PIERCE v. ROTH et al

Filing 35

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 3/5/2014, for the reasons stated herein, the court concludes that Pierce's amended complaint states a plausible Title VII retaliation claim. Therefore, the court declines to adopt the Magistrate Judge's Recommendation. ORDERED that Universal Steel's motion to dismiss (Doc. 27 ) is DENIED. (Butler, Carol)

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

JOHN M. PIERCE, SR.,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNIVERSAL STEEL OF NORTH
CAROLINA, LCC,
Defendant.

1:13CV158

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
The Recommendation of the United States Magistrate Judge
was filed with the court in accordance with 28 U.S.C. § 636(b)
and, on January 13, 2014, was served on the parties in this
action.

(Docs. 31, 32.)

Plaintiff John M. Pierce, Sr., filed

timely objections (Doc. 33) to the Recommendation pursuant to
Federal
Steel

Rule
of

of

North

Civil

Procedure

Carolina,

LLC

72,

and

Defendant

(“Universal

Steel”)

Universal
filed

a

response (Doc. 34).
I.

BACKGROUND
The

Magistrate

Judge

recommended

that

this

court

grant

Universal Steel’s motion to dismiss Pierce’s retaliation claim
brought under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq.

(Doc. 31.)

The allegations of

Pierce’s

adequately

described

amended

complaint

are

in

the

Recommendation (see id. at 1–3) but will be summarized here in
relevant part.
Pierce, an African-American, was originally an employee of
Triad Steel, Co., before that company was purchased by Universal
Steel in 2006.

(Doc. 26 ¶ 10.)

After the transition, Pierce

made some complaints to his supervisors to the effect that he
believed white employees were being paid more than their black
counterparts.
until

2011,

Production
subjected

(Id. ¶¶ 22, 25.)
when

Universal

Manager.
him

and

(Id.
other

However, nothing more was done

Steel
¶

hired

27.)

minority

Richard

Pierce

Roth

alleges

employees

to

a

as

that

its
Roth

string

of

“derogatory, stereotypical, and bigoted remarks” approximately
once or twice per week.
another

employee

(Id. ¶ 30.)

confronted

treatment of white employees.
was done at this time.

Roth

In July 2011, Pierce and
regarding

(Id. ¶ 33.)

the

favorable

Apparently, nothing

In October, Pierce spoke to Roth again

after Roth assigned Pierce a new task without allowing Pierce a
chance to finish what he had been working on.

(Id. ¶¶ 36–37.)

Pierce

allowed

complained

that

white

employees

were

to

do

nothing while Roth piled assignments on the minority employees.
(Id. ¶ 37.)

Roth responded that Pierce should quit, but Pierce

said he would not be intimidated out of his job.

(Id. ¶ 38.)

Pierce was subsequently laid off on October 20, 2013, along with
seven other employees (six white and one black).
2

(Id. ¶ 40.)

Although Universal Steel began hiring back the white employees
the next week, Pierce was never re-hired; instead, Roth told him
in November that his position had been outsourced.
44.)

(Id. ¶¶ 41–

Pierce was officially informed via letter on December 15

that he had been terminated.
The

Magistrate

Judge

(Id. ¶¶ 46–47.)
concluded

that

Pierce’s

amended

complaint failed to state a claim for retaliation and therefore
that the claim should be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6).

First, the Magistrate Judge found

that the harassment alleged by Pierce did not rise to the level
of

an

adverse

employment

action

under

the

Supreme

Court’s

decision in Burlington Northern & Santa Fe Railway Co. v. White,
548

U.S.

53,

67–69

(2006).

Next,

he

concluded

that

Roth’s

harassment could not have been retaliatory because it was not
alleged that Roth knew about Pierce’s 2006 complaints.
the

Magistrate

Judge

concluded

that

there

was

Finally,

no

causal

connection between any of Pierce’s actions and his termination,
and

that

“[t]he

lapse

in

time

between

[Pierce’s]

alleged

complaints and his termination . . . tends to negate any causal
link between the two events.”
II.

(Doc. 31 at 8.)

ANALYSIS
A.

Standard of review

Pierce
conclusions.

objects

to

Pursuant

all

three

to

Federal
3

of

the

Rule

Magistrate
of

Civil

Judge’s

Procedure

72(b)(3), this court is required to conduct a de novo review of
those portions of the Magistrate Judge’s Recommendation to which
an objection is made.

See Diamond v. Colonial Life & Accident

Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

The court reviews

for clear error those portions of a Recommendation to which no
timely objection was made.
objected

to

all

of

Id.

the

Here, Pierce essentially has

Magistrate

Judge’s

conclusions,

necessitating a de novo review of the entire Recommendation.
Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.

Under Rule

12(b)(6), “a complaint must contain sufficient factual matter .
. . to ‘state a claim to relief that is plausible on its face.’”
Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009)

(quoting

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Bell

A claim

is plausible “when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.”
Twombly, 550 U.S. at 557).

the

Id. (quoting

At the pleadings stage, the court

must accept the complaint’s factual allegations as true.
B.

that

Id.

Retaliation claim

As the Magistrate Judge properly stated, in order to make
out a prima facie retaliation claim under Title VII, an employee
must show that (1) he engaged in protected activity; (2) the
4

employer took an adverse action against him; and (3) there was a
causal

connection

between

the

protected

asserted adverse employment action.

the

second

third

and

Magistrate
prongs

Judge’s

of

the

and

the

Coleman v. Md. Court of

Appeals, 626 F.3d 187, 190 (4th Cir. 2010).
challenges

activity

Pierce specifically

conclusions

prima

facie

regarding

case.

the

However,

consistent with the above standards, the court will review all
three elements.
1.

Protected Activity

Title VII’s retaliation provision provides “[i]t shall be
an unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has opposed any
practice made an unlawful employment practice by this subchapter
.

.

.

.”

confronted

42
Roth

U.S.C.

§

regarding

2000e-3(a).
Universal

Pierce
Steel’s

specifically
supposed

pay

discrimination, which is a practice made unlawful by Title VII.
See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)
(superseded by 42 U.S.C. § 2000e-5(e)).
in

a

protected

activity

both

times

he

Therefore, he engaged
approached

Roth

and

discussed Universal Steel’s employment practices.
2.

Adverse employment action

The Magistrate Judge concluded that the harassment alleged
by Pierce did not rise to the level of an adverse employment
action.

This

conclusion

was

correct.
5

The

court

need

not

determine

whether

Roth’s

actions

would

constitute

an

adverse

employment action under Burlington because the amended complaint
alleges that the harassment began before any protected activity
by

Pierce.

The

amended

complaint

does

not

allege

that

the

harassment became more severe or pervasive after Pierce’s July
or

October

employment

confrontations
action

resulted

with
from

Roth.

Thus,

Pierce’s

no

adverse

complaints;

he

was

merely subjected to the same work environment that had existed
since Roth had been his supervisor.
Pierce’s

layoff

actions.

and

termination

There is no dispute that

constitute

adverse

employment

See Burlington, 548 U.S. at 60, 67–68; see also Lawson

v. Burlington Indus., Inc., 683 F.2d 862, 863-64 (4th Cir. 1982)
(holding that discriminatory layoff and failure to re-hire are
separate violations of the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq.).
3.

Causation

The Magistrate Judge concluded that, as a matter of law,
Pierce had not alleged that his protected activity was the butfor cause of the layoff or termination.

See Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
disagrees.

A

close

temporal

proximity

between

This court
protected

activity and termination is sufficient to state a prima facie
retaliation claim.

See King v. Rumsfeld, 328 F.3d 145, 151 &

n.5 (4th Cir. 2003) (termination two months and two weeks after
6

protected activity sufficient to satisfy causation requirement);
Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011)
(termination about a month after protected activity sufficient).
Even after Nassar, courts have adhered to that rule.

See, e.g.,

Feist v. La. Dep’t of Justice, Office of the Atty. Gen., 730
F.3d 450, 454 (5th Cir. 2013); Lobato v. N.M. Env’t Dep’t, 733
F.3d 1283, 1293 (10th Cir. 2013); Taylor v. Republic Servs.,
Inc., No. 1:12–cv–00523, 2013 WL 5178452, at *24 (E.D. Va. Sept.
16, 2013).
When

read

in

the

light

most

favorable

to

Pierce,

as

required at the pleading stage, the amended complaint alleges
sufficient

temporal

proximity

between

Pierce’s

October

confrontation and his subsequent layoff -- less than one month.
Pierce was alerted that he would not be re-hired no later than
six weeks after his complaint.
temporal

proximity

is

At this stage, such a close

sufficient

to

state

a

claim

for

retaliation on the basis of either the layoff or the eventual
termination.

The

allegations

of

the

amended

complaint

may

plausibly be construed as asserting that the layoff was merely a
vehicle to accomplish Pierce’s ultimate termination.

This is

especially true because Pierce alleges that Universal Steel rehired all five of the eligible white employees, but not the two
African-American employees, who had been laid off.

7

The Magistrate Judge stated that Pierce has “not alleged
any facts” to support the claim that his termination was in
retaliation for his repeated reporting of discrimination.
31 at 7.)

(Doc.

His reasoning was that Pierce does not allege he

engaged in any protected activity between his layoff in October
and his eventual final termination in December.

(Id.)

But

Pierce alleged that he complained of discrimination in October
and was laid off the same month.

He never returned to work at

Universal Steel because the company chose not to re-hire him.
Therefore, the required temporal proximity between the protected
activity and the adverse employment states a plausible claim for
retaliatory discrimination.
III. CONCLUSION
For the reasons stated, the court concludes that Pierce’s
amended

complaint

states

a

plausible

Title

VII

retaliation

claim.

Therefore, the court declines to adopt the Magistrate

Judge’s Recommendation.
IT IS THEREFORE ORDERED that Universal Steel’s motion to
dismiss (Doc. 27) is DENIED.

/s/
Thomas D. Schroeder
United States District Judge
March 5, 2014

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