PIERCE v. ROTH et al

Filing 31

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/13/2014. For the foregoing reasons, this court finds that Plaintiff has failed to state a claim upon which relief can be granted as to his third cause of action for retaliation. RECOMMENDED that Defendant's motion to dismiss be GRANTED and Plaintiff's claim for retaliation be DISMISSED WITH PREJUDICE. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN M. PIERCE, SR.,

)
)

Plaintiff

)
)
)
)
)
)
)

V

UNIVERSAL STEEL OF NORTH
CAROLINA, LLC,
Defendant.

13CV158

)

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is befote the court on Defendant Univetsal Steel of

Noth

Carolina's

("Univetsal Steel") motion to dismiss Plaintiffls tetaliation claim pursuant to Federal Rule

of

Civil Procedute 12þ)(6). @ocket E.rt y 27.) PlaintiffJohn M. Pietce, St. filed

in

a response

opposition to Defendant's motion @ocket Entty 30) and the mattet is ripe for disposition.

Fot the following reasons, it is tecommended that the court grant Defendant's motion to
dismiss.

I.

BACKGROUND
Plaintiff fìled this action against Universal Steel on February 25, 201.3, alleging racial

discrimination and tetaliation in violation of Title

VII of the Civil Rights Act of

@ocket F,ntry 2.) On July 4,201.3, Plaintiff filed an amended complaint.
Compl., Docket Errtry

26.) Plaintiff

alleges he was hired

(See

1964.1

generalþ Am.

by Triad Steel in 1.996 and

continued employment with Universal Steel after its acquisition of Triad rn 2006. (Id. \fl1,0,

1

Richard Roth, Plaintiffls supervisor, was originally named as a defendant as well. Roth was
byastipulationof dismissalonJune 74,2073. (DocketF;ntry20.)
^s^party

dismissed

1,

11.) FIe was employed
Shear

Opetator. (1d.ffi

as a Burn Table Opetatot and occasionally petformed tasks as
1,2-1,3.)

Plaintiff was terminated by Defendant in December

a

201.1..

(rd.1147.)

Plaintiff, an Afrtcan-American, alleges that at the time of his tetmination he was being
paid eleven dollars and eighty-six cents ($11.86) per hout. (Id.

11

15.) FIe contends that one

white employee who was hired afterPlaintiff to perfotm "many of the sâme tasks"'was "paíd
approximately fourteen dollars per

hout," ard that another white male who wotked

a

different job was paid"a higher hourþ wage" than Plainrff. (Id. TlT 18-21.)

Plaintiff further alleges that Richard Roth was hked by Defendant as Ptoduction
Managet in February 201,1,. (1d.1[27.) Plaintiff alleges that he was watned by the ptevious

Ptoduction Manager that Roth "did not like Blacks and Guatemalans" and that throughout

the course of Roth's tenure he made "derogatory, steteotypical, and bigoted temarks to
fPlaintiffl disparaging non-white employees," incidents which occutred, on average once or
¡u¡ice a week.

Qd.ln 28-30.) Plaintiff alleges that he btought his "concerns to management

on multiple occasions" (id. fl 39) and that his complaints led to his eventual tetmination.

Qd.

1164.)

Plaintiff alleges that in October
severì other employees were being laid

201,'1,

off.

he was informed by Roth that Plaintiff and

(1d.1[

40)

white, while two were Aftican-American, including
several

Six of the laid-off employees wete

Plaintiff. (Id.) In November

20'1.1,

of the laid-off employees were called back to wotk; howevet neither of the African-

Amedcan employees was asked to return. (1d.ffi 41,-42.) When Plaintiff contacted Roth
about not being hired back, Roth told him his position was being outsourced.

2

(Id.ll 44.) On

or about December

1.5, 201,1,,

Plaintiff received a letter stating that his employment with the

Defendant was being terminated. (Id.Í146.) The othet Aftican-,,4.merican employee was also

tetminated

Qd.

n 47.) Plaintiff alleges that since his dismissal, Defendant has hfued sevetal

new white employees to teplace hirn. (Id. T 45.)

Attached to the complaint is a copy of the Chatge of Discrimination Plaintiff fìled

with the Equal Employment Opport"nity Commission ("EEOC") ot March 5,
Q)ocket E.ttty 26-1,.)

In this charge, Plaintiff states that he believed that he was

discriminated against based

on his nce-African--Americam-and tetaliated

complaining about ncial discrimination in violation of Title

II.

20'1,2.

VII.

against fot

(Id.)

DISCUSSION
Rlile 12(b)(6)

A

defendant may seek dismissal

of a complaint for "fatlure to state a claim upon

which relief can be gtanted." Fed. R. Civ. P. 12þ)(6). A motion to dismiss fot failute to
state a claim is granted

if the complaint does not allege "enough facts to sta;te

relief that is plausible on its f^ce;'

Be//

At/.

^

claim to

Corþ. u. Twombþ,550 U.S. 544, 570 Q007).

In

order to be "plausible on its face," the factual allegations must "be enough to taise a right to

telief above the speculative level." Id. at 555. The plaintiff does not need to demonsffate in
a

complaintthat the right to relief is probable, but the complaint must advance the plaintiffls

claim "across the line ftom conceivable to plausible."

IWalters u.

MtMalten, 684 F.3d 435,439

(4th Cit. 201,2). As explained by the United States Supteme Court:

A

claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the teasonable infetence that the defendant is liable
fot the misconduct alleged. The plausibility standard is not al<tn to a
ptobability requitement, but it asks for more than a sheet possibility that a
-)

defendant has acted unlawfully. Where a complaint pleads facts that are metely
consistent with a defendant's liability, it stops shot of the line between
possibility and plausibiJity of entidement to relief
Ashnof

u.

Iqba/,556 U.S. 662,678 Q009) (internal quotations and citations omitted).

A 12þ)(6) motion

tests the sufficiency of a complaint and "does not tesolve contest

surtounding the facts, the metits of a claim, ot the applicability of defenses." Repablican Pa@
of

N.C.u. Martin,980 F'.2d 943,952 (4th Cir. 1,992). lØhen deciding a motion to dismiss,

a

court should assume the uuth of all facts, however the courts are not bound by the "legal
conclusion drawn from the facts." E.

Sltore

Mkts. Inc.

u.

J.D. Assocs. Ltd. PIhiþ,2"1.3 tr.3d 1.75,

180 (4th Cir. 2000).

,{ motion to dismiss undet Rule 12þ)(6) must still comply with the Federal Rules of
Civil Procedute. Undet Rule A@)Q) a complaint tequites "a short and plain statement of the
claim showing that the pleader is entitled to relief," so as to "give the defendant fair notice

of what the . . . claim is and the grounds upon which it rest."

Twombþ, 550 U.S. at 555.

Employment discdmination claims do not tequfue a heightened pleading standard. Id. at 570.
However, the plaintiff in an employment disctimination case is still tequired to plead facts

sufficient to state all the elements of his claim. Bass

u.

E.I. DuPont de Nemoars dv Co., 324

F.3d761.,764-65 (4th Cir. 2003).
Anaþsis

In his third

VII.

cause

(-,\m. Compl.

'1T'1.[

of action, Plaintiff

asserts a claim

60-64, Docket F;nty

26.)

Specifically, Plaintiff alleges that Roth's

ractal hatassment amounted to retaliaion agaínst Plaintiff

discrimination in employee tleatment and pay." Qd.) Title

4

for retahatton pursuant to Title

fot his "reports regatding racial

VII provides that it is unlawful

for an employet to discdminate against any of his employees or applicants tor
employment . . to discdminate agutst any individual . . because he has
opposed
ptactice made
unlawful employment practice by this
^ny because he has made a charge, testified, assisted or participated
^n
subchapter, or
in any manner in afl investigation, proceeding, ot headng under this
subchapter.

42U.5.C.

$ 2000e-3(a)

In otdet to state a þrina faeie case of tetaliation under Title VII, an employee must
show that (1) he engaged in protected activiry; Q) the employer took an advetse action
against him; and (3) there was a causal connection between the protected activity and the
assefted advetse employment action. Coleman u. Marlland Coart of Appeals, 626 F.3d 187,190

(4th Cir. 201,0). "Ptotected activities fall into two distinct categories: paticipation or
opposition. An employer may not rctahate against an employee participating in an ongoing
investigation or ptoceeding under Title

VII, nof m^y the employer

take adverse employment

action against an employer for opposing discriminatory practices in the workplace." Lnaghlin
u.

Metro. IYa¡h. Airports Aath.,149 F.3d 253,259 (4th Cir. 1998) (internal citations omitted)

,{ plaintiff

allegrng a tetaltatton claim must plead facts that plausibly show an advetse action

taken by defend^ntiî response to the plaintiff asserting dghts protected by Title
Burlington

N.

dv Santa Ft

þ.

Co. u. Il/hite, 548 U.S. 53 Q006).

VIL

See

The standard fot what qualifies

as an adverse employment action fot a tetaliation claim is less onetous than for
discrimination claim.

See

id. at 67 (concluding that Title

a

VII's anti-tetaliation provision is not

cotetminous with Title VII's substantive discrimination provision)

In its motion to dismiss, Defendant contends that Plaintiff has failed to state a clakn
based on tetaliatory hatassment because he has not demonstrated an advetse employment

5

action and he has not suffìciently alleged a causal connection benveen any alleged ptotected
activity and the alleged tacial harassment or his termination.

Plaintiffs complaint, even liberally construed, does not state a clakn fot retaliation
under Title

VII. In his complaint, Plaintiff

alleges that the hatassment he suffeted at the

job

should be consideted an advetse employment action. Plaintiff alleges that he engaged in

legally protected activity by repoting

to Defendant racially

a

discdminatory actions and

comments made by Roth. After reporting these actions, Roth continued to hatass him and

Plaintiff was eventually laid-off. Plaintiff contends that Defendant should be held liable
because Defendant
because

did not respond to PlaintifPs complaints about Roth's actions and

the supervisor was acting within the scope of his position of managet when

engaging in the retahatory behavior.

The standard for detetmining whether mere harassment tises to the level of
adverse action was set forth by the Supreme Coutt in Børlington, 548 U.S.

the plaintiff was placed on a

37

-day suspension, without

rnatetially adverse change in the terms and conditions

pa1r,

53. In

an

Burlington,

which was consideted

a

of her employment. Id. at 73. The

Coutt held that "a plainttff must show that a teasonable employee would have found the
challenged action materially adverse, which in this context means

it might

have dissuaded a

teasonable worker from making or suppotting a charge of discrimin lj,ort." Id at 68 (intetnal

citation omitted). As noted by the court in Børlington, the objective standard is contextspecific. Id. at 69.

Plaintiff here alleges that he was subjected to verbal harassment for a numbet of
months. Even if this court were to assume a causal connection, the facts alleged by Plaintiff

6

do not tise to the level that would dissuade a teasonable worker in the same way as would,

for example, a suspension without p^y or exclusion ftom staff meetings. While the plaintiff

in

Burlington

w^s faced with loss of income, Plaintiff in the present case only had to deal with

continued harassment, which-while not

slight-is something he had pteviously

dealt with

and complained about. The hatassment alleged by Plaintiff simply does not qualify as
adverse employment action for the purposes of a Title

VII tetaliation

aî

claim.

Plaintiff alleges that he fìrst complained of wage disparity in Match 2006, shortly after
Universal Steel purchased Triad Steel. Roth, the supervisot who Plaintiff alleges harassed
him, was not hired until trebruary 201,1. Plaintiff does not allege that he made any complaints

to Defendant about p^y or

assignment dispatity between 2006 and 20'11,. Plaintiff has

alleged no facts which make

it

plausible that Roth knew

of the alleged protected activity

which took place five yeats befote he was hired. Moteovet, while Plaintiff alleges he made
sevetal complaints about the hatassment by Roth after

an employee never changed until he was laid

a

off.

201,'1,,

PlaintifPs treatment or status

as

Indeed, PlaintifPs allegations do not make

causal connection between Roth's "constant bauage"

of

hatassment and Plaintiffs

complaints to management.

Plaintiff also contends that his termination was in retaliation fot his "tepeated
reporting2' of Roth's discdminatory actions. (Am. Compl. !f 6a.) Flowever, Plaintiff has not
alleged any facts

to support this claim. Plaintiff was tempomrtly latd off in Octobet 2011.,

and was not terminated until December 201,1,. Plaintiff does not allege that he engaged in

any protected activity dudng this t'wo-month period. Ordinarily, there must be "some
degree of temporal proximity þetween an employer's knowledge of an employee's protected

7

activity and an adverse action against that employee]
Constantine a. Rectors

to

suggest

dz Visitors of George Mason Uniu., 411 F.3d

47

4,

a catsal connection."

501,

(4th Cir. 2005). The

lapse in time between Plaintiffs alleged complaints and his termination thus tends to negate
any causal link between the two events.2

While Plaintiff has alleged facts sufficient to state claims for ncial discdmination undet

Tide VII, none of Plaintiffs allegations meet the specificity tequired to adequately

allege

tetaliation under Title VII.

III.

CONCLUSION

For the foregoing reasons, this court finds that Plaintiff has failed to state a claim
upon which telief can be granted as to his third cause of action fot retaliation. Thetefote,

IT IS RECOMMENDED that Defendant's
Plaintiff

s

claim for rctahatton be DISMISSED

motion to dismiss be GR-,\NTED and

WITH PREJUDICE.

Webster
oe
United States Magistrate Judge

Noth Carolt¡a
January

201,4

Plaintiff contends that another African-Amer{can employee was fired; howevet Plâintiff does not
allege that this employee engaged in any protected activity, lending credence to the inference that
Plaintiffls termination was not retahatory, but tathet part of a genenllay-off.

'

8