HOWARD v. AEROTEK STAFFING AGENCY et al
Filing
4
MEMORANDUM OPINION,ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 03/02/2015. IT IS ORDERED that Plaintiff's Application for Leave to Proceed In Forma Pauperis 1 and affidavit/Declaration in Suppo rt of 1 is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. IT IS RECOMMENDED that Plaintiff's federal claims be dismissed pursuant to 28 U.S.C.§ 1915(E)(2)(B) and her state claims be dismissed without prejudice pursuant to 28 U.S.C. § 1367(C)(3). ( Objections to R&R due by 3/19/2015)(Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BELINDA HOWARD,
Plaintiff,
v.
AEROTEK STAFFING AGENCY,
et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
1:14CV951
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 3).
The Court will grant Plaintiff’s request to proceed as a pauper for
the limited purpose of recommending dismissal of her federal claims
under 28 U.S.C. § 1915(e)(2)(B) and dismissal without prejudice of
her state-law claims under 28 U.S.C. § 1367(c)(3).
LEGAL BACKGROUND
“The federal in forma pauperis [‘IFP’] 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 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.
Parties
proceeding under the statute d[o] not face the same financial
constraints as ordinary litigants.
In particular, litigants suing
[IFP] 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 IFP statute provides, in
relevant part, that “the court shall dismiss the case at any time
if the court determines that – . . . (B) the action . . . (ii)
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 conclusions.
elements of
a
cause
of
Threadbare recitals of the
action, supported
statements, do not suffice.”
by
mere
conclusory
Id.1
1
Although “[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
2
DISCUSSION
Plaintiff’s Complaint names Aerotek Staffing Agency, as well
as Jason Pritchard and Megan Goode (both Aerotek employees), as
Defendants.
(Docket Entry 3 at 1-2, 8.)
It states that Defendant
Aerotek placed Plaintiff in a position with ConvaTec, Inc., where
she allegedly suffered race discrimination, violations of wage-andhour laws, and retaliation for reporting her concerns as to each of
the foregoing.
(Id. at 3-6.)2
In support of Plaintiff’s claims,
the Complaint presents the following factual allegations:
1) “[o]n Monday, May 12, 2014[,] [Plaintiff] became employed
with [Defendant] Aerotek [] and placed on a two year assignment
with Conva[T]ec Inc.” (id. at 4);
2) “Annette Holloway (Assistant Plant Manager) . . . offered
[Plaintiff] a shift position of 7-3 Monday thru Friday” (id.);
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) (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)).
2
Plaintiff also filed a nearly identical Complaint against
ConvaTec and several of its employees.
See Howard v. ConvaTec
Inc., No. 1:14CV952-CCE-LPA (Docket Entry 3) (M.D.N.C.).
3
3) during that employment, Plaintiff reported two incidents of
racial discrimination suffered by her co-workers:
i) first, “there were occasions when Aerotek employees
did not want to rotate [according to] department policies and
[were] not forced to do so by Marty Martin (Department Lead)
because
of
discriminatory
reasons”
(id.
at
3);
however,
“[s]ubsequently, Tanice House (Aerotek [e]mployee) reported the
situation to Crystal Long (Department Supervisor) and soon after
proper procedures [were] followed” (id.); and
ii) second, Plaintiff “reported a discriminatory incident
against a ConvaTec mechanic . . . which occurred on or around May
26, 2014, to Crystal Long” (id. at 4);
4) “[o]n June 2, 2014[,] as [Plaintiff] approached the time
clock at approximately 3:10pm having difficulty punching out[,]
Annette Holloway (Assistant Plant Manager) said, ‘You should still
be working’” (id.);
5) “[Plaintiff] replied by asking ‘Why employees[] are not
paid for the extra 10 minutes [they] are required to work every
day?’” (id.)
6) “[a]fter posing a question about pay[,] from June 3,
2014[,] until June 11, 2014[,] [Plaintiff] experienced retaliation
[] by Annette Holloway” (id.), as demonstrated by the following
incidents:
4
i) “[Plaintiff] was followed at 10am ([Plaintiff’s] first
20 minute break) and at 1pm ([Plaintiff’s] second 20 minute break)”
(id.);
ii) “[o]n or before June 5, 2014, upon returning from
[her] 10am break, Annette stood in front of [her] work station in
[her] personal space leaving [her] with just about an inch to
squeeze by her, watching the time when [Plaintiff] returned” (id.
at 5);
iii) “[l]ater, [Plaintiff] was approached at [her] work
station by supervisor Crystal Hall[] [who] stated she was told by
Annette
Holloway
(Crystal’s
[s]upervisor)
[that]
[Plaintiff]
returned from [her] 10am break late” (id.);
iv) Plaintiff responded that “[she] was unaware the other
four ladies had left for break, so [Plaintiff] left a couple of
minutes later . . . [and] therefore [Plaintiff] was not late
returning two minutes after the group returned” (id.); and
v) “Crystal Hall ([s]upervisor) stated [Plaintiff] must
leave and
return
with the
group
every
day
[and]
[Plaintiff]
responded [that] [she] [would] make sure [to do so]” (id.);
7) “[o]n June 10, 2014[,] Jean [Plaintiff’s coworker] and
[Plaintiff] had a conversation that upset Tanice [and] [l]ater on
that
day
Tanice
and
[Plaintiff]
began
to
talk,
[a]
general
conversation[,] [and] [Plaintiff] tried to be the peace maker”
(id. at 6);
5
8) “[Plaintiff] talked about the news mentioning the shooting
in Washington, DC in which [Plaintiff’s] mother has a close friend
. . . [and] [Plaintiff] mentioned [her] 31 year old son who is a
little wild and crazy and what he would do in a situation related
to the one in DC” (id.);
9) “[o]n June 11, 2014[,] Tanice House [r]eported to Marty
Martin
[that]
[Plaintiff]
was
going
home
to
get
a
gun
and
[Plaintiff] was terminated a few hours later by [a] telephone
[call] from [Defendant] Goode” (id.);
10) “[a]n investigation was performed by [Defendant] Pritchard
(Employees Relations Specialist) for the Aerotek Staffing Agency
. . . [which] determined [that] [Plaintiff] was still eligible to
be employed by [Defendant] Aerot[e]k, but as of November 11,,
2014[,] additional employment has not been offered” (id. at 7); and
11)
“[Plaintiff]
ha[s]
contacted
[Defendant
Aerotek]
on
several [occasions] concerning emails [she] [] receive[d] for
employment
but
the
job
was
either
filled
or
did
not
meet
[Plaintiff’s] qualifications” (id.).
In that regard, Plaintiff’s Complaint asserts that she “has
established prima facie cases of wrongful termination, retaliation,
discrimination, defamation of character, hostile work environment,
and back pay wages.”
(Id. at 7.)
The Complaint further states
that, “[t]o shift the charge of whistleblowing and retaliation to
the charge of threatening someone with a gun is unprofessional,
6
[and] committed out of anger and hatred for [Plaintiff].”
(Id.)
Plaintiff reportedly filed charges with the EEOC in July of 2014
and received her notice-of-right-to-sue letter on October 4, 2014.
(Id.;
see
also
Docket
Entry
3-1.)
Based
on
the
foregoing,
Plaintiff seeks $5,000 each from Defendants Goode and Prichard.
(Docket Entry 3 at 8.)
Plaintiff’s Complaint further indicates
that she seeks damages from ConvaTec and several of its employees
(who she has named as defendants in a separate complaint) but does
not
specify
the
amount
Defendant Aerotek.
of
damages
she
hopes
to
obtain
from
(See id.)
Plaintiff’s Complaint appears to assert possible claims under
both Title VII and the Fair Labor Standards Act (“FLSA”) against
Defendant Aerotek.
However, as an initial matter, Plaintiff’s
Complaint does not identify, nor do the facts alleged therein
appear to support, any federal cause of action against the two
individual Defendants.
Title VII does not provide for a cause of
action against an individual supervisor.
See Lissau v. Southern
Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998) (“Congress only
intended
employers
to
be
liable
for
Title
VII
violations.”)
Although the FLSA contemplates liability against individuals with
“extensive managerial responsibilities and ‘substantial control of
the terms and conditions of the work of [] employees,’” Roman v.
Guapos III, Inc., 970 F. Supp. 2d 407, 416 (D. Md. 2013) (quoting
Falk v. Brennan, 414 U.S. 190, 195 (1973)), Plaintiff’s Complaint
7
fails to provide any facts to support an inference that Defendants
Pritchard and Goode bore such responsibilities (see Docket Entry 3
at 1-8). Specifically, the Complaint describes Defendant Pritchard
as an “Aerotek Employment Relation Specialist” and Defendant Goode
as a “Aerotek Representative” (see id. at 8), job titles that do
not suggest their involvement in the company’s management, see
Pearson
v.
Professional
RDB–09–3232,
2010
(unpublished)
present
here,
directors,
or
WL
50
4225533,
(collecting
where
owners
States
at
cases,
courts
Protection,
*4
Md.
reflecting
have
liable
(D.
held
under
LLC,
Oct.
Civ.
26,
2010)
circumstances
individual
FLSA).
No.
not
officers,
Under
these
circumstances, the Court should dismiss the claims under Title VII
and the FLSA against Defendants Pritchard and Goode.
As to Defendant Aerotek, Plaintiff has not stated a claim for
race discrimination under Title VII because she has failed to
allege facts to support that she suffered any discrimination based
on race. The Complaint’s only reference to racially discriminatory
practices concern discrimination allegedly suffered by her coworkers.
(See Docket Entry 3 at 1-8.)
An employer violates Title
VII by “discriminat[ing] against any individual with respect to
h[er] compensation, terms, conditions, or privileges of employment,
because of such individual’s race . . . .”
2(a)(1).
42 U.S.C. § 2000e-
Accordingly, Title VII generally does not allow an
employee to recover based on violations of another person’s civil
8
rights.
See, e.g., Krasner v. HSH Nordbank AG, 680 F. Supp. 2d
502, 515 (S.D.N.Y. 2010) (“[Plaintiff’s] concern for a woman’s
right to be free of workplace discrimination, and offense taken
upon being surrounded by conduct believed to impinge on that right,
admirable as it may be, does not make [Plaintiff] himself a victim
of gender-based discrimination within the scope of Title VII’s
protections.”). In that regard, Plaintiff’s Complaint first baldly
asserts that “discriminatory reasons” resulted in the lack of
enforcement of task-rotation policies. (Docket Entry 3 at 3.) The
lack of factual matter supporting any such assertion renders it
insufficient to support a claim.
See Iqbal, 556 U.S. at 678.
Further, the Complaint states that a co-worker reported the problem
to
management
followed.”
and
that
“soon
after
(Docket Entry 3 at 3.)
proper
procedures
w[ere]
Second, the Complaint asserts
in a conclusory fashion - and without further details - that
Plaintiff
“also
reported
ConvaTec mechanic.”
a
discriminatory
(Id. at 4.)
incident
against
a
Such allegations do not support
a Title VII claim for race discrimination.
See Iqbal, 556 U.S. at
678.
Although an employee may bring a Title VII retaliation claim
“because [s]he has opposed any practice made an unlawful employment
practice by [Title VII],” 42 U.S.C. § 2000e-3(a), Plaintiff’s
Complaint likewise fails to state a claim for retaliation under
Title VII. To establish retaliation in employment under Title VII,
9
[Plaintiff] may proceed in one of two ways. First, [s]he
may present direct evidence of h[er] superiors’
[retaliatory] intent.
Second, [s]he may attempt to
satisfy the test specified in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), which allows h[er] to
raise an inference of [retaliatory] intent by showing
that [s]he was treated worse than similarly situated
employees of other [relevant groups].
Defendants are
then entitled to respond by presenting a legitimate,
non[retaliatory] reason for their actions.
Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005) (internal
citations omitted).3 Plaintiff’s Complaint does not allege factual
matter indicating the existence of direct evidence of retaliatory
intent.
rely
(See Docket Entry 3 at 1-8.)
on
the
McDonnell
Douglas
Accordingly, Plaintiff must
test,
establishment of a prima facie case.
which
first
requires
See Coleman v. Maryland Ct.
of App., 626 F.3d 187, 190 (4th Cir. 2010).
“The elements of a prima facie retaliation claim under Title
VII are: (1) engagement in a protected activity; (2) adverse
employment action; and (3) a causal link between the protected
activity and the employment action.”
allegation
of
racial
discrimination
Id.
-
The Complaint’s first
discrimination
in
the
assignment of job tasks - does not satisfy the protected activity
element because Plaintiff states that a co-worker reported a
problem concerning another co-worker.
(See Docket Entry 3 at 3.)
Thus, Plaintiff herself did not engage in a protected activity
3
Although McDonnell Douglas arose in the discrimination
context, its framework also applies to retaliation claims. See
Hawkins v. Pepsico, Inc., 203 F.3d 274, 281 n.1 (4th Cir. 2000).
10
under Title VII.
See Coleman, 626 F.3d at 190.
As to the second
allegation - the conclusory reference to Plaintiff’s reporting of
“a discriminatory incident against a ConvaTec mechanic” (Docket
Entry 3 at 4) - the Complaint fails to allege sufficient facts to
show protected activity or to warrant an inference of a causal
connection
between
that
incident
and
an
adverse
employment
consequence suffered by Plaintiff (see id. at 1-8). See Iqbal, 556
U.S. at 678.
Plaintiff’s
Complaint
similarly
lacks
material to support a claim under the FLSA.
adequate
factual
“The [FLSA] sets forth
employment rules concerning minimum wages, maximum hours, and
overtime pay.” Kasten v. Saint-Gobhain Performance Plastics Corp.,
__ U.S. __, __, 131 S. Ct. 1325, 1329 (2011).
Under that statute,
a covered employer must compensate a nonexempt employee “at a rate
not less than one and one-half times the regular rate” for any
hours worked beyond forty hours in a given week.
29 U.S.C. §
207(a)(1). “To state a claim for unpaid overtime wages under FLSA,
[a] [p]laintiff must allege (1) that [she] worked overtime hours
without compensation; and (2) that the employer knew or should have
known that [she] worked overtime but failed to compensate [her] for
it.”
Sanchez v. Truse Trucking, Inc., No. 1:13CV415, 2014 WL
3784109, at *3 (M.D.N.C. July 31, 2014) (unpublished) (Beaty, S.J.)
(internal quotation marks omitted).
11
“In the wake of the Iqbal and Twombly decisions, courts across
the country have expressed differing views as to the level of
factual detail necessary to plead a claim for overtime compensation
under [the] FLSA.”
Butler v. DirectSat USA, LLC, 800 F. Supp. 2d
662, 667 (D. Md. 2011). District courts in the Fourth Circuit have
adopted a comparatively lenient approach, see Sanchez, 2014 WL
3784109, at *3 (collecting cases), under which a “plaintiff[] need
not provide a running list of specific work days for which [she
was] not paid; it is enough that [she has] provided a clear factual
statement charging as much,” Davis v. Skylink LTD., Civ. No.
3:11–0094, 2011 WL 2447113, at *4 (S.D. W. Va. June 15, 2011)
(unpublished)
(emphasis
added);
see
also
Alston
v.
Becton,
Dickinson & Co., No. 1:12CV452, 2013 WL 4539634, at *4 (M.D.N.C.
Aug. 27, 2013) (unpublished) (concluding that complaint alleging
310 hours of unpaid overtime over two years stated claim under
FLSA); Long v. CPI Sec. Sys., Inc., No. 3:12CV396–RJC–DSC, 2012 WL
3777417, at *4 (W.D.N.C. Aug. 30, 2012) (unpublished) (finding
sufficient allegations of work averaging 50-60 hours per week over
four-year period without overtime pay).
Thus, at a minimum, an
FLSA overtime complaint must state a rough estimate of overtime
hours worked or total hours worked each week, without proper
compensation.
Plaintiff’s Complaint alleges that Annette Holloway “offered
[her] a 1st shift position of 7-3 Monday thru Friday” (Docket Entry
12
3 at 4) and that, on one day, “as [Plaintiff] approached the time
clock at approximately 3:10pm having difficulty punching out[,]
Annette Holloway (Assistant Plant Manager) said, ‘You should still
be working’ . . . [and] “[Plaintiff] replied by asking “Why
employees[] are not paid for the extra 10 minutes [they] are
required to work every day?” (id.).
The Complaint further states:
“[W]e were not receiving time and a half pay for the 10 minutes we
were required to work each day.”
(Id. at 5.)
Notwithstanding the
foregoing, Plaintiff’s Complaint fails to allege that she actually
worked more than forty hours in any week.
In that regard, the regulations promulgated under the FLSA do
not consider all paid time as working time.
See Johnson v. City of
Columbia, S.C., 949 F.2d 127, 129 (4th Cir. 1991) (“Generally
speaking, the FLSA clearly requires employers to pay employees
overtime for all hours worked over forty in one week.
There are,
however,
.”).
certain
exceptions
and
exclusions
.
.
.
For
instance, if Convatec afforded Plaintiff a paid 30-minute daily
lunch break, such time would not count toward her total hours
worked that week, and Plaintiff would have no entitlement to
overtime pay.
See 29 C.F.R. § 785.19 (“Bona fide meal periods are
not worktime . . . . Ordinarily 30 minutes or more is long enough
for a bona fide meal period.
A shorter period may be long enough
under special conditions.”).
Moreover, Plaintiff has not stated
that she consistently arrived on time for work.
13
(See Docket Entry
3 at 1-8.)
Simply put, given that Plaintiff has not alleged that
she actually accrued over forty hours of working time in a given
week, or provided a total estimate of the number of hours of
overtime she worked without additional compensation, the Complaint
does not contain sufficient factual information to state a claim
for failure to pay overtime compensation.
The FLSA further “contains an antiretaliation provision that
forbids employers ‘to discharge or in any other manner discriminate
against any employee because such employee has filed any complaint
. . . under or related to [the FLSA] . . . .’”
”
Kasten, __ U.S.
at __, 131 S. Ct. at 1329 (quoting 29 U.S.C. § 215(a)(3)) (emphasis
in original).
Moreover, the Supreme Court has concluded that “the
statutory term ‘filed a complaint’ includes oral as well as written
complaints within its scope.” Id.
As with Title VII, “[an] [FLSA]
plaintiff may show retaliation by direct evidence or indirectly
through a McDonnell Douglas type proof scheme.” Strickland v. MICA
Info. Sys., 800 F. Supp. 1320, (M.D.N.C. 1992). Again, Plaintiff’s
Complaint lacks factual matter suggesting the existence of direct
evidence of retaliatory intent (see Docket Entry 3 at 1-8) and,
thus, she must follow the relevant proof scheme.
“A plaintiff
asserting a prima facie claim of retaliation under the FLSA must
show that (1) [s]he engaged in an activity protected by the FLSA;
(2) [s]he suffered adverse action by the employer subsequent to or
contemporaneous with such protected activity; and (3) a causal
14
connection
exists
between
employer’s adverse action.”
the
employee’s
activity
and
the
Darveau v. Detecon, Inc., 515 F.3d
334, 340 (4th Cir. 2008).
The Fourth Circuit has looked to Title VII to interpret the
FLSA’s retaliation provision and found “no significant differences
in either the language or intent of the two statutes regarding the
type of adverse action their retaliation provisions prohibit.” Id.
at 342.
“[A] plaintiff asserting a retaliation claim under the
FLSA need only allege that his employer retaliated against him by
engaging in an action ‘that would have been materially adverse to
a reasonable employee’ because the ‘employer’s actions . . . could
well dissuade a reasonable worker from making or supporting a
charge [under the FLSA].’”
Id. at 343 (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
That said,
“the Supreme Court in White was clear that, generally, ‘petty
slights, minor annoyances, and simple lack of good manners,’ which
are not uncommonly found in the workplace, do not qualify as
materially adverse employment actions.”
Wilcoxon v. DECO Recovery
Mgmt., LLC, 925 F. Supp. 2d 725, 731 (D. Md. 2013) (quoting White,
548 U.S. at 68).
Plaintiff’s Complaint alleges that, after she raised concerns
with a supervisor about overtime pay, “[Plaintiff] came under
personal attack and the workplace was being used to execute a
vindictive behavior, because [of] [Plaintiff’s] knowledge [of] the
15
fact that [employees] were not receiving time and a half pay for
the 10 [additional] minutes we were required to work each day.”
(Docket Entry 3 at 5.)
As examples of retaliation she suffered,
Plaintiff states that one supervisor reprimanded her for not taking
her break at the same time as her coworkers and that another
supervisor monitored her breaks to ensure she did not take more
than the allotted time.
(See id.)
Nonetheless, “[e]ven under the
more generous standard that governs retaliation claims, a reprimand
without more is not an adverse employment action.”
Indiana, 744
F.3d
974,
987
(7th
Cir.
2014)
Chaib v.
(emphasis
added)
(internal quotation marks omitted); see also Wilcoxon, 925 F. Supp.
2d at 731 (“[Employee] speaks of her embarrassment and discomfort
at being berated by [her employer] in front of her sales team, but
this is not enough to elevate her maltreatment to the level of a
materially
omitted)).
adverse
employment
action.”
(internal
citation
Similarly, “monitoring of [an employee’s] performance
[and] breaks . . . are, at most, ‘petty slights, minor annoyances,
and simple lack of good manners’ that cannot be classified as
materially adverse employment actions.”
Lindsey-Grobes v. United
Airlines, Inc., No. GJH–14–00857, 2014 WL 5298030, at *10 (D. Md.
Oct. 14, 2014) (unpublished) (quoting White, 548 U.S. at 68)
(internal citation omitted).
Plaintiff’s Complaint then appears to claim some connection
between
the
alleged
retaliatory
16
acts
and
her
termination
approximately two weeks later, stating: “[t]o shift the original
charge
of
whistleblowing
and
retaliation
to
the
charge
of
threat[en]ing someone with a gun is unprofessional [and] committed
out of anger and hatred for me” (Docket Entry 3 at 7).
However,
this conclusory assertion alone does not support a reasonable
inference that Plaintiff’s oral complaint about overtime caused her
termination.
See Iqbal, 556 U.S. at 678 (“Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
Furthermore, even assuming that Plaintiff had established a
prima facie case for retaliation under Title VII or the FLSA, her
claim would fail because she has acknowledged “a legitimate, nonretaliatory reason for the adverse action [i.e., her termination],”
Mould v. NJG Food Serv. Inc., Civ. No. JKB–13–1305, 2014 WL
3943693, at *12 (D. Md. Aug. 12, 2014) (unpublished) (citing
Anderson v. G.D.C., Inc., 281 F.3d 452, 458 (4th Cir. 2002)).
According to Plaintiff, the day following her conversation with coworker Tanice House regarding a shooting in Washington, D.C.,
“[Ms.]
House
[r]eported
to
[supervisor]
Marty
Martin
that
[Plaintiff] was going home to get a gun, and [Plaintiff] was
terminated a few hours later by telephone from [Defendant] Goode.”
(Docket Entry 3 at 6.)
indicates
that
a
In that regard, the face of the Complaint
co-worker’s
report
Plaintiff resulted in her firing.
17
of
alleged
comments
by
Even considering these facts in a light most favorable to
Plaintiff - and assuming that Ms. House misunderstood Plaintiff the circumstances would not entitle Plaintiff to relief under Title
VII or the FLSA because Plaintiff’s own allegations show that
something other than conduct protected under those acts caused
Plaintiff’s termination.
Further, according to Plaintiff, Ms.
House allegedly suffered racial discrimination in the workplace and
Ms. House - not Plaintiff - reported that incident to a supervisor.
(Docket Entry 3 at 3.)
Accordingly, no reason exists to believe
Ms. House played some part in a plot to retaliate against Plaintiff
for engaging in protected activity. Finally, Plaintiff’s Complaint
names Annette Holloway as the perpetrator of the alleged acts of
retaliation (id. at 4), but it assigns Ms. Holloway no role in
Plaintiff’s termination beyond her alleged failure to intervene
(see id. at 6-9).
In sum, Plaintiff has failed to allege any facts
which would establish a plausible causal relationship between
conduct protected by Title VII or the FLSA and her firing to
support a claim for retaliation.4
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
4
To the extent Plaintiff’s Complaint asserts a claim under
Title VII or the FLSA based on Defendant Aerotek’s alleged failure
to hire her for other positions (see Docket Entry 3 at 7), such
claim fails for all the same reasons identified above as to
Plaintiff’s other claims of discrimination and/or retaliation.
18
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,5 the
Court should decline to exercise supplemental jurisdiction over
Plaintiff’s state-law claims and, instead, should dismiss those
claims without prejudice.
CONCLUSION
Plaintiff’s federal claims fall short as a matter of law.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
5
The Complaint identifies Plaintiff and Defendant Aerotek as
residents of Guilford County, North Carolina. (Docket Entry 3 at
1.) Such circumstances cannot satisfy the diversity jurisdiction
statute. See 28 U.S.C. § 1332(a).
19
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 Plaintiff’s federal claims be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) and that her state 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
March 2, 2015
20
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