ROBINSON v. PEPSI BOTTLING GROUP et al

Filing 49

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 5/19/2014, that Robinson's first two motions to seal (Docs. 20 , 33 ) are DENIED, her final motion to seal (Doc. 41 ) is GRANTED, and her motion to amend the complaint (Doc. 17 ) is GRANTED for the purpose of considering Pepsi's second motion to dismiss (Doc. 28 ). FURTHER, that Pepsi's first motion to dismiss (Doc. 12 ) is DENIED AS MOOT, its second motion to dismiss (Doc. 28 ) is GRANTED, its motion to strike (Doc. 45 at 9-10) is GRANTED, its motion for a hearing (Doc. 46 ) is DENIED insofar as a hearing would not aid in the decisional process, and the case is DISMISSED WITH PREJUDICE. (Lloyd, Donna)

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

ANGELITA Y. ROBINSON,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
PEPSI BOTTLING GROUP; PEPSICO,
INC.; PEPSICO CHICAGO; and
PEPSI AMERICA'S BEVERAGES,
Defendants.

1:13CV729

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Before
motions.

the

court

in

this

employment

action

are

several

Pursuant to Federal Rule of Civil Procedure 12(b)(1)

and 12(b)(6), Defendants Pepsi Bottling Group, PepsiCo, Inc.,
PepsiCo

Chicago,

and

Pepsi

America’s

Beverages

(collectively

“Pepsi”) move to dismiss pro se Plaintiff Angelita Y. Robinson’s
various discrimination and retaliation claims brought pursuant
to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq.
initial

motion

to

(Docs. 12 & 28.)

dismiss

(Doc.

12)

After Pepsi filed its
Robinson’s

original

complaint (Doc. 2), Robinson moved to amend her complaint (Doc.
17)

and

filed

an

amended

complaint

(Doc.

19).

Pepsi

subsequently moved to dismiss the amended complaint on the same
grounds.

(Doc. 28.)

Robinson has filed two documents that

appear to be response briefs but also seek leave to amend her

complaint yet again.
strike

a

(Doc. 36 & 37.)

supplemental

brief

filed

by

Pepsi also moves to
Robinson.

(Doc.

(Robinson’s filing); Doc. 45 at 9-10 (motion to strike).)
connection

with

her

motions,

motions to seal documents.

Robinson

has

also

filed

(Docs. 20, 33, & 41.)

43
In

three

Finally,

Pepsi moves for a hearing on all pending motions (Doc. 46),
which Robinson does not oppose (Doc. 48).
For the reasons set forth below, Robinson’s motion to file
her

amended

considering

complaint
Pepsi’s

will

second

be

granted

motion

to

for

the

dismiss,

purposes

and

of

Robinson’s

motions to seal will be granted in part and denied in part.
Because

the

amended

complaint

fails

under

Rule

12,

Pepsi’s

second motion to dismiss will be granted and the case dismissed.
Robinson’s request for further amendment will be denied.

These

rulings render Pepsi’s first motion to dismiss (Doc. 12), having
been superseded by the second motion to dismiss, moot.

The

facts and legal issues are adequately presented on the record,
so the court discerns no need for a hearing.
I.

BACKGROUND
In

her

amended

complaint,

Robinson

alleges

that

Pepsi

discriminated against her on the basis of her race and sex,
created a hostile work environment on account of her race and
sex, forced her to resign, and retaliated against her for filing
a

charge

of

discrimination

with
2

the

United

States

Equal

Employment Opportunity Commission (“EEOC”).

(Doc. 19 at 4, 6.)

She claims that she resigned “under duress,” and then Pepsi took
several actions that amounted to “intentionally interfering with
potential

employment.”

“intentionally

(Id.

ignor[ing]

at

5.)

Such

[Robinson’s]

actions

initiative

included

of

getting

[her] 401K,” and “refus[ing] to give [an] end date in writing.”
(Id.)

The amended complaint provides no facts relating to the

discrimination,

constructive

discharge,

or

hostile

work

environment claims except to state that Robinson resigned “under
duress.”
Robinson filed her first EEOC charge on March 16, 2012,
alleging

race

environment.

and

sex

(Doc. 2–2.)

discrimination

and

hostile

The charge details several incidents

in the workplace that made Robinson feel uncomfortable.
2–2 at 1; Doc. 2-1.)

(Doc.

The EEOC dismissed her charge and mailed a

right-to-sue letter on July 31, 2012.

(Doc. 2-3.)

subsequently

on

filed

work

another

claiming retaliation.

EEOC

(Doc. 2-5.)

charge

January

Robinson
24,

2013,

In that charge, she alleged

she went on medical leave on or about March 7, 2012, and never
returned to work.

(Id. at 1.)

Although she received a doctor’s

note that stated she could return to work on September 1, she
instead faxed a letter of resignation to Pepsi on September 3,
stating that she “resign[ed] under duress.”
claims

that

she

was

“subjected
3

to

(Id.)

retaliatory

Robinson
harassment”

because she previously complained about workplace conditions and
filed an EEOC charge.

(Id. at 2.)

The retaliatory harassment

allegedly took four forms: (1) she was unable to withdraw her
401(k) funds from Fidelity until December 25, 2012, when Pepsi
told Fidelity that she had separated from the company; (2) her
62 hours of vacation back-pay was not released until after she
filed for unemployment in November 2012; (3) Pepsi claimed she
was on unpaid leave after she resigned, but did not follow its
own unpaid leave policy; and (4) she was not offered a severance
package (although she conceded that severance is not mandatory).
(Id.)
to-sue

The EEOC dismissed the second charge and mailed a rightletter

on

May

30,

2013.

(Doc.

2–6.)

Robinson

subsequently filed her original complaint on August 30, 2013
(Doc. 2), and her amended complaint on December 2, 2013 (Doc.
19).
Pepsi moved to dismiss the amended complaint.

(Doc. 28.)

It contends Robinson’s discrimination, hostile work environment,
and constructive discharge claims are time-barred because she
did not file a complaint within 90 days of receiving a right-tosue letter from the EEOC.
retaliation

claim

should

It further asserts that Robinson’s
be

dismissed

because

she

failed

to

allege sufficient facts to make a prima facie retaliation case
plausible.

Robinson has responded (Docs. 36 & 37), and Pepsi

has filed a reply (Doc. 39).

Robinson then filed a “Motion and
4

Notice

of

Supplement

to

Defendants

Motion

to

Dismiss,”

purportedly pursuant to Federal Rule of Civil Procedure 15(d).
(Doc. 43.)
9–10.)

Pepsi has moved to strike this filing.

(Doc. 45 at

Robinson has also filed three motions to seal documents.

(Docs. 20, 33, & 41.)
II.

ANALYSIS
A.

Motions to Seal

As a threshold matter, the court considers Robinson’s three
motions to seal certain documents filed with her motions.

The

first motion asks the court to seal five exhibits submitted with
the amended complaint.

(Doc. 20.)

Exhibits H and I referred

to in the motion were filed with Robinson's brief in support of
her motion to amend the complaint.

(Doc. 18 at 6–9.) 1

Exhibit H

is a doctor’s note stating that Robinson could return to work on
September 1, 2012, and Exhibit I is a notice advising Robinson
of her COBRA insurance eligibility.

Exhibits K and M were filed

two days after the amended complaint. 2

Exhibit K is a letter

from Renee W. Ballard, Pepsi’s Director of Human Resources, to
Robinson enclosing a check for $738.97 for unused paid time off.
(Doc. 22 at 5.)

Exhibit M appears to be a notice sent by the

1

Exhibit L is not included and can be found nowhere on the record.
Pepsi claims it was never served with the exhibit.
Thus, Robinson’s
motion to seal this exhibit will be denied as moot.
2

There is also a second Exhibit K, which is a response from Fidelity
to Robinson’s inquiry regarding her 401(k). (Doc. 18 at 10.)

5

EEOC

of

a

scheduled

March 20, 2013.

mediation

(Id. at 4.)

between

Robinson

and

Pepsi

on

All of these documents, with the

exception of the EEOC mediation notice, are referred to in the
amended complaint.

(Doc. 19 at 5.)

The second motion asks the court to seal eight documents
submitted with the motion.
are

referred

to

in

the

(Doc. 33.)
amended

None of the documents

complaint,

Pepsi’s official employment policies.

and

several

are

(Docs. 34-1 through 34-

8.)
The third motion seeks to seal four unredacted documents.
(Doc.

41

(motion);

documents).)

Docs.

42,

42-1,

42-2,

&

42-3

(unredacted

Robinson would replace the unredacted documents

with redacted versions, as she claims the redacted information
is

confidential.

documents).)
August

8,

(Docs.

41–2

through

41-5

The first document is a letter sent by Robinson on
2012,

declaring

her

intention

to

termination of her short-term disability payments.
& 42.)

(redacted

appeal

the

(Docs. 41-2

The second document is Robinson’s doctor’s certification

for leave under the Family and Medical Leave Act of 1993, 29
U.S.C. § 2601 et seq.

(Docs. 41-3 & 42-1.)

The final two

documents are notifications from Fidelity regarding Robinson’s
attempt to access her 401(k).

(Docs. 41-4, 41-5, 42-2 & 42-3.)

The First Amendment provides the public a right to access
documents filed in connection with a dispositive motion in a
6

civil case.

ATI Indus. Automation, Inc. v. Applied Robotics,

Inc., 801 F. Supp. 2d 419, 427 (M.D.N.C. 2011) (citing Rushford
v. New Yorker Magazine, Inc., 846 F.2d 249, 252–53 (4th Cir.
1988)).

A

denial

of

access

“must

be

necessitated

by

a

compelling government interest and narrowly tailored to serve
that interest.”

Rushford, 846 F.2d at 253.

The burden falls on

the party seeking to keep the information sealed.

Va. Dep’t of

State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004).
Robinson

asserts

that

the

documents

contain

confidential

information and would place her at a disadvantage if they are
revealed.

The

court

has

carefully

read

the

documents

and

concludes that, with the exception of the documents for which
Robinson has filed redacted substitutes, none of the filings
should

be

sealed.

In

particular,

several

of

the

documents

attached to the second motion are Pepsi’s employment policies
and contain no confidential information.
through 34–7.)

(Docs. 34–1 & 34–3

The remaining documents attached to that motion

are not confidential: Robinson’s performance evaluations (Doc.
34–2) contain no sensitive information, and the final document
is a letter from Ballard inquiring into Robinson’s employment
status

which

contains

pleadings (Doc. 34–8).

no

information

not

included

in

the

There is also no compelling interest in

sealing any of the documents connected with the first motion.
The

documents

contain

no

sensitive
7

information,

and,

in

any

event,

sealing

the

entire

document

would

not

be

a

narrowly

tailored means of protecting any information Robinson would like
sealed.

However, the court will grant Robinson’s third motion,

because she has filed redacted versions of the documents she
seeks to have sealed.

The redactions are narrowly tailored to

delete a small amount of non-essential information.

Thus, the

court will seal Documents 42, 42-1, 42-2, and 42-3.
B.

Motion to Dismiss
1.

Standard of review

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.
Rule

of

Civil

Procedure

12(b)(6),

“a

complaint

Under Federal
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 Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
pleads

factual

reasonable

A claim is plausible “when the plaintiff

content

inference

misconduct alleged.”

that

that

allows

the

the

defendant

court
is

to

liable

draw

the

for

the

Id. at 678 (quoting Twombly, 550 U.S. at

557).
In addressing this case, the court is mindful that it must
construe pro se litigants’ complaints liberally, thus permitting
a potentially meritorious case to develop if one is present.
8

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

However, this does

not

advocate

require

that

the

unrepresented party.
387,

391

(4th

Cir.

court

become

an

for

Weller v. Dep’t of Soc. Servs., 901 F.2d
1990).

“Only

those

questions

which

squarely presented to a court may properly be addressed.”
2.

the

are

Id.

Statute of limitations

Pepsi contends that all claims except the retaliation claim
are barred because the complaint was not timely filed.

In her

response, Robinson asks for “leave to amend to clarify” these
claims;

however,

Robinson

provides

absolutely

clarification, or proposed amended complaint.

no

explanation,

(Doc. 37 at 2-3.)

Pepsi argues that even if she had properly moved to amend her
complaint once again, Robinson cannot overcome the fact that her
original complaint in this case was filed over a year after her
initial right-to-sue letter was mailed.
A Title VII plaintiff must file suit within 90 days of
receipt of the EEOC right-to-sue letter.
5(f)(1).

While

this

requirement

acts

42 U.S.C. § 2000eas

a

statute

of

limitations rather than a jurisdictional bar, see Zipes v. Trans
World Airlines, 455 U.S. 385, 393 (1982), Robinson has alleged
no

circumstance

period.

that

would

merit

tolling

of

the

limitations

Because this lawsuit was initiated on August 30, 2013,

over a year after Robinson received her July 31, 2012 right-to-

9

sue letter, her claims asserted in the first EEOC charge are
time-barred.
Robinson’s second EEOC charge does claim that she “resigned
under

duress.”

(Doc.

2-5

at

1.)

To

the

extent

this

constructive discharge claim is considered not to be time-barred
because

it

was

asserted

in

the

second

EEOC

charge,

the

allegations in the amended complaint fail to state a plausible
constructive

discharge

claim.

In

order

to

demonstrate

constructive discharge under Title VII, an employee must show
that

Pepsi

reasonable

created
person

working

would

conditions

have

been

so

intolerable

compelled

to

that

resign.

a

See

Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 262 (4th Cir.
2006); McMillian v. Lab. Corp. of Am., 399 F. Supp. 2d 670, 674
(M.D.N.C.

2005).

Robinson’s

conclusory

allegation

that

she

“resigned under duress” is insufficient to state a claim for
constructive discharge.
In a last ditch effort to avoid this result, Robinson seeks
leave

to

amend

her

complaint

yet

again

allegations in response to Pepsi’s arguments.
at

3.)

granted.

Ordinarily,

a

motion

to

amend

“to

clarify”

her

(Doc. 36 at 4; 37

should

be

liberally

However, Robinson has already amended her complaint

once, after Pepsi briefed its motion to dismiss.

In the current

request, she has not filed a proposed amended complaint that
cures the defects noted, nor has she even forecasted any factual
10

or other allegation to warrant further delay or denial of the
motion

to

dismiss.

This

district’s

Local

Rules

require

a

proposed amended pleading to be attached to any motion for leave
to amend a pleading.
avoid

having

requests

that

cases
may

L.R. 15.1.
thrust

later

into
prove

The obvious purpose is to
limbo

on

such

unsupported.

generalized
Consequently,

Robinson’s request for further amendment will be denied.

U.S.

ex rel. Rostholder v. Omnicare, Inc., 745 F.3d 694, 703 (4th
Cir. 2014) (finding no abuse of discretion in denying request to
file third amended complaint where party did not comply with
local rule requiring filing of proposed amended pleading).
Therefore,

Pepsi’s

motion

to

dismiss

any

disparate

treatment, hostile work environment, and constructive discharge
claims in the amended complaint will be granted.
3.

Retaliation claim

After dismissal of the claims asserted in the first EEOC
charge,

Robinson

is

second EEOC charge.

left

with

her

retaliation

claim

in

the

Because she filed her original complaint on

August 30, 2013, less than 90 days after receiving her right-tosue letter for that charge, the retaliation claim is not timebarred.

The second charge alleged discrimination beginning on

September 3, 2012, the date Robinson resigned from Pepsi.
2-5.)

11

(Doc.

In

order

Robinson

to

must

make

allege

out
that

a

prima

(1)

facie

she

retaliation

engaged

in

a

claim,

protected

activity; (2) Pepsi took an adverse employment action against
her; and (3) there was a causal link between the two events.
Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 410 (4th
Cir.

2013).

While

Robinson

alleges

that

she

filed

an

EEOC

charge, which constitutes protected activity, she has failed to
allege

any

facts

employment

that

could

plausibly

The

amended

action.

unintelligible.

It

includes

amount

to

complaint

conclusory

an
is

adverse
largely

allegations

such

as

claims that Pepsi “caused interference with [Robinson’s] other
employment

prospects.”

(Doc.

19

at

4.)

The

only

factual

allegation consistent with a retaliation claim is that Pepsi
“intentionally ignored [Robinson’s] initiative of getting [her]
401K.”

(Id. at 5.)

However, Robinson claimed in her EEOC

charge that she was able to withdraw from her 401(k) beginning
on

December

25,

alleged

in

the

prevent

her

2012.

(Doc.

amended

complaint

from

doing

2-5

so.

at
any

Even

2.)

Robinson

action

Pepsi

construing

has
took

the

not
to

amended

complaint liberally in deference to Robinson’s pro se status, it
fails to allege a plausible retaliation claim.

Thus, Pepsi’s

motion to dismiss the retaliation claim will be granted.
C.
Pepsi

Motion to Strike
moved

to

strike

Robinson’s
12

“Motion

and

Notice

of

Supplement Response to Defendants Motion to Dismiss” pursuant to
Federal

Rule

of

Civil

Procedure

12(f)

constitutes an impermissible surreply.

on

the

ground

it

The court’s Local Rules

“only allow for the filing of a motion, a response to a motion,
and a reply.”

DiPaulo v. Potter, 733 F. Supp. 2d 666, 670

(M.D.N.C. 2010) (citing Local Rules 7.3 & 56.1).
arguments

are

asserted

in

the

opposing

there is no right to file a surreply.

party’s

Id.

Unless new
reply

brief,

Because Robinson’s

filing constitutes a surreply and no new arguments were raised
in

Pepsi’s

reply

brief,

Pepsi’s

motion

to

strike

will

be

granted. 3
III. CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that Robinson’s first two motions to seal
(Docs. 20, 33) are DENIED, her final motion to seal (Doc. 41) is
GRANTED, and her motion to amend the complaint (Doc. 17) is
GRANTED for the purpose of considering Pepsi’s second motion to
dismiss (Doc. 28).
IT IS FURTHER ORDERED that Pepsi’s first motion to dismiss
(Doc. 12) is DENIED AS MOOT, its second motion to dismiss (Doc.
28)

is

GRANTED,

its

motion

to

3

strike

(Doc.

45

at

9-10)

is

Robinson purports to file the Supplement pursuant to Rule 15(d).
However, that Rule only applies to supplemental pleadings describing
events “that happened after the date of the pleading to be
supplemented.” The substance of the Supplement filed by Robinson does
not contain any new events; it thus cannot be a supplemental pleading
under Rule 15(d).

13

GRANTED, its motion for a hearing (Doc. 46) is DENIED insofar as
a hearing would not aid in the decisional process, and the case
is DISMISSED WITH PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
May 19, 2014

14