FISHER v. THE WINSTON SALEM POLICE DEPT. et al
Filing
26
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 03/28/2014 as set out herein. RECOMMENDED that Plaintiff's Motion to Amend (Docket Entry 23 ) be DENIED and that Defendants' Motions to Dismiss (Docket Entries 8 and 14 ) be GRANTED.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ìøILLIAM RAY FISHER,
Plaintiff,
V.
THE WINSTON-SALEM POLICE
DEPT., etal.,
Defendants.
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)
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1,:1,2CY868
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is befote the Court on Defendants Winston-Salem Police Department
("WSPD"), Sgt. Tony Perkins, Police Chief Scott Cunningham, and Investigatot Cliff
Cranford's Motion to Dismiss. (Docket Entty 1,4.) Also befote the Court is a motion to
dismiss claims against Defendants Perkins, Cunningham, and Cranfotd
capacities
in their individual
pocket E.ttty 8) and Plaintiff William Ray Fisher's Motion to Amend
Complaint. (Docket Entty
the
23) All matters are dpe fot disposition. Fot the teasons that
follow, the Court recommends that Defendants' motions
to
dismiss be gtanted and
Plaintiffs motion to amend be denied.
I.
BACKGROUND
Ptaintifl a fifty-six year old man1, applied to be a police officet with the City of
Winston-Salem
in August 2009. (Compl. T III, Docket Entry 1.) Plaintiff
alleges that his
1 The EEOC Determination attached to the Complaint indicates that Plaintiff was 56 yeats old at
the time he applied for employment. (EEOC Detetmination at 7,8x.2, Docket Entry 1'-2.) The
application was "blocked" as a tesult
of
age
discriminatton. (Id.) Specifically, Plaintiff
alleges
that "younget and less qualified applicants" with "no police experience" were accepted,
while his "twenty plus years" of law enforcement experience were "belittled" by Defendant
Sgt.
Tony Perkins. (Id.) Consequently, Plaintiff was denied a spot in the WSPD Basic Law
Enfotcement Ttaining ("BLET") Rectuitment Class.
Charge
(Id
)
Plaintiff subsequently filed
a
of Discdmination undet the Age Discdmination in Employment Act ("A,DEA")
with the Equal Employment Oppottunity Commission, which issued a Detetmination on
Febtuary 9,20'1,2 a¡d a Notice of Suit Rights on May 21,,201,2. (EEOC Detetmination, Ex.
2, Docket Etttry 1.-2 and Notice of Suit Rights, Ex. 1, Docket Ent y 1-1.) Plainttff fied a pro
r¿
lawsuit on August 1.4, 2072, in which he named as Defendants the WSPD and, in their
individual capacities, Cunningham, Ctanford, and Perkins. (Compl. T
include the City
II.)
Plaintiff did not
of Winston-Salem as a defendant and now seeks to amend the otiginal
complaint to name the City of ìTinston-Salem as a defendant. (?1.'s Mot. to Am., Docket
Entry 23.)
Defendants fìled a motion to dismiss for failure to state a clum upon which telief
may be gtanted pursuant to Fedetal Rule of Civil Ptocedure 12þ)(6) on Octobet 5,
pocket Entry 14.) Defendants assert that "Plaintiff has not sufficiently
201,2.
alleged he was
qualified to participate as a Winston-Salem Police recruit" or that "he was denied entry into
recruit class due to his age." (Id. at
2)
a
Defendants also request this coutt dismiss the
Plaintiffs Complaint pursuant to Rules 12þ)Q), (4), and (5), as ìøSPD is not alegal entity ot
person over which this Court has jurisdiction ot that is capable of receiving a summons, and
Court notes, however, that Plaintiff indicates that he was actually 65 yeats old at the time he applied
fot employment with the police depattment. Gl." Resp. at 3, Docket Entry 19.)
2
Plaintiff failed to serve the City of Winston-Salem in accordance with Rule aO(2) of the
Federal Rules
of Civil
Ptocedure. (Id. at
Procedute and Rule 4(D(5)
of the North
Carolina Rules
of Civil
1,.)
Defendants Perkins, Cunningham and Cranfotd filed a motion
to dismiss in theit
individual capacities on September. 21,, 2072 pwsuant to Fedetal Rule of Civil Ptocedute
12þX1) and (6). pocket Entry 8.) These defendants argue that they should be dismissed
ftom this lawsuit because individual employees cannot be held liable under the ADEA and
because they were
3, Docket Entry
not listed
as tespondents
in the PlainufPs EEOC chatge. (Defs.'Bl at2-
9.) In his motion to amend, Plaintiff
seeks
to amend the original complaint
to name the City of l7inston-Salem as a defendant. (Pl.'s Mot. to Am., Docket Entty
23.)
Defendants oppose the amendment, assetting futility whete Plaintiffs amended complaint
restates the same facts alleged in the original Complaint and wrll not withstand a motion to
dismiss.
(Jee
Docket Entties 24 and25.)
II.
DISCUSSION
A.
Standard of Review
Rule 15(a) of the Federal Rules of Civil Ptocedute ptovides that"a p^rq may amend
its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ.
P. 15(a)Q). It funher
requires."
states that "[t]he court should fteely give leave when justice so
Id. Granttng a motion to amend a complaint is within
the discretion of the Coutt,
"but outright refusal to grant the leave without any justifting reason appeating for the denial
is not an exercise of disctetion." Foman u. Dauis,371 U.S. 178,
'1,82
(1'962). The Fouth
Circuit has stated that "faf district court may deny a motion to amend when the amendment
5
would be ptejudicial to the opposing patty, the movingperfiy has acted in bad faith, ot the
amendment would be
futile." Eqøal Nghts Ctr.
Cu. 201,0). An amended complaint is futile
u.
I\ile¡
Bolton Assocl, 602
if it cannot withstand
F.3d
a motion
597
,
603 (4th
to dismiss for
failure to state a clakn pursuant to Fedetal Rule of Civil Ptocedure 12þ)(6); thetefore, the
Court may deny the motion. Perkins u. United
(addition
of
States,
55 F.3d 91'0, 917 (4th Cir.
negligence claim futile because case would
if Plaintiffs
Thus, the Coutt will determine
not survive motion to
1995)
dismiss).
amended complaint, which solely adds anothet
named defendant, can withstand a motion to dismiss.
A motion to dismiss pursuant to Rule 12(bX6) tests the sufficiency of the complaint.
Edwards u. Ci4t of Goldsboro, 178
F.3d 231,,243 (4th Cir. 1,999). A complaint that does not
"contain sufficient factualmatter, accepted as true, to'state aclaim to relief thatis plausible
u.
Iqbal,556 U.S. 662, 678 (2009) (quoting Be// Atl.
Corp. u. Tworzbþ,550 U.S. 544,570 (2007)).
"A claim has facial plausibiJity when the plaintiff
on its face"' must be dismissed. Ashcroft
pleads factual content that allows the court
defendant is üable
fot the misconduct." Id.;
to dtaw the teasonable infetence that the
see also
Sìmrnon¡
dv
United Mortg. dz Laan Inu.,
LLC, 634 F.3d 754,768 (4th Clï. 2011) (internal quotation omitted) ("O. a Rule 12þ)(6)
motion, a complaint must be dismissed if it does not allege enough facts to state a claim to
relief that is plausible on
its face."). The test does not require the complaint to have
"'detailed factual allegations,' . . . Þut rathet] plead sufficient facts to allow a court, drawing
on 'judicial expetience and common sense,' to infer 'more than the mere possibility of
misconduct."' Nemet
Cheurolet,
2009) (quoting lqbal,556 U.S.
Ltd. u. Conwmerffiirs.clm, 1nc.,591 F.3d 250, 256 (4th Cir.
^t
678-79,) Pro :e complaints
4
ar.e
to be libetally consttued in
assessing suf{iciency undet the Federal Rules
of Civil Ptocedure. Erickson
u.
Pardus,551 U.S'
89,94 Q007). However, even under this liberal construction, "generosity is not a fantasy,"
fot him.
and the court is not expected to plead a plaintifÎs claim
Bender u. Sabarban Hotþ.,
lnc.,1.59 F'.3d 186, I92 (4th Cir. 1993). "Libetal construction is patticulady apptopriate when
a
pro
complaint raises civil rights issues." Moodl-Il/illiarns
se
680 (E.D.N.C.201,3) (emphasis in odginal);
see
aln Brown
u.
u.
UpoSdencq953 F. Supp. 2d 677,
N.C. Dept. of Corr., 61,2F.3d720,
722 (4th Cu.201,0).
A motion to dismiss pursuant to Rule 12þ)(6) must be read in conjunction with the
pleading requirements of the ADE,A.. The
hire or to discharge
respect
^ny
individuai
ot
ADEA fotbids an employer to "fail or tefuse to
otherwise discdminate against any individual with
to his compensation, terms, conditions, ot privileges of employment,
such individual's
age." 29 U.S.C. $ 623(a)(t). In
Court explained that where
a plunttff
because
of
Haq9n Paper Co. u, Bigins, the Supteme
claims age-telated "dispatate treatmenC'
(i.t.
intentional discdmination "because of a1e"), the plaintiff must ptove that age "actually
motivated the employet's decision." 507 U.S. 604, 610 (L993);
S1sîens u.
EEOC,554 U.S. 135,
1,41,
employer may have relied upon
treatment" because
see also Kentøck1 Retirement
(2008). The coutt in HaTgn Paþer also noted that "[t]he
a formal,
facially disctiminatory policy requiting advetse
of age, or "the employer may have been motivated by [age] on an ad
hoc, informal basis." Haryn Paþer,507 U.S.
^t
61,0. Nonetheless, a
plaintiff alleging disparate
treatment cannot succeed unless the employee's age "actaa/þ þla1ed a role in that
a deterruinatiue inflaence on the o/'/tclme."
Id.
(emphasis added).
5
þrocess and ltad
B.
,{.nalysis
Here, Plaintiff alleges that the discrimination against him was "delibetate and
intentional," as Defendant Perkins "blocked" his employment with the police depattment by
moving "younget and less qualified" applicants before
him.
(Compl.
1T
IIL)
Similady,
Plaintiff states that Defendant Cranfotd tated him "on a lower level" and judged him "less
qualified" than younget applicants who had no pol-ice ot college expenence. Id.
These stâtements however, amount to mere "legal conclusions" that fail to satisfy the
Tworzbþ-Iqbal sta¡dard
of federal pleading. Twornbþ, 550 U.S. at 555. Plaintiff proffets no
information in the Complaint as to how the WSPD makes its detetminations, rendering it
impossible for a coutt to determine whether or not he has alleged that he was qualified.
Indeed, Plaintiff only submitted the WSPD's rectuiting unit's scale tating system as an
attachment to his response to Defendants'motion to dismiss. (Pl.'s Resp. at1.2-1,3, Docket
Entry 17.)2 This document is outside the pleadings and is not approptiate fot consideration
on the pending Rule 12þ)(6) motion. Caringtoa u. UMG Renrdings, Inc., 1':1'0-CV-890, 2011
WL
3568278
at *3 (1\4.D.N.C. Aug. 1,2, 201,7) aild, 468 F. App'x 304 (4th Ck.
201'2)
(inappropriate for Court to consider documents attached to Plaintiffls response to a Rule
12(bX6) motion).
of
police
ftom a physician that Plaintiff is in
good
Moreover, apart from tepeatedly stating he had "twenty plus yeats"
experience and
afl
attached statement
cardiovascular health, the Complaint says
little about Plaintiffs qualifications. In
one
of the accepted applicants
had
instance, Plaintiff appears to be arguing that because many
2 Plan:iLff also has several other attached documents to his opposition bdef.
6
"bad driving records" aîd "some who had as many as 3 tafltc citations on their recotd"
(Compl. T
III), the court must
assume that Plaintiff, by conttast, has an excellent dtiving
recotd, which Ptaintiff mentions fot the
ftst time in his response to Defendants' motion to
dismiss. pl.s Resp. Brief at 5, Docket Entry 17; Pl.'s Resp. Bt. at 4, Docket E.ttty 19.) This
"unwarranted infetence" however, is insufficient under Twombþ-Iqbal and their ptogeny. E.
Shore
Markeîq Inc. u. I,D. Associate¡ Ltd. P'shþ, 213 F.3d 175, 180 (4th Cir. 2000). To construe
Fisher's complaint in this manner, even considering the libetality afforded to þr0 re litigants,
is to transform the court into an "advocate" for the plaintiff.
IY/eller u.
DE't
of Soc. Seras.
fzr
Ci4t of Baltimore, 901 F.2d 387 , 391, (4th Cir. 1990).
Even
if
the court were to consider the additional allegattons contained in Plaintiffs
responses to the Defendants' motions to dismiss, Plaintiff elucidates few additional facts that
constitute direct evidence that WSPD acted in a disctiminatory manner. Plaintiff descdbes
an isolated conversation with Defendant Ctanford
-
dudng which Mt. Ctanfotd exptessed
only "surprise" at Plaintiffs desire to be a police officet
-
and indicates plans to show
"twenty nine examples" to the Court of younget individuals with less expetience who wete
accepted
into the police academy. (Pl.'s Resp. Bl at 4, 6, Docket Entry 17.)
recitations cannot be said
to quali$r as direct evidence of disctimination, patticulatly in
consideration of the competitiveness of the rectuitment program
apply are hired for a class"
System, Id. at
These
-
^nd
-
"only
2-3o/o
of those that
Plaintiffs admitted educational deficits. (Scale Rating
"12.)
In the absence of direct evidence of intentional discrimination, Plaintiff may present a
prima facie case for discrimination pursuant to the McDonnell-Doøglm paradigm. Once the
7
burden is met, "the employer is entitled to tebut the employee's ptesentation by offedng
evidence that legitimate, non-discriminatory feasons existed
fot the employment decision,"
aftet which the employee may demonstrate the legitimate reasons were pretexts for
age
discdmination. Bold u. Citl of ll/ilnington, N.C.,943 F. S.rpp. 585, 588 (E.D.N.C. 1'996) (citing
McDonnellDouglas Corp. u. Green,4l1 U.S. 792,802-3 (1973)). To establish a pdma facie case,
Plaintiff must show that:
1) he is a membet
of a gtoup protected undet the ADEA;
2) he was qualified fot the position fot which he applied;
3) he was not hired fot the position; and
4) the employer continued to seek applications from applicants outside the ptotected
class.
Henso n u.
Uge tî
Gro aþ,
Inc.,
61. F
.3d 27 0, 27 4 (4th Cir. 1 995).
Here, Plaintiff has effectively pled the
between
foty
frst, third, and foutth
elements
-
he
is
and seventy years old, 29 U.S.C. $ 623(a)(t), he was not recruited fot the
police academy, and the WSPD did continue to hire rectuits undet 40 (though 2 two tectuits
over forty were hired). Howevet, Defendants are coffect in assettingthat Plaintiff has failed
to satis$r the second element. Plaintiff has not alleged the minimum job qualifìcations fot
the position, nor has he alleged that he met such qualifications. The Court cannot simply
infer, based upon the allegations in the Complaint, that the minimum qualifications weÍe met
based upon PlaintifPs "20 plus years as a police
officer." In an attached exhibit to the
Complaint Plaintiff provides the age, education and expetience of several individuals selected
for the position. (E,*. 5, Docket Entry 1-5.) However, this information fails to ptovide the
8
Court with job qualifications apparently met by such individuals. Even with the most libetal
constuction, Plaintiffs claim fot
age
discdmination fails.3
C. Retaliation Claim
To the extent PlaintifPs Complaint
retaliation provisions
asserts retaliation, such claim also
of the ADEA forbid "discdminat[ion]
applicant who has "made
fails. The anti-
agaínst" an employer
ot job
a charge, testified, ot patticipated in" a Title VII ptoceeding ot
investigation. 42 U.S.C. $ 2000e-3(a); Barlington I'J. dy Santø Ft
þ.
Co. u.
ll/hin,548 U.S.
53,
53 Q006). "A plaintiff lacking direct evidence of tetaliatiorr m^y utilize the McDonnell Doaglas
. . . framework to ptove a claim of tetaliatio
n."
Price u. Thonpson, 380
F.3d 209, 21,2 (4th Cir.
2004). To estabüsh a pdma facie case of retaliation, a plaintiff must show "(1) that
engaged
he
in a protected activityt Q) that his employer took an advetse employment action
against him; and (3) that a causal connection existed between the ptotected activity and the
assetted advetse
action." King u. Rønsfeld,328 F3d
1,45, 1,50-51 (4th, Ctt.2003); see also
William¡ u. Cerberonics, 1nc.,871. F.2d 452,457 (4th Cir. 1989). The statute does not confine
the actions and harms
it
forbids to those "affecttng employment terms ot provisions;"
3
Again, even if the Coutt were to find Plaintiffs attachments to his tesponse brief to be an
"integral" paft of his Complaint, Plaintiffls claim still fails. Should the Scale Rating System be some
fotm of a "job qualification" guide, Plaintiffs allegations do not suggest that he should have a scale
rating of "3". (Jea Scale Rating System, Pl.'s Resp. Bl at 12, Docket Entry 17.) Plaintiff does not
possess a degree related to the cdminal justice field or indeed, any degree at all. While serving in the
navy (experience that not alleged in the Complaint), he was subject to a "captain's masC' disciplinary
procedure. (Id. at 14.) Plaintiff notes that he has been involved in law enforcement roles in vadous
capacities for twenty yeats (despite curently wotking in maintenance), but there is no indication his
seruice records reflect "positive service." (Id. at 12). Moreover, Defendant Ctanford's teview
indicates that there were "some areas of concern" with Plaintiff, (Id. at 14.) \)Øhjle it is
acknowledged that the burden upon the Ptaintiff is "not a, heavy one" and that the factors recited
above v/ere not intended to be rigidly applied, Young u. I-tltman,748 F.2d 1.94,1.97 (4th Cir. 7984),
cert. denied,471 U.S. 1061 (1985), Plaintiff fails to allege that he was qualified to be a police tectuit.
9
ratheï.,
it
covers "employer actions that would have been matetially adverse to a teasonable
employee
or applicant," such that a plaintiff must show "that the challenged action 'well
might have dissuaded
a
teasoflable wotket
discdmination."' Børlington,548 U.S. at 54
from making ot suppotting a charge of
(quolJLng Rochon u. Gonqales, 438
F.3d 1'21'7,
1'21'9
p.C. Cir.2006).
The Fourth Circuit has assumed that "in the failure-to-hire context, the employet's
knowledge coupled with an advetse action taken at the fffst oppottunity satisfies the causal
connection element
of the ptima
Forward, Hamilton dz
5ripps,345F.3d742,754 (9th Cir. 2003);Il/illian¡
1,32
F.3d
1,1,23, 1,732
CX/.D. Ya. 2007).
facie case." Price, 380 at 21.3; see also E.E.O.C. u. Lace,
(6th Cu. 1,997);
Tharston u. Arn. Press,
LLC,
497 F. Srrpp. 2d 718,783
Additionally, courts are mindful of the fact that the passage of tjme "tends
to negate the inference of discdmination." Price,380 F.3d at 273; Dowe
Pouerfl in Roanol
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