FISHER v. THE WINSTON SALEM POLICE DEPT. et al
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE JAMES A. BEATY, JR on 06/27/2014, as set out herein. ORDERED that Individual Defendants' Motion to Dismiss [Doc. # 8 is GRANTED, pursuant to Federal Rule of Civil Procedure 12 (b)(1) and 12(b)(6). As such, Plaintiff's lawsuit against Sergeant Tony Perkins, Scott Cunningham, and Cliff Cranford, is hereby DISMISSED WITH PREJUDICE. FURTHER that Official Defendants' Motion to Dismiss [Doc. # 14 i s GRANTED IN PART, and that Plaintiff's action against the Winston- Salem Police Department is hereby DISMISSED WITH PREJUDICE. IT IS FINALLY ORDERED that Plaintiff is granted leave to amend his Complaint to cure the deficiencies discussed herein. If Plaintiff chooses to amend his Complaint, he must do so, consistent with the ruling of this Court, within 14 days of entry of this Order, or this action will be dismissed with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIAM RAY FISHER,
Plaintiff,
v.
WINSTON-SALEM POLICE
DEPARTMENT, SERGEANT TONY
PERKINS, SCOTT CUNNINGHAM,
Chief of Police for the Winston-Salem
Police Department, and CLIFF
CRANFORD, Investigator for the
Winston-Salem Police Department,
Defendants.
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1:12CV868
MEMORANDUM OPINION AND ORDER
BEATY, District Judge.
This matter is before the Court on a Recommendation of the United States Magistrate
Judge that this action filed by Plaintiff William Ray Fisher (“Plaintiff”) be dismissed, pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Specifically, the Magistrate
Judge recommends that this Court deny Plaintiff’s Motion to Amend [Doc. #23], grant the
Motion to Dismiss [Doc. #8] filed by Defendants Cliff Cranford, Scott Cunningham, and Tony
Perkins in their individual capacities (“Individual Defendants”), and grant the Motion to Dismiss
[Doc. #14] filed by the Winston-Salem Police Department and the Individual Defendants in their
official capacities (“Official Defendants”). The Magistrate Judge’s Memorandum Opinion and
Recommendation [Doc. #26] was filed on March 28, 2014, and notice was served on the parties
pursuant to 28 U.S.C. § 636(b).
On April 7, 2014, Plaintiff filed timely Objections [Doc. #28] to the Magistrate Judge’s
Recommendation, to which Individual Defendants filed a Response [Doc. #29] and Official
Defendants filed a Response [Doc. #30]. The Court has now reviewed de novo the Objections
and the portions of the Recommendation to which Objections were made. For the reasons
explained herein, this Court adopts in part, and modifies in part, the Magistrate Judge’s
Recommendation.
I.
FACTUAL BACKGROUND
Plaintiff brings claims of age discrimination and retaliation in violation of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (“ADEA”).
Specifically, Plaintiff claims that Defendants hired younger and less qualified applicants instead
of Plaintiff, due to his age. Individual Defendants filed a Motion to Dismiss [Doc. #8], seeking
dismissal based on a lack of subject-matter jurisdiction and failure to exhaust administrative
remedies against them. Official Defendants also filed a Motion to Dismiss [Doc. #14], seeking
dismissal pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6).
The Magistrate Judge recommends granting both Motions to Dismiss. (Mem. Op. &
Order [Doc. #26].) Specifically, he recommends granting Individual Defendants’ Motion
[Doc. #8], because Plaintiff does not dispute that Individual Defendants were not named in his
EEOC charge, and therefore, this Court lacks subject-matter jurisdiction over them. (Id. at 11.)
The Magistrate Judge also recommends granting Individual Defendants’ Motion [Doc. #8],
because these individuals do not qualify as “employers,” as required to be liable under the ADEA.
(Id. at 11-12.) Finally, the Magistrate Judge recommends granting Official Defendants’ Motion
[Doc. #14], because Plaintiff fails to state a claim upon which relief may be granted. (Id. at 4-11.)
Because the Magistrate Judge recommended dismissal on 12(b)(6) grounds, he did not address
Official Defendants’ other alleged bases for dismissal. This Court will first consider the
2
Magistrate Judge’s Recommendation as to Official Defendants’ Motion to Dismiss, followed by
Plaintiff’s Motion to Amend and Individual Defendants’ Motion to Dismiss.
II.
STANDARD OF REVIEW
In reviewing a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the
Fourth Circuit has directed that courts “‘take the facts in the light most favorable to the plaintiff,’
but ‘[they] need not accept the legal conclusions drawn from the facts,’ and ‘[they] need not
accept as true unwarranted inferences, unreasonable conclusions, or arguments.’” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P’ship, 213 F.3d 175, 180 (4th Cir. 2000)). “To survive a motion to dismiss, a complaint must
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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement
to relief.”’” Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955) (citations omitted). Thus,
dismissal of a complaint is proper where a plaintiff’s factual allegations fail to “produce an
inference of liability strong enough to nudge the plaintiff’s claims ‘across the line from
3
conceivable to plausible.’” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
256 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 683, 129 S. Ct. 1937).
Furthermore, “[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, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)
(internal quotations and citations omitted)). However, the Court “may not be an advocate for
a pro se plaintiff and must hold the complaint to certain minimal pleading standards.” Hongan Lai
v. Dep’t of Justice, No. 5:13cv00033, 2013 WL 3923506, at *3 (W.D. Va. July 29, 2013) (citing
Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985); Switzer v. Town of Stanley,
No. 5:10cv00128, 2010 WL 4961912, at *2-3 (W.D. Va. December 1, 2010); Holsey v. Collins,
90 F.R.D. 122, 128 (D. Md. 1981)).
Additionally, in reviewing a motion to dismiss, the Court may consider documents
attached to the Complaint, as long as those documents are integral to the Complaint and
authentic. Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); Bala v. Va. Dept.
of Conservation and Recreation, 532 F. App’x 332, 334 (4th Cir. 2013) (“In reviewing the
dismissal of a complaint under Rule 12(b)(6), [the Court] ‘may consider documents attached to
the complaint[,] so long as they are integral to the complaint and authentic.” (quoting Sec’y of
State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). However, the
Court may not consider Plaintiff’s new allegations raised in his Response, or the attachments to
his Response, without converting the proceeding to one for summary judgment. Bailey v. Va.
High School League, Inc., 488 F. App’x 714, 715-16 (4th Cir. 2012) (“In deciding whether a
complaint will survive a motion to dismiss, a court evaluates the complaint and any documents
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attached or incorporated by reference[; h]owever, the district cannot go beyond these documents
on a Rule 12(b)(6) motion without converting the motion into one for summary judgment.”
(citations omitted)); see Bala, 532 F. App’x at 334 (“The district court may go beyond the
complaint and attached documents, which constitute ‘the pleadings,’ in a Rule 12(b)(6) proceeding
if the court converts the proceeding to one for summary judgment.” (citing Fed. R. Civ. P.
12(d))). The Court will therefore consider the documents attached to Plaintiff’s Complaint in
evaluating the Motions to Dismiss, but not the attachments to Plaintiff’s Response or the more
detailed allegations raised in Plaintiff’s Response.
III.
OFFICIAL DEFENDANTS’ MOTION TO DISMISS
a.
Failure to State a Claim Under Rule 12(b)(6)
i.
Age Discrimination Claim
The ADEA makes it unlawful for an employer to refuse to hire any individual because of
the individual’s age. 29 U.S.C. § 623(a)(1) (2012). “Age must be the ‘but-for’ cause of the
employer’s action for the action to violate the ADEA.” Buchhagen v. ICF Intern., Inc., 545 F.
App’x 217, 220 (4th Cir. 2013) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129
S. Ct. 2343, 174 L. Ed. 2d 119 (2009)). A plaintiff can prove an ADEA discrimination claim in
either of two ways: (1) through presentation of direct evidence of intentional discrimination; or
(2) through the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Hill v. Lockheed Martin Logistics Mgmt.,
354 F.3d 277, 285 (4th Cir. 2004) (en banc); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238
(4th Cir. 1982) (adopting the McDonnell Douglas framework for use in ADEA cases). In order
to prove a prima facie claim of age discrimination in a refusal-to-hire context, Plaintiff must show:
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(1) that he is at least 40 years old; (2) that he was qualified for a job for which the employer was
seeking applicants; (3) that he was rejected despite his qualifications; and (4) that the position
remained open and the employer continued to seek or accept applications from persons with his
qualifications outside the protected class. Henson v. Liggett Grp., Inc., 61 F.3d 270, 274 (4th Cir.
1995) (citations omitted); Cepada v. Bd. of Educ. of Balt. Cnty., 814 F. Supp. 2d 500, 512 (D. Md.
2011) (citing Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006)); see Jordan v. Shaw Indus., Inc.,
131 F.3d 134 (4th Cir. 1997) (applying the same prima facie elements to both Title VII and
ADEA discrimination claims).
However, the prima facie case operates as a “flexible evidentiary standard that should not
be transposed into a rigid pleading standard for discrimination cases.” Swierkiewicz v. Sorema,
N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (emphasis added). Specifically,
the Supreme Court in Swierkiewicz held that a complaint in an employment discrimination
lawsuit need not contain specific facts establishing a prima facie case of discrimination under the
framework set forth in McDonnell Douglas. Id. at 508; see Twombly, 550 U.S. at 569-70, 127
S. Ct. 1955 (distinguishing and reaffirming the portion of Swierkiewicz’s holding rejecting a prima
facie case pleading requirement for employment discrimination cases under McDonnell Douglas);
Craddock v. Lincoln Nat. Life Ins. Co., 533 F. App’x 333, 336, n.3 (4th Cir. 2013) (“[ ] Twombly
did not alter the Swierkiewicz rule that a plaintiff need not set out the elements of a prima facie
case for an indirect method of proof in order to survive a motion to dismiss.”). While the Fourth
Circuit has recognized that Swierkiewicz “left untouched the burden of a plaintiff to allege facts
sufficient to state all the elements of her claim,” (Jordan v. Alternative Res. Corp., 458 F.3d 332,
346 (4th Cir. 2006) (internal quotation marks and citations omitted)), that is a different
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requirement from stating those elements necessary to prove a prima facie case of discrimination
under McDonnell Douglas. See Craddock, 533 F. App’x at 335-36 (reversing the district court’s
dismissal of an ADEA claim because the district court required the plaintiff to allege a prima facie
case at the motion to dismiss stage). “This is at least in part 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,’ which is an indirect method of proof.” Id. (quoting Swierkiewicz, 534 U.S. at
511, 122 S. Ct. 992).
In determining what level of factual detail is sufficient to state a claim of employment
discrimination under the ADEA, the Court notes that the district court in Craddock dismissed
an ADEA discriminatory termination claim, because the plaintiff’s allegations failed to show an
element of a prima facia discriminatory termination case—namely, that the plaintiff was meeting
her employer’s legitimate expectations when she was terminated. Craddock, 533 F. App’x at 33536. The Fourth Circuit reversed, concluding that the Craddock plaintiff did state a claim for relief
under the ADEA, based on the following two allegations: (1) that the defendant “trained all [the]
younger employees in [the plaintiff’s] department to use a scanner, but despite her requests did
not train her;” and (2) that the defendant refused to consider rehiring her. Id. at 336. Although
these two allegations in Craddock, if true, may have been based on one or more permissible
reasons, the inference that the defendant took these actions because of the plaintiff’s age may also
be reasonably drawn from the facts alleged. Id. Similarly, the Fourth Circuit held that a plaintiff
sufficiently alleged a claim that the defendant’s failure to interview him for a position was
discriminatory under Title VII when his complaint set forth his qualifications for the position,
alleged that less qualified applicants were selected for the interview, and alleged that the screening
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panel for the position consisted of only one Caucasian male. See Bala, 532 F. App’x at 335-36;
see also Dolgaleva v. Va. Beach City Pub. Sch., 364 F. App’x 820, 827 (4th Cir. 2010) (reversing
the district court’s dismissal of a Title VII national-origin discrimination claim where the pro se
plaintiff alleged that she was the most qualified applicant for the position she applied for, that
defendant deviated from its usual hiring procedures in hiring another candidate before the
plaintiff’s scheduled interview, and that the plaintiff’s Russian ancestry had been held against her
in the hiring decision, which she knew due to an employee of the defendant’s telling her that she
was not considered for the position because “her Russian credentials were worthless”).
Whether Plaintiff has sufficiently alleged an ADEA discrimination claim is a marginal call,
but ultimately this Court agrees with the Magistrate Judge that he has not. Plaintiff’s Complaint
and its attachments fail to state a claim to relief under the ADEA that is plausible on its face. He
does not make allegations indicating he could have direct evidence of discrimination, nor does
he describe what the qualifications were for the job he sought, either by alleging the rating system
used to evaluate candidates, or by alleging any criteria listed in the job posting or provided to
applicants inquiring about the qualifications. Nowhere in Plaintiff’s Complaint or any of the
attachments does Plaintiff even summarily state or imply that he was qualified for the position.
Although Plaintiff alleges that he was rated as less qualified than younger applicants without
police experience or college education (Compl. [Doc. #1] ¶¶ III.1, III.2), the conclusion does not
necessarily follow that Plaintiff’s “20 plus years” as a police officer renders him automatically
qualified for the position. While the EEOC determination1 states that Defendant Winston-Salem
1
On multiple occasions, Plaintiff’s Objections criticize the Magistrate Judge’s opinion
for not giving weight to the EEOC determination (Ex. 2 - Compl. [Doc. #1-2]), which Plaintiff
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Police Department “advanced 34 applicants to the [Basic Law Enforcement Training (“BLET”)]
police academy in which [Plaintiff] would have been eligible had he been advanced through all
the previous steps” (Ex. 2 - Compl. [Doc. #1-2], at 2), there is no indication that Plaintiff had
the requisite qualifications to be advanced through all the previous steps.
If it were proper for the Court to consider the more specific allegations raised by Plaintiff
in his Response—in particular, those allegations regarding the application steps2 and ratings
system used by the Winston-Salem Police Department, and Plaintiff’s alleged conversation with
Defendant Cliff Cranford3—combined with the facts alleged in his Complaint and its
attached to his Complaint. (See, e.g., Pl.’s Obj. [Doc. #28], at 2 (“Now it seems that that [sic]
the [M]agistrate [J]udge has also refused to consider the findings of the EEOC in reaching his
opinion and forming his recommendation.”), 8 (“Even though the EEOC investigated this case
and said that there was indeed evidence of age discrimination it has carried no weight in the
forming of this opinion. It has been dismissed as though it never happened and is not anything
to be considered.”).) However, the EEOC’s determination is one of “reasonable cause”—that
is, the EEOC investigator determined there was reason to believe that Defendants violated the
ADEA. As such, this determination is not in any way final, nor does it carry any special weight
in this Court. See Circuit City Stores, Inc. v. EEOC, 75 F. Supp. 2d 491, 509 (E.D. Va. 1999)
(“[A] determination of reasonable cause issued by the EEOC[,] ‘[s]tanding alone, [ ] is lifeless,
and can fix no obligation nor impose any liability on the plaintiff. It is merely preparatory to
further proceedings. If and when the EEOC . . . files suit in district court, the issue of
discrimination will come to life, and the [employer] will have the opportunity to refute the
charges.’” (emphasis removed, as in original) (quoting Georator Corp. v. EEOC, 592 F.2d 765,
768 (4th Cir. 1979))).
2
Attached to Plaintiff’s Objections to the Magistrate Judge’s Recommendation. (Ex. 2 Obj. [Doc. #28-2].)
3
Plaintiff’s Response included a document he terms his “original letter of complaint to
the EEOC,” in which he alleges that he called and spoke with recruiter Cliff Cranford in order
to inquire about his pending application, and that he was initially told that he was “on the list
to be tested and that usually about 100 applicants are tested to fill the thirty or so positions for
the next academy.” (Ex. A - Resp. to Mot. to Dismiss [Doc. #17], at 9.) Plaintiff also alleges
that eventually that conversation turned to the topic of Plaintiff’s age, to which Mr. Cranford
indicated surprise and told Plaintiff that when the Department had previously accepted someone
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attachments, Plaintiff likely would have satisfied the minimal requirements to state a claim of
discrimination under the ADEA. But as previously explained, this Court cannot consider new
allegations in the Response or its attachments without converting this proceeding to a summary
judgment proceeding. Bailey, 488 F. App’x at 715-16. Therefore, Plaintiff’s allegations within
his Complaint and its attachments fail to state a claim of discrimination under the ADEA.
ii.
Retaliation Claim
The Magistrate Judge also recommends that the Court grant Official Defendants’ Motion
to Dismiss Plaintiff’s retaliation claim for failure to state a claim upon which relief may be
granted. The ADEA’s anti-retaliation provision prohibits employers from retaliating against
employees for exercising their right to raise a discrimination claim. 29 U.S.C. § 623(d) (2012). To
demonstrate retaliation, Plaintiff must show: (1) engagement in a protected activity; (2) a
materially adverse action; and (3) a causal link between the protected activity and the employment
action. Coleman, 626 F.3d 187, 190 (4th Cir. 2010) (citing Mackey v. Shalala, 360 F.3d 463, 469
(4th Cir. 2004)); see Lovelace, 681 F.2d at 238 (adopting the McDonnell-Douglas framework for
use in ADEA cases). An activity is protected when the plaintiff has “an objectively reasonable
belief that she was complaining about” discriminatory conduct. Reed v. Airtran Airways, 531 F.
Supp. 2d 660, 671 (D. Md. 2008) (citations omitted). Plaintiff must show that the action taken
against him is one that a reasonable employee would have found to be materially adverse, as in,
“it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination” against his employer. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
Plaintiff’s age, that hire was unable to perform his job duties once he was on the job. (Id.)
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67-68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). Material adversity depends on the particular
circumstances. See id. at 69 (noting, for example, that while simply excluding an employee from
a social gathering at lunch is not retaliation, “excluding an employee from a weekly training lunch
that contributes significantly to the employee’s professional advancement might well deter a
reasonable employee from complaining about discrimination,” and is therefore retaliation).
The Magistrate Judge recommends that this Court grant Official Defendants’ Motion to
Dismiss Plaintiff’s retaliation claim, on the basis that Plaintiff has not alleged that an adverse
action was taken against him. This conclusion was based on the email attached to Plaintiff’s
Complaint from Defendant Scott Cunningham stating that Plaintiff remained active in the hiring
process, despite lodging an internal complaint with the Winston-Salem Police Department and
threatening to sue. However, in an attachment to Plaintiff’s Response, Plaintiff contends that
when he called to check on his application, he was told that he was not chosen for the police
academy class starting that spring, and that this class for which he was not chosen would be the
last class of recruits to be hired for several years. (Ex. A - Pl.’s Resp. to Mot. to Dismiss
[Doc. #17], at 9.) The failure to hire Plaintiff for the last police academy class to be hired for
several years is likely sufficiently material to constitute an adverse employment action in an
ADEA retaliation claim, despite the fact that Plaintiff’s application technically remained active.
However, again, Plaintiff did not raise this allegation until his Response, which would be
improper for this Court to consider without converting this motion to dismiss to a summary
judgment proceeding.
Therefore, without any reference in Plaintiff’s Complaint or the
documents attached to the Complaint to any indication that an adverse employment action had
been taken, Plaintiff’s retaliation claim should fail, pursuant to Rule 12(b)(6).
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In the alternative to dismissing his case, Plaintiff has requested leave to amend his
Complaint. (Pl.’s Resp. to Mot. to Dismiss [Doc. #17], at 2.) Where the Court dismisses a
complaint for failure to state a claim, the Court should consider granting the plaintiff, and in
particular, a pro se plaintiff, leave to amend his complaint. Ostrzenski v. Seigel, 177 F.3d 245,
252-53 (4th Cir. 1999). Indeed, unless it is certain that a plaintiff cannot state a claim upon
amendment, then “the better practice is to allow at least one amendment.” Id. at 253 (quoting
5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 360-67 (2d
ed. 1990)). Therefore, as the deficiencies in Plaintiff’s Complaint addressed thus far appear to be
curable,4 the Court will grant Plaintiff’s request for leave to amend his Complaint, unless any of
Official Defendants’ alternative bases for dismissal apply and do not appear to be curable by
Plaintiff.
b.
Official Defendants’ Alternative Bases for Dismissal
Official Defendants also seek to dismiss Plaintiff’s claim pursuant to Rule 12(b)(2) for lack
of personal jurisdiction, Rule 12(b)(4) for insufficient form of the summons, and Rule 12(b)(5)
for insufficient service of process. The Magistrate Judge did not address these alternative bases
for dismissal, relying instead on his conclusion that this action should be dismissed for failure to
state a claim and that Plaintiff should not be allowed to amend his Complaint. However, because
this Court has concluded that it should allow Plaintiff leave to amend his Complaint in order to
4
That is, by adding the new allegations made in, and attached to, Plaintiff’s Response
regarding the application steps and ratings system used by the Winston-Salem Police
Department, Plaintiff’s qualifications, his alleged conversation with Defendant Cliff Cranford,
and the allegation that he was not selected for the last police academy class to be hired for several
years.
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cure the factual deficiencies, the Court will now consider whether Plaintiff’s Complaint should
be dismissed under any of these alternative bases.
Official Defendants’ first alternative basis for dismissal is that the Winston-Salem Police
Department should be dismissed pursuant to Rule 12(b)(2) for lack of personal jurisdiction,
because it is not a legal entity capable of being sued. Pursuant to Federal Rule of Civil Procedure
17(b)(3), the capacity of a governmental body to be sued in federal court is governed by the law
of the state in which the federal court is located. Fed. R. Civ. P. 17(b)(3); Avery v. Burke Cnty.,
660 F.2d 111, 113-14 (4th Cir. 1981) (“The capacity of a governmental body to be sued in the
federal courts is governed by the law of the state in which the district court is held.” (citing Fed.
R. Civ. P. 17(b))). Under North Carolina law, unless a statute provides to the contrary, only
persons in being may be sued. McPherson v. First & Citizens Nat. Bank of Elizabeth City, 240
N.C. 1, 18, 81 S.E.2d 386, 397 (1954).
Although Official Defendants contend that this Court lacks personal jurisdiction over the
Winston-Salem Police Department because North Carolina does not have a statute providing that
municipal law enforcement agencies may be sued, Official Defendants do not explain why the
ADEA, the operative statute at issue in Plaintiff’s lawsuit, does not authorize suit against
municipal police departments. The ADEA authorizes lawsuits against employers, as defined
under 29 U.S.C. § 630(b). 29 U.S.C. § 623(a) (2012). Therefore, Plaintiff may bring his ADEA
claims against the entity that would have been his employer, but for the alleged discriminatory
refusal to hire, as long as that entity is an employer under the ADEA. As such, in order to
analyze Official Defendants’ jurisdictional contention that the City of Winston-Salem is not a legal
entity to be sued, this Court must consider whether the City of Winston-Salem is an employer
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that can be sued under the ADEA.
North Carolina law implies that a city is the employer of a police officer working for the
city’s police department. See N.C. Gen. Stat. § 160A-281 (2013) (“A city is authorized to appoint
a chief of police and to employ other police officers who may reside outside the corporate limits of the
city unless the council provides otherwise.” (emphasis added)); Green v. Kitchin, 229 N.C. 450,
445, 50 S.E.2d 545, 548 (1948) (noting that the power “to appoint and employ police for
preserving law and order withing its limits” is expressly conferred upon the North Carolina city).
Plaintiff does not offer any argument as to why the Winston-Salem Police Department should
be considered an employer under the ADEA, rather than the City of Winston-Salem. Indeed,
Plaintiff seeks to amend his Complaint, in order to add the City of Winston-Salem as a defendant.
Therefore, the Court concludes that the ADEA authorizes suit against the City of Winston-Salem,
but not the Winston-Salem Police Department.5
As such, this Court will dismiss Plaintiff’s action against the Winston-Salem Police
Department with prejudice, because the Winston-Salem Police Department is not an employer
under the ADEA. Thus, Official Defendants’ alternative motions for dismissal under Rule
12(b)(4) and 12(b)(5) are denied as moot. However, the Court will now consider whether to allow
Plaintiff leave to amend his Complaint in order to add the City of Winston-Salem.
IV.
PLAINTIFF’S MOTION TO AMEND
Plaintiff’s Motion to Amend seeks to amend his Complaint in order to add the City of
Winston-Salem as a defendant in this case. (Mot. to Amend [Doc. #23].) Defendants oppose
5
The Court notes that North Carolina law expressly provides that a city is a legal entity
which may sue and be sued. N.C. Gen. Stat § 160A-11 (2013).
14
Plaintiff’s Motion on the basis that amendment would be futile, as Plaintiff’s proposed
amendment does not cure his failure to state a claim upon which relief may be granted. (Official
Defs.’ Resp. to Mot. to Amend [Doc. #24]; Individual Defs.’ Resp. to Mot. to Amend
[Doc. #25].) The Magistrate Judge recommended that Plaintiff’s Motion be denied, concluding
that this particular amendment would indeed be futile. (Mem. Op. and Order [Doc. #26], at 3-5,
13.)
At this point in the litigation, Plaintiff may only amend his Complaint with opposing
parties’ written consent or with the court’s leave. Fed. R. Civ. P. 15(a)(2). In evaluating a party’s
request to amend its pleading, the Court “should freely give leave when justice so requires.” Id.
Plaintiff’s Motion only seeks leave to amend the Complaint in order to add the City of WinstonSalem, and therefore, by itself, would be futile, as Plaintiff fails to state a claim upon which relief
may be granted against any defendant. However, in addition to this Motion to Amend, Plaintiff
requested leave to amend his Complaint to cure any deficiencies the Court may find in evaluating
Defendants’ Motions to Dismiss. (Pl.’s Resp. to Mot. to Dismiss [Doc. #17], at 2.) Therefore,
in this Court’s discretion, the Court will grant Plaintiff, pro se, leave to amend his Complaint to
cure all the deficiencies discussed in this Memorandum Opinion and Order.6
6
If Plaintiff chooses to amend his Complaint, and in doing so, adds the City of WinstonSalem as a defendant, the Court notes that Plaintiff will need to issue a new summons and
properly serve the City in accordance with Federal Rule of Civil Procedure 4. Fed. R. Civ. P.
4(j)(2) (requiring that a plaintiff serve a local governmental entity by either “(A) delivering a copy
of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each
in the manner prescribed by that state’s law for serving a summons or like process on such a
defendant”); N.C. R. of Civ. P. 4(j)(5)(a) (requiring that a plaintiff serve a city by delivering or
mailing the complaint and summons, in the manner specified by this rule, to the city’s mayor,
city manager, or clerk).
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V.
INDIVIDUAL DEFENDANTS’ MOTION TO DISMISS
The Magistrate Judge recommends granting Individual Defendants’ Motion to Dismiss
[Doc. #8] for lack of subject-matter jurisdiction, because Plaintiff does not dispute that Individual
Defendants were not named in his EEOC charge. (Mem. Op. & Order [Doc. #26], at 11.)
Furthermore, the Magistrate Judge also recommends granting Individual Defendants’ Motion,
because these individuals do not qualify as “employers,” as required for liability under the ADEA.
(Id. at 11-12.) This Court agrees with the Magistrate Judge’s Recommendation as to this Motion,
for the reasons stated therein, and will adopt the Magistrate Judge’s Recommendation with regard
to the Individual Defendants’ Motion to Dismiss [Doc. #8]. Because it does not appear that
Plaintiff can cure these deficiencies through amending his Complaint, the Court will dismiss
Plaintiff’s lawsuit with prejudice against Defendants Tony Perkins, Scott Cunningham, and Cliff
Cranford, in their individual capacities.
VI.
CONCLUSION
In sum, this Court will adopt the Magistrate Judge’s Recommendation [Doc. #26] in part,
pursuant to 28 U.S.C. § 636(b)(1). The Court adopts the Magistrate Judge’s Recommendation
in full as to the Individual Defendants’ Motion to Dismiss [Doc. #8], for the reasons explained
therein. As such, the Court will grant Individual Defendants’ Motion to Dismiss and dismiss
Plaintiff’s action against those Defendants in their individual capacity with prejudice.
However, pursuant to 28 U.S.C. § 636(b)(1), the Court hereby modifies the Magistrate
Judge’s Recommendation with regard to Official Defendants’ Motion to Dismiss [Doc. #14], for
the reasons explained in this Memorandum Opinion and Order. Specifically, the Court adopts
the Magistrate Judge’s conclusion that Plaintiff’s Complaint fails to state a claim, for the reasons
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stated in the Recommendation and the reasons explained in this Memorandum Opinion and
Order. Furthermore, the Court also considered the alternative bases for dismissal raised in
Official Defendants’ Motion to Dismiss, and concludes that the Winston-Salem Police
Department is an improper entity for Plaintiff to sue. Therefore, the Court will dismiss Plaintiff’s
action against the Winston-Salem Police Department with prejudice.
Finally, the Court modifies the Magistrate Judge’s Recommendation with regard to
Plaintiff’s Motion to Amend the Complaint [Doc. #23], for the reasons stated above. Because
Plaintiff has requested leave to amend his Complaint to cure the all deficiencies noted by the
Court, and not just to add a new defendant, the Court will allow Plaintiff to amend his Complaint.
Specifically, Plaintiff will need to cure the deficiencies with regard to his factual allegations as
explained above, as well as by adding the City of Winston-Salem as a defendant, and then
properly serving the City in accordance with Federal Rule of Civil Procedure 4. Thus, the Court
will allow Plaintiff leave to amend his Complaint.
If Plaintiff chooses to amend his Complaint, he must file an appropriate motion, attaching
any proposed amended Complaint, within 14 days of entry of this Memorandum Opinion and
Order. If Plaintiff fails to seek amendment in the proper fashion and within the time constraints
specified in this Memorandum Opinion and Order, Plaintiff’s case will be dismissed with
prejudice. Thus, the Court will grant in part Defendants’ Motion to Dismiss [Doc. #14], but will
also allow Plaintiff 14 days from entry of this Order to amend his Complaint to cure the
deficiencies noted within this Order.
IT IS THEREFORE ORDERED AND DECREED that Individual Defendants’ Motion
to Dismiss [Doc. #8] is GRANTED, pursuant to Federal Rule of Civil Procedure 12(b)(1) and
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12(b)(6). As such, Plaintiff’s lawsuit against Sergeant Tony Perkins, Scott Cunningham, and Cliff
Cranford, is hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Official Defendants’ Motion to Dismiss [Doc. #14]
is GRANTED IN PART, and that Plaintiff’s action against the Winston-Salem Police
Department is hereby DISMISSED WITH PREJUDICE. IT IS FINALLY ORDERED that
Plaintiff is granted leave to amend his Complaint to cure the deficiencies discussed herein. If
Plaintiff chooses to amend his Complaint, he must do so, consistent with the ruling of this Court,
within 14 days of entry of this Order, or this action will be dismissed with prejudice.
This, the 27th day of June, 2014.
United States District Judge
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