LEAK v. HOUSING AUTHORITY OF WINSTON SALEM et al

Filing 4

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/02/2013; that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docke t Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that the Complaint's federal claims be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and its state-law claims be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). (Garland, Leah)

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

CHRISTOPHER LEAK,
Plaintiff,
v.
HOUSING AUTHORITY OF
WINSTON-SALEM, et al.,
Defendants.

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1:13CV837

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 2).
The Court will grant Plaintiff’s request to proceed as a pauper for
the limited purpose of recommending dismissal of his federal claims
under 28 U.S.C. § 1915(e)(2)(B)(ii) and dismissal without prejudice
of his state-law claims pursuant to 28 U.S.C. § 1367(c)(3).1
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
1

Plaintiff’s Application does not fully address several
questions, most notably by referencing bankruptcy proceedings in
questions 5 and 8 without indicating the amounts owed by or to
Plaintiff. (See Docket Entry 1 at 2.) However, in light of the
recommendation of dismissal, no need exists to address this matter
further.

because his poverty makes it impossible for him to pay or secure
the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953

(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).

“Dispensing with filing fees,

however, [is] not without its problems.
the statute

d[o]

not face

ordinary litigants.

the

same

Parties proceeding under
financial

constraints

as

In particular, litigants suing in forma

pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).
To

address

this

concern,

the

in

forma

pauperis

statute

provides, in relevant part, that “the court shall dismiss the case
at any time if the court determines that – . . . (B) the action or
appeal – . . . fails to state a claim on which relief may be
granted . . . .”

28 U.S.C. § 1915(e)(2).

A complaint falls short

when it does not “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 (2009) (emphasis added)
(internal citations omitted) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

This standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In
other words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal

2

conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Id.2

The Court may also anticipate affirmative defenses that

clearly appear on the face of the complaint.

Nasim, 64 F.3d at

955.
DISCUSSION
Plaintiff’s Complaint names the Housing Authority of WinstonSalem and fourteen of its employees as Defendants.
2

at

1,

3.)

It

asserts

claims

for

(Docket Entry

race-based

employment

discrimination and retaliation under Title VII and 42 U.S.C. §
1981.

(Id. at 4, 15.)

The Complaint further alleges state-law

claims for wrongful discharge in violation of public policy and
intentional infliction of emotional distress.

(Id. at 13-16.)

As

factual matter supporting these allegations, the Complaint offers

2

Although the Supreme Court has reiterated that “[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 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (applying Twombly in dismissing
pro se complaint); accord Atherton v. District of Columbia Office
of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se
complaint . . . ‘must be held to less stringent standards than
formal pleadings drafted by lawyers.’
But even a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (quoting
Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 679,
respectively)).
3

a rambling narrative of Plaintiff’s difficulties with his coworkers
and supervisors, ultimately resulting in his termination.

(Id. at

6-13.)
According to the Complaint, Plaintiff’s difficulties in his
job as a maintenance technician began when he disagreed with his
coworkers as to the correct method to repair an air conditioner
during his fourth day on the job and he then reported said
coworkers to a supervisor.

(Id. at 6.)

As a result, “from that

day forward [Plaintiff’s] co[]workers alienated him.

Also he was

not included in regular repairs and shared maintenance duties while
the same unqualified coworkers continue[d] to service Central Air
units at the Complex.”
supervisor

(Id. at 7.)

subsequently

The Complaint alleges that a

transferred

Plaintiff

to

work

in

a

different apartment complex “in an attempt to cover up retaliatory
acts, [d]iscrimination, and the Clean Air Act Title VI infractions
. . . .”

(Id.)

At the second complex, Plaintiff allegedly requested that his
supervisor “provide to him commercial grade latex gloves and not
the one size fit all gloves from the local Home Depot that would
not properly fit [] Plaintiff[’]s hands and would on occasion
rupture” and later “complained to the Property Manager Karen McCain
on several occasion[s] concerning [that supervisor’s] lack of
support, misconduct[,] and . . . aggressive behavior toward []
Plaintiff.”

(Id. at 9.)

4

According

to

the

Complaint,

Plaintiff

later

apparently

irritated two residents of the complex while servicing their air
conditioner.

(See

id.

at

10-11.)

Subsequently,

Plaintiff

allegedly “request[ed] [his supervisor] Mrs. McCain to have Matthew
the Air Conditioner Manager perform service or give his opinion to
what his findings were because the two [residents] did not heed his
professional advice.”

(Id. at 11.)

On that same day, “Plaintiff also asserts that Mrs. McCain was
the only person who was unprofessional dealing with [] [P]laintiff,
yelled, pointed her finger in [his] face to provoke work place
discord and violence.”

(Id. at 12.)

Plaintiff allegedly “walked

off to avoid making the situation worst [sic],” but Mrs. McCain
followed him and “continued yelling and pointing her finger in []
Plaintiff[’]s face stating she was the boss and that she could say
and do as she will until [] Plaintiff assert[ed] [him]self and
asked Mrs. McCain [to] stop putting her finger in his face and
stated she does not have the authority to do anything she wants to
say and do with him.”

(Id.)

this

McCain

incident,

notice.

Mrs.

(Id. at 13.)

The Complaint alleges that, following
suspended

Plaintiff

until

further

Plaintiff allegedly received an official

termination letter several days later.

(Id.)

Both Title VII and § 1981 provide a cause of action for racebased employment discrimination.

However, “Title VII [and by

logical extension, § 1981] . . . does not set forth a ‘general

5

civility code for the American workplace.’”

Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).

To the

contrary, Title VII and § 1981 require an employee claiming race
discrimination to show that an adverse employment action occurred
“because of” race.

42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981;

see also Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 54445 & n.3 (4th Cir. 2003) (discussing fact that, under Title VII and
§ 1981, “the ultimate question [is] whether [the] plaintiff has
proved that the defendant intentionally discriminated against her
because

of

her

race”

(internal

brackets

and

quotation

marks

omitted)).
In this case, however, the Complaint offers no facts showing
that Defendants mistreated or terminated Plaintiff because of his
race.

It indicates that “Plaintiff was the only African American

Maintenance Technician on the Piedmont [P]ark maintenance work
force” (Docket Entry 2 at 6), but it does not give the race of any
of Plaintiff’s supervisors (see id. at 6-13).
the

interactions

between

Plaintiff

and

Moreover, none of

his

coworkers

and

supervisors have any identifiable racial component. (See id.) Nor
would the mere allegation that a supervisor of one race treated an
employee of a different race rudely present a plausible claim of
discrimination. See, e.g., Hawkins v. Pepsico, Inc., 203 F.3d 274,
282 (4th Cir. 2000) (declaring that the “[l]aw does not blindly

6

ascribe to race all personal conflicts between individuals of
different races”).
Moreover, the face of Plaintiff’s Complaint clearly identifies
a

“legitimate,

nondiscriminatory

reason”

for

his

negative

interactions in the workplace culminating in his discharge.

See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)
(explaining that, under Title VII, employer may rebut employee’s
prima facie case of discrimination by giving legitimate reason for
adverse employment action); see also Patterson v. McLean Credit
Union, 491 U.S. 164, 186-87 (1989) (adopting same standard for §
1981).

Specifically,

the

Complaint

indicates

that

Plaintiff

angered his coworkers by asserting they were not performing their
job

responsibilities

properly

and

“from

that

day

forward

[Plaintiff’s] co[]workers alienated him.” (Docket Entry 2 at 6-7.)
The Complaint also details that Plaintiff engaged in behavior that
(rightly or wrongly) angered his supervisors and residents of the
complex.

(See id. at 8-12.)

Thus, although Plaintiff’s Complaint

details several incidents that ultimately led to his discharge,
none of them involved discrimination based on race.
Similarly, retaliation claims under Title VII and § 1981
require an employee to show that an adverse employment action
occurred because the employee engaged in a protected activity under
the same statutes.

Bryant, 333 F.3d at 543-44.

Plaintiff’s

Complaint alleges “retaliation for[] his r[a]ising safety concerns,

7

as well as his reporting safety complaints to the Defendants[’]
agents.”

(Docket Entry 2 at 14.)

It details several instances of

“retaliation” in response to his complaints that his coworkers and
supervisors did not perform their jobs correctly, failed to follow
various safety and environmental regulations, or neglected to
provide him with the proper equipment.

(See id. at 7, 8-9, 11.)

However, reporting a safety or environmental violation does not
constitute a protected activity under Title VII or § 1981 and thus
cannot alone form the basis for a retaliation claim under these
statutes.

See, e.g., Rodriguez v. Beechmont Bus Serv., Inc., 173

F. Supp. 2d 139, 150 (S.D.N.Y. 2001) (dismissing Title VII claim
based

on

retaliation

in

response

to

cooperation

with

OSHA

investigation because “unsafe working conditions are not made
unlawful under Title VII”).
In

sum,

simply

invoking

the

terms

“discrimination”

or

“retaliation” does not suffice to state a claim. See, e.g., Iqbal,
556 U.S. at 678 (“[T]he tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to
legal

conclusions.”).

The

Complaint

thus

fails

to

state

a

plausible claim for race discrimination or retaliation under Title
VII or § 1981.
Plaintiff’s only remaining claims arise under state law.
“[I]n any civil action of which the district courts have original
jurisdiction, the district courts have supplemental jurisdiction

8

over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same
case

or

controversy

under

Article

III

of

the

United

States

Constitution.” 28 U.S.C. § 1367(a). However, “the district courts
may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if . . . the district court has dismissed all
claims over which it has original jurisdiction.”
1367(c)(3).

28 U.S.C. §

“It has consistently been recognized that pendent

jurisdiction is a doctrine of discretion, not of plaintiff’s right
. . . . [I]f the federal claims are dismissed before trial, even
though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.”

United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 726 (1966).

In light of the recommended

dismissal of the federal claims at the pleading stage and the
absence of grounds for the exercise of diversity jurisdiction,3 the
Court should decline to exercise supplemental jurisdiction over
Plaintiff’s state-law claims and, instead, should dismiss those
claims without prejudice.4

3

The Complaint identifies Plaintiff as a resident of Forsyth
County, North Carolina, and Defendant as both incorporated in North
Carolina and having its principal place of business in WinstonSalem, North Carolina. (Docket Entry 2 at 5.) Such circumstances
cannot satisfy the diversity jurisdiction statute. See 28 U.S.C.
§ 1332(a).
4

To the extent statute of limitations concerns may apply to
Plaintiff’s refiling of the remaining claims in state court, 28
U.S.C. § 1367(d) provides: “The period of limitations for any claim
asserted under subsection (a), and for any other claim in the same
9

CONCLUSION
Plaintiff’s Complaint fails to state a claim for any federal
cause of action.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that the Complaint’s federal claims be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and its statelaw claims be dismissed without prejudice pursuant to 28 U.S.C. §
1367(c)(3).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 2, 2013

action that is voluntarily dismissed at the same time as or after
the dismissal of the claim under subsection (a), shall be tolled
while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.”
10