HOWARD v. GRAPHIK DIMENSIONS et al

Filing 4

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/24/2013; that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docket Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Garland, Leah)

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

BELINDA HOWARD,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
GRAPHIK DIMENSIONS, et al.,
Defendants.

1:12CV675

MEMORANDUM OPINION, ORDER, AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in
Support (Docket Entry 1), filed in conjunction with Plaintiff’s pro
se

form

Complaint

(Docket

Entry

2).

The

Court

will

grant

Plaintiff’s request to proceed as a pauper for the limited purpose
of

recommending

dismissal

of

this

action,

under

28

U.S.C.

§ 1915(e)(2)(B)(ii), for failure to state a claim.1
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
1

Plaintiff’s pauper application omits some required
information (see Docket Entry 1, ¶¶ 1.a. (acknowledging employment,
but failing to state wages), 4 (admitting receipt of income by
spouse without disclosing amount)) and contains some material
inconsistencies (see id. ¶¶ 6 (denying ownership of any
automobiles), 8 (claiming monthly expense for “car insurance”));
however, in light of the recommendation of dismissal, no need
exists to address such matters further.

because his [or her] poverty makes it impossible for him [or her]
to pay or secure the costs.’”

Nasim v. Warden, Md. House of Corr.,

64 F.3d 951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)).

“Dispensing

with filing fees, however, [is] not without its problems.

Parties

proceeding under the statute d[o] not face the same financial
constraints as ordinary litigants . . . [and thus] d[o] not need to
balance the prospects of successfully obtaining relief against the
administrative costs of bringing suit.”

Nagy v. Federal Med. Ctr.

Butner, 376 F.3d 252, 255 (4th Cir. 2004).
To

address

this

concern,

the

in

forma

pauperis

statute

provides, in relevant part, that “the court shall dismiss the case
at any time if the court determines that – . . . (B) the action or
appeal – . . . fails to state a claim on which relief may be
granted . . . .”

28 U.S.C. § 1915(e)(2).

A complaint falls short

of this standard when it does not “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (emphasis added) (internal citations omitted) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

This

standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.”

Id.

In other words, “the tenet that a

court must accept as true all of the allegations contained in a
complaint

is

inapplicable

to

legal

2

conclusions.

Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.2

DISCUSSION
Plaintiff’s

Complaint

names

four

Defendants,

Graphik

Dimensions, Lucy Metionit, Angie Ruszkowski, and Jeff McCurdy.
(Docket Entry 2 at 1-2.)

It further asserts that Plaintiff was

“discriminated against in violation of Title VII of the Civil
Rights Act of 1964, due to [her] race (black) in retaliation for
complaining about the discriminatory treatment to which [she] was
subjected.” (Id. at 3; see also id. at 2 (alleging that Metionit’s
“actions created a hostile environment for [Plaintiff]”).)

As

factual matter supporting these allegations, the Complaint offers
the following:

2

Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (applying Twombly in dismissing
pro se complaint); accord Atherton v. District of Columbia Off. of
Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint
. . . ‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’ But even a pro se complainant must
plead ‘factual matter’ that permits the court to infer ‘more than
the mere possibility of misconduct.’” (quoting Erickson, 551 U.S.
at 94, and Iqbal, 556 U.S. at 679, respectively)).
3

1) as a result of a placement by a temporary staffing agency,
Plaintiff “worked for Graphik Dimensions from November 7, 2011
until December 8, 2011” (id. at 2);
2) Plaintiff “worked in the Print and Frame Dept.,” where she
“was harassed by Lucy Metionit (Lead Person) about job performance”
(id.);
3) Metionit “repeatedly spoke rude [sic] and unprofessional
[sic] to [Plaintiff]” (id.);
4)

“Metionit

made

racial

remarks

to

her

other

hispanic

employees about Americanos as she called [Plaintiff]” (id.);
5) Plaintiff “complained to [Metionit’s] supervisor Angie
Ruszkowski on several occasions but the abuse did not change”
(id.);
6) “[o]n November 25, 2011, [Plaintiff] was transferred to the
back

area

of

the

department,”

where

“Metionit

confronted

[Plaintiff] again about how her pictures were being [illegible]”
(id. at 3);
7) Metionit “[d]id not offer to help or (watch) observe how
[Plaintiff] was handling the pictures, but said she was told
[Plaintiff] was handling 20 lb pictures roughly” (id.);
8) “[o]n November 30, 2011 [Plaintiff] was required to work by
[her]self for approximately 3 or more days without any help” (id.);
9) “[o]n December 2, 2011 a meeting was held to state about
[sic] meetings with individuals concerning work ethics” (id.);

4

10) “[o]n December 8, 2011 [Plaintiff’s] job was terminated
without reason” (id.); and
11)

“[t]he

other

[temporary

staffing

agency]

employees

remained at Graphik Dimensions” (id.).
Title VII prohibits discriminatory employment actions based on
race.

See

28

U.S.C.

§

2000e-2(a).

Moreover,

prohibited

discrimination includes harassment, but such claims require proof
of a “‘workplace permeated with discriminatory [e.g., race-based]
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.’”

Jordan v. Alternative

Res. Corp., 458 F.3d 332, 339 (4th Cir. 2006) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (emphasis added).
Plaintiff’s Complaint fails to offer factual matter sufficient to
establish any race-based discrimination, but instead merely makes
conclusory assertions of the sort ruled inadequate in Iqbal.
In other words, simply invoking the terms “discrimination,”
“harassment,” and “hostile environment” does not suffice to state
a claim.

See, e.g., Iqbal, 556 U.S. at 678 (“[T]he tenet that a

court must accept as true all of the allegations contained in a
complaint

is

inapplicable

to

legal

conclusions.”).

Nor

do

allegations that a supervisor of one race criticized the job
performance of an employee of another race present a plausible
claim of discrimination.

See, e.g., Hawkins v. Pepsico, Inc., 203

5

F.3d 274, 282 (4th Cir. 2000) (declaring that the “[l]aw does not
blindly ascribe to race all personal conflicts between individuals
of different races.”).

Similarly, the Complaint’s allegations

about a supervior’s rudeness, lack of support, and unwillingness to
listen, even if accepted as true, would not establish a hostile
work environment claim, because the Fourth Circuit has ruled that
“rude treatment by [coworkers],” Baqir v. Principi, 434 F.3d 733,
747 (4th Cir. 2006), “callous behavior by [one’s] superiors,” Bass
v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003),
and “a routine difference of opinion and personality conflict with
[one’s] supervisor,” Hawkins, 203 F.3d 274, 276 (4th Cir. 2000), do
not meet the severity/pervasiveness standard applicable to such
claims.

Finally, the Complaint fails to set forth factual matter

sufficient to support a conclusion that Plaintiff’s firing or any
alleged abuse perceived by Plaintiff involved a racial component,
given that the only “racial remark” identified in the Complaint,
“Americanos,”

has

no

readily

discernible

racial

character

or

negative connotation. In sum, the Complaint fails to state a claim
for racial discrimination under Title VII.
Title VII also prohibits an employer from retaliating against
an employee because said employee “has opposed any practice made an
unlawful employment practice by [Title VII], or because [the
employee] has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under

6

[Title VII].”

42 U.S.C. § 2000e–3(a).

The Complaint alleges that

Plaintiff lost her job after she complained about “abuse” by a
supervisor, but (according to the Complaint) such abuse consisted
of “harass[ment] . . . about [her] job performance,” “rude and
unprofessional” comments, and use of the term “Americanos” (Docket
Entry 2 at 2), matters which Title VII has not made “unlawful
employment practice[s],” 42 U.S.C. § 2000e-3(a).
The Complaint thus fails to state a plausible claim for
retaliation under Title VII.

See, e.g., Sajadian v. American Red

Cross, No. 99–1263, 202 F.3d 260 (table), 1999 WL 1111455, at *1
(4th Cir. Dec. 7, 1999) (unpublished) (affirming summary judgment
for

employer

on

retaliation

claim

because,

“[a]lthough

[the

plaintiff] raised general concerns about her workload, hours, and
denial of leave, there is no evidence that either [her employer or
the person to whom she complained] was aware that her complaints
were based on an allegation of discrimination”); McNair v. Computer
Data Sys., Inc., No. 98–1110, 172 F.3d 863 (table), 1999 WL 30959,
at

*5

(4th

Cir.

Jan.

26,

1999)

(unpublished)

(“[A]

general

complaint of unfair treatment does not translate into a charge of
illegal discrimination.” (internal ellipses and quotation marks
omitted)); Brown v. Nguyen, Civ. Action No. 7:08–817–HFF–WMC, 2010
WL 836819, at *18 (D.S.C. Mar. 5, 2010) (unpublished) (adopting
recommendation that plaintiff’s complaint of “rude” conduct by
superior did not qualify as “protected activity”). The retaliation

7

claim also fails as a matter of law because it lacks any factual
matter that would permit an inference that the person responsible
for

terminating

Plaintiff’s

Plaintiff’s complaints.

employment

had

any

knowledge

of

See, e.g., Dowe v. Total Action Against

Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)
(holding that retaliation claim requires showing that “relevant
decisionmaker” knew of protected activity).3
CONCLUSION
Plaintiff’s Complaint fails to state a claim.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 24, 2013

3

As a final matter, Plaintiff cannot proceed against the
individual Defendants under Title VII.
See, e.g., Lissau v.
Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998).
Moreover, the Complaint lacks any allegations of any sort against
McCurdy. (See Docket Entry 2 at 2-3.)
8