MOBLEY v. AAA COOPER TRANSPORTATION et al
Filing
39
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 02/25/2015; that Defendants' Motions to Dismiss (Docs. 15 , 17 , 27 , and 33 ) are GRANTED and that this case is DISMISSED against all Defendants. FURTHER ORDERED that Plaintiff's Motion for Entry of Default Judgment (Doc. 26 ) is DENIED. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DIJON MAURICE MOBLEY,
Plaintiff,
v.
AAA COOPER TRANSPORTATION,
STEVE IMMEL, CHRIS DUGAN,
WYNN BEASLEY, US HEALTHWORKS,
and DR. VICTOR KORANG,
Defendants.
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1:14CV136
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff DiJon Maurice Mobley (“Plaintiff”), proceeding
pro se, filed a Complaint on February 18, 2014, alleging that
his employer and other individuals (1) violated the Americans
with Disabilities Act of 1990, codified as amended at 42 U.S.C.
§ 12101 et seq. (“ADA”); (2) committed libel and slander during
an administrative hearing; (3) falsified federal documents; (4)
conspired to falsify those documents; and (5) harassed Plaintiff
by threatening to inflict bodily harm.
(Doc. 1).)
(Complaint (“Compl.”)
In his Complaint, Plaintiff names five defendants:
(1) AAA Cooper Transportation (“AAA Cooper”); (2) Steve Immel;
(3) Chris Dugan; (4) Wynn Beasley; (5) U.S. HealthWorks; and (6)
Dr. Victor Korang (collectively “Defendants”).
(Id.)
Presently before this court are a number of motions filed
by the parties, and due to the number and nature of these
filings, this court takes time to explain the various filings in
detail.
Defendants Immel and Dugan have each made a limited special
appearance to file separate Motions to Dismiss for Insufficient
Service of Process pursuant to Rule 12(b)(5) and for Failure to
State a Claim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
(Docs. 15, 17.)
Plaintiff has responded to
each motion (Docs. 23, 24), and Defendant Immel and Dugan have
each filed a reply.
(Docs. 31, 32.)
These motions are now ripe
for adjudication.
Defendant AAA Cooper has made a limited special appearance
to file a Motion to Dismiss for Lack of Subject Matter
Jurisdiction pursuant to Rule 12(b)(1), for Lack of Personal
Jurisdiction pursuant to Rule 12(b)(2), for Insufficient Service
of Process pursuant to Rule 12(b)(5), and for Failure to State a
Claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
procedure.
(Doc. 27.)
A Roseboro letter was sent to Plaintiff
on May 27, 2014, warning him of the consequences of not
responding to this dispositive motion.
(Doc. 30.)
Nonetheless,
Plaintiff has not responded to Defendant AAA Cooper’s Motion to
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Dismiss.
Despite the lack of response, this court considers
this motion ripe for adjudication.
Defendants U.S. HealthWorks and Korang filed an answer to
Plaintiff’s Complaint.
(Doc. 14.)
These Defendants then filed
a joint Motion to Dismiss for Failure to State a Claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
33.)
(Doc.
Again, a Roseboro letter was sent to Plaintiff on July 3,
2014 (Doc. 35), and Plaintiff has not responded to this Motion
to Dismiss.
This motion is now ripe for adjudication.
This court has considered each motion filed by the parties,
and for the following reasons, this court will grant the various
Motions to Dismiss filed by the Defendants.
Accordingly, this
case will be dismissed.
There are two other matters before this court that require
attention.
First, before Defendant AAA Cooper filed its Motion
to Dismiss, Plaintiff entered a Motion for Default Judgment
against Defendant AAA Cooper.
(Doc. 26.)
This court recognizes
that Defendant AAA Cooper filed its motion well after the
extended deadline allowed by the Magistrate Judge (see Order
(Doc. 12) at 2), but this court nonetheless finds that Defendant
AAA Cooper cured the default by filing its Motion to Dismiss
before this court entered default.
Although this court has an
interest in preventing delays and enforcing filing deadlines,
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this court is hesitant to enter default, as the Federal Rules of
Civil Procedure enforce “the sound public policy of deciding
cases on their merits,” see Reizakis v. Loy, 490 F.2d 1132, 1135
(4th Cir. 1974); see also Colleton Preparatory Acad., Inc. v.
Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010), and
as a result, “default judgments are not favored,” see Trueblood
v. Grayson Shops of Tenn., Inc., 32 F.R.D. 190, 195-96 (E.D. Va.
1963).
Therefore, this court will not enter a default judgment
against Defendant AAA Cooper, and Plaintiff’s motion asking this
court to do so will be denied.
Second, Defendant Beasley has not responded in any way to
Plaintiff’s Complaint.
A summons for Defendant Beasley was
issued on February 18, 2014 (Doc. 3), and then reissued on
May 12, 2014 (Doc. 25).
On January 27, 2015, this court gave
notice that, even though Defendant Beasley had not filed a
motion to dismiss, it was contemplating whether the claims
against Defendant Beasley could be dismissed for the same
reasons put forth by the other Defendants’ Motions to Dismiss.
(Doc. 36.)
Plaintiff responded on February 6, 2015, pointing
this court to Plaintiff’s Motion for Default Judgment without
any further explanation.
(Doc. 37.)
This court is somewhat
perplexed by Plaintiff’s response as Plaintiff’s Motion for
Default Judgment mentions Defendant Beasley but only asks that
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default be entered against Defendant AAA Cooper.
Mot. for Default J. (Doc. 26) at 1, 3.)
(See Pl.’s
As a result, Plaintiff
has not responded with reason why this court should not consider
dismissing the claims as to Defendant Beasley.
In considering how to address the case as to Defendant
Beasley, this court recognizes the need to avoid logically
inconsistent judgments, such as the claims as to one defendant
being dismissed but default being entered to a
closely-interrelated defendant.
See Jefferson v. Briner, Inc.,
461 F. Supp. 2d 430, 433-39 (E.D. Va. 2006) (citing Frow v. De
La Vega, 82 U.S. (15 Wall.) 552, 554 (1872); United States ex
rel. Hudson v. Peerless Ins. Co., 374 F.2d 942 (4th Cir. 1967)
(finding that when co-defendants are alleged to be “closely
interrelated,” and one of the multiple defendants “establishes
that plaintiff has no cause of action or present right of
recovery, the defense generally inures also to the benefit of a
defaulting defendant[]” (internal quotations marks omitted)).
Plaintiff’s claims against Defendant Beasley are “closely
interrelated” with those made against Defendant Immel and
Defendant AAA Cooper.
(See Compl. (Doc. 1) at 3 (alleging that
Defendant Beasley, in his role as “agent” of Defendant AAA
Cooper, prevented Plaintiff from receiving permanent work status
and medical benefits).)
Therefore, this court will consider
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whether all claims should be dismissed as to Defendant Beasley
as well.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
At the motion to dismiss stage, this court is to examine
the pleadings and consider all facts in the light most favorable
to Plaintiff.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Doing so, this court finds that Plaintiff was employed as a
probationary truck driver by Defendant AAA Cooper.
Defendant
Korang, a doctor affiliated with Defendant U.S. HealthWorks,
conducted Plaintiff’s pre-employment physical examination on
March 27, 2012.
At that time, Plaintiff was diagnosed with
potential sleep apnea and told to seek out a sleep study to
confirm the diagnosis.
Defendant Korang said he would not
provide the medical examiner’s certificate or “DOT medical card”
until Plaintiff had the sleep study conducted.
(Compl. (Doc. 1)
at 3.)
After the physical exam, Defendant Korang approved
Plaintiff’s provisional commercial driver’s license for three
months.
This allowed Plaintiff to drive for Defendant AAA
Cooper during his eight-week probationary period.
Plaintiff
believed that he would be hired by Defendant AAA Cooper at the
end of his probationary period, and with the insurance provided
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by Defendant AAA Cooper, he would obtain the sleep study before
his provisional license expired. (Id.
At the end of Plaintiff’s probationary period - on or about
May 22, 2012 - Defendant Beasley, an “agent” of Defendant AAA
Cooper, denied Plaintiff permanent employment with the company,
even though Plaintiff claims he met all relevant requirements
for permanent status.
Without permanent employment, Plaintiff
did not have medical benefits, and without medical benefits,
Plaintiff was unable to pay for the sleep study.
Without the
sleep study, Plaintiff could not obtain his DOT medical card or
his permanent commercial license. (Id.)
Despite being denied full-time employment, Plaintiff
continued to work for Defendant AAA Cooper.
Plaintiff’s
provisional license was extended for three more months, after
Defendant Immel, another “agent” of Defendant AAA Cooper,
“coerce[d]” Defendant Korang to extend his DOT medical card.
According to Plaintiff, Defendant Immel convinced Defendant
Korang to extend the DOT medical card by explaining that the
sleep study would take an additional six weeks to complete.
Plaintiff continued to drive for Defendant AAA Cooper, increased
his hours to cover shifts for other drivers, picked up two extra
stops to cover for a less efficient driver, and trained a new
employee.
(Id. at 4.)
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However, in September 2012, after the additional three
months had expired, Defendant Korang did not renew Plaintiff’s
commercial driver’s license.
Plaintiff was no longer legally
allowed to drive commercial vehicles, and his employment with
Defendant AAA Cooper was terminated on or about September 27,
2012.
(Def. AAA Cooper’s Mot. to Dismiss, Ex. C, EEOC Charge
(Doc. 27-3) at 2.)1
In addition to the adverse employment
decision that occurred, Plaintiff also claims that, during his
employment, Plaintiff was twice threatened with bodily harm by
Defendant Dugan. (Compl. (Doc. 1) at 5.)2
As early as October 1, 2012, Plaintiff brought his case
before the North Carolina Employment Security Commission
(“NCESC”) and then appealed the decision of the NCESC.
Some of
Plaintiff’s claims pertain to what was said during the NCESC
hearing.
Plaintiff claims Defendant Immel told the NCESC that
Plaintiff had quit his job because Plaintiff did not want to get
the required sleep study.
Plaintiff also alleges that Defendant
Immel admitted to the NCESC that he “called US Health Works on
Friendly Ave. in Greensboro[,] NC, and had [Plaintiff’s] medical
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
1
2
Plaintiff did not raise this claim of harassment in his
Charge of Discrimination with the Equal Employment Opportunity
Commission. (See EEOC Charge (Doc. 27-3) at 2.)
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card extended to the benefit of [Immel] and AAA Cooper
Transportation.”
(Compl. (Doc. 1) at 4).
On April 9, 2013, Plaintiff then filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”).
(EEOC Charge (Doc. 27-3) at 2.)
On November 20,
2013, the EEOC dismissed the charge, finding that “the EEOC is
unable to conclude that the information obtained establishes
violations of the statutes.”
of Rights (Doc. 1-1) at 1.)
(Compl., EEOC Dismissal & Notice
The EEOC Notice also explained that
Plaintiff had 90 days to file his lawsuit, and Plaintiff filed
suit in this court on February 18, 2014. (Id.)
After filing his lawsuit, Plaintiff filed summons for all
named Defendants on February 18, 2014.
(Doc. 3.)
Later,
however, Plaintiff re-issued summons against Defendants AAA
Cooper, Beasley, Dugan, and Immel.
II.
(Doc. 25.)
MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS
Defendants AAA Cooper, Dugan, and Immel have made Motions
to Dismiss for Insufficient Service of Process pursuant to Rule
12(b)(5).
(See Docs. 15, 17, 27.)
This court must take this
matter up first, as “a failure to obtain proper service on the
defendant deprives the court of personal jurisdiction over the
defendant.”
1998).
Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir.
Without personal jurisdiction, any judgment that this
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court may enter against a defendant would be void.
07.
Id. at 306–
Therefore, this court will determine whether Defendants AAA
Cooper, Dugan, and Immel were properly served before addressing
the merits of Plaintiff’s claims.
A.
Legal Standard
For service on an individual defendant within the United
States to be proper and sufficient, the plaintiff must either
have the defendant served personally, leave a copy of the
materials “at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there,”
deliver the materials to an agent authorized to accept the
service on defendant’s behalf, or conduct service as allowed
under the laws of the state where the district court is located.
Fed. R. Civ. P. 4(e).
To serve a corporation, plaintiff must
either deliver the materials “to an officer, a managing or
general agent, or any other agent” authorized to accept service
on behalf of the corporation or serve the corporation in some
other way that complies with state law.
Fed. R. Civ. P. 4(h).
Although service is necessary to give this court personal
jurisdiction, the Fourth Circuit has explained:
When the process gives the defendant actual notice
of the pendency of the action, the rules, in
general, are entitled to a liberal construction.
When there is actual notice, every technical
violation of the rule or failure of strict
compliance may not invalidate the service of
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process. But the rules are there to be followed,
and plain requirements for the means of effecting
service of process may not be ignored.
Armco, Inc. v. Penrod–Stauffer Bldg. Sys., Inc., 733 F.2d 1087,
1089 (4th Cir. 1984).
Defendants AAA Cooper, Dugan, and Immel
were on notice of the current proceeding, as they have made
limited special appearances in the matter.
(See, e.g., Mot. for
Extension of Time (Doc. 10) (making a limited special appearance
to ask for more time to file a responsive pleading).)
Therefore, this court must determine whether Plaintiff has
substantially complied with the rules of service to give this
court jurisdiction over claims against these Defendants.
B.
Defendant AAA Cooper
Defendant AAA Cooper is an Alabama corporation, with its
principal place of business in Dothan, Alabama. (Def. AAA
Cooper’s Mot. to Dismiss, Ex. B, N.C. Sec’y of State Report
(Doc. 27-2) at 2.)
Registered Agent Solutions, Inc., in
Raleigh, North Carolina, is Defendant AAA Cooper’s registered
agent in North Carolina.
(Id.)
On May 12, 2014, Plaintiff re-issued a summons to Defendant
AAA Cooper, mailing the summons to Defendant AAA Cooper’s
principal place of business in Dothan, Alabama.
Summons (Doc. 25) at 1.)
(Reissued
The summons was not addressed to a
specific individual but to “Registered Agent.”
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(Id.)
Although
Defendant AAA Cooper admits that it received the summons on
May 16, 2014, Defendant AAA Cooper claims it has not been served
properly, as the summons does not meet the requirement that it
be addressed to “an officer, director, or managing agent.”
(Def. AAA Cooper’s Mot. to Dismiss (Doc. 27) at 1.)
This court recognizes that other courts in this district
have dismissed for insufficient service of process, due to the
summons not being directed or addressed to an officer, director,
or agent.
See, e.g., Benitez v. Maxim Healthcare Servs., No.
1:12CV1195, 2013 WL 3441734, at *3 (M.D.N.C. July 9, 2013).
Additionally, this court’s analysis is further hindered by the
fact that Plaintiff has not responded to Defendant AAA Cooper’s
Motion to Dismiss or offered any sort of affidavit that might
comply with N.C. Gen. Stat. § 1-75.10(a)(6) and prove that the
service was proper.
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Nonetheless, this court finds that service was sufficient
in this instance.3,4
Defendant AAA Cooper was aware of this
action and has responded.
Plaintiff mailed service to Defendant
AAA Cooper’s principal place of business.
While Plaintiff
should have addressed process to a particular officer, director,
3
In addition to its claim of insufficient service of
process, Defendant AAA Cooper makes arguments that this court
does not have subject matter jurisdiction over this case or
personal jurisdiction over Defendant AAA Cooper. However, this
court finds these challenges are without merit. Defendant AAA
Cooper claims that this court does not have subject matter
jurisdiction over Plaintiff’s ADA claim, as Plaintiff’s Charge
of Discrimination with the EEOC was not timely filed. (Def. AAA
Cooper’s Mot. to Dismiss (Doc. 27) at 2.) However, the Supreme
Court has long held that timely filing is a requirement of a
claim of discrimination, but it is not a jurisdictional
requirement. See Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982). Accordingly, this court will not grant
Defendant AAA Cooper’s Motion to Dismiss based on Lack of
Subject Matter Jurisdiction. Furthermore, Defendant AAA Cooper
claims that this court lacks personal jurisdiction based on the
insufficiency of service. (Def. AAA Cooper’s Brief in Supp. of
Mot. to Dismiss (“Def. AAA Cooper’s Mem.”) (Doc. 28) at 6.)
This court has found that Plaintiff substantially complied with
the service requirements, and as a result, this court will not
grant Defendant AAA Cooper’s Motion to Dismiss based on Lack of
Personal Jurisdiction.
This holding is limited to the specific facts and
circumstances of this case and should not be construed as
significant precedent in this court. Here, the actual notice
requires “liberal construction” (Armco, supra), and Plaintiff’s
pro se status also requires liberal construction. Thus, the
interplay of both levels of liberal construction creates a
difficult analysis. In light of this court’s finding that
dismissal is appropriate on the merits, this court has chosen to
analyze the applicable rules liberally and in a manner not
likely to be repeated often, if at all. The service of process
rules are important and should be enforced in accordance with
Fourth Circuit precedent.
4
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or agent, this court will not quash the summons as to Defendant
AAA Cooper based on this mistake.
Additionally, this court
recognizes that this issue is somewhat mooted as this court has
found that the case should be dismissed on the merits.
C.
Defendants Dugan and Immel
Defendants Immel and Dugan are individual defendants, and
they also claim that they have not been properly served.
After
originally mailing the summons of Defendants Immel and Dugan to
their place of employment by mistake, Plaintiff claims that he
rectified this error by serving Defendants properly and doing so
within the 120-day window from the date the summons was issued meaning before June 18, 2014.
to Dismiss (Doc. 23) at 2.)
(Pl.’s Resp. to Def. Immel’s Mot.
Plaintiff re-served Defendants
Immel and Dugan on May 12, 2014, by mailing service to their
home addresses.
(Doc. 25.)
Despite being re-served, Defendants
Immel and Dugan protest that this service was ineffective
because it was mailed by Plaintiff and not a non-party,
violating Rule 4(c)(2) of the Federal Rules of Civil Procedures.
See Fenner v. John Umstead Hosp., No. 1:09CV977, 2014 WL 257274,
at *3 n.4 (M.D.N.C. Jan. 23, 2014) (finding service defective
for being mailed by a party).
Although this court recognizes that the service was
technically defective since it was mailed by a party, this court
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is willing to construe the requirements of Rule 4 liberally
because Defendants Immel and Dugan have had actual notice of
this action since at least March 11, 2014, when they filed a
motion for extension of time to respond to the Complaint.
10.)
(Doc.
Therefore, this court will not dismiss the action or quash
the summons as to Defendants Immel and Dugan based on
insufficient service of process.
III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Along with the challenges based on insufficient service of
process, Defendants have moved to dismiss all claims made by
Plaintiff for failure to state a claim.
This court will address
the plausibility of each claim made by Plaintiff in turn.
A.
Legal Standard
When considering a motion to dismiss, this court must
accept the non-moving party’s factual allegations as true.
Erickson v. Pardus, 551 U.S. 89, 91 (2007).
Granting a motion
under Rule 12(b)(6) is proper when the complaint’s factual
allegations, read as true, fail as a matter of law to state a
plausible claim for relief.
678 (2009).
Ashcroft v. Iqbal, 556 U.S. 662,
For instance, a defendant’s Rule 12(b)(6) motion
may raise the affirmative defense that a claim is time-barred,
but only if the time bar is apparent from the face of the
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complaint.
Farley v. CSX Transp., Inc., 144 Fed. Appx. 962, 963
(4th Cir. 2005).
The burden, however, remains on Plaintiff “to allege facts
sufficient to state all the elements of [Plaintiff’s] claim.”
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003).
“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.”
Iqbal, 556 U.S. at 678.
However, a court
is not required to accept “[t]hreadbare recitals of the elements
of a cause of action supported by mere conclusory statements.”
Id.
Although courts must be more liberal in construing pro se
pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se
plaintiff’s complaints must nonetheless assert “that each of the
elements is present in order to be sufficient.”
Iodice v.
United States, 289 F.3d 270, 281 (4th Cir. 2002).
B.
ADA Claim
This court first considers Plaintiff’s ADA claim.
Plaintiff may only assert ADA claims against his employer, and
this court must dismiss claims made against individual
defendants or corporate defendants who do not employ Plaintiff.
See 42 U.S.C. § 12111(2) (defining “covered entity” as “an
employer”); id. § 12112(a) (“No covered entity shall
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discriminate against a qualified individual on the basis of
disability . . . .”).
Plaintiff’s Complaint alleges that
Defendants Dugan, Immel, and Beasley are employees or “agents”
of Defendant AAA Cooper and are being sued in their individual
capacities.
The ADA does not authorize such a suit, and this
court must dismiss Plaintiff’s ADA claim as to these three
employees.
1999).
See Baird v. Rose, 192 F.3d 462, 471–72 (4th Cir.
Additionally, Plaintiff does not allege that Defendant
U.S. HealthWorks and its employee, Defendant Korang, were
Plaintiff’s employer, and this court must also dismiss the ADA
claim as to these two defendants.
See Posante v. LifePoint
Hosps., Inc., No. 4:10-CV-00055, 2011 WL 3679108, at *3 (W.D.
Va. Aug. 23, 2011) (“Because there is no evidence to support the
conclusion that LifePoint was Plaintiff's employer or controlled
his employment in any regard, LifePoint is entitled to summary
judgment on all counts arising under the ADA.”).
Therefore, the only defendant against whom Plaintiff may
assert an ADA claim is his former employer, Defendant AAA
Cooper.
Defendant AAA Cooper asks this court to dismiss
Plaintiff’s ADA claim because Plaintiff’s charge of
discrimination was not timely filed with the EEOC.
Cooper’s Mot. to Dismiss (Doc. 27) at 2.)
(Def. AAA
Since the
untimeliness of an EEOC Charge is an affirmative defense raised
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by Defendant AAA Cooper, this court must determine whether there
is information contained within the Complaint which shows that
the claim is time-barred.
Under the ADA, a plaintiff must file a charge of
discrimination with the EEOC within 180 days of the alleged
discriminatory activity.
See 42 U.S.C. § 12117(a)
(incorporating by reference the Title VII timing requirements
laid out in 42 U.S.C. § 2000e-5); Sydnor v. Fairfax Cnty., Va.,
681 F.3d 591, 593 (4th Cir. 2012).
The Supreme Court has made
clear that untimely claims are subject to dismissal, indicating
that “[p]rocedural requirements established by Congress for
gaining access to the federal courts are not to be disregarded
by courts.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147,
152 (1984) (per curiam); see also Mohasco Corp. v. Silver, 447
U.S. 807, 826 (1980); Suarez v. Charlotte-Mecklenburg Sch., 123
F. Supp. 2d 883, 887 (W.D.N.C. 2000).
However, “filing a timely charge of discrimination with the
EEOC is . . . a requirement that, like a statute of limitations,
is subject to waiver, estoppel, and equitable tolling.”
Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
Moreover, in the context of a “continuing violation” claim, the
Supreme Court has held that, even though “the statute precludes
recovery for discrete acts of discrimination or retaliation that
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occur outside the statutory time period,” courts should consider
“the entire scope of a hostile work environment claim, including
behavior alleged outside the statutory time period . . . for the
purposes of assessing liability.”
Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 105 (2002).
Therefore, this court must
examine the particulars of Plaintiff’s complaint and the time in
which it was filed to determine if Plaintiff’s Complaint is
self-defeating in showing that the EEOC Charge was untimely.
Plaintiff’s Complaint does not mention a specific date for
his termination, but the Complaint does suggest that he was
already seeking unemployment benefits by October 1, 2012.
(Compl. (Doc. 1) at 4.)
Defendant AAA Cooper has submitted
Plaintiff’s EEOC Charge (Doc. 27-3), which this court can
consider in evaluating its motion to dismiss.5
Based on
Plaintiff’s EEOC Charge, it appears that Plaintiff was
terminated on or about September 27, 2012. (EEOC Charge (Doc.
27-3) at 2.)
Plaintiff’s EEOC Charge also reveals that
Plaintiff filed the charge of discrimination on April 9, 2013 -
5
The Fourth Circuit has found that a court may consider a
document in determining whether to dismiss the complaint if “it
was integral to and explicitly relied on in the complaint” and
if “the plaintiffs do not challenge its authenticity.” See
Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999).
In this case, Plaintiff’s Complaint explicitly mentions his EEOC
Charge (Compl. (Doc. 1) at 2), and Plaintiff pulls much of his
Complaint from the “particulars” section of the EEOC Charge.
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193 days after the day Plaintiff alleges he was terminated for
not securing the sleep study and not obtaining his permanent
license.6
(Id.)
Because Plaintiff’s EEOC Charge was filed
outside of the 180-day period, Plaintiff has not complied with
the filing requirements of the ADA.
Therefore, this court must
determine whether some factor excuses this untimely filing
before it can consider the merits of Plaintiff’s claim.
First, this court finds that Defendant AAA Cooper has not
waived this defense, as it asserted the defense in its first
responsive pleading to Plaintiff’s Complaint.
Second, the
statutory period is not equitably tolled or extended by the fact
that Plaintiff was pursuing a claim for unemployment benefits
with the NCESC.7
See Int'l Union of Elec., Radio & Mach.
Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S.
229, 236 (1976).
In the NCESC proceeding, Plaintiff was
6
Defendant AAA Cooper claims that “the only alleged
discriminatory employment action took place the week of May 22,
2012, the date [Plaintiff] allegedly was denied ‘permanent
employment status and medical benefits.’” (Def. AAA Cooper’s
Mem. (Doc. 28) at 10 (quoting Compl. (Doc. 1) at 3).) This
court disagrees and considers Plaintiff’s ultimate termination,
which allegedly took place in September 2012, to be an adverse
employment action for purposes of considering the timeliness
issue.
7
“Equitable tolling applies where the defendant has
wrongfully deceived or misled the plaintiff in order to conceal
the existence of a cause of action; equitable estoppel applies
where the defendant engages in intentional misconduct to cause a
plaintiff to miss a filing deadline.” Huff v. N.C. A&T State
Univ., 334 Fed. Appx. 583, 584 (4th Cir. 2009) (per curiam).
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pursuing an independent claim for unemployment benefits, not
asserting his rights under the ADA, and as a result, this court
cannot excuse Plaintiff’s delay in filing his charge of
discrimination with the EEOC.
See id. at 238.
Third, Plaintiff
has presented no evidence that acts of employment discrimination
based on his disability occurred during the statutory period.
As a result, Plaintiff cannot contend that there is some
actionable continuing violation that will allow him to seek
recovery based on his termination in September 2012.
Therefore, this court finds that it must dismiss
Plaintiff’s ADA claim based on the timing requirements of the
ADA.
See McCullough v. Branch Banking & Trust Co., 35 F.3d 127,
131 (4th Cir. 1994).
Furthermore, even if this court assumes that Plaintiff has
filed his EEOC Charge in a timely manner, this court finds that
Plaintiff’s claim would be dismissed on the merits because
Plaintiff cannot demonstrate a prima facie case of
discrimination prohibited by the ADA.
In order to establish a violation of the ADA, Plaintiff
must prove: (1) that he had a disability; (2) that he was
qualified for the driver position; and (3) that Defendant AAA
Cooper rejected him due to discrimination solely on the basis of
his disability.
Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d
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1261, 1264-65 (4th Cir. 1995).
A qualified individual is “an
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”
U.S.C. § 12111(8).
42
Before a court examines whether an
individual can perform “the essential functions” of a position,
it must first determine whether the applicant “satisfies the
prerequisites for the position, such as possessing the
appropriate educational background, employment experience,
skills, licenses, etc.”
29 C.F.R. pt. 1630, app. to
§ 1630.2(m).
Because Plaintiff was applying to drive a commercial motor
carrier, whether he is a “qualified individual” depends on the
requirements imposed by Congress and the United States
Department of Transportation (“DOT”) for drivers of commercial
motor carriers.
See 49 U.S.C. § 31102(b)(1).
The DOT's Federal
Motor Carrier Safety Regulations governing the physical
qualifications of drivers of commercial motor vehicles are set
forth in 49 C.F.R. § 391.41.
Pursuant to these regulations,
drivers of commercial motor vehicles in interstate commerce must
be “medically certified as physically qualified to do so.”
C.F.R. § 391.41(a)(1)(i).
49
To be “physically qualified,” an
individual must both: (1) meet the standards set forth in the
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regulations, that is, not suffer from any of the noted
impairments which may disqualify one from driving a commercial
vehicle; and (2) pass a required medical examination and be
certified by the examining physician.
391.43.
Id. §§ 391.41(a)(3)(i),
Specifically, a “medical examiner is required to
certify that the driver does not have any physical, mental, or
organic condition that might affect the driver's ability to
operate a commercial motor vehicle safely.”
Id. § 391.43(f).
Here, Plaintiff’s Complaint explains that Defendant Korang
conducted Plaintiff’s medical examination and determined that he
could not provide Plaintiff with his DOT medical card until he
reviewed the results of a sleep study.
3.)
(See Compl. (Doc. 1) at
Plaintiff may claim that he “met all requirements for
permanent work status and medical benefits.”
(Id.)
However,
Plaintiff also admits that he was “no longer able to legally
drive tractor trailers” because he failed to receive his DOT
medical card.
(Id.)
Therefore, Plaintiff “may not claim that
he was unlawfully denied employment for a position that he was
deemed not qualified to perform pursuant to applicable federal
regulations.”
See Myers v. J.B. Hunt Transp., Inc., No.
1:05CV00717, 2006 WL 3479001, at *3 (M.D.N.C. Nov. 30, 2006);
see also Campbell v. Fed. Express Corp., 918 F. Supp. 912, 919
(D. Md. 1996).
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As a result, whether it is for the untimely filing of his
EEOC Charge or for not showing that he is a “qualified
individual,” this court finds that it must dismiss Plaintiff’s
ADA claim as to Defendant AAA Cooper, meaning that this claim is
dismissed as to all Defendants.8
C.
Libel and Slander
In his second claim for relief, Plaintiff alleges libel and
slander based on Defendant Immel’s statements to the NCESC and
the EEOC.
Libel and slander are both state law claims, and this
court must determine whether it has jurisdiction to hear this
8
Although the parties have not briefed this issue, this
court is also concerned that Plaintiff has not exhausted his
administrative remedies provided by the DOT. Plaintiff, in his
EEOC Charge, suggests that a Nurse Practitioner told Plaintiff
that he did not have a medical condition. (EEOC Charge (Doc.
27-3) at 2.) The regulations promulgated by the DOT provide an
appeals process for individuals who have not passed the DOT
physical examination and contest the findings of the employer’s
medical professional. See 49 C.F.R. § 391.47(b)(2). A court
within this district held that “‘[e]xhaustion of DOT procedures
should be required’ in circumstances involving driver
certification because driver fitness ‘falls squarely within the
regulatory scheme (and substantive expertise) of DOT.’” Myers,
2006 WL 3479001, at *4 (quoting Campbell v. Fed. Express Corp.,
918 F. Supp. 912, 918 (D. Md. 1996)) (citing Harris v. P.A.M.
Transp., Inc., 339 F.3d 635, 638 (8th Cir. 2003); Prado v.
Cont'l Air Transp. Co., 982 F. Supp. 1304, 1307 (N.D. Ill.
1997)); see also Wilkie v. Golub Corp., No. 1:11-CV-1086
(GLS/RFT), 2013 WL 5354531, at *2 (N.D.N.Y. Sept. 24, 2013). In
the same way, this court finds there may be reason to dismiss
Plaintiff’s claim for not exhausting DOT procedures. See
Harris, 339 F.3d at 637 (affirming dismissal of ADA claim in
similar situation). Nonetheless, because this court finds the
claim should be dismissed on other grounds, this court will not
ask the parties to provide further briefing on this issue.
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claim.
Without jurisdiction under 28 U.S.C. § 1331 or § 1332,
this court has some discretion on whether to exercise
supplemental jurisdiction on the remaining state law claims.
See 28 U.S.C. § 1367(a), (c).
However, because the federal
claim has been dismissed before trial, the supplemental
jurisdiction statute and the Supreme Court decision it codified
have directed that the state claims be dismissed as well.
28
U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966).
Therefore, this court dismisses Plaintiff’s claims
of libel and slander.
D.
Falsifying Federal Documents
In his third and fourth claims for relief, Plaintiff makes
two claims under the heading “Falsification of Federal
Documents,” with one making allegations that Defendant Immel
coerced Defendant Korang to falsify documents and with one
making allegations that Defendants U.S. HealthWorks and Korang
conspired to falsify federal documents.
4-5.)
(Compl. (Doc. 1) at
The crux of these claims is that Defendant Immel “used
the false statement that [Plaintiff’s] sleep testing would take
6 additional weeks” so that Defendant Korang would extend
Plaintiff’s DOT medical card for an additional period.
4.)
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(Id. at
Falsifying federal documents is a federal crime, see United
States v. Wells, 519 U.S. 482, 505 n.3 (1997) (Stevens, J.,
dissenting) (referencing nearly 100 different federal false
statement statutes), but there is no private cause of action
that allows individuals to sue based on those crimes unless the
statute specifically provides one.
See Vasile v. Dean Witter
Reynolds, Inc., 20 F. Supp. 2d 465, 477 (E.D.N.Y. 1998) (“It is
also a general precept of criminal law that unless the statute
specifically authorizes a private right of action, none
exists.”).
Rather than giving individual citizens the right to
sue, “[c]rimes must be prosecuted instead by the appropriate
state or federal prosecutor.”
Smiley v. Parker, Action No.
2:09CV551, 2009 WL 9053209, at *2 (E.D. Va. Nov. 6, 2009),
aff'd, 370 F. App'x 438 (4th Cir. 2010).
Therefore, to the extent Plaintiff attempts to state a
claim for Defendants’ falsification of or conspiracy to falsify
federal documents, this court will dismiss these claims as well.
E.
Harassment Claim
In his fifth claim for relief, Plaintiff claims that he was
harassed by a fellow employee by being threatened with bodily
harm.
There are three significant reasons why this court must
dismiss this claim.
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First, Plaintiff has not alleged that Defendant Dugan
harassed Plaintiff based on his status in a protected class as
required to state a claim under the federal employment
discrimination statutes, such as Title VII and the ADA.
Therefore, this claim does not raise a federal question, and
this court will not exercise supplemental jurisdiction over
Plaintiff’s harassment claim to the extent it is based on state
law for the same reasons this court will not exercise
supplemental jurisdiction over Plaintiff’s claims for libel and
slander.
See supra Part III.C.
Second, to the extent Plaintiff makes a claim of harassment
based on his disability, he did not assert this claim in his
EEOC Charge.
The Fourth Circuit has said that “a failure by the
plaintiff to exhaust administrative remedies concerning a Title
VII claim deprives the federal courts of subject matter
jurisdiction over the claim.”
Jones v. Calvert Grp., Ltd., 551
F.3d 297, 300 (4th Cir. 2009); see also Sydnor, 681 F.3d at 59394 (finding “a plaintiff fails to exhaust his administrative
remedies where . . . his administrative charges reference
different time frames, actors, and discriminatory conduct than
the central factual allegations in his formal suit” (internal
quotation marks omitted)).
The same holds true for ADA claims.
See Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 155 (4th Cir.
-27-
2012) (recognizing that “courts often look to Title VII . . .
for guidance on ADA issues”).
Here, the allegations of physical
harassment do not reasonably relate to the allegation levied in
Plaintiff’s EEOC Charge that he was terminated based on a
failure to receive a sleep study.
Moreover, because the alleged
perpetrator of the harassment, Defendant Dugan, was not
mentioned in the EEOC Charge, the EEOC would not have known to
investigate such claims.
Therefore, Plaintiff has not exhausted
his claim for harassment and this court does not have
jurisdiction to hear such a claim.
Third, to the extent Plaintiff has asserted a claim for
harassment under the ADA, he cannot make out such a claim.
To
show harassment under the ADA, Plaintiff must show first that he
is a qualified individual with a disability.
Corp., 247 F.3d 169, 177 (4th Cir. 2001).
Fox v. Gen. Motors
As noted previously,
Plaintiff did not receive the requisite medical certification
and thus is not a “qualified individual.”
As such, Plaintiff
cannot satisfy the first element of his ADA harassment claim.
See Myers, 2006 WL 3479001, at *3.
Accordingly, this court finds that it must dismiss
Plaintiff’s claim for harassment.
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IV.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motions to Dismiss
(Docs. 15, 17, 27, and 33) are GRANTED and that this case is
DISMISSED against all Defendants.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Entry of
Default Judgment (Doc. 26) is DENIED.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 25th day of February, 2015.
_______________________________________
United States District Judge
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