Rush v. Kenneth Rust Enterprises et al

Filing 8

ORDER adopting Report and Recommendations regarding 3 Memorandum and Recommendations. Plaintiffs claims against Defendants Humpries, Michelle Nobles-Evans, and Adam Lewis are DISMISSED. Additionally, any claim under the Equal Pay Act is DISMISSED . To the extent that Plaintiff moves to amend his complaint, such motion is ALLOWED, and the Amended Complaint [DE-7] is nowthe operative pleading in this action. Any Equal Pay Act Claim asserted in the Amended Complaint [DE-7], however, is DISMISSED. Signed by Senior Judge James C. Fox on 3/3/2015. Certified copy sent to Thomas J. Rush via US Mail at 414 Cain Road, St. Pauls, NC 28384. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:15-CV-19-F
THOMAS J. RUSH,
Plaintiff,
v.
KENNETH RUST ENTERPRISES d/b/a
McDONALDS, DOUGLAS HUMPRIES,
MICHELLE NOBLES-EVANS, and
ADAM LEWIS,
Defendants.

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ORDER

This matter is before the court on the Memorandum and Recommendation ("M&R") [DE-3]
of United States Magistrate Judge Robert B. Jones, Jr.
In the M&R, Judge Jones construed the proposed complaint filed by prose Plaintiff Thomas
J. Rush as attempting to assert claims pursuant to Title VII ofthe Civil Rights Act of 1964 ("Title
VII"), the Equal Pay Act of 1963 ("Equal Pay Act"), and the Age Discrimination in Employment Act
("ADEA"). See M&R [DE-3] at 3. Judge Jones recommended that any claims asserted by Plaintiff
under Title VII and ADEA against Defendants Humpries, Noble-Evans, and Lewis be dismissed
because supervisors are not liable in their individual capacities under either Title VII or the AD EA.

Id at 4. He also recommended that any Equal Pay Act claim be dismissed for failure to state a claim.
Id at 4-5. Accordingly, Judge Jones recommended that "any Equal Pay Act claim be dismissed, that
Defendants Humpries, Michelle Nobles-Evans, and Adam Lewis be dismissed, and that Plaintiff's
Title VII and any ADEA claim against Defendant Kenneth Rust Enterprises, d/b/a McDonalds be
allowed to proceed at this time." Id at 5.

Plaintiff did not file an objection to the M&R, but he did file what appears to be an Amended
Complaint [DE-7]. The Amended Complaint omits Humpries, Noble-Evans and Lewis as
defendants. See Amended Compl. [DE-7] ,-r 2. The Amended Complaint also no longer lists
Plaintiffs age as a basis for the alleged discrimination, nor does it contain allegations that a
defendant failed to promote him. Id ,-r,-r 4, 6. The Amended Complaint continues to contain
allegations, however, referencing the Equal Pay Act. Id ,-r 4.
The court has conducted an independent and thorough review of the M&R [DE-3] and the
record as a whole, and concludes that the M&R is correct and in accordance with the law.
Accordingly, the court hereby adopts the M&R [DE-3], and Plaintiffs claims against Defendants
Defendants Humpries, Michelle Nobles-Evans, and Adam Lewis are DISMISSED. Additionally, any
claim under the Equal Pay Act is DISMISSED.
To the extent that Plaintiff has attempted to amend his complaint, Federal Rule of Civil
Procedure 15(a)(1)(B) provides that a plaintiff may amend his complaint once as a matter of course
within 21 days after the earlier of (1) service of a responsive pleading or (2) service of a motion
under Rule 12(b), (e), or(f). No defendant has been served in this action, and therefore no responsive
pleading or applicable motion has been filed. Accordingly, the court will deem the Amended
Complaint [DE-7] to be the operative pleading in this action, except to the extent that Plaintiff
attempts to assert an Equal Pay Act claim. As Judge Jones already explained, the Equal Pay Act
prohibits employers from paying employees of opposite sex disparate pay for equal work. M&R
[DE-3] at 4 (citing Ramirez-Rodriguez v. Wal-Mart Stores E. L.P., No. 5:12-CV-595, 2013 WL
3356566, at *2 (E.D.N.C. July 3, 3013)). Plaintiff still has failed to allege that he received lower pay
than a female employee performing substantially similar work under similar conditions, and thus has
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failed to state an Equal Pay Act claim.
CONCLUSION
For the foregoing reasons, the court hereby adopts the M&R [DE-3], and Plaintiffs claims
against Defendants Humpries, Michelle Nobles-Evans, and Adam Lewis are DISMISSED.
Additionally, any claim under the Equal Pay Act is DISMISSED. To the extent that Plaintiff moves
to amend his complaint, such motion is ALLOWED, and the Amended Complaint [DE-7] is now
the operative pleading in this action. Any Equal Pay Act Claim asserted in the Amended Complaint
[DE-7], however, is DISMISSED.
SO ORDERED.
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This the_-,_ day of March, 2015.

lfMESC.FOX
Senior United States District Judge

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