DAWLING v. SHAMROCK ENVIRONMENTAL CORPORATION

Filing 15

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 06/25/2012. IT IS THEREFORE RECOMMENDED that Defendant's Motion to Dismiss or, Alternatively, for Summary Judgment (Docket Entry 10 ) be granted in part and denied in part, in that the Court should dismiss for lack of subject matter jurisdiction any race- or age-based discriminatory discharge claim, but should neither dismiss nor enter summary judgment on Plaintiff's claims th at Defendant engaged in race and age discrimination by transferring him from tank technician to a job with significantly different responsibilities. IT IS ORDERED that, upon Defendant's filing of an Answer pursuant to Federal Rule of Civil Pro cedure 12(a)(4)(A), the Clerk promptly shall set this case for an Initial Pretrial Conference. IT IS FURTHER ORDERED that, to assist Plaintiff in meeting his obligation to prosecute this case, the Clerk shall send Plaintiff a copy of this Court's Local Rules of Civil Procedure and of Federal Rules of Civil Procedure 5, 6, 7, 8, 10, 11, 12, 15, 16, 26, 28, 29, 30, 31, 33, 34, 35, 36, 37, 41, 45, 56, and 72, as well as Forms 1, 2, 50, and 51.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SCOTT M. DAWLING,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
SHAMROCK ENVIRONMENTAL
CORPORATION,
Defendant.

1:12CV198

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

matter

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on Defendant’s Motion to
Dismiss or, Alternatively, for Summary Judgment (Docket Entry 10).
(See Docket Entry dated June 20, 2012.)

For the reasons that

follow, the Court should grant the instant Motion in part and deny
it in part, in that the Court should dismiss for lack of subject
matter jurisdiction any claim for race- or age-based discriminatory
discharge, but should neither dismiss nor enter summary judgment on
Plaintiff’s claims of unlawful transfer based on race and age.
BACKGROUND
Plaintiff filed a pro se form Complaint against Defendant
alleging “[d]iscrimination in [e]mployment.”
1.)

(Docket Entry 2 at

The Complaint alleges, in relevant part, as follows:
1) Plaintiff worked for Defendant for several years as a “tank

technician” (id. at 2);

2) “a white younger person was hired and put in [Plaintiff’s]
place either because [Plaintiff] was black or old” (id.); and
3) to support the foregoing allegation, Plaintiff has “three
to testify and [a] recording” (id.).1
The relief request portion of the Complaint seems to indicate
that Plaintiff lost all employment with Defendant and that he seeks
compensation for that loss of employment.
addition,

Plaintiff

appended

to

the

(See id. at 3.)

Complaint

a

copy

of

In
a

“Dismissal and Notice of Rights” form from the Equal Employment
Opportunity Commission (“EEOC”) to Plaintiff dated December 14,
2011, regarding “EEOC Charge No. 846-2011-41689.”

(Id. at 4.)

Defendant thereafter filed the instant Motion (Docket Entry
10), along with an Affidavit of Dennis R. Snead, Jr. (Docket Entry
10-1 at 2-5), and attachments thereto including: 1) the “Charge of
Discrimination” Plaintiff lodged with the EEOC against Defendant on
May 10, 2011, identified as “[EEOC] Charge No(s): 846-2011-41689,”
alleging discrimination based on race and age with no “[e]arliest”
date, a “[l]atest” date of February 1, 2011, and no allegation of
“CONTINUING ACTION” (id. at 9-10); and 2) the “Notice of Charge of
Discrimination” the EEOC forwarded to Defendant on May 11, 2011,
along with said Charge of Discrimination (id. at 8).
In said Charge of Discrimination, Plaintiff made, in relevant
part, the following assertions under penalty of perjury:
1

The Complaint also sets forth Plaintiff’s pledge that he
“could explain in more detail.” (Docket Entry 2 at 2.)
-2-

I was hired July 2007 as a Tank Tech. I trained on the
tote side and the tank side. Thereafter, I worked on the
Tank side as a Tank Technician providing service to the
company client, Transport Services.
Sometime in late
2009 an employee, D. Patrick (White, @ age 21) was hired.
He trained on the tote side for several months. The
Facility Manager took me from my position and placed me
on the tote side and place [sic] Mr. Patrick in my
position. After Mr. Patrick completed his training, he
was not returned to the tote side and I was not placed
back in the Tank Technician position providing service to
Transport Services. Now, when I go to the tank side, it
is only as a helper and to assist. Tank Technician has
the ability to earn more money and more over-time.
Additionally, Mr. Patrick has been training in other
areas I was not given training. Furthermore, Mr. Patrick
has been with the company less than two years and
received $1.00 per hour increase twice. I, on the other
hand, received a $0.50 increase (after a year) and later
a $0.75 increase. Moreover, within the last six months,
he has received keys to the shop and a cell phone. I was
never given keys or cell phone.
When I asked the
Facility Manager why, he told me why did I need keys.
. . . .
I believe that I was discriminated against on the basis
of my race and age (Black, age 49) in violation of Title
VII of The Civil Rights Act of 1964, as amended, and in
violation of The Age Discrimination in Employment Act of
1967, as amended.
(Id. at 9-10 (emphasis added).)2
Plaintiff responded to the instant Motion. (Docket Entry 13.)
That response included the following pertinent statements:
1) Plaintiff “had superior job performance” (id. at 2);

2

“[T]he [C]ourt can consider the charge of discrimination
without having the motion to dismiss converted into one for summary
judgment.” Brown v. Institute for Family Centered Servs., Inc.,
394 F. Supp. 2d 724, 728 n.2 (M.D.N.C. 2005); accord, e.g.,
Bratcher v. Pharm. Prod. Dev., Inc., 545 F. Supp. 2d 533, 538 n.3
(E.D.N.C. 2008).
-3-

2) Plaintiff “ha[s] a witness from work and a witness that do
[sic] not work for [Defendant] [who both] clearly hear [sic] the
manage [sic] of the tank wash saying he was a racist” (id.);
3) Plaintiff also has “a recording of a employee saying that
[Defendant] is prejudic [sic]” (id. at 2-3); and
4) Plaintiff contends that the cited witness statements and
recording show that discrimination lies at the root of Defendant’s
decision to “move [him] out of [his] potion [sic]” (id. at 3).
Defendant has replied, contending therein that Plaintiff’s
foregoing Response “does not contain any admissible evidence” and
that Plaintiff “fail[ed] to present any affidavits” from his abovereferenced witnesses.

(Docket Entry 14 at 3.)
DISCUSSION

Defendant’s instant Motion identifies the following grounds
for dismissal of this action:
The Court does not have subject matter jurisdiction
due to Plaintiff’s failure to exhaust his administrative
remedies with regard to his alleged wrongful discharge
claim which is based on his race (Black) and age (50)
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2 et seq., and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq.
In the event that this Court determines that it has
subject matter jurisdiction, Plaintiff’s claims should be
dismissed for failure to plead sufficient facts pursuant
to Rule 8(a), Rule 12(b)(6), Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).

-4-

(Docket Entry 10 at 1-2 (emphasis added).) The instant Motion does
not make reference to any theory by which the Court could grant
Defendant summary judgment.

(See id.)

Subject Matter Jurisdiction as to Discriminatory Discharge
In

its

supporting

brief,

Defendant

jurisdictional argument as follows:

elaborated

on

its

“Plaintiff relies solely on

his May 10, 2011, Charge of Discrimination . . . [which] was filed
during his employment with [Defendant].

Since Plaintiff never

filed an EEOC Charge of Discrimination alleging wrongful discharge
his Complaint fails as a matter of law.”
(emphasis in original).)

(Docket Entry 11 at 2

Moreover, Defendant set forth a detailed

argument with voluminous citations regarding the jurisdictional bar
that arises in federal court to claims of discrimination based on
race or age beyond the scope of an EEOC charge.

(See id. at 8-11.)

Plaintiff’s Response did not address the foregoing contention.
(See Docket Entry 13.)

Accordingly, Plaintiff has conceded that

this Court lacks subject matter jurisdiction over claims for race
and age discrimination in connection with his discharge.

See

Kinetic Concepts, Inc. v. ConvaTec Inc., No. 1:08CV918, 2010 WL
1667285, at *6-8 (M.D.N.C. Apr. 23, 2010) (unpublished) (analyzing
this Court’s Local Rules 7.3(f), 7.2(a), and 7.3(k) and discussing
authority

supporting

proposition

that

failure

to

respond

to

argument amounts to concession that generally warrants granting
requested relief). Further, independent analysis confirms that, as

-5-

to any claim regarding the termination of Plaintiff’s employment,
Defendant’s position as to a lack of subject matter jurisdiction
has merit; as the United States Court of Appeals for the Fourth
Circuit recently reiterated:

“‘Only those . . . claims stated in

the initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of the
original complaint may be maintained in a subsequent Title VII
lawsuit.’”

Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th

Cir. 2009)

(quoting Evans v. Technologies Applications & Serv.

Co., 80 F.3d 954, 963 (4th Cir. 1996)).3
As documented in the Background section, Plaintiff complained
to the EEOC only about race and age discrimination during the
course of his employment (more specifically, through February 1,
2011,

at

the

latest)

and

not

any

subsequent

discharge

from

employment. Moreover (again as set out in the Background section),
Plaintiff’s Charge of Discrimination with the EEOC did not allege
that the reported discrimination constituted part of a continuing
action.

Under these circumstances, any race or age discrimination

claim related to Plaintiff’s discharge from employment qualifies as
unexhausted, because it:

1) was not “stated in [his] initial

charge,” id.; 2) is not “reasonably related to the original
complaint,”

id.;

and

3)

was

not

“developed

by

reasonable

investigation of the original complaint,” id. See, e.g., Chacko v.
3

“The same is true of claims made under the ADEA [Age
Discrimination in Employment Act].” Jones, 551 F.3d at 300-01.
-6-

Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (“A plaintiff
fails to exhaust his administrative remedies where, as here, his
administrative charges reference different time frames, actors, and
discriminatory conduct than the central factual allegations in his
formal suit.”).
In this context, “a failure by the plaintiff to exhaust
administrative remedies . . . deprives the federal courts of
subject matter jurisdiction over the claim.”
300.

Jones, 551 F.3d at

Accordingly, the Court should dismiss for lack of subject

matter

jurisdiction

any

claim

by

Plaintiff

for

race

or

age

discrimination related to his loss of employment with Defendant.
See id. at 301 (“Because [the plaintiff’s] failure to exhaust
administrative remedies deprived the district court of subject
matter jurisdiction over the claims, the only function remaining to
the court was that of announcing the fact and dismissing the
causes.” (internal brackets and quotation marks omitted)).
Sufficiency of Allegations as to Discriminatory Transfer
The Court, however, should not embrace Defendant’s position
that the lack of subject matter jurisdiction over any claim by
Plaintiff for race- or age-based discharge requires dismissal of
this action as a whole (see Docket Entry 11 at 2 (“Since Plaintiff
never filed an EEOC Charge of Discrimination alleging wrongful
discharge his Complaint fails as a matter of law.” (emphasis
added))).

Although the relief request portion of the Complaint

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appears to demand compensation for loss of employment (see Docket
Entry 2 at 3), the body of the Complaint alleges that Plaintiff
worked for Defendant for several years as a tank technician and
that “a white younger person was hired and put in [Plaintiff’s]
place either because [Plaintiff] was black or old” (id. at 2
(emphasis added)).

Further, in responding to the instant Motion,

Plaintiff made clear that he claims race and age discrimination
regarding Defendant’s decision to “move [him] out of [his] potion
[sic].”

(Docket Entry 13 at 3.)

Finally, Plaintiff’s Charge of

Discrimination with the EEOC clearly included allegations that
Defendant discriminated against him based on race and age by
reassigning

him

from

his

job

as

a

tank

technician

to

a

significantly different position. (Docket Entry 10-1 at 9-10.) In
sum, under the doctrine of liberal construction applicable to pro
se litigants, see Erickson v. Pardus, 551 U.S. 89, 94 (2007),
Plaintiff has asserted claims against Defendant for race and age
discrimination related to his job transfer and, given the plain
language of his Charge of Discrimination with the EEOC, the Court
has subject matter jurisdiction over such claims.
In apparent anticipation of the foregoing conclusion(s),
Defendant also argues in its brief in support of its instant Motion
that Plaintiff’s Complaint lacks sufficient factual allegations to
state

a

claim

for

race-

and/or

-8-

age-based

discriminatory

job

reassignment.

(See Docket Entry 11 at 13-15.)4

Specifically,

Defendant contends that Plaintiff’s Complaint fails to allege facts
that would satisfy certain elements of the test for making out a
prima facie case of race and/or age discrimination.

(See id.)

As

an initial matter, this argument falls short because the United
States Supreme Court has held that “an employment discrimination
plaintiff need not plead a prima facie case of discrimination
. . . .”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).5

4

Defendant does not dispute that a transfer to a job with
materially distinct duties can provide the basis for a claim of
race or age discrimination in employment. (See Docket Entry 11 at
13-15.) Nor would such an argument have any apparent merit. See
Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999) (noting
ruling in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998),
that
“reassignment
with
significantly
different
responsibilities” can support employment discrimination claim).
5

The Swierkiewicz Court made reference to Conley v. Gibson,
335 U.S. 41 (1957), and the characterization that originated
therein of Federal Rule of Civil Procedure 12(b)(6) as permitting
dismissal “only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations [of a complaint].” Swierkiewicz, 534 U.S. at 512-14
(internal quotation marks omitted). The Supreme Court subsequently
held that, “after puzzling the profession for 50 years, this famous
observation [from Conley] has earned its retirement . . . [and] is
best forgotten . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
563 (2007). However, “Twombly did not overrule [the] portion of
Swierkiewicz [quoted above in the body of the Discussion section]
but rather reaffirmed th[at] holding . . . .”
Equal Emp’t
Opportunity Comm’n v. Propak Logistics, Inc., No. 1:09cv311, 2010
WL 3081339, at *5 (W.D.N.C. Aug. 6, 2010) (unpublished) (citing and
quoting Twombly, 550 U.S. at 570, as re-approving Swierkiewicz’s
rejection of requirement that discrimination plaintiffs plead
elements of prima facie case).
In other words, “[t]he Twombly
Court made clear that its holding did not contradict the
Swierkiewicz
rule
that
‘“a
complaint
in
an
employment
discrimination lawsuit need not contain specific facts establishing
a prima facie case of discrimination.”’” Reed v. Airtran Airways,
531 F. Supp. 2d 660, 666 (D. Md. 2008) (quoting Twombly, 550 U.S.
-9-

In reaching this conclusion, the Supreme Court noted that the
so-called “prima facie case” requirement merely represents part of
an indirect method of proving employment discrimination (derived
from

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) and

therefore declared that “it is not appropriate to require a
plaintiff to plead facts establishing a prima facie case because
. . ., if a plaintiff is able to produce direct evidence of
discrimination, he may prevail without proving all the elements of
a prima facie case.”

Id. at 511.

Construing the Complaint

liberally (as required, see Erickson, 551 U.S. at 94), Plaintiff
has alleged that he has direct evidence (in the form of witness
accounts and a recording) that shows Defendant reassigned him away
from his tank technician job for race- and age-based discriminatory
reasons (see Docket Entry 2 at 2).

Defendant’s brief supporting

its instant Motion offers no argument that Plaintiff’s Complaint
lacks sufficient allegations to state claim(s) of race and/or age
discrimination as to job reassignment pursuant to a direct evidence
approach.

(See Docket Entry 11 at 13-15.)

Moreover, as he

promised in the body of his Complaint, Plaintiff subsequently has
at 569, which in turn quotes with approval Swierkiewicz, 534 U.S.
at 508) (internal brackets omitted).
Indeed, in Coleman v.
Maryland Ct. of App., 626 F.3d 187 (4th Cir. 2010), the postTwombly (and post-Ashcroft v. Iqbal, 556 U.S. 662 (2009)) case on
which Defendant principally relies in pressing this argument (see
Docket Entry 11 at 13), the Fourth Circuit expressly held that, in
the employment discrimination context, “a plaintiff is not required
to plead facts that constitute a prima facie case in order to
survive a motion to dismiss,” Coleman, 626 F.3d at 190, and cited
Swierkiewicz as the basis for that holding, id.
-10-

“explain[ed] [his direct evidence] in more detail” (Docket Entry 2
at 2).

(See Docket Entry 13 at 2-3 (stating that two credible

witnesses

have

described

hearing

Defendant’s

manager

of

tank

technicians admitting to racial bias and that a recording confirms
prejudice by Defendant).)6
Further, to the extent Plaintiff’s Complaint may have lacked
sufficient factual allegations to establish each element of a prima
facie case of race- and/or age-based discriminatory transfer, it
appears from his Charge of Discrimination with the EEOC and his
Response to the instant Motion that he could amend the Complaint to
provide the allegedly missing information.

For example, in its

brief in support of the instant Motion, Defendant grouses that
Plaintiff has failed to come forward with factual matter that would
meet the “satisfactory job performance” prong of the prima facie

6

Even if Defendant had argued that the Complaint lacked
sufficient factual allegations to state any claim for race or age
discrimination in connection with Plaintiff’s transfer out of his
tank technician position pursuant to a direct evidence theory of
proof and if the undersigned Magistrate Judge had agreed, a
recommendation of dismissal likely would have been unwarranted;
instead, the undersigned Magistrate Judge likely would have
recommended that the Court allow Plaintiff to amend his Complaint
to provide more detail (particularly given his pro se status and
his pledge that he could do so). See, e.g., Threat v. Potter, No.
3:05CV116, 2006 WL 1582393, at *1 (W.D.N.C. June 2, 2006)
(unpublished) (“[I]n its discretion, the Court finds that allowing
the Plaintiff to amend her Complaint to correct these deficiencies
is a wiser course than to order a dismissal at this early stage of
the action.”). Because Plaintiff already has presented additional
information about such matters in his Response to the instant
Motion, no need exists for such an amendment, as Defendant has
sufficient notice to form a responsive pleading and can explore the
finer points of Plaintiff’s alleged evidence of bias in discovery.
-11-

test, because he “has not alleged a single fact to establish he had
satisfactory job performance” (Docket Entry 11 at 13 (addressing
race discrimination claim); accord id. at 15 (contending that age
discrimination claim fails as a matter of law because “Complaint is
completely

void

of

any

facts

regarding

Plaintiff’s

job

performance”); however, in his Response to the instant Motion,
Plaintiff asserted he “had superior job performance” (Docket Entry
13 at 2).

Similarly, Defendant has argued Plaintiff did not

satisfy the first prong of the age discrimination prima facie test,
because he “fail[ed] to identify his age in his Complaint . . .
[and instead] assert[ed] that he was ‘old’” and that “Plaintiff
cannot satisfy the fourth prong of the prima facie test [for age
discrimination] by asserting that his replacement was ‘younger.’”
(Docket Entry 11 at 15.)

As documented in the Background section,

when Defendant made this argument, it had actual notice that (in
his earlier, underlying Charge of Discrimination with the EEOC)
Plaintiff declared under penalty of perjury that he was 49 (i.e.,
in the protected class) and his replacement was 21 (i.e., not just
younger than Plaintiff, but dramatically so, as well as far outside
the protected class).

(See Docket Entry 10-1 at 9.)7

7

The Charge of Discrimination also sets out Plaintiff’s sworn
statement that his youthful replacement required months of training
by Defendant.
(See Docket Entry 10-1 at 9.)
This factual
assertion, combined with the averment regarding the tender age of
Plaintiff’s replacement and the allegation that Plaintiff had years
of experience as a tank technician (see Docket Entry 2 at 2), would
support an inference that Plaintiff’s replacement, at most, was
similarly situated to or comparably qualified as Plaintiff, as
-12-

Under these circumstances, even if Plaintiff had to allege
factual information sufficient to establish a prima facie case of
transfer based on race and/or age and his Complaint failed to do
so, the Court should not dismiss this action, but rather should
allow Plaintiff to amend his Complaint to add factual allegations
already otherwise in the record (particularly in light of his
status as a pro se litigant).
3:05CV116,

2006

WL

1582393,

See, e.g., Threat v. Potter, No.
at

*1

(W.D.N.C.

June

2,

2006)

(unpublished) (“[I]n its discretion, the Court finds that allowing
the Plaintiff to amend her Complaint to correct these deficiencies
is a wiser course than to order a dismissal at this early stage of
the action.”). Moreover, given that (as set forth above) Defendant
neglected to present any argument that the Complaint fails to state
a claim for race- or age-based discriminatory reassignment on a
direct evidence theory and that (for reasons previously discussed)
Defendant cannot prevail on a motion to dismiss by pointing out an
absence of factual allegations that would show a prima facie case
of such discrimination, the Court need not even order Plaintiff to
amend his Complaint, particularly given that Defendant has actual
notice in the record of this case of the additional facts so that

Defendant contends Plaintiff must show to make out a prima facie
case of race and/or age discrimination (see Docket Entry 11 at 13,
15).
-13-

it can formulate both a responsive pleading and discovery requests
designed to ferret out further details about such matters.8
As a final matter, although Defendant styled its instant
Motion as seeking, in the alternative, summary judgment (see Docket
Entry 10 at 1), neither the body of the instant Motion nor the
portions of the brief filed in support of the instant Motion that
address claim(s) by Plaintiff for race and/or age discrimination
arising from his transfer out of a tank technician position present
any argument as to why the Court should grant summary judgment to
Defendant on such any claim(s) by Plaintiff (see id. at 1-2; Docket
Entry 11 at 11-15).

Defendant thus has not identified any basis

for the Court to enter summary judgment against Plaintiff on his
claim(s) of race- and/or age-based discriminatory reassignment.9
8

Declining to require Plaintiff to amend his Complaint to
include detailed information addressing the prima case elements
also makes sense because, as the Supreme Court has observed, “the
precise requirements of a prima facie case can vary depending on
the context and were ‘never intended to be rigid, mechanized, or
ritualistic.’”
Swierkiewicz, 534 U.S. at 512 (quoting Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
“Before
discovery has unearthed relevant facts and evidence, it may be
difficult to define the precise formulation of the required prima
facie case in a particular case.” Id.
9

Given that Defendant did not seek summary judgment on
Plaintiff’s claim(s) for discrimination based on race and age in
connection with his alleged transfer, Plaintiff had no obligation
to produce admissible evidence in response to Defendant’s instant
Motion to avoid summary judgment on such claim(s), despite
Defendant’s apparent assertion to the contrary in its Reply (see
Docket Entry 14 at 1-3). Indeed, the only reference to summary
judgment in the body of Defendant’s brief in support of its instant
Motion appears to consist of the statement in an introductory
section that, “[s]ince [Defendant] supports its [instant] Motion
with the Affidavit of Dennis R. Snead, Jr., . . . the Court should
-14-

CONCLUSION
This Court lacks subject matter jurisdiction over any claim by
Plaintiff for race or age discrimination as to his discharge from
employment with Defendant because Plaintiff did not exhaust any
such claim with the EEOC.

However, granting Plaintiff the benefit

of liberal construction (as required by the Supreme Court due to
his status as a pro se litigant), the Court should conclude that
Plaintiff has come forward with sufficient allegations to state a
claim for race- and age-based discriminatory reassignment, matters
as to which he did exhaust his administrative remedies.

Further,

no basis exists for the Court to enter summary judgment for
Defendant on such claims at this time.
IT IS THEREFORE RECOMMENDED that Defendant’s Motion to Dismiss
or, Alternatively, for Summary Judgment (Docket Entry 10) be
granted in part and denied in part, in that the Court should
dismiss for lack of subject matter jurisdiction any race- or agebased discriminatory discharge claim, but should neither dismiss
nor enter summary judgment on Plaintiff’s claims that Defendant
engaged in race and age discrimination by transferring him from

treat this as a Motion for Summary Judgment . . . .” (Docket Entry
11 at 2-3.) A review of Mr. Snead’s affidavit, however, reveals no
information addressing Plaintiff’s allegations of race- and agebased discriminatory job reassignment. (See Docket Entry 10-1 at
2-5.) Said Affidavit thus neither placed Plaintiff on notice that
Defendant asserted an entitlement to summary judgment on such
claim(s) nor provided a ground upon which the Court could enter
summary judgment for Defendant on such claim(s).
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tank

technician

to

a

job

with

significantly

different

responsibilities.
IT IS ORDERED that, upon Defendant’s filing of an Answer
pursuant to Federal Rule of Civil Procedure 12(a)(4)(A), the Clerk
promptly shall set this case for an Initial Pretrial Conference.
IT IS FURTHER ORDERED that, to assist Plaintiff in meeting his
obligation to prosecute this case, the Clerk shall send Plaintiff
a copy of this Court’s Local Rules of Civil Procedure and of
Federal Rules of Civil Procedure 5, 6, 7, 8, 10, 11, 12, 15, 16,
26, 28, 29, 30, 31, 33, 34, 35, 36, 37, 41, 45, 56, and 72, as well
as Forms 1, 2, 50, and 51.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 25, 2012

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