PINNIX v. DURHAM COUNTY GOVERNMENT

Filing 28

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 01/29/2013, that for the reasons set forth herein, IT IS ORDERED thatDefendant's Second Motion to Dismiss (Doc. 23 ) is DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SEAN E. PINNIX,
Plaintiff,
v.
DURHAM COUNTY GOVERNMENT,
Defendant.

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1:11CV668

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court is the Second Motion to Dismiss
filed by Defendant Durham County Government (hereinafter
referred to as “Defendant” or “Durham County”).

(Doc. 23.)

Defendant has filed a memorandum (Doc. 24) in support of its
motion, and pro se Plaintiff has filed a response in opposition
(Doc. 26).

Defendant did not file a reply.

Defendant’s motion

is now ripe for adjudication, and for the reasons that follow,
this court will deny the motion.1

1

This Order does not address the extent to which particular
legal theories and factual allegations were properly exhausted
through the EEOC administrative process.

I.

Background
Plaintiff’s Amended Complaint alleges that Defendant

violated various provisions of the Americans with Disabilities
Act, 42 U.S.C. § 12101-12213.
The following facts are presented in the light most
favorable to Plaintiff.
678 (2009).2

See Ashcroft v. Iqbal, 556 U.S. 662,

Plaintiff is a former employee of Durham County,

where he worked as a Tax Assistant I from December 14, 2005,
until his termination on October 25, 2010.
(“Am. Compl.”) (Doc. 5) at 2.)3

(Amended Complaint

He filed a timely EEOC complaint

alleging disability discrimination, and received a right-to-sue
letter on May 25, 2011.

(Id. at 3.)

Plaintiff filed his

original complaint with this court on August 23, 2011.

(Id.)

He filed this Amended Complaint on September 20, 2011.

2

The facts are drawn from the Amended Complaint. As
discussed below, the court finds that Plaintiff properly amended
his original complaint and that his Amended Complaint relates
back to the initial filing date, making the Amended Complaint the
operative pleading, see Young v. City of Mount Ranier, 238 F.3d
567, 572 (4th Cir. 2001). Because this court has adopted the
Recommendation (Doc. 27), this Order omits any reference to the
individual Defendants.
3

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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Plaintiff suffers from hyperglycemia unawareness, “a
progressive complication stemming from long term type-1 juvenile
diabetes.”

(Id.)

As a result of this condition, Plaintiff at

times “exhibits uncharacteristic demeanor and personal behavior
and sometimes loses consciousness.”

(Id.)

Members of

Defendant’s management team learned of his condition when, on an
unspecified date in 2006, emergency medical technicians were
summoned to the workplace after Plaintiff lost consciousness.
(Id.)

After this event, Plaintiff “returned to performing the

essential functions of his job” (id.), and has not lost
consciousness at work on any other occasion.

(Id. at 4).

Plaintiff further alleges that he was “qualified for his
position with or without accommodations.”

(Id.)

He received

satisfactory performance evaluations each of his first three
years working for Defendant.

(Id.)

Furthermore, his

hyperglycemia unawareness “posed no danger to co-workers or to
the general public.”

(Id.)

Plaintiff alleges that Defendant has exacerbated the
complications associated with his medical condition by denying
his requests for reasonable accommodations and by taking
disciplinary action against him for actions resulting from this
medical condition.

In April 2008, Plaintiff requested “time out

to check his blood glucose and to eat snacks as needed”; this
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request was denied, and Plaintiff was suspended without pay and
threatened with termination.

(Id.)

On July 9, 2009, Plaintiff

requested a lateral transfer, but Defendant also denied this
request; instead, it instituted a “formal corrective action plan
and threatened him with termination.”

(Id. at 4-5.)

Plaintiff

was written up on September 27, 2010, for unacceptable personal
conduct and was again threatened with termination; his
unacceptable conduct was allegedly a result of Defendant’s
failure to accommodate his 2009 request.

(Id. at 5.)

Soon after the September 2010 incident, Plaintiff filed his
first EEOC charge.

(Id.)

Within the following month, he was

first suspended and then terminated.

(Id.)

Plaintiff also alleges that his supervisor, Joyce Logan,
subjected him to performance standards that were more onerous
than those imposed on similarly-situated non-disabled employees.
(Id. at 6.)
Plaintiff requests damages as well as reinstatement to his
former position with back pay and benefits.

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II.

Analysis
(1) Motion to Dismiss Amended Complaint as Untimely4
Defendant first argues that Plaintiff’s Amended Complaint

should be dismissed because it was filed more than ninety days
after Plaintiff received his right-to-sue letter from the EEOC.
Defendant also contends that Plaintiff was required to seek
permission from either Defendant or the court before amending
his original complaint.

Finally, Defendant argues that the

Amended Complaint changes Plaintiff’s “causes of actions and his
factual allegations such that [it] is not simply an update of
the facts, but essentially a new complaint.”

(Def.’s Br. (Doc.

24) at 4.)
For the reasons that follow, this court finds that
Plaintiff properly amended his original complaint and that the

4

Defendant appears to treat this issue as one of subject
matter jurisdiction. (See Def.’s Second Mot. to Dismiss (Doc.
23) at 1; Def.’s Br. in Supp. of Second Mot. to Dismiss (“Def.’s
Br.”) (Doc. 24) at 5.) However, “[t]he 90-day filing requirement
is ‘not a jurisdictional prerequisite to suit in federal court,
but a requirement that, like a statute of limitations, is subject
to waiver, estoppel, and equitable tolling.’” Crabill v.
Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314, 321 (4th
Cir. 2011) (quoting Laber v. Harvey, 438 F.3d 404, 429 n.25 (4th
Cir. 2006)). The court will consider the argument on the proper
grounds.
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Amended Complaint relates back to the initial filing.5
First, the court finds that Plaintiff properly amended his
complaint.

After filing at least one administrative charge,

Plaintiff received a right-to-sue letter from the EEOC on
May 25, 2011, and filed his initial complaint with this court on
August 23, 2011, within the ninety-day filing period.
Compl. (Doc. 5) at 3.)

(Am.

He filed an Amended Complaint with this

court on September 20, 2011, outside the ninety-day filing
period.
Although Plaintiff filed his Amended Complaint outside the
ninety-day filing period, Federal Rule of Civil Procedure
15(a)(1)(B) allows a plaintiff to amend his or her complaint
“once as a matter of course” within “21 days after service of a
responsive pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.”

As admitted by

Defendant Durham County Government, “Plaintiff served both the
original complaint and amended complaint on the Defendant at the
same time.”

(Def.’s Br. (Doc. 24) at 3-4.)

Because Defendant

received the Amended Complaint before it even had the

5

The court also notes that Defendant did not object to the
portion of the Magistrate Judge’s Recommendation noting that
Plaintiff’s Amended Complaint had superseded the original
complaint. (See Def.’s Obj. to the Order & Recommendation of the
U.S. Mag. J. (Doc. 19).) Instead, Defendant continued to cite
the original complaint. (See id. at 2.)
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opportunity to consider filing a responsive pleading or Rule 12
motion, Plaintiff had “an absolute right to amend his complaint
once . . . and need not [have sought] leave of court to do so.”
See Galustian v. Peter, 591 F.3d 724, 730 (4th Cir. 2010).
Second, the court finds that Plaintiff’s Amended Complaint
relates back to August 23, 2011, the date he filed his original
complaint.

Federal Rule of Civil Procedure 15(c)(1)(B) provides

in pertinent part that an “amendment to a pleading relates back
to the date of the original pleading” when “the amendment
asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out -– or attempted to be set out
–- in the original pleading.”

“[R]elation back depends on the

existence of a common ‘core of operative facts’ uniting the
original and newly asserted claims.”

Mayle v. Felix, 545 U.S.

644, 659 (2005) (quoting Clipper Express v. Rocky Mountain Motor
Tariff Bureau, Inc., 690 F.2d 1240, 1259 n.29 (9th Cir. 1982)).
The purpose of this rule is “to balance the interests of the
defendant protected by the statute of limitations with the
preference expressed in the Federal Rules of Civil Procedure in
general, and Rule 15 in particular, for resolving disputes on
their merits.”
____,

Krupski v. Costa Crociere S. p. A., 560 U.S.

, 130 S. Ct. 2485, 2494 (2010); see also Goodman v.

Praxair, Inc., 494 F.3d 458, 468 (4th Cir. 2007) (en banc)
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(“Rule 15(c) must be understood to freely permit amendment of
pleadings and their relation-back so long as the policies of the
statutes of limitations have been effectively served.”).
In the Fourth Circuit, courts applying Rule 15(c) focus on
two factors:
First, to relate back there must be a factual nexus
between the amendment and the original complaint.
Second, if there is some factual nexus an amended
claim is liberally construed to relate back to the
original complaint if the defendant had notice of the
claim and will not be prejudiced by the amendment.
Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir. 1983); see also
Harley v. Chao, 503 F. Supp. 2d 763, 771 (M.D.N.C. 2007).
“Whether an amendment is prejudicial will often be determined by
the nature of the amendment and its timing.”

Laber, 438 F.3d at

427.
Here, the court finds that a substantial factual nexus
exists between the amendment and the original complaint.

The

Amended Complaint alleges only a violation of the ADA, a cause
of action cited in the original complaint.

Furthermore, the

Amended Complaint is based on the same general allegations,
although it does add a few new contentions arising from the same
employment relationship.

Outside of new jurisdictional

information, the Amended Complaint adds certain allegations
regarding purported disparate treatment, including that
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Plaintiff’s supervisor, Joyce Logan, required him to “smile more
while talking on the phone,” that she required Plaintiff to
“leave his call station to assist others,” and that she held
Plaintiff to a “‘100 percent accuracy – 99 percent of the time’
performance standard” – allegedly in contrast to similarly
situated non-disabled employees.
6.)

(See Am. Compl. (Doc. 5) at

Plaintiff also modified the date on which Defendant learned

of his Type-1 diabetes.

Compare id. at 3 (“In 2006”), with

Complaint (Doc. 2) at 3 (“April 10, 2008”).
Defendant contends that these modifications change
Plaintiff’s “causes of actions and his factual allegations such
that his amended complaint is not simply an update of the facts,
but essentially a new complaint.”

(Def.’s Br. (Doc. 24) at 4.)

The Amended Complaint, however, does not add to Plaintiff’s
causes of action in any substantial way.

The Amended Complaint

– unlike the original complaint – does specifically refer to
Title V of the ADA, presumably alleging retaliation.

On the

other hand, the original complaint alleged that Defendant
retaliated against Plaintiff for filing his first administrative
charge.

Therefore, the change – if any – in Plaintiff’s causes

of action is de minimis as his retaliation claim arises from a
common core of facts.

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Furthermore, both the nature of the amendment and its
timing support finding that the Amended Complaint relates back
to the initial filing date.

Defendant had notice of the claims

through the administrative process.

Furthermore, Defendant

received both the amended complaint and the original complaint
at the same time, eliminating any risk of prejudice beyond not
succeeding on its timeliness argument.

“Moreover, with the case

only at the motion-to-dismiss stage, the parties have not yet
conducted discovery, and Defendant has ample time to gather
additional evidence . . . .”

Harley, 503 F. Supp. 2d at 771-72.

(2) Motion to Dismiss Original Complaint
Defendant limits its Rule 12(b)(6) argument to Plaintiff’s
original complaint.

(See Def.’s Br. (Doc. 24) at 2, 5.)

Because the Amended Complaint, not the original complaint, is
the operative pleading, Defendant’s motion to dismiss for
failure to state a claim is denied as moot.
III. Conclusion
For the reasons set forth herein, IT IS ORDERED that
Defendant’s Second Motion to Dismiss (Doc. 23) is DENIED.
This the 29th day of January, 2013.

________________________________________
United States District Judge
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