary to state a plausible claim for hostile work environment. Plaintiff counters that he need
not plead a prima facie case and that his allegations are sufficient at this stage of the litigation.
Establishing the third element of a hostile work environment claim-that the offending
conduct was "sufficiently severe or pervasive to alter the conditions of [ ] employment and create
an abusive work environment"-requires that "the plaintiff show that the work environment was
not only subjectively hostile, but also objectively so." Bonds v. Leavitt, 629 F.3d 369, 385 (4th
Cir. 2011) (citing EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008)). Such proof
depends upon the totality of the circumstances, including "the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee' s work performance." Id.
Defendant cites a Fourth Circuit opinion issued in August 2019 to support its argument that
an employer's failures to promote are insufficient to rise to the level of a hostile work environment.
Mot. at 15-16 (citing Perkins v. Int '! Paper Co. , 936 F.3d 196, 209 (4th Cir. 2019)). Plaintiff
counters that Perkins is distinguishable because it involved an analysis of a Rule 56 motion rather
than a Rule 12(b)(6) motion. The court disagrees with Plaintiff; a court may find as a matter of
law that either proffered evidence pursuant to Rule 56 or allegations taken as true pursuant to Rule

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12(b)(6) do not rise to the level of severe or pervasive conduct. In fact, in Bonds, the Fourth Circuit
reviewed an order dismissing a hostile work environment claim under Rule 12(b)( 6) by citing prior
opinions evaluating such claims under Rule 56. See Bonds, 629 F.3d at 385 (citing Sunbelt Rentals,
521 F.3d at 315 and Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir. 2008)). Referencing two
Supreme Court opinions--one evaluating a Rule 56 order and the other a judgment post-trial- the
court concluded that the plaintiffs allegations, taken as true, " f[ e ]11 well short of alleging an
abusive working environment." Id. (citing Burlington N & Santa Fe Ry. Co. v. White , 548 U.S.
53 , 68 (2006) and Oncale v. Sundowner Offshore Servs., 523 U.S. 75 , 80 (1998)).
Likewise, here, the court finds as a matter of law that Plaintiffs allegations, taken as true,
reflecting that he endured a history of denials for promotion while less qualified white firefighters
were promoted and, in 2019, was denied two opportunities for promotion based on application of
the Administrative Directive, which may not have been applied to white firefighters seeking
promotion, together with allegations that Plaintiff was promoted to Captain in 2006 and to Division
Chief in 2017, do not rise to the level of a hostile work environment, which is described by the
Fourth Circuit as a "workplace ... permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim' s employment and create
an abusive working environment." Boyer-Liberto, 786 F.3d at 277. The alleged conduct, while
serious, is neither severe nor frequent (four promotion denials between 2012 and 2017 and two
denials in 2019 based on the Administrative Directive), not physically threatening, and is not "[so]
extreme [as] to amount to a change in the terms and conditions of employment." Sunbelt Rentals,
521 F.3d at 315 (4th Cir. 2008) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)). In other words, Plaintiff has failed to allege that he suffered "situations that a reasonable
jury might find to be so out of the ordinary as to meet the severe or pervasive criterion. That is,

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instances where the environment was pervaded with discriminatory conduct ' aimed to humiliate,
ridicule, or intimidate,' thereby creating an abusive atmosphere." Id. at 316 (quoting Jennings v.
Univ. of North Carolina, 482 F.3d 686, 695 (4th Cir. 2007)); see also Perkins, 936 F.3d at 209

(evidence of disparate treatment in the application of benefits, rankings, shift assignments,
approval of overtime, and enforcement of workplace rules, together with denials of several
promotion requests by Black employee while whites were granted promotions, was insufficient to
rise to the level of the severity and pervasiveness required to constitute a hostile workplace).
Accordingly, even if Plaintiff had exhausted his required administrative remedies for his
second claim for relief, Plaintiff fails to allege a plausible claim for hostile work environment in
violation of Title VII and his claim is, therefore, dismissed.
V.

Conclusion
Plaintiff concedes that he does not seek recovery for alleged discriminatory acts that

occurred prior to June 23 , 2019; consequently, to the extent that the Amended Complaint may be
construed to allege Title VII claims based on such conduct, the claims are dismissed. In addition,
Plaintiff fails to demonstrate he exhausted his administrative remedies and, alternatively, he fails
to state a plausible claim for hostile work environment in violation of Title VII; thus, Plaintiffs
second claim for relief is dismissed. Proceeding in this case is Plaintiffs first claim for relief
based on Defendant' s conduct that occurred on or after June 23, 2019.

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Defendant's Motion for Partial Dismissal of the Amended Complaint [DE 27] 1s
GRANTED as set forth herein.
SO ORDERED this

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RICHARD E. MYERS II
CHIEF UNITED STATES DISTRICT JUDGE

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