BERNARD V. BRENNAN
Filing
13
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 06/28/2016. For the reasons stated herein, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (Doc. 8 ) is GRANTED and that Plaintiff's Amended Complaint (Doc. 7 ) is DISMISSED WITHOUT PREJUDICE.A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GRICER BERNARD,
Plaintiff,
v.
MEGAN J. BRENNAN, in her
official capacity as
POSTMASTER GENERAL,
Defendant.
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1:15CV777
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion to Dismiss filed by
Defendant Megan J. Brennan, the Postmaster General of the United
States (“Defendant”). (Doc. 8.)
Plaintiff Gricer Bernard
(“Plaintiff”) has responded (Doc. 10), and Defendant has
replied. (Doc. 12.)
This matter is now ripe for resolution, and
for the reasons stated herein, Defendant’s Motion to Dismiss
will be granted.
I.
BACKGROUND
Plaintiff was hired by the United States Postal Service
(“USPS”) as a Human Resources Associate in May of 2007. (Amended
Complaint (“Am. Compl.”) (Doc. 7) ¶ 6.)
In October of 2011,
Plaintiff applied for a promotion within the USPS to the
position of Human Resource Specialist, which she was not
selected for. (Id. ¶¶ 7-8.) In response to being passed over for
promotion, in March of 2012, Plaintiff filed a complaint with
the Equal Employment Opportunity Commission (“EEOC”), alleging
that she was not selected for the promotion because of her race
and national origin, which are Hispanic and Puerto Rican,
respectively. (Id. ¶ 9.) In the EEOC complaint, Plaintiff named
two of her supervisors, Paulette Rynehardt and Richard Defeo.
(Id.) The results of that proceeding are not detailed in the
Amended Complaint, although Plaintiff continued to be employed
by Defendant.
On December 16, 2014, Plaintiff interviewed with two
different individuals, Stanley Sanders and Sandra Goldman, for a
position of Personnel Processing Specialist. (Id. ¶¶ 11.)
Plaintiff alleges that she was qualified for the position
because she had attained “superuser” status with Defendant due
to her advanced knowledge of Defendant’s systems and processes,
and because she spoke both Spanish and English fluently, unlike
other applicants. (Id. ¶¶ 12-13.) Plaintiff was not selected for
this position either and was told that the reason for her
non-selection was a poor interview score. (Id. ¶¶ 14, 17.) In
February of 2015, Plaintiff filed a second EEOC complaint,
alleging that she had not been selected for the promotion as
retaliation for the filing of her first EEOC complaint and that
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her allegedly poor interview score was pretext for this
retaliation. (Id. ¶ 16.)
Plaintiff requested a final decision without a hearing from
the EEOC, and filed the instant action within 90 days of her
receipt of the final order issued by the agency. (Id. ¶¶ 19-20).
II.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must 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) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible
provided the plaintiff provides enough factual content to enable
the court to reasonably infer that the defendant is liable for
the misconduct alleged. Id. The pleading setting forth the claim
must be “liberally construed” in the light most favorable to the
nonmoving party, and allegations made therein are taken as true.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, “the
requirement of liberal construction does not mean that the court
can ignore a clear failure in the pleadings to allege any facts
[that] set forth a claim.”
Estate of Williams-Moore v. All. One
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Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
2004).
Rule 12(b)(6) protects against meritless litigation by
requiring sufficient factual allegations “to raise a right to
relief above the speculative level” so as to “nudge[] the[]
claims across the line from conceivable to plausible.” Twombly,
550 U.S. at 555, 570; see Iqbal, 556 U.S. at 680. Under Iqbal,
the court performs a two-step analysis. First, it separates
factual allegations from allegations not entitled to the
assumption of truth (i.e., conclusory allegations, bare
assertions amounting to nothing more than a “formulaic
recitation of the elements”). Iqbal, 556 U.S. at 681. Second, it
determines whether the factual allegations, which are accepted
as true, “plausibly suggest an entitlement to relief.” Id. “At
this stage of the litigation, a plaintiff's well-pleaded
allegations are taken as true and the complaint, including all
reasonable inferences therefrom, are liberally construed in the
plaintiff's favor.” Estate of Williams-Moore, 335 F. Supp. 2d at
646.
III. ANALYSIS
Plaintiff brings her cause of action under Title VII,
which, among other things, makes it unlawful for an employer “to
discriminate against any of his employees . . . because he has
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opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). In order to state a claim under Title VII, the
plaintiff must allege facts that satisfy the elements of a cause
of action that Title VII creates. See McCleary-Evans v. Md.
Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th
Cir. 2015), cert. denied, ____ U.S. ____ 136 S. Ct. 1162 (2016).
The elements of a prima facie retaliation claim are “(1)
engagement in a protected activity; (2) adverse employment
action; and (3) a causal link between the protected activity and
the employment action.” Coleman v. Md. Ct. of Appeals, 626 F.3d
187, 190 (4th Cir.2010).
While “a plaintiff is not required to
plead facts that constitute a prima facie case in order to
survive a motion to dismiss, factual allegations must be enough
to raise a right to relief above the speculative level.” Id.
(citations omitted); accord McCleary–Evans, 780 F.3d at 585.
The Amended Complaint fails to meet this standard for
several related reasons, all of which amount to a failure to
allege the necessary causal link between the adverse employment
action and Plaintiff’s protected activity. First, the Amended
Complaint alleges only that the USPS employees who interviewed
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Plaintiff “had knowledge” of her prior EEOC complaint. (Am.
Compl. (Doc. 7) ¶ 15.) However, a simple allegation that an
employer is aware of a prior EEOC complaint against it is not
sufficient basis for this court to infer later discrimination
against Plaintiff on that basis. Plaintiff does not allege that
the previous complaint was ever brought up by her employer after
she filed it, that it was discussed during the interview for the
promotion at issue, or that it affected her employment with the
USPS in any way. Rather, Plaintiff alleges simply that she filed
an EEOC complaint in March of 2012, and was denied a promotion
in December of 2014, more than two years after the filing of the
initial complaint. 1 Such a large gap in time between the
protected action and the alleged discrimination at issue further
weakens the inference of a causal link between the two
instances.
1
In addition to knowledge, there ordinarily must “be some
degree of temporal proximity” between the protected activity and
the retaliatory conduct to suggest a causal connection.
Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 501 (4th Cir. 2005). Usually, when time between the
two events is short, an inference of causation can be found.
However, a gap of three to four months of temporal proximity has
been held insufficient, standing alone, to establish causation.
See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001);
Shields v. Fed. Express Corp., 120 F. App’x 956, 963 (4th Cir.
2005). Here, Plaintiff alleges a gap of more than two years,
rendering the temporal proximity too remote to support any
inference of a causal connection.
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Further, Plaintiff alleges only that she was qualified for
the position that she applied for by virtue of her status as a
“superuser” in Defendant’s system, and that she was fluent in
both Spanish and English, unlike a “majority” of the other
applicants. (Am. Compl. (Doc. 7) ¶¶ 12-13.)
However, the
Amended Complaint does not allege who received the promotion,
whether that person was sufficiently qualified for the position,
whether Plaintiff was more qualified than the person who
eventually received that promotion, or whether that person had
ever filed an EEOC complaint against Defendant. Merely alleging
competence for a position and failure to be awarded that
position is not enough to state a cause of action for
retaliation. Further, Plaintiff’s Amended Complaint does little
to address the “obvious alternative explanation” to Plaintiff’s
failure to receive the promotion at issue: namely, that the
decisionmakers “simply judged those [promoted] to be more
qualified and better suited for the position[].”
McCleary-
Evans, 780 F.3d at 588.
Finally, as to Plaintiff’s allegation that her poor
interview score was mere pretext, such an allegation is
conclusory, and this court declines to draw such an inference
without additional facts. There are a multitude of plausible
reasons that Plaintiff’s second interview could have gone
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poorly, despite her relatively successful interview in 2012.
Plaintiff was interviewing with different individuals who may
have judged her abilities differently, was interviewing for a
different position for which she may have been a poorer fit, and
may simply have had a poor interview on that day. Nothing in the
Amended Complaint causes this court to infer that Plaintiff’s
interview score was merely pretext to unlawful retaliation, and
that conclusory allegation will not be credited.
IV.
CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED that
Defendant’s Motion to Dismiss (Doc. 8) is GRANTED and that
Plaintiff’s Amended Complaint (Doc. 7) is DISMISSED WITHOUT
PREJUDICE.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 28th day of June, 2016.
______________________________________
United States District Judge
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